EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of ____________ 2004, by and between
COGENCO INTERNATIONAL, INC., a Colorado corporation, (the "Company"), and XXXXX
X. XXXXXXX presently residing in Denver, Colorado ("Executive").
WITNESSETH:
WHEREAS, Company hires Executive as the President of the Company;
WHEREAS, the Board of Directors ("Board") recognizes that the Executive
will contribute significantly to the growth and success of the Company;
WHEREAS, the Board desires the attention and dedication of the Executive as
a member of the Company's management, and has determined it is in the best
interest of the Company to employ Executive; and
WHEREAS, the Executive is willing to commit himself to serving the Company
on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the parties hereto hereby agree as
follows:
1. Employment. The Company hereby agrees to employ the Executive as the
President of the Company during the Employment Term (as defined in Section 3),
and the Executive hereby accepts such employment and agrees to serve the Company
subject to the general supervision, advice and direction of the Board of
Directors and upon the terms and conditions set forth in this Agreement.
2. Duties. During the Employment Term, the Executive, as the President of
the Company, shall have such authority and duties as is customary for the
officer of a corporation in such position, and shall perform such other services
and duties as the Board may from time to time designate consistent with such
position. The Executive shall devote substantially his full time, and provide
his best efforts to the business and affairs of the Company except for
vacations, personal time to which he is entitled pursuant to the terms of this
Agreement and except for illness or incapacity; provided, however, that the
Executive may serve, or continue to serve, on the boards of directors of, and
hold any other offices or positions in, companies or organizations which, in
such Board's judgment, will not present any conflict of interest with the
Company, or materially affect the performance of the Executive's duties pursuant
to this Agreement as long as the Executive discloses in writing each such
position to the Board.
3. Employment Term.
(a) The Executive shall be employed under this Agreement for a term
(the "Employment Term") of five years commencing on ______________, 2004 (the
"Commencement Date") and terminating on the close of business on _____________,
200_, unless sooner terminated as provided in Section 6 hereof (the "Initial
Term"); provided that upon expiration of the Initial Term, this Agreement shall
thereafter automatically be renewed from year to year (or such shorter period
until the Executive's retirement) unless either party provides written
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notification to the other of its intention not to so renew which notice must be
given no later than December 31 of each such year. Neither the expiration of
this Agreement, its termination by reason of the Executive's retirement, nor the
giving of notice by the Company that it does not wish to renew the Employment
Term shall constitute a breach of this Agreement or termination of the Executive
for the purposes of Section 6 or 7 of this Agreement.
(b) Notwithstanding the provisions of Section 3(a), the Employment
Term shall be extended automatically for a period of two years from the month in
which a Change of Control (as such term is defined below) occurs (or such
shorter period ending on the Executive's retirement).
(c) The date on which the Employment Term (including any one year
renewal period then in effect) is scheduled to terminate under Sections 3(a) or
3(b) shall hereinafter be referred to as the "Scheduled Termination Date".
(d) If there is a Change in Control then the Executive's monthly
salary shall be accelerated and paid within 30 days of said Change of Control
for the full amount due through the termination date of said employment
agreement according to the terms set forth in 3(b) above.
4. Compensation.
(a) Base Salary. The Company shall pay the Executive an annual base
salary as compensation for his services hereunder of $150,000 (the "Base
Salary"), payable in equal semi-monthly installments in accordance with the
ordinary payroll practices of the Company for management employees.
(b) Supplemental or Incentive Compensation. During the Employment
Term, the Executive may receive supplemental or incentive compensation based on
the criteria the Board deems appropriate consistent with the Company's strategic
plan. Any supplemental or incentive compensation shall be paid in cash.
(c) Additional Benefits. During the Employment Term, the Executive
shall be entitled to paid time off (PTO) and to participate in any employee
benefit plans, including any incentive plans, any pension or group life, health,
hospitalization, short-term disability and other disability insurance plans and
other employee welfare benefits made available generally to management employees
of the Company.
5. Reimbursement of Expenses. In addition to the compensation provided for
under Section 4 of this Agreement, upon submission of proper vouchers and in
accordance with the policies and procedures established by the Company in effect
from time to time, the Company shall pay or reimburse the Executive for all
normal and reasonable expenses, including travel expenses, incurred by the
Executive during the Employment Term in connection with the Executive's
responsibilities to the Company.
