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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
(CHIEF EXECUTIVE OFFICER)
This employment agreement (this "Agreement"), dated as of July 10,
2000 (the "Effective Date"), is between Analytical Surveys, Inc., a Colorado
corporation whose principal executive offices are located in Indianapolis,
Indiana ("Employer"), and Xxxxxx Xxxxxx ("Officer").
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 its President and Chief Executive Officer, and Officer accepts such
employment.
2. Term of Employment. This Agreement will commence on the Effective
Date and will continue for one year (the "Initial Term"). The parties agree to
give each other notice as to their desire to renew this Agreement at least 30
days prior to the end of the Initial Term.
3. Actions of Employer. All actions by and decisions of Employer
contemplated in this Agreement will be made by Employer's Board of Directors,
except as specifically provided below regarding the taking of vacations.
4. Duties of Officer. Officer's principal duties on behalf of
Employer as of the date of this Agreement are as President and Chief Executive
Officer of Employer. In accepting employment by Employer, Officer will undertake
and assume the responsibility of performing for and on behalf of Employer
whatever duties are necessary and required in the position of President and
Chief Executive Officer of Employer. Officer will devote substantially Officer's
full time and energies and best effort to the performance of such duties, to the
exclusion of all other business activities that conflict in any material way
with Officer's duties under this Agreement (and Officer will be permitted to
participate in civic and charitable activities so long as such activities do not
materially interfere with Officer's duties under this Agreement).
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5. Location of Employment. Officer will perform the above duties at
Employer's principal executive offices, currently in Indianapolis, Indiana. If
the location of Employer's principal executive offices changes subsequent to the
date upon which this Agreement is executed, Officer agrees to continue to
perform the duties prescribed above at the changed location, if requested to do
so by Employer. If Officer is required to move his principal residence to the
changed location, Employer will pay all of the reasonable costs of moving the
personal property of Officer to the changed location, temporary accommodations,
and airline tickets, up to an aggregate limit of $30,000, subject to the
submission to Employer of such receipts and other evidence of the incurrence of
such expenses as is reasonably requested by Employer. Employer will use
reasonable efforts to accommodate the personal and family needs of Officer by
providing as much advance notice as is reasonably feasible concerning any
requested move of Officer's principal residence, and in any event will not
require Officer to move his principal residence without giving Officer at least
180 days' notice.
6. Compensation.
(a) Salary. Employer will pay to Officer $9,615.38 every other
Monday (beginning July 24, 2000) as salary ("Base Salary"), subject to customary
withholding. The intent of the parties is to establish 26 pay periods per
12-month period so that Officer receives a total of $250,000 in Base Salary per
12-month period.
(b) Stock Options. Officer has been granted an option to purchase
150,000 shares of common Stock of Employer at an exercise price of $2.9375 per
share. The vesting period of such stock options will be as follows: options for
37,500 shares will vest six months after the date of this Agreement, options for
an additional 37,500 shares will vest 12 months after the date of this
Agreement, options for an additional 37,500 shares will vest 24 months after the
date of this Agreement, and options for the final 37,500 shares will vest 36
months after the date of this Agreement.
(c) Bonuses. Employer will pay a bonus to Officer in accordance
with the bonus provisions set forth in EXHIBIT 1. If a Change in Control occurs
prior to April 1, 2001, and while Officer is still employed by Employer, then,
notwithstanding the provisions of Section 8(a)(2) and 8(b)(2), Officer will be
entitled to the bonus set forth in Exhibit 1 for the fiscal quarter in which the
Change in Control occurred and for the next succeeding fiscal quarter, as long
as Officer is not terminated for Cause.
(d) Vacations. Officer will be entitled to vacations of not less
than 4 weeks per 12-months of employment, in accordance with the procedures
prescribed by Employer's regular vacation policies established for senior
executives. Officer may accrue any unused vacation time from year to year (up to
a limit of 8 weeks of unused vacation, with any unused vacation in excess of 8
weeks to be paid in cash at or promptly after the end of any 12-month period,
based on Officer's then current Base Salary for the year in which such excess
vacation accrued), and Employer will compensate Officer upon termination of
employment for any unused vacation time based on Officer's then current Base
Salary. Any specific vacation of more than 4 weeks' duration is subject to the
advance approval of Employer, which approval is to be
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sought from the Chair of the Compensation Committee of the Board of Directors.
