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EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is signed as of the 1st day of July, 1997, by and
between Factual Data Corp., a Colorado corporation (hereinafter referred to as
"FDC"), and Xxxxxx X. Xxxxxx (hereinafter referred to as "Xxxxxx").
WITNESSETH THAT:
WHEREAS, Xxxxxx has been employed by FDC as a full-time employee of
FDC; and
WHEREAS, FDC and Xxxxxx desire to state in writing the terms and
conditions of their agreements and understandings, and to continue the term of
Xxxxxx'x employment on a full-time basis hereunder;
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
legally to be bound, agree as follows:
1. Term of Employment
The term shall commence on July 1, 1997, and shall continue through
June 30, 2000, unless sooner terminated in accordance with the provisions of
Paragraph 14 below.
2. Duties.
2.1 It is understood and agreed that Xxxxxx'x principal duties on
behalf of FDC are and shall be as Executive Vice President and as a member of
the Board of Directors, or such responsibilities and title as may be mutually
agreed by Xxxxxx and the Board of Directors of FDC.
2.2 Xxxxxx covenants and agrees that at all times during the term of
this Agreement, she shall devote her best efforts to her duties as an employee
of FDC, provided, that she shall not be required to work on any set schedule or
for any set number of hours.
3. Compensation
3.1. Salary. As compensation for the services to be rendered by Xxxxxx
for FDC under this Agreement, including services as a director of FDC, Xxxxxx
shall be paid the following annual salary, on the same basis (semimonthly) as
FDC's payroll, during the term hereof:
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Term Salary
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1st Year (July 1, 1997 - June 30, 1998) $ 99,600
2nd Year $111,600
3rd Year $123,600
Salary increases shall be paid in the 2nd and 3rd year only in the
event that FDC has net income in the immediately preceding fiscal year.
3.2 Bonus. The employee shall also be entitled to incentive bonuses as,
when and if declared by the Board of Directors.
4. Additional Benefits.
In addition to, and not in limitation of, the compensation referred to
in Xxxxxxxxx 0, Xxxxxx shall be paid the following additional benefits during
the term hereof:
4.1 Reimbursement. Reimbursement of all reasonable expenses incurred by
Xxxxxx in connection with performance of her duties, upon submission of
vouchers. Reasonable expenses shall include, but not be limited to all
reasonable out-of-pocket expenses for entertainment, automobile expenses,
travel, meals, lodging, professional dues and the like incurred by Xxxxxx in the
interest of FDC subject to such guidelines and policies as may be promulgated by
FDC for senior executives.
4.2 Death or Disability Payments. In the event of Xxxxxx'x total
disability or death prior to June 30, 2000, Xxxxxx shall be paid death or
disability benefits equal to one year's salary.
4.3 Life Insurance. Xxxxxx shall continue to be provided with the
existing $500,000 life insurance policy (the "Policy") during the term of this
Agreement. At the termination of this Agreement, Xxxxxx shall have the right, at
her option, to take over full payments on the Policy, and the ownership of the
Policy.
4.4 Comparable Benefits. Xxxxxx shall also be provided with the same
additional benefits comparable to other senior management Employees of FDC,
including but not limited to health, dental, and disability insurance, Section
401(K) plan, and stock options, and shall be included in any FDC bonus incentive
plan established from time to time, and shall receive holiday, sick leave, and
vacation benefits (4 weeks per year) on the same basis as is generally available
to all senior executives of FDC. Xxxxxx shall be eligible for Stock Options on
the same basis as other directors of FDC.
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5. Disclosure of Information.
Xxxxxx acknowledges that in and as a result of her employment
hereunder, she will be making use of, acquiring and/or adding to confidential
information of a special and unique nature and value relating to such matters as
FDC's trade secrets, systems, procedures, manuals, confidential reports, and
lists of clients. As a material inducement to FDC to enter into this Agreement
and to pay to Xxxxxx the compensation stated in Paragraph 3, as well as any
additional benefits stated in Xxxxxxxxx 0, Xxxxxx covenants and agrees that she
shall not, other than in the ordinary course of business conducted for FDC, at
any time during or following the term of her employment, directly or indirectly
divulge or disclose for any purpose whatsoever or appropriate to her own use or
to the use of others any confidential information that has been obtained by, or
disclosed to her, as a result of her employment by FDC.
6. Covenant Not to Compete.
Xxxxxx agrees that she shall not directly or indirectly own, control,
operate, manage, consult, own shares in, be employed by, or otherwise
participate in any sole proprietorship, corporation, partnership or entity whose
primary business is the same or similar to the business of FDC during the term
of her employment hereunder, nor for a period of one (1) year after her
termination of employment, anywhere within the territory in which FDC does
business; provided, that the Board of Directors shall have the right (but not be
required) to waive this covenant not to compete in writing, with respect to any
specific situation presented to them in advance, in writing by Xxxxxx, where the
Board of Directors, at their sole and absolute discretion, deem Xxxxxx'x
intended participation not to be adverse to FDC's interests.
The parties hereto recognize that Xxxxxx has been retained as a member
of the senior executive management of FDC, and that in said position she is
considered to be part of the professional, management and executive staff of the
Corporation.
In the event Xxxxxx violates this covenant of non-competition, both
parties acknowledge and agree that FDC shall have the right to bring a lawsuit
to enforce this covenant against Xxxxxx, and to obtain equitable relief in the
form of an injunction and, where applicable, damages at law; that the District
Court for Larimer County, Colorado shall have venue, and exclusive jurisdiction
in such lawsuit; and that the Colorado law shall apply.
