DEFERRED COMPENSATION AGREEMENT
This Deferred Compensation Agreement is entered into on the date indicated
below by and between Accelr8 Technology Corporation ("Employer"), and the
employee identified on the Beneficiary Designation ("Beneficiary Designation"
attached to this Agreement ("Employee"). The Beneficiary Designation is a part
of this Agreement and is incorporated herein by this reference. For valuable
consideration, the parties agree as follows:
1. Employer shall continue to employ Employee and Employee shall continue
to serve Employer, devoting Employee's normal working time to the interests and
activities of Employer, in such capacity as Employer from time to time may
assign to Employee. Employee's employment shall continue to be considered
employment at will, and Employer shall be entitled to terminate Employee's
services for any reason without prior notice. This Agreement shall not be
construed as a contract creating an expectation of continued employment. Nothing
contained herein shall be construed as conferring upon Employee the right to
continue in the employ of the Employer in any capacity.
2. Employer shall credit to a book reserve account (identified as the
"Deferred Compensation Account") established for this purpose such amounts as
Employer's board of directors shall determine as deferred compensation on behalf
of Employee. Employer may also set aside sufficient funds in a separate trust to
satisfy Employer's obligations under this Agreement. EMPLOYEE RECOGNIZES THAT
EMPLOYER IS NOT OBLIGATED TO MAKE CONTRIBUTIONS AND EMPLOYEE MAY NOT RECEIVE ANY
BENEFITS UNDER THIS AGREEMENT.
3. Any funds contributed to the Deferred Compensation Account may be kept
in cash or invested and reinvested in mutual funds, stocks, bonds, securities or
any other assets as may be selected by the board in its discretion. In addition,
the funds in the Deferred Compensation Account may be conveyed to a trustee to
be held and invested in consultation with the Board of Directors. Any such trust
must provide that it is established solely to pay benefits under this Agreement
or to satisfy the claims of Employer's creditors. In the exercise of investment
powers, the board may delegate to the trustee full or limited authority to
select the assets in which the funds are to be invested. ON BEHALF OF HIMSELF
AND HIS ESTATE, HEIRS, SUCCESSORS, AND DESIGNATED BENEFICIARY, EMPLOYEE ASSUMES
ALL RISKS IN CONNECTION WITH ANY DECREASE IN VALUE OF THE FUNDS THAT ARE
INVESTED OR CONTINUE TO BE INVESTED IN ACCORDANCE WITH THIS AGREEMENT.
4. The benefits to be paid as deferred compensation, unless forfeited as
provided in this Agreement, are as follows:
a. Upon Employee's termination of employment or attainment of age 65,
Employer shall pay Employee in ten annual installments an amount equal to
the fair market value of the assets in the Deferred Compensation Account as
of the date of termination or on which Employee attains age 65.
Notwithstanding the foregoing, the total amount payable to Employee shall
be increased or decreased as the case may be, but not more than
semi-annually, to reflect the appreciation or depreciation in value and the
net income or loss on the funds that remain invested in the Deferred
Compensation Account. If Employee dies after commencing distribution but
before the ten annual payments are made, the unpaid balance will continue
to be paid in installments for the unexpired portion of the ten-year period
to his designated beneficiary in the same manner as set forth above. Until
all amounts are paid, the funds in the Deferred Compensation Account shall
continue to be invested or held in cash as Employer in its discretion may
determine. Notwithstanding the foregoing, if before reaching age 65
Employee dies or becomes disabled, payments shall be made in the same
manner and to the same extent as set forth in paragraphs 4.b and 4.c below,
as appropriate.
b. If Employee dies while still employed by Employer, Employer shall
pay Employee's beneficiary in ten annual installments an amount equal to
the fair market value of the assets in the Deferred Compensation Account as
of the date of Employee's death in the same manner and to the same extent
as provided in paragraph 4.a above. Notwithstanding anything in this
Agreement to the contrary, if Employer purchases insurance to fund the
payments upon Employee's death, the payment provided in this paragraph
shall be paid only to the extent that insurance proceeds are paid as a
result of Employee's death.
c. If Employee becomes disabled, Employer shall pay Employee in ten
annual installments an amount equal to the fair market value of the assets
in the Deferred Compensation Account as of the date on which Employee
became disabled in the same manner and to the same extent as provided in
paragraph 4.a above. For purposes of this Agreement, Employee shall be
considered disabled on the date Employer's board of directors finds on the
basis of medical evidence satisfactory to the board that Employee is
totally disabled, mentally or physically, so as to be prevented from
engaging in further employment with Employer and that such disability will
be permanent and continuous during the remainder of Employee's life.
