EXHIBIT 10.45
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT is entered into as of the 23rd day of
June 2000, by and between COLORADO MEDTECH, INC., a Colorado corporation
("Employer") and Xxxxxxx X. Xxxxx ("Executive"). In consideration of the mutual
covenants contained in this Agreement, Employer agrees to employ Executive and
Executive agrees to be employed by Employer upon the terms and conditions
hereinafter set forth.
ARTICLE I
TERM OF EMPLOYMENT
The term of employment hereunder commenced on June 23, 2000 ("Commencement
Date") and shall continue for a period of three (3) years (the "Term of
Employment"). The Term of Employment may be extended by mutual written
agreement of the parties.
ARTICLE II
DUTIES
2.1 Duties. Executive shall be employed with the titles of Chief
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Executive Officer and President of Employer with such responsibilities and
authority as are customarily performed by such officers including, but not
limited to, those duties as may from time to time be assigned to Executive by
the Board of Directors of Employer. Executive shall have full responsibility
and authority for formulating policies and for the management and operation of
Employer, subject to the general direction and control of the Board of
Directors. Executive shall report directly to Employer's Board of Directors.
2.2 Extent of Duties. Executive shall devote all of his working time,
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efforts, attention and energies to Employer's business. He shall render the
services described herein diligently, using his best efforts. Executive shall
hold no other employment during the Term of Employment.
ARTICLE III
COMPENSATION
3.1 Base Compensation. As compensation for services rendered under this
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Agreement, Employer shall pay Executive a base salary of $200,000 per annum,
payable over the Term of Employment in accordance with Employer's normal payroll
practices. Executive shall also be eligible to participate in any other
compensation arrangements and benefit plans of Employer offered generally to
Employer's other executives.
3.2 Stock Options. On the date which is two days after Employer's public
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release of its financial results for the quarter and year ended June 30, 2000
("Grant
Date"), Employer will grant to Executive incentive and non-statutory stock
options ("Options") under Employer's Stock Option Plan to purchase Two Hundred
Seventy Thousand (270,000) shares of Employer's Common Stock. The exercise price
of such options shall be the fair market value of Employer's Common Stock at the
close of the market on the Grant Date. Such options shall vest and become
exercisable as follows:
(a) Ninety Thousand (90,000) Options shall irrevocably vest and become
exercisable on each of the first, second and third anniversaries ("Contract
Year") of the Commencement Date of this Agreement, subject to Executive's
continued employment on each vesting date. The Options shall expire ten (10)
years after the Grant Date.
(b) If Executive's employment is terminated by Employer without
"Cause" (defined below), any unvested options as of the Date of Termination, as
hereinafter defined, which would have vested at the next anniversary of the
effective date of this Agreement shall vest in proportion the number of complete
months that have expired in the current Contract Year bears to a full Contract
Year.
(c) If Executive's employment is terminated by Executive for "Good
Reason" (defined below) pursuant to Section 5(a)(iv) or (v), any unvested
options as of the Date of Termination shall immediately vest in full.
3.3 Other Benefits. Executive shall be entitled to participate in all of
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Employer's Executive benefit plans and Executive benefits, including any
retirement, pension, profit-sharing, stock option (taking the Options into
consideration), insurance, hospital, vacation, paid holiday, or other plans and
benefits which now may be in effect or which may hereafter be adopted, it being
understood that Executive shall have the same rights and privileges to
participate in such plans and benefits as other executive Executives.
3.4 Expenses. Executive shall be entitled to reimbursement for all
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reasonable expenses incurred by Executive in the performance of his duties
hereunder, provided all requests for reimbursement comply with Employer's
current policies regarding expense reimbursement.
ARTICLE IV
NON-COMPETITION; CONFIDENTIALITY
Executive may not participate in any areas of business in which the Employer is
engaged during the term of this Agreement except through and on behalf of the
Employer. Upon the execution of this Agreement, Executive shall execute a Non-
Competition Agreement in the form attached hereto as Exhibit A. Executive
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agrees that his current non-disclosure agreement with Employer shall continue in
full force and effect. Executive further agrees that he shall promptly execute
any revised non-disclosure form implemented by Employer.