6. Termination. Notwithstanding Section 3 hereof, the Employment Term shall
terminate prior to the Scheduled Termination Date upon the occurrence of any of
the following events:
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(a) Death. The Employment Term shall terminate upon the death of the
Executive.
(b) Disability. The Employment Term shall terminate as a result of the
Executive's Permanent Disability (as such term is defined in Section 6(f)).
(c) Termination Without Cause. The Employment Term shall terminate
upon the Executive's Termination Without Cause (as such term is defined in
Section 6(f)).
(d) Termination By Executive. The Employment Term shall terminate upon
a Voluntary Termination (as such term is defined in Section 6(f)) by the
Executive of his employment hereunder with the Company.
(e) Termination For Cause. The Employment Term shall terminate upon
the Executive's Termination For Cause (as defined in Section 6(f)).
(f) Definitions. For purposes of this Agreement:
(i) "Permanent Disability" shall mean that by reason of a
physical or mental disability or infirmity which has continued for a period of
at least six months, the Executive is unable substantially to perform the duties
contemplated by this Agreement on a regular basis. The determination of
Permanent Disability shall be made by a medical board certified physician
mutually acceptable to the Company and the Executive (or the Executive's legal
representative, if one has been appointed). The Executive agrees to submit such
medical evidence regarding such disability or infirmity as is reasonably
requested by the Company.
(ii) "Termination For Cause" shall mean any termination of the
employment of the Executive for "Cause." For purposes of this Agreement, the
termination of the Executive's employment shall be deemed to have been for Cause
only:
(A) if termination of his employment shall have been the
result of the Executive's willful engaging in dishonest, unethical, `illegal or
fraudulent actions resulting or intended to result directly or indirectly in any
demonstrable material harm to the Company or its shareholders, or
(B) if there has been a willful and continued failure by the
Executive during the Employment Term (except by reason of incapacity due to
physical or mental illness) to comply with the provisions of this Agreement, and
the Executive shall have either failed to remedy such alleged breach within ten
days from his receipt of written notice from the Company demanding that he
remedy such alleged breach or shall have failed to take all reasonable steps to
that end during such ten day period and thereafter; or
(C) if the Executive has failed to comply with the
provisions of this Agreement on two or more prior occasions, even if the
Executive remedied the conduct as provided in Section 6(f)(ii)(B); or
(D) if there has been a breach of fiduciary duty involving
personal profit to the Executive;
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provided that there shall have been delivered to the
Executive at least ten days prior to the effective date of Termination for Cause
a Notice of Termination (as defined in this Section 6(f)) and a certified copy
of a resolution of the Board adopted by the affirmative vote of not less than a
majority of the entire membership of the Board (other than the Executive if he
is a member of the Board at such time) at a meeting called and held for that
purpose and at which the Executive was given an opportunity, together with the
Executive's counsel, to be heard, finding that the Executive had engaged in
conduct set forth in subsection (A), (B), (C) or (D) above based on reasonable
evidence, specifying the particulars thereof in detail.
If the Executive's employment shall be terminated by the
Company during the Employment Term for Cause, the Executive shall have the right
to contest such termination only in accordance with the rules set forth in
Section 14 of this Agreement.
(iii) "Voluntary Termination" shall mean any voluntary
termination by the Executive of his employment with the Company or termination
as a result of retirement at or after age 65.
(iv) "Termination Without Cause" shall mean any termination of
the employment of the Executive by the Company other than Voluntary Termination,
Termination For Cause or upon death, or Permanent Disability. Termination
Without Cause pursuant to the preceding sentence may occur only upon the
affirmative vote of at least a majority of the entire membership of the Board
(not counting the Executive, who may not vote if he is then a member of the
Board) at a meeting called and held for that purpose.
(v) Any termination of the Executive's employment by the Company
or by the Executive (other than termination pursuant to Section 6(a)) shall be
communicated by written "Notice of Termination" to the other party to this
Agreement. For purposes of this Agreement, a "Notice of Termination" shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
(vi) The "Date of Termination" shall mean (A) if the Executive is
terminated by his death, the date of his death, (B) if the Executive's
employment is terminated due to a Permanent Disability, 30 days after Notice of
Termination is given, (C) if the Executive's employment is terminated pursuant
to a Termination For Cause, the date specified in the Notice of Termination, (D)
if the Executive's employment is terminated due to his retirement, the date
specified in the Notice of Termination and (E) if the Executive's employment is
terminated for any other reason, the date specified in the Notice of
Termination.
