Employment Agreement - Factual Data Corp. and Jerald H. Donnan
EMPLOYMENT AGREEMENT
THIS AGREEMENT is signed as of the 1st day of July, 1997, by and
between Factual Data Corp., a Colorado corporation (hereinafter referred to as
"FDC"), and Jerald H. Donnan (hereinafter referred to as "Donnan").
WITNESSETH THAT:
WHEREAS, Donnan has been employed by FDC as a full-time employee of
FDC; and
WHEREAS, FDC and Donnan desire to state in writing the terms and
conditions of their agreements and understandings, and to continue the term of
Donnan's employment on a full-time basis hereunder;
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties,
intending legally to be bound, agree as follows:
1. Term of Employment
The term shall commence on July 1, 1997, and shall continue through
June 30, 2000, unless sooner terminated in accordance with the provisions of
Paragraph 14 below.
2. Duties.
2.1 It is understood and agreed that Donnan's principal duties on
behalf of FDC are and shall be as President and Chief Executive Officer and as
a member of the Board of Directors, or such responsibilities and title as may
be mutually agreed by Donnan and the Board of Directors of FDC.
2.2 Donnan covenants and agrees that at all times during the term
of this Agreement, he shall devote his best efforts to his duties as an
employee of FDC, provided, that he shall not be required to work on any set
schedule or for any set number of hours.
3. Compensation
3.1. Salary. As compensation for the services to be rendered by
Donnan for FDC under this Agreement, including services as a director of FDC,
Donnan shall be paid the following annual salary, on the same basis
(semimonthly) as FDC's payroll, during the term hereof:
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Term Salary
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1st Year (July 1, 1997 - June 30, 1998) $ 99,600
2nd Year $111,600
3rd Year $123,600
Salary increases shall be paid in the 2nd and 3rd year only in the
event that FDC has net income in the immediately preceding fiscal year.
3.2 Bonus. The employee shall also be entitled to incentive
bonuses as, when and if declared by the Board of Directors.
4. Additional Benefits.
In addition to, and not in limitation of, the compensation referred to
in Paragraph 3, Donnan shall be paid the following additional benefits during
the term hereof:
4.1 Reimbursement. Reimbursement of all reasonable expenses
incurred by Donnan in connection with performance of his duties, upon
submission of vouchers. Reasonable expenses shall include, but not be limited
to all reasonable out-of-pocket expenses for entertainment, automobile
expenses, travel, meals, lodging, professional dues and the like incurred by
Donnan in the interest of FDC subject to such guidelines and policies as may be
promulgated by FDC for senior executives.
4.2 Death or Disability Payments. In the event of Donnan's total
disability or death prior to June 30, 2000, Donnan shall be paid death or
disability benefits equal to one year's salary.
4.3 Life Insurance. Donnan shall continue to be provided with the
existing $500,000 life insurance policy (the "Policy") during the term of this
Agreement. At the termination of this Agreement, Donnan shall have the right,
at his option, to take over full payments on the Policy, and the ownership of
the Policy.
4.4 Comparable Benefits. Donnan shall also be provided with the
same additional benefits comparable to other senior management Employees of
FDC, including but not limited to health, dental, and disability insurance,
Section 401(K) plan, and stock options, and shall be included in any FDC bonus
incentive plan established from time to time, and shall receive holiday, sick
leave, and vacation benefits (4 weeks per year) on the same basis as is
generally available to all senior executives of FDC. Donnan shall be eligible
for Stock Options on the same basis as other officers and employees of FDC.
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5. Disclosure of Information.
Donnan acknowledges that in and as a result of his employment
hereunder, he will be making use of, acquiring and/or adding to confidential
information of a special and unique nature and value relating to such matters
as FDC's trade secrets, systems, procedures, manuals, confidential reports, and
lists of clients. As a material inducement to FDC to enter into this Agreement
and to pay to Donnan the compensation stated in Paragraph 3, as well as any
additional benefits stated in Paragraph 4, Donnan covenants and agrees that he
shall not, other than in the ordinary course of business conducted for FDC, at
any time during or following the term of his employment, directly or indirectly
divulge or disclose for any purpose whatsoever or appropriate to his own use or
to the use of others any confidential information that has been obtained by, or
disclosed to him, as a result of his employment by FDC.
6. Covenant Not to Compete.
Donnan agrees that he shall not directly or indirectly own, control,
operate, manage, consult, own shares in, be employed by, or otherwise
participate in any sole proprietorship, corporation, partnership or entity
whose primary business is the same or similar to the business of FDC during the
term of his employment hereunder, nor for a period of one (1) year after his
termination of employment, anywhere within the territory in which FDC does
business; provided, that the Board of Directors shall have the right (but not
be required) to waive this covenant not to compete in writing, with respect to
any specific situation presented to them in advance, in writing by Donnan,
where the Board of Directors, at their sole and absolute discretion, deem
Donnan's intended participation not to be adverse to FDC's interests.
The parties hereto recognize that Donnan has been retained as a member
of the senior executive management of FDC, and that in said position he is
considered to be part of the professional, management and executive staff of
the Corporation.
In the event Donnan violates this covenant of non-competition, both
parties acknowledge and agree that FDC shall have the right to bring a lawsuit
to enforce this covenant against Donnan, and to obtain equitable relief in the
form of an injunction and, where applicable, damages at law; that the District
Court for Larimer County, Colorado shall have venue, and exclusive jurisdiction
in such lawsuit; and that the Colorado law shall apply.
