EXHIBIT 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is effective as
of the 15th, day of June 2005, by and between Xxxx X. XxXxxxx, an individual
("Employee"), and Navidec Financial Services Inc., a Colorado corporation (the
"Company").
WHEREAS, the Company and Employee entered into an Employment Agreement, dated as
of September 9, 2004, relating the terms and conditions of Employee's employment
with the Company (the "Employment Agreement"); and
WHEREAS, the Company and Employee desire to amend and restate the Employment
Agreement; and
WHEREAS, the Company has determined that it is in the best interests of the
Company and its stockholders to enter into this Agreement setting forth the
rights, obligations and duties of both the Company and the Employee; and
WHEREAS, the Company wishes to assure itself of the services of the Employee for
the period hereinafter provided, and the Employee is willing to be employed by
the Company for said period, upon the terms and conditions provided in this
Agreement.
IN CONSIDERATION of the mutual covenants and promises herein contained, and
subject to the terms and conditions herein set forth, Employee and the Company
hereby agree as follows:
1. Term of Employment; Duties.
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(a) The "Term of Employment" shall commence on the effective date of this
Agreement and shall continue for an initial term of two (2) years unless earlier
terminated as provided in this Agreement (the "Initial Term"). After the Initial
Term, the Term of Employment will automatically renew for successive one (1)
year terms unless and until either party delivers notice of termination to the
other within thirty (30) days of the expirations of the then current term.
(b) During the Term of Employment, the Company shall employ Employee, and
Employee shall work for the Company, as Chief Executive Officer and Chairman of
the Board. In such capacity, Employee shall perform such duties as are
traditional and customary to that position and as may be reasonably directed by
the Board of Directors of the Company (the "Board")
(c) During the Term of Employment, except as set forth below, Employee
shall devote full time and effort to carrying out Employee's duties for the
Company hereunder, shall not engage in any activity which would be inconsistent
with such duties or with the objectives of the Business (as defined below), and
shall diligently perform Employee's obligations and discharge Employee's duties
hereunder. Provided, however, nothing in this Paragraph shall prevent Employee
from devoting time to managing investments, participating with charitable
organizations and trade groups or other similar activities. The "Business" of
the Company is to investigate, acquire, and manage business opportunities for
the Company.
2. Compensation. During the Term of Employment, the following compensation
and benefits shall be payable and provided to Employee:
(a) Employee shall receive from the Company an annual base salary of
$120,000 ("Base Salary"), which shall be payable in accordance with the standard
practice of the Company in the payment of salaries of its employees. Employee's
Base Salary shall be adjusted in accordance with other executives of the Company
and its Subsidiaries.
No less frequently than monthly, the Base Salary will be reviewed and may be
adjusted upward at the discretion of the Board.
Employee shall be entitled to all granted options including 1,000,000
options in the parent company at an exercise price of $0.05.
(b) The Company shall provide Employee with such medical, hospitalization,
insurance, including but not limited to disability insurance, pension plan,
profit sharing and employee benefits and such other similar employment
privileges and benefits ("Benefits") as are afforded generally from time to time
to other executive employees of the Company, and four (4) weeks paid vacation
each year.
(c) The Company shall provide Employee with a Company car to be leased for
no more than $500 per month at Company expense including insurance.
(d) Employee shall also be eligible to participate in the Navidec Financial
Services, Inc. Management Incentive Plan.
(e) At the sole discretion of the Board, Employee shall receive in addition
to his Base Salary annual incentive compensation (an "Annual Bonus") in an
amount and in a form to be determined by the Board upon the advice of the
Compensation Committee.
(f) Employee shall be entitled to receive prompt reimbursement for all pre-
approved reasonable employment-related expenses incurred by Employee, upon the
receipt by the Company of an accounting in accordance with the practices,
policies and procedures applicable to other executive employees of the Company.