7. Termination Benefits.
(a) Death. If the Executive's employment is terminated by his death,
the Company shall pay to his surviving spouse, or if he leaves no spouse, to his
estate, any compensation, pro rata incentive compensation, and benefits earned
by the Executive or vested under Section 4 of this Agreement through the
Executive's Date of Termination; provided, however, that no death benefits
attributable to a period after the Scheduled Termination Date in effect at the
time of the Executive's death shall be payable.
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(b) Permanent Disability. If the Executive's employment is terminated
as a result of his Permanent Disability, the Company shall pay the Executive
through the Executive's Date of Termination, any compensation and benefits
earned or vested by the Executive under Section 4 of this Agreement; provided,
however, that no payments shall be made under this Section 7(b) following the
Scheduled Termination Date in effect at the time of the Executive's Permanent
Disability. Further, if the Executive receives disability benefits under any
disability plan paid for by the Company, including disability insurance, the
amount otherwise payable by the Company to the Executive shall be reduced (but
not below zero) by the amount of such disability benefits received by him. To
the extent permitted under the life, medical, dental and disability plans then
maintained by the Company for similarly situated active management employees, at
the Executive's option and expense, the Company shall cause to be continued
benefits under such plans to the Executive at coverage not less than the
coverage maintained by the Company for the Executive immediately prior to the
Permanent Disability, which shall run concurrently with the Executive's COBRA
period. Such coverage shall cease upon the earlier of (i) in the case of medical
and dental benefits, the expiration of the Executive's COBRA rights, (ii) the
Executive's death, or (iii) the Executive's full-time employment by another
employer.
(c) Termination For Cause or Voluntary Termination. In the case of a
termination of the Executive pursuant to Section 6(f)(ii) or Section 6(f)(iii)
of this Agreement, the Company's obligations to the Executive shall cease the
day after the Executive's Date of Termination and the Company shall not be
liable to pay the Executive's Base Salary or supplemental compensation nor shall
the Executive have any rights to further participate in employee benefit plans
of the Company pursuant to Section 4, except the Executive shall be entitled to
any rights or benefits that have become vested prior to the Date of Termination
(unless the plan pursuant to which such benefits are provided states to the
contrary). The Company shall pay the Executive his Base Salary and any other
compensation or benefits earned or vested through the Date of Termination at the
rate in effect at the time the Notice of Termination is given in a lump sum
within 30 days of the Date of Termination.
(d) Termination Without Cause or Termination With Good Reason. If
during the Employment Term, the Executive shall be terminated from employment
based on a Termination Without Cause or Termination With Good Reason as defined
in Section 8(c) of the Agreement, the Executive shall be entitled to receive the
following payments and benefits:
(i) Salary. In the event of any termination under this Section
7(d), the Executive's Base Salary earned through the Date of Termination at the
rate in effect at the time the Notice of Termination is given.
(ii) Severance Payment. In the event of any termination under
this Section 7(d), in lieu of any further payments to the Executive including
any payments to which the Executive would be entitled under any severance plan
or arrangement of the Company, the Company shall pay as severance pay to the
Executive an amount equal to two times the Executive's Base Salary but not less
than the amount due during the remaining term of the Agreement. Such payments
are payable in a single sum, within 30 days following the Executive's
Termination Date. Notwithstanding the foregoing, in lieu of such severance, at
the option of the Company, the Company and the Executive may enter into a
written consulting agreement pursuant to which, for services rendered by the
Executive, the Executive would receive consideration in an amount equal to the
severance payment otherwise to be made pursuant to this Section 7(d)(ii).
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(iii) Release. The payments provided under this Section 7(d) upon
termination shall be in lieu of any other payments or causes of action available
to the Executive pursuant to this Agreement. As a condition to receipt of
payments under Section 7(d) of this Agreement, the Executive shall execute a
Release and Settlement Agreement acceptable to the Company, pursuant to which
the Executive shall waive any and all claims resulting from employment at or
termination from the Company other than payments or benefits which are expressly
provided for in this Agreement.
(e) Retirement. The Executive shall not be entitled to any Severance
Payment pursuant to this Section 7 in the event that this Agreement is
terminated prior to its Scheduled Termination Date or as of any Scheduled
Termination Date due to the Executive's retirement.
8. Change of Control.
(a) No benefit shall be payable under this Section 8 unless there
shall have been a Change of Control of the Company.
