SPEEDEMISISONS, INC.
AMENDED EMPLOYMENT AGEEMENT
This AMENDED EMPLOYMENT AGREEMENT (this "Agreement") is made by and between
Speedemissions, Inc. a Florida corporation (the "Employer"), and Xxxxxxx X.
Xxxxxxxxxxx, an individual resident of Georgia (the "the Employee"), and
initially effective as of the 15th day of September, 2003 (the "Effective
Date").
The Employer presently employs the Employee as its President and Chief Executive
Officer (CEO). The Employer recognizes that the Employee's contribution to the
growth and success of the Employer is substantial. The Employer desires to
provide for the continued employment of the Employee and to make certain changes
in the Employee's employment arrangements which the Employer has determined will
reinforce and encourage the continued dedication of the Employee to the Employer
and will promote the best interests of the Employer and its shareholders. The
Employee is willing to continue to serve the Employer on the terms and
conditions herein provided.
In consideration of the forgoing, the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree that on the Effective Date:
1. EMPLOYMENT.
(a) The Employer shall continue to employ the Employee, and the Employee
shall continue to serve the Employer, as President and Chief Executive
Officer upon the terms and conditions set forth herein. The Employee
shall have such authority and responsibilities as are consistent with
his position and which may be set forth in this Agreement or assigned
by the Board of Directors from time to time. The Employee shall devote
his full business time, attention, skill and efforts to the
performance of his duties hereunder, except during periods of illness
or periods of vacation and leaves of absence consistent with the
Employer's policies. The Employee may devote reasonable periods of
time to perform charitable and other community activities and to
manage his personal investments; provided, however, that such
activities will not materially interfere with the performance of his
duties hereunder and will not be in conflict or competitive with, or
adverse to , the interests of the Employer. Under no circumstances
will the Employee work for any competitor or have any financial
interest in any competitor of the Employer; provided, however, that
the Employee may invest up to 1% of the publicly traded-stock or
securities of any company whose stock or securities are traded on a
national exchange.
(b) The Employee shall not be required to relocate from the metropolitan
Atlanta, Georgia area.
2. TERM.
Unless earlier terminated or as provided herein, the Employee's employment under
this Agreement shall be for an initial term of three (3) years (the "Initial
Term"). Not less than thirty (30) days prior to each anniversary date of this
Agreement either party may provide written notice to the other that it does not
desire to extend this Agreement, and that it elects to have this Agreement
terminate at the end of the then current Term (a "Non- Renewal Notice"). In the
absence of a Non-Renewal Notice, on each anniversary date of this Agreement, the
Term of this Agreement shall be extended automatically (without further action
of the Employer or Employee) for a period one (1) additional year (each such
additional period, a "Term Extension"). The Initial Term, together with all Term
Extensions are hereinafter collectively referred to as the "Term" of this
Agreement.
3. COMPENSATION AND BENEFITS.
(a) The Employer shall pay the employee a salary at a rate of $180,000 per
annum (the "Base Salary") in accordance with the salary practices of
the Employer. Commencing as of the first anniversary of the Effective
Date, and thereafter on each subsequent anniversary of the Effective
Date during the Term, the Base Salary shall be increased, but not
decreased, by an amount equal to the greater of (i) such amount as
shall be determined by the Compensation Committee of the Board of
Directors of the Employer; or (ii) three percent (3%).
(b) The Employee shall participate in any retirement, welfare, deferred
compensation, life, health, disability insurance, and other benefit
plans or programs paid by the Employer now or hereafter applicable to
the Employee. The Employer shall pay (or reimburse the Employee for)
the actual cost of the Employee's health /dental insurance (for
himself and his wife), life insurance and disability insurance as and
when due and payable to the Employee's health insurance company, life
insurance company and disability insurance company until the Employer
adopts and puts into effect a benefits program providing health, life
and disability insurance for its executive employees, which at such
time will be paid by the Employer. This subsection (b) shall not be
construed to required the Employer to establish any such plans or
programs or to prevent the Employer from modifying or terminating any
such plans or programs, and no such action or failure thereof shall
affect this Agreement; provided, however, that in the event of any
reduction in the group medical and hospitalization benefits provided
to the Employee, the salary payable to the Employee shall be
increased, as of the effective date of such reduction, by that amount
necessary to enable the Employee to supplement the benefits provided
by the Employer to maintain the level of benefits then provided to the
Employee.