3. Early Termination: Death. Notwithstanding anything to the contrary in
Paragraph 1 hereof, if Employee dies during the Term of Employment, the Term of
Employment shall terminate. Upon such termination, Employee's estate or
beneficiaries shall be entitled to receive Base Salary and Benefits earned and
accrued but unpaid through the date on which his death occurs. Employee's estate
shall receive Employee's Annual Bonus (if any), prorated for the number of
months during the fiscal year during which Employee was paid his Base Salary
("Prorated Annual Bonus"). The Prorated Annual Bonus shall be calculated and
paid in the ordinary course after completion of the fiscal year. In addition,
Employee's family ("Family") shall continue to receive health insurance coverage
("Family Health Insurance") during such one (1) year period, to the extent
permitted by the Company's health plan contract(s), or if not permitted, as
purchased by the Company at no cost to the Family. The parties shall have no
further obligation under this Agreement.
4. Early Termination: Disability. Notwithstanding anything to the contrary
in Paragraph 1 hereof, if Employee has at any time been unable, by virtue of
illness or other physical or mental disability, to perform substantially and
continuously the duties assigned to Employee under this Agreement for a period
of ninety (90) consecutive days or one hundred twenty (120) calendar days out of
any period of one hundred eighty (180) consecutive calendar days during the Term
of Employment and the Board has received a medical opinion from a physician
reasonably acceptable to both the Company and the Employee that Employee remains
disabled after said period ("Disability"), then the Company shall have the right
to terminate the Term of Employment upon notice to Employee. Upon such
termination, Employee shall be entitled to receive any Base Salary and Benefits
earned and accrued but unpaid through the date of termination, including,
without limitation, the additional disability insurance described in Paragraph
2(b) hereof. In addition, the Employee shall have the right to receive a
Prorated Annual Bonus to the date of termination. Employee and Family shall
continue to receive health insurance coverage during a one (1) year period
following termination, to the extent permitted by the Company's health plan
contract(s), or if not permitted, as purchased by the Company at no cost to the
Family. The parties shall have no further obligation under this Agreement except
that Employee shall not be relieved of Employee's obligations under Paragraph 8.
5. Early Termination: Termination by the Company for Cause. Notwithstanding
anything to the contrary in Paragraph 1 hereof, the Term of Employment may be
terminated by the Company upon notice to Employee for "Cause." The term "Cause"
shall mean Employee's (a) final, unappealable conviction of a felony involving
fraud, dishonesty or moral turpitude; (b) willful or intentional violation of
Paragraph 8 of this Agreement which breach is not cured within thirty (30) days
after Employee's receipt of written notice from the Company; (c) willful or
intentional material breach of this Agreement which breach is not cured within
thirty (30) days after Employee's receipt of written notice from the Company;.
Upon such termination, Employee shall be entitled to receive any Base Salary and
Benefits earned and accrued but unpaid through the date of termination and a
Prorated Annual Bonus. The parties shall have no further obligation under this
Agreement except that Employee shall not be relieved of Employee's obligations
under Paragraph 8.
6. Early Termination: Termination by the Company. In the event that the
Term of Employment is terminated by the Company without Cause, Employee shall be
entitled to receive (a) Base Salary and Benefits earned and accrued but unpaid
through the date of termination; (b) a lump sum cash payment (or six monthly
payments based on company financial status), net of any applicable withholding
taxes, in an amount equal to six months salary at the highest base salary in
effect during the twelve months prior to termination plus the amount of the
prorated Annual Bonus paid to Employee for the last fiscal year prior to
termination; (c) continuation of Benefits to the extent allowed under Company
plans for one year from the date of termination; and (d) notwithstanding any
provision to the contrary in any plan or agreement relating to stock options for
shares of the Company, immediate vesting of all of Employee's non-vested options
for shares of the Company's capital stock ("Accelerated Option Vesting")
(collectively, the "Severance Payments"). In the event the Company cannot,
pursuant to any of its benefits plans, pay any Benefits under such plan,
Employee shall be entitled to a lump sum payment equal to the after-tax value of
such Benefits. The parties shall have no further obligation under this
Agreement. Employee acknowledges and agrees that payment of Severance Payments
pursuant to this Agreement shall be conditioned upon the Company's receipt of a
release, in form satisfactory to the Company, of all claims that Employee may
have against the Company, its directors, officers, employees and/or agents and
the Employee's satisfaction of the requirements of Paragraph 8 below.
7. Early Termination: Resignation by the Employee.
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(a) For Good Reason.