(b) For purposes of this Agreement, a Change of Control of the Company
("Change of Control") shall be deemed to have occurred if the event set forth in
any one of the following paragraphs shall have occurred:
(i) there is consummated a merger, consolidation or other
reorganization of the Company with any other for- or non-profit corporation; or
(ii) the Board of Trustees of the Company approve a plan of
complete liquidation or dissolution of the Company or there is consummated an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets; or
(iii) a merger of Company in which Company does not survive
(other than a merger with a subsidiary of which Company had control for more
than six months prior to the merger), or consolidation of Company through a
change of its members or any other transaction after which a third party has the
right to appoint a majority of the Board of Trustees of Company.
(c) Good Reason. For purposes of Section 7 and this Section 8 of the
Agreement, Good Reason shall mean the occurrence (without the Executive's
written consent) after any Change of Control or within 90 days prior to a Change
of Control of any one of the following acts by the Company, or failures by the
Company to act, unless, such act or failure to act is corrected prior to the
Date of Termination specified in the Notice of Termination given in respect
thereof.
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(i) (1) the assignment to the Executive of any duties
inconsistent with the Executive's positions, duties, responsibilities and status
with the Company immediately prior to the Change of Control; (2) a significant
adverse alteration in the nature of the Executive's reporting responsibilities,
titles, or offices as in effect immediately prior to the Change of Control; (3)
the removal of the Executive from, or any failure to reelect the Executive to,
any such position, except in connection with a termination of the employment of
the Executive due to a Voluntary Termination, Termination For Cause, or upon
death or Permanent Disability; or (4) any significant diminution in the
Executive's Base Salary from that immediately before the Change of Control, as
the case may be; or
(ii) the requirement by the Company that the Executive's
principal place of employment be relocated more than 45 miles from his existing
place of employment; or
(iii) the Company's failure to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement, as
contemplated in Section 12(a) of this Agreement.
(iv) the failure by the Company to continue in effect any
compensation plan in which the Executive participated immediately prior to the
Change of Control, as the case may be, which is material to the Executive's
total compensation, unless an arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or the failure by the
Company to continue the Executive's participation therein (or in such substitute
or alternative plan) on a basis not materially less favorable, both in terms of
the amount of benefits provided and the level of the Executive's participation
relative to other participants, as existed at the time of the Change of Control;
or
(v) the failure by the Company to continue to provide the
Executive with benefits substantially similar to those enjoyed by the Executive
under any of the Company's pension, life insurance, medical, health and
accident, or disability plans in which the Executive was participating at the
time of the Change of Control or the taking of any action by the Company that
would directly or indirectly materially reduce any of such benefits enjoyed by
the Executive at the time of the Change of Control.
(d) If, within 90 days prior to the Change of Control, the Executive's
employment with the Company (i) is terminated by the Company for any reason
other than Death, Disability, Cause or retirement or (ii) is terminated by the
Executive for Good Reason, the Executive shall receive the compensation
otherwise payable to the Executive pursuant to Section 7(d).
9. Protected Information; Prohibited Competition.
(a) The Executive recognizes and acknowledges that during the course
of the Executive's employment by the Company, the Company has disclosed and
shall furnish, disclose or make available to the Executive confidential or
proprietary information related to the Company's business, including, without
limitation, customer lists, ideas, processes, inventions and devices, that such
confidential or proprietary information has been developed and will be developed
through the expenditure by the Company of substantial time and money and that
all such confidential information could be used by the Executive and others to
compete with the Company. The Executive agrees that all such confidential or
proprietary information shall constitute trade secrets, and further agrees to
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use such confidential or proprietary information only for the purpose of
carrying out his duties with the Company and not otherwise to use or disclose
such information. For purposes of this Agreement, information shall be deemed
confidential notwithstanding any prior unauthorized disclosure by any person.
The obligations imposed by this Section 9(a) shall not apply to any information
that: (a) was known to Executive prior to Executive's employment by the Company;
or (b) is now or becomes generally known or available to the public through no
act of the Executive.
