EMPLOYMENT AGREEMENT dated as of April 23, 2004 (this "Agreement"), by and
between Brandywine Computer Group, Inc., a Delaware corporation (the
"Company"), and Xxxxx Xxxxx ("Executive")
The Company and Executive desire to set forth in this
Agreement their agreement on the terms and conditions upon which
Executive will be employed by the Company as of the Company.
In consideration of the mutual promises, representations,
warranties, and covenants hereinafter set forth, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as
follows:
1. CERTAIN DEFINITIONS.
For the purposes of this Agreement, the following
terms shall have the following meanings:
"$" means Dollars in the lawful currency of the United
States of America.
"Base Salary" shall have the meaning assigned to such
term in Section 4.1.
"Board" means the Board of Directors of the Company.
"Business" means the business of providing enterprise
resource planning, customer relationship management and supply
chain management solutions and any other business activity
during the Term in which the Company or any of its affiliates
are engaged, or are actively preparing to engage during the
Term.
"Cause" means (a) Executive's breach of any material
term of this Agreement (including, without limitation, any of
the agreements or covenants contained in Sections 3, 5, 6.1,
6.2, 6.3, 6.4, 8.13, 8.14 or 8.15), which breach is not cured
within thirty (30) days of Executive's receipt of written notice
specifying the relevant breach in reasonable detail, identifying
such breach as "Cause" under this Agreement, and notifying
Executive that he has 30 days from receipt of such notice to
cure such breach, (b) Executive's conviction of a felony or any
crime of theft, fraud or moral turpitude, (c) Executive's
embezzlement or misappropriation of corporate funds, (d) any
gross negligence or willful misconduct by Executive in
connection with his employment or his representation of the
Company that results in any loss to the Company and its
affiliates of over $25,000.00 (e) Executive's reporting to work
impaired by or under the influence of alcohol or illegal drugs,
(f) Executive's engagement in the unlawful use or possession of
illegal drugs on the Company's premises, (g) the Company's
determination, after reasonable investigation, that Executive
has engaged in sexual harassment or any other any act(s) likely
to constitue a violation of any harassment or discrimination
law, (i) Executive knowingly and willfully falsifying,
concealing, or covering up by any trick, scheme or device, a
material fact or making any materially false or fraudulent
statement or representation, or making or using any false
writing or document knowing the same to contain any false or
fraudulent statement, to or in connection with any matters for
consideration by the Company's Board, shareholder, auditors,
counsel, any affiliate of the Company or any governmental or
administrative representative, agent, body or entity, and (j)
Executive's failure to perform his stated duties in any material
respect and to cure such failure (if curable) within 15 days of
his receipt of written notice from the Board of the failure;
"Competitive Activities" means the following
activities or businesses: (a) providing professional technology
consulting services in enterprise resource planning, customer
relationship management and supply chain management solutions,
(b) developing, producing, marketing, selling or distributing
any other products or services that compete with the Business,
operations or activities of the Company or any of its affiliates
during the Term; (c) rendering advice or services in connection
with the Business to, or otherwise assisting any other Person
that is directly or indirectly engaged, or preparing to engage,
in the Business, (d) soliciting or endeavoring to cause any
Person that is or was a customer, client, supplier, service
provider, vendor or joint venture or strategic partner of the
Company or its affiliates at any time during the Term, to
terminate or adversely alter the volume or nature of their
business relationship with the Company or any of its affiliates
(including, without limitation, soliciting or endeavoring to
cause such Persons to use any products or services that compete
with the Business if offered by anyone other than the Company or
any of its affiliates); and (e) causing or assisting any Person
in any way to do, or attempt to do, anything prohibited by
clauses (a), (b), (c), (d) or (e) above, directly or indirectly.
