**EXHIBIT 10.3**

 

**CONSULTINGAGREEMENT**

 

This ConsultingAgreement is made and entered into as of December 31, 2003, betweenAMERIVEST PROPERTIES INC., a Maryland corporation (the “Company”), andALEXANDER S. HEWITT (“Hewitt”).

 

RECITALS

 

A.                                   Hewittis presently serving the Company as its Secretary and as an employee.  Hewitt has indicated that he plans to resignas Secretary and to cease being an employee effective January 1, 2004.

 

B.                                     TheBoard desires that Hewitt become a director of the Company and that he beretained as a consultant to the Company. Hewitt has agreed to serve the Company as a consultant in the mannerprovided in this Agreement.

 

AGREEMENT

 

In considerationof the mutual promises contained herein, the receipt and sufficiency of whichare hereby acknowledged, the parties hereby agree as follows:

 

1.                                       EffectiveDate; Term.  The effective date ofthis Agreement shall be January 1, 2004 (the “Effective Date”), and itshall remain in effect until a date agreed by the parties in writing or a datespecified by one of the parties by giving written notice to the other party atleast 90 days in advance of such termination date.

 

2.                                       Services.  Hewitt shall provide services to the Companyin the capacity of a consultant to the Company, as follows.

 

a.                                       Consultant.  During the term of this Agreement, Hewittagrees to serve as consultant to the Company with such responsibilities,consistent with this Agreement, as the Board of Directors may designate.  Such services may include consulting withand advising officers of the Company on product development, property designand quality control and providing assistance in maintaining relationships withstockholders, potential investors, financial advisers, customers and suppliersof the Company.  The services as a consultantshall be coordinated with and accomplished in conjunction with the officers ofthe Company.  The Chief ExecutiveOfficer of the Company may also request Hewitt to undertake reasonableconsulting and managerial assignments on behalf of the Company.

 

b.                                      TimeCommitment.  During the term of thisAgreement, it is anticipated that Hewitt will generally be available forconsulting activities, up to approximately a one-quarter time basis.  The duties assigned to Hewitt hereunder

 

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shall be performed at theCompany’s offices in Denver, Colorado, except as travel may be required to meetwith other parties with which the Company maintains relationships.

 

3.                                       Compensationfor Services.  As compensation forhis services hereunder as a consultant, Hewitt shall be entitled tocompensation and benefits as described herein:

 

a.                                       Feefor Services.  Hewitt shall receivecash compensation in the form of a consulting fee of $36,000 per year fromJanuary 1, 2004 through the termination date of this agreement.  Such fee shall be payable monthly at therate of $3,000 per month.

 

b.                                      Benefits.  Hewitt shall be entitled either toparticipate in the Company’s health insurance program on the same basis as suchparticipation is made available to officers and executive employees of theCompany, or, if he is deemed ineligible to participate as a covered insuredunder the Company’s health program, to be reimbursed the cost of payments thathe makes for comparable health insurance for himself and his wife, as providedfor under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) or statelaw until the termination of this Agreement or August 31, 2005, whicheverfirst occurs.

 

c.                                       Reimbursementof Expenses/Office.  The Companyshall reimburse Hewitt for all reasonable out-of-pocket expenses incurred byHewitt in connection with the business of the Company and in performance of hisduties under this Agreement upon presentation by Hewitt to the Company of anitemized accounting of such expenses with reasonable supporting data.  During the term of this Agreement, theCompany shall provide him with reasonable office space and equipmentappropriate to his responsibilities, and shall provide him with such staffassistance as he may reasonably request to carry out his responsibilities to theCompany.

 

d.                                      Options/Bonus.  Hewitt may, in the sole discretion of theCompensation Committee or the Board, be granted stock options in such amountsas the Committee or the Board deems appropriate to provide incentive andrecognition of his responsibilities and services.

 

4.                                       TradeSecrets and Confidential Information. During the term of this Agreement and for a period of eighteen monthsthereafter, Hewitt shall not, directly or indirectly, use, disseminate, ordisclose for any purpose other than for the purposes of the Company’s business,any of the Company’s confidential information or trade secrets without theprior written consent of the Company, unless such disclosure is compelled in ajudicial proceeding.  Upon terminationof this Agreement, all documents, records, notebooks, and similar repositoriesof records containing information relating to any trade secrets or confidentialinformation then in Hewitt’s possession or control, whether prepared by him orby others, shall be left with the Company or returned to the Company upon itsrequest.

