Exhibit 10.10 |
EMPLOYMENT AND NON-COMPETITION AGREEMENT |
This EMPLOYMENT AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into
as of the 1st day of December, 2007, by and between GEER TANK TRUCKS, INC., a [Texas] corporation (the
“Company”) and LORI GEER SMITH (the “Executive”).
WHEREAS, pursuant to a Stock Purchase Agreement (the “Acquisition Agreement”) dated as of July 3,
2007 by and among Charles Randall Geer, Jana Geer Douglas, Donna Osteen Reich, Jerrye Geer Faltyn and Lori
Geer Smith (the “Sellers”), Company and Continental Fuels, Inc. (the “Buyer”), the Buyer intends to acquire all of the
outstanding stock of the Company from the Sellers (the “Acquisition”);
WHEREAS, the Executive is a Seller and shall receive cash and other remuneration upon the closing of the
Acquisition; and
WHEREAS, it is a condition precedent to effectuating the Acquisition that the Executive enter into an
employment and non-competition agreement with the Company in the form hereof, which agreement supersedes
and replaces any previous employment agreement the Executive may have had with Seller or any of its affiliates;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, and
as an inducement to the Company to consummate the Acquisition, it is agreed as follows:
1. Employment. The Company hereby agrees to employ the Executive and the Executive hereby
agrees to be employed by the Company upon the terms and conditions herein set forth.
2. Term of Employment. Employment shall be for a term commencing on the date hereof and,
subject to termination under Sections 7 and 8, expiring one (1) year from the date hereof (the “Term”). Following the
expiration of the Term, the Executive shall be an at-will employee of the Company.
3. Duties of the Executive. The Executive shall have such duties and responsibilities as may be
prescribed by the Board of Directors (the “Board”) of the Company. The Executive shall devote her full time and best
efforts to the business of the Company.
&n bsp; 4. Compensation. During the Term, the Company shall pay to the Executive a base salary of Eighty
Thousand Dollars ($80,000) per annum which base salary may be adjusted from time to time by the Company,
payable at the times and in the manner consistent with the Company’s general policies regarding compensation of
executive employees. Such base salary shall include any salary reduction contributions elected by the Executive to
(i) any plan for which the Executive may be eligible sponsored by the Company or its affiliates that includes a cash-
or-deferred arrangement under Section 401(k) of the Code (if any), or (ii) any “cafeteria plan” for which the Executive
may be eligible sponsored by the Company or its affiliates under Section 125 of the Code (i.e., any such
contributions elected by the executive will be deducted from the base salary set forth on Exhibit B).
5. Executive Benefits. In addition to the compensation described in Section 4, the Company shall
make available to the Executive, subject to the terms and conditions of the applicable plans, including without
limitation the eligibility rules, participation for the Executive and her eligible dependents in the employee benefit
plans or arrangements and such other usual and customary benefits generally available to employees of the
Company.
6. Place of Performance. In conne ction with employment by the Company, unless otherwise agreed
by the Executive, the Executive shall be based at offices located in Jacksboro, Texas (except for travel reasonably
required for Company business), provided that the Company maintains an office and operations in Jacksboro,
Texas.
7. Termination.
(a) Involuntary Termination. The Executive’s Disability (as defined herein) during the Term shall
constitute an involuntary termination of employment hereunder, unless the Board expressly extends such
employment for a specified time thereafter. The Executive’s death during the Term shall constitute an involuntary
termination of employment for purposes of eligibility for Termination Payments and Benefits as provided in Section 8.
(b) Voluntary Termination. The Executive may voluntarily terminate the Agreement at any time by
providing 90 days prior written notice to the Company as provided in Section 13(d).
(c) Compensation and Benefits. Subject to Section 8 and any benefit continuation requirements of
applicable laws, in the event the Executive’s employment hereunder is volu ntarily or involuntarily terminated for any
reason whatsoever, the compensation and benefits obligations of the Company under Sections 4 and 5 shall cease
as of the effective date of such termination, except for any compensation and benefits earned or accrued but unpaid
through such date.
8. Termination Payments and Benefits.
(a) If the Executive’s employment hereunder is involuntarily terminated by the Company other than for
Cause (as defined herein) prior to the end of the Term, then the Company shall be obligated to pay, subject to the
condition precedent that the Executive enter into a mutual release, non-disparagement and settlement agreement
with the Company pursuant to which the Company and the Executive unconditionally release all claims against the
other arising under the employment contemplated hereby other than the Executive’s rights to obtain the payments
and benefits described in this Section 9, to the Executive severance pay of three month’s salary (“Termination
Payment”).
