EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement ("this Agreement") is made and entered into this
18th day of September, 2000, between XXXXXXX X. XXXXXXXXXXX, an individual
resident of Peachtree City, Georgia (hereinafter referred to as "Employee"), and
eMISSIONS TESTING, INC., a Georgia corporation (hereinafter referred to as
"Employer").
BACKGROUND STATEMENT
A. Employer is engaged primarily in business of operating vehicle
emissions testing facilities at various sites in the State of Georgia; and
B. Employer wishes to employ Employee to serve as its president and as
otherwise provided herein, and Employee is willing to accept such employment,
all in accordance with, and subject to, the terms and conditions hereinafter set
forth.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, each intending to be legally bound
hereby, agree as follows:
AGREEMENT
1. AGREEMENT TO EMPLOY AND BE EMPLOYED. Employer hereby employs Employee
to serve as its president, and employee hereby accepts and agrees to such
employment , all in accordance with and subject to the terms and conditions of
this Agreement. As president, Employee shall be the chief executive officer of
Employer. In addition, Employee shall serve temporarily as the chief financial
and accounting officer and the treasurer of Employer (the "CFO Position") until
such time as the Company employs another person(s) to hold the CFO Position.
2. DESCRIPTION OF EMPLOYEE'S DUTIES AND LIMITATIONS. Subject to the
actions, resolutions and directives of the board of directors of Employee (the
"Board") as may be promulgated or issued at any time or from time to time,
Employee shall perform such duties and responsibilities as are customarily
performed by one holding the position of president in other businesses or
enterprises of the same or similar nature as that engaged in by Employer,
together with those duties and responsibilities of the president as set forth in
the bylaws of Employer and such other duties and responsibilities as may be
assigned to Employee by the Board. In addition, while holding the CFO Position,
Employee shall perform such duties and responsibilities as are customarily
performed by one holding the position of chief financial and accounting officer
and the treasurer of other businesses or enterprises of the same or similar
nature as that engaged in by Employer, together with those duties and
responsibilities of the chief financial and accounting officer and the treasurer
as set forth in the bylaws of Employer.
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3. MANNER OF PERFORMANCE OF EMPLOYEE'S DUTIES. Employee shall at all times
faithfully, industriously, and to the best of his ability, experience and
talent, perform all duties and responsibilities that may be required of him
pursuant to the express and implicit terms hereof, to the satisfaction of
Employer. Such duties shall be rendered at and from Employer's executive offices
in Cumming, Georgia, or at and from such other place or places as Employer shall
require or as the interests, needs, business, and opportunities of Employer
shall require, as determined by the Board. In addition, Employee's agrees to
serve at the pleasure of Employer's shareholder as a member of the Board without
any compensation or fee (although Employer will reimburse Employee for any
travel and other out-of-pocket expenses reasonably incurred by Employee in
attending a meeting of the Board).
4. DURATION OF EMPLOYMENT. The initial term of this Agreement shall be one
(1) year, commencing on September 18, 2000, and expiring on September 17, 2001,
unless sooner terminated or subsequently extended as provided herein (the
"Term"). The expiration date of this Agreement shall be extended automatically
up to three times, each time for one (1) additional year from the immediately
preceding expiration date hereof (subject, however, to the provisions of Section
8 hereof), unless either party elects not to extend this Agreement by giving
written notice to the other party prior to the scheduled expiration date of this
Agreement. For example, the Term hereof will be extended automatically (assuming
the provisions of Section 8 are not applicable) from September 17, 2001 to
September 17, 2002, unless either party gives written notice to the other on or
before September 17, 2001of its decision not to extend. In the case of an
extension, Employee's annual compensation shall increase by ten percent (10%)
per year, effective on the date of the relevant extension.
5. COMPENSATION; REIMBURSEMENT; TRAINING. Employer shall pay Employee and
Employee agrees to accept from Employer, in full payment for Employee's services
hereunder, compensation at the rate of sixty thousand dollars ($60,000) per
annum, payable monthly. A performance bonus of up to ten thousand dollars
($10,000) per quarter may also be earned by the Employee based on the successful
achievement of certain business objectives as defined from time to time by the
Corporation's Board of Directors. In addition to the foregoing, Employer will
reimburse Employee for any and all necessary, customary and usual expenses
incurred by him while traveling for and on behalf of the Employer pursuant to
Employer's directions. Employee shall also receive a car allowance of five
hundred dollars ($500) per month in consideration of his automotive related
travel expense. Employee's compensation shall not be reduced or otherwise
adjusted if and when Employee no longer holds the CFO Position. Likewise,
Employee's compensation shall not be increased or otherwise adjusted if Employer
does not employ another person(s) to hold the CFO Position and Employee
continues serving in that capacity indefinitely. Employee will be eligible for
participation the employee stock option plan, if such a plan becomes effective
during Employee's employment hereunder.
