EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective for all purposes
and in all respects as of the 20th day of September, 1995, by and
between ANALYTICAL SURVEYS, INC., a Colorado corporation
(hereinafter referred to as the "employer" or the "Corporation"),
and XXXXXXX X. XXXX (hereinafter referred to as the "employee".
WITNESSETH THAT:
WHEREAS, Employee has been employed by Employer since March
of 1992; and
WHEREAS, Employer and Employee desire to state in writing
the terms and conditions of their agreements and understandings,
and to continue the term of Employee's employment hereunder;
NOW, THEREFORE, in consideration of the foregoing of the
mutual promises herein contained, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending legally to be bound, agree
as follows:
1. Term of Employment.
This Employment Agreement shall supersede and replace any
prior understandings with respect to Employee's employment. The
term shall commence on September 20, 1995, and shall continue
until September 20, 1997, unless sooner terminated in accordance
with the provisions of Paragraph 6, and shall be automatically
renewed for additional, successive periods of two (2) years each
thereafter.
2. Duties of Employee.
2.1 It is understood and agreed that Employee's principal
duties on behalf of Employer at the date of execution hereof are
and shall be as Sr. Vice President - Business Development and
Contracts of the Corporation. In accepting employment by
Employer, Employee shall undertake and assume the responsibility
of performing for and on behalf of Employer whatever duties are
necessary and required in his position as Sr. Vice President -
Business Development and Contracts of the Corporation.
2.2 Employee covenants and agrees that at all times during
the term of this Agreement, Employee shall devote his full-time
efforts to his duties as an employee of the Employer. Employee
further covenants and agrees that he will not, directly or
indirectly, engage or participate in any activities at any time
during the term of this Agreement in conflict with the best
interests of Employer.
3. Compensation.
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3.1 Salary. As compensation for the services to be rendered
by Employee for Employer under this Agreement, Employee shall be
paid not less than the following base annual salary, on a monthly
basis, during the term hereof: $84,000.00, plus annual increases
and commissions, if any, voted him by the Board of Directors of
employer.
3.2 Stock Options. Employee shall be a participant in the
Analytical Surveys, Inc. Stock Option Plan as approved by the
Board of Directors.
3.3 Commissions. Employee shall, on an annual basis,
receive commissions based on a percentage of the Corporation's
annual sales, and based upon a predetermined annual sales goal,
to be set forth in a separate memorandum as determined by the
President of the Corporation after consultation with Employee;
provided that the amount of such commissions shall be determined
by and at the sole discretion of the President of the
Corporation.
3.4 Salary Review. Employee's salary will be reviewed
annually in November, commencing November, 1995.
4. Additional Benefits
In addition to, and not in limitation of, the compensation
referred to in Paragraph 3, Employee shall be paid the following
additional benefits during the term hereof:
4.1 Reimbursement. Reimbursement of all reasonable
expenses incurred by him in connection with performance of his
duties as Sr. Vice President - Business Development and Contracts
of the Corporation, upon submission of vouchers. Reasonable
expenses shall include, but not be limited to all out-of-pocket
expenses for entertainment, travel, meals, lodging, automobile
expenses, professional fees, professional dues and the like
incurred by him in the interest of the Employer.
4.2 Participation in Benefit Plans. Employee shall be a
participant, to the extent he meets all eligibility requirements
of general application to senior executives of the Corporation,
in any and all plans maintained by the Corporation to provide
benefits for its employees, as specified in the Corporation's
Employee Handbook, revised January 2, 1990, a copy of which has
been given to Employee, including, but not limited to, group term
life insurance, hospitalization, medical, disability, profit
sharing and retirement plans; provided however, that reasonable
employee contributions may be required and reasonable increases
may be made in deductible amounts, similar to those then in
effect for all other officers of the Corporation.
4.3 Vacations. Employee shall be entitled to vacations of
not less than four (4) weeks per year. Employee may accrue any
unused vacation time from year to year, and upon termination of
employment will be compensated for any unused vacation time. Any
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specific vacation of more than two (2) weeks' duration shall be
approved in advance by the President.