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ARTICLE V
TERMINATION OF EMPLOYMENT
5.1 Termination. Executive's employment hereunder may be terminated
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without any breach of this Agreement under the following circumstances:
(a) By Executive for Good Reason. Upon the occurrence of any of the
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following events, Executive may terminate his employment for good reason ("Good
Reason") by written notice to Employer:
(i) if Employer makes a general assignment for the benefit of
creditors, files a voluntary bankruptcy petition, files a petition or answer
seeking a reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law, or there shall have been filed any
petition or application for the involuntary bankruptcy of Employer, or other
similar proceeding, in which an order for relief is entered or which remains
undismissed for a period of thirty days or more, or Employer seeks, consents to,
or acquiesces in the appointment of a trustee, receiver, or liquidator of
Employer or any material part of its assets;
(ii) the closing of a sale by Employer of substantially all of
its assets to not more than two (2) buyers;
(iii) if Executive elects to remain employed after a "change in
control of Employer" (defined below) and thereafter, during the Term of
Employment or twelve (12) months from the change in control, whichever is
longer, Executive: (1) is terminated without Cause or is demoted from the
position he held prior to the change in control; (2) is assigned duties
inconsistent with his roles and responsibilities prior to the change in control;
(3) is required to materially increase his travel obligations from those he had
prior to the change in control; (4) is relocated to an office or site greater
than 50 miles from his location prior to the change in control; or (5) the
compensation or benefits of Executive are materially reduced (including paid
time off and vacation). A "change of control of Employer" will be deemed to
occur under either of the following circumstances: (A) any "person" (as that
term is used in Section 13(d) and 14(d) of the Exchange Act), other than the
Employer or any "person" who on the date hereof is a director or officer of the
Employer, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Employer
representing forty percent (40%) or more of the combined voting power of the
Employer's then outstanding securities, or (B) if, during any period of two
consecutive years during the term of this Agreement, individuals who at the
beginning of such period constitute the Board cease for any reason to constitute
at least a majority thereof, unless the election of each director who was not a
director at the beginning of such period has been approved in advance by
directors representing at least two-thirds of the directors then in office who
were directors at the beginning of the period; or
(iv) within 90 days following a change in control of Employer.
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(b) Death. This Agreement shall terminate upon the death of
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Executive.
(c) Disability. Employer may terminate this Agreement upon the
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permanent disability of Executive. "Disability" means the failure of Executive,
due to illness, accident, or other physical or mental incapacity, to perform his
duties substantially as required hereunder for a period of any ninety (90)
consecutive days, or, if earlier, upon written certification from a physician
acceptable to Employer as to Executive's inability to carry on his duties and
responsibilities if such condition is expected to continue for at least such
period.
(d) By Employer for Cause. Employer may terminate Executive's
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employment for cause ("Cause") for:
(i) misappropriation or unauthorized disclosure of Confidential
Information or funds by Executive or with Executive's direct involvement;
(ii) fraud, embezzlement, theft or dishonesty by Executive
reasonably suspected by the Company;
(iii) negligent or willful misconduct or dereliction of duty by
Executive; provided, however, that no discharge shall be deemed for Cause under
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this clause (iii) unless Executive shall have first received written notice from
the Company advising Executive of the specific acts or omissions alleged to
constitute such negligent or willful misconduct, and such misconduct continues
uncured by Executive for a period of twenty (20) days; or
(iv) a material breach by Executive of the terms of this
Agreement and a failure by Executive to cure such breach within twenty (20) days
after receiving written notice from an officer of the Company advising Executive
of the action allegedly resulting in the material breach.
(e) By Employer Other than for Cause. Employer may terminate
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Executive's employment hereunder other than for Cause upon written notification
to Executive given at any time.
5.2 Date of Termination. "Date of Termination" means (i) if Executive's
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employment is terminated by his death, the date of his death; (ii) if the
Executive's employment is terminated for Cause, the date on which notice of
termination is delivered to Executive; and (iii) if the Executive's employment
is terminated for any other reason, the date specified in a notice of
termination by Employer or Executive.
