EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of March, 1998, by and between
ENVIROTEST SYSTEMS CORP., a Delaware corporation (the "Company"), and XXXX
XXXXXX (the "Executive").
WITNESSETH:
WHEREAS, the Company wishes to employ the Executive and the
Executive wishes to accept such employment upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. EMPLOYMENT
The Company agrees to employ the Executive during the Term
specified in paragraph 2, and the Executive agrees to accept such employment,
upon the terms and conditions hereinafter set forth.
2. TERM
Subject to Sections 6 and 8 below and the other terms and
conditions of this Agreement, the Executive's employment by the Company shall
be for a term commencing on the date hereof and expiring on the close of
business on April 30, 2000 (the "Initial Term"); provided, however, the term
of the Executive's employment by the Company shall continue for an indefinite
period thereafter unless and until either party shall give to the other at
least 30 days advance written notice of expiration of the term (a "Notice of
Termination") (the Initial Term and the period, if any, thereafter, during
which the Executive's employment shall continue are collectively referred to
as the "Term"). The effective date of the termination of the Executive's
employment with the Company, regardless of the reason therefor, is referred
to in this Agreement as the "Date of Termination".
3. DUTIES AND RESPONSIBILITIES
(a) During the Term, the Executive shall serve as Executive Vice
President, Chief Development Officer, of the Company. The Executive shall
report directly to the Chairman of the Company (the "Chairman").
(b) The Executive shall perform such duties and responsibilities as
directed by the Chairman, relating to the Company's significant mergers,
acquisitions, dispositions, joint ventures, all significant development
related projects and opportunities and all significant matters relating to
the Company's capital allocations for projects and developments
(collectively, "Development Matters"). After consulting with the Chairman,
the Executive shall present all Development Matters to the Board of Directors
of the Company (the "Board").
(c) The Executive agrees that he will (i) exercise his ability and
skill to promote the best interests of the Company; (ii) carry out his duties
in a competent and professional manner; and (iii) work with other employees
of the Company and its subsidiaries in a competent and professional manner.
4. COMPENSATION
(a) As compensation for his services hereunder, during the Term
the Company shall pay the Executive in accordance with its normal payroll
practices, direct salary compensation at the annual rate of $250,000;
provided, however, the then annual rate of direct salary compensation may be
increased (but not decreased) by or under the authority of the Compensation
Committee of the Board in accordance with the then salary review policy of
the Company.
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(b) Upon the consummation of a sale of the Company which
constitutes a Change in Control (as defined in paragraph 4(d) below), the
Company shall pay to the Executive a special bonus (the "Special Bonus") in
an amount equal to $550,000 plus the product of $100,000 times the amount, if
any, by which the exercise price of the stock options granted to the
Executive under paragraph 4(c) below exceeds $7.
(c) The Company hereby agrees that within 15 days of the date of
this Agreement, the Board will grant to the Executive an option to purchase
shares of the Class A Common Stock of the Company (the "Option") with the
following terms or those which are more favorable to the Executive: (i) the
Option will consist of 100,000 shares of the Class A Common Stock of the
Company; (ii) the Option will vest and immediately become exercisable on the
first anniversary of the date the Option is granted; (iii) notwithstanding
the preceding clause (ii), the Option shall vest and immediately become
exercisable in the event of (x) a "Change in Control" (as defined below) or
(y) the termination of the Executive's employment with the Company for any
reason other than in connection with a "For Cause Termination" (as defined in
paragraph 6(a) below) or a "Voluntary Termination" (as defined in paragraph
6(e) below); (iv) the Option will have an exercise price equal to the fair
market value of the Class A Common Stock on the date of grant; and (v) the
Option shall have a ten-year exercise period. The Executive will also be
eligible to receive grants of options under the Company's Stock Option Plan
at the discretion of the Compensation Committee of the Board.