In addition, Officer agrees to give the Chair of the Compensation Committee
notice in advance concerning any vacation time to be taken, and will confirm
with such Chairman the actual taking of vacation time promptly after such
vacation time is taken.
(e) Additional Benefits. Officer will be entitled to benefits
(which may include hospitalization, medical, disability, profit sharing and
retirement plan benefits) in accordance with Employer's policies for persons
holding similar executive positions with Employer, as they may be modified by
Employer from time to time, as determined by Employer in its sole discretion.
(f) Reimbursement of Moving Expenses. Employer agrees to
reimburse Officer for the cost of moving expenses to Indianapolis, Indiana,
including by way of example, moving of personal property, temporary
accommodations, airline tickets, reasonable fees of an immigration attorney, and
income tax filing advice, up to an aggregate limit of $30,000 and subject to the
submission to Employer of such receipts and other evidence of the incurrence of
such expenses as is reasonably requested by Employer.
(g) 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.
(h) 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.
(i) 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:
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(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;
(e) Non-adversarial aspects of public offerings, including
execution of registration statements, questionnaires, powers of attorney,
underwriting agreements (as selling shareholder), lock-up agreements, and the
like; and
(f) Any other matters incidental to Officer's administration of
Employer's operations that would not be reportable as income to Officer on IRS
Form 1099 or as compensation to Officer under Item 402 of Regulation S-K of the
Securities Act of 1933 and the Exchange Act.
8. Termination and Severance Pay.
(a) If Officer terminates employment for Good Reason or if
Employer terminates Officer's employment without Cause,
(1) Officer will receive all earned Base Salary under
Section 6(a) and benefits under Section 6(d) and (e) only through
the last day of Officer's employment with Employer (as well as
reimbursement of expenses incurred through the last day of
Officer's employment); and
(2) For each of the 12 successive months immediately
following Officer's last day of employment with Employer,
Employer will pay to Officer, as severance pay, an amount equal
to 100% of Officer's Base Salary then in effect, payable every
other Monday, beginning on the first Monday immediately following
Officer's last day of employment with Employer on which Officer
otherwise would have been paid had Officer's employment not
terminated. In addition, Officer will receive in full the
remainder of any bonus payments due under Paragraph 2 of EXHIBIT
1, in accordance with the schedule set forth in such Paragraph
(2), if a termination occurs under this Section 8(a) before
September 30, 2000.
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(b) If Employer terminates Officer's employment for Cause or if
Officer terminates employment voluntarily,
(1) Officer will receive all earned Base Salary under
Section 6(a) and benefits under Section 6(d) and (e) only through
the last day of Officer's employment with Employer (as well as
reimbursement of expenses incurred through the last day of
Officer's employment); and
(2) Officer will receive no severance pay. If a termination
occurs under this Section 8(b) before September 30, 2000, then
Officer will receive in full the remainder of any bonus payments
due under paragraph 2 of EXHIBIT 1 only if (i) such termination
is a voluntary termination by Officer, (ii) there has occurred at
or before the time of such termination a sale of all or
substantially all the assets of Employer or Employer has merged
with or into, or consolidated with, a person (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934), under circumstances in which the Board of Directors has
not recommended to the shareholders of Employer that such
transaction occur, and (iii) the provisions of Section 9(b) do
not apply.
Employer may terminate Officer's employment with Employer at
any time, for Cause, upon notice to Officer. "Cause" means (1) any fraud, theft
or intentional misappropriation perpetrated by Officer against Employer; (2)
conviction of Officer of a felony; (3) a material and willful breach of this
Agreement by Officer, if Officer does not correct such breach within a
reasonable period after Employer gives notice to Officer (with such notice to
specify in reasonable detail the action or inaction that constitutes such
breach); (4) willful or gross misconduct in any material manner by Officer in
the performance of duties under this Agreement; or (5) the chronic, repeated, or
persistent failure of Officer in any material respect to perform Officer's
obligations as an executive officer of Employer (other than by reason of a
disability as determined under common law or any pertinent statutory provision,
including without limitation the Americans With Disabilities Act), if Officer
does not correct such failure within a reasonable period after Employer gives
notice to Officer (with such notice to specify in reasonable detail the action
or inaction that constitutes such failure). Employer and Officer agree that the
provisions of (5) are not intended to provide grounds for a termination for
Cause merely because of a failure on the part of Officer to satisfy performance
goals set by Employer as long as Officer is performing services in a manner
reasonably expected of an executive officer.
