BARRISTER GLOBAL SERVICES NETWORK, INC.
EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is effective as of January 1, 2001,
by and between Xxxxx X. Xxxxxxxxxx, residing at 000 Xxxxxxxxxxxx Xxxx, Xxxxxxx
Xxxx, Xxx Xxxx 00000 ("Semmelhack"), and Barrister Global Information Network,
Inc., a Delaware corporation, having its office and principal place of business
at 000 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("Barrister").
WHEREAS, Semmelhack is currently employed by Barrister as its
Chairman of the Board, President and Chief Executive Officer and Barrister and
Semmelhack wish to continue this employment relationship on the terms of this
Agreement and to provide for a future consulting relationship;
NOW, THEREFORE, in consideration of the above and the mutual
covenants and obligations in this Agreement, the parties agree as follows:
1. Term The term of this Agreement will begin as of January 1,
2001 and will continue for five years (the "Term").
2. Duties and Responsibilities
A. During the first two years of the Term, Semmelhack
will be an employee of Barrister and will perform the
duties of Chairman of the Board, President and Chief
Executive Officer of Barrister. Semmelhack will
devote his full business time and best efforts,
skills, and ability to promote the business of
Barrister and perform for Barrister such duties as
are customarily performed by a management or
executive employee having responsibility in such
areas. Semmelhack will have such power and authority
as will reasonably be required to enable him to
perform his duties in an efficient manner; provided
that in the exercising of such power and authority
and the performance of such duties, he will at all
times be subject to the direction of the Board of
Directors of Barrister.
X. Xxxxxxxxxx will continue to be an employee of
Barrister and to perform the duties described in
paragraph A of this Section 2 during the third year
of the Term if Barrister requests that he do so at
least 90 days before the end of the second year of
the Term.
X. Xxxxxxxxxx'x employee status will terminate at the
end of the second year of the Term or, if he
continues to act as Chairman of the Board, President
and Chief Executive Officer of Barrister during the
third year under
paragraph B of this Section 2, at any time during the
third year of the Term upon written notice from
Barrister. For the remainder of the Term, Semmelhack
agrees to be available to provide consulting services
to Barrister of a nature, to be determined by mutual
agreement between Semmelhack and the Board of
Directors of Barrister. Semmelhack will provide such
consulting services as an independent contractor,
upon terms and conditions determined jointly by
Semmelhack and the Board of Directors of Barrister.
D. While Semmelhack is an employee of Barrister, he will
serve as a member of the Board of Directors of
Barrister. Thereafter, he will serve as a member of
the Board of Directors of Barrister with full rights
and responsibilities of other non-employee directors
until the earlier of his resignation or removal.
3. Compensation
A. For all periods during which Semmelhack is performing
the duties described in Section 2(A) or 2(B), he will
be compensated as follows:
X. Xxxxxxxxxx will be paid a salary at a rate
fixed from time to time by the Board of
Directors of Barrister (the "Base Salary"),
payable in approximately equal installments
at such intervals as Barrister pays the
salaries of its executive employees.
Semmelhack's initial Base Salary will be
$160,000 per year.
II. Semmelhack will be eligible for additional
incentive compensation each year, determined
in accordance with Exhibit A, which is
attached to and made a part of this
Agreement.
III. Barrister will pay Semmelhack during any
period of disability lasting less than six
months in accordance with its short-term
disability policy for executive employees.
After six months of disability, Barrister
will pay Semmelhack the difference, if any,
between Semmelhack's Base Salary and any
long-term disability payments he receives
under Barrister's long-term disability
insurance policy, adjusted for taxes.
Semmelhack will contribute to Barrister's
long-term disability insurance policy. In no
event will the operation of this subsection
result in payments to Semmelhack in any year
in an amount which in the aggregate exceeds
Semmelhack's Base Salary for such year.
IV. Semmelhack will be entitled to reimbursement
for all reasonable travel and other business
expenses incurred by him on behalf of
Barrister. Semmelhack will be included, on
the same terms as other executive employees
of Barrister, in any life insurance,
accidental death and dismemberment
insurance, medical insurance, pension and
profit-
sharing plans, health care expense
reimbursement and other employee benefit
programs that Barrister may have in force
from time to time for its personnel.
X. Xxxxxxxxxx will be entitled to eight weeks
paid vacation per year.
B. In consideration of Semmelhack's agreement to provide
consulting services as described in Section 2(C), his
compensation will be $108,000 per year, paid monthly
in approximately equal installments.
4. Termination
A. If Semmelhack is substantially unable to render the
services described in this Agreement for a period in
excess of six months because of disability or
illness, Barrister has the right to terminate this
Agreement by giving at least thirty days' advance
written notice after the end of the six-month period.
