EXHIBIT 10.32
SEPARATION AND RELEASE AGREEMENT
This SEPARATION AND RELEASE AGREEMENT (the "Agreement") is made and entered
into by and between PLANETCAD INC., ("PLANETCAD") and XXXXXXX XXXXX ("XX.
XXXXX") (collectively "parties").
I. RECITALS
WHEREAS, effective as of October 1, 2001, Xx. Xxxxx'x employment as Chief
Technology Officer and any and all other employment positions that Xx. Xxxxx may
have held at PlanetCAD or its subsidiaries shall cease; and
WHEREAS, the parties wish to make the separation amicable but conclusive on
the terms and conditions set forth herein; and
WHEREAS, the mutual considerations expressed herein are deemed by each
party sufficient for their respective promises and covenants; and
WHEREAS, Xx. Xxxxx accepts the benefits of this Agreement with the
acknowledgment that by its terms he has been fully and satisfactorily
compensated.
II. COVENANTS
THEREFORE, in consideration of the mutual promises and covenants contained
in this Agreement, it is hereby agreed by and between the parties hereto as
follows:
1. RESIGNATION.
(a) Xx. Xxxxx hereby confirms his resignation from his employment as
Chief Technology Officer and any and all other employment and officer positions
that Xx. Xxxxx may have held at PlanetCAD or its subsidiaries effective October
1, 2001 ("Separation Date").
(b) Xx. Xxxxx also shall sign the letter attached as Exhibit C, which,
once delivered to PlanetCAD, shall be irrevocable, any other provision of this
Agreement notwithstanding.
2. ACCRUED SALARY AND PAID TIME OFF. As of the Separation Date, the
Company will pay Xx. Xxxxx all accrued salary and all accrued and unused
vacation earned through the Separation Date, subject to standard payroll
deductions and withholdings. Xx. Xxxxx is entitled to these payments by law.
3. TRANSITION DUTIES AND RESPONSIBILITIES. From the Separation Date until
the SIX MONTH anniversary thereof (the "Transition Period"), Xx. Xxxxx shall
provide continuing services as a consultant to PlanetCAD on an as-requested
basis; provided that (i) Xx. Xxxxx shall not be required to report to work
regularly at PlanetCAD's
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facility, but shall provide such consulting services as are reasonably requested
from time to time by PlanetCAD's chief executive officer or his designee, at
such times and places as PlanetCAD shall reasonably request; (ii) PlanetCAD
shall exercise reasonable efforts to eliminate or minimize the extent to which
its requests for consulting services create scheduling conflicts with respect to
other business matters in which Xx. Xxxxx may be engaged; and (iii) PlanetCAD
shall reimburse Xx. Xxxxx for out-of-pocket expenses that he reasonably and
necessarily incurs in connection with providing such consulting services, so
long as Xx. Xxxxx seeks and receives prior approval of such expenses.
4. CONSIDERATION. Although the Company has no policy or procedure
requiring payment of any severance benefits nor any contractual obligation to
Xx. Xxxxx to do so, the Company agrees to the following as part of this
Agreement.
(a) PAYMENT. If, but only if, Xx. Xxxxx does not exercise his right of
revocation under paragraph 20(b), below, PlanetCAD shall pay Xx. Xxxxx a total
amount of TWO HUNDRED THOUSAND DOLLARS AND ZERO CENTS ($200,000.00) IN ONE LUMP
SUM in accordance with PlanetCAD's standard payment practices, which includes
payroll deductions for local, state and federal taxes. Said payment shall be
made on the Effective Date of this Agreement as defined in Paragraph 20(b).
(b) INSURANCE. If, but only if, Xx. Xxxxx does not exercise his right
of revocation under paragraph 20(b), below, PlanetCAD will pay the premium cost
for continuing Xx. Xxxxx'x medical, vision, and dental benefits as permitted by
COBRA from October 1, 2001 through September 30, 2002 or until Xx. Xxxxx becomes
eligible for coverage under another plan, if earlier.