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(b) Termination for Cause. For purposes of this Agreement, “Cause” shall mean:
(i) the uncured failure or refusal by the Executive to perform her duties (other than any such
failure resulting from the Executive’s incapacity due to Disability), after demand;
(ii) inattention to duty or any other willful, reckless or negligent act (or omission to act) by
Employee, which, in the good faith judgment of the Company, may injure the Company, including the failure to follow
the policies and procedures of the Company;
(iii) the engaging by the Executive in fraud, misappropriation of funds, violation of any law,
judgment, decree, or order of any governmental authority or misappropriation of any corporate opportunity which in
each case is materially injurious to the Company, or the Executive being involved with the commission of a crime
that was harmful to the goodwill and financial standing of the Company, or
(iii) the breach of any provision of this Agreement.
(c) Disability Defined. “Disability” shall mean the Executive’ ;s incapacity due to physical or mental
illness to substantially perform her duties on a full-time basis for three (3) consecutive months and within thirty (30)
days after a notice of termination is thereafter given by the Company the Executive shall not have returned to the full-
time performance of the Executive’s duties; provided, however, if the Executive shall not agree with a determination
to terminate him because of Disability, the question of the Executive’s disability shall be subject to the certification of
a qualified medical doctor agreed to by the Company and the Executive or, in the event of the Executive’s incapacity
to designate a doctor, the Executive’s legal representative. In the absence of agreement between the Company and
the Executive, each party shall nominate a qualified medical doctor and the two doctors shall select a third doctor,
who shall make the determination as to Disability.
(d) Effect of Long-Term Disability. If the Executive also becomes entitled to receive benefits under an
insured long-term disability insurance plan (“LTD Plan”) now or hereafter paid for by the Company, then the
Executive’s termination benefits under this Agreement (calculated on a monthly basis) shall be reduced by the
amount of the benefits paid under such LTD Plan. No such reduction shall be made for benefits paid to the
Executive under a personal disabilit y income plan or such other disability income plan paid for by the Executive,
whether or not the plan was obtained through a group-sponsored or Company-related program.
(e) Forfeiture. In the event of any breach by the Executive of any provision of this Agreement, the
Executive’s rights to receive a Termination Payment hereunder shall be forfeited.
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(f) Termination for Cause or Voluntary Termination. Executive agrees and acknowledges that a
significant asset to the Company are the personal relationships between the Executive and the Company’s
customers, and that during the Term, Executive shall use best efforts to introduce Buyer and assist Buyer and
Buyer’s representatives and agents to such customers in furtherance of developing and enhancing such business
relationships. As a result, if the Executive voluntarily terminates this Agreement or is terminated by the
Company for Cause pursuant to Section 8, such termination would materially impact the value of the
Company, and thus would be a material breach of S ection 4.3 of the Acquisition Agreement. The parties to
this Agreement agree that damages for Executive’s breach of Section 4.3 of the Acquisition Agreement are
extremely impracticable or impossible to predict or ascertain with any certainty, and accordingly,
Executive’s liability for such breach shall be the payment of Executive’s pro rata portion of the purchase
price provided under the Acquisition Agreement, which Executive shall pay as liquidated damages to
compensate Company for not receiving its bargained for consideration in connection with the Acquisition
and not as a penalty.
9. Confidentiality and Nonsolicitation.
(a) The Executive acknowledges that in the course of her employment by the Company, she will or
may have access to and become informed of confidential and secret information which is a competitive asset of the
Company or its affiliates (“Confidential Information”), including, without limitation, (i) the identity of the Company’s
employees, customers and suppliers, (ii) the terms of any agreement between the Company and any employee,
customer or supplier, (iii) pricing strategy, (iv) customer locations and preferred routes, (v) marketing methods, (vi)
financial results, (vii) strategic plans and analyses, and (viii) any non-p ublic information concerning the Company, its
affiliates, employees, suppliers or customers. The Executive agrees that she will keep all Confidential Information in
strict confidence during the Term and thereafter, and will never directly or indirectly make known, divulge, reveal,
furnish, make available, or use any Confidential Information (except in the course of her regular authorized duties on
behalf of the Company). The Executive agrees that the obligations of confidentiality hereunder shall survive
termination of her employment at the Company regardless of any actual or alleged breach by the Company of this
Agreement, until and unless any such Confidential Information shall have become, through no fault of the Executive,
generally k nown to the public or the Executive is required by law to make disclosure (after giving the Company notice
and an opportunity to contest such requirement). The Executive’s obligations under this Section 9 are in addition to,
and not in limitation of or preemption of, all other obligations of confidentiality which the Executive may have to the
Company under general legal or equitable principles.
