Exhibit 10.1
AGREEMENT
Agreement dated as of April 30, 1999, by and between Xxxxxxx X. Xxxxx
(the "Employee") and Esquire Communications Ltd., a Delaware corporation (the
"Corporation"). W I T N E S S E T H : WHEREAS, the Corporation and the Employee
are parties to an Employment, Non-Competition and Non-Disclosure Agreement dated
as of March 1, 1993 (the "Employment Agreement"); and
WHEREAS, the Corporation and the Employee mutually desire to provide
for the termination of Employee's employment;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Terms defined in the Employment Agreement shall have the same
meaning when used herein.
2. Effective the date hereof, Employee's employment with the
Corporation is hereby terminated and Employee hereby resigns as an employee of
the Corporation. Employee shall continue as Chairman of the Board of the
Corporation until he is requested to relinquish such position by the Board of
Directors.
3. Concurrently herewith, the Corporation is paying to the Employee
the amount of $20,000, by check, plus all accrued but unpaid expenses due to
Employee under the Employment Agreement. The Employee's automobile and garage
expenses will no longer be paid by the Corporation. The Employee shall be
entitled to retain the equipment, including computer, located in his office.
4. Except for the provisions contained in Sections 8.0, 9.0, 10.0 and
13.0 of the Employment Agreement, the Employment Agreement is hereby terminated
and is of no further force and effect. The provisions of Sections 8.0, 9.0, 10.0
and 13.0 shall continue in full force and effect.
5. In consideration of the Corporation's buyout of the Employment
Agreement pursuant to this Agreement and the non-competition covenants of
Employee, the Corporation agrees to pay to the Employee the amount that he would
have received as compensation under his Employment Agreement through March 31,
2000, in accordance with the Corporation's existing practices, adjusted to
reflect the cost of living adjustments contained therein from and after January
1, 1999, retroactive to January 1, 1999; provided, however, that if the
Corporation is Sold (as defined herein) prior to March 31, 2000, such amount
shall continue to be paid through December 31, 2000. If the Corporation is not
so Sold, but has a material improvement in its financial condition, the
Corporation and the Employee shall review and reconsider an increase in the
amount to be paid the Employee hereunder. As used herein, "Sold" means either of
the following, at a price of greater than $6.00 per share: (i) the sale of all
or substantially all the assets of the Corporation or (ii) a merger of the
Corporation with another entity where the existing stockholders of the
Corporation will own less than 10% of the outstanding stock of the surviving
entity.
6. For as long as the Employee is a director of the Corporation, if
the Employee generates new business for the Corporation, at the discretion and
subject to the approval of the Chief Executive Officer of the Corporation he
shall be eligible to sales commissions on such new business in accordance with
the Corporation's existing practices or practices to be developed.
7. All options held by Employee shall continue to vest and be
exercisable in accordance with their terms, whether or not the Employee remains
a director of the Corporation. If the Corporation reprices any of its
outstanding options on or prior to March 31, 2000 and executives of the
Corporation participate therein, the Employee's options will be eligible for
consideration to be similarly repriced.
8. Until the date Employee is no longer a director of the Corporation,
subject to the Corporation obtaining permission from its insurance carrier, the
Corporation shall continue to pay for Employee and his dependents all costs for
group health coverage under the Corporation's health benefit plans. The coverage
shall be the same as that provided to the employees of the Corporation. If the
Corporation is unable to continue the Employee under its plans, it shall pay to
the Employee the cost of his COBRA coverage as long as he remains a director.
9. If the Employee decides to remain as a director of the Corporation,
he shall not be entitled to any fees or compensation for services as a director.
The Corporation agrees to use its best efforts to continue to cause the Employee
to be elected as a director of the Corporation as long as the Employee continues
to own at least 200,000 shares of Common Stock (subject to adjustment to reflect
stock splits or similar events) of the Corporation. When Employee is no longer a
director of the Corporation, the Corporation shall use its best efforts to have
Employee released from all his rights and obligations under the October 23, 1996
Stockholders Agreement.
10. In the event of Employee's death or disability, all payments and
benefits of Employee under this Agreement shall continue to accrue and shall be
payable to Employee's estate or legal representatives.
11. This Agreement shall be governed by the internal domestic laws of
the State of New York 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). This Agreement, including the provisions of the
Employment Agreement which survive, constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and supersede 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. The change in control agreement dated June 30, 1998
to which the Employee was a party, is hereby terminated and of no further force
or effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
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Xxxxxxx X. Xxxxx
ESQUIRE COMMUNICATIONS LTD.
By:
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