EXHIBIT 10.15
AGREEMENT
THIS AGREEMENT is signed as of the 27th day of June 1997, by and between
ANALYTICAL SURVEYS, INC., a Colorado corporation (hereinafter referred to as
"ASI"), and Xxxx X. Xxxxxx (hereinafter referred to as "Xxxxxx").
WITNESSETH THAT:
WHEREAS, Xxxxxx has been employed by ASI as a full-time employee, and as
Chief Technical Officer of ASI; and
WHEREAS, Xxxxxx'x full-time employment will be terminated on May 31, 1997,
by reason of Xxxxxx'x desire to semi-retire; and
WHEREAS, ASI wants to hire Xxxxxx on a part-time basis, and ASI 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 part-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.
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The term shall commence on June 1, 1997, and shall continue through
September 30, 1999, unless sooner terminated in accordance with the provisions
of Paragraph 4.2 below.
2. Duties.
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2.1 It is understood and agreed that Xxxxxx'x principal duties on behalf
of ASI are and shall be as technological consultant and member of the Board of
Directors, or such additional responsibilities as may be mutually agreed by
Xxxxxx and the Chief Executive Officer ("CEO") of ASI.
2.2 Xxxxxx covenants and agrees that at all times during the term of this
Agreement, he shall devote his best efforts to his duties as an employee of ASI;
provided that he shall not be required to work on any set schedule or for any
set number of hours.
3. Compensation.
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As compensation for the services to be rendered by Xxxxxx for ASI under
this Agreement, including services as a director of ASI, Xxxxxx shall be paid
$38,250 annual salary, on the same basis (biweekly) as ASI's payroll, during the
term hereof.
4. Additional Benefits.
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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
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Xxxxxx in connection with performance of his duties, upon submission of
vouchers. Reasonable expenses shall include, but not 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
ASI, subject to such guidelines and policies as may be promulgated by ASI for
senior executives.
4.2 Death or Disability Payments. In the event of Xxxxxx'x disability or
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death, prior to September 30, 1999, Xxxxxx'x salary in effect at the time of his
death or disability shall continue to be paid to Xxxxxx, or to his designee, for
a period of six (6) calendar months from the date of death or from the date of
his termination by reason of disability. For the purposes of this Agreement, the
obligations of ASI to make the payments upon the disability of Xxxxxx shall not
become effective unless and until all of the following conditions are met, as
determined by an independent physician selected by the CEO of ASI and agreed to
by Xxxxxx: (1) Xxxxxx shall become physically or mentally incapable (excluding
infrequent and temporary absences due to ordinary illness) 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 Xxxxxx or ASI shall have given the other thirty (30) days'
written notice of his or its intention to terminate the active employment of
Xxxxxx because of such disability.
4.3 Life Insurance. Xxxxxx shall continue to be provided with the
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existing $500,000 split-dollar insurance policy (the "Policy") during the term
of this Agreement. At the termination of this Agreement, Xxxxxx shall have the
right, at his option, to take over full payments on the Policy, and ownership of
the Policy.
4.4 Comparable Benefits. Xxxxxx shall also be provided with the same
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additional benefits comparable to other senior management Employees of ASI,
including but not limited to health, dental, and disability insurance, Section
401(K) plan, and stock options, but shall not be included in the ASI bonus
incentive plan, or receive any holiday, sick leave, or vacation benefits. Xxxxxx
shall be eligible for Stock Options on the same basis as other directors of ASI.
5. Disclosure of Information.
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Xxxxxx 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 ASI's trade
secrets, systems, procedures, manuals, confidential reports, and lists of
clients. As a material inducement to ASI 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 convenants and agrees that he shall not,
other than in the ordinary course of business conducted for ASI, 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 the use
of others any confidential information that has been obtained by, or disclosed
to him, as a result of his employment by ASI.
6. Covenant Not To Compete.
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Xxxxxx agrees that he 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 ASI during the term
of his employment hereunder, nor for a period of ten (10) years after his
termination of employment, anywhere within the territory in which ASI does
business; provided, that the Chief Executive Officer or 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 CEO or the Board, at their sole and absolute
discretion, deem Xxxxxx'x intended participation not to be adverse to ASI's
interests.