(c) The Employee shall receive four (4) weeks of paid vacation for each
calendar year during the Term. Scheduling of vacation shall be subject
to the prior approval of the Employer, which approval shall not be
unreasonably withheld. Vacation time shall not accrue, and if the
Employee prior to the end of any calendar year shall not use all of
his vacation time for such year, such vacation time shall be
forfeited.
(d) The Employer shall continue to reimburse the Employee for reasonable
travel and other expenses, including a monthly car allowance of
$600.00, related to the Employee's duties which are incurred and
accounted for in accordance with the Employer's standard business
practices.
(e) The Employee shall receive a cellular phone allowance of $200.00 per
month.
(f) The Employer shall reimburse the Employee for dues paid by the
Employee for membership in such professional organizations and eating
clubs as shall, from time to time, be approved by the Compensation
Committee of the Board of Directors.
(g) Employee shall be eligible to receive cash bonuses based on the
Employee's achievement of specified goals and criteria. These goals
and criteria may include both annual and long-term goals, may provide
for vesting over a specified time period, and shall be established
annually by the Compensation Committee of the Board of Directors and
attached to and made part of this Agreement (the "Bonus Plan"). Unless
provided otherwise in any particular Bonus Plan, the Compensation
Committee shall determine whether the Employee has achieved the goals
and criteria for the applicable quarter and, if so the amount of the
quarterly bonus to be paid to the Employee, as soon as practical after
the operating and financial results of the Employer for the relevant
quarter are made know to the Board. Any bonus so determined by the
Compensation Committee will vest in favor of the Employee as of the
last day of the quarter to which such bonus relates. Each quarterly
cash bonus shall be paid to the Employee as soon as practicable after
the Compensation Committee's final determination. For the purposes of
this Section 3(b), (i) the Employer shall establish the bonus criteria
for 2004 not later than December 1, 2003, and (ii) the first calendar
quarter to be considered for a bonus payment shall cover the months of
January, February and March 2004 (the "First Quarter") (and
thereafter, every calendar quarter during the Term).
(h) The Employee is hereby granted options (in the aggregate, the
"Options") to subscribe for and purchase from the Employer four
hundred thousand (400,000) shares of the Company's Common Stock (in
the aggregate, the "Option Stock") at a price per share equal to the
Fair Market Value of the of the Option Stock as of the date hereof.
"Fair Market Value" shall mean two dollars ($2.00) per share. The
Options may be exercised by the Employee or members of his immediate
family. Upon the execution of this Agreement one-fourth, or 100,000,
of the Options are fully vested. The remaining 300,000 Options will
vest in three equal parts of 250,000 Options on each of October 1,
2004; October 1, 2005; and October 1, 2006. Upon a Change of Control
(as hereinafter defined), or termination Without or With Cause (as
hereinafter defined), all Options remaining unvested shall be
automatically vested and may be immediately exercised. All other terms
and conditions relating to the Options shall be set forth in a
separate Option Agreement between the Employee and Employer; provided,
however, that the terms and conditions of the Option Agreement shall
not conflict with this subsection (h).
(i) All payments by the Employer to the Employee pursuant to this
Agreement shall be subject to applicable withholding rules,
regulations and requirements.