(c) STOCK OPTIONS. If, but only if, Xx. Xxxxx does not exercise his
right of revocation under paragraph 20(b), below, then the stock options granted
to Xx. Xxxxx by PlanetCAD on our about October 17, 1996 (two grants covering a
total of 130,833 shares), October 22, 1998 (two grants covering a total of
50,000 shares), and April 26, 2001 (one grant covering 50,000 shares) (each, an
"Option," and collectively, the "Options") shall be hereby amended such that
each Option shall be deemed fully vested as of the Effective Date, and shall
remain fully exercisable until October 1, 2006, notwithstanding any language to
the contrary in the stock option agreements and/or equity incentive plans
pursuant to which the Options were granted (collectively the "Option Agreements
and Plans"). Xx. Xxxxx understands that this amendment and/or his exercise of
certain of the Options more than 90 days after the termination of his employment
may affect their characterization as "Incentive Stock Options" and the
application of certain preferential tax treatment afforded to holders of such
Incentive Stock Options, and assumes all risks, costs, expenses and tax
liabilities relating to or arising from the amendment and/or the deferred
exercise of any Option. Xx. Xxxxx understands and agrees that he should seek
independent professional advice concerning tax and legal matters relating to the
Options and the amendment thereto effected by this Agreement, acknowledges that
he has had a full and fair opportunity to do so, and further acknowledges and
agrees that he has not relied on any information or advice provided by PlanetCAD
or any representative, agent or attorney thereof
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relating to any matterpertaining to this Agreement, including particularly but
without limitation the legal and tax issues relating to the Options and the
amendment thereof. Except as specifically stated in this paragraph, the Options
shall remain in force and effect in accordance with, and subject to, the terms
and conditions stated in the Option Agreements and Plans
5. ACKNOWLEDGEMENT. Except as provided for in paragraph 4, Xx. Xxxxx
acknowledges and agrees that before the effective date of this Agreement he had
been paid all sums that he had earned, or to which he otherwise was entitled, in
connection with his employment with PlanetCAD.
6. LOAN FORGIVENESS. If, but only if, Xx. Xxxxx does not exercise his
right of revocation under paragraph 20(b), below, as of the Effective Date, the
Company shall forgive all outstanding principal and interest payable to it by
Xx. Xxxxx under that certain promissory note, a copy of which is attached as
Exhibit B, and shall xxxx the note "cancelled" and return it to Xx. Xxxxx. Xxxxx
understands and agrees that the forgiveness of this note creates a tax
withholding obligation on the part of PlanetCAD, and authorizes PlanetCAD to
withhold taxes relating to such forgiveness from the payment payable to him
under paragraph 4 of this Agreement.
7. OTHER COMPENSATION. Except as expressly provided herein, Xx. Xxxxx
acknowledges and agrees that he will not receive (nor is he entitled to receive)
any additional consideration, payments, reimbursements, incentive payments,
stock, equity interests, or benefits of any kind. Xx. Xxxxx also acknowledges
and agrees that neither this Agreement, nor any other agreement which he has
with PlanetCAD, creates any obligation on the part of PlanetCAD to repurchase
any shares of PlanetCAD stock owned by Xx. Xxxxx at any time.
8. DENIAL OF LIABILITY. The parties acknowledge that any payment by
PlanetCAD and any release by Xx. Xxxxx pursuant to this Agreement are made in
compromise of disputed claims; that in making any such payment or release,
PlanetCAD and Xx. Xxxxx in no way admit any liability to each other; and that
the parties expressly deny any such liability.
9. NONDISPARAGEMENT. Xx. Xxxxx and PlanetCAD agree that neither party
will at any time disparage the other to third parties, in any manner likely to
be harmful to the other party, their business reputation, or the personal or
business reputation of its directors, shareholders and/or employees.
Notwithstanding the prohibition in the preceding sentence, each party shall
respond accurately and fully to any question, inquiry, or request for
information when required by legal process.
10. PLANETCAD PROPERTY. Immediately preceding the Separation Date, Xx.
Xxxxx agrees to return to PlanetCAD all PlanetCAD documents (and all copies
thereof) and any and all other PlanetCAD property in his possession, custody or
control, including, but not limited to, financial information, customer
information, customer lists, employee lists, PlanetCAD files, notes, contracts,
drawings, records, business plans and forecasts, financial information,
specifications, computer-recorded information,
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software, tangible property, credit cards, entry cards, identification badges
and keys, and any materials of any kind which contain or embody any proprietary
or confidential material of PlanetCAD and all reproductions thereof
(collectively, "PlanetCAD Information"), excepting only one lap top computer
(Toshiba Tectra 8100), one printer, one Palm PDA, and one mobile telephone
(which Xx. Xxxxx may retain but to which Xx. Xxxxx shall be responsible for all
charges for the period following the Transition Period). Notwithstanding any
other provision of this Agreement, until the end of the Transition Period Xx.