(d) For purposes of this Agreement, "Change in Control" means the
occurrence of any one of the following events:
(i) any sale, transfer or other conveyance (other than to
the Company or a wholly-owned subsidiary of the Company), whether direct
or indirect, on a
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consolidated basis, in one transaction or a series of related
transactions, of (A) all or substantially all of the assets of the Company
or (B) the capital stock of the Company if, immediately after such
transaction(s), any "person" or "group" (as such terms are defined
below) becomes the "beneficial owner" (as defined below), directly or
indirectly, of more than 33% of the "Voting Stock" (as defined below)
then outstanding entitled to vote in the election of directors,
managers, or trustees of the transferee;
(ii) any "person" or "group" is or becomes the "beneficial
owner," directly or indirectly, of more than 33% of the Voting Stock
then outstanding; or
(iii) during any period of 24 consecutive months, individuals
who at the beginning of such period constituted the Board (together with
any new directors whose election by such Board or whose nomination for
election by the shareholders of the Company was approved by a vote of a
majority of the directors then still in the office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved), cease for any
reason to constitute a majority of the Board then in office.
For purposes of this paragraph 4(d), (i) the terms "person" or "group" shall
have the meanings used for purposes of Rules 13d and 13d-5 of the Securities
Exchange Act of 1934 (the "Exchange Act"), whether or not applicable,
provided that no "Excluded Person" (as defined below) and no person or group
controlled by any Excluded Person shall be deemed to be a "person" or
"group"; (ii) the term "beneficial owner" shall have the meaning used in
Rules 13d-3 and 13d-5 under the Exchange Act, whether or not applicable,
except that a person shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage
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of time or upon the occurrence of certain events; (iii) "Voting Stock" means
the capital stock of the Company (i.e., the Class A Common Stock and the
Class B Common Stock of the Company, taken as a whole); and (iv) "Excluded
Person" means any beneficial holder of 5% or more of any class of common
stock of the Company outstanding immediately prior to the consummation of the
initial underwritten public offering by the Company of 3,400,000 shares of
the Company's Class A Common Stock in April 1993.
5. EMPLOYEE BENEFITS AND PERQUISITES
During the Term, the Company will provide to the Executive the
following benefits and perquisites:
(a) The Executive shall be a participant in all benefit programs
provided for the Company's management executives of like classification,
including, but not limited to, insurance, retirement, tax-deferred plans,
health and other benefit plans (including the Medical Reimbursement Program)
for which he qualifies.
(b) The Executive shall be entitled to receive fringe benefits and
perquisites (other than the above-mentioned employee benefit plans and
programs) in the aggregate substantially equivalent to those provided to the
Company's management executives of like classification, including, without
limitation, vacation time and reasonable sick leave.
(c) The Company will not require the Executive to relocate from
his current residence in Concord, Massachusetts. The Company agrees to pay or
to reimburse the Executive for all
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expenses incurred in connection with the Executive's travel from his
residence in Concord, Massachusetts to the Company's various offices.
6. TERMINATION
(a) The Company, by direction of the Board or the Chairman, shall
be entitled to terminate the Term and to discharge the Executive for "cause"
effective upon the giving of written notice from the Board to the Executive
describing in detail the alleged grounds. The term "cause" shall be limited
to the following grounds:
(i) The Executive's demonstrably willful failure or refusal
(without reasonable justification therefor) in bad faith to
perform his duties for the Company, or material specific
resolutions and mandates of the Board and directives of the
Chairman which are consistent with the Executive's duties and
responsibilities as set forth in paragraph 3 above other than by
reason of his disability (as defined in paragraph 8 below), in
each case if such failure or refusal is not cured within 30
calendar days after written notice thereof to the Executive by the
Company;
(ii) The Executive's willful breach of the terms and
conditions contained in paragraph 9 below;
(iii) The Executive's willful engaging in conduct that
materially injures the Company or could reasonably be expected to
materially injure the Company, monetarily or otherwise, including,
but not limited to, the willful commission of any act of fraud,
theft or dishonesty against the Company, if such conduct is not
cured (if capable of being cured) within 30 calendar days after
written notice thereof to the Executive by the Company; or
(iv) Conviction of the Executive in a court of law of, or the
Executive's entering a plea of guilty or no contest to, any felony
or any crime
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involving moral turpitude, dishonesty or theft.
