EXHIBIT 10.27
EMPLOYMENT AGREEMENT
(CHIEF EXECUTIVE OFFICER)
This employment agreement (this "Agreement"), dated as of July 10, 2001
(the "Effective Date"), is between Analytical Surveys, Inc., a Colorado
corporation whose principal executive offices are located in Indianapolis,
Indiana ("Employer"), and Xxxxxx Xxxxxx ("Officer") and is being executed on
August 23, 2001.
RECITALS
A. Officer has been retained by the Company under an Employment
Agreement dated as of July 10, 2000 (the "Old Agreement"), which expired as of
July 9, 2000. Employer wishes to continue to retain the services of Officer, and
Employer and Officer wish to formalize the terms and conditions of their
agreements and understandings.
B. Officer's employment by Employer, the mutual covenants stated in
this Agreement, and other valuable consideration, the receipt of which are
acknowledged by Officer, are sufficient consideration for this Agreement.
C. Except as provided in Section 21 of this Agreement, this Agreement
supersedes and replaces any prior employment agreements entered into by and
between Employer and Officer, including the Old Agreement, including the
temporary extension of the Old Agreement that was effected by the letter
agreement dated July 30, 2001.
AGREEMENT
The parties agree as follows:
1. Employment. As of the Effective Date, Employer's retention of
Officer as its President and Chief Executive Officer is continued under the
terms of this Agreement.
2. Term of Employment. This Agreement will commence on the Effective
Date and will continue until September 30, 2002 (the "Initial Term"). The
parties agree to give each other notice as to their desire to renew this
Agreement at least 30 days prior to the end of the Initial Term.
3. Actions of Employer. All actions by and decisions of Employer
contemplated in this Agreement will be made by Employer's Board of Directors,
except as specifically provided below regarding the taking of vacations.
4. Duties of Officer. Officer's principal duties on behalf of Employer
as of the date of this Agreement are as President and Chief Executive Officer of
Employer. In accepting employment by Employer, Officer will undertake and assume
the responsibility of performing for and on behalf of Employer whatever duties
are necessary and required in the position of President and Chief Executive
Officer of Employer. Officer will devote substantially Officer's full time and
energies and best effort to the performance of such duties, to the exclusion of
all
other business activities that conflict in any material way with Officer's
duties under this Agreement (and Officer will be permitted to participate in
civic and charitable activities so long as such activities do not materially
interfere with Officer's duties under this Agreement).
5. Location of Employment. Officer will perform the above duties at
Employer's principal executive offices, currently in Indianapolis, Indiana. If
the location of Employer's principal executive offices changes subsequent to the
date upon which this Agreement is executed, Officer agrees to continue to
perform the duties prescribed above at the changed location, if requested to do
so by Employer. If Officer is required to move his principal residence to the
changed location, Employer will pay all of the reasonable costs of moving the
personal property of Officer to the changed location, temporary accommodations,
and airline tickets, up to an aggregate limit of $30,000, subject to the
submission to Employer of such receipts and other evidence of the incurrence of
such expenses as is reasonably requested by Employer. Employer will use
reasonable efforts to accommodate the personal and family needs of Officer by
providing as much advance notice as is reasonably feasible concerning any
requested move of Officer's principal residence, and in any event will not
require Officer to move his principal residence without giving Officer at least
180 days' notice.
6. Compensation.
(a) Salary. Employer will pay to Officer $9,615.38 every other
Friday (beginning July 24, 2001) as salary ("Base Salary"), subject to customary
withholding. The intent of the parties is to establish 26 pay periods per
12-month period so that Officer receives a total of $250,000 in Base Salary per
12-month period.
(b) Stock Options. Officer has been granted an option to
purchase 100,000 shares of common Stock of Employer at an exercise price of
$1.00 per share, as of August 23, 2001. The vesting period of such stock options
will be as follows: options for 25,000 shares will vest six months after the
date of this Agreement, options for an additional 25,000 shares will vest 12
months after the date of this Agreement, options for an additional 25,000 shares
will vest 24 months after the date of this Agreement, and options for the final
25,000 shares will vest 36 months after the date of this Agreement.