Xxxxx shall be entitled to retain, and use in connection with his performance of
the consulting services contemplated by paragraph 3, above, such PlanetCAD
Information as is necessary for the performance of such services, provided that
at the end of the Transition Period Xx. Xxxxx shall return all such PlanetCAD
information to PlanetCAD, and not retain any such PlanetCAD Information in any
form. In addition, this Agreement shall not prohibit Xx. Xxxxx from making and
retaining a paper and/or electronic copy of his personal contact database.
11. PROPRIETARY INFORMATION AND INVENTIONS. Xx. Xxxxx acknowledges and
agrees that he has executed and is and shall be bound by the Proprietary
Information and Inventions Agreement he executed on August 12, 1986 (the
"Confidential Information Agreement"), a copy of which is attached as Exhibit A,
and which is and shall remain a separate and distinct agreement between Xx.
Xxxxx and PlanetCAD and which shall survive the execution of this Agreement.
Nothing in this Agreement shall be construed to narrow, supercede, modify or
affect in any way the obligations of Xx. Xxxxx imposed by that or any other
agreement, law, or other source; provided, however, that section 14 of this
Agreement shall supercede section 9(i) and 9(ii) (but no other section) of the
Confidential Information Agreement (the "Pre-existing Non-Compete"), which
Pre-existing Noncompete shall hereafter be of no further force or effect.
12. CONFIDENTIALITY OF AGREEMENT. Xx. Xxxxx and PlanetCAD acknowledge that
confidentiality and nondisclosure are material considerations for the parties
entering into this Agreement. As such, the provisions of this Agreement shall be
held in strictest confidence by Xx. Xxxxx and PlanetCAD and shall not be
publicized or disclosed in any manner whatsoever, including but not limited to,
the print or broadcast media, any public network such as the Internet, any other
outbound data program such as computer generated mail, reports or faxes, or any
source likely to result in publication or computerized access. Notwithstanding
the prohibition in the preceding sentence: (a) Xx. Xxxxx may disclose this
Agreement to his immediate family and the parties may disclose this Agreement in
confidence to their respective attorneys, accountants, auditors, tax preparers,
and financial advisors, provided that such third parties agree in advance to
keep such matters confidential; (b) PlanetCAD may disclose this Agreement as
necessary to fulfill standard or legally required corporate reporting or
disclosure requirements; (c) the parties may disclose this Agreement upon
request from any government entity or court of law of competent jurisdiction;
and (d) the parties may disclose this Agreement insofar as such disclosure may
be necessary to enforce its terms or as otherwise required by law, including
without limitation as required by any form of securities-related statute or
regulation. PlanetCAD agrees that it may disclose the provisions of this
Agreement only to such officers or employees of
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PlanetCAD who have a legitimate business need to know of such matters, and only
if those individuals agree in advance to keep such matters confidential.
13. UNEMPLOYMENT COMPENSATION. PlanetCAD agrees that it will not contest
any claim filed by Employee or any award made for unemployment compensation as a
result of his termination from employment with PlanetCAD.
14. COVENANT NOT TO COMPETE.
(a) During the Transition Period, Xx. Xxxxx shall not, whether as an
officer, director, employee, consultant, owner, shareholder, adviser, or joint
venturer, or otherwise engage in any business or other commercial activity
anywhere in the world (the "Protected Region") which directly competes with
PlanetCAD in the development, implementation, marketing or sale of automated
supply chain management solutions ("Competing Business"). This covenant shall
not prohibit Xx. Xxxxx from owning less than two percent of the securities of
any competitor of PlanetCAD, if such securities are publicly traded on a
nationally recognized stock exchange or over-the-counter market. Xx. Xxxxx
acknowledges that the foregoing geographic restriction on competition is fair
and reasonable, given the nature and geographic scope of PlanetCAD's business
operations and the nature of Xx. Xxxxx'x position with PlanetCAD. Xx. Xxxxx also
acknowledges that while employed by PlanetCAD, Xx. Xxxxx has had access to
information that would be valuable or useful to PlanetCAD's competitors, and
therefore acknowledges that the foregoing restrictions on Xx. Xxxxx'x future
activities are fair and reasonable.