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5.3 Compensation Upon Termination.
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(a) Upon termination of this Agreement for Cause pursuant to Section
5.1(d) Executive shall be entitled to compensation only through
the Date of Termination.
(b) In the event of termination of this Agreement by Employer for
reason other than Cause pursuant to Section 5.1(e) within the
first 12 months of the Term of Employment, Employer shall: (1)
continue to pay Executive base salary payments through the
twenty-fourth month of the Term of Employment; and (2) if such
termination occurs within the original Term of Employment,
provide for immediate vesting of the pro-rated portion of options
for the portion of the year worked as set forth in Section
3.2(b).
(c) In the event of termination of this Agreement by Employer for
reason other than Cause pursuant to Section 5.1(e) after the
first 12 months of the Term of Employment and prior to the end of
the Term of Employment, Employer shall: (1) continue to pay
Executive base salary payments for twelve (12) months; and (2) if
such termination occurs within the original Term of Employment,
provide for immediate vesting of the pro-rated portion of options
for the portion of the year worked as set forth in Section
3.2(b).
(d) In the event of termination of this Agreement by Executive
pursuant to Section 5.1(a)(ii) or (iii) for Good Reason, Employer
shall: (1) pay Executive the greater of (i) continuation of base
salary payments for twelve (12) months; or (ii) the continuation
of base salary payments for the number of months remaining in the
Term of Employment following the Date of Termination; (2)
accelerate vesting of any unvested stock options such that all
such options shall immediately vest; (3) reimburse outplacement
services provided Executive for a period of 12 months; and (4)
reimburse Executive for reasonable legal fees in connection with
the enforcement of the Agreement.
(e) In the event this Agreement is terminated at any time by
Executive for Good Reason pursuant to Section 5.1(a)(iv),
Executive shall be entitled to receive continuation of 12 months
of base salary payments; (2) accelerated vesting of any unvested
stock options such that all such options shall immediately vest;
(3) reimbursement outplacement services provided Executive for a
period of 12 months; and (4) reimburse Executive for reasonable
legal fees in connection with the enforcement of the Agreement.
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(f) If after termination pursuant to Section 5.1(a)(iii) or (iv) or
Section 5.1(e) Executive elects to continue group health
insurance coverage through COBRA, the Employer will also pay the
monthly medical insurance premium payment required to maintain
his then current medical insurance coverage (less any amount he
is paying for such insurance at the time of termination, which
payment from Executive will be required by the beginning of each
month) for the period during which continuing base salary
payments are made or until Executive obtains new employment or a
consulting position, whichever occurs first.
(g) Following the termination of this Agreement pursuant to Section
5.1(b), Employer shall pay to Executive's estate the compensation
which would otherwise be payable to Executive to the end of the
month in which his death occurs.
(h) In the event of temporary or permanent disability of the
Executive as described in Section 5.1(c), whether or not the
Employer elects to terminate this Agreement, Executive shall be
entitled to receive such compensation and benefits, if any, as
are payable to Executives generally in accordance with Employer's
normal practices.
(i) Upon termination of his employment and for a period of two years
thereafter, Executive shall immediately notify Employer of each
employment or agency relationship entered into by the Executive
and each corporation or other entity formed or used by the
Executive, the business of which is directly or indirectly
similar to or in competition with the Employer's business and
provided Executive's participation in such business is the same
as or similar to those activities in which Executive was involved
at the time of Executive's termination from Employer and during
the prior 12-month period.
5.4 Remedies. Any termination of this Agreement shall not prejudice any
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other remedy to which the Employer or Executive may be entitled, either at law,
equity, or under this Agreement.
5.5 Request for Post-Employment Allowance: In order to obtain any payment
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pursuant to Paragraph 5.3, excluding sub-paragraph 5.3(a), Executive shall
submit a Request for Post-Employment Allowance (attached hereto as Exhibit B).
Employer shall have no obligation to make any payments to Executive unless and
until Employee shall have submitted an executed copy of such request.
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ARTICLE VI
GENERAL PROVISIONS
6.1 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Colorado.
