EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
December 1, 2000, effected as of October 9, 2000 by and between DIGITERRA, INC.,
a Delaware corporation ("Corporation"), and XXXXX XXXX ("Officer").
RECITAL
Corporation desires to employ Officer in the position set forth on EXHIBIT
A, and Officer is willing to accept such employment by Corporation, on the terms
and subject to the conditions set forth in this Agreement.
AGREEMENT
THE PARTIES AGREE AS FOLLOWS:
1. DUTIES. Officer agrees to be employed by and to serve Corporation in
the position set forth on EXHIBIT A, and Corporation agrees to employ and retain
Officer in such capacity. Officer shall report to CIBER, Inc.'s (DigiTerra's
sole shareholder) Chief Executive Officer. Officer shall devote all of his
business time, energy and skill to the affairs of Corporation, except as
otherwise agreed. Officer shall have powers and duties commensurate with his
position set forth on EXHIBIT A. Officer shall comply with the general
management policies of Corporation as announced from time to time. Officer's
principal place of business with respect to his services to Corporation shall be
within fifty (50) miles of the central business district of Greenwood Village,
Colorado, although Officer shall be required at various times to travel as part
of his duties.
2. TERM OF EMPLOYMENT. The initial term of employment of Officer by
Corporation shall be from the date of this Agreement through December 31, 2001,
unless terminated earlier pursuant to this Agreement. This Agreement shall renew
automatically for a period of one year on January 1, 2002 and on each subsequent
anniversary date thereof, subject to the termination provisions hereof.
3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 BASE SALARY. Corporation agrees to pay to Officer initially an
annual "Base Salary" as set forth on EXHIBIT A, payable in twenty-six (26) equal
biweekly installments. The Base Salary for each fiscal year (currently January 1
through December 31 of each year) or portion thereof after fiscal year 2000
shall be as determined in the sole discretion of the Board of Directors, but
shall not be less than $325,000 per annum. In the absence of and until any
salary determination by the Board, Officer's Base Salary for a particular fiscal
year shall be identical to Officer's Base Salary in effect on December 31st of
the immediately preceding fiscal year.
3.2 BONUSES. Officer shall be eligible to receive a bonus for the
fiscal year ending December 31, 2001, provided the Officer remains an employee
through such date. Such
1
bonus will be determined in accordance with the formula described on EXHIBIT A
and paid within seventy-five days after the year-end to which such bonus
relates. The bonus for each fiscal year or portion thereof after fiscal year
2001 shall be determined in the sole discretion of the Board of Directors.
3.3 ADDITIONAL BENEFITS. During the term of his employment, Officer
shall be entitled to the following fringe benefits:
3.3.1 OFFICER BENEFITS. Officer shall be eligible to participate
in such of Corporation's benefit and compensation plans as may be generally
available to executive officers of Corporation, including, without limitation,
profit sharing, medical, dental and health plans, and life and disability
insurance plans, according to their terms. All such benefit plans may be amended
or discontinued in the sole discretion of Corporation. (See Exhibit A also.)
3.3.2 BUSINESS EXPENSES. Corporation shall reimburse Officer for
all reasonable and necessary expenses incurred in carrying out his duties under
this Agreement, including travel and entertainment expenses. Officer shall
present monthly to Corporation an itemized account of such expenses in such form
as may be required by Corporation of its senior officers.
3.3.3 VACATION. Officer shall be entitled to vacation time
generally available to executive officers of Corporation during which vacation
time his compensation shall be paid in full.
3.4 OPTION TO ACQUIRE COMMON STOCK. Officer shall be granted the
first date within above options, pursuant to and subject to the terms and
conditions of the Equity Incentive Plan and the 250,000 option agreements
executed by and between Officer and CIBER, Inc., to purchase certain shares of
Common Stock of CIBER, Inc. at the exercise price or prices stated in the option
agreements. Any further options shall be granted at the sole discretion of the
Corporation's Board of Directors of CIBER, Inc.
It is expected that Corporation will establish its own stock
option program. Officer shall also be granted 250,000 options under
Corporation's stock option plan as soon as it is adopted, but no later than
December 31, 2000.
