CONSULTING AGREEMENT
AGREEMENT dated as of the 4th day of June, 1998, by and between
ENVIROTEST SYSTEMS CORP., a Delaware corporation ("Envirotest"), and Xxx Xxxx
(the "Consultant").
WHEREAS, Envirotest and the Consultant have entered into that certain
Employment Agreement, dated as of January 1, 1996, as amended (the
"Employment Agreement"); and
WHEREAS, Section 8(b)(i), (ii), (iii) and (iv) and Section 21 of the
Employment Agreement contemplate that, in the circumstances specified
therein, Envirotest and the Consultant will enter into an agreement for the
provision of consulting services; and
WHEREAS, Envirotest and the Consultant desire to enter into an agreement
specifying the terms and conditions for the consulting services to be
provided by the Consultant to Envirotest pursuant to Section 8(b)(i), (ii),
(iii) or (iv) or Section 21 of the Employment Agreement, as applicable.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises of each party to the other contained herein, it is hereby mutually
agreed as follows:
1. EFFECTIVENESS; PROVISION OF SERVICES. (a) This Agreement shall
become effective on the Effective Date (as defined below). During the
Consulting Period or Additional Consulting Period, as applicable, the
consultant shall provide such financial consulting services as are reasonably
requested in writing by the chief executive officer of Envirotest and as are
consistent with the Consultant's duties as in effect on the date hereof and
as reflected in the Employment Agreement, PROVIDED that the Consultant is
available to provide such services, the Consultant's availability to be
determined solely by the Consultant. All capitalized terms used in this
Agreement but not otherwise defined herein shall have the meanings specified
in the Employment Agreement.
(b) In the event that Envirotest terminates the employment of the
Consultant during the Term, as contemplated by Section 8(b)(i) of the
Employment Agreement, the "Effective Date," and the first day of the
Consulting Period, shall be the first business day after such termination is
effective.
(c) In the event that the Consultant has given Envirotest written
notice terminating his employment with Envirotest as contemplated by Section
8(b)(ii), (iii) or (iv) of the Employment Agreement, as applicable, the
"Effective Date," and the first day of the Consulting Period, shall be the
first business day after such termination is effective.
(d) In the event that Envirotest elects to retain the Consultant's
services pursuant to Section 21 of the Employment Agreement, the "Effective
Date," and the first day of the Additional Consulting Period, shall be the
date agreed upon in writing between the Consultant and
Envirotest. It is understood and agreed that Section 21 of the Employment
Agreement shall not be applicable where Section 8(b) of the Employment
Agreement otherwise applies.
2. COMPENSATION AND BENEFITS. In consideration for the consulting
services to be rendered by the Consultant pursuant to this Agreement,
Envirotest shall compensate the Consultant as follows:
(a) In the event that this Agreement becomes effective pursuant to
Section 8(b)(i), (ii), (iii) or (iv) of the Employment Agreement, the
Consultant's compensation and benefits shall be as specified in Section 8(b)
of the Employment Agreement.
(b) In the event that this Agreement becomes effective pursuant to
Section 21 of the Employment Agreement, the Consultant's compensation and
benefits shall be as specified in that Section.
3. ASSIGNMENT. Neither this Agreement nor any interest thereunder shall
be assignable by either party unless such assignment is mutually agreed to in
writing by the parties hereto; PROVIDED, HOWEVER, that Envirotest may assign
this Agreement to any corporation with which Envirotest may merge or
consolidate, or to which Envirotest may assign substantially all of its
assets, without obtaining the agreement of the Consultant.
4. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, to the other party
hereto at the following address:
If to the Consultant:
Xxxxxxxx Xxxx
00000 Xxxxxxxx Xx. - Xxx Xxxxx
Xxxxxxxx, XX 00000
If to Envirotest:
Envirotest Systems Corp.
000 Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
5. ADDITIONAL PROVISIONS. (a) This Agreement shall be governed by the
laws of the State of California applicable to agreements made and to be
performed therein. The titles or headings in this Agreement are for
convenience only, and shall not affect the interpretation or construction of
any provision hereof.
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(b) The relationship of the Consultant to Envirotest is that
of an independent contractor, and nothing herein shall be construed as
creating any other relationship. The Consultant may adopt such arrangements
as the Consultant may desire in his sole discretion with regard to the
details of the consulting services to be performed hereunder, the hours
during which said services are to be provided and the place or places where
said services are to be furnished. The Consultant shall be obligated to pay
any and all applicable state and federal taxes.
(c) All materials and equipment furnished by Envirotest, and
all materials and equipment the cost of which shall be reimbursed to the
Consultant by Envirotest hereunder, are to be and remain the sole property of
Envirotest, and are to be returned to Envirotest within ninety days after the
expiration of this Agreement.
(d) The Consultant agrees to promptly disclose to Envirotest
all inventions, discoveries and improvements made or perfected in the
performance of the services furnished to Envirotest by the Consultant, or by
others associated with or used by the Consultant in the conduct of the
services furnished hereunder. All such inventions, discoveries or
improvements and patents therefor shall become the exclusive property of
Envirotest. The Consultant hereby undertakes and agrees to execute such
assignments and other papers which, in the opinion or Envirotest, are
necessary at any time to permit the filing and prosecution of any
applications for patents covering the inventions, discoveries or improvement
or are otherwise required for compliance with the requirements of this
Section 5(e). In the event that others are, or may hereafter become,
associated with the Consultant or be used by the Consultant in connection
with the services provided hereunder, the Consultant agrees to procure from
such persons similar agreements and to cooperate with Envirotest in procuring
execution by such persons of such assignments and other papers as may be
required.
(e) No modification of this Agreement shall be valid unless
in writing and signed by the duly authorized representatives of the parties
hereto.
6. ENTIRE AGREEMENT. This Agreement (together with Sections
9, 20 and 22 of the Employment Agreement and the other provisions of the
Employment Agreement specifically referred to herein) represents the entire
agreement between the parties with respect to the subject matter hereof and
supersedes any and all understandings, prior agreements and representations.
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed by their duly authorized representatives as of the
day and year first above written.
ENVIROTEST SYSTEMS CORP.
By: /s/ XXXX XXXXXX
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Name: XXXX XXXXXX
Title: Executive Vice President
CONSULTANT
/s/ XXXXXXXX XXXX
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Xxxxxxxx Xxxx
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