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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is dated as of this 7th
day of January, 2000 and is entered into by and between Xxxxx X. Xxxxxxx
("Executive") and Convergent Group Corporation, a Delaware corporation, having
its principal office at 0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000 (the "Corporation"). In consideration of the mutual promises and
the terms and conditions set forth below, Executive and the Corporation
(together, the "Parties," and each, a "Party") agree as follows:
1. Employment; Duties. The Corporation shall employ Executive as an
Executive Vice President - Finance and Executive hereby accepts such employment
under the terms and conditions set forth in this Agreement. Executive's duties
shall include general responsibility for the Corporation's investor relations,
capital events and financial strategies, and merger and acquisition activities,
as such duties are assigned from time to time by, and subject to the general
direction and supervision of, the Corporation's President and Chief Executive
Officer and Chief Financial Officer.
2. Full-Time Best Efforts. Executive shall devote his full professional
time and attention to the performance of his obligations under this Agreement,
and will at all times faithfully, industriously and to the best of his ability,
experience and talent perform all of his obligations hereunder. So long as this
Agreement is in effect, Executive will not be employed or engaged by any other
person or firm other than the Corporation unless otherwise authorized in writing
by the Board of Directors of the Corporation. Any and all compensation received
in money or other property from any person or entity other than the Corporation
for professional services rendered by Executive shall be deemed to be the
property of the Corporation. Executive agrees that upon the receipt of any such
money or property, he shall promptly remit such compensation to the Corporation
together with a full accounting thereof.
3. Term. The term of this Agreement shall begin on February 1, 2000
(the "Effective Date") and shall end on January 31, 2003 unless terminated prior
to that date as provided herein. The term of this Agreement may be extended on
an annual basis after January 31, 2003 by mutual agreement of the Parties.
4. Compensation and Benefits.
(a) The Corporation shall pay compensation to Executive consisting
of an annual base salary and bonuses, benefits and stock options as described in
this Agreement.
(b) Executive's annual base salary effective as of February 1,
2000 is $150,000. Effective as of the date on which Executive relocates his
personal and family
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residence to the Denver, Colorado metropolitan area, Executive's annual base
salary shall be increased by 5% to $162,500. Executive's base salary shall be
reviewed annually in conjunction with Executive's annual performance review and
may be increased, but not decreased, as appropriate in light of Executive's
performance. Executive's annual base salary shall be paid in twenty-four (24)
semi-monthly payments during each annual period.
(c) Executive shall be eligible to earn an annual incentive
performance bonus for each calendar year (the "Incentive Bonus") in addition to
his annual base salary. The targeted annual bonus amount shall be 100% of
Executive's annual base salary as of the beginning of the year under
consideration (the "Target Bonus"). The initial Target Bonus shall be pro-rated
for the period February 1, 2000 through December 31, 2000. Notwithstanding
anything herein to the contrary, there shall be no Incentive Bonus for calendar
year 2003 unless this Agreement is extended by the Parties as set forth in
Section 3. The amount of the Target Bonus which is earned shall be dependent
upon the attainment of Executive's annual performance plan, which plan shall be
established annually by mutual agreement between Executive and the Corporation
(the "Annual Performance Plan"). The initial Annual Performance Plan shall cover
the period from the Effective Date through December 31, 2000 and shall be
established within forty-five (45) days after the Effective Date. Subsequent
Annual Performance Plans shall cover a calendar year and shall be established
for each year on or before January 31 of such year. If the Corporation and
Executive are unable to mutually agree with respect to Executive's Annual
Performance Plan, the Annual Performance Plan shall be determined by the
Corporation in its reasonable discretion, provided that the plan must be
reasonably attainable by Executive. There shall be a 90% threshold for receipt
of the Incentive Bonus. If Executive achieves less than 90% of his Annual
Performance Plan during any year, Executive shall not be entitled to receive any
Incentive Bonus for such year. If the 90% threshold is met or exceeded,
Executive shall receive an Incentive Bonus equal to that percentage of the
Target Bonus which is the same as the percentage of the Annual Performance Plan
that has been met, up to 100%. Exceeding 100% of the Annual Performance Plan may
result in additional compensation to be determined by the Corporation in its
reasonable discretion. Executive must remain in the employ of the Corporation as
of the last day of the year in order to earn an Incentive Bonus for such year.
