EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective for all
purposes and in all respects as of the 20th day of
September, 1995, by and between ANALYTICAL SURVEYS, INC., a
Colorado corporation (hereinafter referred to as the
"employer" or the "Corporation"), and XXXXX X. XXXXXX
(hereinafter referred to as the "employee").
WITNESSETH THAT:
WHEREAS, Employee has been employed by Employer since
September of 1990; and
WHEREAS, Employer and Employee desire to state in
writing the terms and conditions of their agreements and
understandings, and to continue the term of Employee's
employment 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.
This Employment Agreement shall supersede and replace
any prior understandings with respect to Employee's
employment. The term shall commence on September 20,
1995, and shall continue until September 20, 1997, unless
sooner terminated in accordance with the provisions of
Paragraph 6, and shall be automatically renewed for
additional, successive periods of two (2) years each
thereafter.
2. Duties of Employee.
2.1 It is understood and agreed that Employee's
principal duties on behalf of Employer at the date of
execution hereof are and shall be as Sr. Vice President -
Finance of the Corporation. In accepting employment by
Employer, Employee shall undertake and assume the
responsibility of performing for and on behalf of Employer
whatever duties are necessary and required in his position
as Secretary, Treasurer and Sr. Vice President - Finance of
the Corporation.
2.2 Employee covenants and agrees that at all times
during the term of this Agreement, Employee shall devote his
full-time efforts to his duties as an employee of the
Employer. Employee further covenants and agrees that he
will not, directly or indirectly, engage or participate in
any activities at any time during the term of this Agreement
in conflict with the best interests of Employer.
3. Compensation.
3.1 Salary. As compensation for the services to be
rendered by Employee for Employer under this Agreement,
Employee shall be paid not less than the following base
annual salary, on a monthly basis, during the term hereof:
$84,000.00, plus annual increases and bonuses, if any, voted
him by the Board of Directors of employer.
3.2 Bonus. Employee shall be a participant in the
Analytical Surveys, Inc. Incentive Bonus Plan and Stock
Option Plan as approved by the Board of Directors; provided,
that a change in tax rules and regulations or required
accounting principles shall not negatively impact the amount
of Employee's bonus.
3.3 Salary Review. Employee's salary will be reviewed
annually in November, commencing November, 1995.
4. Additional Benefits.
In addition to, and not in limitation of, the
compensation referred to in Paragraph 3, Employee shall be
paid the following additional benefits during the term
hereof:
4.1 Reimbursement. Reimbursement of all reasonable
expenses incurred by him in connection with performance of
his duties as Secretary, Treasurer and Sr. Vice President -
Finance of the Corporation, upon submission of vouchers.
Reasonable expenses shall include, but not be limited to all
out-of-pocket expenses for entertainment, travel, meals,
lodging, automobile expenses, professional fees,
professional dues and the like incurred by him in the
interest of the Employer.
4.2 Participation in Benefit Plans. Employee shall be
a participant, to the extent he meets all eligibility
requirements of general application to senior executives of
the Corporation, in any and all plans maintained by the
Corporation to provide benefits for its employees, as
specified in the Corporation's Employee Handbook, revised
January 2, 1990, a copy of which has been given to Employee,
including, but not limited to, group term life insurance,
hospitalization, medical, disability, profit sharing and
retirement plans; provided however, that reasonable employee
contributions may be required and reasonable increases my be
made in deductible amounts, similar to those then in effect
for all other officers of the Corporation.
4.3 Vacations. Employee shall be entitled to
vacations of not less than four (4) weeks per year. Employee
may accrue any unused vacation time from year to year, and
upon termination of employment will be compensated for any
unused vacation time. Any specific vacation of more than
two (2) weeks' duration shall be approved in advance by the
President.
4.4 Other Perquisites. Employee shall be entitled to
such additional perquisites as may be customarily granted by
the Corporation to senior executives, as determined by the
President of the Corporation.
4.5 Death or Disability Payments. In the event of the
Employee's disability or death, Employee's salary in effect
at the time of his death or disability shall continue to be
paid to Employee, or to his designee, for a period of twelve
(12) calendar months from the date of death or from the date
of Employee's termination by reason of disability. For the
purposes of this Employment Agreement, the obligations of
the Employer make the payments upon the disability of
Employee shall not become effective unless and until all of
the following conditions are met, as determined by an
independent physician selected by the Board of Directors and
agreed to by Employee: (1) Employee shall become physically
or mentally incapable (excluding infrequent and temporary
absences due to ordinary illnesses) of properly performing
the services required of him in accordance with his
obligations under Paragraph 2 hereof or similar provisions
of any renewal agreement; (2) such incapacities shall exist
or be reasonably expected to exist for more than ninety (90)
days in the aggregate during the period of twelve (12)
consecutive months; and (3) either Employee or Employer
shall have given the other thirty (30) days' written notice
of his or its intention to terminate the active employment
of Employee because of such disability. The benefits
payable hereunder shall be in addition to, and shall not be
offset against, any amounts paid to Employee or his designee
by reason of insurance benefits pursuant to Paragraph 4.2
above.