(i) Notwithstanding anything to the contrary in Paragraph 1 hereof, the
Term of Employment may be terminated by Employee upon notice to the Company for
"Good Reason." For purposes of this Agreement, "Good Reason" includes the
occurrence of any of the following circumstances, without Employee's express
consent: (i) a material adverse change or material diminution in Employee's
position, duties, reporting relationships or responsibilities (as reasonably
determined by Employee in his good faith discretion); (ii) a change in the
required location of the performance of Employee's duties; (iii) a reduction in
either Employee's annual rate of Base Salary or level of participation in any
non-discretionary bonus plan for which he is eligible under Paragraph 2(c); (iv)
an elimination or reduction of Employee's participation in any benefit plan
generally available to executive employees of the Company, unless the Company
continues to offer Employee benefits substantially similar to those made
available by such plan; or (v) a breach of this Agreement by the Company which
is not cured within sixty (60) days of written notice to the Company. Employee's
continued employment will not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason; provided, however, that
Employee will be deemed to have waived his rights pursuant to the circumstances
constituting Good Reason set forth in clauses (i) through (v) of the preceding
sentence if he has not provided to the Company a notice of termination
(described below) within ninety (90) days following his knowledge of the
circumstances constituting Good Reason.
(ii) Upon such termination for Good Reason, Employee shall be entitled to
receive the Severance Payments as described in Paragraph 6 of this Agreement. In
the event the Company cannot, pursuant to any of its benefits plans, pay any
Benefits under such plan, Employee shall be entitled to a lump sum payment equal
to the after-tax value of such benefits. The parties shall have no further
obligation under this Agreement except that Employee shall not be relieved of
Employee's obligations under Paragraph 8.
(iii) Any termination of Employee's employment by Employee must be
communicated by written notice of termination to the Company in accordance with
Paragraph 20 which notice must set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee's
employment under this Paragraph 7.
(b) Other than for Good Reason. In the event that the Term of Employment is
terminated by Employee other than as set forth in Paragraph 7(a) above, Employee
shall be entitled to receive Base Salary and Benefits earned and accrued but
unpaid through the date of termination. The parties shall have no further
obligation under this Agreement except that Employee shall not be relieved of
Employee's obligations under Paragraph 8.
8. Confidentiality and Non-Competition.
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(a) Employee acknowledges that Employee has had or shall have unlimited
access to Confidential Information (as defined below) and business methods
relating to the Company's Business and operations and that the Company would be
injured and the goodwill of the Company would be damaged if Employee were to
breach the covenants set forth in this Paragraph 8. Employee further
acknowledges that the covenants set forth in this Paragraph 8 are reasonable in
scope and duration. "Confidential Information" shall include (i) specific
business strategies relating to the Company's Business, as its Business is being
conducted at the time of any alleged breach of this Section 8; (ii)
methodologies of pricing used by the Business; (iii) customer lists; and (iv)
all other information reasonably deemed by the Company to be confidential and/or
proprietary in nature that Employee knows, or should reasonably know, is
confidential and/or proprietary.
(b) During the Term of Employment and thereafter, except as may be required
by law or necessary in connection with any dealings with any public agency or
authority, Employee shall not disclose, disseminate, divulge, discuss, copy or
otherwise use or suffer to be used, in competition with, or in a manner harmful
to the interests of, the Company, any written Confidential Information
respecting any material aspect of the Company's Business, excepting only use of
such data or information as is (i) at the time disclosed, through no act or
failure to act on the part of Employee, generally known or available; (ii)
furnished to Employee by a third party as a matter of right and without
restriction on disclosure; or (iii) required to be disclosed by court order.
Upon termination of the Term of Employment, Employee shall return to the Company
or, at the Company's direction destroy, any and all materials in tangible or
electronic form containing confidential information belonging to the Company.