(b) Xx. Xxxxx acknowledges the following provisions of Colorado law,
set forth in Colorado Revised Statutes Section 8-2-113(2):
Any covenant not to compete which restricts the right of any person to
receive compensation for performance of skilled or unskilled labor for
any employer shall be void, but this subsection (2) shall not apply
to:
...
(b) Any contract for the protection of trade secrets;
...
(d) Executive and management personnel and officers and
employees who constitute professional staff to executive and
management personnel.
Xx. Xxxxx acknowledges that this Agreement is a contract for the protection of
trade secrets within the meaning of Section 8-2-113(2)(b) and is intended to
protect the Confidential Information and Confidential Records identified above
and that during his employment with PlanetCAD he served as an executive or
manager, or professional staff to an executive or manager within the meaning of
Section 8-2-113(2)(d).
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15. RELEASE OF CLAIMS BY XX. XXXXX. For the consideration set forth in
this Agreement and the mutual covenants of PlanetCAD and Xx. Xxxxx, Xx. Xxxxx
hereby releases, acquits and forever discharges PlanetCAD and its affiliated
corporations and entities, predecessors, officers, directors, agents,
representatives, servants, attorneys, employees, shareholders, heirs, personal
representative, spouses, beneficiaries, executors, trustees, successors and
assigns, all or whom are collectively referred to as "PlanetCAD Releasees", of
and from any and all claims, liabilities, demands, causes of action, costs,
expenses, attorneys' fees, damages, indemnities and obligations of every kind
and nature, in law, equity, or otherwise, known or unknown, suspected and
unsuspected, disclosed and undisclosed, liquidated or contingent, arising out of
or in any way related to agreements, events, acts or conduct at any time prior
to and including the Effective Date, including but not limited to: any and all
such claims and demands directly or indirectly arising out of or in any way
connected with Xx. Xxxxx'x employment with PlanetCAD or the conclusion of that
employment; claims or demands related to salary, bonuses, commissions, incentive
payments, stock, stock options, or any ownership or equity interests in
PlanetCAD; vacation pay, personal time off, fringe benefits, expense
reimbursements, sabbatical benefits, severance benefits, or any other form of
compensation; claims pursuant to any federal, any state or any local law,
statute, common law or cause of action including, but not limited to, the
federal Civil Rights Act of 1964, as amended; attorney's fees, costs, or any
other expenses under Title VII of the Civil Rights Act of 1964, as amended; the
Employment Retirement Income Security Act; the federal Americans with
Disabilities Act of 1990; the Family and Medical Leave Act; the Colorado
Discrimination and Unfair Employment Act, tort law; wrongful discharge;
discrimination; harassment; fraud; negligence, breach of fiduciary duty; claims
for expense reimbursement; defamation; libel; emotional distress; and breach of
the implied covenant of good faith and fair dealing. Xx. Xxxxx warrants and
represents that he has not filed or otherwise made or asserted any claim,
complaint, or charge against PlanetCAD or any predecessor, affiliate or agent
thereof with any entity including without limitation the Equal Employment
Opportunity Commission and any local, state or federal administrative body or
court. Xx. Xxxxx agrees that in the event he brings a claim or charge covered by
this release or does not dismiss and withdraw any claim covered by this release,
in which he seeks damages or any other relief against PlanetCAD or in the event
he seeks to recover against PlanetCAD in any claim brought by a governmental
agency on his behalf, this Agreement shall serve as a complete defense to such
claims or charges. By this provision, Xx. Xxxxx does not release or waive any
right he has to enforce any of PlanetCAD's obligations under this Agreement, to
assert claims in the future based upon any act or omission committed by
PlanetCAD after the Effective Date of this Agreement. Notwithstanding any other
provision of this Agreement, this Agreement shall not be construed or applied so
as to impair, limit or otherwise affect in any way Xx. Xxxxx'x right to
indemnity or defense with respect to acts or omissions occurring during or in
connection with his service as an officer, director and/or consultant to
PlanetCAD.