The Company shall pay the Executive his salary compensation and any unused
accrued vacation only through, and any unpaid reimbursable expenses
outstanding as of, the Date of Termination upon the termination of the
employment of the Executive with the Company pursuant to this paragraph (a
"For Cause Termination"). The Executive or his beneficiaries shall be
entitled to all benefits, if any, that had accrued to the Executive under the
plans and programs described in paragraphs 5(b) and (c) above, or any other
applicable plans and programs in which he participated as an employee of the
Company, through the Date of Termination in the manner and in accordance with
the terms of such plans and programs. In the event that the Executive is
purportedly terminated for cause and a court, arbitration panel or other
tribunal having jurisdiction determines that "cause" as defined herein was
not present, then such purported termination for cause shall be deemed a
termination for "good reason" pursuant to paragraph 6(b) and the Executive's
rights and remedies will be governed by paragraph 6(c) below.
(b) The Executive shall be entitled to terminate this Agreement and
the Term hereunder for "good reason" effective upon the giving of written
notice to the Company. The term "good reason" shall be limited to the
following actions taken without the Executive's prior written consent:
(i) A "Change in Control" (as defined in paragraph 4(d)
above);
(ii) The failure by the Company to consummate a sale
transaction with a third party, which sale transaction constitutes
a Change in Control, prior to March 31, 1999;
(iii) A decision by the Board to cease to proceed with the
Company's current strategy to enter into a sale transaction with a
third party, such decision to be deemed made if the Company fails,
for any period of 120 or more
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consecutive calendar days during the Term, to retain investment
bankers, in connection with the Company's sale efforts;
(iv) A default by the Company of a material term of this
Agreement, which default remains uncured for a period of 10 days
after written notice of such default from the Executive to the
Company;
(v) A reduction in the Executive's then current base salary
or reduction of any employee benefit or perquisite enjoyed by him;
(vi) A failure by the Board to grant the Executive the Option
in accordance with paragraph 4(c) above;
(vi) The failure to appoint or re-appoint the Executive to
the position described in paragraph 3 above or the removal of him
from any such position; or
(vii) A diminution in the Executive's position, authority,
duties or responsibilities or the assignment to the Executive of
duties which are inconsistent in any respect with his position
(including status, offices, titles and reporting requirements),
authority, duties or responsibilities, if such diminution is not
cured (if capable of being cured) within 10 business days of notice
to the Company by the Executive.
(c) In the event of the termination of the Executive's employment
for any reason whatsoever other than a For Cause Termination or a Voluntary
Termination including without limitation (i) the expiration of the Term, (ii)
"good reason"; (iii) the Executive's disability (as defined in paragraph 8
below) or (iv) the death of the Executive, as severance compensation, the
Executive shall be entitled to receive from the Company a lump sum payment
equal to the greater of (x) one times the Executive's annual base salary or
(y) the Executive's base salary for the remainder of the Initial Term (in
either case, the "Severance
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Payment") The Severance Payment will become due and payable on the Date of
Termination. In addition, the Executive or his beneficiaries shall be
entitled to continued participation on the same basis (including without
limitation, cost contributions) as the other employees of the Company in all
medical, dental, hospitalization, disability and life insurance coverage (the
"Continued Plans") in which the Executive was participating on the Date of
Termination (as such Continued Plans are from time to time in effect at the
Company) through the two-year anniversary of the Date of Termination
provided, (1) that if the Executive or his beneficiaries are precluded from
continuing his participation in any Continued Plan, the Executive or his
beneficiaries shall be provided with the after-tax economic equivalent of
the benefits provided under the Continued Plan in which the Executive or his
beneficiaries are unable to participate, for the period specified above, and
(2) payment of such after-tax economic equivalent shall be made quarterly in
advance. In connection with a termination of the Executive's employment with
the Company other than a For Cause Termination or a Voluntary Termination,
except as provided in this paragraph 6(c), (x) the Company's obligation to
make the Severance Payment and otherwise to perform its obligations hereunder
shall not be affected by any set-off, counterclaim, recoupment, defense or
other claim, right or action which the Company may have against the Executive
or others and (y) the Executive shall be under no obligation to mitigate his
damages or to seek other employment and if the Executive obtains other
employment any compensation earned by the Executive therefrom shall not
reduce the Company's obligations under this paragraph 6(c).
