EXHIBIT 10.14
EMISSIONS TESTING, INC DBA SPEEDEMISSIONS
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into between EMISSIONS TESTING, INC., dba SPEEDEMISSIONS, a Georgia
corporation (the "Employer"), and XXXXXXX X. PARLONTEIRI, an individual resident
of Georgia (the "Employee"), as of the 18th day of September, 2000 (the
"Effective Date").
The Employer wishes to employ the Employee to serve as its
President and Chief Executive Officer, and the Employee is willing to serve the
Employer in such capacity, all on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained herein, and other 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:
1. EMPLOYMENT. The Employer agrees to hire and employ the Employee,
and the Employee agrees to serve the Employer, as President and Chief Executive
Officer in accordance with and subject to the terms and conditions set forth
herein. The Employee shall have such authority, duties and responsibilities as
are consistent with his position and which may be set forth in this Agreement or
assigned by the Board of Directors of the Employer (the "Board") from time to
time. The Employee shall devote his full business time, attention, skill and
efforts to the performance of his duties and responsibilities 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 (solely as a passive investor) in up to
1% of the publicly-traded stock or securities of any such company whose stock or
securities are traded on a national exchange.
2. TERM. Unless earlier terminated as provided herein, the Employee's
employment under this Agreement shall be for a continuing term (the "Term") of
three years from the Effective Date.
3. COMPENSATION, QUARTERLY PERFORMANCE BONUS, STOCK AWARD, BENEFITS
AND EXPENSE REIMBURSEMENT.
(a) BASE SALARY. The Employer shall pay the Employee a salary
at a rate of $120,000 per annum in accordance with the salary payment practices
of the Employer; provided, however, that during the period September 18, 2000
through and including December 31, 2000,
the Employer shall pay the Employee a salary at a rate of $60,000 per annum in
accordance with such practices.
(b) QUARTERLY PERFORMANCE BONUS. The Employee shall be
eligible to receive a cash bonus, on a calendar quarterly basis, based on the
Employee's achievement of specified goals and criteria for the Employer. These
goals and criteria shall be developed (and periodically updated as deemed
appropriate) by the Compensation Committee (the "Committee") of the Board in
consultation with the Employee. Such goals and criteria, as the same exist from
time to time, shall be in writing and attached to and made a part of this
Agreement (the "Bonus Plan"). Unless provided otherwise in any particular Bonus
Plan, the 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 known to the
Board. Any bonus so determined by the Committee will vest in the 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 by the Employer within a
reasonable period after the Committee's final determination. For purposes of
this Section 3(b), the first calendar quarter to be considered for a bonus
payment shall cover the months of October, November and December 2000 (the
"First Quarter") (and thereafter, every calendar quarter during the Term). The
amount of the bonus payable to the Employee for the First Quarter shall be
$10,000, and the amount of all subsequent quarterly cash bonus (assuming the
applicable goals and criteria are satisfied by the Employer) shall not be less
than $10,000.
(c) STOCK OPTIONS. The Employer agrees that the Employee shall
be entitled to receive an option to purchase up and including 500,000 shares of
the Employer's common stock, no par value per share, pursuant to a stock option
plan adopted or to be adopted by the Employer on or prior to December 31, 2000,
all as to be provided therein (the Plan"). The option shall be granted to the
Employee as soon as practical after the Employer's shares are traded in the
public market. The per share exercise price under the option shall be equal to
the per share fair market value of the Employer's common stock, as determined by
the committee established, or to be established, under the Plan, on the date the
option is granted. The option shall vest in favor of the Employee as to 250,000
shares on the date on which the option is granted to the Employee, and the
option shall vest in favor of the Employee as to the remaining 250,000 shares on
January 1, 2002. The option otherwise will be issued in accordance with, and
subject to, the terms and conditions of the Plan.
(d) EMPLOYEE BENEFITS. The Employee shall participate in any
retirement, welfare, deferred compensation, life and health insurance, and other
benefit plans or programs of the Employer now or hereafter applicable to the
Employee or applicable generally to employees of the Employer, as determined by
the Board. In addition, the Employer shall pay (or reimburse the Employee for)
the actual cost of the Employee's COBRA expenses (for himself and his wife), as
and when due and payable to the Employee's former employer or health insurance
company, until the Employer adopts and puts into effect a health plan for its
executive employees.
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(e) EXPENSE REIMBURSEMENT. The Employer shall reimburse the
Employee for reasonable travel and other expenses related to the Employee's
duties that are incurred and accounted for in accordance with the Employer's
standard business practices. In addition, the Employer will pay (or reimburse
the Employee for) the Employee's monthly dues at the Vinings Club in Atlanta,
Georgia, and his professional association dues and fees, so long as the amounts
are reasonable and approved in writing from time to time by the Board.
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 a period of 60
days which, in the opinion of the Board, renders him
unable to perform the essential functions of his job
and for which reasonable accommodation is unavailable.