The parties hereto recognize that Xxxxxx has been retained as a member of
the senior executive management of ASI, and that in said position he 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 ASI 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 El Paso County, Colorado shall have venue, and exclusive jurisdiction in
such lawsuit; and that Colorado law shall apply.
In the event ASI must bring such a lawsuit by reason of Xxxxxx'x breach of
this covenant of non-competition, ASI 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 ASI 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.
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At Xxxxxx'x option, upon thirty (30) days prior written notice to ASI, the
term of this Agreement will be extended for a period of one (1) additional year,
from September 30, 1999 through September 30, 2000, on the same terms and
conditions as contained herein.
8. Indemnification.
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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, 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 Xxxxxx) incurred by Xxxxxx,
arising out of, in connection with, or based upon Xxxxxx'x services and the
performance of his 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 ASI 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.
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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.
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The provisions of this Agreement 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.
11. Notice.
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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 his residence in the case of Xxxxxx, and to its principal
office in the case of ASI.
12. Entire Agreement; Cancellation of Prior Agreements.
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12.1 This Agreement contains the entire agreement and understanding by
and between ASI 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 This Agreement replaces in its entirety Xxxxxx'x prior Employment
Agreement with ASI; provided, however, that the Deferred Compensation which has
accrued to date under his previous Employment Agreement (s), in the amount of
$85,000.00, will be paid to Xxxxxx as follows:
Paid during regular payroll periods (bi-weekly), in equal amounts of
$1,089.74 over a three year period.
12.3 As of June 1, 1997, the existing Stock Redemption Agreement, between
ASI and Xxxxxx, will be canceled and terminated together with the life insurance
policy on Xxxxxx'x life pursuant to the Stock Redemption Agreement, and ASI may
thereupon, at its option, cancel the "key man" insurance on Xxxxxx'x life.
12.4 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.
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This Agreement (together with Xxxxxx'x stock options pursuant to ASI's
stock option plans) shall be binding upon, and shall inure to the benefit of,
ASI 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 ASI, 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 ASI, and the interests of Xxxxxx hereunder are not
subject to the claims of his creditors, and may not be voluntarily or
involuntarily assigned, alienated or encumbered.
14. Termination.
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14.1 By Xxxxxx. In the event ASI is acquired by a third party, Xxxxxx may
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at his sole option, terminate this Agreement, upon thirty (30) days written
notice to ASI. Upon such termination by Xxxxxx, ASI shall have no further
liabilities or obligations to Xxxxxx hereunder; except under Section 8
(Indemnification), and 12.2 (Deferred Compensation), and Xxxxxx'x only further
liabilities to ASI shall be his 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 ASI. ASI may terminate Xxxxxx'x employment hereunder only (1) in
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the event of Xxxxxx'x death or disability, subject to the provisions of Section
4.2 above; or (b) "for cause," which shall be defined as "the failure of Xxxxxx
for any reason, within thirty (30) days after receipt by Xxxxxx of written
notice thereof from ASI, 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 the ASI, or willful gross misconduct
likely to result in material damage to the ASI." Upon such termination "for
cause" under Section 14.2(b), ASI shall have no further liabilities to Xxxxxx,
except under Section 8 (Indemnification), and 12.2 (Deferred Compensation), and
Xxxxxx'x only further liabilities to ASI shall be his covenants under Section 5
(Disclosure of Information), and Section 6 (Covenant not to Compete), which
Sections shall survive termination of this Agreement.
15. Counterparts.
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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, ASI and Xxxxxx have duly executed this Agreement as of
the day and year first above written.
ASI:
ATTEST: ANALYTICAL SURVEYS, INC.,
a Colorado corporation
/s/ Xxxxx X. Xxxxxx
____________________________
Secretary By: /s/ Xxxxxx X. Xxxxx
________________________________
CEO
XXXXXX:
/s/ Xxxx X. Xxxxxx
_____________________________________
XXXX X. XXXXXX