4. TERMINATION OF EMPLOYMENT.
4.1 TERMINATION FOR CAUSE. Termination for Cause (as defined below)
of Officer's employment may be effected by Corporation at any time without
liability except as specifically set forth in this Subsection. The termination
shall be effected by written notification to Officer and shall be effective as
of the time set forth in such notice. At the effective time of a Termination for
Cause, Officer immediately shall be paid all accrued Base Salary and any
reasonable and necessary business expenses incurred by Officer in connection
with his duties hereunder, all to the date of termination. In addition, Officer
shall be entitled to benefits under any benefit plans of Corporation in which
Officer is a participant to the full extent of Officer's rights under such
plans.
2
4.2 TERMINATION OTHER THAN FOR CAUSE. Corporation may effect a
Termination Other Than for Cause (as defined below) of Officer's employment at
any time upon giving written notice to Officer of such termination and without
liability except as specifically set forth in this Subsection. The termination
shall be effective as of the time set forth in such notice, which shall not
precede the date of receipt of the notice. At the effective time of any
Termination Other Than for Cause, Officer shall immediately be paid all accrued
Base Salary and any reasonable and necessary business expenses incurred by
Officer in connection with his duties hereunder, all to the effective time of
termination. Officer shall also be paid any unpaid bonus compensation and such
unpaid bonus compensation shall be paid promptly once it has been determined,
but no later than sixty (45) days after the first quarter end following
termination. Unpaid bonus compensation for the purposes of this Section 4 shall
be an amount equal to the product of (i) 5% of the difference between Officer's
total accrual basis bonus compensation for the immediately preceding fiscal
year, if applicable, and any amount pre-paid against Officer's bonus
compensation for the fiscal year during which termination occurs, and (ii) the
number of full calendar months of Officer's employment during the fiscal year in
which termination occurs. In addition, Officer shall immediately be paid the
percentage of his Base Salary set forth on EXHIBIT A. Officer shall also be
entitled to benefits under any benefit plans of Corporation in which Officer is
a participant to the full extent of Officer's rights under such plans, and
Corporation shall pay Officer's medical, life and disability insurance premiums
under Corporation's plans (or shall pay Officer a sum in cash, not to exceed
$1,000.00 per month, to pay private plan premiums for coverage substantially the
same as Corporation's) for the number of months following termination set forth
on EXHIBIT A.
4.3 TERMINATION BY REASON OF DISABILITY. If Officer, in the
reasonable judgment of the Board of Directors of Corporation, has failed to
perform his duties under this Agreement on account of illness or physical or
mental incapacity, and such illness or incapacity continues for a period of more
than six (6) months, then the question of whether Officer's illness or
incapacity is reasonably likely to continue shall be submitted to Corporation
or, if disability insurance is maintained on Officer, Officer's disability
insurance carrier for determination. In the event the Corporation or such
insurance carrier determines that Officer is subject to such an illness or
incapacity for which no reasonable accommodation is possible, Corporation shall
have the right to terminate Officer's employment ("Termination for Disability")
by written notification to Officer and payment to Officer of all accrued Base
Salary, unpaid bonus compensation (prorated as provided in Section 4.2) and any
reasonable and necessary business expenses incurred by Officer in connection
with his duties hereunder, all to the date of termination. In addition, Officer
shall immediately be paid the percentage of his Base Salary set forth on EXHIBIT
A. Officer shall also be entitled to benefits under any benefit plans in which
Officer is a participant, including disability benefits which may be provided
pursuant to Section 3.3.1, to the full extent of Officer's rights under such
plans, and Corporation shall pay Officer's medical, life and disability
insurance premiums under Corporation's plans (or shall pay Officer a sum in
cash, not to exceed $1,000.00 per month, to pay private plan premiums for
coverage substantially the same as Corporation's) for the number of months
following termination set forth on EXHIBIT A.
4.4 DEATH. In the event of Officer's death during the term of
employment, Officer's employment shall be deemed to have terminated as of the
last day of the
3
month during which his death occurs, and Corporation shall pay promptly to
his estate (a) all accrued Base Salary, unpaid bonus compensation (as defined
in Section 4.2) and any reasonable and necessary business expenses incurred
by Officer in connection with his duties hereunder, all to the date of
termination, and (b) the percentage of Officer's Base Salary set forth on
EXHIBIT A payable immediately on the effective day of termination. Officer's
estate shall also be entitled to benefits under any benefit plans of
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans.
4.5 VOLUNTARY TERMINATION. In the event of a Voluntary Termination
(as defined below) by Officer, Corporation shall immediately pay all accrued
Base Salary and any reasonable and necessary business expenses incurred by
Officer in connection with his duties hereunder, all to the date of termination.
Officer shall also be paid any unpaid bonus compensation calculated as provided
in Section 4.2.