4.4 Other Perquisites. Employee shall be entitled to such
additional perquisites as may be customarily granted by the
Corporation to senior executives, as determined by the President
of the Corporation.
4.5 Death or Disability Payments. In the event of the
Employee's disability or death, Employee's salary in effect at
the time of his death or disability shall continue to be paid to
Employee, or to his designee, for a period of twelve (12)
calendar months from the date of death or from the date of
Employee's termination by reason of disability. For the purposes
of this Employment Agreement, the obligations of the Employer to
make the payments upon the disability of Employee shall not
become effective unless and until all of the following conditions
are met, as determined by an independent physician selected by
the Board of Directors and agreed to by Employee: (1) Employee
shall become physically or mentally incapable (excluding
infrequent and temporary absences due to ordinary illnesses) of
properly performing the services required of him in accordance
with his obligations under Paragraph 2 hereof or similar
provisions of any renewal agreement; (2) such incapacities shall
exist or be reasonably expected to exist for more than ninety
(90) days in the aggregate during the period of twelve (12)
consecutive months; and (3) either Employee or Employer shall
have given the other thirty (30) days' written notice of his or
its intention to terminate the active employment of Employee
because of such disability. The benefits payable hereunder shall
be in addition to, and shall not be offset against, any amounts
paid to Employee or his designee by reason of insurance benefits
pursuant to Paragraph 4.2 above.
4.6 Life Insurance. Employee shall be provided with a life
insurance policy in the amount of $100,000 (provided he can meet
the medical conditions for such coverage), payable to such
beneficiaries as he shall designate, with an additional $100,000
of accidental death coverage.
5. Disclosure of Information.
Employee acknowledges that in and as a result of his
employment hereunder, he will be making use of, acquiring, and/or
adding to confidential information of a special and unique nature
and value relating to such matters as Employer's trade secrets,
systems, procedures, manuals, confidential reports, and lists of
clients. As a material inducement to Employer to enter into this
Agreement and to pay to Employee the compensation stated in
Paragraph 3, as well as any additional benefits stated in
Paragraph 4, Employee covenants and agrees that he shall not,
other than in the ordinary course of business, at any time during
or following the term of his employment, directly or indirectly
divulge or disclose for any purpose whatsoever or appropriate to
his own use or to the use of others any confidential information
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that has been obtained by, or disclosed to him, as a result of
his employment by Employer.
6. Termination.
6.1 Termination By Either Party Without Cause. At any time
during the term hereof, this Employment Agreement may be
terminated "without cause" by either Employer or Employee upon
written notice to the other party.
(A) In the event of such termination "without cause" by
Employee, Employer shall have the option either (a) to accept
Employee's resignation, effective immediately on receipt of such
notice; or (b) to require Employee to continue to perform his
duties hereunder, for a period not to exceed six (6) months from
the date of receipt of such written notice. In either event, the
Employee's compensation and benefits hereunder shall continue
only until the effective date of termination, as defined in
Paragraph 6.4 below.
(B) In the event of such termination "without cause" by
Employer, Employee shall be continued on the payroll for twelve
(12) months, and shall receive bonuses equal to those received by
him during the twelve (12) months prior to termination. Such
severance pay shall be paid in twelve (12) equal, successive
monthly payments, beginning on the 1st day of the month
immediately following the effective date of termination.
Employee shall also be continued under all group benefit plans
for a period of twelve (12) months from the effective date of
termination, as defined in Paragraph 6.4(A) below. In addition,
Employee's stock options shall continue to vest, and he shall
have the continuing right to exercise such options during the
period of twelve (12) months from the effective date of
termination.