4.6 Life Insurance. Employee shall be provided with a
life insurance policy in the amount of $100,000 (provided he
can meet the medical conditions for such coverage), payable
to such beneficiaries as he shall designate, with an
additional $100,000 of accidental death coverage.
5. Disclosure of Information.
Employee acknowledges that in and as a result of his
employment hereunder, he 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
Employer's trade secrets, systems, procedures, manuals,
confidential reports, and lists of clients. As a material
inducement to Employer to enter into this Agreement and to
pay to Employee the compensation stated in Paragraph 3, as
well as any additional benefits stated in Paragraph 4,
Employee covenants and agrees that he shall not, other than
in the ordinary course of business, at any time during or
following the term of his employment, directly or indirectly
divulge or disclose for any purpose whatsoever or
appropriate to his own use or to the use of others any
confidential information that has been obtained by, or
disclosed to him, as a result of his employment by Employer.
6. Termination.
6.1 Termination By Either Party Without Cause. At any
time during the term hereof, this Employment Agreement may
be terminated "without cause" by either Employer or Employee
upon written notice to the other party.
(A) In the event of such termination "without cause"
by Employee, Employer shall have the option either (a) to
accept Employee's resignation, effective immediately on
receipt of such notice; or (b) to require Employee to
continue to perform his duties hereunder, for a period not
to exceed six (6) months from the date of receipt of such
written notice. In either event, the Employee's
compensation and benefits hereunder shall continue only
until the effective date of termination, as defined in
Paragraph 6.4 below.
(B) In the event of such termination "without cause"
by Employer, Employee shall be continued on the payroll for
twelve (12) months, and shall receive bonuses equal to those
received by him during the twelve (12) months prior to
termination. Such severance pay shall be paid in twelve
(12) equal, successive monthly payments, beginning on the
1st day of the month immediately following the effective
date of termination. Employee shall also be continued under
all group benefit plans for a period of twelve (12) months
from the effective date of termination, as defined in
Paragraph 6.4(A) below. In addition, Employee's stock
options shall continue to vest, and he shall have the
continuing right to exercise such options during the period
of twelve (12) months from the effective date of
termination.
6.2 Termination by Employer For Cause.
Notwithstanding any other provision hereof, Employer may
terminate Employee's employment under this Agreement at any
time for cause. The termination shall be effective by
written notice thereof to the Employee, which shall specify
the cause for termination. For purposes hereof, the term
"cause" shall mean the failure of Employee for any reason,
within thirty (30) days after receipt by Employer of written
notice from Employee, to correct, cease, or otherwise alter
any action or omission to act that constitutes a material
and willful breach of Agreement likely to result in material
damage to the Corporation.
Upon such termination for cause by Employer, Employee
shall not receive termination pay or benefits beyond the
effective date of termination, as defined in Paragraph
6.4(B) below.
6.3 Termination by Employee for Cause.
Notwithstanding any other provision hereof, Employee may
resign his employment under this Agreement at any time for
cause. The termination may be by written notice thereof to
Employer, which shall mean the failure of Employer for any
reason, within thirty (30) days after receipt by Employer of
written notice from Employee, to correct, cease or otherwise
alter any material adverse change in the conditions of
Employee's employment caused by (a) a change in ownership of
Corporation; or (b) any change in Employee's position as Sr.
Vice President - Finance, or the duties assigned to him by
the President of the Company, unless Employee consents to
such change, on terms as mutually agreed.
Upon such termination for cause by Employee, Employee
shall be continued on the payroll for eighteen (18) months
from the effective date of termination (as defined in
Paragraph 6.4(B) below) at his then current salary without
further responsibilities to the Corporation. Employee shall
also be continued under all group benefits plans for a
period of eighteen (18) months from the effective date of
termination. Employee's stock options shall continue to
vest, and he shall have the continuing right to exercise
such options during the period of eighteen (18) months from
the effective date of termination.
6.4 Effective date of Termination.
(A) The effective date of termination, as used in
Paragraph 6.1 with respect to termination "without cause",
shall be the date on which Employee actually ceases to
perform his duties hereunder.
