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EXHIBIT 10.15
EMPLOYMENT AGREEMENT
(EXECUTIVE OFFICER)
This employment agreement (this "Agreement"), dated as of January 31,
2000 (the "Effective Date"), is between Analytical Surveys, Inc., a Colorado
corporation whose principal executive offices are located in Indianapolis,
Indiana ("Employer"), and Xxxxx X. Xxxxx ("Officer").
RECITALS
A. Employer wishes 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. This Agreement supersedes and replaces any prior employment
agreements entered into by and between Employer and Officer.
AGREEMENT
The parties agree as follows:
1. Employment. As of the Effective Date, Employer hires and employs
Officer as Chief Operating Officer of Employer, and Officer accepts such
employment.
2. Term of Employment. The Initial Term of this Agreement will
commence on the Effective Date, will continue for two years (the "Initial
Term"), and will automatically renew for consecutive two-year terms (with each
such two-year term, including the Initial Term, being referred to as a "Term"),
unless sooner terminated in accordance with the provisions of this Agreement.
3. Actions of Employer. All actions by and decisions of Employer
contemplated in this Agreement will be made by Employer's Chief Executive
Officer (or, in the absence of the Chief Executive Officer, the Board of
Directors of Employer).
4. Duties of Officer. Officer's principal duties on behalf of
Employer as of the Effective Date are as the Chief Operating 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 such position. 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).
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5. Location of Employment. It is expected that 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 Effective Date, Officer agrees to continue to perform
the duties prescribed by this Agreement out of Employer's Indianapolis, Indiana,
office (or if Employer ceases to maintain such office, then out of such other
office space in the Indianapolis area as Employer provides to Officer) if
requested to do so by Employer; Officer agrees to take all reasonable steps to
accommodate Employer's needs for services to be performed at Employer's
principal executive offices, which may include regular travel to such principal
executive offices and other locations of Employer and Employer's customers.
Notwithstanding the foregoing provisions, if the location of Employer's
principal executive offices changes subsequent to the Effective Date, Employer
may require Officer to move to the location of such principal executive offices,
but Officer may terminate employment within 30 days after being notified by
Employer that Officer will be required to move to the location of such principal
executive offices, and such termination of employment will be treated as a
termination by Officer for Good Reason under Section 8(b).
6. Compensation.
(a) Salary. Employer will pay to Officer $14,666.67 monthly as
salary ("Base Salary"), plus annual increases and bonuses, if any, as approved
by Employer, payable on the payroll dates established by Employer from time to
time. Employer will review Officer's Base Salary on an annual basis, during the
month of November, but Employer is not obligated to increase such Base Salary
after any such review.
(b) Stock Options and Bonuses. Officer will be eligible to
participate in Employer's stock option plan and bonus plan or policy for persons
holding similar executive positions with Employer. The number of options granted
to Officer, if any, and the terms of such options are solely within the
discretion of Employer's Board of Directors. The amount of bonus paid, if any,
will be determined annually in accordance with the Company's bonus plan or
policy in effect from time to time.
(c) Vacations. Officer will be entitled to vacations of not less
than 4 weeks per year, in accordance with the procedures prescribed by
Employer's regular vacation policies established for senior executives. Officer
acknowledges that the use of vacation time by officer for vacation provides an
important benefit to Employer and agrees to use reasonable efforts to utilize
vacation time for such purpose and to limit to the extent practicable the amount
of accrued but unused vacation time. Nevertheless, 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 calendar year, 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.
(d) 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, as they may be
modified by Employer from time to time,
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for persons holding similar executive positions with Employer, as determined by
Employer in its sole discretion.
(e) 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.
(f) 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.
(g) 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;
(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;
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(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, Severance Pay and Restrictions Against Competition.
(a) Voluntary Termination by Officer Without Good Reason.
(i) Officer agrees to give Employer at least 30 days' notice prior to
any voluntary termination of employment by Officer without Good Reason (as
defined below).
(ii) If Officer terminates employment voluntarily without Good Reason,
(A) Officer will receive all earned Base Salary under
Section 6(a) and benefits under Section 6(c) and (d)
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);
(B) 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 75% of Officer's Base Salary
then in effect, payable bi-monthly, beginning on the
first day of the month immediately following Officer's
last day of employment with Employer; and
(C) the Noncompetition Period under Section 10 will end on
the first anniversary of the last day of Officer's
employment with Employer.
(iii) Officer and Employer acknowledge that Officer's knowledge of the
particular projects of Employer will be difficult to replace and that the
giving of 30 days' notice by Officer is necessary to enable Employer to
obtain transition assistance on such projects.