"Confidential Information" means any information
owned by, or in the control of, the Company of a confidential or
proprietary nature pertaining to the Business, operations or
activities of the Company or of any of its affiliates, or of any
other Person with whom Executive has been involved as a direct
or indirect result of his employment by, or performance of other
services (including without limitation, as an officer, director,
employee, agent, representative, consultant or other independent
contractor) for, the Company or any of its affiliates, including
without limitation, any (a) Intellectual Property, Invention or
Work for Hire, (b) plans, strategies, tactics and policies, (c)
information regarding litigation or negotiations, (d) any
marketing information, sales or product plans, prospects and
market research data relating to the Business, (e) financial
information, cost and performance data, debt arrangements,
equity ownership or securities transaction information, (f)
technical information, technical drawings and designs, (g)
personnel information, personnel lists, resumes, personnel data,
organizational structure, compensation and performance
evaluations, (h) customer, vendor or supplier information, (i)
information regarding the existence or terms of any agreement or
relationship between the Company or any of its affiliates and
any other party, and (j) any other information of whatever
nature, including without limitation, information that gives to
the Company or any of its affiliates an opportunity to obtain an
advantage over its competitors who or which do not have access
to such information; provided, however, that Confidential
Information shall not include (i) information which is or
becomes (through no improper action by Executive) generally
available to the public, or (ii) information that was in
Executive's possession or known by him without restriction prior
to receipt from, or in connection with Executive's performance
of services on behalf of, the Company.
"Disability" means Executive's adjudication (by final
court order, not subject to appeal) as mentally incompetent, or
the occurrence of a mental or physical disability preventing
Executive from performing his duties under this Agreement for
ninety (90) or more consecutive days, or one hundred eighty
(180) or more days within any calendar year.
"Effective Date" means the date first written above.
"Good Reason" means any breach by the Company of a
material term of this Agreement or a material reduction in
Executive's responsibilities, which breach is not cured within
30 days of receipt by the Board of written notice specifying the
relevant breach in reasonable detail, identifying such breach as
"Good Reason" under this Agreement, and notifying the Company
that it has 30 days from receipt of such notice to cure such
breach.
"Intellectual Property" means any patent, copyright,
trademark, trade name, trade secret, know how or any other
proprietary information or right, or any application or license
for any of the foregoing owned or held by the Company or any of
its affiliates during the Term, whether acquired by the Company
or any of its affiliates on, prior to or following the date of
this Agreement.
"Invention" means any and all inventions, discoveries
and improvements made, conceived, created, developed or
contributed to by Executive during the Term which are (a)
directly or indirectly related to the Business, operations or
activities of the Company or any of its affiliates, (b) directly
or indirectly related to Executive's employment by, or
performance of other services (including as a director, officer,
advisor, agent, representative, consultant or other independent
contractor) for, the Company or any of its affiliates, or (c)
based upon Confidential Information.
"Person" means an individual, partnership,
corporation, limited liability company, limited liability
partnership, trust, joint venture, joint stock company or
unincorporated organization.
"Remaining Rights" means any and all rights, titles
and interests of Executive in and to any of the following
intellectual and personal property as of the Effective Date,
other than the rights, titles and interests of Executive listed
on Exhibit A, attached hereto: any and all inventions,
discoveries, improvements, business plans, strategies, computer
software, documentation, and other copyrightable works or any
other intellectual property (including, but not limited to,
materials or services subject to trademark or service xxxx
registration), made, conceived, created, developed or
contributed to by Executive which are (a) directly related to
the Business, operations or activities of the Company or any of
its affiliates as of the Effective Date, (b) directly related to
Executive's employment by, or performance of other services
(including as a director, officer, advisor, agent,
representative, consultant or other independent contractor) for,
the Company or any of its affiliates, prior to the Effective
Date, or (c) based upon Confidential Information existing as of
the Effective Date.
"Severance Period" shall have the meaning assigned to
such term in Section 7.1.
"Term" means the period commencing on the Effective
Date and ending on the earlier of the third anniversary thereof
(or any extended date agreed on by the written mutual agreement
of the parties hereto) or the date on which this Agreement is
terminated in accordance with Section 7.
"Termination Date" means the date on which Executive's
employment by the Company is terminated for any reason.
"Work for Hire" means any and all sales approaches,
sales material, training material, computer software,
documentation, other copyrightable works or any other
Intellectual Property (including without limitation, materials
or services subject to trademark or service xxxx registration,
but excluding Inventions) made, conceived, created, developed or
contributed to by Executive during the Term and which are (a)
directly or indirectly related to the Business, operations or
activities of the Company or any of its affiliates, (b) directly
or indirectly related to Executive's employment by, or
performance of or other services (including as a director,
officer, advisor, agent, representative, consultant or other
independent contractor) for, the Company or any of its
affiliates, or (c) based upon Confidential Information.
