EXHIBIT 10.25
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
December 2, 2002 by and between Xxxxxx X Xxxxx (the "Executive") and Avatech
Solutions, Inc., a Delaware corporation ("Avatech").
EXPLANATORY STATEMENT
Avatech desires to employ Executive, and Executive desires to enter
into employment with Avatech, as Avatech's Chief Executive Officer, and to
perform services for Avatech on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the Explanatory Statement, which
is incorporated by reference herein, the mutual covenants, agreements,
representations and warranties herein set forth, and other good and valuable
consideration, the adequacy and sufficiency of which is hereby acknowledged, the
parties hereto do hereby agree as follows:
1. Employment and Duties. From and after December 2, 2002 (the
"Commencement Date"), Avatech shall employ Executive as the Chief Executive
Officer of Avatech. Executive shall perform such duties as may be assigned to
him from time to time by the Board of Directors of Avatech, and shall report
directly to the Board of Directors. Executive shall use his best efforts on a
full time basis (at least 40 hours per week) in the performance of his duties on
behalf of Avatech.
2. Compensation and Benefits.
2.1. Salary. Executive's base annual salary ("Base Salary")
shall be two hundred thousand dollars ($200,000), payable in accordance with
Avatech's customary payroll policies in force at the time of payment.
2.2. Incentive Compensation and Bonuses. Prior to the end of
each of Avatech's fiscal years, its management will recommend to the
Compensation Committee of the Board of Directors whether to pay to Executive
additional compensation, and the Compensation Committee shall determine if
additional compensation shall be paid to Executive, and if so, in what amounts.
Such a determination by the Compensation Committee shall be made in conjunction
with its consideration of an overall incentive compensation plan for senior
management of Avatech. The Compensation Committee may pay to Executive any or
all of the following: incentive compensation based on Executive's achievement of
specific goals or objectives developed by the Compensation Committee; a bonus
based upon outstanding performance by the Executive; and additional options to
purchase Avatech's Common Stock under its Incentive Stock Option plan or
otherwise.
2.3. Annual Review. Commencing with the beginning of the
fiscal year of Avatech beginning July 1, 2003, and on each July 1 thereafter,
the Board shall conduct an annual performance review of Executive and, at that
time, consider increases in Executive's base compensation.
2.4. Stock Options. Avatech shall immediately grant to
Executive options to purchase 50,000 shares of Avatech's Common Stock under
Avatech's Incentive Stock Option Plan, with such terms and conditions as are
customarily contained in option agreements entered into by Avatech. The options
shall have a term of 10 years, shall automatically convert to nonqualified
options upon any cessation of employment with Avatech by Executive (unless such
cessation is the result of a Termination for Cause, as described in Section 4.2
hereof, in which case all vested and unvested options shall cease, terminate and
be null and void), and shall have an exercise price equal to the mean between
the bid and asked prices of Avatech's Common Stock on the OTC Bulletin Board at
the close of trading on December 2, 2002. One third of the options shall vest on
each July 1 of 2003, 2004 and 2005.
2.5. Benefits. Executive shall be entitled to participate in
Avatech's standard benefits provided to other management level employees of
Avatech, as established or modified by Avatech from time to
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time, including but not limited to life insurance, health insurance, and dental
insurance, to the extent not provided to Executive from another business or
corporation.
2.6. Vacation. Executive shall be entitled to four calendar
weeks of vacation during each fiscal year of Avatech, which vacation weeks shall
not accrue if they are not used.
2.7. Business Expenses. Pursuant to Avatech's customary
policies in force at the time of payment, Executive shall be promptly
reimbursed, against presentation of vouchers or receipts, for all authorized
expenses properly incurred by him in the performance of his duties hereunder.
2.8. Moving and Relocation Costs. Avatech shall reimburse
Executive, or pay directly to the moving and storage company handling same, the
actual charges incurred to move Executive's furniture, personal items, and
vehicles to the Baltimore, Maryland area from Executive's current home, plus
reasonable and necessary closing costs associated with Executive's purchase of a
new home in the Baltimore, Maryland area.
3. Term and Termination.
3.1. Term. This Agreement shall have a term beginning on the
Commencement Date and ending on the date of a Termination for Cause (as defined
in Section 3.2) or the date of a Termination Other than for Cause (as defined
and described in Section 3.3), whichever shall first occur.
