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EXHIBIT 10.33
EXECUTIVE SERVICES AGREEMENT
THIS EXECUTIVE SERVICES AGREEMENT (the "Agreement") made as of this 19th
day of September, 2000, (the "Effective Date") by and among AQUIS COMMUNICATIONS
GROUP, INC. 1719A Route 10, Suite 300, Parsippany, NJ 07054 (the "Company"),
DEERFIELD PARTNERS, LLC, 20 North Main Street, Suite 120, Sherborn, MA 01770
("Deerfield") and JOHN B. FRIELING ("Frieling").
BACKGROUND:
The Company wishes to retain Deerfield to provide certain management and
advisory services and to make John B. Frieling available to serve as the
Company's Chief Executive Officer. Deerfield wishes to provide certain
management services and to make Frieling available to serve as the Company's
Chief Executive Officer, and Frieling wishes 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. Deerfield hereby agrees to make Frieling available
to provide Executive Services to the Company, and 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
its designated representative (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.
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 October 31, 2000, 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
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connection with the provision of Executive Services hereunder or
misappropriation of the assets of Company.
(3) The voluntary termination of this Agreement by either
Deerfield or Frieling.
(4) The termination by Company of Executive Services without
Cause.
B. This Agreement shall automatically renew for additional one-month
terms on the same terms and conditions as set forth above until terminated
by the earlier of (i) the non-renewal of the Agreement as of the end of the
then-current term (by five (5) calendar days advance written notice given
by any party to the other parties); or (ii) March 31, 2001.
C. Termination of the Executive Services pursuant to subparagraphs
2.A. (2) or (4) shall be effected by written notice from Company to
Deerfield and Frieling, and termination of this Agreement by either
Deerfield or Frieling pursuant to subparagraph 2.A.(3) shall be effected by
written notice from Deerfield or Frieling, as appropriate, to Company, and
in all such cases, such termination shall be effective immediately upon
delivery of such notice and neither Deerfield nor Frieling thereafter shall
not be entitled to receive any benefits hereunder except reimbursement for
reasonable expenses incurred on behalf of Company in the ordinary course of
business prior to termination.
3. COMPENSATION. The Company shall pay to Deerfield Eight Thousand Seven
Hundred Fifty Dollars ($8,750) on the Effective Date. Thereafter, for the
duration of the term of this Agreement, including any automatic renewal pursuant
to subparagraph 2.B, Deerfield shall be compensated by the Company by payment of
Seventeen Thousand Five Hundred ($17,500) per month to be paid on the first day
of each month commencing October 1, 2000.
4. STOCK OPTIONS. Frieling is granted a certain stock option (the "Option")
according to the vesting schedule and at the exercise prices set forth below.
Company and Frieling acknowledge and agree that it is intended that the options
granted hereby are to be Incentive Stock Options under the Amended and Restated
Aquis Communications Group, Inc. 1994 Incentive Stock Option Plan (the "Plan").
A Stock Option Agreement shall be executed as of the Effective Date, including
the following terms:
A. The Option shall continue in force through September 18, 2005
unless sooner terminated as provided herein or in the Plan.
B. The Option shall grant Frieling the right to purchase a total of
300,000 shares of Company common stock exercisable at the price of $.9625
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
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vest on the first day of each month commencing October 1, 2000 for the
duration of the term of this Agreement, including any automatic renewal
pursuant to subparagraph 2.B.
5. NOTICES. Any notice required or permitted hereunder shall be sent by
registered or certified mail, return receipt requested, postage prepaid, 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: John B. Frieling
Deerfield Partners, LLC
20 North Main Street
Suite 120
Sherborn, MA 01170
If to Deerfield: Deerfield Partners, LLC
20 North Main Street
Suite 120
Sherborn, MA 01170
If to Company: Aquis Communications Group, Inc.
1719A Route 10
Suite 300
Parsippany, NJ 07054
Telephone: (973) 560-8001
Facsimile: (973) 560-8060
Copy to: Joseph P. Galda, Esquire
Buchanan Ingersoll Professional Corporation
Eleven Penn Center
14th Floor
1835 Market Street
Philadelphia, PA 19103-2985
Telephone: (215) 665-3879
Facsimile: (215) 665 - 8760
6. 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.
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C. Frieling and Deerfield each acknowledges that their respective
services are unique and personal. Accordingly, both Frieling and Deerfield
may not assign their respective rights or delegate their 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"
ATTEST: AQUIS COMMUNICATIONS GROUP, INC.
By: /s/ Patrick Egan
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Patrick Egan
Title: Chairman of the Board
ATTEST: DEERFIELD PARTNERS, LLC
By: /s/ John B. Frieling
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Title: Managing Director
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WITNESS:
/s/ John B. Frieling
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JOHN B. FRIELING