(c) Bonuses. Employer will pay a bonus to Officer in
accordance with the bonus provisions set forth in EXHIBIT 1.
(d) Vacations. Officer will be entitled to vacations of not
less than 4 weeks per 12-months of employment, in accordance with the procedures
prescribed by Employer's regular vacation policies established for senior
executives. Officer may accrue any unused vacation time from year to year (up to
a limit of 8 weeks of unused vacation, with any unused vacation in excess of 8
weeks to be paid in cash at or promptly after the end of any 12-month period,
based on Officer's then current Base Salary for the year in which such excess
vacation accrued), and Employer will compensate Officer upon termination of
employment for any unused vacation time based on Officer's then current Base
Salary. Any specific vacation of more than 4 weeks' duration is subject to the
advance approval of Employer, which approval is to be sought from the Chair of
the Compensation Committee of the Board of Directors. In addition,
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Officer agrees to give the Chair of the Compensation Committee notice in advance
concerning any vacation time to be taken, and will confirm with such Chairman
the actual taking of vacation time promptly after such vacation time is taken.
(e) Additional Benefits. Officer will be entitled to benefits
(which may include hospitalization, medical, disability, profit sharing and
retirement plan benefits) in accordance with Employer's policies for persons
holding similar executive positions with Employer, as they may be modified by
Employer from time to time, as determined by Employer in its sole discretion.
(f) Reimbursement of Business Expenses. Employer will
reimburse all reasonable expenses incurred by Officer on behalf of Employer in
connection with Officer's performance of duties under this Agreement, subject in
each case to compliance by Officer with any reasonable requirements imposed by
Employer (by written Employer policy or by written notice to Officer) concerning
submission of invoices, prior approval, tax deductibility of expenses, and
similar matters.
(g) Disability. "Disability" and "Disabled" are defined as set
forth in the disability insurance policy of Employer or, if no such policy
covers Officer, then "Disability" and "Disabled" are defined as the inability to
perform customary functions for up to 90 days in any 12-month period. If Officer
becomes Disabled, Disability benefits, if any, will be in the amounts provided
for in Employer's Employee Handbook or, if not provided for executive officers
in the Employee Handbook, then as otherwise provided to executive officers, as
such benefits may be modified by Employer from time to time, as determined by
Employer's Board of Directors in its sole discretion.
(h) Death. In the case of Officer's death, benefits, if any,
will be limited to the amounts paid to Officer (or Officer's designated
beneficiary) by reason of Employer's group life insurance plan, if any, and any
separate life insurance policy that is assigned to Officer or as to which
Employer grants to Officer the right to designate the beneficiary.
7. Legal Expenses.
Officer may seek advice, at no cost to Officer, directly from
Employer's Company counsel concerning the following, and any matters reasonably
related to the following, for the purpose of assisting Officer and Employer's
other officers and directors:
(a) Compliance with Rule 144 of the Securities Act of 1933,
including the filing of Form 144, calculation of holding periods and volume
limitations, consequences under Rule 144 of gift transactions and transfers to
family members, and other technical aspects of Rule 144;
(b) Compliance with Section 16(a) and 16(b) of the Securities
Exchange Act of 1934, as amended, or any successor statute (the "Exchange Act"),
relating to reporting of transactions under Form 4 and Form 5 and avoidance of
liability for short-swing profits;
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(c) Compliance with Rule 10b-5 of the Exchange Act and xxxxxxx
xxxxxxx prohibitions generally;
(d) Exercising stock options and resale of securities acquired
under stock options, including advice on mechanical aspects of exercising
options under the plans, general tax advice, and securities law advice;
(e) Non-adversarial aspects of public offerings, including
execution of registration statements, questionnaires, powers of attorney,
underwriting agreements (as selling shareholder), lock-up agreements, and the
like; and
(f) Any other matters incidental to Officer's administration
of Employer's operations that would not be reportable as income to Officer on
IRS Form 1099 or as compensation to Officer under Item 402 of Regulation S-K of
the Securities Act of 1933 and the Exchange Act.
