EXHIBIT 10.7
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EMPLOYMENT AGREEMENT
By and Between
CARIBINER, INC.
and
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July 25, 1995
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of July 25, 1995, by
and between CARIBINER, INC., a New York corporation having an office at ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Employer"), an ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an
individual residing at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Employee").
W I T N E S S E T H:
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WHEREAS, Employer has concurrently with this Agreement entered into an
Agreement of Purchase and Sale of Assets (the "Purchase Agreement") with
Imagination (USA), Inc., a Georgia corporation ("Imagination") and The
Imagination Group Limited, a corporation organized and existing under the
laws of England, to purchase substantially all of the assets of Imagination;
WHEREAS, Employee has been serving as the Chief Executive Officer of
Imagination; and
WHEREAS, Employer desires to engage Employee as an employee in its
business and Employee desires to provide his services in connection with such
business and both parties desire to clarify and specify the rights and
obligations which each have with respect to the other in connection with such
employment.
NOW, THEREFORE, in consideration of the agreements and covenants herein
set forth, the parties hereby agree as follows:
1. EMPLOYMENT
Employer hereby employs Employee as Vice President of Employer and
General Manager of Employer's Atlanta Office (the "Atlanta Office") and Employee
hereby accepts such employment and agrees to render his services as an employee
of Employer, for the term of this Agreement (as set forth in Section 6 hereof),
all subject to and on the terms and conditions herein set forth.
2. DUTIES AND RESPONSIBILITIES OF EMPLOYEE
Employee shall be employed as Vice President of Employer and General
Manager of the Atlanta Office and his duties and responsibilities shall be
commensurate with such title. Employee's duties shall also include strategic
planning for Employer's business on a global basis. In this connection, Employee
shall be called upon to consult with Employer's Chairman, and persons designated
by the Chairman, in connection with Employer's development of a strategy for
expanding the focus of Employer's business to an integrated marketing and
communications company. With the prior written approval of the Chairman,
Employee shall be permitted to hire additional personnel necessary to achieve
such strategic objectives. In the performance of his duties, Employee shall
report to Employer's Chairman and any other person or persons designated by
Employer's
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Board of Directors (the "Board"). Employee shall use his best efforts to
maintain and enhance the business and reputation of the Employer. Employee
shall be available to travel as the reasonable needs of Employer shall require.
3. EXCLUSIVITY OF SERVICE
Employee agrees to devote substantially all of his business time,
efforts and attention to the business and affairs of the Employer on an
exclusive basis, and not to engage in any other business activities for any
person or entity, other than personal investment activities which do not
materially affect the performance of Employee's duties hereunder.
4. COMPENSATION; BONUS
(a) In consideration for his services to be performed under this
Agreement and as compensation therefor, Employee shall receive, in addition to
all other benefits provided in this Agreement, a base salary at the annual rate
of Two Hundred Twenty Thousand ($220,000) Dollars (the "Base Salary") payable in
bi-weekly installments. Employee's performance and Base Salary shall be reviewed
at least annually and Employee's Base Salary may, in the discretion of the
Board, be increased (but not decreased) following such review.
(b) In addition to the Base Salary, Employee shall receive an annual
bonus (the "Bonus") pursuant to an Annual Incentive Plan (the "Plan") to be
established by Employer in such amount,
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if any, as shall be determined by the Board in its sole discretion (the
"Bonus"). The Bonus shall be determined by reference to performance criteria
established by the Board and Employee's participation in such Plan shall be
commensurate with the General Managers of Employer's other offices. Employee
understands that the Bonus is entirely discretionary and no promises of any kind
have been made regarding the Bonus.
5. BENEFITS
In addition to the Base Salary and Bonus provided for in Section 4
hereof, Employee shall be entitled to the following benefits during and in
respect of the Term (as defined below):
(a) Employer shall provide Employee with the hospitalization, medical
and dental insurance coverage and other benefits (including long term disability
and life insurance) on the same basis provided to other similar employees (i.e.,
General Managers of Employer's other offices).
(b) Employee shall be entitled to reimbursement for all reasonable
travel, entertainment and other reasonable expenses incurred in connection with
Employer's business provided such expenses are adequately documented and
vouchered in accordance with Employer's policies.