16. PLANETCAD RELEASE OF XX. XXXXX. PlanetCAD, for itself and its
affiliates, (collectively, "PlanetCAD Releasers"), hereby fully and forever
releases and discharges Xx. Xxxxx, and his heirs, representatives, assigns,
attorneys, and any and all other persons or entities that are now or may become
liable to any PlanetCAD
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Releaser on account of Xx. Xxxxx'x employment with PlanetCAD or separation
therefrom, all of whom are collectively referred to as "Xx. Xxxxx'x Releasees,"
of and from any and all actions, causes of action, claims, demands, liabilities,
costs and expenses, including attorneys' fees, damages and obligations of every
kind and nature whatsoever, in law, equity or otherwise, whether known or
unknown, suspected and unsuspected, disclosed and undisclosed, liquidated or
contingent, arising out of or in any way related to agreements, events, acts or
conduct at any time prior to and including the Effective Date, including but not
limited to claims that PlanetCAD Releasers, or any person acting under any of
them, had, owned or held, claimed to have, own or hold or may now have, or claim
at any future time to have against Xx. Xxxxx or his Xx. Xxxxx'x Releasees, based
in whole or in part upon any act or omission occurring prior to and including
the Effective Date, without regard to present actual knowledge of such acts or
omissions; EXCEPT as specifically provided otherwise in this Agreement; and
EXCEPT claims arising from or relating to any intentional or willful act or
omission on the part of Xx. Xxxxx.
17. TAX CONSEQUENCES. Xx. Xxxxx agrees to pay all of his share of taxes
due in connection with payment or other benefits he receives under this
Agreement, and to indemnify PlanetCAD for and hold PlanetCAD harmless from any
and all taxes, interest, penalties and all related costs and expenses asserted
against or incurred by PlanetCAD in connection with any failure to withhold or
pay taxes due on any consideration provided by PlanetCAD pursuant to this
Agreement, and/or the loan forgiveness reflected in paragraph 6 above. Xx. Xxxxx
expressly acknowledges that PlanetCAD has not made, nor herein makes, any
representation about the tax consequences of any consideration provided by
PlanetCAD to Xx. Xxxxx pursuant to this Agreement, and that he understands that
he should seek professional tax advice before executing this Agreement.
18. ADMINISTRATIVE MATTERS. Xx. Xxxxx covenants that following the
Effective Date he will not take any action, or encourage any other person to
take any action, calculated or likely to result in the initiation or an inquiry,
investigation or other action concerning PlanetCAD by any federal, state or
local governmental body or agency; provided, however, that nothing in this
paragraph 18 shall in any way limit or curtail Xx. Xxxxx'x rights as a
shareholder of the Company to participate to the fullest extent in any and all
shareholder meetings, discussions or any other activities associated with the
ownership of Company stock.
19. COVENANT OF COOPERATION IN LITIGATION. Xx. Xxxxx acknowledges that
because of his position with PlanetCAD, he may possess information that may be
relevant to or discoverable in litigation in which PlanetCAD is involved or may
in the future be involved. Xx. Xxxxx agrees that he shall testify truthfully in
connection with any such litigation, shall cooperate with PlanetCAD in
connection with such litigation, and that his duty of cooperation shall include
an obligation to meet with PlanetCAD representatives and/or counsel concerning
such litigation for such purposes, and at such times and places, as PlanetCAD
deems necessary, in its sole discretion, and to appear for deposition upon
PlanetCAD's request and without a subpoena. Xx. Xxxxx shall not be entitled to
any compensation in connection with his duty of cooperation,
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except that PlanetCAD may reimburse Xx. Xxxxx for reasonable out-of-pocket
expenses that he incurs in honoring his obligation of cooperation.
20. ACKNOWLEDGMENT OF RIGHTS UNDER THE OLDER WORKER'S BENEFITS PROTECTION
ACT.
(a) Xx. Xxxxx agrees and acknowledges that he: (i) understands the
language used in this Agreement and the Agreement's legal effect; (ii)
understands that by signing this Agreement he is giving up the right to xxx
PlanetCAD for age discrimination; (iii) will receive compensation under this
Agreement to which he would not have been entitled without signing this
Agreement; (iv) has been advised by PlanetCAD to consult with an attorney and
tax advisor before signing this Agreement; and (v) was given no less than
twenty-one days to consider whether to sign this Agreement.