8. Termination and Severance Pay.
(a) If Officer terminates employment for Good Reason or if
Employer terminates Officer's employment without Cause,
(1) Officer will receive all earned Base
Salary under Section 6(a) and benefits under Section 6(d) and
(e) only through the last day of Officer's employment with
Employer (as well as reimbursement of expenses incurred
through the last day of Officer's employment); and
(2) For each of the 12 successive months
immediately following Officer's last day of employment with
Employer, Employer will pay to Officer, as severance pay, an
amount equal to 100% of Officer's Base Salary then in effect,
payable every other Monday, beginning on the first Monday
immediately following Officer's last day of employment with
Employer on which Officer otherwise would have been paid had
Officer's employment not terminated.
(b) If Employer terminates Officer's employment for Cause or
if Officer terminates employment voluntarily,
(1) Officer will receive all earned Base
Salary under Section 6(a) and benefits under Section 6(d) and
(e) only through the last day of Officer's employment with
Employer (as well as reimbursement of expenses incurred
through the last day of Officer's employment); and
(2) Officer will receive no severance pay.
Employer may terminate Officer's employment
with Employer at any time, for Cause, upon notice to Officer. "Cause" means (1)
any fraud, theft or intentional misappropriation perpetrated by Officer against
Employer; (2) conviction of Officer of a felony;
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(3) a material and willful breach of this Agreement by Officer, if Officer does
not correct such breach within a reasonable period after Employer gives notice
to Officer (with such notice to specify in reasonable detail the action or
inaction that constitutes such breach); (4) willful or gross misconduct in any
material manner by Officer in the performance of duties under this Agreement; or
(5) the chronic, repeated, or persistent failure of Officer in any material
respect to perform Officer's obligations as an executive officer of Employer
(other than by reason of a disability as determined under common law or any
pertinent statutory provision, including without limitation the Americans With
Disabilities Act), if Officer does not correct such failure within a reasonable
period after Employer gives notice to Officer (with such notice to specify in
reasonable detail the action or inaction that constitutes such failure).
Employer and Officer agree that the provisions of (5) are not intended to
provide grounds for a termination for Cause merely because of a failure on the
part of Officer to satisfy performance goals set by Employer as long as Officer
is performing services in a manner reasonably expected of an executive officer.
"Good Reason" means (w) any material
reduction in the scope of Officer's responsibilities (measured from the date of
this Agreement), but the hiring of a Chief Operating Officer who reports to
Officer will not be considered such a material reduction; any demotion in title
from that of President and Chief Executive Officer; or the imposition of any
requirement that Officer report, on a general basis, to any person other than
Employer's Chairman of the Board of Directors or the Board of Directors as a
whole; (x) the occurrence of a material breach of this Agreement by Employer,
which breach remains uncured for 45 days after Officer gives Employer notice of
such breach (describing the breach in reasonable detail); (y) any material
reduction in the benefits afforded to Officer as provided for in Employer's
Employee Handbook, as measured from the date of this Agreement; or (z) the
occurrence of a Change in Control and (1) the expiration of 90 days or (2) the
termination of Officer's employment without Cause after or upon such Change in
Control, whichever of (1) and (2) occurs first.
9. Change in Control.
(a) For purposes of this Agreement, and except as set forth in
Section 9(b), a "Change in Control" of Employer will be deemed to occur if (i)
the Board of Directors recommends to the shareholders of Employer that all or
substantially all of the assets of Employer be sold, or that Employer be merged
with or into, or consolidated with, a person (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934), (ii) the shareholders
of Employer approve such transaction, and (iii) such transaction actually is
consummated.
(b) No Change in Control will be deemed to have occurred for
any merger or consolidation with a subsidiary of Employer, or the creation of a
holding company structure where no material change in beneficial ownership
occurs, or any such transaction where only the state of incorporation of
Employer changes. A Change in Control also will not be deemed to occur with
respect to Officer if, after the purchase of assets or the merger or
consolidation, a majority of the then combined voting power of the then
outstanding voting securities (or voting equity interests) of the surviving
corporation or of the corporation (or other entity) acquiring all
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or substantially all of the assets of Employer are beneficially owned, directly
or indirectly, by Officer or by a group, acting in concert, that includes
Officer.
