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EXHIBIT 10.14
EMPLOYMENT AGREEMENT
(EXECUTIVE OFFICER)
This employment agreement (this "Agreement"), dated as of February 9,
2000 (the "Effective Date"), is between Analytical Surveys, Inc., a Colorado
corporation whose principal executive offices are located in Indianapolis,
Indiana ("Employer"), and Xxxxxxx X. Xxxxxxxxx ("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, and Officer accepts such employment. Officer will perform such services
for Employer as the Chief Executive Officer requests until March 1, 2000.
Beginning March 1, 2000, Officer will become the Chief Financial Officer of
Employer.
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 set forth in Section 1 of this Agreement.
Beginning March 1, 2000, Officer's principal duties on behalf of Employer are as
the Chief Financial 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
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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).
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 and Bonus. Employer will pay to Officer $18,333.33 monthly
as salary ("Base Salary"), plus annual increases, 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. In addition, Officer will be paid a bonus of $66,000 not
later than March 1, 2001, if Officer remains employed with Employer through
February 9, 2001. Officer will be eligible for bonuses payable in 2002 and
thereafter, if any, as approved by Employer, with respect to work performed on
and after January 1, 2001, in the same manner as other executive officers of
Employer.
(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, except that, as of the date of this Agreement,
Employer has granted to Officer options to purchase 40,000 shares of Common
Stock of Employer under the terms of the 1993 Stock Option Plan; such options
have an exercise price of $6.75 per share. Notwithstanding the provisions of the
first sentence of Section 2.04 of the 1993 Stock Option Plan (and in accordance
with the provisions of Section 2.01 of the 1993 Stock Option Plan), the vesting
period of such stock options will be as follows: Options for 10,000 shares will
vest six months after the date of this Agreement, options for an additional
10,000 shares will vest 12 months after the date of this Agreement, options for
an additional 10,000 shares will vest 24 months after the date of this
Agreement, and options for the final 10,000 shares will vest 36 months after the
date of this Agreement. In all other respects the
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terms of the 1993 Stock Option Plan will govern the rights of Officer with
respect to the foregoing stock options, except that full vesting of such stock
options will occur upon a Change in Control (as defined below), in addition to
the other events that, under the terms of the 1993 Stock Option Plan, cause full
vesting of such stock options prior to the dates set forth in the vesting
schedule set forth above. 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, 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.
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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;
(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);
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(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);
(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
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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, in accordance with the provisions of Section 5.
(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 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.
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(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 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.
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(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
(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).
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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 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
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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, 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
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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 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
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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.
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
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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 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
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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 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: Xxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
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