**Exhibit 10.11**

 

**SEVERANCEAGREEMENT AND RELEASE**

 

This Severance Agreement and Release (“Agreement”) is made as of the           day of December,2003, between AmeriVest Properties Inc. (the “Company”), including itssuccessors, subrogees, assigns, principals, agents, partners, heirs, employees,shareholders, officers, directors, subsidiaries, affiliates, divisions andassociates, and D. Scott Ikenberry (“Ikenberry”).  Company and its successors, subrogees, assigns, principals,agents, partners, heirs, employees, shareholders, officers, directors,subsidiaries, affiliates, divisions and associates shall be collectivelyreferred to as the “Released Parties.” Released Parties and Ikenberry shall be collectively referred to as the“Parties.”

 

**RECITALS**

 

WHEREAS, Ikenberry has been employed and/or associated with theReleased Parties and currently holds the title of Chief Financial Officer(“CFO), and the Parties wish to enter into this Agreement to terminateIkenberry’s employment and/or association with the Released Parties; and inexchange for consideration as outlined herein, Ikenberry knowingly andvoluntarily agrees to the covenants contained herein; and the Parties wish tofully and finally resolve all issues, claims and potential claims between them.

 

**TERMS**

 

1.                                       **Termination**.  Ikenberry’s employment and/or associationwith the Released Parties shall end on January 9, 2004 or on such earlier dateas is agreed upon by Company’s new CFO and Ikenberry (“commencement date”).

 

2.                                       **Payments andConsideration**.  Ikenberry’sregular compensation (“severance”) will continue for a period of twelve monthsfrom the commencement date (“severance period”).  The severance paid to Ikenberry by Company shall be payablemonthly at Ikenberry’s current monthly salary, and shall be tendered inaccordance with the established pay periods under which the Parties havepreviously operated.  During theseverance period, Ikenberry shall, also, receive the following:  i) the same insurance and other benefitsthat are payable to other corporate executives, including health, dental andvision insurance and 401K plan participation; ii) an office and executive suiteservices at the Kellogg Executive Suites in Littleton, Colorado, at no chargeto Ikenberry; and iii) outplacement or recruiting assistance, not to exceed$10,000.00, to assist Ikenberry during this transition, if requested byIkenberry.  Upon the expiration of theseverance period, Ikenberry shall be entitled to claim COBRA benefits as may bepermitted, at his sole cost and expense.

 

3.                                       **Duties of Ikenberry During Severance Period**.  Ikenberry shall cooperate and work withCompany’s new CFO to transition responsibility for oversight of all finance andaccounting functions from Ikenberry to Company’s new CFO for the periods and asset forth hereafter.  During the firstsixty (60) days after the commencement date, and at the discretion of Company’snew CFO, Ikenberry shall provide on-site assistance up to 100 hours per month.  Thereafter, Ikenberry shall have no regularduties and shall not be required to maintain an office at the Company, butshall make himself available for up to a maximum of ten (10) hours per month toanswer/respond to questions and provide guidance to Company’s new CFO andCompany.  Should Ikenberry’s assistancebe required by Company’s new CFO and/or Company for more than ten (10) hoursper month, Ikenberry shall receive a consulting fee of $100.00 per

 

----

 

hour for every hour over ten(10) hours during the severance period. This requirement for assistance shall cease at the end of the severanceperiod.

 

4.                                     **Indemnification.** In the event that any taxingauthority, local, state or federal, seeks additional payment of taxes on any ofthe amounts paid to Ikenberry under this Agreement, Ikenberry shall indemnifyand hold the Released Parties harmless against any and all amounts (including,without limitation, income taxes, attorneys’ fees, penalties, and interest)payable and sought by any taxing authority, local, state or federal, as aresult of the Agreement and any payments considered taxable thereunder,including any attorneys’ fees and costs incurred in relation thereto.  The Company shall withhold taxes as requiredby federal, state and local laws and regulations.  This indemnification applies only to such claims as are caused byIkenberry’s requests, as honored by Company, to treat his income other than asis required by law or regulation.