6. FOUNDER'S STOCK, AND EMPLOYEE'S LOYALTY TO EMPLOYER'S INTERESTS.
(a) Employee acknowledges that he has received a total of two hundred
thousand (200,000) shares of common stock of the Employer as a founder (the
"Shares").
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(b) Employer agrees that it will cause to be registered with the
Securities and Exchange Commission (the "SEC") one hundred thousand (100,000)
shares of the total Shares described in Section 6(a) above in connection with
the filing of any Form S-1 or similar document with the SEC, all at Employer's
cost. The parties agree and understand that Employee shall have no other
securities registration rights or claims with respect to the Shares except as
specifically stated in this Section 6(b).
(c) Employee shall devote his time, attention, knowledge and skill solely
and exclusively to the business and interests of Employer, and Employer shall be
entitled to all benefits, emoluments, profits or other issues arising from or
incident to any and all work, services and advice of Employee, PROVIDED HOWEVER,
Employee may reasonably pursue charitable and other commercial opportunities.
Employee expressly agrees that during the Term he will not be interested,
directly or indirectly, in any form, fashion, or manner, as a partner, officer,
director, stockholder, member, manger, consultant, advisor, employee, or in any
other form or capacity, in any other business similar to Employer's business or
any allied trade.
7. NONDISCLOSURE OF INFORMATION CONCERNING BUSINESS. Employee will not at
any time, in any fashion, form, or manner, either directly or indirectly,
divulge, disclose, or communicate to any person, firm, corporation or other
entity, in any manner whatsoever, any information of any kind, nature, or
description concerning any matters affecting or relating to the business of
Employer, including, without limitation, the names of any its customers, the
prices it obtains or has obtained, or at which it sells or has sold its products
or services, or any other information concerning the business of Employer, its
manner of operation, or its plans, processes, or other data of any kind, nature,
or description without regard to whether any or all of the foregoing matters
would be deemed confidential, material or important. The parties hereby
stipulate that, as between them, the foregoing matters are important, material
and confidential, and gravely affect the effective and successful conduct of the
business of Employer and its goodwill, and that any breach of the terms of this
section is a material breach of this Agreement.
8. TERMINATION OF THIS AGREEMENT.
(a) BY EMPLOYER. Notwithstanding any provision to the contrary herein
contained, Employer shall have the right to terminate this Agreement and
Employee's employment hereunder as follows:
(1) WITHOUT CAUSE. At any time during the Term, Employer shall have
the right and option, exercisable in the discretion of the Board as described
below, to terminate this Agreement and Employee's employment hereunder for any
reason or for no reason, by giving written notice thereof to Employee. To be
effective, such termination must be approved by a majority of the members of the
Board (with such majority being determined as if Employee were not a member of
the Board). Upon such termination, Employee shall be entitled to receive from
Employer severance compensation in an amount equal to one month's compensation
(calculated at the time of such termination), such payment to be received by
Employee within 30 days after the effective date of such termination; PROVIDED,
that Employee shall be entitled to receive from
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Employer any compensation and expense reimbursements to which he is otherwise
entitled to receive hereunder to the extent such rights accrued and exist prior
to such termination.
(2) WITH CAUSE. At any time during the Term, Employer shall have the
right and option, exercisable in the discretion of the Board as described below,
to terminate this Agreement and Employee's employment hereunder for Cause (as
defined below), by giving written notice thereof to Employee. To be effective,
such termination must be approved by a majority of the members of the Board
(with such majority being determined as if Employee were not a member of the
Board). Upon such termination, Employee shall not be entitled to receive from
Employer any severance or other compensation of any kind or nature; PROVIDED,
HOWEVER, that Employee shall be entitled to receive from Employer any
compensation and expense reimbursements to which he is otherwise entitled to
receive hereunder to the extent such rights accrued and exist prior to such
termination. For purposes hereof, the phrase "for Cause" shall mean the
occurrence of any one or more of the following: (a) a material breach of this
Agreement by Employee; (b) a material breach by Employee of any of his fiduciary
obligations to Employee as a director or as an officer of Employer, whether such
obligation is set forth in this Agreement or otherwise exists under applicable
law; (c) Employee's wrongful appropriation of a corporate opportunity or any
money, transaction or benefit that belongs to Employer, or (d) Employee's
conviction of any felony or any crime of moral turpitude.