(c) Employee shall be entitled to four (4) weeks paid vacation annually
to be taken by Employee at times mutually and reasonably agreed upon by Employer
and Employee in addition to all other holidays established as part of Employer's
standard
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practices. No payment shall be made to Employee for unused vacation days nor may
such days be carried over to future years.
(d) Employee shall be entitled to an automobile allowance in the
amount of $500 per month to defray all costs incurred by Employee in connection
with Employee's use of his automobile in connection with the business of
Employer.
(e) Promptly following mutual execution and delivery of this Agreement,
Employee shall be awarded the right to purchase 4,850 shares of non-voting
common stock of Business Communications Group, Inc. ("BCGI") pursuant to the
BCGI 1993 Management Stock Plan (the "Plan") and an Award Agreement to be
entered into by Employee and BCGI in the form adopted pursuant to the Plan.
(f) Employee shall be entitled to reimbursement for up to $200 per month
for dues in respect of one or more clubs utilized by Employee in connection with
an in furtherance of Employer's business.
6. TERM OF EMPLOYMENT
The term (the "Term") of employment shall be from the date of the
closing under the Purchase Agreement and for a period of three (3) years, unless
terminated prior thereto in accordance with Section 9 hereof.
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7. CONFIDENTIALITY
(a) Employee agrees and covenants that, at any time during employment by
Employer or thereafter, he will not (without first obtaining the written
permission of Employer) divulge to any person or entity, nor use (either himself
or in connection with any business) any trade secrets or business or other
"Confidential Information" (as hereinafter defined) obtained during the course
of his employment unless such disclosure is pursuant to a court order,
disclosure in litigation involving the Employer or in any reports or
applications required by law to be filed with any governmental agency. Nothing
contained in this Section 7 or elsewhere in this Agreement shall limit any
protection or remedy available to Employer under any applicable statute or
law.
(b) Employee agrees that at the time of leaving the employ of Employer
he will deliver to Employer and not keep or deliver to anyone else any and all
notes, notebooks, drawings, computer disks and related information, memoranda,
documents, and in general, any and all material relating to the business of
Employer.
8. NON-COMPETITION; NON-SOLICITATION
(a) Employee hereby agrees and covenants that during the Term he will
not directly or indirectly engage in or become interested (whether as an owner,
principal, agent, stockholder, partner, trustee, venturer, lender or other
investor, director,
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officer, employee, consultant or through the agency or otherwise) in any
business or enterprise that shall, at the time, be in whole or in substantial
part competitive with any part of the business conducted by Employer during the
period of Employee's employment with Employer (except that ownership of not more
than 1% of the outstanding securities of any class of any entity that are listed
on a national securities exchange or traded in the over-the-counter market shall
not be considered a breach of this Section 8(a)).
(b) Employee agrees and covenants that for a period of two (2) years
following his employment with Employer he will not (without first obtaining the
written permission of Employer) directly or indirectly participate in the
solicitation of business presentation and/or conference business and/or
consulting in respect thereto from any person or entity which was a client or
customer of Employer during the period of Employee's employment with Employer,
and with whom Employee had material dealings during the period of Employee's
employment with Employer, or was a prospective customer of Employer from which
Employee was actively involved in soliciting such prospective customer's
business (of for which a proposal for submission was prepared) during the period
of Employee's employment with Employer.
(c) Employee agrees and covenants that for a period of two (2) years
following his employment with Employer he will not (without first obtaining the
written permission of Employer)
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directly or indirectly, recruit for employment or induce to terminate his or her
employment with Employer, any person who was an employee of Employer during the
period of Employee's employment with Employer.
9. TERMINATION
(a) CAUSE. Notwithstanding the terms of this Agreement, Employer may
discharge Employee and terminate this Agreement in the event that (i) Employee
shall fail substantially to perform his duties hereunder with reasonable
diligence or shall violate any covenant, agreement or representation of his
herein contained, (ii) Employee shall refuse to carry out the lawful order of
Employer commensurate with Employee's duties to be performed hereunder, (iii)
Employee shall engage in an act of theft or dishonesty involving his employment,
or (iv) Employee shall be charged with a felony involving moral turpitude (which
shall include any felony relating to drugs) or shall be convicted of, or plead
nolo contendere in respect of, any governmental indictment, complaint or other
formal allegation. In the event Employee is discharged pursuant to this Section
9, Employee's Base Salary under Section 4 hereof and all benefits under Section
5 hereof shall terminate immediately upon such discharge (subject to applicable
law such as COBRA), and Employer shall have no further obligation to Employee
except the payment to and reimbursement to Employee for any monies due to
Employee which right to payment or reimbursement accrued prior to such
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discharge. Notwithstanding (i) and (ii) above to the contrary, Employee shall be
given at least seven (7) days prior written notice and an opportunity to cure
any breach or failure thereunder that is curable.