Any Incentive Bonus earned pursuant to this Agreement shall be paid no later
than April 15 of the year following the year for which the Incentive Bonus was
earned.
(d) Notwithstanding anything herein to the contrary, solely for
year 2000, Executive shall be entitled to receive a non-refundable $100,000
advance against his Incentive Bonus for such year. Such advance shall be paid in
eleven equal monthly installments payable on or before the last day of each
calendar month during year 2000, commencing February 29, 2000, provided that
Executive remains in the employ of the Corporation on each such date. Such
advance shall be offset against the amount of the Incentive Bonus, if any, which
is earned for year 2000.
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(e) In the event of the termination of Executive's employment by
the Corporation for Cause (as defined in Section 20(a)) or by Executive without
Good Reason (as defined in Section 20(c)), Executive shall be entitled to
receive an Incentive Bonus for any calendar year concluded prior to such
termination of employment but shall not be entitled to receive an Incentive
Bonus for the calendar year in which such termination of employment occurs. In
the event of the termination of Executive's employment for any reason other than
by the Corporation for Cause or by Executive without Good Reason, including
without limitation Executive's death or disability, Executive shall be entitled
to receive an Incentive Bonus both with respect to any calendar year concluded
prior to such termination of employment and with respect to the calendar year in
which such termination of employment occurs. The amount of the Target Bonus for
the year in which such termination occurs shall be prorated based upon the
amount of Executive's base salary which accrued during the portion of the year
during which Executive was employed by the Corporation, and the amount of the
Incentive Bonus for such year shall be determined based upon attainment of the
Annual Performance Plan through the end of the calendar month in which the
termination occurs.
(f) Executive shall be entitled to participate in such life
insurance, disability, medical, dental, pension, profit sharing and retirement
plans and other programs as may be made generally available from time to time by
the Corporation for the benefit of executives of Executive's level or its
employees generally (the "Benefits"). The Corporation shall also provide a
corporate car (including insurance, maintenance and fuel) for Executive's use.
5. Stock Options. Executive shall be granted options to purchase
377,709 shares of Common Stock of the Corporation (0.5% of the outstanding
capital stock of the Corporation on a fully diluted basis as of the date of this
Agreement). The exercise price of each option shall be $.046 per share. The date
of grant shall be February 1, 2000. None of the options shall be vested or
exercisable as of the date of grant. One-third of the options shall vest and
become exercisable on August 1, 2000, an additional one-third of the options
shall vest and become exercisable on August 1, 2001, and the final one-third of
the options shall vest and become exercisable on August 1, 2002, provided that
vesting on each such date is subject to the condition that Executive remains in
the employ of the Corporation on such date. The option terms set forth herein
shall be memorialized in Stock Option Agreements to be executed by the
Corporation and Executive in the Corporation's standard form, subject to the
modifications set forth herein. To the extent possible, the options shall be
granted pursuant to the Corporation's 1999 Stock Option Plan and shall be
Incentive Stock Options within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). The exercise period of the
options shall be ten years from the date of grant, subject to earlier
termination under the circumstances described in the 1999 Stock Option Plan. The
Stock Option Agreements shall permit Executive to make an "early exercise" in
the manner authorized pursuant to the 1999 Stock Option Plan.
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6. Facilities; Relocation Expenses. The Corporation shall furnish
fEacilities, equipment, services and assistance suitable to Executive's position
for the performance of Executive's duties. Executive shall relocate his personal
and family residence to the Denver, Colorado metropolitan area no later than
August 31, 2000. Prior to such time, Executive shall be based at the
Corporation's principal office in Englewood, Colorado, and the Corporation shall
provide a temporary residence and living expenses to Executive until Executive's
relocation to Denver, Colorado has been completed. Such expenses shall include
the cost of air travel from Dallas, Texas to Denver, Colorado on a weekly basis.
The Corporation shall also provide Executive its standard relocation package for
executive employees, including the purchase of Executive's home if Executive is
unable to sell it at a reasonable price within a reasonable time.