10. Confidential Information, Trade Secrets and Inventions.
(a) Confidential Information. Officer acknowledges that
information, observations, and data obtained by Officer, both prior to the
Effective Date while Officer was employed by Employer (or any predecessor whose
stock or assets have been acquired by Employer, if applicable) and after the
Effective Date, concerning the business or affairs of Employer (or any such
predecessor, as the case may be) constitute confidential information, are trade
secrets, are the property of Employer, and are essential and confidential
components of Employer's business. For as long as Officer is employed by
Employer and for a period of two years thereafter, Officer will not directly or
indirectly disclose to any person or use any of such information, observations
or data, except in the course of Officer's employment with Employer, and except
to the extent that:
(i) the information was within the public domain at
the time it was provided to Officer;
(ii) the information was published or otherwise
became part of the public domain after it was provided to Officer
through no fault of Officer;
(iii) the information already was in Officer's
possession at the time Employer (or a predecessor) disclosed it to
Officer, was not acquired by Officer directly or indirectly from anyone
with a duty of confidentiality to Employer (or any predecessor), and
was not acquired by Officer under circumstances in which Officer
already was an employee of or a consultant to Employer (or any
predecessor), or had a duty of confidentiality to Employer (or any
predecessor);
(iv) the information after the Effective Date becomes
available to Officer from a source other than Employer (or any
predecessor), which source did not acquire the information directly or
indirectly from anyone with a duty of confidentiality to Employer (or
any predecessor); or
(v) the information is required to be disclosed (A)
by any federal or state law rule or regulation, (B) by any applicable
judgment, order, or decree of any court, governmental agency or
arbitrator having or purporting to have jurisdiction in the matter, or
(C) pursuant to any subpoena or other discovery request in any
litigation, arbitration or other proceeding, but if Officer proposes to
disclose the information in accordance with (A), (B), or (C), Officer
will first give Employer reasonable prior notice of the proposed
disclosure of any such information so as to provide Employer an
opportunity to consult with Officer as to the applicability of such
law, rule, or regulation or to appear before any court, governmental
agency, or arbitrator in order to contest the disclosure, as the case
may be, and prior to any such disclosure will redact such information
to the maximum extent permissible.
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The foregoing provisions regarding the disclosure and use of confidential
information are not intended to have the effect of binding Officer to a covenant
against competition after the term of this Agreement (as Officer has not agreed
to be bound by a covenant against competition after the term of this Agreement).
Accordingly, the foregoing confidentiality and non-use provisions are to be
interpreted in such a manner that Officer will not be prohibited from utilizing
general information and know-how that Officer gained in the course of providing
services to Employer and that thereby became a part of Officer's base of
knowledge and experience, but will be prohibited from using specific
confidential information (such as information concerning pricing or structure of
customer contracts that Employer, salary and benefits information, know-how that
was developed by Employer and relates to specific projects, or the like) in a
manner that would be unfair to Employer and to which competitors of Employer
would not lawfully be able to obtain access.
(b) Inventions. For purposes of this Section 10, "Invention"
means any invention, improvement, discovery or idea (whether patentable or not,
and including those which may be subject to copyright protection) generated,
conceived or reduced to practice by Officer alone or in conjunction with others
and which relates to any substantial degree to the business conducted by
Employer, during or after normal business hours, whether prior to Effective Date
while Officer was an employee of Employer (or any predecessor) or during the
term of this Agreement, and all associated rights to patents, copyrights and
applications for such rights. "Invention" does not mean any invention,
improvement, discovery or idea (whether patentable or not, and including those
which may be subject to copyright protection) generated, conceived, or reduced
to practice by Officer alone or in conjunction with others, after normal
business hours, which would not be used or useful in the business of Employer.
Officer will promptly disclose to Employer in writing all Inventions. All
Inventions are the exclusive property of Employer and are deemed assigned to
Employer. For as long as Officer is employed by Employer and for a period of two
years thereafter, Officer will, at Employer's reasonable expense, provide
Employer with all assistance it requires to protect, perfect and use its rights
to and its interest in Inventions anywhere in the world and to vest in Employer
such rights and interest.
