Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 30th day of June, 1998 by and between
ESQUIRE COMMUNICATIONS LTD., a Delaware corporation, with offices at 000 X
Xxxxxx, Xxxxx 0000, Xxx Xxxxx, Xxxxxxxxxx 00000 (the "Corporation"), and Xxxxx
X. Xxxxx (the "Executive"), with offices at 000 X Xxxxxx, Xxxxx 0000, Xxx Xxxxx,
Xxxxxxxxxx 00000.
W I T N E S S E T H :
WHEREAS, the Corporation desires to employ the Executive and the
Executive desires to accept such employment upon the terms and conditions
contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, the parties agree as follows:
1. Term of Employment
Subject to the terms and conditions set forth in this Agreement, the
Corporation hereby agrees to employ the Executive, and the Executive accepts
such employment, in an executive capacity as Chief Executive Officer of the
Corporation and each of its subsidiaries for the period beginning on the date
hereof and continuing for a period of one year or until earlier terminated as
provided herein. Upon the expiration of such one year period, this Agreement
shall be automatically renewed on a year to year basis unless terminated by
either the Corporation or the Employee by the giving of written notice of
termination to the other party hereto at least 60 days' prior to the expiration
of the initial term or any successive term.
2. Duties
2.1. As Chief Executive Officer, the Executive shall perform such
duties and discharge such responsibilities as the Board of Directors of the
Corporation shall from time to time direct, which duties and responsibilities
shall be commensurate with the Executive's position as Chief Executive Officer,
including general review and integration of acquisitions and formulation of
strategies to enhance growth and profitability. The Executive agrees to perform
such duties and discharge such responsibilities in a faithful manner and to the
best of his ability. The Executive agrees to devote substantially all his
business time and attention to the business and affairs of the Corporation and
its subsidiaries and to use his best efforts to promote the interests of the
Corporation and its subsidiaries. The Executive further agrees that he will not
engage in any significant outside business concerns or activities, without the
written consent of the Corporation's Board of Directors, provided that Executive
may sit on up to two Boards of companies unrelated to the Corporation without
the need for such consent.
2.2. The Corporation shall use its best efforts to elect Executive as
a Director of the Corporation and each of its subsidiaries during the term of
this Agreement. The Executive shall hold such officerships in the Corporation
and any subsidiary to which, from time to time, he may be appointed during the
term of this Agreement.
3. Compensation
So long as the Executive is employed by the Corporation pursuant to
this Agreement, the Corporation agrees that:
3.1. The Executive shall receive an annual base salary at the rate of
$250,000 per annum, payable in accordance with the Corporation's normal
practices. The Corporation shall deduct or withhold from such payments all
amounts which may be required to be deducted or withheld under any applicable
law now in effect or which may become effective during the term of this
Agreement (including but not limited to Social Security contributions and income
tax withholdings). Any salary and other compensation payable hereunder may be
paid by subsidiaries of the Corporation, and not by the Corporation, in such
proportion as shall be allocated among them by the Corporation and such
subsidiary.
3.2. The Executive shall be entitled to participate in, and receive
benefits from, any insurance, medical, disability, bonus, incentive
compensation, stock option or other employee benefit plan, if any are adopted,
of the Corporation or any subsidiary which may be in effect at any time during
the course of his employment by the Corporation and which shall be generally
available to the Executive on terms no less favorable than to the other
executive officers of the Corporation or its subsidiaries.
3.3. In the event this Agreement is not renewed by the Corporation in
accordance with Article 1 of this Agreement, the Corporation shall continue to
pay to the Executive the Executive's annual base salary for a period of six
months following the expiration of the initial term or any successive term,
payable in accordance with the Corporation's normal payroll practices.
4. Reimbursement for Expenses
The Corporation or its subsidiaries shall reimburse the Executive for
expenses which the Executive may from time to time reasonably incur on behalf of
and at the request of the Corporation in the performance of his responsibilities
and duties under this Agreement, provided that the Executive shall be required
to account to the Corporation for such expenses in the manner prescribed by the
Corporation.
5. Termination of Employment by Reason of Death
If the Executive shall die during the term of this Agreement, this
Agreement shall terminate automatically as of the date of his death and the
Corporation shall pay to the Executive's legal representatives the compensation
which would otherwise be payable to the Executive up to the end of the month in
which his death occurs and no more.
6. Termination of Employment by Reason of Disability If the Executive
shall become temporarily disabled during the term of this Agreement, all of the
Executive's rights under this Agreement shall continue until such time as the
Executive either returns to work or is deemed "permanently disabled" (as
hereinafter defined in Section 6.1).
6.1. If the Executive shall be deemed permanently disabled, the
Executive's employment shall immediately terminate at such time that the
Executive is deemed to be permanently disabled. The Executive shall be deemed
permanently disabled for purposes of this Agreement if: (i) in the good faith
opinion of the Board of Directors, the Executive is unable to render full-time
employment services to the Corporation pursuant to the terms of this Agreement
for three consecutive months, or (ii) in the good faith opinion of the Board of
Directors, the Executive is unable to render full-time employment services to
the Corporation pursuant to the terms of this Agreement for four months out of
any twelve consecutive month period.
7. Termination of Agreement for Cause
The Corporation may immediately terminate the Executive's employment
under this Agreement in the event that the Executive shall do or cause to be
done any act which constitutes "cause" (as hereinafter defined) for termination.