d. If Employee's designated beneficiary (or last surviving contingent
beneficiary, as the case may be) dies before all payments under this
Agreement have been paid, the remaining value of the Deferred Compensation
Account shall be determined as of the date of death of the beneficiary and
shall be paid to the last surviving beneficiary's estate on the same
schedule until the ten annual payments are completed.
e. Employer may elect to accelerate payment of periodic payments under
this Agreement upon Employee's death or otherwise. Employer shall have the
sole discretion to determine whether and how to accelerate payments, and if
so, when to make the accelerated payment(s).
f. The installment payments to be made to Employee after termination
of employment (including without limitation upon disability) shall commence
on the first day of the month next following the date of the termination of
employment. The installment payments to be made to the designated
beneficiary under the provisions of this Agreement shall commence on a date
to be selected by Employer but within six months from the date of
Employee's death.
5. Nothing in this Agreement and no action taken pursuant to the provisions
of this Agreement shall create or be construed to create a trust of any kind or
a fiduciary relationship between Employer and Employee, his designated
beneficiary, or any other person. Any funds that may be invested under the
provisions of this Agreement shall continue for all purposes to be a part of the
general funds of Employer and no person other than Employer shall have any
interest in the funds. Title to and beneficial ownership of any assets, whether
cash or investments that Employer may earmark to pay the contingent deferred
compensation hereunder, shall at all times remain in Employer, and Employee and
his designated beneficiary shall not have any property interest whatsoever in
any specific assets of Employer. All contributions, property, or rights under
this Agreement shall remain subject to the rights of Employer and shall be
subject to the claims of Employer's general creditors until distributed to
Employee or Employee's beneficiaries under this Agreement. Any funds held in a
separate trust established by Employer to receive funds allocated and any
earnings thereon shall be used exclusively for the uses and purposes of Employee
and the general creditors of Employer. Any rights created under the Plan for
Employee or Employee's beneficiaries shall be mere unsecured contractual rights
against Employer.
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6. If Employer shall find that any person to whom any payment is payable
under this Agreement is unable to care for his affairs because of illness or
accident or is a minor, any payment due (unless a prior claim therefor shall
have been made by a duly appointed guardian, committee or other legal
representative) may be paid to the spouse, child, parent, or brother or sister
of the recipient, or to any person deemed by Employer to have incurred expense
for such person otherwise entitled to payment, in such manner and proportions as
Employer may determine. Any such payment shall be a complete discharge of the
liabilities of Employer under this Agreement.
7. Nothing contained in this Agreement shall be deemed to exclude Employee
from any supplemental compensation, bonus, pension, insurance, severance pay, or
other benefit to which Employee might otherwise be entitled as an employee of
Employer. Deferred compensation payable under this Agreement shall not be deemed
salary or other compensation to Employee for the purpose of computing benefits
to which Employee may be entitled under any pension plan or other arrangement of
Employer for the benefit of its employees.
8. This Agreement is a personal agreement and the rights and interests of
Employee may not be sold, transferred, assigned, pledged, or hypothecated. This
Agreement shall be binding on the heirs, executors, and administrators of
Employee and on the successors and assigns of Employer. Employee's benefits
under this Agreement shall not be subject to execution or attachment by
Employee's creditors.
9. Employer shall have full power and authority to interpret, construe, and
administer this Agreement and Employer's interpretations and construction
thereof, and actions thereunder, including any valuation of the Deferred
Compensation Account, or the amount or recipient of the payment to be made
therefrom, shall be binding and conclusive on all persons for all purposes. No
member of Employer's board of any officer, employee, agent, or adviser to
Employer shall be liable to any person for any action taken or omitted in
connection with the interpretation and administration of this Agreement unless
attributable to his own willful misconduct or lack of good faith.
10. During Employee's lifetime, Employer and Employee may by mutual
agreement amend, modify, or rescind this Agreement in writing without the
consent of any other person.
11. This Agreement shall be governed by the laws of the state of Colorado.
This Agreement is not intended to be a qualified retirement plan under Section
401 of the Internal Revenue Code or to satisfy any Code provision relating to
qualified retirement plans.
EMPLOYER: EMPLOYEE:
Accelr8 Technology Corporation
By: /s/ David P. Wilhelm /s/ Thomas V. Geimer
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Title: Director
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Date: 3/4/95 Date:
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