7. No Copies of Documents and Materials. Executive shall not (except in
the performance of his duties in the ordinary course of business for which he is
employed by the Corporation) at any time or in any manner make or cause to be
made any copies, pictures, duplicates, facsimiles or other reproductions or
recordings or any abstracts or summaries of any reports, studies, memoranda,
correspondence, manuals, records, plans or other written, printed, computerized
or otherwise recorded materials of any kind or nature whatsoever belonging to or
in the possession of the Corporation or any of its subsidiaries.
8. Materials Remain on Premises. Executive shall have no right, title
or interest in any material referenced in Section 7. Executive agrees that,
except in the performance of his duties in the ordinary course of business for
which he is employed by the Corporation, Executive will not, without the prior
written consent of the Corporation, remove any such material from any premises
of the Corporation. Executive further agrees that, immediately upon the
termination of his employment with the Corporation or upon the termination of
this Agreement, whichever occurs earlier, or at any time prior thereto upon the
request of the Corporation, he shall surrender all such material to the
Corporation and execute a document acknowledging that he has complied with the
provisions of this Agreement.
9. Trade Secrets. Executive shall not at any time, whether during or
after the term of this Agreement, use for Executive's own benefit or purposes or
for the benefit or purposes of any other person, firm, partnership, association,
corporation or business organization, entity or enterprise, or disclose (except
in the performance of his duties in the ordinary course of business for which he
is employed by the Corporation) in any manner to any person, firm, partnership,
association, corporation or business organization, entity or enterprise any
trade secret, information, data, know how or knowledge (including, but not
limited to, that relating to service techniques, purchasing organization and
methods, sales organization and methods, inventories, client lists, market
development and expansion plans, personnel training and development programs and
client and supplier relationships) or any other Discoveries (as defined in
Section 11) belonging to or relating to the affairs of the Corporation or any of
its subsidiaries or to the clients of the Corporation or any of its
subsidiaries; provided, however, that this
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Section 9 shall not apply to any trade secret, information, data, know how,
knowledge, or Discovery that is or becomes generally available to the public
through no fault or action of Executive.
10. Customers. In furtherance of and not in limitation of Section 9,
Executive acknowledges that the list of the Corporation's and its subsidiaries'
customers as it may exist from time to time constitutes a valuable and unique
asset of the Corporation, and Executive agrees that he shall not, during or
after the term of his employment, disclose such list or any part thereof to any
person, firm, partnership, association, corporation, or business organization,
entity or enterprise for any reason or purpose whatsoever, nor shall Executive
use such customer list for his own benefit or purposes or for the benefit or
purposes of any business with whom Executive may become associated.
11. Discoveries. Executive agrees with the Corporation that any and all
inventions, discoveries, improvements, designs, methods, systems, developments,
know how, ideas, suggestions, devices, trade secrets and processes (hereinafter
collectively referred to as "Discoveries"), whether patentable or not, which are
discovered, disclosed to or otherwise obtained by Executive during his
employment with the Corporation are confidential, proprietary information and
are the sole and absolute property of the Corporation. Executive agrees to
disclose promptly to the Corporation all such Discoveries and to assist the
Corporation in making any application in the United States and in foreign
jurisdictions for patents of any kind with respect thereto.
12. Works for Hire. All works and writings of a professional nature
which are produced by Executive during his employment with the Corporation
constitute works made for hire and are the sole and absolute property of the
Corporation. Executive grants the Corporation the exclusive right to copyright
all such works and writings in the United States and in foreign jurisdictions.
To the extent any such works or writings are deemed to not be works for hire,
Executive hereby assigns and agrees to assign all his interests therein to the
Corporation or its nominee. Whenever requested to do so by the Corporation,
Executive shall execute any and all applications, assignments, or other
instruments that the Corporation may deem necessary to protect the Corporation's
interest therein.
13. Non-Competition.
(a) Executive acknowledges that his employment as a member of the
Corporation's executive management team creates a relationship of confidence and
trust between Executive and the Corporation with respect to confidential and
proprietary information applicable to the business of the Corporation, its
subsidiaries and its clients. Executive further acknowledges the highly
competitive nature of the business of the Corporation. Accordingly, the
Corporation and Executive agree that the restrictions contained in this Section
13 are reasonable and necessary for the protection of the immediate interests of
the Corporation and that any violation of these restrictions would cause
substantial injury to the Corporation.