(c) Return of Documents, Etc. Immediately upon termination of
Officer's employment with Employer or at any time upon notice to Officer from
Employer, Officer will deliver to Employer all memoranda, notes, plans, records,
reports, and other documents and information provided to Officer by Employer or
created by Officer in connection with Officer's employment, and all copies of
all such documents in any tangible form which Officer may then possess or have
under Officer's control, and will destroy all of such information in intangible
form which is in Officer's possession or under Officer's control.
(d) Survival of Obligations Upon Officer's Termination. The
obligations of Officer in this Section 10 will survive the termination of
Officer's employment with Employer for the periods specified above, whether such
termination is for any reason whatsoever or for no reason, and whether initiated
by Officer or by Employer, and will continue for such periods until Employer
consents in writing to the release of Officer's obligations under this
Agreement.
(e) Remedy for Breach. Both Officer and Employer expressly
acknowledge that the subject matter of this Agreement is unique, and that any
breach of Officer's obligations
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under this Section 10 is likely to result in irreparable injury to Employer, and
the parties therefore expressly agree that either party will be entitled to
obtain specific performance of this Agreement through injunctive relief and such
ancillary remedies of an equitable nature as a court may deem appropriate. Such
equitable relief will be in addition to, and the availability of such equitable
relief will not preclude, any legal remedies or other remedies which might be
available to such party. If Officer breaches any provisions in this Section 10,
Employer is entitled to apply for equitable relief in any court of competent
jurisdiction prior to initiation of arbitration. Employer's application for
temporary injunctive relief will not limit Employer from pursuing any other
available remedies for such breach. However, if Employer seeks temporary
injunctive relief, the merits of the underlying dispute will be decided in
arbitration, as provided in Section 19.
11. Severability. Each provision of this Agreement, including
particularly, but not solely, the provisions of Section 10, is intended to be
severable, and if any portion of this Agreement is held invalid, illegal,
unenforceable or void for any reason, the remainder of this Agreement will
nonetheless remain in full force and effect. Any portion held to be invalid,
unenforceable, or void will, if possible, be deemed amended or reduced in scope,
but such amendment or reduction in scope will be made only to the minimum extent
required for purposes of maximizing the validity and enforceability of this
Agreement.
12. General Acknowledgments. Officer and Employer expressly agree that
the restrictions on Officer's activities imposed under Section 10 are reasonable
and necessary to protect the trade secrets of Employer. The parties expressly
agree that (i) Officer is benefitted by these restrictions, insofar as other
persons in similar managerial positions with Employer have entered or will enter
into similar agreements with Employer, and (ii) these restrictions are
reasonable and necessary to protect Employer and its subsidiaries from loss of
property rights and from competing efforts . The parties further expressly agree
that, if any court of competent jurisdiction determines that any provision of
Section 10 is unreasonable, the court will not declare the provision invalid,
but rather will reform and modify the provision, and enforce the provision, to
the maximum extent permitted by law. The existence of any claim or cause of
action of Officer against Employer, whether predicated on this Agreement or
otherwise, will not constitute a defense to the enforcement by Employer of the
provisions of Section 10.
13. Non-Waiver. The failure to enforce any right arising under this
Agreement or any similar agreement on one or more occasions will not be deemed
or construed to be a waiver of that right under this Agreement or any other
agreement on any other occasion, or of any other right on that occasion or any
other occasion.
14. Officer Warranties. Officer warrants to Employer that, as of the
Effective Date, (a) Officer is not employed and is not a party to another
employment contract, express or implied; (b) Officer has no other obligation,
contractual or otherwise, which would prevent Officer from entering into this
Agreement and from complying with its provisions; (c) Officer does not possess,
and will not utilize during Officer's employment with Employer, any confidential
information obtained by Officer through or in connection with any prior
employment, relating to any prior employer's business, products, services,
techniques, methods, systems, plans, policies, prices, customers, prospective
customers, or employees; and (d) Officer
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has given Employer timely written notice of any of Officer's prior employment
agreements or patent rights that might conflict with any interest of Employer
and has provided Employer with a copy of such agreements or patent rights,
including any applications for such rights.