"Good Reason" means (w) any material reduction in the scope
of Officer's responsibilities (measured from the date of this Agreement), but
the hiring of a Chief Operating Officer who reports to Officer will not be
considered such a material reduction; any demotion in title from that of
President and Chief Executive Officer; or the imposition of any requirement that
Officer report, on a general basis, to any person other than Employer's Chairman
of the Board of Directors or the Board of Directors as a whole; (x) the
occurrence of a material breach of this Agreement by Employer, which breach
remains uncured for 45 days after Officer gives Employer notice of such breach
(describing the breach in reasonable detail); (y)
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any material reduction in the benefits afforded to Officer as provided for in
Employer's Employee Handbook, as measured from the date of this Agreement; or
(z) the occurrence of a Change in Control and (1) the expiration of 90 days or
(2) the termination of Officer's employment without Cause after or upon such
Change in Control, whichever of (1) and (2) occurs first.
9. Change in Control.
(a) For purposes of this Agreement, and except as set forth in
Section 9(b), a "Change in Control" of Employer will be deemed to occur if (i)
the Board of Directors recommends to the shareholders of Employer that all or
substantially all of the assets of Employer be sold, or that Employer be merged
with or into, or consolidated with, a person (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934), (ii) the shareholders
of Employer approve such transaction, and (iii) such transaction actually is
consummated.
(b) No Change in Control will be deemed to have occurred for any
merger or consolidation with a subsidiary of Employer, or the creation of a
holding company structure where no material change in beneficial ownership
occurs, or any such transaction where only the state of incorporation of
Employer changes. A Change in Control also will not be deemed to occur with
respect to Officer if, after the purchase of assets or the merger or
consolidation, a majority of the then combined voting power of the then
outstanding voting securities (or voting equity interests) of the surviving
corporation or of the corporation (or other entity) acquiring all or
substantially all of the assets of Employer are beneficially owned, directly or
indirectly, by Officer or by a group, acting in concert, that includes Officer.
10. Confidential Information, Trade Secrets and Inventions.
(a) Confidential Information. Officer acknowledges that
information, observations, and data obtained by Officer, both prior to the
Effective Date while Officer was employed by Employer (or any predecessor whose
stock or assets have been acquired by Employer, if applicable) and after the
Effective Date, concerning the business or affairs of Employer (or any such
predecessor, as the case may be) constitute confidential information, are trade
secrets, are the property of Employer, and are essential and confidential
components of Employer's business. For as long as Officer is employed by
Employer and for a period of two years thereafter, Officer will not directly or
indirectly disclose to any person or use any of such information, observations
or data, except in the course of Officer's employment with Employer, and except
to the extent that:
(i) the information was within the public domain at the time
it was provided to Officer;
(ii) the information was published or otherwise became part
of the public domain after it was provided to Officer through no fault
of Officer;
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(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.
The foregoing provisions regarding the disclosure and use of confidential
information are not intended to have the effect of binding Officer to a covenant
against competition after the term of this Agreement (as Officer has not agreed
to be bound by a covenant against competition after the term of this Agreement).
Accordingly, the foregoing confidentiality and non-use provisions are to be
interpreted in such a manner that Officer will not be prohibited from utilizing
general information and know-how that Officer gained in the course of providing
services to Employer and that thereby became a part of Officer's base of
knowledge and experience, but will be prohibited from using specific
confidential information (such as information concerning pricing or structure of
customer contracts that Employer, salary and benefits information, know-how that
was developed by Employer and relates to specific projects, or the like) in a
manner that would be unfair to Employer and to which competitors of Employer
would not lawfully be able to obtain access.