For purposes of this Agreement, a "disability" is
defined as a physical or mental impairment that
substantially limits one or more major life activities,
and a "reasonable accommodation" is one that does not
impose an 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
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 abuse or sexual misconduct) to a
level which, in the Board's 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
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Employee of such specific inappropriate behavior, or
(E) the failure of the Employee to render the services
hereunder in accordance with an appropriate performance
standard determined in the sole discretion of the
Board; 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) EMPLOYEE'S DEATH. If the Employee's employment is
terminated because of the Employee's death, the Employee's estate shall receive
any sums due him as base salary and/or reimbursement of expenses through the end
of the month during which death occurred, plus any bonus vested in favor of the
Employee under the Bonus Plan through the date of death.
(c) EMPLOYEE'S DISABILITY. During the period of any incapacity
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 then in effect and all benefits provided for hereunder (other than
any bonus under the Bonus Plan) until the Employee becomes eligible for benefits
under any long-term disability plan or insurance program maintained by the
Employer, provided that the amount of any 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 any of
its subsidiaries. Furthermore, the Employee shall receive any bonus vested in
favor of the Employee under the Bonus Plan through the date of incapacity.
(d) TERMINATION FOR CAUSE. If the Employee's employment is
terminated for Cause as provided above, or if the Employee resigns, the Employee
shall receive any sums due him as base salary and/or reimbursement of expenses
through the date of such termination, but Employee will thereby forfeit any
rights in any bonus that has not vested under the terms of the Bonus Plan or the
terms hereof.
(e) TERMINATION WITHOUT CAUSE. If the Employee's employment is
terminated Without Cause, the Employer shall pay to the Employee severance
compensation in an amount equal to 100% of his then-current monthly base salary
each month for one year from the date of termination, plus any bonus vested in
favor of the Employee under the Bonus Plan through the date of termination.
(f) RELEASE BY EMPLOYEE. 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,
regardless of cause or reason, 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
employment, the Employee shall enter into and deliver to the Employer a form of
release acknowledging such remaining obligations and discharging the Employer,
as well as the
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Employer's officers, directors and employees 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.
(g) RESIGNATION OF DIRECTORSHIPS. 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.
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 (defined below), U.S. and
international copyrights, patentable inventions, 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 or that
otherwise arises out of the services provided by the Employee 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. If the Work Product contains any materials,
programming or intellectual property rights that the Employee conceived or
developed prior to, and independent of, the Employee's work for the Employer,
the Employee agrees to identify the pre-existing items to the Employer, and the
Employee grants the Employer a worldwide, unrestricted, royalty-free right,
including the right to sublicense such items. 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 and, except as necessary to perform his duties for the
Employer, 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 a list of actual or potential customers or
suppliers, which: (i) derives economic value, actual or potential, from not
being generally known 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
than Trade Secrets already addressed above) concerning the Employer's financial
position and results of operations (including revenues, assets, net income,
etc.); annual
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and long-range business plans; product or service plans; marketing plans and
methods; 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 parties 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 of any nature whatsoever (in tangible or electronic form) in the
Employee's possession or control, including all copies thereof, relating to the
Employer, its business, or its customers. Upon the request of the Employer,
Employee shall certify in writing compliance with the foregoing requirement.
9. RESTRICTIVE COVENANTS.
(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 offered or sold within six months of the solicitation
date.
(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 or
consultant to 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 unenforceability of any
one provision shall not affect the enforceability of any other provision.
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
assignable or transferable 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.
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11. NOTICES. For the purposes 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
addresses 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 communications 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 the conflict of laws principles thereof. Any action brought by any
party to this Agreement shall be brought and maintained in a court of competent
jurisdiction in State of Georgia.
13. NON-WAIVER. Failure of the Employer to enforce any of the
provisions of this Agreement or any rights with respect thereto shall in no way
be considered to be a waiver of such provisions or rights, or in any way affect
the validity of this Agreement.
14. ENFORCEMENT. The Employee agrees that in the event of any breach
or threatened breach by the Employee of any covenant contained in Section 6, 7,
9(a), or 9(b) hereof, the resulting injuries to the Employer would be difficult
or impossible to estimate accurately, even though irreparable injury or damages
would certainly result. Accordingly, an award of legal damages, if without other
relief, would 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. Should the
Employer have cause to seek such relief, no bond shall be required from the
Employer, and the Employee shall pay all attorney's fees and court costs which
the Employer may incur to the extent the Employer prevails in its enforcement
action.
15. SAVING CLAUSE. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability 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
unenforceable 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 unenforceable because of the duration of such provision or the area or
matter covered thereby, such court shall reduce the duration, area, or matter of
such provision, and, in its reduced form, such provision shall then be
enforceable and shall be enforced.
16. ENTIRE AGREEMENT. This Agreement constitutes 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. This Agreement
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supercedes in its entirety the Employment Agreement between the parties hereto
dated September 18, 2000.
17. 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 thereunto duly
authorized, and the Employee has signed and sealed this Agreement, effective as
of the date first above written.
EMISSIONS TESTING, INC. dba
SPEEDEMISSIONS
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Board Member
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EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------------
XXXXXXX X. XXXXXXXXXXX
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