(d) It is understood and agreed that the Severance Payment is in
the nature of a severance payment and considered to be reasonable by the
Company and is not in the nature of a penalty.
(e) The Company shall pay the Executive his salary compensation
and any unused accrued vacation only through, and any unpaid reimbursable
expenses outstanding as of, the Date of Termination upon the voluntary
termination by the Executive of his
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employment with the Company other that pursuant to a termination under
paragraphs 2 or 6(b) above or paragraph 7 below (a "Voluntary Termination").
The Executive or his beneficiaries shall be entitled to all benefits, if any,
that had accrued to the Executive under the plans and programs described in
paragraphs 5(b) and (c) above, or any other applicable plans and programs in
which he participated as an employee of the Company, through the Date of
Termination in the manner and in accordance with the terms of such plans and
programs.
7. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY
(a) Anything in this Agreement to the contrary notwithstanding, if
it shall be determined that any amounts paid to the Executive by the Company
hereunder (each a "Subject Payment") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code"), and such excise tax, the "Excise Tax"), then the Executive shall
be entitled to receive from the Company an additional payment (the "Gross-Up
Payment") in an amount such that the net amount of the Subject Payment and
Gross-Up Payment retained by the Executive, after the calculation and
deduction of all Excise Taxes (including any interest or penalties imposed
with respect to such taxes) on the Subject Payment and all federal, state and
local income tax, employment tax and Excise Tax (including any interest or
penalties imposed with respect to such taxes) on the Gross-Up Payment
provided for in this paragraph 7(a), shall be equal to the Subject Payment.
(b) Subject to the provisions of paragraph 7(c) below, all
determinations required to be made under this paragraph 7, including whether
and when the Gross-Up Payment is required and the amount of such Gross-Up
Payment, and the assumptions to be utilized in arriving at such
determinations shall be made by an independent auditor (the "Auditor")
jointly selected by the Company and the Executive which shall provide
detailed supporting calculations both to the Company and the Executive within
15 business days of
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the receipt of notice from the Executive that there has been a Subject
Payment, or such earlier time as is requested by the Company. All fees and
expenses of the Auditor shall be borne solely by the Company. Any Gross-Up
Payment shall be paid by the Company to the Executive within five days of the
receipt of the Auditor's determination. Any determination by the Auditor
shall be binding upon the Company and the Executive. As a result of
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Auditor hereunder, it is possible that the
Gross-Up Payment made will have been an amount less than the Company should
have paid pursuant to this paragraph 7(b) (the "Underpayment"). In the event
that the Company exhausts its remedies pursuant to paragraph 7(c) below and
the Executive thereafter is required to make a payment of any Excise Tax, the
Auditor shall determine the amount of the Underpayment and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
the Executive.
