Exhibit 10.19
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.
Xxxxxx, residing at Poway, California (the "Employee").
W I T N E S S E T H :
WHEREAS, the Corporation desires to continue to employ the Employee
and the Employee desires to continue 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 Employee, and the Employee accepts such
employment, in an executive capacity as Executive Vice President and Chief
Financial Officer of the Corporation 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 said 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 Executive Vice President and Chief Financial Officer, the
Employee shall perform such duties and discharge such responsibilities as the
Chief Executive Officer of the Corporation shall from time to time direct, which
duties and responsibilities shall be commensurate with the Employee's position
as Executive Vice President and Chief Financial Officer. The Employee agrees to
perform such duties and discharge such responsibilities in a faithful manner and
to the best of Employee's ability. The Employee agrees to devote full business
time and attention to the business and affairs of the Corporation and its
subsidiaries and to use best efforts to promote the interest of the Corporation
and its subsidiaries. The Employee further agrees that Employee will not engage
in any outside business concerns or activities, without the written consent of
the Corporation's Chief Executive Officer.
2.2. The Chief Executive Officer of the Corporation reserves the right
from time to time to assign to the Employee additional duties and
responsibilities and to delegate to other employees of the Corporation duties
and responsibilities normally discharged by the Employee. All such assignments
and delegations of duties and responsibilities shall be made in good faith and
shall not materially affect the general character of the work to be performed by
the Employee. The Employee shall hold such officerships and directorships in the
Corporation and any subsidiary to which, from time to time, Employee may be
appointed or elected during the term of this Agreement.
3. Compensation
3.1. The Employee shall receive an annual base salary at the rate of
$175,000 per annum, payable in accordance with the Corporation's normal payroll
practices. The Corporation shall deduct or withhold from such payments, and from
all other payments made to the Employee pursuant to this Agreement, 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 to be paid to the Employee
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 Employee 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 Employee on terms no less favorable than to other executive
officers of the Corporation or its subsidiaries. The Employee shall be entitled
to receive up to 50% of his base salary as a bonus in accordance with any
incentive bonus program which the Corporation has in effect during the term of
this Agreement.
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 Employee the Employee'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. In addition, during
such six month period of time, the Corporation shall continue to provide to
Employee (a) his automobile allowance (including reimbursement for related
expenses as set forth in Section 4 below) and (b) the medical and any other
benefits he was receiving from the Corporation prior to termination.
4. Reimbursement for Expenses
The Corporation or its subsidiaries shall reimburse the Employee for
expenses which the Employee may from time to time reasonably incur on behalf of
and at the request of the Corporation in the performance of Employee's
responsibilities and duties under this Agreement, provided that the Employee
shall be required to account to the Corporation for such expenses in the manner
prescribed by the Corporation. In recognition of Employee's need for an
automobile for business purposes, the Corporation should provide to Employee an
automobile allowance not to exceed $1,200 per month and shall reimburse Employee
for all related expenses, including gasoline, repairs, insurance and
maintenance.
5. Termination of Employment by Reason of Death
If the Employee shall die during the term of this Agreement, this
Agreement shall terminate automatically as of the date of death and the
Corporation shall pay to the Employee's legal representatives the compensation
which would otherwise be payable to the Employee up to the end of the month in
which death occurs and no more.
6. Termination of Employment by Reason of Disability
If the Employee shall become temporarily disabled during the term of
this Agreement, all of the Employee's rights under this Agreement shall continue
until such time as the Employee either returns to work or is deemed "permanently
disabled" (as hereinafter defined in Section 6.1).
6.1. If the Employee shall be deemed permanently disabled, the
Employee's employment shall immediately terminate at such time that the Employee
is deemed to be permanently disabled. The Employee shall be deemed permanently
disabled for purposes of this Agreement if: (i) in the opinion of the Chief
Executive Officer, the Employee is unable to render full-time service to the
Corporation pursuant to the terms of this Agreement for three consecutive
months, or (ii) in the opinion of the Chief Executive Officer, the Employee is
unable to render full-time service to the Corporation pursuant to the terms of
this Agreement for four months out of any twelve consecutive month period.
7.Termination of Employment for Cause
The Corporation may immediately terminate the Employee's employment in
the event that the Employee 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 breach by the Employee
of this Agreement, continued neglect or refusal to attend to the material duties
assigned to Employee by the Chief Executive Officer of the Corporation, gross
negligence or willful misconduct in the performance of Employee's duties,
dishonesty 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), conviction of a felony
or excessive absenteeism not related to disability. Should the Employee's
employment be terminated by the Corporation for cause, the Corporation's only
obligation shall be to pay the Employee the salary and other compensation under
Sections 3.1 and 3.2 of this Agreement which has accrued as of the date of such
termination. 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 Employee with respect to the matter for which the Employee's
employment under this Agreement is terminated for cause. If Employee's
employment is terminated without cause, all options to purchase Common Stock of
the Corporation shall immediately vest and Employee shall have all rights and
remedies available under law.
8. Confidentiality
During the course of employment as an employee of the Corporation, the
Employee has had, and 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 Employee not to make unauthorized disclosures of the
Confidential Information and not to use the Confidential Information after the
termination of the Employee's employment with the Corporation in a business in
competition with that of the Corporation are essential to the growth and
stability of the business of the Corporation. Accordingly, Employee agrees that,
except as required by Employee's duties under this Agreement, Employee 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 Employee in the course of 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 Employee 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
Employee 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, employ or solicit the
employment or retention of any court reporter retained by the Corporation or any
employee of the Corporation.
9.3. The Employee 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, the Employee 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
11 any other address or party to which any such notice or communication or
copies thereof shall be sent.
11. Equitable Relief
The Employee 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 Employee 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 Employee 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
12.1 This Agreement shall be governed by the internal domestic laws of
the State of California 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 Employee shall not have the right to assign this Agreement in
view of its personal nature). 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 both 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.
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Xxxxx X. Xxxxxx
ESQUIRE COMMUNICATIONS LTD.
By:
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