 

5.                                       **Warrants and LLC**.  All warrants held by Ikenberry shall remain exercisable inaccordance with their terms.  Ikenberryshall receive a distribution of his interests in Sheridan Realty Corp. at thesame time as other members receive distributions, provided distributions areactually made.

 

6.                                       **GeneralReleases**.

 

a.                                       Ikenberry doeshereby voluntarily and knowingly release and discharge the Released Partiesfrom any and all claims, actions, causes of action, liabilities, demands,rights, damages, costs, attorneys’ fees, expenses and controversies of everykind and description through the date of this Agreement.  These releases shall include, by way ofexample and not limitation, all claims which arise out of, relate to, or arebased on (i) Ikenberry’s employment and/or association with the ReleasedParties and the termination thereof, (ii) any and all contracts, bindingpromises and statements to, from or between the Parties, (iii) the commonlaws of any state, (iv) Title VII of the Civil Rights Act of 1964, asamended, (v) claims under the Civil Rights Act of 1991, (vi) claimsunder 42 U.S.C. § 1981, § 1981a, § 1983, § 1985, or§ 1988, (vii) the Age Discrimination in Employment Act of 1967, asamended, (viii) the Employee’s Income Retirement Security Act of 1974, asamended, (ix) claims under the Older Workers Benefit Protection Act of1990, and (x) claims under all other local, state and federal statutes,any of which could be raised, filed and/or brought in any court of competentjurisdiction and/or in any local, state and federal administration agency oradministration.  However, Ikenberry doesnot release any claims he may have under any stock option or warrantagreements.

 

b.                                      Notwithstandingthe generality of the foregoing releases, they shall not be construed as arelease of any claim Ikenberry may have to unemployment benefits.  Ikenberry may make a claim for suchbenefits, and the Released Parties will provide truthful information inresponse to questions from the responsible State agency.

 

c.                                       Notwithstandingthe recitation of the claims set forth above, or whether quoted herein or not,and for the purpose of effectuating a full and final release herein between theParties, Ikenberry expressly acknowledges that this Agreement is intended toinclude and contemplates the extinguishment, without limitation, of all claimswhich he now has or does not know or suspect to exist in his favor at the timeof the execution hereof.

 

2

----

 

d.                                      In exchange forthe covenants contained in this Agreement, the Released Parties herebyvoluntarily and knowingly release and discharge Ikenberry from any and all claims,actions, causes of action, liabilities, demands, rights, damages, costs,attorneys’ fees, expenses and controversies of every kind and descriptionthrough the date of this Agreement.

 

7.                                       **UnknownFacts**.  This Agreementincludes claims of every nature and kind, known or unknown, suspected orunsuspected, foreseen or unforeseen, matured or unmatured, liquidated orunliquidated, through the date of this Agreement.  The Parties acknowledge that they may hereafter discover factsdifferent from, or in addition to, those which they now know to be, or believeto be, true with respect to the Agreement, and voluntarily and with fullknowledge agree that this Agreement and the releases contained herein shall beand remain effective in all respects, notwithstanding such different oradditional facts or the discovery thereof.

 

8.                                       **Covenant Notto Sue**.  Ikenberry covenantsthat he will not initiate a lawsuit or proceeding, legal, administrative orother, or otherwise assert any claim, action, cause of action, demand, right,or controversy of any kind which he has herein released.  Ikenberry will not provide any materialassistance in any currently pending or subsequent litigation against theReleased Parties; provided, however, that this restriction shall not prevent Ikenberryfrom responding to compulsory process. In the event Ikenberry is subject to a compulsory disclosure, Ikenberryshall first give the Released Parties seventy-two (72) hours advance noticebefore he makes any disclosure to allow the Released Parties to obtainappropriate Protective Orders or other injunctive relief.

 

9.                                       **Return ofDocuments**.  Ikenberry shall,no later than 60 days after the commencement date, return all of theReleased Parties’ documents and/or records, in any form, and copies of allof the Released Parties’ documents and/or records, in any form, obtained ormaintained during the course of his employment and/or association with theReleased Parties.