4. TERMINATION.
(a) The Employee's employment under this Agreement may be terminated prior
to the end of the Term only as follows:
(i) upon the death of the Employee;
(ii) upon the Disability of the Employee for which reasonable
accommodation is unavailable. For the purposes of this Agreement,
"Disability" shall conclusively be deemed to have occurred with
respect to the Employee (i) if the Employee shall be receiving
payments pursuant to a policy of long-term disability income
insurance; (ii) if the Employee shall have no long-term
disability income coverage then in force and any insurance
company insuring the Employee's life shall agree to waive the
premiums due on such policy pursuant to a long-term disability
waiver of premium provision in the contract of life insurance; or
(iii) if the Employee shall have no long-term disability waiver
of premium provision in any contract of life insurance, then if
the Employee shall be receiving long-term disability benefits
from or through the Social Security Administration; provided,
however, that in the event the Employee's disability shall,
otherwise and in good faith, come into question (and, for
purposes of this proviso, "disability" shall mean the permanent
and continuous inability of the Employee to perform substantially
all of the duties being performed immediately prior to his
disability coming into question), and a dispute shall arise with
respect thereto, then the Employee (or his personal
representatives) shall appoint a medical doctor, the Employer
shall appoint a medical doctor, and said two (2) doctors shall,
in turn, appoint a third party medical doctor who shall examine
Employee to determine the question of disability and whose
determination shall be binding upon all parties to this
Agreement. For purposes of this Agreement, a "reasonable
accommodation" is one that does not impose undue hardship on the
Employer;
(iii) upon the determination of Cause for termination, in which event
such employment may be terminated by written notice at the
election of the Employer. For purposes of this Agreement, "Cause"
shall consist of any of (A) the commission by the Employee of a
willful act (including, without limitation, a dishonest or
fraudulent act) or a grossly negligent act, or the willful or
grossly negligent omission to act by the Employee, which is
intended to cause, causes, or is reasonably likely to cause
material harm to the Employer (including harm to its business
reputation), (B) the indictment of the Employee for the
commission or perpetration by the Employee of any felony or any
commission or perpetration by the Employee of any felony or any
crime involving dishonesty, moral turpitude or fraud, (C) the
material breach by the Employee of this Agreement that, if
susceptible of cure, remains uncured ten days following written
notice to the Employee of such breach, (D) the exhibition by the
Employee of a standard of behavior within the scope of his
employment that is materially disruptive to the orderly conduct
of the Employer's business operations (including, without
limitation, substance or alcohol abuse) to a level which, in the
Board of Directors' good faith and reasonable judgment, is
materially detrimental to the Employer's best interest, that if
susceptible of cure, remains uncured ten days following written
notice to the Employee of such specific in appropriate behavior,
or (E) the failure of the Employee to render the services
hereunder in accordance with a reasonable performance standard
determined by the Board of Directors; or
(iv) upon 30 days written notice thereof to the Employee from the
Employer (termination "Without Cause"), provided that in the
event of any such termination Without Cause, Section 4(e) shall
be applicable thereto.
(b) If the Employee's employment is terminated because of the Employee's
death, the Employee's estate shall receive (i) any sums due him as
Base Salary and reimbursement of expenses through the end of the month
during which death occurred, (ii) any bonus earned or accrued under
the quarterly Bonus Plan through the date of death (including any
amounts awarded for previous years but which were not yet vested), and
(iii) a pro rata share of any annual bonus with respect to the current
fiscal year which had been earned as of the date of the Employee's
death.
(c) During the period of any disability leading up to the termination of
the Employee's employment as a result of Disability, the Employer
shall continue to pay the Employee his full Base Salary at the rate in
effect and all perquisites and other benefits (other than any bonus)
until the Employee becomes eligible for benefits under the long-term
disability plan or insurance program maintained by the Employer,
provided that the amount such payments to the Employee shall be
reduced by the sum of the amounts, if any, payable to the Employee for
the same period under any disability benefit or pension plan of the
Employer or its subsidiaries. Furthermore, the Employee shall receive
(i) any bonus earned or accrued under the Bonus Plan through the date
of incapacity (including any amounts awarded for previous years but
which were not yet vested) and (ii) a pro rata share of any annual
bonus with respect to the current fiscal year which had been earned as
of the date of the Employee's Disability.
(d) If the Employee's employment is terminated by the Employer for Cause
as provided above, or if the Employee resigns (except for a
termination of employment pursuant to Section 4(f) or a termination of
employment by the Employee pursuant to subsection (i) below), the
Employee shall receive (i) any sums due him as Base Salary and
reimbursement of any expenses, (ii) any bonus earned or accrued under
the Bonus Plan through the date of termination and, and (iii) a pro
rata share of any annual bonus with respect to the current fiscal year
which had been earned as of the date of such termination or
resignation; provided, however, that any Options not yet vested as of
the date of such termination or resignation shall lapse as of such
date of termination or resignation.
(e) If the Employee's employment is terminated by the Employer Without
Cause, the Employer shall pay to the Employee (i) severance
compensation in an amount equal to 100% of his then-current annual
Base Salary multiplied by three (3), which amount shall be paid in 36
equal monthly installments commencing on the 1st day of the month
following such termination; (ii) any bonus earned or accrued under the
Bonus Plan through the date of termination, and (ii) a pro rata share
of any annual bonus with respect to the current fiscal year which had
been earned as of the date of the Employee's termination; provided,
however, that Section 4(f) shall apply instead of this Section 4(e) to
any termination Without Cause after a Change in Control.