(b) Inventions. For purposes of this Section 10, "Invention"
means any invention, improvement, discovery or idea (whether patentable or not,
and including those which may be subject to copyright protection) generated,
conceived or reduced to practice by Officer alone or in conjunction with others
and which relates to any substantial degree to the business conducted by
Employer, during or after normal business hours, whether prior to Effective Date
while Officer was an employee of Employer (or any predecessor) or during the
term of this Agreement, and all associated rights to patents, copyrights and
applications for such rights. "Invention" does not mean any invention,
improvement, discovery or idea (whether patentable or
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not, and including those which may be subject to copyright protection)
generated, conceived, or reduced to practice by Officer alone or in conjunction
with others, after normal business hours, which would not be used or useful in
the business of Employer. Officer will promptly disclose to Employer in writing
all Inventions. All Inventions are the exclusive property of Employer and are
deemed assigned to Employer. For as long as Officer is employed by Employer and
for a period of [TWO] years thereafter, Officer will, at Employer's reasonable
expense, provide Employer with all assistance it requires to protect, perfect
and use its rights to and its interest in Inventions anywhere in the world and
to vest in Employer such rights and interest.
(c) Return of Documents, Etc. Immediately upon termination of
Officer's employment with Employer or at any time upon notice to Officer from
Employer, Officer will deliver to Employer all memoranda, notes, plans, records,
reports, and other documents and information provided to Officer by Employer or
created by Officer in connection with Officer's employment, and all copies of
all such documents in any tangible form which Officer may then possess or have
under Officer's control, and will destroy all of such information in intangible
form which is in Officer's possession or under Officer's control.
(d) Survival of Obligations Upon Officer's Termination. The
obligations of Officer in this Section 10 will survive the termination of
Officer's employment with Employer for the periods specified above, whether such
termination is for any reason whatsoever or for no reason, and whether initiated
by Officer or by Employer, and will continue for such periods until Employer
consents in writing to the release of Officer's obligations under this
Agreement.
(e) Remedy for Breach. Both Officer and Employer expressly
acknowledge that the subject matter of this Agreement is unique, and that any
breach of Officer's obligations under this Section 10 is likely to result in
irreparable injury to Employer, and the parties therefore expressly agree that
either party will be entitled to obtain specific performance of this Agreement
through injunctive relief and such ancillary remedies of an equitable nature as
a court may deem appropriate. Such equitable relief will be in addition to, and
the availability of such equitable relief will not preclude, any legal remedies
or other remedies which might be available to such party. If Officer breaches
any provisions in this Section 10, Employer is entitled to apply for equitable
relief in any court of competent jurisdiction prior to initiation of
arbitration. Employer's application for temporary injunctive relief will not
limit Employer from pursuing any other available remedies for such breach.
However, if Employer seeks temporary injunctive relief, the merits of the
underlying dispute will be decided in arbitration, as provided in Section 19.
11. Severability. Each provision of this Agreement, including
particularly, but not solely, the provisions of Section 10, is intended to be
severable, and if any portion of this Agreement is held invalid, illegal,
unenforceable or void for any reason, the remainder of this Agreement will
nonetheless remain in full force and effect. Any portion held to be invalid,
unenforceable, or void will, if possible, be deemed amended or reduced in scope,
but such amendment or reduction in scope will be made only to the minimum extent
required for purposes of maximizing the validity and enforceability of this
Agreement.
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12. General Acknowledgments. Officer and Employer expressly agree
that the restrictions on Officer's activities imposed under Section 10 are
reasonable and necessary to protect the trade secrets of Employer. The parties
expressly agree that (i) Officer is 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 is unreasonable, the court will not declare the provision invalid,
but rather will reform and modify the provision, and enforce the provision, to
the maximum extent permitted by law. The existence of any claim or cause of
action of Officer against Employer, whether predicated on this Agreement or
otherwise, will not constitute a defense to the enforcement by Employer of the
provisions of Section 10.
13. Non-Waiver. The failure to enforce any right arising under this
Agreement or any similar agreement on one or more occasions will not be deemed
or construed to be a waiver of that right under this Agreement or any other
agreement on any other occasion, or of any other right on that occasion or any
other occasion.