6.2 Arbitration. Any and all disputes arising under or related to this
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Agreement which cannot be resolved through negotiations between the parties
shall be submitted to binding arbitration. If the parties fail to reach a
settlement of their dispute within fifteen (15) days after the earliest date
upon which one of the parties notified the other(s) of its desire to attempt to
resolve the dispute, then the dispute shall be promptly submitted to arbitration
by a single arbiter through the Judicial Arbiter Group ("JAG"), any successor of
the Judicial Arbiter Group, or any similar arbitration provider who can provide
a former judge to conduct such arbitration if JAG is no longer in existence, or
an arbiter appointed by the court. The arbiter shall be selected by JAG or the
court on the basis, if possible, of his or her expertise in the subject
matter(s) of the dispute. The decision of the arbiter shall be final, non-
appealable and binding upon the parties, and it may be entered in any court of
competent jurisdiction. The arbitration shall take place in Boulder, Colorado.
The arbitrator shall be bound by the laws of the State of Colorado applicable to
the issues involved in the arbitration and all Colorado rules relating to the
admissibility of evidence, including, without limitation, all relevant
privileges and the attorney work product doctrine. All such discovery shall be
completed in accordance with the time limitations prescribed in the Colorado
Rules of Civil Procedure, unless otherwise agreed by the parties or ordered by
the arbitrator on the basis of strict necessity adequately demonstrated by the
party requesting an extension or reduction of time. The arbitrator shall have
the power to grant equitable relief where applicable under Colorado law. The
arbitrator shall issue a written opinion setting forth her or his decision and
the reasons therefor within thirty (30) days after the arbitration proceeding is
concluded. The obligation of the parties to submit any dispute arising under or
related to this Agreement to arbitration as provided in this Section shall
survive the expiration or earlier termination of this Agreement.
Notwithstanding the foregoing, either party may seek and obtain an injunction or
other appropriate relief from a court to preserve or protect the status quo with
respect to any matter pending conclusion of the arbitration proceeding, but no
such application to a court shall in any way be permitted to stay or otherwise
impede the progress of the arbitration proceeding.
6.3 Entire Agreement. This Agreement supersedes any and all other
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Agreements, whether oral or in writing, between the parties with respect to the
employment of Executive by Employer, excluding any non-
disclosure/confidentiality agreements previously entered into between Executive
and Employer. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have
been made by either party, or anyone acting on behalf of any party, that are not
embodied in this Agreement, and that no agreement, statement, or promise not
contained in this Agreement shall be valid or binding.
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6.4 Successors and Assigns. This Agreement, all terms and conditions
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hereunder, and all remedies arising herefrom, shall inure to the benefit of and
be binding upon Employer, any successor in interest to all or substantially all
of the business and/or assets of Employer, and the heirs, administrators,
successors and assigns of Executive. Except as provided in the preceding
sentence, the rights and obligations of the parties hereto may not be assigned
or transferred by either party without the prior written consent of the other
party.
6.5 Notices. For purposes of this Agreement, notices, demands and all
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other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Executive: Xxxxxxx X. Xxxxx
0000 Xx. Xxxx Xxx
Xxxxxx, XX 00000
If to Employer: Colorado MEDtech, Inc.
Attn: Chairman of the Board of Directors
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Colorado MEDtech, Inc.
Attn: General Counsel
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
and a copy (which shall not constitute notice) to:
Xxxxxxxx, Xxxxx & Xxxxxxx, P.C.
Attn: Xxxxxxxxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
6.6 Severability. If any provision of this Agreement is prohibited by or
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is unlawful or unenforceable under any applicable law of any jurisdiction as to
such jurisdiction, such provision shall be ineffective to the extent of such
prohibition without invalidating the remaining provisions hereof.
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6.7 Section Headings. The section headings used in this Agreement are for
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convenience only and shall not affect the construction of any terms of this
Agreement.
6.8 Survival of Obligations. Termination of this Agreement for any reason
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shall not relieve Employer or Executive of any obligation accruing or arising
prior to such termination.
6.9 Amendments. No waiver or modification of this Agreement or any
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covenant, condition, or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith, and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding, arbitration or litigation between the parties hereto arising out of
or affecting this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed as
aforesaid.