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(b) For purposes of this Agreement, the term "Competitive
Business" means any person, firm, partnership, association, corporation, or
business organization, entity or enterprise which derives or which expects
during the following two (2) years to derive either (i) ten percent (10%) or
more of its revenues, or (ii) more than $10,000,000 in revenues from providing
technical management consulting and/or systems integration services for
Automated Mapping/Facilities Management Systems and/or Geographic Information
Systems and/or utility transmission and distribution systems. The term
"Competitive Business" is not intended to include mere vendors or suppliers of
the Corporation.
(c) For purposes of this Agreement, the term "Existing Client"
means a client for whom the Corporation or any of its subsidiaries is performing
consulting services as of the date of the termination of Executive's employment
with the Corporation or for whom the Corporation or any of its subsidiaries
performed consulting services within the two (2) year period immediately
preceding the termination of Executive's employment with the Corporation. The
term "Existing Client" is not intended to include mere vendors or suppliers of
the Corporation.
(d) During Executive's employment with the Corporation and for a
period of one (1) year following the termination of Executive's employment with
the Corporation for any reason other than termination occasioned by the
expiration of this Agreement, Executive shall not (nor shall Executive cause, or
provide assistance to anyone else to):
i. Employ or otherwise engage, or attempt to employ or
otherwise engage, in or on behalf of Executive or any Competitive Business, any
person who is employed or engaged as an employee, consultant, agent or
representative of the Corporation or any of its subsidiaries as of the date of
Executive's termination or at any time during the one-year period following such
termination; or
ii. Solicit directly or indirectly on behalf of Executive or
any Competitive Business, the customer business or account of any Existing
Client of the Corporation.
(e) If any court shall determine that the duration, geographic
limitations, subject or scope of any restriction contained in this Section 13 is
unenforceable, it is the intention of the Parties that this Section 13 shall not
thereby be terminated but shall be deemed amended to the extent required to make
it valid and enforceable, such amendment to apply only with respect to the
operation of this Section 13 in the jurisdiction of the court that has made the
adjudication.
(f) Notwithstanding anything herein to the contrary, the
provisions of this Section 13 shall not be applicable to any termination which
occurs after the expiration of the term of this Agreement, including any renewal
term.
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14. Employability. Executive recognizes and acknowledges that he has
sufficient abilities and talents to be able to obtain, upon the termination of
this Agreement, comparable employment from another business organization or
entity while fully honoring and complying with the above covenants concerning
confidential information and contacts with the Corporation's or any of its
subsidiaries' existing customers or employees. Executive recognizes and
acknowledges the importance to the Corporation and its subsidiaries of the above
covenants and, therefore, agrees that, for a period of one (1) year following
the termination of Executive's employment with the Corporation and upon the
Corporation's reasonable request of Executive, he will advise the Corporation of
the identity of his new employer and will provide a general description, in
reasonable detail, of his new duties and responsibilities sufficient to inform
the Corporation of its need to request a court order to enforce the above
covenants.
15. Remedies. Executive acknowledges and agrees that the provisions of
this Agreement are essential to the Corporation and are reasonable and necessary
to protect the legitimate interests of the Corporation and its subsidiaries and
that the damages sustained by the Corporation or its subsidiaries as a result of
a breach of the agreements contained herein will subject the Corporation or its
subsidiaries to immediate, irreparable harm and damage, the amount of which,
although substantial, cannot be reasonably ascertained, and that recovery of
damages at law will not be an adequate remedy. Executive therefore agrees that
the Corporation and its subsidiaries, in addition to any other remedy they may
have under this Agreement or at law, shall be entitled to injunctive and other
equitable relief to prevent or curtail any breach of any provision of this
Agreement. In the event suit or action is instituted to enforce this Agreement
or any of the terms and conditions hereof, including, but not limited to, suit
for preliminary injunction, the prevailing Party shall be entitled to costs and
reasonable attorneys' fees. Executive waives any right to the posting of a bond
in the event of an issuance of a temporary restraining order, preliminary
injunction or permanent injunction upon the issuance of said order by a court of
competent jurisdiction.