In the event FDC must bring such a lawsuit by reason of Donnan's
breach of this covenant of non-competition, FDC shall be entitled to recover
its reasonable attorneys' fees, costs and expenses of litigation, in the event
it prevails in such lawsuit.
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This covenant of non-competition has been negotiated and agreed to by
and between FDC and Donnan with full knowledge of, and pursuant to the
requirements of Section 8-2-113(2) Colorado Revised Statutes, as amended from
time to time, and is deemed by both parties to be fair and reasonable under the
terms of that statute.
7. Option to Extend.
At Donnan's and FDC's option, upon their mutual agreement, upon thirty
(30) days prior written notice, the term of this Agreement may be extended for
a period of two (2) additional years, on the same terms and conditions as
contained herein.
8. Indemnification.
So long as Donnan is not found by a court of law to be guilty of a
willful and material breach of this Agreement, or to be guilty of willful gross
misconduct, he shall be indemnified from and against any and all losses,
liability, claims and expenses, damages or causes of action, proceedings or
investigations, or threats thereof (including reasonable attorneys' fees and
expenses of counsel satisfactory to and approved by Donnan) incurred by Donnan,
arising out of, in connection with, or based upon Donnan's services and the
performance of his duties pursuant to this Agreement, or any other matter
contemplated by this Agreement, whether or not resulting in any such liability;
and Donnan shall be reimbursed by FDC as and when incurred for any reasonable
legal or other expenses incurred by Donnan in connection with investigating or
defending against any such loss, claim, damage, liability, action, proceeding,
investigation or threat thereof, or producing evidence, producing documents or
taking any other action in respect thereto (whether or not Donnan is a
defendant in or target of such action, proceeding or investigation).
9. Governing Law.
It is understood and agreed that the construction and interpretation
of this Agreement shall at all times and in all respects be governed by the
laws of the State of Colorado.
10. Severability.
The provisions of this Agreement shall be deemed severable, and the
invalidity or enforceability of any one or more of the provisions of this
Agreement shall not affect the validity and enforceability of the other
provisions.
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11. Notice.
Any notice required to be given shall be sufficient if it is in
writing and sent by certified or registered mail, return receipt requested,
first-class postage prepaid, to his residence in the case of Donnan, and to its
principal office in the case of FDC.
12. Entire Agreement; Cancellation of Prior Agreements.
12.1 This Agreement contains the entire agreement and understanding
by and between FDC and Donnan with respect to the employment of Donnan, and no
representations, promises, agreements, or understandings, written or oral, not
contained herein shall be of any force or effect. No change or modification of
this Agreement shall be valid or binding unless it is in writing and signed by
the party intended to be bound.
12.2 No waiver of any provision of this Agreement shall be valid
unless it is in writing and signed by the party against whom the waiver is
sought to be enforced. No valid waiver of any provision of this Agreement at
any time shall be deemed a waiver of any other provision of this Agreement at
such time or at any other time.
13. Burden and Benefit.
This Agreement shall be binding upon, and shall inure to the benefit
of, FDC and Donnan, and their respective heirs, personal and legal
representatives, successors, and assigns and shall be expressly binding upon
and inure to the benefit of any person or entity acquiring FDC, by merger,
consolidation, purchase of assets or stock, or otherwise.
The duties of Donnan hereunder are not assignable by Donnan without
the prior written consent of FDC, and the interests of Donnan hereunder are not
subject to the claims of his creditors, and may not be voluntarily or
involuntarily assigned, alienated or encumbered.
14. Termination.
14.1 By Donnan. Donnan may at his sole option, terminate this
Agreement, upon ninety (90) days written notice to FDC. Upon such termination
by Donnan, FDC shall have no further liabilities or obligations to Donnan
hereunder; except under Section 8 (Indemnification), and Donnan's only further
liabilities to FDC shall be his covenants under Section 5 (Disclosure of
Information), and Section 6 (Covenant not to Compete), which Sections shall
survive termination of this Agreement.
14.2 By FDC. FDC may terminate Donnan's employment hereunder
during the term or any extended term hereof only (1) in the event of Donnan's
death or disability, subject to the provisions of Section 4.2 above; or (2)
"for cause," which shall be defined as
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"the failure of Donnan for any reason, within thirty (30) days after receipt by
Donnan of written notice thereof from FDC, to correct, cease, or otherwise
alter any action or omission to act that constitutes a material and willful
breach of this Agreement likely to result in material damage to FDC, or willful
gross misconduct likely to result in material damage to FDC." Upon such
termination "for cause" under Section 14.2, FDC shall have no further
liabilities to Donnan, except under Section 8 (Indemnification), and Donnan's
only further liabilities to FDC shall be his covenants under Section 5
(Disclosure of Information), and Section 6 (Covenant Not to Compete), which
Sections shall survive termination of this Agreement.
15. Counterparts.
The Agreement may be executed in two or more counterparts, any one of
which shall be deemed the original without reference to the others.
IN WITNESS WHEREOF, FDC and Donnan have duly executed this Agreement
as of the day and year first above written.
FDC
ATTEST: FACTUAL DATA CORP.
/s/ Todd Neiberger By: /s/ Jerald H. Donnan
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President
DONNAN:
/s/ Jerald H. Donnan
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Jerald H. Donnan
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