(b) The Executive agrees that during his employment and for a period
of two years following the termination of his employment under Section 6 (except
for Termination With Good Reason or Termination Without Cause):
(i) he will not (except on behalf of or with the prior written
consent of the Company) within any geographic area in which the Company is
located or does business or the Executive knows the Company intends to do
business, either directly or indirectly, consult with, manage, own, operate,
control or participate in or be employed by any entity that competes with the
Company ("Competing Business") or any entity planning to engage in a business
that would compete with the Company; and
(ii) he will not (except on behalf of or with the prior written
consent of the Company), either directly or indirectly, on his own behalf or in
the service or on behalf of any third person, solicit, divert or appropriate to
any Competing Business or attempt to solicit, divert or appropriate to any
Competing Business any business from any customer or client or actively sought
prospective customer or client of the Company or any of its subsidiaries with
whom the Executive has dealt, whose dealings with the Company have been
supervised by the Executive or about whom the Executive has acquired proprietary
information during the course of his employment with the Company; and
(iii) he will not (except on behalf of or with the prior written
consent of the Company), either directly or indirectly, on his own behalf or in
the service or on behalf of any third person, solicit, divert or hire away, or
attempt to solicit, divert or hire away, any person employed by the Company or
any of its subsidiaries with whom the Executive had regular contact in the
course of his employment with the Company, whether or not such employee is a
full-time or a temporary employee, whether or not such employment is pursuant to
a written agreement and whether or not such employment is for a specified period
or at will.
(c) Service by the Executive on the Board of Directors of any
not-for-profit or for-profit organization shall not be deemed a violation of
Section 9(b) hereof.
(d) The restrictions in this Section 9 shall survive the termination
of this Agreement and shall be in addition to any restrictions imposed on the
Executive by statute or at common law.
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10. Inventions.
(a) The Executive agrees that all Subject Inventions (defined below in
this Section 10) conceived or first practiced by the Executive during his
employment by the Company, and all patent rights and copyrights to the Subject
Inventions are or shall become the property of the Company immediately upon such
conception or practice, and the Executive hereby irrevocably assigns to the
Company all of the Executive's rights to all Subject Inventions.
(b) The Executive agrees that if he conceives an Invention during his
employment and there is a reasonable basis to believe that the Invention is a
Subject Invention, the Executive will promptly provide a written description of
the Invention to the Company adequate to allow evaluation for a determination as
to whether the Invention is a Subject Invention. It is agreed that all notebooks
maintained by the Executive relating (directly or indirectly) to Subject
Inventions and written disclosures are the property of the Company.
(c) If, upon commencement of the Executive's employment with the
Company, the Executive has previously conceived any Invention or acquired any
ownership interest in any Invention, which: (i) is the Executive's property, or
of which the Executive is a joint owner with another person or company; (ii) is
not described in any issued patent as of the commencement of the Executive's
employment with Company; and (iii) would be a Subject Invention if such
Invention was made while a Company employee; then the Executive must, at the
Executive's election, either: (A) provide the Company with a written description
of the Invention on Exhibit A hereto, in which case no rights to the Invention
shall become the property of the Company; or (B) provide the Company with the
license described in Section 10(d) of this Agreement.
(d) If the Executive has previously conceived or acquired any
ownership interest in an Invention described above in Section 10(c) and the
Executive elects not to disclose the same to the Company as provided above, then
the Executive hereby grants to the Company an irrevocable nonexclusive, paid up,
royalty-free license to use and practice the Invention, including a license
under all patents to issue in any country which pertain to the Invention.
(e) The Executive owns no patents, individually or jointly with
others, except those described on Exhibit B hereto.
(f) Definitions.
(i) "Invention" shall mean any discovery, whether or not
patentable, including, but not limited to, any useful process, method, formula,
technique, machine, manufacture or composition of matter, as well as
improvements thereto, which is new or which the Executive has a reasonable basis
to believe may be new.
(ii) "Proprietary Information" shall mean (i) information related
to the Company or its subsidiaries (A) which derives economic value, actual or
potential, from not being generally known to or readily ascertainable by other
persons who can obtain economic value from its disclosure or use; and (B) which
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy and (ii) all tangible reproductions of the information.
Proprietary Information includes, but is not limited to, technical and
nontechnical data related to the formulas, patterns, designs, compilations,
programs, Inventions, methods, techniques, drawings, processes, finances, actual
or potential customers and suppliers, existing and future products, and
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employees of the Company or its subsidiaries. Proprietary Information also
includes information which has been disclosed to the Company or its subsidiaries
by a third party and which the Company or any of its subsidiaries is obligated
to treat as confidential.