(b) Termination by Officer for Good Reason
(i) Officer may terminate employment with Employer at any time for
Good Reason, upon 30 days' notice to Employer. "Good Reason" means the
occurrence of any of the following:
(A) The 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);
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(B) The assignment to Officer on a regular basis of any
duties materially inconsistent with Officer's status or position
with Employer or any material alteration in the nature or status
of Officer's responsibilities from those in effect under this
Agreement;
(C) A reduction by Employer in Officer's Base Salary
then in effect, other than a reduction (i) that is effected in
the context of the occurrence of material adverse conditions
affecting the Employer, where Employer has requested or imposed
reductions in salary affecting all executive officers, and (ii)
as to which Officer has consented (and Officer agrees in such
circumstances not to unreasonably withhold, condition, or delay
such consent);
(D) The failure by Employer to continue to provide
Officer with benefits available as 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, at a level which is substantially as favorable as those
enjoyed by other persons holding similar executive positions with
Employer, other than a reduction (i) that is effected in the
context of the occurrence of material adverse conditions
affecting the Employer, where Employer has requested or imposed
reductions in benefits affecting all executive officers, and (ii)
as to which Officer has consented (and Officer agrees in such
circumstances not to unreasonably withhold, condition, or delay
such consent);
(E) The occurrence of a Change in Control, as defined
below, and the expiration of one year; or
(F) Employer requires Officer to move Officer's
principal residence outside of the Indianapolis, Indiana, area.
(ii) If Officer terminates employment for Good Reason:
(A) Officer will receive all earned Base Salary under
Section 6(a) and benefits under Section 6(c) and (d) 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);
(B) For each of the 18 successive months immediately
following Officer's last day of employment with Employer
("Section 8(b) Severance Period"), Employer will pay to Officer,
as part of Officer's severance pay, Officer's Base Salary then in
effect. In addition, Employer will pay to Officer, as part of
Officer's severance pay, a bonus equal to an additional 3 months
of Officer's Base Salary then in effect, such bonus to be pro
rated and paid over the Section 8(b) Severance Period. The
aggregate amounts of severance pay will be paid bi-monthly,
beginning on the first day of the month immediately following
Officer's last day of employment with Employer.
(C) Employer will treat Officer as an employee of
Employer during the Section 8(b) Severance Period for purposes of
providing benefits to
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Officer under Employer's group health insurance plan (including
vision and dental insurance if it is provided by Employer under
its group health insurance plan), disability insurance plan, and
group life insurance plan, to the extent Employer is permitted to
do so under its contractual arrangements with the insurers under
such fringe benefits plans and under applicable law. If Employer
is not able provide Officer with the same coverage under
Employer's group health insurance plan as applied immediately
prior to Officer's termination of employment, then Employer will
pay for the cost of obtaining health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") during
the Section 8(b) Severance Period. If Employer is not able to
provide Officer with the same disability insurance coverage
during the Section 8(b) Severance Period as applied immediately
prior to Officer's termination of employment, Employer will make
cash payments to Officer in an amount equal to the cost to
Employer of providing the disability insurance benefits to
Officer, were Officer still eligible under the disability
insurance plan.
(D) The Noncompetition Period under Section 10 will end
on the first anniversary of the last day of Officer's employment
with Employer.
(iii) Officer and Employer acknowledge that Officer's knowledge of the
particular projects of Employer will be difficult to replace and that the giving
of 30 days' notice by Officer is necessary to enable Employer to obtain
transition assistance on such projects.
(c) Termination by Employer Without Cause.
(i) Employer may terminate Officer's employment at any time, without
Cause (as defined below), upon notice to Officer.
(ii) If Employer terminates Officer's employment without Cause:
(A) Officer will receive all earned Base Salary under
Section 6(a) and benefits under Section 6(c) and (d) 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);
(B) For each of the 18 successive months immediately
following Officer's last day of employment with Employer (the "Section 8(c)
Severance Period"), Employer will pay to Officer, as part of Officer's severance
pay, Officer's Base Salary then in effect. In addition, Employer will pay to
Officer, as part of Officer's severance pay, a bonus equal to an additional 3
months of Officer's Base Salary then in effect, such bonus to be pro rated and
paid over the Section 8(c) Severance Period. The aggregate amounts of severance
pay will be paid bi-monthly, beginning on the first day of the month immediately
following Officer's last day of employment with Employer;
(C) Employer will treat Officer as an employee of
Employer during the Section 8(c) Severance Period for purposes of providing
benefits to Officer under Employer's group health insurance plan (including
vision and dental insurance if it is provided by Employer under its group health
insurance plan), disability insurance plan, and group life
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insurance plan, to the extent Employer is permitted to do so under its
contractual arrangements with the insurers under such fringe benefits plans and
under applicable law. If Employer is not able provide Officer with the same
coverage under Employer's group health insurance plan as applied immediately
prior to Officer's termination of employment, then Employer will pay for the
cost of obtaining health insurance coverage under COBRA during the Section 8(c)
Severance Period. If Employer is not able to provide Officer with the same
disability insurance coverage during the Section 8(c) Severance Period as
applied immediately prior to Officer's termination of employment, Employer will
make cash payments to Officer in an amount equal to the cost to Employer of
providing the disability insurance benefits to Officer, were Officer still
eligible under the disability insurance plan.