(b) Except in the ordinary course of the Company’s business, the Executive shall not make or cause to
be made, any copies, pictures, duplicates, facsimiles or other reproductions or recordings or any abstracts or
summaries including or reflecting Confidential Information. All such documents and other property furnished to the
Executive by the Company or otherwise acquired or developed by the Company shall at all times be the property of
the Company. Upon termination of the Executive’s employment with the Company for any reason, the Executive will
return to the Company any such documents or other property of the Company which are in the possession, custody
or control of the Executive.
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(c) Without limiting the foregoing, without the prior written consent of the Company (which may be
withheld for any reason or no reason), except in the ordinary course of the Company’s business, the Executive shall
not at any time during or following the date of this Agreement use for the benefit or purposes of the Executive or for
the benefit or purposes of any other person, firm, partnership, association, trust, venture, corporation or business
organization, entity or enterprise engaged in the “Restricted Business” (as herein defined), or disclose in any manner
to any person, firm, partnership, association, trust, venture, corporation or business organization, entity or enterprise
engaged in the Restricted Business, any Confidential Information. “Restricted Business” means any business or
division of a business which consists of hauling, transporting, delivering, loading, purchasing, storing or selling
petroleum, ethanol or other liquids of any type or nature.
(d) In the event of the Executive’s voluntary or involuntary termination of employment with the
Company (whether or not for cause), the Executive agrees that she will not in any capacity, on her own behalf or on
behalf of any other firm, person or entity, undertake or assist in the solicitation of any employee of the Company,
i ncluding, but not limited to, solicitation of any employee to terminate his or her employment with the Company or to
become employed by or engaged with any other firm person or entity.
(e) The Executive acknowledges and agrees that a violation of the foregoing provisions of this Section
9 would cause irreparable harm to the Company, and that the Company’s remedy at law for any such violation would
be inadequate. In recognition of the foregoing, the Executive agrees that, in addition to any other relief afforded by
law or this Agreement, including damages sustained by a breach of this Agreement and any forfeitures under
Section 8, and without any necessity or proof of actual damages, the Company shall have the right to enforce this
Agreement by specific remedies, which shall include, among other things, temporary and permanent injunctions, it
being the understanding of the undersigned parties hereto that damages, the forfeitures described above and
injunctions shall all be proper modes of relief and are not to be considered as alternative remedies.
(f) For the purposes of this Section 9, the “Company” shall include its parent corporations, affiliates
and subsidiaries as they may exist from time to time, and any person or entity deriving title to the goodwill of the
business of the Company.
10. Covenant Not to Compete.
(a) Period and Conduct. As further inducement for the Company to consummate the Acquisition and
the related transactions contemplated by the Acquisition Agreement, during the period commencing on the date
hereof, and ending on the date which is the later of (i) five (5) years after the closing date of the Acquisition
Agreement or (ii) two (2) years after the termination of the Executive’s employment, for any reason, the Executive
shall not, without the prior written consent of the Company (which consent may be withheld for any reason or no
re ason), directly or indirectly or by action in concert with others, own, manage, operate, join, control, perform
services (whether as employee or contractor) for, be employed by, participate in or be connected with any business,
enterprise or other entity (or the ownership, management, operation, or control of any such business, enterprise or
other entity) other than the Company (a “Competing Enterprise”) engaged anywhere in Texas, or any other state in
which the Company is then located, in the “Restricted Business” (as defined in Section 9(c)); provided, however, that
nothing in the foregoing shall prohibit the Executive from the mere ownership of publicly-traded securities
representing no more than a 1% equity interest in any such Competing Enterprise.
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(b) Remedies. The Executive acknowledges and agrees that a violation of the foregoing provisions of
this Section 10 would cause irreparable harm to the Company, and that the Company’s remedy at law for any such
violations would be inadequate. In recognition of the foregoing, the Executive agrees that, in addition to any other
relief afforded by law or this Agreement, including damages sustained by a breach of this Agreement and any
forfeitures under Section 8, and without any necessity of proof of actual damages, the Company shall have the right
to enforce this Agreement by specific remedies which shall include, a mong other things, temporary and permanent
injunctions, it being the understanding of the undersigned parties hereto that damages, the forfeitures described
above and injunctions shall all be proper modes of relief and are not to be considered as alternative remedies.