4.6 TERMINATION UPON A CHANGE IN CONTROL. In the event of a
Termination Upon a Change in Control (as defined below), Officer shall
immediately be paid all accrued Base Salary, unpaid bonus compensation (as
defined in Section 4.2) and any reasonable and necessary business expenses
incurred by Officer in connection with his duties hereunder, all to the date of
termination. In addition, Officer shall immediately be paid the amount set forth
on EXHIBIT A. Officer shall also be entitled to benefits under any benefit plans
of Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans, and Corporation shall pay Officer's medical, life and
disability insurance premiums under Corporation's plans for the number of months
following termination set forth on EXHIBIT A. Notwithstanding the foregoing,
solely in the event of a Termination Upon Change in Control, the aggregate
amount of severance compensation paid to an Officer under this Agreement or
otherwise shall not include any amount that the Corporation is prohibited from
deducting for federal income tax purposes by virtue of Section 280G of the
Internal Revenue Code or any successor provision.
4.7 OTHER BENEFITS. Nothing in this Article 4 shall be deemed to
limit or restrict any right or benefit of Officer under Corporation's
Certificate of Incorporation, Bylaws or other documents or agreements of the
Corporation applicable to Officer.
5. PROTECTION OF CORPORATION'S BUSINESS.
5.1 NO COMPETITION. Officer shall not, during the term of his
employment and for eighteen (18) months following the termination of his
employment, work as an employee, or independent contractor or become an investor
or lender of any business, corporation, partnership or other entity engaged in a
Competing Business. An investment by Officer of up to 2% of the outstanding
equity in a publicly-traded corporation shall not constitute a violation of this
Section 5.1. A "Competing Business" is a business which Corporation has engaged
in, or has actively investigated engaging in, at any time during the twenty-four
(24) months prior to the termination of Officer's employment in which Officer
had responsibility to manage, direct or supervise.
4
5.2 NO SOLICITATION OF CLIENTS. Officer shall not, during the term of
his employment and for eighteen (18) months following the termination of his
employment (unless Corporation grants him written authorization): (a) call upon,
cause to be called upon, solicit or assist in the solicitation of, any client
or potential client of Corporation for the purpose of selling, renting or
supplying any product or service competitive with the products or services of
Corporation; (b) provide any product or services to any client or potential
client of Corporation which is competitive with the products or services of
Corporation; or (c) request, recommend or advise any client or potential
client to cease or curtail doing business with the Corporation. Any
individual, governmental authority, corporation, partnership or other entity
to whom Corporation has provided services or products at any time prior to or
during Officer's employment or to whom Corporation has made one or more sales
or sales calls during the eighteen (18) month period preceding the date of
termination of Officer's employment shall be deemed a client or potential
client.
5.3 NO HIRE OF OTHER EMPLOYEES OR CONTRACTORS. Except on behalf of
the Corporation, Officer shall not, during the term of his employment and for a
period of eighteen (18) months following the termination of his employment: (a)
employ, engage or seek to employ or engage any individual or entity, on behalf
of Officer or any entity (including a client of Corporation), who is employed or
engaged by Corporation or who was employed or engaged by the Corporation during
the six (6) month period preceding Officer's termination; (b) solicit, recommend
or advise any employee of the Corporation or independent contractor to terminate
their employment or engagement with the Corporation for any reason; or (c)
solicit recruiting prospects and/or candidates whose files are actively
maintained or have been maintained during the last six (6) months prior to
Officer's termination by the Corporation.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION AND MATERIALS. All of the Confidential
Information and Materials, as defined herein, are and shall continue to be the
exclusive confidential property and trade secrets of Corporation. Confidential
Information and Materials have been or will be disclosed to Officer solely by
virtue of his employment with Corporation and solely for the purpose of
assisting him in performing his duties for Corporation. "Confidential
Information and Materials" refers to all information belonging to or used by
Corporation or Corporation's clients relating to internal operations, procedures
and policies, finances, income, profits, business strategies, pricing, billing
information, compensation and other personnel information, client contacts,
sales lists, employee lists, technology, software source codes, programs, costs,
marketing plans, developmental plans, computer programs, computer systems,
inventions, developments, personnel manuals, computer program manuals, programs
and system designs, and trade secrets of every kind and character, whether or
not they constitute a trade secret under applicable law and whether developed by
Officer during or after business hours. Officer acknowledges and agrees all
Confidential Information and Materials shall, to the extent possible, be
considered works made for hire for the Corporation under applicable copyright
law. To the extent any Confidential Information and Materials are not deemed to
be a work made for hire, Officer hereby assigns to the Corporation any rights he
may have or may acquire in such Confidential Information and Materials as they
are created, throughout the world, in perpetuity. Further, Officer hereby waives
any and all moral rights he may have in such Confidential Information and
Materials. Notwithstanding the foregoing, the
5
Corporation acknowledges that it shall have no right to inventions or other
material for which no equipment, supplies, facilities or Confidential
Information and Material of the Corporation are used and which are developed
entirely on Officer's own time and (i) do not relate directly to the business
of the Corporation or (ii) do not result from any work performed by Officer
hereunder.
