[LETTERHEAD OF AVERT, INC. APPEARS HERE]
EMPLOYMENT AGREEMENT
Employment Agreement dated July 1, 1996, between Avert, Inc. a Colorado
corporation (hereinafter referred to as the "Company") and Xxxxx X. Xxxxxx of
Fort Xxxxxxx, Colorado (hereinafter referred to as the "Employee").
WITNESSETH
WHEREAS, Company desires to employ Employee as Vice - President of Operations
and Chief Financial Officer:
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Employee and Company hereby agree as follows:
1. EMPLOYMENT. The Company agrees to employ the Employee as Vice-President
of Operations and Chief Financial Officer. Employee shall devote her full
time and attention to rendering her services to the Company, shall report to
the President and Board of Directors and shall perform duties as may be
specified by the President and Board of Directors. Employee hereby accepts
such employment and agrees that he will, during the continuance hereof,
devote her full time and attention and best talents and abilities to the
duties of employment hereby accepted by her.
2. TERM. Subject to the terms and conditions hereinafter contained, the terms
of this agreement shall be for five years, commencing as of the date first
above written (hereinafter referred to as the "Effective Date") and ending
July 1, 2001 (such term shall be referred herein as the "Employment Term").
Company and Employee may mutually agree to an extension of the Employment
Term.
3. PLACE OF EMPLOYMENT. The Company agrees that the Employee shall have her
principal office at and shall perform her principal duties at the Company's
offices, located in the City of Fort Xxxxxxx, Colorado, or other such
locations within 100 miles of the City of Fort Xxxxxxx as specified by the
Company. Notwithstanding the foregoing, Employee acknowledges that it will
be necessary from time to time for her, in the performance of her duties, to
travel on behalf of the Company and to perform such duties while temporarily
away (for unpredictable periods of time) from her principal office.
(1)
[LETTERHEAD OF AVERT, INC. APPEARS HERE]
4. COMPENSATION AND BENEFITS. For all services to be rendered by the Employee
in any capacity pursuant to the terms of this Agreement, Employee shall
receive the following compensation and benefits:
4.1 Base Salary. During each year of the Employment Term,
Employee shall be paid a yearly base salary of not less than
$60,400, (hereinafter referred to as the "Base Salary"),
payable in 24 equal payments per year of $2,517. Commencing
in June 1997, and annually thereafter, the President and
Compensation Committee of the Board of Directors, in
accordance with the Company's salary review procedures for
officer employees, shall review the Base Salary paid to the
employee and shall if appropriate increase the Employee's
Base Salary.
4.2 Further Benefits. Employee shall be entitled to participate,
as long as she is employed by the Company, in any and all of
the Company's present or future employee benefit plans,
including Paid Time Off (hereinafter referred to as "PTO"),
insurance plans, 401K plans or other such plans or benefits
that are generally applicable to the Company's employees.
Notwithstanding the foregoing, Employee shall not be entitled
to participate in any annual management or employee bonus
plans without the written consent of the President and the
Board of Directors.
5. WITHHOLDING OF APPROPRIATE TAXES. It is understood and agreed by the
parties hereto that the Company shall withhold appropriate taxes from
compensation and with respect to any other economic benefit herein provided
when such withholding is, in the reasonable judgment of the Company, required
by law or regulation.
6. EXPENSES. Company shall pay or reimburse Employee for reasonable or
necessary expenses incurred by the company in conjunction with the
performance of her duties hereunder. Such expenses shall include, but not be
limited to, travel and entertainment expenses and professional fees incurred
by the Employee for services rendered on Employee's behalf to assist her in
performing her duties pursuant to this Agreement.
(2)
[LETTERHEAD OF AVERT, INC. APPEARS HERE]
7. TERMINATION BY THE COMPANY. Employee's employment under this Agreement may
be terminated by the Company prior to the expiration of the Employment Term
for Cause or without Cause as described below. As an incident to the
termination of employment, the Company may relieve Employee of the
performance of any duties and terminate her authority to act on behalf of the
Company any time upon written notice to Employee.