In the event FDC must bring such a lawsuit by reason of Xxxxxx'x breach
of this covenant of non-competition, FDC shall be entitled to recover its
reasonable attorneys' fees, costs and expenses of litigation, in the event it
prevails in such lawsuit.
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This covenant of non-competition has been negotiated and agreed to by
and between FDC and Xxxxxx with full knowledge of, and pursuant to the
requirements of Section 8-2-113(2) Colorado Revised Statutes, as amended from
time to time, and is deemed by both parties to be fair and reasonable under the
terms of that statute.
7. Option to Extend.
At Xxxxxx'x and FDC's option, upon their mutual agreement, upon thirty
(30) days prior written notice, the term of this Agreement may be extended for a
period of two (2) additional years, on the same terms and conditions as
contained herein.
8. Indemnification.
So long as Xxxxxx is not found by a court of law to be guilty of a
willful and material breach of this Agreement, or to be guilty of willful gross
misconduct, she shall be indemnified from and against any and all losses,
liability, claims and expenses, damages or causes of action, proceedings or
investigations, or threats thereof (including reasonable attorneys' fees and
expenses of counsel satisfactory to and approved by Xxxxxx) incurred by Xxxxxx,
arising out of, in connection with, or based upon Xxxxxx'x services and the
performance of her duties pursuant to this Agreement, or any other matter
contemplated by this Agreement, whether or not resulting in any such liability;
and Xxxxxx shall be reimbursed by FDC as and when incurred for any reasonable
legal or other expenses incurred by Xxxxxx in connection with investigating or
defending against any such loss, claim, damage, liability, action, proceeding,
investigation or threat thereof, or producing evidence, producing documents or
taking any other action in respect thereto (whether or not Xxxxxx is a defendant
in or target of such action, proceeding or investigation).
9. Governing Law.
It is understood and agreed that the construction and interpretation of
this Agreement shall at all times and in all respects be governed by the laws of
the State of Colorado.
10. Severability.
The provisions of this Agreement shall be deemed severable, and the
invalidity or enforceability of any one or more of the provisions of this
Agreement shall not affect the validity and enforceability of the other
provisions.
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11. Notice.
Any notice required to be given shall be sufficient if it is in writing
and sent by certified or registered mail, return receipt requested, first-class
postage prepaid, to her residence in the case of Xxxxxx, and to its principal
office in the case of FDC.
12. Entire Agreement; Cancellation of Prior Agreements.
12.1 This Agreement contains the entire agreement and understanding by
and between FDC and Xxxxxx with respect to the employment of Xxxxxx, and no
representations, promises, agreements, or understandings, written or oral, not
contained herein shall be of any force or effect. No change or modification of
this Agreement shall be valid or binding unless it is in writing and signed by
the party intended to be bound.
12.2 No waiver of any provision of this Agreement shall be valid unless
it is in writing and signed by the party against whom the waiver is sought to be
enforced. No valid waiver of any provision of this Agreement at any time shall
be deemed a waiver of any other provision of this Agreement at such time or at
any other time.
13. Burden and Benefit.
This Agreement shall be binding upon, and shall inure to the benefit
of, FDC and Xxxxxx, and their respective heirs, personal and legal
representatives, successors, and assigns and shall be expressly binding upon and
inure to the benefit of any person or entity acquiring FDC, by merger,
consolidation, purchase of assets or stock, or otherwise.
The duties of Xxxxxx hereunder are not assignable by Xxxxxx without the
prior written consent of FDC, and the interests of Xxxxxx hereunder are not
subject to the claims of her creditors, and may not be voluntarily or
involuntarily assigned, alienated or encumbered.
14. Termination.
14.1 By Xxxxxx. Xxxxxx may at her sole option, terminate this
Agreement, upon ninety (90) days written notice to FDC. Upon such termination by
Xxxxxx, FDC shall have no further liabilities or obligations to Xxxxxx
hereunder; except under Section 8 (Indemnification), and Xxxxxx'x only further
liabilities to FDC shall be her covenants under Section 5 (Disclosure of
Information), and Section 6 (Covenant not to Compete), which Sections shall
survive termination of this Agreement.
14.2 By FDC. FDC may terminate Xxxxxx'x employment hereunder during the
term or any extended term hereof only (1) in the event of Xxxxxx'x death or
disability, subject to the provisions of Section 4.2 above; or (2) "for cause,"
which shall be defined as
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"the failure of Xxxxxx for any reason, within thirty (30) days after receipt by
Xxxxxx of written notice thereof from FDC, to correct, cease, or otherwise alter
any action or omission to act that constitutes a material and willful breach of
this Agreement likely to result in material damage to FDC, or willful gross
misconduct likely to result in material damage to FDC." Upon such termination
"for cause" under Section 14.2, FDC shall have no further liabilities to Xxxxxx,
except under Section 8 (Indemnification), and Xxxxxx'x only further liabilities
to FDC shall be her covenants under Section 5 (Disclosure of Information), and
Section 6 (Covenant Not to Compete), which Sections shall survive termination of
this Agreement.
15. Counterparts.
The Agreement may be executed in two or more counterparts, any one of
which shall be deemed the original without reference to the others.
IN WITNESS WHEREOF, FDC and Xxxxxx have duly executed this Agreement as
of the day and year first above written.
FDC
ATTEST: FACTUAL DATA CORP.
/s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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President
XXXXXX:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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