14. Officer Warranties. Officer warrants to Employer that, as of the
Effective Date, (a) Officer is not employed and is not a party to another
employment contract, express or implied; (b) Officer has no other obligation,
contractual or otherwise, which would prevent Officer from entering into this
Agreement and from complying with its provisions; (c) Officer does not possess,
and will not utilize during Officer's employment with Employer, any confidential
information obtained by Officer through or in connection with any prior
employment, relating to any prior employer's business, products, services,
techniques, methods, systems, plans, policies, prices, customers, prospective
customers, or employees; and (d) Officer has given Employer timely written
notice of any of Officer's prior employment agreements or patent rights that
might conflict with any interest of Employer and has provided Employer with a
copy of such agreements or patent rights, including any applications for such
rights.
15. Successors and Assigns. This Agreement is binding upon, and will
inure to the benefit of, Employer and Officer, and their respective heirs,
personal and legal representatives, successors, and assigns and is binding upon
and will inure to the benefit of any person or entity succeeding Employer, by
merger, consolidation, purchase of assets or stock, or otherwise, but the
interests of Officer under this Agreement are not subject to the claims of
Officer's creditors, and may not be voluntarily or involuntarily assigned,
alienated or encumbered, except as required by law.
16. Integration Clause and Modification. This Agreement is the
complete and exclusive statement of the agreement between the parties and
supersedes all proposals, prior agreements, and all other communications between
the parties, oral or in writing, relating to the subject matter of this
Agreement. This Agreement may be amended or superseded only by an agreement in
writing, signed by Officer and an executive officer of Employer.
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17. Notices. All notices, requests, demands, claims, and other
communications under this Agreement must be in writing. Any notice, request,
demand, claim, or other communication under this Agreement will be deemed duly
given only if it is sent by registered or certified mail, return receipt
requested, postage prepaid, or by courier, or by telecopy or facsimile, and must
be addressed to the intended recipient as follows:
If to Employer, to:
Analytical Surveys, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
with a copy to:
Chair of Compensation Committee of Board of Directors
At the address of such person to which the Company normally
sends communications relating to the Board of Directors
and with a copy to:
Xxxxx X. Xxxx
Xxxxxxx & Xxxxxx L.L.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
If to Officer: to Officer's residence, as shown on Employer's records.
Notices will be deemed given and received three days after mailing if sent by
certified mail, when delivered if sent by courier, and one business day after
receipt of confirmation by person or machine if sent by telecopy or facsimile
transmission. Either party may change the address to which notices, requests,
demands, claims and other communications under this Agreement are to be
delivered by giving the other party notice in the manner set forth above.
18. Governing Law and Forum. Employer and Officer acknowledge and
agree that the State of Indiana has a substantial connection with this
Agreement. This Agreement will therefore be governed by and construed according
to the internal laws of the State of Indiana, without regard to conflict of law
principles.
19. Dispute Resolution. Subject to the availability of temporary
equitable relief under Section 10, any and all claims, disputes, or
controversies between Officer and Employer, any business affiliated with
Employer, or any of their respective directors, officers, managers, employees or
agents, including but not limited to those arising out of or related to this
Agreement, will be resolved by arbitration in Indianapolis, Indiana. Except as
so provided in Section 10, by signing this Agreement, Officer and Employer
voluntarily, knowingly, and
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intelligently waive any right that either of them may otherwise have to seek
remedies in a court of law or other forums, including the right to a jury trial.