(c) The Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be
given as soon as practicable after the Executive is informed in writing of
such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. The Executive shall not pay
such claim prior to the expiration of the 30-day period following the date on
which he gives such notice to the Company (or such shorter period ending on
the date that any payment of taxes, interest and/or penalties with respect to
such claim is due). If the Company notifies the Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim;
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(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company;
(iii) cooperate with the Company in good faith in order to
effectively contest such claim, and
(iv) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify the Executive for and hold the
Executive harmless from, on an after-tax basis, any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result
of such representation and payment of all related costs and expenses. Without
limiting the foregoing provisions of this paragraph 7(c), the Company shall
control all proceedings taken in connection with such contest and, at its
sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the Executive to pay
the tax claimed and xxx for a refund or contest the claim in any permissible
manner, and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company shall determine; provided,
however, that if the Company directs the Executive to pay such claim and xxx
for a refund, the Company shall advance the amount of such payment to the
Executive, on an interest-free basis, and shall indemnify the Executive for
and hold the Executive harmless from, on an after-tax basis, any Excise Tax
or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with
respect to such advance; and further
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provided that any extension of the statute of limitations relating to the
payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any
other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to paragraph 7(c) above, the Executive becomes
entitled to receive any refund with respect to such claim, the Executive
shall (subject to the Company's complying with the requirements of paragraph
7(c) above) promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto).
If, after the receipt by the Executive of an amount advanced by the Company
pursuant to paragraph 7(c) above, a determination is made that the Executive
shall not be entitled to any refund with respect to such claim and the
Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required
to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
8. DISABILITY; DEATH
In the event the Executive shall be unable to perform his duties
hereunder by virtue of illness or physical or mental incapacity or disability
(from any cause or causes whatsoever) in substantially the manner and to the
extent required hereunder prior to the commencement of such disability (all
such causes being herein referred to as "disability") and the Executive shall
fail to perform such duties for a period of 180 consecutive days or an
aggregate of more than 210 days in any twelve-month period during the Term,
the Company shall have the right to terminate the Executive's employment
hereunder as at the end of any
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calendar month during the continuance of such disability upon at least 60
days' prior written notice to him. In the event of the Executive's death, the
Date of Termination shall be the date of such death.
9. NONCOMPETITION; PROTECTION OF CONFIDENTIAL INFORMATION
(a) During the Term and for a period of one year thereafter, the
Executive shall not, directly or indirectly, without the prior written
consent of the Company, provide consultation services or otherwise provide
services to (whether as an employee or a consultant, with or without pay),
own, manage, operate, join, control, participate in, or be connected with (as
a stockholder, partner, or otherwise), any business, individual, partner,
firm or corporation in the business of providing vehicle emissions testing
services or services directly related thereto or in any other business that
comprised a material portion of the Company's business during the Term;
provided, however, that the "beneficial ownership" by the Executive, either
individually or as a member of a "group" (as such terms are used in Section
13(d) of the Exchange Act and Regulation 13D under the Exchange Act), of not
more than five percent (5%) of the voting stock of any publicly held
corporation shall not alone constitute a violation of this Agreement.
(b) The Executive agrees that he will not at any time (whether
during the Term or after termination of this Agreement), disclose to anyone
any confidential information or trade secret of the Company, or any client of
the Company, or utilize such confidential information or trade secret for his
own benefit, or for the benefit of third parties. The term "confidential
information or trade secret" does not include information which (i) becomes
generally available to the public other than by breach of this provision or
(ii) the Executive learns from a third party who is not under an obligation
of confidence to the Company. In the event that the Executive becomes legally
required to disclose any confidential information or trade secret, he will
provide the Company with prompt notice thereof so that the Company may seek a
protective order or other appropriate remedy and/or waive compliance with the
provisions of this paragraph 9(b) to permit a particular disclosure.
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In the event that such protective order or other remedy is not obtained, or
that the Company waives compliance with the provisions of this paragraph 9(b)
to permit a particular disclosure, the Executive will furnish only that
portion of the confidential information or trade secret which he is legally
required to disclose and will cooperate with the Company's efforts to obtain
a protective order or other reliable assurance that confidential treatment
will be accorded the confidential information or trade secret.