 

10.                                 **Non-Disparagement**.  Ikenberry agrees not to make to any personany statement that disparages the Released Parties or reflects negatively onthe Released Parties, including, but not limited to, statements regarding theReleased Parties’ financial business or condition and/or their officers,directors, board members, employees, and affiliates.  The Released Parties agree not to make to any person anystatement that disparages Ikenberry or reflects negatively on Ikenberry,including, but not limited to, statements regarding Ikenberry’s performance orany related matter while employed and/or associated with the Released Parties.

 

11.                                 **IkenberryWarranties**.  Ikenberrywarrants and represents as follows:

 

a.                                       He has read thisAgreement, and agrees to the conditions and obligations set forth in it.

 

b.                                      He has had areasonable time to consider the terms of this Agreement and has been advised bythe Released Parties, in writing, to seek legal counsel.

 

c.                                       He has hadtwenty-one (21) days in which to consider the Agreement, and, if he executesthis agreement less than twenty-one (21) days from receipt, it is with theexpress understanding that he had the full twenty-one (21) days available if sodesired; further, Ikenberry waives any and all rights to a twenty-one (21) dayperiod to consider the terms of his release of claims under the Age Discriminationin Employment Act

 

3

----

 

(“ADEA”) if hesigns this Agreement prior to the expiration of the twenty-one (21) day period.

 

d.                                      He has not reliedon any statement made by the Released Parties or their agents or representatives,either express or implied, either by statement or omission, in making thedecision to enter into this Agreement. He voluntarily executes this Agreement after having had full opportunityto consult with legal counsel, and without being pressured or influenced by anyperson or by any statement or representation of any person acting on behalf ofanother Party, including the officers, agents and attorneys for any otherParty.

 

e.                                       He has beeninformed and understands that (i) to the extent that this Agreement waivesor releases any claims he might have under the Age Discrimination in EmploymentAct, Ikenberry may rescind such waiver and release within seven (7) calendardays of the execution of this Agreement, and (ii) any such rescission mustbe in writing and hand delivered to the Released Parties, or, if sent by mail,postmarked within the seven (7) day period, sent only by certified mail, returnreceipt requested, and addressed to the Released Parties.

 

f.                                         This Agreementis subject to the terms of the Older Workers Benefit Protection Act of 1990(“OWBPA”).  Ikenberry acknowledges andagrees that he is voluntarily and with full knowledge releasing any and allclaims, including any claims he has or could have brought under the OWBPA, andincluding any claim(s) under the ADEA, with full knowledge of the consequencesof such release.

 

g.                                      He acknowledgesand agrees that this Agreement is written in a manner calculated to beunderstood, and that he understands the same.

 

h.                                      He has full andcomplete legal capacity to enter into this Severance Agreement.

 

i.                                          He has had afull and fair opportunity to investigate the facts underlying any claims hebelieves he may have against the Released Parties.  Ikenberry enters into this Agreement acknowledging that there maybe facts of which he is not aware; but Ikenberry, nonetheless, enters into thisAgreement with the intent of providing the Released Parties with a full andfinal release of all known and unknown, suspected or unsuspected, foreseen orunforeseen, matured or unmatured, liquidated or unliquidated, claims, based onall known and unknown facts.

 

12.                                 **AcknowledgmentWith Respect to Payments**. Ikenberry hereby admits, acknowledges and agrees that he has been fullycompensated for all wages, benefits, vacation pay and/or bonus amounts whichare, or could be, due to him under the terms of his employment and/orassociation with the Released Parties.

 

13.                                 **ConfidentialInformation and Trade Secrets. **Ikenberry acknowledges that during thecourse of his employment and/or association with the Released Parties, he hasbeen privy to the Released Parties’ confidential business information and tradesecrets, including, without limitation, their financial status, new product andmarketing development, pricing and marketing policies and procedures, and othersimilar repositories of records containing information relating to anyconfidential information the Released Parties consider competitive

 

4

----

 

information and trade secretswithin the industry.  Ikenberryacknowledges that he is obligated and has an ongoing fiduciary duty to theReleased Parties to refrain from disclosing confidential business informationand trade secrets to anyone outside of the Released Parties, and he herebyagrees not to make any such disclosures following the termination of hisemployment and/or association with the Released Parties for a period of two (2)years after the commencement date, unless such disclosure is compelled in ajudicial proceeding.  In the eventIkenberry is subject to a compulsory disclosure, Ikenberry shall first give theReleased Parties seventy-two (72) hours advance notice before he makes anydisclosure to allow the Released Parties to obtain appropriate ProtectiveOrders or other injunctive relief.