For purposes of this Agreement, cause shall be deemed to mean a material and
continuing breach by the Executive of this Agreement, consistent neglect or
refusal to attend to the material duties assigned to him by the Board of
Directors of the Corporation, gross negligence or willful misconduct in the
performance of his duties, dishonesty of the Executive to the Corporation
(including, without limitation, conviction of a crime in any court which could
have the effect of causing the termination or suspension of any license which
the Corporation holds), or conviction of a felony offense. Should this Agreement
be terminated by the Corporation for cause, the Corporation's only obligation
shall be to pay the Executive his compensation due to date under Sections 3.1
and 3.2 of this Agreement. Nothing contained in this Article 7 shall in any way
waive, restrict or prejudice the Corporation's rights and remedies in equity and
at law against the Executive with respect to the matter for which this Agreement
is terminated for cause.
8. Confidentiality
During the course of this Agreement, the Executive will have access to
and will gain knowledge with respect to all of the lines of business of the
Corporation, including service information, information concerning customers,
court reporters, and other valuable information relating to the development,
marketing and sale of services of the Corporation ("Confidential Information").
The parties also agree that covenants by the Executive not to make unauthorized
disclosures of the Confidential Information and not to use the Confidential
Information after the termination of this Agreement in a business in competition
with that of the Corporation are essential to the growth and stability of the
business of the Corporation. Accordingly, Executive agrees that, except as
required by his duties under this Agreement, he shall not take, use, or disclose
to anyone in documentary form or through electronic media or otherwise, at any
time during or after the term of this Agreement, any Confidential Information
obtained by him in the course of his employment with the Corporation.
9. Non-Competition
9.1. During the term of this Agreement and for a period of 12 months
from the date of the termination of this Agreement in accordance with its terms,
the Executive agrees that he shall not directly or indirectly, for his own
account or as agent, employee, officer, director, trustee, consultant or
shareholder of any corporation or a member of any firm or otherwise, anywhere
within 100 miles of any office of the Corporation engage or attempt to engage in
any business activity which is the same as, substantially similar to or directly
competitive with the Corporation.
9.2. During the term of this Agreement and for a period of 24 months
from the date of termination of this Agreement in accordance with its terms, the
Executive agrees that he shall not, directly or indirectly, for his own account
or as agent, employee, officer, director, trustee, consultant or shareholder of
any corporation, or member of any firm or otherwise, solicit the employment or
retention of any court reporter retained by the Corporation or any employee of
the Corporation.
9.3. The Executive acknowledges and agrees that the foregoing
territorial and time limitations and restrictive covenants are reasonable and
properly required for the adequate protection of the business and affairs of the
Corporation, and in the event any such territorial or time limitation is found
to be unreasonable by a court of competent jurisdiction, he agrees and submits
to the reduction of either said territorial or time limitation or both, to such
an area or period as the court may determine to be reasonable.
10. Notices
All notices and other communications given pursuant to this Agreement
shall be deemed to have been properly given or delivered at the time when hand
delivered, when received if sent by telecopier or by same day or overnight
recognized commercial courier service, or three days after being mailed, by
certified mail, postage prepaid, addressed to the appropriate party, at the
address for such party set forth at the beginning of this Agreement. Any party
may from time to time designate by written notice given pursuant to this Article
10 any other address or party to which any such notice or communication or
copies thereof shall be sent.
11. Equitable Relief
The Executive acknowledges that the Corporation will suffer damages
incapable of ascertainment in the event that any of the provisions of Articles 8
or 9 hereof are breached and that the Corporation will be irreparably damaged in
the event that the provisions of Articles 8 or 9 are not enforced. Therefore,
should any dispute arise with respect to the breach or threatened breach of
Articles 8 or 9 of this Agreement, the Executive agrees and consents, that in
addition to any and all other remedies available to the Corporation, 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 Articles 8 or 9 of this Agreement. The Executive agrees not
to assert in any such action that an adequate remedy exists at law. All
expenses, including, without limitation, attorney's fees and expenses incurred
in connection with any legal proceeding arising as a result of a breach or
threatened breach of Articles 8 or 9 of this Agreement shall be borne by the
losing party to the fullest extent permitted by law and the losing party hereby
agrees to indemnify and hold the other party harmless from and against all such
expenses.
12. Miscellaneous
This Agreement shall be governed by the internal domestic laws of the
State of California, where the Executive has executed the same, without
reference to conflict of laws principles. This Agreement shall be binding upon
and inure to the benefit of the legal representatives, successors and assigns of
the parties hereto (provided, however, that the Executive shall not have the
right to assign this Agreement). All headings and subheadings are for
convenience only and are not of substantive effect. This Agreement constitutes
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior negotiations, understandings and writings
(or any part thereof) whether oral or written between the parties hereto
relating to the subject matter hereof. There are no oral agreements in
connection with this Agreement. Neither this Agreement nor any provision of this
Agreement may be waived, modified or amended orally or by any course of conduct
but only by an agreement in writing duly executed by all of the parties hereto.
If any article, section, portion, subsection or subportion of this Agreement
shall be determined to be unenforceable or invalid, then such article, section,
portion, subsection or subportion shall be modified in the letter and spirit of
this Agreement to the extent permitted by applicable law so as to be rendered
valid and any such determination shall not affect the remainder of this
Agreement, which shall be and remain binding and effective as against all
parties hereto. For purposes of this Agreement, all references to the
Corporation shall include all subsidiaries of the Corporation.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
----------------------------
Xxxxx X. Xxxxx
ESQUIRE COMMUNICATIONS LTD.
By:_________________________
