EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into between NAVIDEC, Inc., a
Colorado corporation ("Employer"), and Xxxxx Xxxxxx ("Employee").
RECITALS
ACI Systems, Inc. and Interactive Planet, Inc. ("IPI") are the parties
to a Plan and Agreement of Merger dated as of June 21, 1996, pursuant to
which ACI Systems, Inc. will survive under the name NAVIDEC, Inc. Employee is
a founder, an employee and the President of ACI Systems, Inc. Employer
desires to continue the employment of Employee upon the effectiveness of the
merger between ACI Systems, Inc. and IPI, and Employee desires to continue
his employment with ACI, all upon and subject to the terms and conditions
contained herein.
AGREEMENTS
Now, therefore, in consideration of the foregoing and the mutual
promises set forth below, the parties agree as follows:
1. EMPLOYMENT. Employer hereby employes Employee and Employee hereby
accepts such employment, subject to the terms and conditions of this
Agreement. Employment shall serve in such capacities and perform such
functions as the Board of Directors of the Company shall determine from time
to time; provided, however, that Employee's duties shall always be
professional in nature and shall utilize and be consistent with the training,
talent, and ability of Employee.
2. FULL-TIME BEST EFFORTS. Employee shall devote his full professional
time and attention to the performance of his obligations under this
Agreement, and shall at all times faithfully, industriously, and to the best
of his ability, experience, and talent perform all of his obligations
hereunder.
3. TERM AND TERMINATION. The term of this Agreement shall commence on
the date on which the proposed merger of IPI with and into ACI Systems, Inc.
becomes effective and shall continue uninterrupted through June 30, 1998,
unless sooner terminated by mutual agreement or as provided below in this
Section 3. This Agreement may be otherwise terminated as follows:
(a) Employer may terminate the employment of Employee hereunder:
(i) upon the death of Employee;
(ii) upon Employee's inability, by reason of sickness or
other disability, to perform his obligations hereunder for more than 90
consecutive days; or
(iii) upon a showing of good cause, which for purposes of
this Agreement shall mean: (A) Employee's failure to act in accordance with
this Agreement or any other breach of this Agreement by Employee; (B)
Employee's willful misconduct or gross or persistent negligence in the
discharge of his duties hereunder, or (C) Employee's commission of any act
detrimental to Employer or any act of moral turpitude; provided, however,
that prior to terminating Employee pursuant to clause (A), Employer shall
give Employee at least 15 days' written notice of such failure to act or
breach, which notice shall specify such failure or breach, and, if Employee
cures such failure or breach within such 15-day period, this Agreement shall
then continue as provided herein.
(b) Employee may terminate his employment hereunder upon at least
15 days' written notice to Employer of a material breach of this Agreement by
Employer, which notice shall specify such breach, provided that, if Employer
cures such breach within such 15-day period, this Agreement shall then
continue as provided herein.
4. COMPENSATION. In consideration for his services, Employer shall pay
Employee a salary at the rate of $140,000 per annum. Employee's salary
hereunder shall be payable in installments on the 15th day and the last day
of each month, or on such other payment schedule as is used to pay senior
executives of Employer.
5. EMPLOYEE BENEFITS. Employee shall be entitled to such employee
benefits as are from time to time made available generally by Employer to its
senior executives, including, without limitation, paid vacation and sick
leave, health insurance, life insurance, office amenities, and the like.
6. COVENANT NOT TO COMPETE.
(a) During the term of Employee's employment with Employer and for
a period of one year thereafter, Employee shall not be a consultant,
director, officer, employee, or advisor, and shall not have any interest,
either directly or indirectly, in any business competitive with the business
of Employer in the State of Colorado; provided, however, that the foregoing
shall not prohibit the ownership by Employee of less than 5% of any
publicly-traded class of security of an organization which competes with the
business of Employer.
(b) In furtherance of the foregoing and not in limitation thereof,
during the term of Employee's employment with Employer and for a period of
one year thereafter, Employee shall not, directly or indirectly, employ,
solicit for employment, or in any other manner seek to induce the
discontinuance of any business relationship between Employer and any person
who is, or who was while Employee was employed by Employer, an employee,
consultant, or advisor of Employer.
(c) In furtherance of the foregoing and not in limitation thereof,
during the term of Employee's employment with Employer and for a period of
one year thereafter, Employee
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shall not, directly or indirectly, in any manner seek to induce the
discontinuance of any business relationship between Employer and any customer,
client, or supplier of Employer.
