EXHIBIT 10.32
Employment Agreement
This Employment Agreement ("Agreement") is made as of the 17th day of
March, 2003 (the "Effective Date"), by and between Avatech Solutions Subsidiary,
Inc., a Delaware corporation (the "Company") and Xxxxx Xxxxxxx ("Executive").
Whereas, the Company desires to employ Executive as an Executive Vice
President for Strategy and Business Development, and Executive desires to be so
employed.
Now, Therefore, in consideration of the mutual promises of the parties and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and Executive agree as follows:
Section 1. Employment. The Company agrees to employ Executive, and
Executive agrees to be employed, as Executive Vice President for Strategy and
Business Development of the Company on the terms and subject to the conditions
of this Agreement.
Section 2. Term. The term of Executive's employment under this
Agreement (the "Term") will commence on the Effective Date and will continue for
one (1) year (the "Initial Term"). The Term will be extended automatically in
successive one-year periods unless either party gives notice of nonextension to
the other not less than thirty (30) days before the end of the then-current
Term. Notwithstanding the foregoing, Executive's employment is subject to
termination during the Term as provided in Section 5 of this Agreement.
Section 3. Duties. Executive will report to, and Executive's specific
responsibilities and authority will be established by, the Chief Executive
Officer of the Company. Executive will diligently and conscientiously devote his
full and exclusive business time and attention and best efforts in discharging
his duties to the Company.
Section 4. Compensation and Benefits.
4.1 Base Compensation. During the Initial Term, the Company will
pay Executive a base salary (the "Base Salary") at an annual rate of $180,000.
During each succeeding year during the Term, Executive's Base Salary may be
increased (but may not be decreased) by an amount determined by the Company's
Chief Executive Officer and its Board of Directors based upon the Executive's
performance during the prior year.
4.2 Incentive Compensation. The Company will pay Executive a
quarterly incentive bonus within one (1) month after the end of each calendar
quarter, in an amount determined by the Company in its sole discretion and based
on performance measures to be agreed upon between the Company and the Executive.
4.3 Benefit Plans and Fringe Benefits.
4.3.1 During the Term, Executive will be entitled to
participate in any and all employee benefit programs (including but not limited
to medical, vision, prescription
drug, dental, disability, employee and group life, accidental death and travel
accident, and section 401(k) plans and programs) offered by the Company to its
executives or to its employees generally, and Executive may receive such other
benefits as the Company may determine from time to time.
4.3.2 Executive will accrue four (4) weeks of paid time off
annually to be taken at times reasonably agreed upon between Executive and the
Company's Chief Executive Officer. Executive will be paid a pro rata portion of
his salary for each week of accrued and unused paid time off, in accordance
first with the provisions of Section 5 and otherwise with Company policies of
general application in effect at the time of the termination of his employment.
4.4 Executive will be entitled to perquisites comparable to those
that the Company from time to time extends to its senior executive staff.
4.4.1 The Company will reimburse Executive for business,
travel, lodging, meals, and other reasonable business expenses incurred by him
in his performance of services hereunder subject to submission of documentation
in accordance with the Company's business expense reimbursement policies from
time to time applicable to its senior executives.
4.5 Payments; Withholding of Taxes, etc. The Company will make
payments of Base Salary in accordance with the Company's general payroll
practices from time to time in effect. All payments to Executive pursuant to
this Agreement will be reduced by taxes and other amounts that the Company is
required by law or authorized by Executive to withhold.
Section 5. Termination. The Company may, at its election and upon
written notice to the Executive, terminate the Executive's employment for any
reason or no reason, with or without cause. Where this Agreement or plan
provides for payment other than by cash lump sum, the Company may, in its sole
discretion, choose to make payment in whole or in part by cash lump sum,
including converting any benefits due to be provided over a period of time into
a cash lump sum equal to the present value, computed at the short-term
applicable federal rate under (S) 1274 of the Internal Revenue Code, of the cost
of the cost of providing such benefit(s) to the Executive over a period of time.
