Exhibit 10.67
EXECUTIVE SERVICES AGREEMENT
THIS EXECUTIVE SERVICES AGREEMENT (the "Agreement") made as of
this 1st day of December, 2001, (the "Effective Date") by and between
AQUIS COMMUNICATIONS GROUP, INC., 0000X Xxxxx 00, Xxxxx 000, Xxxxxxxxxx,
XX 00000 (the "Company"), and XXXX X. XXXXXXXX ("Xxxxxxxx").
BACKGROUND:
The Company appointed Frieling as its Chief Executive Officer in
September 2000 at a time when the Company faced major challenges. Under
Frieling's guidance, the Company's operations have stabilized and the
Company is in advanced discussions with its lending institutions with
regard to a major restructuring of the Company's balance sheet. During a
significant portion of this time, Frieling performed his duties for no
compensation in order to provide the Company with the best opportunity to
emerge from this difficult period a viable and healthy Company. In order
provide the Company with the best opportunity to create value for the
Company's shareholders, the Company desires to have Frieling continue as
Chief Executive Officer and Frieling agrees to provide Executive Services
(defined below in paragraph 1) to the Company, subject to the terms of
this Agreement.
NOW THEREFORE, in consideration of the above premises and of the
Agreement herein contained, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Executive Services. Frieling agrees to provide Executive
Services to the Company, upon the terms and conditions set forth herein.
Frieling shall have the position/title of Chief Executive Officer.
Frieling shall perform such duties and have such responsibilities
consistent with the position of Chief Executive Officer and such other
positions as shall be assigned him from time to time by the board of
directors of the Company or a designated committee thereof (the "Executive
Services"). Frieling shall not be prevented during the term of this
Agreement from rendering services of a business, commercial or
professional nature for his own account or for any other person, provided
that such other services do not materially adversely impact Frieling's
responsibilities to the Company.
2. Term of Employment/Terms of Agreement.
A. The initial term of this Agreement shall be the period
commencing on the Effective Date and terminating December 31, 2002,
unless terminated by the first to occur of the following:
(1) The death of Frieling.
(2) The termination of Executive Services by Company
for Cause. "Cause" shall mean (a) the material failure after
notice on a recurring basis by Frieling to diligently and
competently perform his duties (as defined from time to time
by the board of directors) on behalf of Company, (b)
conviction of or plea of nolo contender or equivalent plea to
a felony or other crime involving fraud or misrepresentation,
or (c) Frieling's engaging in any dishonesty or fraud in
connection with the provision of Executive Services hereunder
or misappropriation of the assets of Company.
(3) The voluntary termination of this Agreement by
Frieling.
B. This Agreement shall automatically renew for additional
one-year terms on the same terms and conditions as set forth above
until terminated by the non-renewal of the Agreement as of the end of
the then-current term (by 60 calendar days advance written notice given
by any party to the other parties).
C. Termination of the Executive Services pursuant to
subparagraphs 2.A. (2) shall be effected by written notice from Company
to Frieling, and termination of this Agreement by Frieling pursuant to
subparagraph 2.A.(3) shall be effected by written notice from Frieling,
as appropriate, to Company, and in all such cases, such termination
shall be effective immediately upon delivery of such notice and
Frieling thereafter shall not be entitled to receive any benefits
hereunder except accrued compensation and reimbursement for reasonable
expenses incurred on behalf of Company in the ordinary course of
business prior to termination.
3. Compensation. For the duration of the term of this Agreement,
including any automatic renewal pursuant to subparagraph 2.B, Frieling shall be
compensated by the Company by payment of Fifteen Thousand ($15,000) per month to
be paid on the first day of each month commencing as of November 1, 2001, net of
any required withholding. In addition, in recognition of the extended period in
which Frieling performed services as Chief Executive Officer without current
compensation, the Company shall pay to Frieling Fifty-Two Thousand Five Hundred
Dollars ($52,500), net of any required withholding, on the earlier of December
5, 2001 or the receipt by the Company of the proceeds resulting from a
Settlement Agreement with Ameritech.
4. Stock Options. Frieling shall be granted a non-qualified stock
option (the "Option") pursuant to a Stock Option Agreement providing the
following material terms:
A. The Option shall continue in force through December 31,
2007 unless sooner terminated as provided herein or in the Plan.
B. The Option shall xxxxx Xxxxxxxx the right to purchase a
total of 300,000 shares of Company common stock exercisable at the
price of $0.03 per share, according to the following vesting schedule:
(i) options to purchase 150,000 shares shall vest on the Effective
Date, and (ii) options to purchase 150,000 shares of Company common
stock shall be granted on the Effective Date, of which options to
purchase 25,000 shares shall vest on the first day of each month
commencing January 1, 2002 for six months at which time all the options
shall vest; provided, in the event of a "change in control," as such
term is to be defined in the Stock Option Agreement, all such options
shall immediately vest.
6. Notices. Any notice required or permitted hereunder shall be sent by
registered or certified mail, return receipt requested, postage prepaid, or by
recognized overnight courier, to the respective parties hereto at the addresses
set forth below, or to such other address, or in care of such other person, as
any party shall designate as his or its address for such notices by due notice
hereunder.
If to Frieling: Xxxx X. Xxxxxxxx
Deerfield Partners, LLC
00 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 0000X
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Company: Aquis Communications Group, Inc.
l7l9A Xxxxx 00
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copy to: Xxxxxx X. Xxxxx, Esquire
Xxxxxxx Xxxx
One M&T Xxxxx
Xxxxx 0000
Xxxxxxx, Xxx Xxxx 00000
Telephone: (000)-000-0000
Facsimile: (000)-000-0000
7. General.
A. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey. The parties
acknowledge and agree that the sole and exclusive jurisdiction and
venue for all actions shall be the State or Federal courts located in
New Jersey and all parties hereby consent to such jurisdiction and
venue.
B. The waiver by any party of a breach of any provisions of
this Agreement by the other party or parties shall not operate or be
construed as a waiver of any subsequent breach or violation thereof.
X. Xxxxxxxx acknowledges that his respective services are
unique and personal. Accordingly, Frieling may not assign his
respective rights or delegate his respective duties or obligations
hereunder. The Company's rights and obligations under this Agreement
shall be freely assignable by the Company.
D. This Agreement may not be altered or amended except by an
agreement in writing signed by all parties.
E. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and assigns. If
any provision of this Agreement shall be or become illegal or
unenforceable, in whole or in part, for any reason whatsoever, the
remaining provisions shall nevertheless be deemed valid, binding and
subsisting.
F. The parties intend to be legally bound by this Agreement.
G. If any provision of this Agreement or the application
thereof is held invalid or unenforceable, the invalidity or
unenforceability thereof shall not affect any other provisions of this
Agreement which can be given effect without the invalid or
unenforceable provision, and to this end the provisions of this
Agreement are to be severable.
H. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
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IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
have executed or caused this Agreement to be executed as of the day first above
written.
"COMPANY"
AQUIS COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxxxx Xxxx
-----------------------------
Xxxxxxx Xxxx
Title: Chairman of the Board
/s/ Xxxx X. Xxxxxxxx
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XXXX X. XXXXXXXX