6.10 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute only one legal instrument. This Agreement
shall become effective when copies hereof, when taken together, shall bear the
signatures of both parties hereto. It shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
6.11 Fees and Costs. If any action at law or in equity is necessary to
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enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys fees, costs and necessary disbursements in
addition to any other relief to which that party may be entitled.
6.12 Taxes. Executive expressly acknowledges that Employer has not made,
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nor herein makes, any representation about the tax consequences of any
consideration provided by Employer to Executive pursuant to this Agreement or
any Stock Option Agreement. Executive further acknowledges that all such
consideration shall be subject to various taxes and withholding which shall be
made by Employer. It is also possible that amounts or benefits paid or
distributed to the Executive pursuant to this Agreement, taken together with any
amount or benefits otherwise paid or distributed to the Executive would be an
"excess parachute payment" as defined in (S)280G of the Internal Revenue Code
(the "Code") and would subject Executive to an excise tax. In the event such
tax is triggered, Employer may limit its payments as follows: If (x) the
aggregate value of all compensation payments or benefits to be paid or provided
to the Executive under this Agreement and any other plan, agreement, or
arrangement with Employer exceeds the amount which can be paid to the Executive
without the Executive incurring an Excise Tax and (y) the Executive would
receive a greater net after-tax amount (taking into account all applicable taxes
payable by the Executive, including any Excise Tax) by applying the limitation
contained in this Paragraph, then the amounts payable to the Executive under
this Agreement shall be reduced (but not below zero) to the maximum amount which
may be paid hereunder without the Executive becoming subject to such an
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Excise Tax (such reduced payments to be referred to as the "Payment Cap").
In the event that Executive receives reduced payments and benefits hereunder,
Executive shall have the right to designate which of the payments and benefits
otherwise provided for in this Agreement that Executive will receive in
connection with the application of the Payment Cap. If the Executive receives
reduced payments and benefits under this Paragraph (or the Payment Cap is
determined not to be applicable to the Executive because the parties conclude
that Executive is not subject to any Excise Tax) and it is established pursuant
to a final determination of a court or an Internal Revenue Service proceeding (a
"Final Determination") that, notwithstanding the good faith of the Executive and
Employer in applying the terms of this Agreement, the aggregate "parachute
payments" within the meaning of Section 280G of the Code paid to the Executive
or for his benefit are in an amount that would result in the Executive being
subject an Excise Tax, then the amount equal to such excess parachute payments
shall be deemed for all purposes to be a loan to the Executive made on the date
of receipt of such excess payments, which the Executive shall have an obligation
to repay to Employer on demand, together with interest on such amount at the
applicable federal rate (as defined in Section 1274(d) of the Code) from the
date of the payment hereunder to the date of repayment by the Executive. If
this Paragraph is not applied to reduce the Executive's entitlements under this
Paragraph because the parties determine that the Executive would not receive a
greater net after-tax benefit by applying this Paragraph and it is established
pursuant to a Final Determination that, notwithstanding the good faith of the
Executive and Employer in applying the terms of this Agreement, the Executive
would have received a greater net after-tax benefit by subjecting his payments
and benefits hereunder to the Payment Cap, then the aggregate "parachute
payments" paid to the Executive or for his benefit in excess of the Payment Cap
shall be deemed for all purposes a loan to the Executive made on the date of
receipt of such excess payments, which the Executive shall have an obligation to
repay to Employer on demand, together with interest on such amount at the
applicable federal rate (as defined in Section 1274(d) of the Code) from the
date of the payment hereunder to the date of repayment by the Executive. If the
Executive receives reduced payments and benefits by reason of this Paragraph and
it is established pursuant to a Final Determination that the Executive could
have received a greater amount without exceeding the Payment Cap, then Employer
shall promptly thereafter pay the Executive the aggregate additional amount
which could have been paid without exceeding the Payment Cap.
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IN WITNESS WHEREOF, Employer and Executive have entered into this Executive
Employment Agreement as of the date first above written.