(c) During the Term of Employment and for a period of one (1) year
thereafter (except in the event this Agreement is terminated by the Company
pursuant to Paragraph 6 or this Agreement is terminated by the Employee pursuant
to Paragraph 7(a) and Employee has waived his right to collect the Severance
Payments), Employee shall not in North America, or in any international market
in which the Company is, as of the date of termination, doing business, conduct
the Business, directly or indirectly, whether as an individual on Employee's own
account, or as a shareholder, partner, joint venturer, director, officer,
employee, consultant, creditor and/or agent, of any person, firm or organization
or otherwise:
(i) own, manage, control or participate in the ownership, management or
control of, or be employed or engaged by or otherwise affiliated or associated
as a consultant, independent contractor or otherwise with, any other
corporation, partnership, proprietorship, firm, association or other business
entity or otherwise engage in any business that is engaged in, or otherwise
directly competes with, the Business of the Company or any of the Company's
Subsidiaries (as defined herein), as such Business is conducted on the date
Employee ceases to be employed by the Company, in any capacity, including as a
consultant;
(ii) solicit any person who, at the time of termination, is an employee or
officer of the Company or any Subsidiary, or a customer of the Business of the
Company or any Subsidiary (in its capacity as a customer of the Business) to
terminate his, her or its relationship with the Company or the Business (in the
case of a customer);
(iii) solicit any supplier of the Company or any Subsidiary (in its
capacity as a supplier of the Business), to refuse to do business with the
Company or any Subsidiary, or to do business on any less favorable terms than
the Supplier's previous terms with the Company or its Subsidiary, as the case
may be; or
(iv) engage in disparagement (which shall not include the providing of
accurate information without invidious intent) of the Company or any Subsidiary
by any means to any person.
(d) Notwithstanding anything herein to the contrary, Employee shall be
permitted to own shares of any class of capital stock of any publicly held
corporation so long as the aggregate holdings of Employee represent less than
two percent (2%) of the outstanding shares of such class of capital stock.
9. Change in Control.
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(a) If there is a Change in Control (as defined below), Employee shall be
entitled to Accelerated Option Vesting.
(b) For purposes of this Agreement, a "Change in Control" will occur
(i) upon the sale or other disposition to a person, entity or group (as
defined for purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended) (each, a "Person") of 50% or more of the consolidated assets of the
Company taken as a whole, (ii) if any Person becomes the beneficial owner of, or
has the right to acquire (by contract, option, warrant, conversion of
convertible securities or otherwise), 50% or more of the outstanding equity
securities of the Company entitled to vote for the election of directors; and
(iii) upon the merger, consolidation or reorganization with another corporation.
Notwithstanding anything herein to the contrary, a "Change in Control" does not
occur upon an initial public offering of the Company's equity securities
pursuant to an effective registration statement under the Securities Act of
1933, as amended, or upon a transaction, merger, consolidation or reorganization
in which the Company exchanges or offers to exchange newly issued or treasury
shares in an amount less than 50% of the then outstanding equity securities of
the Company entitled to vote for the election of directors, for 51% or more of
the outstanding equity securities entitled to vote for the election of at least
the majority of the directors of a corporation (the "Acquired Corporation"), or
for all or substantially all of the assets of the Acquired Corporation.
(c) If all or any portion of the amount payable to Employee under this
Agreement, either alone or together with other amounts that Employee is entitled
to receive in connection with a Change in Control constitutes "excess parachute
payments," within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), or successor provision, that are subject to the
excise tax imposed by Section 4999 of the Code (or any similar tax or
assessment), the amounts payable to Employee under this Agreement will be
increased to the extent necessary to place Employee in the same after-tax
position as Employee would have been in had no such excise tax or assessment
(including any interest or penalties thereon) been imposed on any such payment
paid or payable to Employee under this Agreement or any other payment that
Employee may receive as a result of such Change in Control. The determination of
the amount of any such tax or assessment and the resulting amount of incremental
payment required by this Paragraph 9(c) will be made by the independent
accounting firm employed by the Company immediately prior to the applicable
Change in Control, within thirty (30) calendar days after the payment of the
amount payable to Employee under this Agreement which triggered an incremental
payment under this Paragraph 9(c), and such incremental payment will be made
within five (5) business days after the determination has been made.
10. Rights and Remedies Upon Breach.
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(a) Employee expressly agrees and understands that the remedy at law for
any breach by Employee of Paragraph 8 may be inadequate and that the damages
flowing from such breach may not be readily susceptible to being measured in
monetary terms. Accordingly, it is acknowledged that upon adequate proof of
Employee's violation of Paragraph 8, the Company may be entitled, among other
remedies, to injunctive relief and may obtain a temporary restraining order
restraining any threatened or further breach. Nothing in this Paragraph 10(a)
shall be deemed to limit the Company's remedies at law or in equity for any
breach by Employee of any of the provisions of this Agreement which may be
pursued or availed of by the Company.