However, if Semmelhack resumes his duties during that
thirty-day period and continuously performs his
duties for at least two consecutive months
thereafter, the notice of termination will be
disregarded and this Agreement will continue in full
force as though such notice of termination had not
been given. If a question arises as to Semmelhack's
ability to perform his regular duties, Semmelhack
will be examined by a physician selected jointly by
Barrister and Semmelhack. If they cannot agree on a
physician, Semmelhack and Barrister will each choose
a physician and those two physicians will jointly
select a third physician to examine Semmelhack. The
determination of the examining physician will be
final and binding on all parties for the purposes of
this Section 4(A). If this Agreement is terminated
under this Section 4(A) and Semmelhack dies of the
illness or disability before all payments to which he
is entitled under Section 4(C) have been made,
Barrister will make such payments to Semmelhack's
beneficiary or beneficiaries in accordance with
Section 7.
B. Barrister has the right, in its sole discretion, to
terminate this Agreement at any time for cause, other
than on account of illness or disability as provided
in Section 4(A), by giving at least fourteen days'
advance written notice to Semmelhack of the date when
such termination will become effective. For purposes
of this Section 4, "cause" means Semmelhack's breach
of any provision of this Agreement, failure to adhere
to Barrister's Rules and Regulations for Employees
(as set forth in Section 1.4-1 of Barrister's
Corporate Policies and Procedures Manual, determined
by the standard of reasonableness), misconduct or
other unlawful, disloyal or unethical conduct that
could result in liability or loss of a business
advantage or good will to Barrister, refusal to
follow the reasonable or lawful directions of the
board of directors of Barrister, misfeasance,
recklessness or gross negligence in the performance
of his duties, neglect of such duties or, in the
reasonable judgment of Barrister, willful injury to
another or any act of fraud, dishonesty or
competition against Barrister.
C. If this Agreement is terminated by Barrister before
the expiration of its Term, under Section 4(A) or for
any reason other than cause, Barrister will pay
Semmelhack (i) his Base Salary, if he is an employee
at the time of the termination, or his annual
compensation under Section 3(B), if he is a
consultant at the time of the termination, for the
remainder of the Term, in accordance with the terms
of Section 3(A)(i) or 3(B), whichever is applicable,
and (ii) any other compensation or benefits due under
this Agreement only to the date of termination. If
this Agreement is terminated by Barrister for cause
prior to the expiration of its Term, Barrister will
pay Semmelhack any compensation or benefits due under
this Agreement only to the date of such termination.
A substantial diminution in Semmelhack's duties as an
employee as described in Section 2 will be considered
a termination under this Section 4(C).
5. Proprietary Rights and Non-Competition As a condition of his
employment by Barrister under this Agreement, Semmelhack will
enter into and be bound by the Employee Inventions, Works of
Authorship, Proprietary Rights and Non-Competition Agreement,
which is attached to and made a part of this Agreement as
Exhibit B, to the same extent as if the text of the Exhibit,
other than Sections 15.00 and 15.01, had been fully set forth
in the body of this Agreement. The provisions of this
Agreement will control over any inconsistent provisions in
Exhibit X. Xxxxxxxxxx acknowledges he has read, understands
and agrees to abide by the terms of Exhibit B, including the
covenant not to compete contained in Section 12.00 of Exhibit
B, and that the employment with and payments by Barrister
under this Agreement are satisfactory and adequate
consideration for his agreement to comply with all of the
provisions in Exhibit B.
6. Non-Solicitation and Non-Interference For a period of one year
following Semmelhack's termination under Section 4 or the
termination of this Agreement according to its terms,
Semmelhack will not, directly or indirectly, on his own behalf
or through another person or entity, (i) contact, solicit,
offer to hire or hire any person who was employed by Barrister
during the six-month period immediately before such
termination; (ii) communicate or have contact with Barrister's
employees, customers, suppliers, or other persons with whom
Barrister may then have business relations if such
communication or contact may interfere with or otherwise
interrupt Barrister's operations, employment or business
relationships with such persons, or (iii) by any means issue
or communicate any private or public statement that may be
critical or disparaging of Barrister or its products,
services, officers, directors or employees.
7. Designation of Beneficiary; Lump Sum Payments Semmelhack will
give the Secretary of Barrister a written statement
designating a beneficiary entitled to
receive any benefits payable to Semmelhack after his death
under Section 4(A) of this Agreement. This designation may be
revoked or amended by Semmelhack at any time. If no such
written designation is filed with the Secretary of Barrister,
or if the designated beneficiary is not alive when a payment
is to be made, payments will be made in equal shares to
Semmelhack's children who are alive at the time of such
payment. If Semmelhack has no surviving designated beneficiary
or children at the time a payment is to be made, the net
present value (based on 7% interest compounded annually) of
the monthly payments due under such Section 4(A) will be paid
to Semmelhack's estate. In determining the eligibility and
status of persons entitled to receive payments under this
Section, Barrister may rely on its records and the good faith
determinations of its officers, and Barrister will not be
liable to any person for any sums paid to any other persons
pursuant to such records and determinations.
8. Participation in Other Plans Nothing in this Agreement affects
any right that Semmelhack may otherwise have to participate
in, or any right under, any other retirement plan or agreement
that Barrister may provide now or in the future.