(f) Upon a Change in Control, the Employee may terminate his employment
hereunder for any reason upon delivery of notice to the Employer
within a 90-day period beginning upon the occurrence of a Change in
Control. If the Employee terminates his employment pursuant to this
Section 4(f) or if the Employer terminates the Employee Without Cause
after a Change in Control, the restrictive covenants contained in
Section 9 shall apply and, in addition, the Employee shall be entitled
to the following: (i) the Employer shall pay the Employee in cash
within 15 days of such termination any sums due him as base salary
and/or reimbursement of expenses through the date of such termination,
plus any bonus earned or accrued under the Bonus Plan through the date
of termination (including any amounts awarded for previous years but
which were not yet vested) and a pro rata share of any bonus with
respect to the current fiscal year which had been earned as of the
date of the Employee's termination and (ii) the Employer shall pay the
Employee in cash within 15 days of such termination date one lump sum
payment in an amount equal to the Employee's then current annual Base
Salary multiplied by three (3).
(g) With the exceptions of the provisions of this Section 4, and the
express terms of any benefit plan under which the Employee is a
participant, upon termination of the Employee's employment, the
Employer shall have no obligation to the Employee for, and the
Employee waives and relinquishes, any further compensation or benefits
(exclusive of COBRA benefits). At the time of termination of the
employment, the Employee shall enter into a form of release
acknowledging such remaining obligations and discharging the Employer,
as well as the Employer's officers, directors and employee with
respect to their actions for or on behalf of the Employer, from any
other claims or obligations arising out of or in connection with the
Employee's employment by the Employer, including the circumstances of
such termination.
(h) In the event that the Employee's employment is terminated for any
reason and the Employee serves as a Director of the Employer or of any
subsidiary of the Employer, the Employee shall (and does hereby)
tender his resignation from such positions effective as of the date of
termination.
(i) If the Employee shall terminate his employment as a result of (i) any
failure to elect or reelect, or appoint or reappoint, the Employee to
the position of President and CEO, unless agreed to by Employee by
writing; (ii) any material change by the Employer in the Employee's
function, duties, responsibility, importance or scope from the
position and attributes thereof described in this Agreement, unless
agreed to by Employee in writing; (iii) any requirement that the
Employee perform substantially all of his duties outside the
metropolitan Atlanta, Georgia area; (iv) the liquidation, dissolution,
consolidation or merger of the Employer other than in a Change of
Control transaction; or (v) any other material breach of this
Agreement by the Employer which shall not be cured within 30 days
after receipt of written notice of the same from the Employee, then
the Employee shall be paid the amounts determined pursuant to
subsection (f) above.
(j) The parties intend that the severance payments and other compensation
provided herein are for reasonable compensation for the Employee's
service to the Employer and shall not constitute "excess parachute
payments" within the meaning of Section 280G(b) of the Internal
Revenue Code of 1986 and any regulations thereunder. In the event that
the Employer's independent accountants acting as auditors for the
Employer on the date of a Change in Control determine that the
payments provided herein constitute "excess parachute payments", then
the Employee' compensation payable hereunder shall be decreased so as
to equal an amount that is $1.00 less than three times the Employee's
"base amount", as that term is defined in Section 280G(b) of the
Internal Revenue Code, if, and only if, reducing the Employee's
compensation will put the Employee in a better after-tax position than
if the Employee's compensation was not reduced.
5. OWNERSHIP OF WORK PRODUCT.
The Employer shall own all Work Product arising during the course of the
Employee's employment (prior, present or future). For purposes hereof, "Work
Product" shall mean all intellectual property rights, including all Trade
Secrets, U.S. and international copyrights, patent rights, and other
intellectual property rights in any programming, documentation, technology, work
of authorship or other work product that relates to the Employer, its business
or its customers and that Employee conceives, develops, or delivers to the
employer hereunder, at any time during his employment, during or outside normal
working hours, in or away from the facilities of the Employer, and whether or
not requested by the Employer. The Employee agrees to take such actions and
execute such further acknowledgments and assignments as the Employer may
reasonably request to give effect to this provision.
6. PROTECTION OF TRADE SECRETS.
The Employee agrees to maintain in strict confidence, except as necessary to
perform his duties for the Employer, and the Employee agrees not to use or
disclose, any Trade Secrets of the Employer during or after his employment. For
the purposes hereof, "Trade Secret" means information, including, without
limitation, technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a process, a drawing,
financial data, financial plans, product plans, information on customers or
suppliers, which (i) derives economic value, actual or potential, from not being
generally know to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use; and (ii) is
the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.