16. Expenses. In the promotion and execution of the business of the
Corporation, Executive is expected to incur certain reasonable expenses for
entertainment, travel, company automobile expenses (including insurance,
maintenance, fuel and depreciation, if applicable), and business fax and
telephone bills which shall be subject to approval by the Corporation. The
Corporation recognizes the necessity for such expenditures in order to retain
and further the professional skills, abilities and standing of Executive and to
properly maintain, promote and develop the Corporation's consulting practice.
The Corporation shall also pay Executive's dues and fees for attending
professional meetings and institutes, costs of professional books and
periodicals and promotion, entertainment and travel expenses reasonably related
to the business of the Corporation. Unusual and extraordinary expenses incurred
by Executive and not approved in advance by the Corporation may not be
reimbursed.
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17. Vacation Leave Time. Vacation leave shall accrue at the rate of
four (4) weeks per year. Any unused vacation leave time accumulated during the
year shall carry over to subsequent years.
18. Disability. The Corporation may terminate this Agreement upon
written notice to Executive if Executive is physically or mentally incapacitated
and unable to perform his duties under this Agreement for a period of (i) any
one hundred eighty (180) days out of any three hundred sixty (360) days, if the
Common Stock of the Corporation is not then publicly traded, or (ii) ninety (90)
out of any one hundred eighty (180) days if the Common Stock of the Corporation
is then publicly traded. If at any time a question arises as to the incapacity
of Executive, then the Corporation shall promptly employ one physician who is a
member of the American Medical Association and who is mutually agreeable to the
Corporation and Executive to examine Executive and determine if his physical
and/or mental condition is such as to render him unable to perform his duties
under this Agreement. The decision of the physician shall be certified in
writing to the Corporation, shall be sent by the Corporation to Executive or his
representative and shall be conclusive for purposes of this Agreement. Any
compensation payments payable to Executive hereunder shall be reduced by the
amount of any disability payments Executive receives as a result of disability
policies on which the Corporation has paid the premiums.
19. Death During Employment. This Agreement shall terminate upon
Executive's death. In such event, the Corporation shall pay a death benefit
equal to Executive's base monthly salary for the balance of the month of
Executive's death and for the month following his death. Any amounts payable
under this Agreement following Executive's death shall be paid to the
beneficiary named in writing by Executive, or if none, to Executive's surviving
spouse, or if none, to the executors and administrators of Executive's estate
and shall be paid within sixty (60) days of Executive's death.
20. Termination for Other Than for Disability or Death. This Agreement
may terminate for reasons other than Executive's disability or death upon the
occurrence of any of the following events; provided, however, that neither
Executive nor the Corporation may terminate this Agreement pursuant to this
Section 20 in 2000 except for a termination by the Corporation for Cause as
provided in Section 20(a) or a termination by Executive for Good Reason as
provided in Section 20(c).
(a) The Corporation, at its option, may terminate Executive for
Cause (as defined below) upon thirty (30) days' advance written notice by the
Corporation to Executive fully setting forth such Cause, which notice of
termination may be appealed to the Board of Directors of the Corporation.
Termination shall be effective on the thirtieth (30th) day following Executive's
receipt of written notice from the Corporation. "Cause" shall be limited to a
situation in which Executive has:
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i. Committed a criminal offense that, if committed in the
State of Colorado, would have constituted a felony under the laws of the State
of Colorado or the United States (other than a traffic offense or other similar
violation); or
ii. Committed a fraudulent act which is materially harmful to
the Corporation (materiality, for purposes of this clause, means in excess of
$50,000); or
iii. Committed an act of willful misconduct which results in
actual damages against the Corporation of $500,000 or more; or
iv. Committed an act of gross insubordination by willfully
and repeatedly refusing to obey written directions of the Board of Directors (so
long as such directions do not involve illegal or immoral acts), which refusal
continues for a period of ten (10) days after written notice to Executive by the
Corporation which notice references such refusal and this Section 20(a); or
v. Committed repeated acts of alcohol or illegal drug abuse,
and has failed to take reasonable steps to address such issues within ten (10)
days after written notice to Executive by the Corporation which notice
references such acts and this Section 20(a); or
vi. Except during periods of vacation leave permitted
pursuant to Section 17, failed to devote substantially all of his professional
time and attention to the performance of his obligations under this Agreement,
as determined by the Board of Directors of the Corporation, which failure
continues for a period of fifteen (15) days after receipt of written notice by
Executive from the Corporation which notice references such failure and this
Section 20(a).