7.1 TERMINATION WITHOUT CAUSE. The Company may terminate
this Agreement at any time , at its sole discretion upon written
notice to the Employee, such termination to be effective on the date
specified in the notice. If the Company terminates this Agreement
without Cause, the Company shall perform, in accordance with the
provisions of this Agreement, all of its obligations under this
Agreement (including providing any retirement or fringe benefits to
which the Employee may be entitled) through the lesser of (I) the
remainder of the Employment Term or (II) six months following the date
of termination, as if the Employee had performed all of her
obligations under the Agreement through that period.
7.2 TERMINATION FOR CAUSE. The Company may terminate this
Agreement for Cause upon at least thirty days' written notice to
Employee with such termination to be effective on the date specified
in such notice; provided, however, that such Cause may only be
determined in good faith by the Company's President and Board of
Directors following at least thirty days' prior written notice to
Employee outlining the facts constituting Cause. Employee will be
given the opportunity to refute the charges prior to final action by
the Company's President and Board of Directors. As used herein,
"Cause" shall mean: actions or inactions by Employee including
malfeasance, negligence or failure to act by Employee involving
material nonfeasance, which, at the time of such malfeasance,
negligence or material nonfeasance, or thereafter, would tend to have
a materially adverse effect on the Company; any breach of this
Agreement: dishonesty; or conviction of any felony crime.
[LETTERHEAD OF AVERT, INC. APPEARS HERE]
In the event Employee is terminated by the President and Board of
Directors for Cause, then the Company shall have no further obligation
to Employee other than to pay the Base Salary and accrued PTO, as the
case may be, up to the date of termination.
7.3 TERMINATION UPON CHANGE OF CONTROL.
1. Right to Payment. In the event that during the Employment Term:
(a) there is a "Change of Control" of the Company (as defined
below); and (b) Employee has "Good Reason" (as defined below) for
doing so, the Employee may within six months from the effective
date of such Change of Control, but not thereafter, discontinue
her employment under this Agreement. Good Reason shall mean (I)
the assignment to the Employee of any duties inconsistent with
those of a Vice-President of Operations and/or Chief Financial
Officer; (II) the relocation of the Employee without her consent,
to any place other than within a radius of 100 miles of the City
of Fort Xxxxxxx, Colorado: or (III) any other material breach of
this Agreement by the surviving or successor entity, if in each
case such action or breach of the Agreement by the surviving or
successor entity, if in each case such action or breach continues
uncorrected for thirty (30) days following written notice thereof
by Employee elected not to continue her employment, the Company or
surviving or successor entity shall pay to Employee, subject to
the provisions of Subparagraph (2) below, an amount equal to 50%
of her Base Salary in effect for the year in which the change of
Control occurred, together with any retirement benefits to which
Employee may be entitled.
For purposes of this Agreement, a Change of Control shall be
deemed to have occurred if: (I) tender offer shall be made and
consummated for the ownership of 50% of the outstanding voting
securities of the Company; (II) the Company shall be merged or
consolidated with another corporation and, as a result of such
merger and consolidation, less than 50% of the outstanding voting
securities of the surviving or resulting corporation shall be
owned in the aggregate by the former shareholders of the Company
as the same shall have existed
[LETTERHEAD OF AVERT, INC. APPEARS HERE]
immediately prior to such merger or consolidation; or (III) the
Company shall sell substantially all of its assets to another
corporation which is not a wholly owned subsidiary; or (IV) a
person, within the meaning of Section 3 (a)(9) or of Section 13(d)
(3) (as in effect on the date hereof) of the Securities Exchange Act
of 1934 (the "Exchange Act"), shall acquire, other than by reason of
inheritance,
50% or more of the outstanding voting securities of the Company
(whether directly, indirectly, beneficially or of record). In
making such a determination, transfers made by a person to an
affiliate of such person (as determined by the Board of Directors of
the Company) , whether by gift devise or otherwise, shall not be
taken into account. For purposes of this Agreement, ownership of
voting securities shall take into account and shall include
ownership as determined by applying the provisions of Rule 13d -3
(d)(1)(I) as in effect on the date hereof pursuant to the Exchange
Act.