9. Assignment This Agreement will not be assigned by either party
without the advance written permission of the non-assigning
party. Neither Semmelhack nor any beneficiary designated to
receive payments under this Agreement has any power to
transfer, assign, anticipate, mortgage or otherwise encumber
in advance any of the benefits payable under this Agreement,
nor will such benefits be subject to seizure for the payment
of any debts or judgments or be transferable by operation in
law in the event of bankruptcy, insolvency or otherwise.
10. Equitable Relief; Claims Generally Semmelhack acknowledges
that Barrister will suffer damages incapable of ascertainment
in the event that any of the provisions of Section 5, Section
6 or Exhibit B are breached and that Barrister will be
irrevocably damaged in the event that these provisions are not
enforced fully. Therefore, if any dispute arises with respect
to the breach or threatened breach of such provisions,
Semmelhack agrees and consents that, in addition to any and
all other remedies available to Barrister, an injunction or
restraining order or other equitable relief may be issued or
ordered by a court of competent jurisdiction restraining any
breach or threatened breach of such provisions. Semmelhack
agrees not to argue in any such action that an adequate remedy
exists at law. All expenses, including without limitation,
attorneys' fees and expenses incurred in connection with any
legal proceeding arising as a result of a breach or a
threatened breach of Section 5, Section 6 or Exhibit B of this
Agreement will be borne by the losing party to the fullest
extent permitted by law. Semmelhack recognizes and agrees that
the restrictions contained in Section 5, Section 6 and Exhibit
B will be effective and enforceable notwithstanding the
non-performance or breach of this Agreement by Barrister and
notwithstanding any claim made by Semmelhack against Barrister
under this Agreement.
11. Cumulative Remedies Any of the remedies provided for in this
Agreement will be in addition to any remedy available to
either party at law or equity.
12. Dispute Resolution
A. Barrister, in its sole discretion, elect to have any
dispute or claim arising under or in relation to this
Agreement, regardless of which party initiated such
dispute or claim, determined by arbitration
procedures in Buffalo, New York, in accordance with
the rules of commercial arbitration of the American
Arbitration Association.
B. The parties consent to the jurisdiction of the courts
of the State of New York and the federal courts in
the State of New York for all purposes, including to
issue injunctive relief and to render judgment on and
enforce any arbitration award. Any judgment rendered
by a court of competent jurisdiction will be entitled
to full faith and credit anywhere in the United
States.
C. The prevailing party in any court and/or arbitration
proceeding in connection with this Agreement is
entitled to payment of all costs, including
reasonable legal fees, incurred in connection with
such proceeding.
13. Binding Agreement This Agreement constitutes the entire
Agreement between the parties and supersedes any and all prior
Agreements between the parties. This Agreement will be binding
upon the Parties hereto, their heirs, executors,
administrators or successors.
14. Amendment This Agreement may not be modified, amended or
supplemented except in a writing executed by both parties.
15. Severability; Reformation If any part of this Agreement is
held by any court or other tribunal of competent jurisdiction
to be illegal, invalid or unenforceable in such jurisdiction,
the remainder of the Agreement will be given full effect,
without regard to the invalid portion. It is the intention of
the parties that if any court construes any provision of this
Agreement to be illegal, void or unenforceable because of the
duration or the area or matter covered by the provision, the
court will reduce the duration, area or matter of such
provision, and in its reduced form, such provision will be
enforceable, and will be enforced. With respect to the
duration of any covenant, the parties agree that the court may
reduce the duration in three-month increments to the maximum
permissible under the law.
16. Governing Law This Agreement will be construed in accordance
with and governed by the laws of the State of New York, except
for its principles of conflict of laws.
17. Notices Any notice or other communication under this Agreement
will be in writing and delivered by hand, by carrier or by
certified mail, to the other party at the address shown above
or such other address as a party has indicated in writing in
accordance with this Section 17.
18. Legal Advice Semmelhack represents and warrants to Barrister
that he had the opportunity to seek, and was not prevented nor
discouraged by Barrister from seeking, independent legal
advice prior to the execution and delivery of this Agreement
and that, in the event that he did not avail himself of that
opportunity prior to signing this Agreement, he did so
voluntarily without any pressure or compulsion, such failure
to obtain independent legal advice was of his own choice, and
he will not use that failure as a defense to any enforcement
of his obligations under this Agreement. This Agreement is a
negotiated Agreement and will not be construed against the
party who caused it to be prepared.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be signed as of the date first above written.
____________________________________________
Xxxxx X. Xxxxxxxxxx
BARRISTER GLOBAL INFORMATION NETWORK, INC.
By _________________________________________
Xxxxxxxx X. Xxxxx
Chairman, Compensation Committee
EXHIBIT A
INCENTIVE COMPENSATION
EXHIBIT B
EMPLOYEE INVENTIONS, WORKS OF AUTHORSHIP, PROPRIETARY RIGHTS AND
NON-COMPETITION AGREEMENT