(c) Severability. Each subsection of this Section 10 constitutes a separate and distinct provision
hereof. In the event that any provision of this Section 10 shall finally be judicially determined to be invalid, ineffective
or unenforceable, such determination shall apply only in the jurisdiction in which such adjudication is made and
every other pro vision of this Section 10 shall remain in full force and effect. The invalid, ineffective or unenforceable
provision shall, without further action by the parties, be automatically amended to affect the original purpose and
intent of the invalid, ineffective or unenforceable provision; provided, however, that such amendment shall apply only
with respect to the operation of such provision in the particular jurisdiction in which such adjudication is made.
(d) Post-termination Assistance. The Executive agrees that after her employment with the Company
has terminated she will provide, upon reasonable notice, such information and assistance to the Company as may
reasonably be requested by the Company in connection with any litigation in which it or any of its affiliates is or may
become a party; provided, however, that the Company agrees to reimburse the Executive for any related expenses,
including legal and travel expenses.
11. Agreement. This Agreement supersedes and replaces any and all other agreements, either oral or
in writing, between the parties hereto, or between either or both of the parties hereto and Seller, with respect to the
subject matter hereof and contains all of the covenants and agreements between the parties with respect to such
subject matter. Each party to this Agreement acknowledges that no representations, induceme nts, promises, or
other agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party,
pertaining to the subject matter hereof, which are not embodied herein, and that no other agreement, statement or
promise pertaining to the subject matter hereof that is not contained in this Agreement shall be valid or binding on
either party.
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12. Withholding of Taxes. The Company may withhold from any amounts payable under this
Agreement all federal, state, city or other taxes as the Company is required to withhold pursuant to any law or
government regulation or ruling.
13. Successors and Binding Agreement.
(a) This Agreement will be binding upon and inure to the benefit of the Company and any successor to
the Company, and may be assigned or transferred by the Company in connection with any sale of assets, merger,
consolidation, share exchange or other business combination.
(b) This Agreement will inure to the benefit of and be enforceable by the Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties hereto shall, without the consent of
the other, assign, transfer or delegate this Agreement or any rights or obligations hereunder except as expressly
provided in Sections 13(a) and 13(b). Without limiting the generality or effect of the foregoing, the Executive’s right to receive payments hereunder will not be assignable, transferable or delegable, whether by pledge, creation of a
security interest, or otherwise, other than by a transfer by the Executive’s will or by the laws of descent and
distribution and, in the event of any attempted assignment or transfer contrary to this Section 13(c), the Company
shall have no liability to pay any amount so attempted to be assigned, transferred or delegated.
(d) Notices. For all purposes of this Agreement, all communications, including without limitation
notices, consents, requests or approvals, required or permitted to be given hereunder will be in writing and will be
deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with
receipt thereof confirmed), or five business days after having been mailed by United States registered or certified
mail, return receipt requested, postage prepaid, or three business days after having been sent by a nationally
recognized overnight courier service such as Federal Express or UPS addressed to the Company (to the attention of
the Secretary of the Company) at its principal executive offices and to the Executive at her principal residence, or to
such other address as either party may have furnished to the other in writing and in accordance herewith, except that
notices of changes of address shall be effective only upon receipt.
14. Governing Law. The validity, interpretation, construction and performance of this Agreement will
be governed by and construed in accordance with the substantive laws of the State of Texas without giving effect to
the principles of conflict of laws of such State.
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15. Validity. If any provision of this Agreement or the application of any provision hereof to any person
or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstances will not be affected, and the provision so held to
be invalid, unenforceable or otherwise illegal will be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid or legal.
16. Survival of Provisions. No twithstanding any other provision of this agreement, the parties’
respective rights and obligations under Sections 8, 9, 10, 11 and 12 will survive any termination or expiration of this
Agreement or the termination of the Executive’s employment for any reason whatsoever.
17. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing signed by the Executive and the Company. No waiver
by either party hereto at any time of any breach by the other party hereto or compliance with any condition or
provision of thi s Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. Unless otherwise noted, references to
“Sections” are to sections of this Agreement. The captions used in this Agreement are designed for convenient
reference only and are not to be used for the purpose of interpreting any provision of this Agreement.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereof have executed this Agreement as of the day and year first
written.
EXECUTIVE: | ||
__________________________________ | ||
Lori Geer Smith | ||
GEER TANK TRUCKS, INC. . | ||
By: __________________________________ | ||
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