"EMPLOYER"
COLORADO MEDTECH, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx,
Chairman of the Board of Directors
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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EXHIBIT A
NON-COMPETITION AGREEMENT
THIS AGREEMENT is made and entered into on and as of the 23rd day of June,
2000, by and between Colorado MEDtech, Inc., a Colorado corporation (the
"Company") and Xxxxxxx X. Xxxxx ("Executive").
WHEREAS, Executive is being promoted as of the date hereof to the offices
of President and Chief Executive Officer of the Company, and in such positions
is a key, valued executive employee of the Company, and, as such, is in a
position to damage the business of the Company by engaging in competing
activities; and
WHEREAS, the Company wishes to protect itself from competitive activities
of Executive which would injure its business and subject Company to the
inevitable disclosure of trade secret information; and
WHEREAS, it is a condition of the promotion of Executive, as described
above Executive has agreed not to compete with the Company during, or for a
period of two years after, his employment with the Company;
NOW, THEREFORE, in consideration of the promotion of Executive, for the
compensation to be paid to Executive in respect of his new positions as
described in the Executive Employment Agreement which is entered into by the
parties as of the date hereof, and for the protection of Company's trade secret
information and other valuable consideration, the receipt and sufficiency of
which is acknowledged, the parties agree as follows:
1. Executive agrees that he possesses or will possess the knowledge,
skills and reputation in the outsourcing industry in which the Company operates
which are of material importance to the Company, and which are special, unique
and extraordinary. Executive acknowledges that his services cannot be replaced
and that the loss of his services, or the use of his services by a competitor,
may cause the inevitable disclosure of trade secret information and other
irreparable harm to the Company. Therefore, Executive agrees that during the
period commencing with the date hereof and ending two (2) years after his
employment with the Company is terminated (voluntarily or involuntarily) he will
not, knowingly, directly or indirectly, as a principal, officer, director,
shareholder (other than as a holder of 5% or less of a publicly traded
corporation's capital stock), partner, become employed by, consult for or with,
or in any other capacity whatsoever, engage in, be or become associated with, or
advise or assist any business, firm, partnership, individual, corporation, or
any other entity which is engaged in any outsourcing business engaged in, or
anticipated to be engaged in, by the Company as of his Date of Termination, as
defined in Executive's Executive Employment Agreement, anywhere in the United
States of America.
2. Executive acknowledges that Company has invested substantial time and
effort in assembling its present staff of personnel. Executive agrees that so
long as he is employed by the Company and during two (2) years immediately
thereafter, Executive shall not either directly or indirectly employ, solicit
for employment or advise or recommend to any other person that a third party
employ or solicit for employment, any of the Company's employees.
3. Executive agrees that so long as he is employed by the Company and
during two (2) years immediately thereafter, Executive shall not either directly
or indirectly solicit business, as to products or services competitive with the
business of the Company from any of Company's customers with whom Executive had
contact during his employment. Executive agrees that during such post-employment
period he will not influence or attempt to interfere with any of Company's
relationships with its investors, customers or clients.
4. Executive agrees that so long as he is employed by the Company and for
two (2) years immediately thereafter, Executive shall not either directly or
indirectly interfere with any relationship between the Company and any of its
suppliers, clients or their employees.
5. Any waiver of any of the terms and conditions of this Agreement shall
not operate as a waiver of any other breach of such terms or conditions, or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or any other provision hereof.
6. It is agreed that Executive's services are unique, and that any breach
or threatened breach by Executive of any provisions of this Agreement may not be
remedied solely by damages. Accordingly, in the event of a breach or threatened
breach by Executive of any of the provisions of this Agreement, the Company
shall be entitled to injunctive relief, restraining Executive and any business,
firm, partnership, individual, corporation, or entity participating in such
breach or attempted breach, from engaging in any activity which would constitute
a breach of this Agreement. Nothing herein, however, shall be construed as
prohibiting the Company from pursuing any other remedies available at law or in
equity for such breach or threatened breach, including the recovery of damages.
7. The restrictive period for all of the aforementioned covenants shall
be extended for every day that Executive is in violation of any one of the
covenants.