6.2 NON-DISCLOSURE AND NON-USE. Officer may use Confidential
Information and Material while an employee of Corporation and in the course of
that employment to the extent deemed necessary by Corporation for the
performance of Officer's responsibilities. Such permission expires upon
termination of his employment with Corporation or on notice from Corporation.
Officer shall not, either during or after his employment with Corporation,
disclose any Confidential Information or Materials to any person, firm,
corporation, association or other entity for any reason or purpose unless
expressly permitted by Corporation in writing. Officer shall not use, in any
manner other than to further Corporation's business, any Confidential
Information or Materials of Corporation. Confidential information shall exclude
ideas, concepts, and know-how obtained from third parties or within the public
domain. Upon termination of his employment, Officer shall immediately return all
Confidential Information or Materials or other property of Corporation or its
clients or potential clients in his possession or control.
7. DEFINITIONS.
7.1 DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
7.1.1 "Affiliated Company" shall mean any corporation or other
entity that is directly, or through one or more intermediaries, controls, is
controlled by, or is under common control with the Corporation. As used herein,
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such entity, whether
through ownership of voting securities or other interests, by contract or
otherwise.
7.1.2 "Termination for Cause" shall mean termination by
Corporation of Officer's employment by Corporation by reason of (i) Officer's
failure to comply with the lawful directives of the Board of Directors or the
Chief Executive Officer other than as a result of a good faith dispute with
respect to the strategic direction of the Corporation, (ii) any criminal act or
willful misconduct by Officer that is injurious in any significant respect to
the property, operations, business or reputation of the Corporation, or (iii)
any material breach by Officer of any provision of the Agreement, or Officer's
failure to exercise good faith efforts to discharge his responsibilities
hereunder, if such material breach or failure has not been cured within thirty
(30) days following written notice by the Corporation to the Officer of such
breach or failure setting forth with specificity the nature of the breach or
failure.
7.1.3 "Termination Other Than for Cause" shall mean termination
by Corporation of Officer's employment by Corporation other than a Termination
for Cause, Termination Upon Change in Control, Termination for Disability, or
for any or no reason.
6
7.1.4 "Termination Upon a Change in Control" shall mean a
termination by Corporation or any successor thereto of Officer's employment with
the Corporation or such successor for any reason or a termination by the Officer
for Good Reason (as defined below) of the Officer's employment with the
Corporation or any successor thereto within one hundred eighty (180) days
from the date on which any of the following occurs: (a) any "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934 (the "1934 Act")), other than Xxxxx X. Xxxxxxxxx or a
trustee or other fiduciary holding securities under an employee benefit plan
of Corporation, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of more than thirty three
percent (33%) of the then outstanding voting stock of Corporation; or (b) at
any time during any period of three consecutive years (not including any
period prior to the Effective Date), individuals who at the beginning of such
period constitute the Board (and any new director whose election by the Board
or whose nomination for election by Corporation's stockholders was approved
by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority thereof; or (c) the stockholders of Corporation approve
a merger or consolidation of Corporation with any other corporation, other
than a merger or consolidation which would result in the voting securities of
Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of the surviving entity) at least 80% of the combined voting power of the
voting securities of Corporation or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders approve a
plan of complete liquidation of Corporation or an agreement for the sale or
disposition by Corporation of all or substantially all of Corporation's
assets.