The Federal Arbitration Act, 9 U.S.C. Section 1 et seq. ("FAA"), as amended,
will govern the arbitrability of all claims, if they are enforceable under the
FAA. If the FAA does not govern, the Indiana Uniform Arbitration Act, Ind. Code
Section 34-57-2-1 et seq., will apply. Additionally, the substantive law of
Indiana will apply to any common law claims. A single arbitrator engaged in the
practice of law will conduct the arbitration. The parties will select the
arbitrator, but if the parties are unable to do so, they will obtain from the
Federal Mediation and Conciliation Service a panel of five possible arbitrators
who meet the requirements of this Section 19, and will alternatively strike
names (the party raising the claim, dispute, or controversy will have the first
strike) until one remains. Other than as set forth in this Section 19, the
arbitrator will have no authority to add to, detract from, change, amend, or
modify the provisions of this Agreement, any other agreement between Employer
and Officer, or existing law, but will have the authority to award any and all
relief that would otherwise be available to a party in a court. Any and all
requirements for the exhaustion of administrative remedies and other legal
prerequisites to the filing of a claim in court will continue to apply to the
claim if the claim is raised by a party in the arbitration. All arbitration
proceedings, including settlements and awards, arising out of this Agreement
will be confidential. The arbitrator's decision and award will be final and
binding as to all claims which were, or could have been, raised in the
arbitration, and judgment upon the award rendered by the arbitrator may be
entered into any court having jurisdiction of the matter. If any party files a
judicial or administrative action asserting claims subject to this arbitration
provision, and another party successfully stays such action or compels
arbitration of such claims, the party filing the judicial or administrative
action will pay the other party's costs and expenses incurred in seeking such
stay and/or compelling arbitration, including reasonable attorneys' fees.
20. Acknowledgment by Officer. Officer has been afforded the
opportunity to read, reflect upon and consider the terms of this Agreement, has
been afforded the opportunity to discuss this Agreement with Officer's attorney
or other advisor or counselor, has read this entire 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:
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Name: Xxxxxxx X. XxxXxxx, Director Name: Xxxxxx Xxxxxx
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EXHIBIT 1
BONUS PROVISIONS
Employer will pay to Officer a bonus in the amounts and at the times
set forth below:
(1) Early Commencement Bonus. $50,000, if Officer assumes
responsibilities as the President and Chief Executive Officer of
Employer on or before July 17, 2000, payable on the first pay
period that occurs after Officer commences employment.
(2) First Quarter Performance Bonus. $100,000, payable twice per
month in six equal installments of $16,666.67, beginning on the
first pay period that occurs after Officer commences employment,
and payable with respect to Officer's employment during the
fiscal quarter beginning July 1, 2000, and ending September 30,
2000. This bonus is guaranteed, but the Board of Directors will
nevertheless evaluate Officer's employment performance in
accordance with the following criteria:
A. Manage cash within the limits imposed by Employer's banks
by managing accounts payable and accounts receivable, and by
cost containment actions.
B. Restructure projects and project management.
C. Design and implement (subject to approval of the Board of
Directors) a financial restructuring plan based upon an
18-month business plan to be designed by Officer.
D. Design and implement (subject to approval of the Board of
Directors) a plan to reorganize operational and accounting
functions of Employer.
(3) Second Quarter Performance Bonus. With respect to the fiscal
quarter beginning October 1, 2000, and ending December 31, 2000,
Employer will pay Officer a bonus of up to $100,000, depending on
Officer's performance, as determined by the Board of Directors in
its sole discretion after consultation with Officer.
(4) Third Quarter Performance Bonus. With respect to the fiscal
quarter beginning January 1, 2001, and ending March 31, 2001,
Employer will pay Officer a bonus of up to $100,000, depending on
Officer's performance, as determined by the Board of Directors in
its sole discretion after consultation with Officer.
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(5) Fourth Quarter Performance Bonus. With respect to the fiscal
quarter beginning April 1, 2001, and ending June 30, 2001,
Employer will pay Officer a bonus of up to $200,000, depending on
Officer's performance, as determined by the Board of Directors in
its sole discretion after consultation with Officer.
Except as provided in Section 6(c) of the Agreement, Officer must be employed by
Employer throughout the fiscal quarter in order to receive the bonus payment
with respect to such fiscal quarter. Employer's Board of Directors (which will
receive the recommendation of the Compensation Committee) will make all
determinations as to eligibility for and the amount of any performance bonuses.
Employer will cause all such determinations to be made promptly after the
financial results for the pertinent fiscal quarter become available and in any
event not later than 30 days after the end of the fiscal quarter. Payments of
performance bonuses with respect to any fiscal quarter will be made in full on
the first pay period that occurs after the bonus for such fiscal quarter is
determined.
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