3.2. Termination for Cause. Executive shall be entitled to
payment of his Base Salary earned, accrued bonus earned (if any), and benefits
existing at the time of termination of his employment if such termination is a
Termination for Cause. "Termination for Cause" means one or more of. (a)
voluntary termination of employment by Executive for any reason; (b) death of
Executive; (c) Executive having been unable to render services required of him
hereunder for a consecutive period of six months or for any period in the
aggregate of six months in any twelve month period because of a serious and
continuing health impairment, which impairment will most likely result in
Executive's continued inability to render the services required of him
hereunder; (d) Executive"s misappropriation of corporate funds; (e) Executive's
conviction of a felony; (f) Executive's conviction of any crime involving theft,
dishonesty, or moral turpitude; (g) Executive's failure to devote substantially
his full business time and attention to Avatech as provided in Section 1 hereof;
(h) Executive's willful violation of directions of the Board of Directors of
Avatech which are consistent with Executive's duties as Chief Executive Officer;
(i) falsification of any material representation made by Executive to Avatech;
(j) verifiable evidence that Executive has engaged in sexual harassment of a
nature that could give rise to liability on the part of Avatech; and (k) the
commission by Executive of a material breach of the terms of this Agreement.
3.3. Termination Other Than for Cause. If Executive's
employment with Avatech is terminated and such termination is not a Termination
for Cause, Executive shall be entitled to payment of his Base Salary and other
benefits existing at the time of such termination for a period of twelve months
thereafter, with all such payments to be made periodically pursuant to Avatech's
policies in force at the time of payment, provided, however, that Avatech shall
not be obligated to continue any benefit if the plan or policy under which such
benefit is provided limits the provision of the benefit to full-time employees
of Avatech, or if the validity of the plan or policy would be adversely impacted
by the continuation of the benefit.
3.4. Change in Control. If, upon a Change in Control,
Executive is either terminated or elects to resign, such termination shall be
treated as a termination under Section 3.3. As used in this Agreement, "Change
in Control" shall mean (a) a dissolution or liquidation of Avatech; (b) a merger
of consolidation in which Avatech is not the surviving corporation or the party
to the merger or consolidation whose shareholders do not own 50% or more of the
voting stock of the resulting corporation; or (c) the acquisition of more than
50% of the outstanding voting stock of Avatech by any person, or group of
persons acting in concert, in a single transaction or series of transactions.
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4. Confidential Information
4.1. Definition of Confidential Information. For purposes of
this Agreement, the term "Confidential Information" means that secret,
proprietary information of Avatech not otherwise publicly disclosed (whether or
not discovered or developed by Executive) and known by Executive as a
consequence of Executive's employment with Avatech or as a consequence of
Executive's position as a director of Avatech. Without limiting the generality
of the foregoing, such proprietary information shall include information not
generally known in the industry or related industries which concerns customer
lists; computer programs and routines; the identity of specialized consultants
and contractors and confidential information developed by them for Avatech;
operating and other cost data, including information regarding salaries and
benefits of employees; cost and pricing data; acquisition, expansion, marketing,
financial, strategic, and other business plans; Avatech manuals, files, records,
memoranda, plans, drawings and designs, specifications and computer programs and
records; and all information that is a "trade secret" as defined in the Uniform
Trade Secrets Act.
4.2. Confidential Information. During Executive's employment
with Avatech, Executive shall have access to and become familiar with
Confidential Information of Avatech. Executive acknowledges that such
Confidential Information is owned and shall continue to be owned solely by
Avatech. During the term of Executive's employment with Avatech and after
termination of such employment for any reason, Executive shall not use or
divulge Confidential Information to any person or entity other than Avatech, or
persons to whom Avatech has given its written consent, unless such information
has become publicly available and is not longer Confidential Information.
4.3. Return of Documents. Upon termination of Executive's
employment with Avatech for any reason, all procedural manuals, guides,
specifications, plans, drawings, designs, records, lists, notebooks, software,
diskettes, customer lists, pricing documentation and other property which is or
contains Confidential Information, including all copies thereof, in the
possession or control of Executive, whether prepared by Executive or others,
shall be forthwith delivered by Executive to Avatech.
5. Covenants Not to Compete
5.1. Restrictive Covenant. Avatech and Executive agree and
acknowledge that Avatech has legitimate business interests to support the
restrictive covenants set forth hereinafter, including, but not limited to,
trade secrets, Confidential Information that otherwise does not qualify as trade
secrets, and Executive's substantial relationships with prospective or existing
customers. Executive covenants and agrees that during Executive's employment
with Avatech and for a period of one year following Executive's cessation of
employment for any reason, Executive shall not in any manner start or join any
business which, as of or after the date of this Agreement, enters into a line of
business or is engaged in a line of business that is a line of business
conducted by Avatech.