 

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5.                                       Severability.  It is the desire and intent of the partiesthat the provisions of Section 4 shall be enforced to the fullest extentpermissible under the laws and public policies applied in each jurisdiction inwhich enforcement is sought. Accordingly, if any particular sentence or portion of Section 4shall be adjudicated to be invalid or unenforceable, the remaining portions ofsuch section nevertheless shall continue to be valid and enforceable asthough the invalid portions were not a part thereof.

 

6.                                       TerminationBreach and Injunctive Relief.  Inthe event that Hewitt breaches his obligations under Section 4 and suchbreach continues for more than ten (10) days after the Company notifies him inwriting with a demand to decease the offending conduct, the Company mayterminate this Agreement and all further obligations of the Company hereundershall thereupon cease.  Additionally,Hewitt agrees that any violation by him of the agreements contained inSection 4 are likely to cause irreparable damage to the Company, andtherefore agrees that if there is a breach or threatened breach by Hewitt ofthe provisions of said section, the Company shall be entitled to an injunctionrestraining him from such breach. Nothing herein shall be construed as prohibiting the Company frompursuing any other remedies for such breach or threatened breach.

 

7.                                       Indemnification.  The Company shall, to the full extentpermitted by applicable law, indemnify Hewitt and hold him harmless if he is aparty, or is threatened to be made a party, to any threatened, pending orcompleted action, suit or proceeding, whether civil, criminal, administrative,or investigative, by reason of Hewitt’s responsibility or services performedhereunder, against expenses (including attorneys’ fees), judgments, fines andamounts paid in settlement actually and reasonably incurred by Hewitt inconnection with such action, suit or proceeding so long as Hewitt acted in goodfaith and in a manner that he reasonably believed to be in or not opposed tothe best interests of the Company and, with respect to any criminal action orproceeding, had no reasonable cause to believe his conduct was unlawful.  To the fullest extent permitted by law, theCompany shall pay such expenses in advance of the final disposition of suchaction upon satisfying such conditions as may be imposed by law with respect tosuch advances.  This obligation on thepart of the Company to indemnify Hewitt and to pay such expenses shall survivethe termination of this Agreement.

 

8.                                       Miscellaneous.

 

a.                                       Notices.  Any notice required or permitted to be givenunder this Agreement shall be directed to the appropriate party in writing andmailed or delivered, if to the Company, to 1780 S. Bellaire Street, Suite 100,Denver, CO  80222 or to the Company’sthen principal office, if different, and if to Hewitt, to such address as hemay have furnished to the Company for this purpose or, if Hewitt has furnishedno such address, to his last known address as shown on the Company’s records.

 

b.                                      BindingEffect.  This Agreement is apersonal service agreement and may not be assigned by the Company or Hewitt,except that the Company may assign this Agreement to a successor by merger,consolidation, sale of assets or other reorganization, and subject to theforegoing, and, in particular, the rights of Hewitt to compensation hereunder,this Agreement shall be binding upon and

 

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inure to the benefit ofthe parties hereto and their respective successors, assigns, and legalrepresentatives.

 

c.                                       Amendment.  This Agreement may not be amended except byan instrument in writing executed by each of the parties hereto.

 

d.                                      ApplicableLaw.  This Agreement is entered intoin the State of Colorado and for all purposes shall be governed by the laws ofthe State of Colorado, without regard to the conflicts of law provisions ofsuch state.

 

e.                                       Counterparts.  This instrument may be executed in one ormore counterparts, each of which shall be deemed an original.

 

f.                                         EntireAgreement.  As of the EffectiveDate, this Agreement supersedes and replaces all prior agreements between theparties related to Hewitt’s employment by the Company.

 

g.                                      Attorney’sFees.  In the event that eitherparty shall resort to legal action to enforce that party’s rights under thisAgreement, the non-prevailing party shall pay all costs and expenses,reasonably incurred by the prevailing party in pursuing or defending suchaction, including reasonable attorney’s fees.

 

INWITNESS WHEREOF, the parties have executed this Agreement as of the date firstabove written.

 

 
|   | AMERIVEST PROPERTIES  INC. |
|--------|----------------------------|
|   |                       |
|   |                       |
|   | By:                        | Charles K. Knight |
|   |                       | Charles K. Knight,  President |
|   |                       |
|   |                       |
|   |                       |
|   | Alexander S. Hewitt        |
|   | Alexander S. Hewitt        |
|        |                            |  |  |

 

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