7. PROTECTION OF OTHER CONFIDENTIAL INFORMATION.
In addition, the Employee agrees to maintain in strict confidence and, except as
necessary to perform his duties for the Employer, not to use or disclose any
Confidential Business Information of the Employer during his employment and for
a period of 24 months following termination of the Employee's employment.
"Confidential Business Information" shall mean any internal, non-public
information (other the Trade Secrets already addressed above) concerning the
Employer's financial position and results of operations (including revenue,
assets, net income, etc.); annual and long-range business plans; product or
service plans; marketing plans and methods; site plans, training, educational
and administrative manuals; customer and supplier information and purchase
histories; and employee lists. The provisions of Sections 6 and 7 above shall
also apply to protect Trade Secrets and Confidential Business Information of
third partied provided to the Employer under an obligation of secrecy.
8. RETURN OF MATERIALS.
The Employee shall surrender to the Employer, promptly upon its request and in
any event upon termination of the Employee's employment, all media, documents,
notebooks, computer programs, handbooks, data files, models, samples, price
lists, drawings, customer lists, prospect data, or other material in the
Employee's possession or control, including all copies thereof, relating to the
Employer, its business, or its customers.
9. RESTRICTIVE COVENANTS, AND COVENANT OF NON-DISPARAGEMENT AND COOPERATION.
(a) NO SOLICITATION OF CUSTOMERS. During the Employee's employment with
the Employer and for a period of 24 months thereafter, the Employee
shall not (except on behalf of or with the prior written consent of
the Employer), either directly or indirectly, on the Employee's own
behalf or in the service or on behalf of others, solicit or attempt to
solicit Customers to induce or encourage them to acquire or obtain
from anyone other than the Employer or its subsidiaries any product or
service competitive with or substitute for any of the Employer's
Products. For purposes of this Section, "Customer" refers to any
person or group of persons with whom the Employee had direct material
contact with regard to the selling, delivery, or support of the
Employer's products, including servicing such person's or group's
account, during the period of 12 months preceding the solicitation
date. The "Employer's Products" refers to the products and services
that the Employer or any of its subsidiaries or affiliates or
franchisees offered or sold within six months of the solicitation
date. This restriction does not apply after a Change in Control.
(b) NO RECRUITMENT OF PERSONNEL. During the Employee's employment with the
Employer and for a period of 24 months thereafter, the Employee shall
not, either directly or indirectly, on the Employee's own behalf or in
the service or on behalf of others, solicit or induce any employee of
the Employer or any of its subsidiaries or affiliates to leave his or
her position with the Employer (or the subsidiary or affiliate), or
recruit or attempt to recruit such persons to accept employment or any
other position with another business.
(c) INDEPENDENT PROVISIONS. The provisions in each of the above Sections
9(a) and 9(b) are independent, and the lack of enforceability of any
one provision shall not affect the enforceability of any other
provision.
(d) COVENANT OF NON-DISPARAGEMENT AND COOPERATION. The Employee agrees
that he shall not at any time during or following the Term make any
remarks disparaging the conduct or character of the Employer or the
Employer's current or former agents, employees, officers, directors,
successors or assigns. In addition, the Employee agrees to cooperate
with the Employer, at no extra cost, in any litigation or
administrative proceedings (e.g., EEOC charges) involving any matters
with which the Employee was involved during the Employee's employment
with the Employer. The Employer shall reimburse the Employee for
travel expenses approved by the Employer incurred in providing such
assistance. This Section 9(d) shall survive the termination or
expiration of this Agreement.
10. SUCCESSORS, BINDING AGREEMENT.
This Agreement shall be binding upon and shall inure to the benefit of the
Employer and its successors and assigns. Neither this Agreement nor any right or
interest hereunder shall be assigned or transferred by the Employee, his
beneficiaries or legal representatives, except by will or by the laws of descent
and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Employee's legal personal representative.
11. NOTICE.
For the purpose of this Agreement, notices and all other communications provided
for in the Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, addressed to the respective address last given by
each party to the other; provided, however, that all notices to the Employer
shall be directed to the attention of the Employer with a copy to the Secretary
of the Employer. All notices and communication shall be deemed to have been
received on the date of delivery thereof.
12. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia without giving effect to any conflict of
law principles thereof that would result in the application of the laws of any
other jurisdiction. Any action brought by any party to this Agreement shall be
brought and maintained in a court of competent jurisdiction in the State of
Georgia.