(b) In the event any court of competent jurisdiction determines that the
specified time period or geographical area set forth in Paragraph 8 is
unreasonable, arbitrary or against public policy, then a lesser time period or
geographical area that is determined by the court to be reasonable,
non-arbitrary and not against public policy may be enforced.
(c) In the event the Company has asserted in a formal legal action that
Employee is violating any legally enforceable provision of Paragraph 8 as to
which there is a specific time period during which Employee is prohibited from
taking certain actions or engaging in certain activities, then, in such event
the violation shall toll the running of the time period from the date of the
assertion until the violation ceases.
11. Expenses. Employee is authorized to incur reasonable expenses for
carrying out and promoting the business of the Company, including expenses for
entertainment, travel and similar items, but only in accordance with the
policies of the Company, as from time to time adopted.
12. Withholding Taxes. All payments to Employee or his beneficiary shall be
subject to withholding on account of federal, state and local taxes as required
by law. If any payment hereunder is insufficient to provide the amount of such
taxes required to be withheld, the Company may withhold such taxes from any
other payment due Employee or his beneficiary. In the event all cash payments
due Employee are insufficient to provide the required amount of such withholding
taxes, Employee or his beneficiary, within five (5) days after written notice
from the Company, shall pay to the Company the amount of such withholding taxes
in excess of all cash payments due Employee or his beneficiary.
13. Assignability; Binding Nature. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors, heirs (in
the case of Employee) and assigns. No rights or obligations of the Company under
this Agreement may be assigned or transferred by the Company, except in
connection with a Change in Control where the assignee or transferee agrees, in
writing, to assume such rights and obligations of the Company under this
Agreement. No obligations of Employee under this Agreement may be assigned or
transferred by Employee.
14. Entire Agreement. Except to the extent otherwise provided herein, this
Agreement contains the entire understanding and agreement between the parties
concerning the subject matter hereof and supersedes any prior agreements,
whether written or oral, between the parties concerning the subject matter
hereof.
15. Amendment or Waiver. No provision in this Agreement may be amended
unless such amendment is agreed to in writing and signed by both Employee and an
authorized officer of the Company. No waiver by either party of any breach by
the other party of any condition or provision contained in this Agreement to be
performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time.
Any waiver must be in writing and signed by the Employee or an authorized
officer of the Company, as the case may be.
16. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
17. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of Employee's employment with the
Company to the extent necessary to the intended preservation of such rights and
obligations as described in this Agreement.
18. Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Colorado, without
reference to principles of conflict of laws.
19. Arbitration. With the sole exception of the injunctive relief
contemplated by Paragraph 10(a), any controversy or claim arising out of any
aspect of the relationship of the parties hereto, will be settled by binding
arbitration in Denver, Colorado by a panel of three arbitrators in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
Judgment upon any arbitration award may be entered in any court having
jurisdiction thereof and the parties consent to the jurisdiction of the courts
of the State of Colorado for this purpose.
20. Notices. Any notice given to either party shall be in writing and shall
be effective when given, and shall in any event be deemed to be given upon
receipt, or if earlier, (a) five (5) days after deposit with the U.S. Postal
Service or other applicable postal service, if delivered by first class mail,
postage prepaid, (b) upon delivery, if delivered by hand, (c) one (1) business
day after the business day of deposit with Federal Express or similar overnight
courier, freight prepaid or (d) one (1) business day after the business day of
facsimile transmission, if delivered by facsimile transmission with copy by
first class mail, postage prepaid, and shall be duly addressed to the party
concerned at the address indicated below or to such changed address as such
party may subsequently give such notice of:
If to the Company, to:
6399 S. Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
If to Employee, to:
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21. Headings. The headings of the Paragraphs contained in this Agreement
are for convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
22. Counterparts; Facsimile Signatures. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument. This Agreement may
be executed by facsimile signature and the facsimile signature of any party
shall constitute and original in all respects.
IN WITNESS WHEREOF, the parties hereto have executed or caused to be executed
this instrument on the date first above written.
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/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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NAVIDEC FINANCIAL SERVICES, INC.
By: /s/ J. Xxxxx Xxxxxx
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Its Director
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