(b) INCAPACITY OR DISABILITY. Should Employee, in the reasonable
judgment of a physician chosen by the Board become incapacitated to the
extent that he is unable to perform his material duties pursuant to this
Agreement for a period of three (3) consecutive months by reason of illness,
disability, or other incapacity, Employer may terminate this Agreement upon one
(1) month's notice after said three (3) month period.
(c) DEATH. This Agreement shall terminate immediately upon the death
of Employee, in which case Employee's legal representatives shall be entitled
to receive promptly a payment equal to one (1) month's Base Salary.
10. INVENTIONS; DEVELOPMENT PRODUCTS; WORK FOR HIRE
(a) Employee hereby grants to Employer or its nominee all rights of
every kind whatsoever, exclusively and perpetually, in and to all services
performed, products created and product ideas conceived by Employee for
Employer or its nominee, and hereby agrees, upon Employer's request therefor, to
assign and transfer to Employer or its nominee, any and all inventions, trade
secrets, product ideas, improvements, processes, Confidential Information and
"know how" relating to the business or products of Employer, including any
thereof which Employee may learn,
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possess or acquire during Employee's employment by Employer, and Employee agrees
that all such things and such knowledge are, and will be, the sole and exclusive
property of Employer or its nominee, and will be known or held by Employee only
for the benefit of Employer or its nominee. Any patent, trademark, servicemark
or copyright applications and patents, trademarks, servicemarks or copyrights
developed, obtained or conceived by Employee while employed or engaged by
Employer which relate to the business or product development activities of
Employer or its nominee, as well as all physical embodiments of Confidential
Information, shall be and remain the sole exclusive property of Employer, or its
nominee. At Employer's request, Employee will execute any and all applications,
assignments or other instruments which Employer or its nominee shall deem
necessary to apply for and obtain Letters Patent, trademarks, servicemarks or
copyrights of the United States or any foreign country or to protect otherwise
Employer's interest therein.
(b) As used in this Section 10, the term "Confidential Information"
shall mean and include all information and data in respect of Employer's
operations, financial condition, products, customers and business (including,
without limitation, artwork, photographs, specifications, facsimiles, samples,
business marketing or promotional plans, creative written material and
information relating to characters, concepts, names, trademarks and copyrights)
that are the subject of Employer's reasonable efforts to keep confidential, and
which may be communicated to
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Employee or to which Employee may have access in the course of Employee's
employment by Employer. Notwithstanding the foregoing, the term "Confidential
Information" shall not include information which:
(i) is, at the time of the disclosure, a part of the public domain
through no act or omission by Employee;
(ii) was otherwise in Employee's lawful possession prior to the
disclosure; or
(iii) is hereafter lawfully disclosed to Employee by a third party who
or which did not acquire the information under an obligation of
confidentiality to or through Employer.
Any combination of known information shall be within any of the foregoing
exclusions only if the combination as such is within such exclusions.
11. VIOLATION OF OTHER AGREEMENTS; IMMIGRATION
Employee represents and warrants to Employer that he is legally able to
enter into this Agreement and accept employment with Employer and that Employee
is not prohibited by the terms of any agreement, from entering into this
Agreement; and the terms hereof will not and do not violate or contravene the
terms of any agreement to which Employee is or may be a party, or by which
Employee may be bound. Employee agrees that, as it is a material inducement to
Employer that Employee make the foregoing
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representations and that they be true in all respects, Employee shall forever
indemnify and hold Employer harmless from and against all liability, costs or
expenses (including attorney's fees and disbursements) on account of the
foregoing representations being untrue. Employee further represents and warrants
to Employer that he possesses (and will maintain) written authorization from the
United States Immigration and Naturalization Service entitling him to be
employed and, prior to the commencement of the Term, will deliver evidence of
the same to Employer as a condition of his employment.