For purposes of this Agreement "Good Reason" shall include, but not be
limited to, any of the following (without the Officer's express written
consent): (a) the assignment to the Officer by the Corporation of duties
inconsistent with, or a substantial diminution in the nature or status of, the
Officer's responsibilities immediately prior to a Change in Control other than
any changes primarily attributable to the fact that the Corporation's securities
are no longer publicly traded; (b) a reduction by the Corporation in the
Officer's compensation, benefits, or perquisites as in effect on the date of a
Change in Control; (c) a relocation of the Corporation's principal offices to a
location beyond a thirty (30) mile radius of the central business district of
Denver, Colorado, or the Officer's relocation to any place other than the
Denver, Colorado offices of the Corporation, except for reasonably required
travel by the Officer on the Corporation's business; (d) any material breach by
the Corporation of any provision of this Agreement, if such material breach has
not been cured within thirty (30) days following written notice by the Officer
to the Corporation of such breach setting forth with specificity the nature of
the breach; or (e) any failure by the Corporation to obtain the assumption and
performance of this Agreement by any successor (by merger, consolidation or
otherwise) or assign of the Corporation.
7.1.5 "Voluntary Termination" shall mean termination by Officer
of Officer's employment with Corporation, but shall not include (i) constructive
termination by Corporation by reason of material breach of this Agreement by
Corporation; (ii) Termination Upon a Change in Control; and (iii) termination by
reason of Officer's death or disability as
7
described in Subsections 4.3 and 4.4. Voluntary Termination shall include a
termination by Corporation after its receipt of a notice of an otherwise
Voluntary Termination from Officer.
8. REMEDIES.
8.1 LIQUIDATED DAMAGES.
8.1.1 If Officer violates Subsection 5.1, Officer shall pay to
Corporation the sum of $100,000.00 as liquidated damages to compensate
Corporation for its lost investment of money for recruitment, training, cost of
replacement, lost revenues and other damages due to the likely disruption of the
operation of Corporation's business.
8.1.2 If Officer violates Subsection 5.2, Officer shall pay to
Corporation as liquidated damages the greater of Corporation's gross xxxxxxxx to
the client to which products or services are supplied in violation of Subsection
5.2 during the year immediately prior to the first improper solicitation or
$25,000.00, to compensate Corporation for its lost revenue, client development
expenses and other damages.
8.1.3 If Officer violates Subsection 5.3, Officer shall pay to
Corporation as liquidated damages, in compensation for its recruitment and
training costs, lost revenues and other damages, the following sums for each
employee or independent contractor hired or engaged in violation of Subsection
5.3:
Employee or Independent Contractor Amount
---------------------------------- ------
Vice-President or other officer $100,000
Other Manager or Recruiter $ 50,000
Marketer or other sales personnel $ 50,000
Programmers or other billable personnel $ 12,500
Other office staff $ 5,000
8.1.4 Officer and Corporation have carefully considered the issue
of liquidated damages and after negotiation agree that they are a reasonable
compromise after attempting to estimate what the actual damages would be and
assessing the risk of collection.
8.1.5 Officer authorizes Corporation to disclose the terms of
Sections 5, 6 and 8 of this Agreement to any subsequent employer or client of
Officer.
8.2 EQUITABLE REMEDIES. The service rendered by Officer to
Corporation and the information disclosed to Officer during his employment
are of a unique and special character, and any breach of Sections 5 or 6
hereof will cause Corporation irreparable injury and damage which will be
extremely difficult to quantify. Although the parties have agreed on
liquidated damages for some of the potential breaches by Officer, they agree
that because of the risk of collection and intangibles which are impossible
to measure, Corporation will be entitled to, in
8
addition to all other remedies available to it, injunctive relief to prevent
a breach and to secure the enforcement of all provisions of Sections 5 and 6.
8.3 COSTS. If litigation is brought to enforce or interpret any
provision contained herein, the court shall award reasonable attorneys' fees
and disbursements to the prevailing party as determined by the court.
8.4 SEVERABILITY. THE PARTIES HAVE CAREFULLY CONSIDERED ALL OF
SECTIONS 5, 6 AND 8 AND AGREE THAT THEY REPRESENT A PROPER BALANCING OF THEIR
INTERESTS AND WILL NOT PREVENT OFFICER FROM EARNING A LIVING AFTER
TERMINATION OF HIS EMPLOYMENT. It is the express intent of the parties hereto
that the obligations of, and restrictions on, the parties as provided in
Sections 5 and 6 shall be enforced and given effect to the fullest extent
legally permissible. If, in any judicial proceeding, a court shall refuse to
enforce one or more of the covenants or agreements contained in this
Agreement because the duration thereof is too long, the scope thereof is too
broad or some other reason, for the purpose of such proceeding, the court may
reduce such duration or scope to the extent necessary to permit the
enforcement of such obligations and restrictions.