(B) The effective date of termination, as used in
Paragraph 6.2 and 6.3 with respect to termination "for
cause", shall be thirty (30) calendar days after the date on
which Employee receives or gives written notice of
termination.
6.5 Limitation on Severance Compensation.
Notwithstanding any other provision of the Agreement, solely
in the event of a Termination Upon a Change In Control, the
aggregate of the amount of severance compensation paid to
the Employee under the Agreement or otherwise, but exclusive
of any payments to the Employee by virtue of the Employee's
exercise of any right or payment of any kind under any
incentive or benefit plan upon a change in control, shall
not include any amount that the Employer is prohibited from
deducting for federal income tax purposes by virtue of
Section 280G of the Internal Revenue Code or any successor
provision.
7. Covenant Not to Compete. The parties hereto agree that
the Employee 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 the Corporation
during the term of his employment hereunder, nor for a
period of one (1) years after his termination of employment,
within the territory (North America) in which the
Corporation does business.
The parties hereto recognize that Employee has been
retained in the position of Secretary, Treasurer and Sr.
Vice President - Finance for the Corporation, and that in
said position he is considered to be part of the
professional, management and executive staff of the
Corporation.
In the event Employee violates this covenant of non-
competition, both parties acknowledge and agree that the
Corporation shall have the right to bring a lawsuit to
enforce this covenant against Employee, and to obtain
equitable relief in the form of an injunction and, where
applicable, damages at law; that the District Court for El
Paso County, Colorado shall have venue, and exclusive
jurisdiction in such lawsuit; and that Colorado law shall
apply.
In the event the Corporation must bring such a lawsuit
by reason of Employee's breach of this covenant of non-
competition, the Corporation shall be entitled to recover
its reasonable attorneys fees, costs, and expenses of
litigation, in the event it prevails in such lawsuit.
This covenant of non-competition has been negotiated
and agreed to by and between the Corporation and Employee
with full knowledge of, and pursuant to the requirements of
Section 8-2-113 (2) of 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.
8. Other Business Activities.
During the period of his employment under this
Agreement, the Employee shall not be employed by or
otherwise engage or be interested in any business whether or
not in competition with the Corporation, or with any of its
subsidiaries or affiliates, with the following exceptions:
(A) Employee's investment in any business shall not be
considered a violation of this paragraph, provided that such
business is not in competition with the Corporation and so
long as any services rendered to such business by Employee
do not in any way interfere with Employee's duties under
this Agreement.
(B) Employee may consult with other businesses not in
competition with the Corporation, provided that each such
consulting job shall be expressly considered and approved or
disapproved in advance by the audit committee of the Board
of Directors.
9. Indemnification.
So long as Employee is not found by a court of law to
be guilty of willful and material breach of this Agreement,
or to be guilty of willful gross misconduct, he 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 attorney fees and expenses of counsel
satisfactory to and approved by Employee) incurred by
Employee, arising out of, in connection with, or based upon
Employee's services and the performance of his duties
pursuant to this Employment Agreement, or any other matter
contemplated by this Employment Agreement, whether or not
resulting in any such liability; and Employee shall be
reimbursed by Employer as and when incurred for any
reasonable legal or other expenses incurred by Employee 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 Employee is a defendant in or target
of such action, proceeding or investigation).
10. Burden and Benefit.
This Agreement shall be binding upon, and shall inure
to the benefit of, Employer and Employee, 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 assuring
the Corporation, by merger, consolidation, purchase of
assets or stock, or otherwise; provided, however, that the
interests of the Employee hereunder are not subject to the
claims of his creditors, and may not be voluntarily or
involuntarily assigned, alienated or encumbered.
11. 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.
12. Severability.
The provisions of this Agreement, including
particularly but not solely, the provisions of Paragraphs 5
and 6, shall be deemed severable, and the invalidity or
unenforceability of any one or more of the provisions of
this Agreement shall not affect the validity and
enforceability of the other provisions.
13. 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
this residence in the case of Employee, and to its principal
office in the case of Employer.
14. Entire Agreement.
This Agreement contains the entire agreement and
understanding by and between Employer and Employee with
respect to the employment of Employee, 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 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.
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, Employer and Employee have duly
executed this Agreement as of the day and year first above
written.
EMPLOYER:
ATTEST: ANALYTICAL SURVEYS, INC.
a Colorado corporation
/s/Xxxxx X. Xxxxx by: /s/ Xxxxxx X. Xxxxxx
Notary President
EMPLOYEE:
/s/ Xxxxx X. Xxxxxx
XXXXX X. XXXXXX