(c) The Executive acknowledges that the services to be rendered by
him are of a special, unique and extraordinary character and, in connection
with such services, he will have access to confidential information vital to
the Company's business. By reason of this, the Executive consents and agrees
that if he violates any of the provisions of this Agreement with respect to
confidentiality, the Company would sustain irreparable harm and, therefore,
in addition to any other remedies which the Company may have under this
Agreement or otherwise, the Company shall be entitled to apply to any court
or other tribunal of competent jurisdiction for an injunction restraining the
Executive from committing or continuing any such violation of this Agreement,
and the Executive shall not object to any such application.
10. ENFORCEABILITY
The failure of any party at any time to require performance by
another party of any provision hereunder shall in no way affect the right of
that party thereafter to enforce the same, nor shall it affect any other
party's right to enforce the same, or to enforce any of the other provisions
in this Agreement; nor shall the waiver by any party of the breach of any
provision hereof be taken or held to be a waiver of any subsequent breach of
such provision or as a waiver of the provision itself.
11. ASSIGNMENT
This Agreement is a personal contract and the Executive's rights
and obligations hereunder may not be sold, transferred, assigned, pledged or
hypothecated by the
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Executive. The rights and obligations of the Company hereunder shall be
binding upon and run in favor of the successors and assigns of the Company.
12. RESOLUTION OF DISPUTES
Subject to the Company's right to seek injunctive relief under
paragraph 9(c) above, any disputes arising under or in connection with this
Agreement shall be resolved by binding arbitration under either the auspices
of either the American Arbitration Association or JAMS/Endispute as agreed to
by the parties. The resolution of any dispute hereunder shall occur in New
York City. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. During the dispute, each
party will bear his or its own attorneys' fees and expenses in connection
with any such arbitration and each party will pay one-half of any costs
associated with the arbitration proceedings; provided, however, upon a final
award of the arbitrator(s), the parties acknowledge and agree that the
arbitrator(s) shall direct the non-prevailing party to reimburse the
prevailing party for all of his or its attorneys' fees and expenses in
connection with any such arbitration.
13. MODIFICATION
This Agreement may not be orally canceled, changed, modified or
amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by the parties to this
Agreement.
14. SEVERABILITY
In the event any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in
part, the remaining provisions of this Agreement shall nevertheless be
binding upon the parties with the same effect as though the invalid or
unenforceable part had been severed and deleted.
15. NOTICES
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Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall
be deemed effective (a) upon personal delivery, if delivered by hand, or (b)
three days after the date of deposit in the mails, postage prepaid if mailed
by certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission or prepaid overnight courier service, and in each
case, addressed as follows:
IF TO THE EXECUTIVE:
Xxxx Xxxxxx
000-0 Xxx Xxxx to Nine Acre Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxx & Xxxxxxx
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
IF TO THE COMPANY:
Envirotest Systems Corp.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chairman
Fax: (000) 000-0000
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
16. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance
with the
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laws of the State of New York without application of conflict of law
provisions applicable herein.
17. NO CONFLICT
Each of the parties hereto represents and warrants that he is not
subject to any agreement, instrument, order, judgment or decree of any kind,
or any other restrictive agreement of any character, which would prevent him
or it from entering into this Agreement or which would be breached by him or
it upon his or its performance of his or its duties pursuant to this
Agreement.
18. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Company
and the Executive with respect to the subject matter hereof.
19. BOARD APPROVAL
The parties hereto hereby agree that the effectiveness of this
Agreement shall be subject to the approval of the Board.
20. EXPENSES
All attorneys' fees and disbursements, not to exceed $8,000 in the
aggregate, incurred by the Executive in connection with the preparation,
negotiation and execution of this Agreement, shall be borne by the Company.
21. HEADINGS
The headings contained in this Agreement are for reference purposes
only, and shall not affect the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ENVIROTEST SYSTEMS CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman
/s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
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