9. MISCELLANEOUS.
9.1 PAYMENT OBLIGATIONS. Corporation's obliga tion to pay Officer the
compensation provided herein is subject to the condition precedent that Officer
perform his obligations.
9.2 WAIVER. The waiver of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of the same or other provision hereof.
9.3 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement represents the
entire understanding between the parties with respect to the subject matter
hereof, and this Agreement supersedes any and all prior understandings,
agreements, plans and negotiations, whether written or oral, with respect to the
subject matter hereof, including, without limitation, any under standings,
agreements or obligations respecting any past or future compensation, bonuses,
reimbursements or other payments to Officer from Corporation. All modifications
to this Agreement must be in writing and signed by the party against whom
enforcement of such modification is sought; provided; however, that the
provisions concerning Position, Base Salary (subject to the limitation in
Section 3.1) and Bonus set forth on Exhibit A may be modified at any time by the
Board of Directors in its sole discretion.
9.4 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by hand delivery, or
first-class mail, certified or registered with return receipt requested, or by
commercial overnight courier or by fax and shall be deemed to have been duly
given upon hand delivery, three (3) days after mailing, the first business day
following delivery to a commercial overnight courier or upon receipt of a fax
(as confirmed by a machine generated report), addressed as follows:
9
If to Corporation:
DigiTerra, Inc.
0000 XXX Xxxxxxx, #0000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
With a copy to:
CIBER, Inc.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxx 00000-0000
If to Officer:
Xxxxx Xxxx
0000 X. Xxxxxx Xxxx
Xxxxxx Xxxxx Xxxxxxx, XX 00000
Any party may change such party's address for notices by notice given pursuant
to this Section 9.4.
9.5 HEADINGS. The Section headings herein are intended for reference
and shall not by themselves determine the construction or interpretation of this
Agreement.
9.6 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado
without application of its conflict of laws rules. Officer hereby submits to the
exclusive jurisdiction and venue of the District Court of the State of Colorado
for the City and County of Denver or the United States District Court for the
District of Colorado for purposes of any legal action. Officer agrees that
service upon Officer in any such action may be made by first-class mail,
certified or registered, in the manner provided for delivery of notices in
Section 9.4.
9.7 SEVERABILITY. Should a court or other body of competent
jurisdiction determine that any provision of this Agreement is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, so that it is
10
enforceable to the maximum extent possible, and all other provisions of the
Agreement shall be deemed valid and enforceable to the extent possible.
9.8 SURVIVAL OF CORPORATION'S OBLIGATIONS. Corporation's obligations
hereunder shall not be terminated by reason of any liquidation, dissolution,
bankruptcy, cessation of business or similar event relating to Corporation. This
Agreement shall not be terminated by any merger or consolidation or other
reorganization of Corporation. In the event any such merger, consolidation or
reorganization shall be accomplished by transfer of stock or by transfer of
assets or otherwise, the provisions of this Agreement shall be binding upon and
inure to the benefit of the surviving or resulting corporation or person. This
Agreement shall be binding upon and inure to the benefit of the executors,
administrators, heirs, successors and assigns of the parties; provided, however,
that except as provided in this Subsection in the event of a merger
consolidation or reorganization of the Corporation, including the sale of
substantially all of its assets, this Agreement shall not be assignable either
by Corporation or by Officer.
9.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
9.10 WITHHOLDINGS. All compensation and benefits to Officer hereunder
shall be reduced by all federal, state, local and other withholdings and similar
taxes and payments required by applicable law. Corporation may withhold amounts
due it from Officer from amounts due under this Agreement to Officer.
9.11 DIRECTOR'S AND OFFICER'S INSURANCE. Corporation shall use its
best efforts to obtain coverage for Officer under any insurance policy now in
force or hereafter obtained during the term of this Agreement insuring officer
and directors of Corporation for liability incurred by reason of the fact that
Officer is or was a director or officer of Corporation or, while serving as a
director or officer of Corporation, he is or was serving at the request of
Corporation as a director officer, partner or trustee of, or in any similar
managerial of fiduciary position of, or as an employee or agent of, another
corporation, partnership, joint venture, trust, association or other entity.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
OFFICER DIGITERRA, INC.
/s/ Xxxxx Xxxx By: /s/ Mac X. Xxxxxxxxxxx
----------------------------- ----------------------------------
Xxxxx Xxxx Mac X. Xxxxxxxxxxx, Vice President
11