(b) The Corporation shall have the right to terminate this
Agreement without Cause at any time after thirty (30) days after receipt of
written notice by Executive from the Corporation. Non-renewal of this Agreement
shall not be deemed to be a termination of employment for purposes of this
Agreement.
(c) Executive at his option, may terminate this Agreement for Good
Reason (as defined below) upon thirty (30) days' advance written notice by
Executive to the Corporation, which notice shall reference this Section 20(c)
and shall describe in reasonable detail the cause for such Good Reason. Such
termination shall be effective on the thirtieth (30th) day following the
Corporation's receipt of written notice from Executive; provided, however, that
such termination shall not be effective if the Corporation has cured the cause
for such Good Reason to Executive's reasonable satisfaction within such thirty
(30) day period. For purposes of this Section 20(c), "Good Reason" shall mean
any of the following:
i. A material breach of this Agreement by the Corporation;
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ii. The Corporation's requiring Executive to be based at any
office or location other than one within the Denver, Colorado metropolitan area,
except for required travel on the Corporation's business;
iii. Any purported termination by the Corporation of
Executive's employment other than as permitted in this Agreement, it being
understood that any such purported termination shall not be effective for any
purpose of this Agreement, and it being further understood that the nonrenewal
of this Agreement shall not be deemed to be a termination of employment for
purposes of this Agreement; or
iv. A material reduction in the character of the duties
assigned to Executive or in Executive's level of work responsibility, unless
mutually agreed upon by Executive and the Corporation.
(d) Executive shall have the right to terminate this Agreement
without cause at any time upon sixty (60) days' advance written notice to the
Corporation.
21. Rights Upon Termination.
(a) Upon termination of Executive's employment with the
Corporation, the Corporation shall have no further obligation to Executive
except as specifically provided under this Agreement. Termination of Executive's
employment shall not affect Executive's right to receive any compensation or
bonuses which have accrued but have not been paid through the date of
termination.
(b) Upon the termination of Executive's employment with the
Corporation either (i) by the Corporation without Cause or (ii) by Executive for
Good Reason, in addition to any accrued compensation or bonuses, the Corporation
shall pay Executive a severance benefit equal to three months of Executive's
annual base salary as in effect pursuant to Section 4(b) as of the date of
termination. Any such severance payment due to Executive shall be paid in cash
or by check on the same dates on which Executive would otherwise have received
payment of his annual base salary hereunder if employment had continued.
(c) Upon the termination of Executive's employment with the
Corporation for any reason, Executive shall be return to the Corporation any and
all equipment owned by the Corporation and used by Executive.
22. Default in Payments. If any payment is due and payable to Executive
following a termination of this Agreement and such payment is not made when due
and such non-payment continues for a period of ten (10) days after written
notice thereof from Executive to the Corporation, which notice describes such
payment default and references this Section 22, the following shall occur:
(a) Executive shall be immediately released from Section 13 hereof
regarding non-competition; and
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(b) Executive shall retain all other rights and remedies against
the Corporation.
23. Withholding Tax. The Corporation shall be entitled to withhold from
any compensatory payments which it makes to Executive under this Agreement or
otherwise an amount sufficient to satisfy all Federal, state and local income
and employment tax withholding requirements with respect to any and all
compensation paid to Executive by the Corporation.
24. Arbitration. Any controversy or claim arising out of or related to
this Agreement shall be settled by arbitration in Englewood, Colorado, under the
Commercial Rules of the American Arbitration Association in effect at the time
such controversy or claim arises (the "Rules") by one arbitrator appointed by
the American Arbitration Association in accordance with the Rules, the
arbitrator also apportioning the costs of arbitration. The award of the
arbitrator shall be in writing, shall be final and binding upon the Parties,
shall not be appealed from or contested in any court and may, in appropriate
circumstances, include injunctive relief. Should any Party fail to appear or be
represented at the arbitration proceedings after due notice in accordance with
the Rules, then the arbitrator may nevertheless render a decision in the absence
of said Party, and such decision shall have the same force and effect as if the
absent Party had been present, whether or not it shall be adverse to the
interests of that Party. Any award rendered hereunder may be entered for
enforcement, if necessary, in any court of competent jurisdiction, and the Party
against whom enforcement is sought shall bear the expenses, including attorneys'
fees, of enforcement. Notwithstanding the foregoing, the Corporation shall be
entitled to seek injunctive or other equitable relief to enforce any of the
provisions in Sections 7 through 13 from any court of competent jurisdiction
without the need to resort to arbitration.