13. WAIVER.
Failure or delay of either party to insist upon compliance with any provision
hereof shall not operate as, and is not to be construed as, a waiver or
amendment of such provision. Any express waiver of any provision of this
Agreement shall not operate and is not to be construed as a waiver of any
subsequent breach, whether occurring under similar or dissimilar circumstances.
14. ENFORCEMENT.
The Employee agrees that in the event of any breach or threatened breach by the
Employee of any covenant contained in Sections 6, 7, 9(a), or 9(b) hereof, the
resulting injuries to the Employer would be difficult or impossible to estimate
accurately, even though injury or damages may result. Accordingly, an award of
legal damages, if without relief, may be inadequate to protect the Employer. The
Employee, therefore, agrees that in the event of any such breach, the Employer
shall be entitled to obtain from a court of competent jurisdiction an injunction
to restrain the breach or anticipated breach of any such covenant, and to obtain
any other available legal, equitable, statutory, or contractual relief.
15. SAVING CLAUSE.
The provisions of this Agreement shall be deemed severed and the invalidity or
lack of enforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision or clause of
this Agreement, or portion thereof, shall be held by any court or other tribunal
of competent jurisdiction to be illegal, void, or not enforceable in such
jurisdiction, the remainder of such provision shall not be thereby affected and
shall be given full effect, without regard to the invalid portion. It is the
intention of the parties that, if any court construes any provision or clause of
this Agreement, or any portion thereof, to be illegal, void, or not enforceable
because of the duration, area, or matter of such provision, and, in its reduced
form, such provision shall be enforceable.
16. CERTAIN DEFINITIONS.
(a) "CHANGE IN CONTROL" shall mean the occurrence during the Term of any
of the following events, unless such event is a result of a
Non-Control Transaction.
(i) The individuals who, as of the date of this Agreement, are
members of the Board of Directors of the Employer (the "Incumbent
Board") cease for any reason to constitute at least a majority of
the Board of Directors of the Employer; provided however, that if
the election, or nomination for election by the Employer's
shareholders, of any new director was approved in advance by a
vote of at least a majority of the Incumbent Board, such new
director shall, for purposes of this Agreement, be considered as
a member of the Incumbent Board.
(ii) An acquisition (other that directly from the Employer) of any
voting securities of the Employer (the "Voting Securities") by
any "Person" (as the term "person" is used for purposed of
Section 13 (d) or 14(d) of the Securities Exchange Act of 1934)
immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 50% or more of the combined voting power of the
Employer's then outstanding Voting Securities.
(b) "NON-CONTROL TRANSACTION" shall mean a transaction described below:
(i) the shareholders of the Employer, immediately before such merger,
consolidation or reorganization, own, directly or indirectly,
immediately following such merger, consolidation or
reorganization, at least 50% of the combined voting power of the
outstanding voting securities of the corporation resulting from
such merger, consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their
ownership of the Voting Securities immediately before such
merger, consolidation or reorganization; and
(ii) immediately following such merger, consolidation or
reorganization, the number of directors on the board of directors
of the Surviving Corporation who were members of the Incumbent
Board shall at least equal the number of directors who were
affiliated with or appointed by the other party to the merger,
consolidation, or reorganization.
17. ENTIRE AGREEMENT.
This Agreement, and the agreements contemplated by this Agreement, constitute
the entire agreement between the parties hereto and supersedes all prior
agreements, if any, understandings and arrangements, oral or written, between
the parties hereto with respect to the subject matter hereof.
18. OFFICER'S INDEMNIFICATION AGREEMENT.
In order to provide to the Employee assurances with respect to the protection
provided against liabilities that he may incur in the performance of his duties
to the Employer, the Employer agrees to provide to the Employee, within 10 days
after the date of this Agreement, an Indemnification Agreement in form and
substance satisfactory to the Employee.
19. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be executed and
its seal to be affixed hereunto by its officers and/or directors duly
authorized, and the Employee has signed and sealed this Agreement, with the
original Agreement effective as of the date of first above written and all
amendments to the original Agreement incorporated herein effective as of the
_____, day of _____________, 2006.
SPEEDEMISISONS, INC. EMPLOYEE
By:________________________________ ____________________________________
Xxxxxxx X. Xxxxxxxxxxx
Name:
Title: [SEAL]
[CORPORATE SEAL]