This Section 5.1 shall prevent Executive, directly or
indirectly, on Executive's own behalf or as an executive, officer, employee,
agent, director, partner, consultant, lender, or advisor, from forming, owning,
joining, controlling, financing, or otherwise participating in the ownership or
management of or being otherwise affiliated with any person or entity engaged in
the type of business prohibited by this Section. Executive shall not permit any
person or entity (other than Avatech) of which Executive is a shareholder,
partner or director, or in which Executive has an ownership interest, to engage
in any type of business prohibited by this Section. Notwithstanding any other
provision herein to the contrary, the parties agree that Executive may invest
Executive's personal, private assets as a passive investor in not more than one
percent of the total outstanding shares of any publicly traded company engaged
in a competing business, so long as Executive does not participate in the
management or operations of such company.
5.2. Solicitation of Employees. During the one-year period
following Executive's cessation of employment for any reason, Executive shall
not, without the prior written approval of the Chairman of the Board of
Directors of Avatech, directly or indirectly solicit, raid, entice, or induce
any person who is, or was at any time within six months prior to such cessation,
an employee of Avatech, to become employed by any other person, firm, or
corporation in any business which is in any manner in competition with Avatech.
Furthermore,
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Executive shall inform Avatech in writing if any other person employed by
Avatech contacts Executive for the purpose of seeking employment during such one
year period.
5.3. New Developments. Executive agrees that, with respect to
his work for Avatech, any developments made by Executive or under Executive's
direction in connection with the work of Avatech shall be the sole and absolute
property of Avatech, and that any and all copyrights, patent rights, and other
proprietary rights therein shall belong to Avatech. Executive shall cooperate
with Avatech and execute any documents prepared by Avatech to secure or protect
any such rights.
6. Representations of Executive. Executive hereby represents and
warrants that he has the unrestricted right to accept employment with Avatech on
the terms and conditions set forth herein and to execute and perform this
Agreement without being in conflict with any other agreement, obligation or
understanding with any third party. Executive represents that he is not bound by
any agreement or by any other existing or previous business relationship which
conflicts with, or may conflict with, the performance of his obligations
hereunder, or prevent the full performance of his duties and obligations
hereunder.
7. Notices. Any notice permitted or required to be given under
this Agreement shall be sufficient if in writing and delivered personally or by
certified mail, return receipt requested, if to Executive, to Xx. Xxxxxx X Xxxxx
at his residence address as reflected in Avatech's payroll records, and if to
Avatech, to the attention of Mr. W. Xxxxx Xxxxxxx, at Avatech's principal
corporate office address. A party may change his or its address for receipt of
notices by complying with this Section.
8. Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of its subject matter and supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
9. Amendment; Waiver. This Agreement may not be amended,
supplemented, canceled or discharged except by a written instrument executed by
the party affected thereby. No failure to exercise, and no delay in exercising,
any right, power or privilege hereunder shall operate as a waiver thereof. No
waiver of any breach of any provision of this Agreement shall be deemed to be a
waiver of any preceding or succeeding breach of the same or any other provision.
10. Binding Effect; Assignment. The rights and obligations set
forth in this Agreement shall bind and inure to the benefit of any successor of
Avatech by reorganization, merger or consolidation, or any assignee of all or
substantially all of Avatech's business and properties. Executive's rights or
obligations hereunder may not be assigned by Executive, except that upon
Executive's death, all rights to compensation hereunder shall pass to
Executive's executor or administrator.
11. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
12. Governing Law; Interpretation. This Agreement shall be
construed in accordance with, and governed by, the laws of the State of Maryland
and, to the extent it involves any United States statute, by the laws of the
United States.
13. Further Assurances. Each of the parties agrees to execute,
acknowledge, deliver and perform, or caused to be executed, acknowledged,
delivered and performed, at any time and from time to time, all such further
acts, documents, transfers, conveyances, or assurances as may be necessary or
appropriate to carry out the provisions or intent of this Agreement.
14. Severability. If any one or more of the terms, provisions,
covenants, or restriction contained in this Agreement shall be determined by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
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IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the day and year first above written.
AVATECH SOLUTIONS, INC.
By: /s/ Xxxxx Xxxxxx
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Vice Chairman
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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