25. Survival. The covenants contained in this Agreement shall survive
any termination of Executive's employment with the Corporation and shall survive
any termination of this Agreement. The existence of any claim or cause of action
of Executive against the Corporation, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Corporation
of any of the covenants contained in this Agreement.
26. Severability. If the scope of any restriction contained in this
Agreement is too broad to permit enforcement of such restriction to its fullest
extent, then such restriction shall be enforced to the maximum extent permitted
by law, and Executive and the Corporation hereby consent and agree that the
scope of such restriction may be judicially modified in any proceeding brought
to enforce such restriction. To the extent any provision of this Agreement shall
be invalid or unenforceable, it shall be considered deleted from this Agreement
and the remainder of this Agreement shall remain in full force and effect. In
furtherance and not in limitation of the foregoing, should the duration or
geographical extent of or business activities covered by any provision of this
Agreement be in excess of that which is valid and enforceable under applicable
law,
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then such provision shall be construed to cover only that duration or extent or
those activities which may validly and enforceably be covered.
27. Subsidiaries. The "subsidiaries" of the Corporation as that term is
used in this Agreement include Utility Graphics Consultants Corporation, Graphic
Data Systems Corporation and their subsidiaries, together with any other
corporation in which the Corporation or its subsidiaries hold more than a fifty
percent (50%) interest at any time during the term of this Agreement.
28. Notice. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered by personal delivery,
air courier, or if mailed by registered or certified first-class mail, return
receipt requested, to the residence of Executive as it appears in the corporate
records for notice to Executive, or to the principal office of the Corporation
for notice to the Corporation. All notices delivered in accordance with this
Section shall be deemed to have been received and shall be deemed effective if
delivered in person or by air courier, upon actual receipt by the intended
recipient, or if mailed, upon the date of delivery or refusal to accept delivery
as shown by the return receipt therefor.
29. No Waiver. No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be any estoppel to enforce any provision of
this Agreement, except by a statement in writing signed by the Party against
whom enforcement of the waiver or estoppel is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically stated, and shall operate
only as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other than that
specifically waived.
30. Amendments. No amendment or modification of this Agreement shall be
deemed effective unless made in writing and signed by the Parties hereto.
31. Assignment. The rights and obligations of the Corporation under
this Agreement shall, without the prior written consent of Executive, inure to
the benefit of and be binding upon the successors and assigns of the
Corporation. If the Corporation shall at any time be merged or consolidated with
any other corporation or shall sell or otherwise transfer a substantial portion
of its assets to another corporation or entity, the provisions of this Agreement
shall be binding upon and inure to the benefit of the corporation or entity
surviving or resulting from such merger or consolidation or to which such assets
have been sold or transferred. Upon Executive's request, the Corporation shall
obtain an agreement to expressly assume this Agreement from any such successor.
This is a personal service contract and may not be assigned by Executive.
32. Entire Agreement. This instrument contains the entire agreement of
the Parties relating to the subject matter hereof and supersedes all prior
agreements and understandings with respect to such subject matter, whether oral
or written, and all other communications relating to the subject matter hereof,
and the Parties hereto have made
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no agreements, representations or warranties relating to the subject matter of
this Agreement that are not set forth herein.
33. Governing Law. This Agreement is made under and shall be governed
by and construed in accordance with the internal laws of the State of Colorado
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
34. Headings. The headings of sections in this Agreement are solely for
convenience of reference and shall not control the meaning or interpretation of
any provision of this Agreement.
Signed by the Parties on the day and year first above written.
"CORPORATION"
CONVERGENT GROUP CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxxx, Xx.
Chief Executive Officer
"EXECUTIVE"
/s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
Executive
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