(iii) "Subject Invention" shall mean any Invention that is
conceived by the Executive, alone or in a joint effort with others, during the
Executive's employment by the Company which (i) may be reasonably expected to be
used in a product of the Company, or a product similar to a Company product,
(ii) results from work that the Executive has been assigned as part of his
duties as an employee of the Company, (iii) is in an area of technology which is
the same or substantially related to the areas of technology with which the
Executive is involved in the performance of his duties as an employee of the
Company, or (iv) is useful, or which the Executive reasonably expects may be
useful, in any process or product of the Company.
11. Patent Applications.
(a) The Executive agrees that should the Company elect to file an
application for patent protection, either in the United States or in any foreign
country on a Subject Invention of which the Executive was an inventor, the
Executive will execute all necessary documentation relating to the patent
applications, including formal assignments to the Company.
(b) The Executive further agrees that he will cooperate with attorneys
or other persons designated by the Company by explaining the nature of any
Subject Invention for which the Company elects to file an application for patent
protection, reviewing applications and other papers and providing any other
cooperation reasonably required for orderly prosecution of such patent
applications. The Company will be responsible for all expenses incurred for the
preparation and prosecution of all patent applications on Subject Inventions
assigned to the Company.
12. Copyrights.
(a) The Executive agrees that any Works (defined below in this Section
12) created by the Executive in the course of the Executive's duties as an
employee of the Company are subject to the "Work for Hire" provisions contained
in Sections 101 and 201 of the United States Copyright Law, Title 17 of the
United States Code. To the extent such Works are not governed by the foregoing,
the Executive hereby irrevocably assigns to the Company all of the Executive's
rights to all Works.
(b) The Executive must disclose to the Company all Works referred to
in Section 12(a) and shall execute and deliver all applications, registrations
and documents relating to the copyrights to the Works and shall provide
assistance to secure the Company's title to the copyrights in the Works. The
Company shall be responsible for all expenses incurred in connection with the
registration of all such copyrights.
(c) The Executive claims no ownership rights in any Works, either
individually or jointly with others, except those described on Exhibit C hereto.
(d) "Work" shall mean a copyrightable work of authorship, including,
without limitation, any technical descriptions for products, users guides,
illustrations, advertising materials, computer programs (including the contents
of read only memories) and any contribution to such materials.
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13. Indemnification. The Company shall indemnify the Executive to the
fullest extent permitted by the Colorado Business Corporation Act.
14. Injunctive Relief. The Executive expressly acknowledges that any breach
or threatened breach by the Executive of any of the terms set forth in Sections
9, 10, 11 and 12 of this Agreement may result in significant and continuing
injury to the Company, the monetary value of which would be impossible to
establish. Therefore, the Executive agrees that, notwithstanding any provision
in Section 17 of this Agreement to the contrary, the Company shall be entitled
to seek injunctive relief from a court of appropriate jurisdiction without the
posting of a bond or other security in the event of any breach or threatened
breach of the terms of either of such sections. Nothing in this Agreement will
be construed as prohibiting the Company from pursuing any other remedies
available to the Company for such breach or threatened breach, including the
recovery of damages from the Executive. The provisions of this Section 14 shall
survive the termination of this Agreement.
15. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform this Agreement if no such succession had
taken place. Failure of the Company to obtain such agreement prior to or on the
effective date of any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company in the same amount
and on the same terms as he would be entitled to receive hereunder if he
terminated his employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid, which successor executes and delivers
the agreement provided for in this Section 15 or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive under this
Agreement shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die after the
Termination Date but before all amounts payable to him under this Agreement have
been paid, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee, legatee,
or other designee or, if there be no such designee, to the Executive's estate.
16. Notices. Any notice required or permitted by this Agreement shall be in
writing, sent by registered or certified mail, return receipt requested,
addressed to the Board and the Company at the Company's then principal office,
or to the Executive at the address set forth beneath his signature, as the case
may be, or to such other address or addresses as any party hereto may from time
to time specify in writing in a notice given to the other parties in compliance
with this Section 14. Notices shall be deemed given when received or, if sent by
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registered or certified mail, three business days after such notice was placed
in the mail, correctly addressed with postage prepaid, whichever is earlier.