(b) For a period of seven calendar days after the execution of this
Agreement, Xx. Xxxxx may, in his sole discretion, rescind this Agreement, by
delivering a written notice of recision to PlanetCAD. If Xx. Xxxxx rescinds this
Agreement within seven calendar days after the execution of this Agreement, this
Agreement shall be void, all actions taken pursuant to this Agreement (excepting
only as set forth in paragraph 1(b), above) shall be reversed, and neither this
Agreement nor the fact of or circumstances surrounding its execution shall be
admissible for any purpose whatsoever in any proceeding between the parties,
except in connection with a claim or defense involving the validity or effective
rescission of this Agreement. If Xx. Xxxxx does not rescind this Agreement
within seven calendar days after the execution of the Agreement, this Agreement
shall become final and binding and shall be irrevocable ("Effective Date").
21. NO THIRD-PARTY RIGHTS. The parties agree that by making this Agreement
they do not intend to confer any benefits, privileges, or rights to others. The
Agreement is strictly between the parties hereto, subject to the terms of
paragraph 24 below, and shall not be construed to vest in any other the status
of third-party beneficiary.
22. VOLUNTARY AND KNOWINGLY. Xx. Xxxxx acknowledges that in executing this
Agreement, he has reviewed it and understands its terms and has had an
opportunity and was advised to seek guidance from counsel of his own choosing,
and was fully advised of his rights under law, and acted knowingly and
voluntarily.
23. DUTY TO EFFECTUATE. The parties agree to perform any lawful additional
acts, including the execution of additional agreements, as are reasonably
necessary to effectuate the purpose of this Agreement.
24. ENTIRE AGREEMENT. This Agreement, including the incorporated Exhibits
A, B and C, constitutes the complete, final and exclusive embodiment of the
entire agreement between Xx. Xxxxx and PlanetCAD with regard to the subject
matter hereof. This Agreement is entered into without reliance on any promise or
representation,
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written or oral, other than those expressly contained herein. It may not be
modified, amended or changed except in writing signed by Xx. Xxxxx and the
President and CEO of PlanetCAD, Inc.
25. SUCCESSORS AND ASSIGNS. This Agreement shall bind the heirs, personal
representatives, successors, assigns, executors and administrators of each
party, and inure to the benefit of each party, its heirs, successors and
assigns.
26. APPLICABLE LAW. The parties agree and intend that this Agreement be
construed and enforced in accordance with the laws of the State of Colorado.
27. FORUM. Any controversy arising out of or relating to this Agreement or
the breach thereof, or any claim or action to enforce this Agreement or portion
thereof, or any controversy or claim requiring interpretation of this Agreement
must be brought in a forum located within the State of Colorado. No such action
may be brought in any forum outside the State of Colorado. Any action brought in
contravention of this paragraph by one party is subject to dismissal at any time
and at any stage of the proceedings by the other, and no action taken by the
other in defending, counterclaiming, or appealing shall be construed as a waiver
of this right to immediate dismissal. A party bringing an action in
contravention of this paragraph shall be liable to the other party for the
costs, expenses and attorney's fees incurred in successfully dismissing the
action or successfully transferring the action to a forum located within the
State of Colorado.
28. SEVERABLE. If any provision of this Agreement is determined to be
invalid, void or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement, and the provision in question
shall be modified so as to be rendered enforceable.
29. ENFORCE ACCORDING TO TERMS. The parties intend this Agreement to be
enforced according to its terms and the language of all parts of this Agreement
shall in all cases be construed as a whole, according to its fair meaning, and
not strictly for or against either of the parties.
30. ATTORNEY'S FEES. The prevailing party in an action to enforce the
terms of this Agreement shall be entitled to its reasonable costs, expenses, and
attorney's fees.
31. SECTION HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have duly authorized and caused this
Agreement to be executed as follows:
Xxxxxxx Xxxxx PlanetCAD INC.
An individual
/s/ Xxxxxxx Xxxxx By: /s/ Xxx Xxxxxxxx
--------------------------------- -----------------------------
Xxxxxxx Xxxxx
Its: President and CEO
-----------------------------
Date: October 18, 2001 Date: October 18, 2001
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