8. Any and all notices referred to herein shall be sufficient if
furnished in writing, sent by registered or certified mail to Executive at his
address as shall be furnished to the Company in writing, and to the Company at
its principal office in Boulder, Colorado.
9. This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado.
10. No modification or changes in this Agreement shall be valid unless
such modification or changes are in writing and signed by all parties hereto.
11. The invalidity or unenforceability of any provision in this Agreement
shall not affect the other provisions hereof. This Agreement shall be construed
as though such invalid or unenforceable provisions were modified to the minimum
extent necessary to make this Agreement valid and enforceable.
12. Company may assign this Agreement to its successors. Executive may not
assign this Agreement without the prior written approval of the Company.
13. Any controversy or claim arising out of or relating to this Agreement
or the breach thereof shall be settled by arbitration in Boulder, Colorado in
accordance with the rules then existing of the American Arbitration Association
and judgment upon the award may be entered in any court having jurisdiction
thereof.
14. As used herein, any reference to the masculine shall include, if
appropriate, the feminine.
IN WITNESS WHEREOF, the parties have executed this Non-Competition
Agreement as of the date first above written.
COLORADO MEDTECH, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
EXHIBIT B
Request for Post-Employment Allowance
This request for severance allowance is made by ___________(hereinafter
"the Employee") pursuant to the provisions of the Agreement between the Employee
and _______________(hereinafter "the Company") as of (the "Agreement").
1. In consideration of the execution of this request for post-employment
allowance, the Company agrees to pay me the amount set forth in the
Agreement.
2. In return for these payments, I fully and finally release, waive and
discharge Company, including any of its parents, subsidiaries, or
otherwise affiliated corporations, partnerships or business
enterprises, and their respective present and former directors,
shareholders, employees, assigns, insurers and employee benefit
administrators (hereinafter "Released Parties") from all charges,
claims and causes of action of any sort which I may have, including
but not limited to, claims arising from or related to my employment or
termination of my employment, any age, race, any unlawful employment
practices of any kind, whether such claims arise under federal, state,
local, common, contract, tort or other laws or regulations,
specifically including Title VII of the Civil Rights Act of 1964 as
amended by the Equal Employment Opportunity Act of 1972 and the Age
Discrimination in Employment Act, 42 U.S.C. Section 1981. BY SIGNING
THIS AGREEMENT, I ACKNOWLEDGE THAT COMPANY HAS ADVISED ME TO DISCUSS
THIS AGREEMENT WITH AN ATTORNEY BEFORE SIGNING IT. I further
acknowledge and agree that the Company is not responsible for any of
my costs, expenses, and attorneys' fees, if any, incurred in
connection with the review and signing of this Agreement. I
acknowledge that I have been given a period of at least twenty-one
(21) days in which to consider the terms of this Agreement. If I have
chosen to waive the twenty-one day period, I represent that I did so
voluntarily without any pressure by Company. I also understands that I
have the right to revoke this Agreement at any time within seven (7)
days after signing it, by providing written notice to Company, and
that upon such revocation, this Agreement will not have any further
legal effect.
3. I represent and warrant that I have returned all property of the
Company in my possession, including but not limited to, documents,
manuals, pertinent business contacts (names and addresses),
shareholder lists, software, computers and computer disks, notes,
keys, cellular phone, and other articles or equipment I used in the
course of my employment.
4. It is understood that the Company does not admit the existence or
validity of any such claims or any liability of any sort nor has the
Company made any agreement or promise to do or omit to do any act or
thing not herein set forth.
5. I agree that I will not disclose this document or its terms or
provisions without first obtaining the written consent of the Company.
6. I understand that this Request shall be governed by Colorado law.
7. I have read and completely understand this request and recognize that
it constitutes a general release and waiver of all claims, and I agree
that this is an acceptable compromise of any such claims and knowingly
and voluntarily intend to be bound by these provisions without any
further promises or consideration by the Company. I further agree that
this agreement terminates all other agreements between myself and the
Company, excluding any non-disclosure or non-compete obligations which
may survive my employment. As such, except as provided in this
Agreement, I am not entitled to any other benefits as a result of my
separation.
_____________________________ _________________________
Xxxxxxx X. Xxxxx Date