12. SPECIFIC PERFORMANCE; DAMAGES
In the event of a breach or threatened breach of the provisions of
Sections 7, 8 or 10 hereof, Employee agrees that the injury which would be
suffered by Employer would be of a character which could not be fully
compensated for solely by a recovery of monetary damages. Accordingly, Employee
agrees that in the event of a breach or threatened breach of Sections 7, 8 or 10
hereunder, in addition to and not in lieu of any damages sustained by Employer
and any other remedies which Employer may pursue hereunder or under any
applicable law, Employer shall have the right to equitable relief, including
issuance of a temporary or permanent injunction, by any court of competent
jurisdiction against the commission or continuance of any such breach or
threatened breach, without the necessity of proving any actual damages or
posting of any bond or other surety therefor. In
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addition to, and not in limitation of the foregoing, Employee understands and
confirms that, in the event of a breach or threatened breach of Sections 7, 8,
or 10 hereof, Employee may be held financially liable to Employer for any loss
suffered by Employer as a result.
13. ARBITRATION
The parties agree that any dispute arising out of Section 9(a)(i) of
this Agreement shall be arbitrated in New York City or, at Employer's option, in
Atlanta in accordance with the rules for commercial arbitration of the American
Arbitration Association or any successor thereof; provided, however, that the
foregoing shall not prevent Employer from seeking equitable relief from a court
of competent jurisdiction as provided in Section 12 hereof.
Section 13 Agreed to:
/s/ BS /s/ RSI
_________________ __________________
Employee initials Employer initials
14. NOTICES
Any and all notices, demands or requests required or permitted to be
given under this Agreement shall be given in writing and sent, by registered or
certified U.S. mail return receipt requested, by hand, or by overnight
courier, addressed to the parties hereto at their addresses set forth above or
such other addresses as they may from time-to-time designate by
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written notice, given in accordance with the terms of this Section, together
with copies thereof as follows:
In the case of Employer, with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ & Brandeis
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
In the case of Employee, with a copy to:
Ellis, Funk, ▇▇▇▇▇▇▇▇ & Laybovitz, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Notice given as provided in this Section shall be deemed effective: (i) on the
date hand delivered, (ii) on the first business day following the sending
thereof by overnight courier, and (iii) on the seventh calendar day (or, if it
is not a business day, then the next succeeding business day thereafter) after
the depositing thereof into the exclusive custody of the U.S. Postal Service.
15. WAIVERS
No waiver by any party of any default with respect to any provision,
conditions or requirement hereof shall be deemed to be a waiver of any other
provision, condition or requirement hereof; nor shall any delay or omission of
any party to exercise any
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right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
16. PRESERVATION OF INTENT
Should any provision of this Agreement be determined by a court
having jurisdiction in the premises to be illegal or in conflict with any laws
of any state or jurisdiction or otherwise unenforceable, the Employer and
Employee agree that such provision shall be modified to the extent legally
possible so that the intent of this Agreement may be legally carried out and
such provisions shall be interpreted to the maximum extent possible.
17. ENTIRE AGREEMENT
This Agreement sets forth the entire and only agreement or understanding
between the parties relating to the subject matter hereof and supersedes and
cancels all previous agreements, negotiations, letters of intent (including any
memorandum dated May 27, 1995), correspondence, commitments and representations
in respect thereof among them, and no party shall be bound by any conditions,
definitions, warranties or representations with respect to the subject matter of
this Agreement except as provided in this Agreement.
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18. INUREMENT; ASSIGNMENT
The rights and obligations of Employer under this Agreement shall inure
to the benefit of and shall be binding upon any successor of Employer or to the
business of Employer, subject to the provisions hereof. Employer may assign this
Agreement to any person, firm or corporation controlling, controlled by, or
under common control with Employer. Neither this Agreement nor any rights or
obligations of Employee hereunder shall be transferable or assignable by
Employee.
19. AMENDMENT
This Agreement may not be amended in any respect except by an instrument
in writing signed by the parties hereto.
20. HEADINGS
The headings in this Agreement are solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
21. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
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22. GOVERNING LAW
This Agreement shall be governed by, construed and enforced in
accordance with the internal laws of the State of New York, without giving
reference to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CARIBINER, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
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