17. Disputes. Any claim, controversy or dispute arising out of or relating
to this Agreement (including employment of Executive), or the breach,
performance, termination, enforceability or validity thereof including the
determination of the scope or applicability of this agreement to arbitrate,
shall be determined by arbitration pursuant to this Section 17 if good faith
negotiations among the parties do not resolve such claim, dispute or controversy
within 60 days after such claim is presented in writing to Company. Such
arbitration shall be conducted in Denver, Colorado, and shall proceed in
accordance with the Employment Arbitration Rules of the American Arbitration
Association then in effect, to the extent that such Arbitration Rules are not
inconsistent with the provisions of this Agreement; provided, however, that such
Arbitration Rules may be modified as shall be required to provide procedural
fairness mandated by state or federal law in a proceeding involving arbitration
of claims arising under federal or state civil rights statutes. Such arbitration
shall be heard by one arbitrator, who, unless otherwise agreed to by the
parties, shall be an impartial attorney at law who has had training and
experience as an arbitrator and who has practiced law for at least 15 years as
an attorney concentrating in either general litigation or employment matters. If
the parties to the dispute are unable to agree on the selection of an
arbitrator, the parties shall alternately strike arbitrators from a panel of
arbitrators provided by the American Arbitration Association until a sole
arbitrator is selected. Reasonable discovery shall be allowed in the arbitration
and each party may be represented by counsel. The arbitrator shall base his
award on applicable law and judicial precedent and include in such award a
written statement of the reasons upon which the award is based, including
findings of fact and conclusions of law. The arbitrator may award any remedies
allowed by law if liability and damages are proven. The award rendered by the
arbitrator shall be final and binding, and judgment may be entered in accordance
with applicable law in any court having jurisdiction thereof. The costs and fees
in the arbitration shall be shared equally by the parties to the arbitration,
except as expressly required otherwise under the applicable federal or state
civil rights statutes in any proceeding arising thereunder. Notwithstanding
anything to the contrary contained in this Section 17, but without limiting the
power of the arbitrator to grant similar remedies that may be requested by a
party in a dispute, Company shall have the right to proceed in any court of
proper jurisdiction to obtain injunctive relief as provided in Section 14 of
this Agreement.
18. Nonalienation of Benefits. Except in so far as this provision may be
contrary to applicable law, no sale, transfer, alienation, assignment, pledge,
collateralization or attachment of any benefits under this Agreement shall be
valid or recognized by the Company.
19. ERISA. This Agreement is an unfunded compensation arrangement for a
member of a select group of the Company's management and any exemptions under
ERISA, as applicable to such an arrangement, shall be applicable to this
Agreement.
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20. Reporting and Disclosure. The Company, from time to time, shall provide
government agencies with such reports concerning this Agreement as may be
required by law, and the Company shall provide the Executive with such
disclosure concerning this Agreement as may be required by law or as the Company
may deem appropriate.
21. Effect on Prior Agreements and Existing Benefits Plans. This Agreement
contains the entire agreement of the parties relating to the subject matter
hereof and supersedes any prior written or oral agreements or understandings
relating to the subject matter hereof.
22. Modification and Waiver. No modification or amendment of this Agreement
shall be valid unless in writing and signed by or on behalf of the parties to
this Agreement. A waiver of the breach of any term or condition of this
Agreement shall not be deemed to constitute a waiver of any subsequent breach of
the same or any other term or condition.
23. Severability. This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, all applicable laws, ordinances,
rules and regulations. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason and to any extent,
be held invalid or unenforceable, such provision shall be modified to the extent
necessary to make such provision fully enforceable. To the extent modification
will not remedy such invalidity or unenforceability, such provision shall be
stricken from this Agreement and shall not affect the remaining provisions
hereof and the application of such provisions to other persons or circumstances,
all of which shall be enforced to the greatest extent permitted by law.
24. Withholding. The compensation provided to the Executive pursuant to
this Agreement shall be subject to any withholdings and deductions required by
any applicable tax laws. In the event the Company fails to withhold such sums
for any reason, it may require the Executive to promptly remit to the Company
sufficient cash to satisfy applicable income and employment withholding taxes.
25. Headings. The headings in this Agreement are inserted for convenience
of reference only and shall not be a part of or control or affect the meaning of
any provision hereof.
26. Consult With Attorney. The Executive has had an opportunity to consult
with an attorney of his choosing prior to executing this Agreement. The
Executive acknowledges and agrees that Xxxxx, Figa & Will, P.C. has not provided
any legal, tax, or other advice to the employee with respect to this Agreement.
27. Governing Law. To the extent not governed by Federal law, this
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Colorado.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the day and year first above written.
COMPANY
COGENCO INTERNATIONAL, INC.
By:________________________
Title:_____________________
EXECUTIVE
___________________________ tax id number: __________________
Address: __________________________
___________________________________
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