15. Successors and Assigns. This Agreement is binding upon, and will
inure to the benefit of, Employer and Officer, and their respective heirs,
personal and legal representatives, successors, and assigns and is binding upon
and will inure to the benefit of any person or entity succeeding Employer, by
merger, consolidation, purchase of assets or stock, or otherwise, but the
interests of Officer under this Agreement are not subject to the claims of
Officer's creditors, and may not be voluntarily or involuntarily assigned,
alienated or encumbered, except as required by law.
16. Integration Clause and Modification. This Agreement is the complete
and exclusive statement of the agreement between the parties and supersedes all
proposals, prior agreements, and all other communications between the parties,
oral or in writing, relating to the subject matter of this Agreement. This
Agreement may be amended or superseded only by an agreement in writing, signed
by Officer and an executive officer of Employer.
17. Notices. All notices, requests, demands, claims, and other
communications under this Agreement must be in writing. Any notice, request,
demand, claim, or other communication under this Agreement will be deemed duly
given only if it is sent by registered or certified mail, return receipt
requested, postage prepaid, or by courier, or by telecopy or facsimile, and must
be addressed to the intended recipient as follows:
If to Employer, to:
Analytical Surveys, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
with a copy to:
Chair of Compensation Committee of Board of Directors
At the address of such person to which the Company normally
sends communications relating to the Board of Directors
and with a copy to:
Xxxxx X. Xxxx
Xxxxxxx & Xxxxxx L.L.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
If to Officer: to Officer's residence, as shown on Employer's records.
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Notices will be deemed given and received three days after mailing if sent by
certified mail, when delivered if sent by courier, and one business day after
receipt of confirmation by person or machine if sent by telecopy or facsimile
transmission. Either party may change the address to which notices, requests,
demands, claims and other communications under this Agreement are to be
delivered by giving the other party notice in the manner set forth above.
18. Governing Law and Forum. Employer and Officer acknowledge and agree
that the State of Indiana has a substantial connection with this Agreement. This
Agreement will therefore be governed by and construed according to the internal
laws of the State of Indiana, without regard to conflict of law principles.
19. Dispute Resolution. Subject to the availability of temporary
equitable relief under Section 10, any and all claims, disputes, or
controversies between Officer and Employer, any business affiliated with
Employer, or any of their respective directors, officers, managers, employees or
agents, including but not limited to those arising out of or related to this
Agreement, will be resolved by arbitration in Indianapolis, Indiana. Except as
so provided in Section 10, by signing this Agreement, Officer and Employer
voluntarily, knowingly, and intelligently waive any right that either of them
may otherwise have to seek remedies in a court of law or other forums, including
the right to a jury trial. The Federal Arbitration Act, 9 U.S.C. Section 1 et
seq. ("FAA"), as amended, will govern the arbitrability of all claims, if they
are enforceable under the FAA. If the FAA does not govern, the Indiana Uniform
Arbitration Act, Ind. Code Section 34-57-2-1 et seq., will apply. Additionally,
the substantive law of Indiana will apply to any common law claims. A single
arbitrator engaged in the practice of law will conduct the arbitration. The
parties will select the arbitrator, but if the parties are unable to do so, they
will obtain from the Federal Mediation and Conciliation Service a panel of five
possible arbitrators who meet the requirements of this Section 19, and will
alternatively strike names (the party raising the claim, dispute, or controversy
will have the first strike) until one remains. Other than as set forth in this
Section 19, the arbitrator will have no authority to add to, detract from,
change, amend, or modify the provisions of this Agreement, any other agreement
between Employer and Officer, or existing law, but will have the authority to
award any and all relief that would otherwise be available to a party in a
court. Any and all requirements for the exhaustion of administrative remedies
and other legal prerequisites to the filing of a claim in court will continue to
apply to the claim if the claim is raised by a party in the arbitration. All
arbitration proceedings, including settlements and awards, arising out of this
Agreement will be confidential. The arbitrator's decision and award will be
final and binding as to all claims which were, or could have been, raised in the
arbitration, and judgment upon the award rendered by the arbitrator may be
entered into any court having jurisdiction of the matter. If any party files a
judicial or administrative action asserting claims subject to this arbitration
provision, and another party successfully stays such action or compels
arbitration of such claims, the party filing the judicial or administrative
action will pay the other party's costs and expenses incurred in seeking such
stay and/or compelling arbitration, including reasonable attorneys' fees.