Notwithstanding the provisions of Subparagraph (IV) of this
Subparagraph 7.3 (1), "person" as used in that subparagraph shall
not include any holder who was the beneficial owner of more than 10%
of the voting securities of the Company on the date this Agreement
was adopted by the Board of Directors.
2. Payments Upon a Change of Control. It is the intent of the parties
to this Agreement that the payments which are conditioned on a
Change Control would be such that there will be no excess parachute
payments as defined in Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"). Notwithstanding anything in the
Agreement to the contrary, Employee shall have the right to elect to
receive any payment to (or for the benefit of ) her, which are
payable to her as a result of a termination of this Agreement
because of a Change of Control of the Company, in lump sum or over a
period of time, so long as none of the payments shall be deemed to
be an "excess parachute payment" under the Code.
[LETTERHEAD OF AVERT, INC. APEPARS HERE]
8. TERMINATION BY THE EMPLOYEE. Employee may terminate her employment
without being in breach of this Agreement only if the conditions set forth
in this Paragraph 8 are satisfied. In the event of such termination, the
Company shall have no obligation to the Employee.
1. If the Employee wishes to terminate this Agreement for reasons beyond
Employee's control, then the President of the Company and the Board of
Directors may at their sole discretion, determine that the Employee's
request for termination of her employment for reasons beyond his control
then Employee shall have 30 days following such determination to
terminate his employment by written notice thereof.
2. Upon termination of Employee's employment, pursuant to the provisions of
this Paragraph 8, Employee shall be paid the following amounts: (I) any
unpaid Base Salary up to the date of termination and (II) any accrued
PTO.
9. LOYALTY, NON-COMPETITION AND CONFIDENTIALITY.
(PLEASE SEE ATTACHED SEPARATE AGREEMENT)
10. NOTICES. All notices which a party is required or may desire to give
to the other party under or in connection with this Agreement shall be
sufficient if given by addressing same to such other party as follows:
(1) TO EMPLOYEE, TO:
Xxxxx X. Xxxxxx
X.X. Xxx 000
Xxxx Xxxxxxx, Xxxxxxxx 00000
(2) TO THE COMPANY, TO:
Avert, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
or at such other place as may be designated in writing like notice. When
notices addressed as required herein shall be deposited, postage prepaid, in the
United States mail, and /or when the Company or Employee shall have delivered
the same addressed
[LETTERHEAD OF AVERT, INC. APPEARS HERE]
as aforesaid to a telegraph office, toll prepaid, the Company or Employee shall
be deemed to have delivered such notice.
11. SEVERABILITY. In the event that, notwithstanding the foregoing, any of the
provisions of Paragraph 9 or any other provisions of this Agreement shall be
held to be invalid or unenforceable, the remaining provisions thereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included therein. In the event that any
provision of Paragraph 9 shall be declared by a court of competent
jurisdiction to exceed the maximum time period and/or restrictions deemed
reasonable and enforceable for the court shall become and thereafter be the
maximum time period and/or restrictions, and relevant provisions of
Paragraph 9 shall be severed as so reformed.
12. SUPERSEDING EFFECT - ENTIRE AGREEMENT. This Agreement supersedes any prior
agreements or understandings, oral or written, with respect to employment of
Employee and constitutes the entire agreement with respect thereto. It
cannot be changed or terminated orally and may be modified only be
subsequent written agreement executed by both of the parties hereto.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
14. MISCELLANEOUS PROVISIONS. This is a personal service agreement which
may not be assigned by Employee. Any assignment in violation of this
covenant shall be null and void.
15. SUCESSORS AND ASSIGNS. Except as otherwise specifically provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their successors and assigns; provided, however, this Agreement
and the rights and obligations of the Employee hereunder may not be
transferred or assigned by Employer (including by will or by operation of
law) without the prior written consent of Employer.
[LETTERHEAD OF AVERT, INC. APPEARS HERE]
Executed this 1st date of July, 1996.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
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AVERT, INC. BY: Xxxx X. Xxxxxx