6.2 Termination by Employer For Cause. Notwithstanding any
other provision hereof, Employer may terminate Employee's
employment under this Agreement at any time for cause. The
termination shall be effective by written notice thereof to the
Employee, which shall specify the cause for termination. For
purposes hereof, the term "cause" shall mean the failure of
Employee for any reason, within thirty (30) days after receipt by
Employee of written notice thereof from Employer, to correct,
cease, or otherwise alter any action or omission to act that
constitutes a material and willful breach of this Agreement
likely to result in material damage to the Corporation, or
willful gross misconduct likely to result in material damage to
the Corporation.
Upon such termination for cause by Employer, Employee shall
not receive any termination pay or benefits beyond the effective
date of termination, as defined in Paragraph 6.4(B) below.
6.3 Termination by Employee For Cause. Notwithstanding any
other provision hereof, Employee may resign his employment under
this Agreement at any time for cause. The termination may be by
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written notice thereof to Employer, which shall specify the cause
for Employee's resignation. For purposes hereof, the term
"cause" shall mean the failure of Employer for any reason,
within thirty (30) days after receipt by Employer of written
notice from Employee, to correct, cease or otherwise alter any
material adverse change in the conditions of Employee's
employment caused by (a) a change in ownership of Corporation; or
(b) any change in Employee's position from Sr. Vice President -
Business Development and Contracts, or the duties assigned to him
by the President of the Company, or any change in Employee's
right to hire and fire the sales staff for the Company within the
predetermined budget and with the knowledge and consent of the
President of the Corporation, unless Employee consents to such
change, on terms as mutually agreed.
Upon such termination for cause by Employee, Employee shall
be continued on the payroll for eighteen (18) months from the
effective date of termination (as defined in Paragraph 6.4(B)
below) at his then current salary without further
responsibilities to the Corporation. Employee shall also be
continued under all group benefits plans for a period of eighteen
(18) months from the effective date of termination. Employee's
stock options shall continue to vest, and he shall have the
continuing right to exercise such options during the period of
eighteen (18) months from the effective date of termination.
6.4 Effective date of Termination.
(A) The effective date of termination, as used in Paragraph
6.1 with respect to termination "without cause", shall be the
date on which Employee actually ceases to perform his duties
hereunder.
(B) The effective date of termination, as used in Paragraph
6.2 and 6.3 with respect to termination "for cause", shall be
thirty (30) calendar days after the date on which Employee
receives or gives written notice of termination.
6.5 Limitation on Severance Compensation. Notwithstanding
any other provision of the Agreement, solely in the event of a
Termination Upon a Change In Control, the aggregate of the amount
of severance compensation paid to the Employee under the
Agreement or otherwise, but exclusive of any payments to the
Employee by virtue of the Employee's exercise of any right or
payment of any kind under any incentive or benefit plan upon a
change in control, shall not include any amount that the Employer
is prohibited from deducting for federal income tax purposes by
virtue of Section 280G of the Internal Revenue Code or any
successor provision.
7. Covenant Not to Comptete.
The parties hereto agree that the
Employee shall not directly or indirectly own, control, operate,
manage, consult, own shares in, be employed by, or otherwise
participate in any sole proprietorship, corporation, partnership
or entity whose primary business is the same or similar to the
business of the Corporation during the term of his employment
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hereunder, nor for a period of two (2) years after his
termination of employment, within the territory (North America)
in which the Corporation does business.
The parties hereto recognize that Employee has been retained
in the position of Sr. Vice President - Business Development and
Contracts for the Corporation, and that in said position he is
considered to be part of the professional, management and
executive staff of the Corporation.
In the event Employee violates this covenant of non-
competition, both parties acknowledge and agree that the
Corporation shall have the right to bring a lawsuit to enforce
this covenant against Employee, and to obtain equitable relief in
the form of an injunction and, where applicable, damages at law;
that the District Court for El Paso County, Colorado shall have
venue, and exclusive jurisdiction in such lawsuit; and that
Colorado law shall apply.
In the event the Corporation must bring such a lawsuit by
reason of Employee's breach of this covenant of non-competition,
the Corporation shall be entitled to recover its reasonable
attorneys fees, costs, and expenses of litigation, in the event
it prevails in such lawsuit.