20. Acknowledgment by Officer. Officer has been afforded the
opportunity to read, reflect upon and consider the terms of this Agreement, has
been afforded the opportunity to discuss this Agreement with Officer's attorney
or other advisor or counselor, has read this entire
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Agreement, fully understands its terms, has voluntarily executed this Agreement,
and has retained one executed copy of this Agreement for Officer's records.
21. Resolution of Obligations under Old Agreement. In light of
constraints on cash flow of the Company, Officer has offered to resolve certain
payment obligations of the Company under the Old Agreement. Accordingly, in
light of such offer and in consideration for the execution of this Agreement by
the Company, Officer and the Company agree as follows:
(a) The $100,000 bonus payable to Officer with respect to the
third quarter of fiscal 2001 will be paid to Officer at the rate of $25,000 per
pay period, beginning August 6, 2001.
(b) The bonus payable to Officer with respect to the fourth
quarter of fiscal 2001 under the Old Agreement will not be paid, and Officer
waives all rights to such bonus.
(c) The parties acknowledge that, except as provided in (a)
and (b), all amounts due under the Old Agreement have been paid in full.
ACCEPTED AND AGREED: ACCEPTED AND AGREED:
ANALYTICAL SURVEYS, INC.
By: By:
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Name: Xxxxxxx X. XxxXxxx, Director Name: Xxxxxx Xxxxxx
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EXHIBIT 1
BONUS PROVISIONS
Employer will pay to Officer a bonus in the amounts and at the times
set forth below:
(1) Fourth Quarter (FY 2001) Performance Bonus. With respect to
the fiscal quarter beginning July 1, 2001, and ending
September 30, 2001, Employer will pay Officer a bonus of up to
$65,000, depending on Officer's satisfaction of operational
and financial goals to be articulated by the Board of
Directors in its sole discretion after consultation with
Officer.
(2) First Quarter Performance Bonus. With respect to the fiscal
quarter beginning October 1, 2001, and ending December 31,
2001, Employer will pay Officer a bonus of up to $65,000,
depending on Officer's satisfaction of operational and
financial goals to be articulated by the Board of Directors in
its sole discretion after consultation with Officer.
(3) Second Quarter Performance Bonus. With respect to the fiscal
quarter beginning January 1, 2002, and ending March 31, 2002,
Employer will pay Officer a bonus of up to $65,000, depending
on Officer's satisfaction of operational and financial goals
to be articulated by the Board of Directors in its sole
discretion after consultation with Officer.
(4) Third Quarter Performance Bonus. With respect to the fiscal
quarter beginning April 1, 2002, and ending June 30, 2002,
Employer will pay Officer a bonus of up to $65,000, depending
on Officer's satisfaction of operational and financial goals
to be articulated by the Board of Directors in its sole
discretion after consultation with Officer.
(5) Fourth Quarter Performance Bonus. With respect to the fiscal
quarter beginning July 1, 2002, and ending September 30, 2002,
Employer will pay Officer a bonus of up to $65,000, depending
on Officer's satisfaction of operational and financial goals
to be articulated by the Board of Directors in its sole
discretion after consultation with Officer.
Officer must be employed by Employer throughout the fiscal quarter in order to
receive the bonus payment with respect to such fiscal quarter, except that, if
Employer terminates Officer's employment without cause during any fiscal quarter
during the term of this Agreement or if Officer terminates employment with
Employer for Good Reason during any fiscal quarter during the term of this
Agreement, then the bonus for the fiscal quarter will be payable to Officer as
long as the operational and financial goals established for such fiscal quarter
are satisfied (notwithstanding that Officer was not employed throughout such
fiscal quarter). Employer's Board of Directors (which will receive the
recommendation of the Compensation Committee)
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will make all determinations as to eligibility for and the amount of any
performance bonuses. Employer will cause all such determinations to be made
promptly after the financial results for the pertinent fiscal quarter become
available and in any event not later than 30 days after the end of the fiscal
quarter. Payments of performance bonuses with respect to any fiscal quarter will
be made in full on the first pay period that occurs after the bonus for such
fiscal quarter is determined.
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