(b) BY EMPLOYEE.
(1) WITHOUT GOOD REASON. If Employee terminates his employment
hereunder without Good Reason (as defined below), then this Agreement shall
terminate and Employee shall not be entitled to receive from Employer any
severance or other compensation of any kind or nature; PROVIDED, HOWEVER, that
Employee shall be entitled to receive from Employer any compensation and expense
reimbursements to which he is otherwise entitled to receive hereunder to the
extent such rights accrued and exist prior to such termination.
(2) WITH GOOD REASON. If Employee terminates his employment as the
direct result of Good Reason (as defined below), then this Agreement shall
terminate and Employee shall be entitled to receive from Employer severance
compensation in an amount equal to one month's compensation (calculated at the
time of such termination), such payment to be received by Employee within 30
days after the effective date of such termination; PROVIDED, that Employee shall
be entitled to receive from Employer any compensation and expense reimbursements
to which he is otherwise entitled to receive hereunder to the extent such rights
accrued and exist prior to such termination. For purposes hereof, the phrase
"Good Reason" shall mean a material breach of this Agreement by Employer (other
than a breach resulting from a lack of funds attributable to Employer's business
performance or from Employee's acts or omissions) where such breach is not cured
by Employer within 30 days' after written notice thereof by Employee to
Employer.
9. FULL TIME ACTIVITIY; CONTRACT TERMS TO BE EXCLUSIVE.
(a) This Agreement, and Employee's duties and responsibilities as
Employer's president hereunder, requires the full attention of Employee.
Accordingly, Employee
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specifically agrees and understands that his duties and responsibilities
hereunder shall be the only business activity of Employee during the Term and
that Employee shall not be involved in any other business activity during the
Term. Any breach or violation by Employee of this Section 9 shall constitute a
material breach of this Agreement and ground for a "for Cause" termination of
this Agreement by Employer under Section 8(a) (2) above.
(b) This written agreement constitutes the sole and entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes any and all other agreements between them. The parties acknowledge
and agree that neither of them has made any representation with respect to the
subject matter of this Agreement or any representation to induce the execution
and delivery hereof except such representations (if any) specifically set forth
herein, and each party acknowledges that he or it has relied on his or its own
judgment in entering into and delivering the Agreement. The parties further
acknowledge that any statements or representations that may have heretofore been
made by either of them to the other are void and of no effect and that neither
of them has relied thereon in connection with his or its dealings with the other
in connection with any of the transactions contemplated by this Agreement.
10. WAIVERS OR MODIFICATION INEFFECTIVE UNLESS IN WRITING. No waiver or
modification of this Agreement or of any covenant, condition or limitation
herein contained shall be valid unless in writing and duly executed by the party
to be charged therewith. Furthermore, no evidence of any waiver or modification
shall be offered or received in evidence in any proceeding, arbitration or
litigation between the parties arising out of or affecting this Agreement, or
the rights or obligations of any party hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid. The provisions of this
section may not be waived except as herein set forth.
11. CONTRACT GOVERNED BY LAW. This Agreement and performance hereunder and
all suits and special proceedings hereunder shall be construed in accordance
with the substantive laws of the State of Georgia.
12. BINDING EFFECT OF AGREEMENT. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors, and permitted assigns. Employee shall have no right
to assign this Agreement to any other person or entity and Employee shall not
have the rights to delegate any duties responsibilities hereunder to any other
person or entity.
13. NOTICES. Any notice or other communication given by either party to
the other under this Agreement shall be in writing and shall be sent via hand
delivery, certified mail, Fed Ex or other nationally recognized overnight
courier service or facsimile at the address of the intended recipient shown
below (which address or addresses may be changed from time to time upon 10 days'
advance written notice to the other party as provided herein). Any written
notice or other communication so given shall be deemed effective upon dispatch
by the sender.
[Signatures appear on the next page]
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Executed as of the date first above written.
"Employee"
/s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxxxx
Address (for notices/other communications)
--------------------------------
--------------------------------
--------------------------------
Facsimile No.: ____________________
"Employer"
eMissions Testing, Inc.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Position: Chairman
Address (for notices):
000 Xxxxxx Xxxx, Xxxxxxxx 000
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Director, and
Xxxxx Xxxxxxx, Secretary
Facsimile No.: _________________
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