(d) If Employee violates any provision of this Section 7 and Employer
brings legal action for injunctive or other relief, Employer shall not, as a
result of the time involved in obtaining relief, be deprived of the benefit
of the full period of the restrictive covenants herein. Accordingly, the
restrictive covenants shall be deemed to have the respective durations
specified above, computed from the date the relief is granted but reduced
only by the time between the period when the restriction began to run and
the date of the first violation of the restrictive covenant by Employee.
7. CONFIDENTIALITY
(a) For purposes of this Agreement, "Confidential Information" means
product designs, manufacturing information, program flow charts, file
layouts, source code listings, computer programs, technical information,
customer information, marketing plans, financial information, business plans
and strategies, know-how, trade secrets, and any other information of a
similar nature, created, learned or otherwise obtained by Employee in
connection with his work for Employer or any client or customer of Employer.
During the term of Employee's employment by Employer, and at all times
thereafter, Employee shall keep confidential, and shall not use, disclose or
disseminate, directly or indirectly, any Confidential Information except as
required for the performance of Employee's duties for Employer. Upon request
of Employer, Employee shall deliver to Employer all records, notes, data,
memoranda, disks, programs and other information and documents compiled by or
made available to Employee during the course of his employment by Employer,
and any copies thereof, whether or not they contain Confidential Information.
8. OWNERSHIP OF DEVELOPMENTS. All ideas, inventions, discoveries,
innovations, programs and other creative works, whether or not patentable or
copyrightable, which are conceived, developed or made by Employee during the
term of his employment with Employer or within 6 months after the termination
of his employment with Employer and which relate to any aspect of the
business of Employer (collectively, "Developments"), shall promptly be
disclosed to Employer and shall be the sole and exclusive property of
Employer. Employee hereby assigns all right, title and interest in and to all
Developments to Employer. Employee shall execute and deliver to Employer all
documents requested by Employer to evidence its ownership of the
Developments. Employee shall treat all Developments as Confidential
Information.
9. ENFORCEMENT. If any court shall determine that all or any part,
including without limitation the duration or geographical limit, of any
provision contained in Section 7, 8, or 9 is unenforceable, it is the
intention of the parties that such provisions shall not be terminated but
shall be deemed amended to the extent required to render them valid and
enforceable, such amendment to apply only with respect to the operation of
said Section 7, 8 or 9, as the case may be, in the jurisdiction of the court
that has made the adjudication. If Employees breaches or
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threatens to breach any provision of Section 7, 8 or 9, Employer shall be
entitled to preliminary and permanent injunctive relief, in addition to any
other remedies available to it.
10. NOTICE. All notices or other communications hereunder shall be in
writing and shall be deemed to be properly delivered or given if and when
delivered in person, or by first class, prepaid, registered or certified
mail, or by recognized overnight courier service, to the addresses set forth
below. Any party may change its address for notice hereunder by giving notice
thereof.
If to Employer:
NAVIDEC, Inc.
7002 So. Revere Parkway, Ste. 40
Xxxxxxxxx, XX 00000
Attention: President
If to Employee:
Xx. Xxxxx Xxxxxx
0000 X. Xxxxxx Xxx.
Xxxxxxxxx, XX 00000
12. ATTORNEY'S FEES AND COSTS. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which that party may be
entitled. This provision shall be construed as applicable to the entire
Agreement.
13. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the complete agreement
between the parties with respect to the subject matter hereof and supersedes
any prior agreements or understandings, written or oral. No waiver under this
Agreement shall be valid unless it is in writing and duly executed by the
party to be charged therewith. This Agreement may be amended at any time,
provided that such amendment is in writing and is signed by each of the
parties hereto.
(b) SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the other provisions hereof, and, except as
otherwise provided in Section 10, this Agreement shall be construed as if
such invalid or unenforceable provision were omitted.
(c) BINDING EFFECT. This Agreement may not be assigned by Employee.
Subject to that limitation, this Agreement shall be binding upon and shall
inure to the benefit of
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Employee, his heirs and personal representatives, and
shall be binding upon and shall inure to the benefit of Employer, its
successors and assigns.
(d) GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Colorado.
(e) SURVIVAL. The provisions of Sections 7, 8, 9, 10 and 12 hereof shall
survive the expiration or termination of this Agreement as well as the
termination of Employee's employment hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
indicated below.
NAVIDEC, Inc.
By: /s/ XXXXXXX XXXXXXXXX
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Xxxxxxx Xxxxxxxxx, Secretary
Dated:
EMPLOYEE
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Dated: 7-3-96