(D) The Noncompetition Period under Section 10 will end
on the first anniversary of the last day of Officer's employment with Employer.
(d) Termination by Employer for Cause.
(i) Employer may terminate Officer's employment with Employer at any
time, for Cause, upon notice to Officer. "Cause" means (A) any fraud, theft
or intentional misappropriation perpetrated by Officer against Employer;
(B) conviction of Officer of a felony; (C) 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); (D) willful or gross misconduct by Officer in the performance
of duties under this Agreement; or (E) 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 (E) 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.
(ii) If Officer is terminated for Cause,
(A) Officer will receive Base Salary under Section 6(a) and
benefits under Section 6(c) and (d) 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);
(B) 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, 75% of Officer's
Base Salary then in effect, payable bi-monthly, beginning on the
first day of the month immediately following Officer's last day
of employment with Employer; and
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(C) The Noncompetition Period under Section 10 will end on
the first anniversary of the last day of Officer's employment
with Employer.
(e) Transition Assistance. Employer may require that Officer
provide transition assistance to Employer for a 30-day period beginning on the
date that Officer's employment with Employer terminates (for any reason), or
such other period agreed upon by Officer and Employer, at no additional
compensation, on a part-time basis (with the obligation on the part of Officer
to make himself available to Employer, but not in excess of 15 working days
during such 30-day period).
9. Change in Control.
(a) For purposes of this Agreement, a "Change in Control" of
Employer will be deemed to occur if any of the following occur:
(i) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), acquires record ownership of, or becomes a "beneficial owner"
(as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of Employer, representing 30% or more of any class of capital stock
that is empowered to vote with respect to the election of directors of Employer
("Voting Securities"), except that the holding of securities in street name by
any person for the account of another person will not be considered record
ownership for purposes of this subsection, and except that the following will
not constitute a Change in Control pursuant to this subsection:
(A) any acquisition of beneficial ownership by Employer or a
subsidiary of Employer; or
(B) any acquisition of beneficial ownership by any employee
benefit plan (or related trust) sponsored or maintained by
Employer or one or more of its subsidiaries.
(ii) The shareholders of Employer approve a complete liquidation or
dissolution of Employer (other than in the context of a 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) or the sale of all or substantially
all of the assets of Employer, in one or a series of transactions.
(iii) A change or changes occur(s) in the composition of the Board of
Directors of Employer during any 30-month period such that either (A)
the members of the Board of Directors immediately prior to such period
cease to represent a majority of the members of the Board of Directors
after such change(s) (and, for purposes of calculating whether the
"majority of the members" requirement is satisfied, any director who
dies or voluntarily decides not to stand for re-election as a director
due to retirement at or after age 65, disability, or similar reasons,
will not be considered in such calculation as a person who was a
director either at the beginning of, or at the end of, the 30-month
period in question), or (B) more than two-thirds of the members of the
Board of Directors
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immediately prior to such period cease to be members of the Board of
Directors during such period, for any reason.
(b) A Change in Control will not be deemed to occur with respect
to Officer if (x) the acquisition of beneficial ownership of the 30% or greater
interest referred to in subsection (a)(i) is by Officer or by a group, acting in
concert, that includes Officer or (y) if a majority of the then combined voting
power of the then outstanding Voting Securities (or voting equity interests) of
the surviving corporation or of any corporation (or other entity) acquiring all
or substantially all of the assets of Employer will, immediately after a
reorganization, merger, consolidation, statutory share exchange or disposition
of assets referred to in subsection (a)(ii) or (iii), be beneficially owned,
directly or indirectly, by Officer or by a group, acting in concert, that
includes Officer.