 

14.                                 **Non-Solicitation**.  For a period of twelve (12) months from thecommencement date, Ikenberry shall not, directly or indirectly, influence orattempt to influence customers or vendors of Company, or any of itssubsidiaries or affiliates, to divert their business to any competitor, asdefined herein, of Company.  For aperiod of twelve (12) months from the commencement date, Ikenberry shall notemploy, engage or seek to employ or engage, directly or directly, anyindividual or entity who is or was employed or engaged by Company, or any ofits affiliates, until the expiration of six (6) months following thetermination of such person’s or entity’s employment or engagement with Company,or any of its affiliates.

 

15.                                 **No Admissionof Liability**.  The Partiesagree that nothing contained herein, and no action taken by any party heretowith regard to the Agreement, shall be construed as an admission by any partyof liability for any purpose whatsoever.

 

16.                                 **EntireAgreement**.  This Agreementconstitutes the complete understanding between the Parties; no other promisesor agreements shall be binding unless signed by these Parties.  This Agreement also represents fair andreasonable, and full and final, settlement of any obligation due by the ReleasedParties to Ikenberry as part of his employment and/or association with theReleased Parties.  This Agreement cannotbe altered, amended, or modified in any respect, except by a writing dulyexecuted by both Parties.  No oralstatements by any employee, representative or agent of the Released Partiesshall modify or otherwise affect the terms and provisions of this Agreement.

 

17.                                 **Choice ofLaw**.  This Agreement shall begoverned by and construed in accordance with Colorado law, irrespective ofwhere such action may arise or whether any jurisdiction other than Colorado hasaccepted jurisdiction of this matter.

 

18.                                 **Counterparts**.  This Agreement may be executed incounterparts, each of which counterpart, when so executed and delivered, shallbe deemed an original, and, taken together, shall constitute one and the sameinstrument.

 

19.                                 **Severability**.  In the event that any court or otherenforcement authority determines that any provision of this Agreement isunenforceable, the provision at issue shall be enforced to the maximum extentpermitted by law, and all other provisions shall remain in full force andeffect.  In the event that any of theprovisions of Section 13, related to geographic area or duration, shall bedeemed to exceed the maximum area or period of time which a court of competentjurisdiction or other enforcement authority would deem enforceable, the areaand/or period shall, for the purposes of this Agreement, be deemed to be themaximum area and/or period which a court of competent jurisdiction or otherenforcement authority would deem valid and enforceable in any state in whichsuch court of competent jurisdiction or other enforcement

 

5

----

 

authority is convened for thepurpose of interpreting this Agreement, Section 13, or any other sectionupon which a dispute may arise.

 

20.                                 **Full Defense**.  Ikenberry agrees and acknowledges that thisAgreement and its releases can be pleaded as a full and complete defense, andcan be used for the basis of an injunction against any action or any otherproceeding which may subsequently be instituted, prosecuted or attempted byIkenberry, which is based upon any matter related to Ikenberry’s employmentand/or association with the Released Parties, or the termination of thatemployment and/or association with the Released Parties, or which is based inwhole, or in part, upon any matter covered, related to or referred to in thisAgreement.

 

**INWITNESS WHEREOF**, the Parties have executed thisAgreement on the dates written below.

 
| By:  D. SCOTT IKENBERRY | By: AMERIVEST PROPERTIES, INC. |
|------------------------------|--------------------------------|
|                         |                           |
| D. Scott Ikenberry           |                           | Charles K. Knight |   |
|                         | Charles K. Knight              |
|                         | President                      |
|                         |                           |
| Date:                        |                           |   | Date: |   |   |
|                              |                                |  |  |  |  |  |

 

6

----