5.1 Change in Control. For purposes of this Agreement, "Change of
Control" means:
(a) a merger, acquisition, consolidation or other transaction
involving the Company after which the individuals who constituted
members of the Board of Directors of the Company or Avatech
twelve (12) months before the consummation of such transaction do
not constitute a majority of the Board of Directors or other
similar governing body of the most senior resulting business
entity after such transaction;
-2-
(b) a sale, lease or exchange of more than 50% of the assets of
Avatech, the Company, or any subsidiaries of either, or more than
50% of the stock or other equity interests in Avatech, the
Company, or any subsidiaries of either, to one or more
organizations or entities not more than 50% owned by the Avatech,
the Company, or any subsidiaries of either after the consummation
of such transaction; or
(c) during any period of twenty four (24) consecutive months,
individuals who at the beginning of such period constituted the
Board of the Company or Avatech cease for any reason to
constitute at least a majority thereof unless the election of
each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the
beginning of the twenty-four-month period.
Notwithstanding the foregoing, a Change Of Control will in no event be deemed to
have occurred if the Company is placed in receivership or files for protection
under title 11 of the United States Code, and Executive will not receive any
severance pay under Section 5 of this Employment Agreement if any local, state,
or federal regulator assumes control of the Company.
5.2 Without a Change in Control (including Nonextension). Except
as provided in Section5.3, the Company may elect not to extend the Term as
provided in Section 2 or may elect, at any time, to terminate Executive's
employment under this Agreement upon written notice of such termination to
Executive for any reason or no reason, with or without cause. The Executive may
terminate his employment at any time and for any reason upon thirty (30) days'
written notice to the Company.
5.2.1 If the Executive's employment terminates under this
Section 5.2, then the Company will pay Executive his Base Salary through the
effective date of termination and any other compensation and benefits that may
be accrued, due, or provided to the Executive upon termination of employment
under such circumstances in accordance with the terms and conditions of any
applicable employee benefit plans of the Company.
5.2.2 Notwithstanding any provisions of this Agreement to
the contrary, if Executive's employment is terminated by reason of his death,
then the Company will make any payments due under this Agreement to the
Executive's estate or other successor in interest, and will continue any
benefits to his surviving spouse or other successor in interest in accordance
with the terms of the Company's benefit plans and programs then in effect.
5.3 Change in Control. If the Executive's employment is
terminated during the term this Agreement and within twelve (12) months before
or twelve (12) months following a Change of Control, the Company will pay
Executive through six (6) months after the effective date of such termination.
Such severance pay will be at a rate equal to Executive's Base Salary in effect
on the effective date of termination and will be paid in accordance with the
Company's general payroll practices.
-3-
5.4 Release. As a condition to receiving payment of amounts
payable under this Section 5, Executive will execute a release of all claims
against the Company in form reasonably satisfactory to the Company.
Section 6. Certain Restrictions.
6.1 Confidentiality. Executive acknowledges that he will acquire
confidential information relating to the business of Avatech, the Company, its
subsidiaries and affiliates, including but not limited to business plans, sales
and marketing plans, financial information, acquisition prospects, and
"customer" and "supplier" lists (as such terms may relate to the business or the
systems and other trade secrets or know-how of Avatech, the Company, its
subsidiaries and affiliates) as they may exist from time to time (collectively,
"Confidential Information"), which are valuable, special, and unique assets of
the Company's business, access to or knowledge of which is essential to the
performance of Executive's duties hereunder. Accordingly, Executive will not
disclose at any time (during his employment under this Agreement or thereafter)
any such Confidential Information other than in connection with and reasonably
required for the performance of his duties under this Agreement, unless required
to do so pursuant to law, subpoena, court order, or other legal process. These
restrictions will not apply to, and Confidential Information will not be deemed
to include, information that is then in the public domain (other than as a
result of action by the Executive).
6.2 Competitive Activity. Due to the unique position of Executive
in his role of Executive Vice President of the Company, Executive agrees that if
he voluntarily resigns from his employment Executive will not, for a period of
one (1) year after the effective date of his termination of employment, without
prior written consent of the Company:
6.2.1 Directly or indirectly, knowingly engage or be
interested in (as owner, partner, shareholder, employee, director, officer,
agent, consultant or otherwise), with or without compensation, any business
entity or operation that engages in the business of selling computer-aided
design software or providing professional, consulting, technical or training
services related to computer-aided design software within fifty (50) miles of
any location where the Company, its affiliates or subsidiaries, maintains a
place of business, except that Executive may own up to a five percent (5%)
interest in the publicly-traded securities of a publicly traded corporation;
6.2.2 Employ or retain or participate in or arrange the
employment or retention of any person who was employed or retained by the
Company, any successor to the Company's business, or any of their affiliates or
subsidiaries during the period of Executive's employment; or
6.2.3 Directly or indirectly solicit any customers or
clients of the Company, its affiliates, or subsidiaries.