10. Noncompetition.
(a) Covenant not to Compete. During the period that Officer is
employed by Employer and thereafter for the pertinent Noncompetition Period,
Officer (i) will not directly or indirectly own, control, operate, manage,
consult for, own shares in, be employed by, or otherwise participate in any sole
proprietorship, corporation, partnership, or other entity whose primary business
is the Business (as defined below), within the United States and any other
territory in which Employer does business; (ii) will not perform services for
any entity, whether as an officer, director, manager, employee, consultant or
otherwise, and whether or not the entity is primarily engaged in the Business,
if Officer's primary responsibilities are to perform consulting services for
geographic information systems, data conversion for geographic information
systems, or systems integration for geographic information systems; and (iii)
will not solicit any actual or potential customers of Employer, any consultants
to any such actual or potential customers, or any suppliers of Employer with
respect to Officer's plans to take any of the foregoing actions. The "Business"
means any of the following: data conversion for geographic information systems,
performing consulting services for geographic information systems, and
performing systems integration services for geographic information systems.
Notwithstanding the foregoing restriction, Officer may own beneficially, or of
record, less than 2 percent of the outstanding shares or other equity interests
of any entity in the Business whose stock is traded publicly on NASDAQ or
another nationally recognized stock exchange.
(b) Nonsolicitation. During the Noncompetition Period, and for a
period of 6 months following the last day of Officer's employment (whichever is
later), Officer will not solicit or attempt to solicit for employment any person
while such person is an employee or officer of Employer or of any subsidiary of
Employer, and Officer will not solicit for employment or employ any such person
within 6 months after such person ceases to be an employee or officer of
Employer.
(c) Disparagement. During the Noncompetition Period, and for a
period of 6 months following the last day of Officer's employment (whichever is
later), Officer will not disparage, criticize, or demean Employer, its
reputation, employees, directors, officers, services, manner of conducting
business, customers, or suppliers, or any other aspect of Employer, by any
communication whatsoever. During the Noncompetition Period, and for a period of
6 months following the last day of Officer's employment (whichever is later),
Employer will not disparage,
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criticize, or demean Officer, Officer's reputation, or any other aspect of
Officer, by any communication whatsoever.
11. 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. 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.
(b) Inventions. For purposes of this Section 11, "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
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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. 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.
12. Survival of Obligations Upon Officer's Termination. The
obligations of Officer in Section 10 will survive the termination of Officer's
employment with Employer for the periods specified in Sections 8 and 10, and the
obligations of Officer in Section 11 will survive the termination of Officer's
employment with Employer without limitation, in either case 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.
13. 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 under Sections 10 and 11 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 Sections 10 or 11 Employer is entitled to apply for equitable
relief in any court of competent jurisdiction prior to initiation of mediation.
Employer's application for temporary injunctive relief will not limit Employer
from pursuing any other available remedies for such breach.
14. Severability. Each provision of this Agreement, including
particularly, but not solely, the provisions of Sections 10 and 11, 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.
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15. General Acknowledgments. Officer and Employer expressly agree
that the restrictions on Officer's activities imposed under Section 10 are
reasonable in their temporal and geographic scope and with respect to the nature
of the activities so restricted and that the restrictions on Officer's
activities imposed under Section 11 are reasonable and necessary to protect the
trade secrets of Employer. The parties expressly agree that (i) Officer is
benefited 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 or Section 11 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 or Section 11.
16. 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.
17. 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 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.
18. 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.
19. Dispute Resolution. Subject to the availability to Employer of
equitable relief under Section 13, Employer and Officer agree to attempt to
mediate 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, prior to the commencement of
legal proceedings. The foregoing duty mediation will obligate both parties to
appoint a mediator and
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to attempt to mediate the dispute in good faith for a period of 30 days
following the date that either party gives notice to the other that it wishes to
mediate a claim, dispute or controversy that has arisen between the parties. The
parties will attempt to agree on the appointment of the mediator. If they are
unable to agree on the appointment of the mediator within 15 days following the
date that either party gives notice to the other that it wishes to mediate a
claim, dispute or controversy that has arisen between the parties, then a
mediator will be appointed by the American Arbitration Association. Each party
will bear its or his own costs of mediating the dispute, and the cost of the
American Arbitration Association and any mediator will be borne equally by the
parties. Any mediation commenced under this Agreement will be held in Xxxxxx
County, Indiana.
20. 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.
21. 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.
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
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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.
22. 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. The parties further agree that any disputes arising under this
Agreement and any action brought to enforce this Agreement must be brought
exclusively in a state or federal court of competent jurisdiction located in
Xxxxxx County, Indiana, and the parties consent to personal jurisdiction of such
courts and waive any defense of forum non-conveniens.
23. 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 Agreement, fully understands
its terms, has voluntarily executed this Agreement, and has retained one
executed copy of this Agreement for Officer's records.
ACCEPTED AND AGREED: ACCEPTED AND AGREED:
ANALYTICAL SURVEYS, INC.
By: By:
-------------------------------- --------------------------------
Name: Name:
Title: Chief Executive Officer -------------------
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