This covenant of non-competition has been negotiated and
agreed to by and between the Corporation and Employee with full
knowledge of, and pursuant to the requirements of Section 8-2-113
(2) of Colorado Revised Statutes, as amended from time to time,
and is deemed by both parties to be fair and reasonable under the
terms of that statute.
8. Other Business Activities.
During the period of his employment under this Agreement,
the Employee shall not be employed by or otherwise engage or be
interested in any business whether or not in competition with the
Corporation, or with any of its subsidiaries or affiliates, with
the following exceptions:
(A) Employee's investment in any business shall not be
considered a violation of this paragraph, provided that such
business is not in competition with the Corporation and the
Employee does not render management or other personal services to
such business;
(B) Employee may consult with other businesses not in
competition with the Corporation, provided that each such
consulting job shall be expressly considered and approved or
disapproved in advance by the audit committee of the Board of
Directors.
9. Indemnification.
So long as Employee is not found by a court of law to be
guilty of willful and material breach of this Agreement, or to be
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guilty of willful gross misconduct, he shall be indemnified from
and against any and all losses, liability, claims and expenses,
damages, or causes of action, proceedings or investigations, or
threats thereof (including reasonable attorney fees and expenses
of counsel satisfactory to and approved by Employee) incurred by
Employee, arising out of, in connection with, or based upon
Employee's services and the performance of his duties pursuant to
this Employment Agreement, or any other matter contemplated by
this Employment Agreement, whether or not resulting in any such
liability; and Employee shall be reimbursed by Employer as and
when incurred for any reasonable legal or other expenses incurred
by Employee in connection with investigating or defending against
any such loss, claim, damage, liability, action, proceeding,
investigation or threat thereof, or producing evidence, producing
documents or taking any other action in respect thereto (whether
or not Employee is a defendant in or target of such action,
proceeding or investigation).
10. Burden and Benefit.
This Agreement shall be binding upon, and shall inure to the
benefit of, Employer and Employee, and their respective heirs,
personal and legal representatives, successors, and assigns and
shall be expressly binding upon and inure to the benefit of any
person or entity assuring the Corporation, by merger,
consolidation, purchase of assets or stock, or otherwise;
provided, however, that the interests of the Employee hereunder
are not subject to the claims of his creditors, and may not be
voluntarily or involuntarily assigned, alienated or encumbered.
11. Governing Law.
It is understood and agreed that the construction and
interpretation of this Agreement shall at all times and in all
respects be governed by the laws of the State of Colorado.
12. Severability
The provisions of this Agreement, including particularly but
not solely, the provisions of Paragraphs 5 and 6, shall be deemed
severable, and the invalidity or unenforceability of any one or
more of the provisions of this Agreement shall not affect the
validity and enforceability of the other provisions.
13. Notice.
Any notice required to be given shall be sufficient if it is
in writing and sent by certified or registered mail, return
receipt requested, first-class postage prepaid, to this residence
in the case of Employee, and to its principal office in the case
of Employer.
14. Entire Agreement.
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This Agreement contains the entire agreement and
understanding by and between Employer and Employee with respect
to the employment of Employee, and no representations, promises,
agreements, or understandings, written or oral, not contained
herein shall be of any force or effect. No change or
modification of this Agreement shall be valid or binding unless
it is in writing and signed by the party against whom the waiver
is sought to be enforced. No valid waiver of any provision of
this Agreement at any time shall be deemed a waiver of any other
provision of this Agreement at such time or at any other time.
15. Counterparts.
The Agreement may be executed in two or more counterparts,
any one of which shall be deemed the original without reference
to the others.
IN WITNESS WHEREOF, Employer and Employee have duly executed
this Agreement as of the day and year first above written.
EMPLOYER:
ATTEST: ANALYTICAL SURVEYS, INC.
a Colorado corporation
by: /s/ Xxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx
Secretary
EMPLOYEE:
/s/ Xxxxxxx X. Xxxx
XXXXXXX X. XXXX
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