6.3 Remedy for Breach and Modification. Executive acknowledges
that the provisions of this Section 6 are reasonable and necessary for the
protection of the Company and that the Company will be irrevocably damaged if
these provisions are not
-4-
specifically enforced. Accordingly, Executive agrees that, in addition to any
other relief or remedies available to the Company, including reasonable
attorneys' fees and costs, the Company is entitled to seek and obtain an
appropriate injunction or other equitable remedy for the purposes of restraining
the Executive from any actual or threatened breach of or otherwise enforcing
these provisions and no bond or security will be required in connection with
such equitable remedy. If any provision of this Section 6 is deemed invalid or
unenforceable in any jurisdiction, such provision will be deemed modified and
limited in such jurisdiction to the extent necessary to make it valid and
enforceable in such jurisdiction.
Section 7. Arbitration of Certain Disputes. Any dispute or controversy
arising under or in connection with this Agreement, other than with respect to
an alleged breach of any of any of the provisions of Section 6, shall be
resolved by binding arbitration held in Baltimore, Maryland. before a single
arbitrator. Such arbitration will be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect and
otherwise in accordance with principles that would be applied by a court of law
or equity. Judgment on any award may be entered and enforced in any court having
jurisdiction.
Section 8. Miscellaneous.
8.1 Certain Permitted Changes in Executive's Position. Anything
in this Agreement to the contrary notwithstanding, in the event of a merger,
consolidation, reorganization, sale of substantially all of the Company's
assets, or similar transaction (a "Transaction") (whether or not such
Transaction constitutes a Change of Control as defined in Section 5.1) a change
only in Executive's title (but not a material reduction in the actual scope of
Executive's responsibilities, authority, or duties), does not constitute a
failure by the Company to perform any term or provision of this Agreement. In
the event of such a change in the Executive's title, any reference, whether
express or implied, in this Agreement to Executive's title will be deemed to
refer to Executive's title as so changed.
8.2 Entire Agreement; Amendment. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter, is
intended as a complete and exclusive statement of the terms of the agreement
between the parties with respect thereto, and may be amended only by a writing
signed by both parties hereto.
8.3 Nonwaiver. The failure of either party to insist upon strict
adherence to any term of this Agreement on any occasion will not operate as a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must be
in a writing signed by the party to be charged therewith.
8.4 Assignment. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective heirs, representatives,
successors and assigns. This Agreement may not be assigned by either party
without the consent of the other, except that the Company may assign all of its
rights and delegate performance of all of its obligations hereunder in
connection with a Transaction.
-5-
8.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be an original, but all of which together will
constitute the same instrument.
8.6 Headings. The headings in this Agreement are for convenience
of reference only and should not be given any effect in the interpretation of
this Agreement.
8.7 Governing Law. This Agreement is governed by the laws of the
State of Maryland, without regard to any provision that would result in the
application of the laws of any other state or jurisdiction.
8.8 Severability. The invalidity or unenforceability of any
provision of this Agreement will not affect the validity or enforceability of
any other provision of this Agreement.
8.9 Company Policies, Plans and Programs. Whenever any rights
under this Agreement depend on the terms of a policy, plan, or program
established or maintained by the Company, any determination of these rights will
be made on the basis of the policy, plan, or program in effect at the time as of
which such determination is made. No reference in this Agreement to any policy,
plan, or program established or maintained by the Company precludes the Company
from prospectively or retroactively changing or amending or terminating that
policy, plan, or program or adopting a new policy, plan, or program in lieu of
the then existing policy, plan, or program.
8.10 Board Action. Any action that may be taken hereunder by the
Board of Directors of the Company with respect to the compensation and benefits
of Executive may be taken by an authorized committee of the Board.
[NO FURTHER INFORMATION APPEARS ON THIS PAGE]
-6-
In Witness Whereof, the parties have executed this Agreement under
seal as of the date first above written.
Witness/Attest: Avatech Solutions Subsidiary, Inc.
/s/ By: /s/ (SEAL)
---------------------------- ------------------------
Xxxxxx X. "Xxxxxx" Xxxxx,
Chief Executive Officer
Avatech Solutions, Inc.
/s/ By: /s/ (SEAL)
---------------------------- ------------------------
Xxxxxx X. "Scotty" Xxxxx,
Chief Executive Officer
/s/ /s/
---------------------------- ----------------------------------
Xxxxx Xxxxxxx
-7-