2. TERM.
The Company shall employ Executive for the Term in the
position and for the duties set forth in Section 3. By mutual
written agreement, the parties may extend the Term at any time.
3. POSITION AND DUTIES.
Commencing on the Effective Date, the Company shall
employ Executive, and Executive shall serve the Company, as an
Executive Director of the Company during the Term. In such
capacity, the Employee shall report to, and follow the
directions of, the Board and perform such additional functions
as may be determined from time to time by the Board and as are
commensurate with the Employee's position.
4. COMPENSATION.
4.1 Salary. Company shall compensate Executive for
his services at a minimum base salary of $165,000 per year
("Base Salary"), payable in periodic installments in accordance
with Company's regular payroll practices in effect from time to
time. Executive's Base Salary may be increased from time to
time in such amounts as may be determined by the Board, but may
not be decreased without Executive's express written consent
(unless the decrease is pursuant to a general compensation
reduction applicable to all, or substantially all, officers of
Company and Zanett, Inc., Company's sole stockholder
("Zanett"). In addition to his Base Salary, Executive shall be
entitled to receive such bonus payments as may be determined
appropriate by the Board
4.2 Benefit Plans. Executive shall be entitled to
participate in and receive benefits under any employee benefit
plan or stock-based plan of Company, and shall be eligible for
any other plans and benefits covering officers of Company,
to the extent commensurate with his then duties and
responsibilities fixed by the Board. Company shall not make any
change in such plans or benefits which would adversely affect
Executive's rights thereunder, unless such change affects all,
or substantially all, officers of Company and Zanett
4.3 Vacation. Executive shall be entitled to paid
annual vacation in accordance with the policies established from
time to time by the Board, which in no event shall be less than
three weeks per annum. Regardless of what the Company's standard
vacation policy may be, Executive shall not be entitled to extra
cash payments for any vacation he does not utilize.
4.4 Business Expenses. Company shall reimburse
Executive or otherwise pay for all reasonable expenses incurred
by Executive in furtherance of or in connection with the
business of Company, including, but not limited to, traveling
expenses, subject to such reasonable documentation and other
limitations as may be established by the Board.
4.5 Withholding. The Company shall have the right to
deduct from any compensation paid to Executive hereunder all
taxes and other amounts which may be required to be deducted or
withheld by law (including, but not limited to, income tax
withholding and social security payments), whether such laws are
now in effect or become effective after the date of this
Agreement.
5. INTELLECTUAL PROPERTY OF THE COMPANY.
5.1 Inventions. During or after the Term, Executive
shall promptly disclose to the Company any and all Inventions,
and shall promptly communicate to the Company any and all
information, details and data pertaining to any Inventions in
such form as the Company requests. Whenever Executive is
requested to do so by the Company, during or after the Term,
Executive shall promptly execute and deliver any and all
applications, assignments or other documents or instruments
deemed necessary or advisable by the Company to apply for and
obtain Letters Patent of the United States or any foreign
country or other jurisdiction or to otherwise protect, confirm
or establish the Company's full and exclusive interests in any
Inventions. The obligations set forth in this Section 5.1 shall
be binding upon the successors, assigns, executors,
administrators and other legal representatives of Executive.
5.2 Work for Hire. Any Work for Hire shall be
considered a "work made for hire" under the copyright law of the
United States or property of the Company under applicable
federal, state, local and foreign trademark laws (as
appropriate). During or after the Term, Executive shall
promptly communicate to the Company any and all Works for Hire,
and any and all information, details and data pertaining to any
Work for Hire, in such form as the Company requests. To the
extent that any Work for Hire fails to qualify as (a) a "work
made for hire" under the copyright laws of the United States or
any other jurisdiction or (b) property of the Company under
applicable federal, state, local or foreign trademark laws,
Executive hereby assigns each such Work for Hire and all right,
title and interest therein in any and every jurisdiction to the
Company. Whenever Executive is requested to do so by the
Company, during or after the Term, Executive shall promptly
execute and deliver any and all applications, assignments or
other documents or instruments deemed necessary or advisable by
the Company to apply for and confirm and effectuate full and
exclusive ownership of each and every Work for Hire in the
Company, including without limitation, ownership of any moral
rights under the copyright law of any nation or other
jurisdiction, or any other rights under the intellectual
property laws of any nation or other jurisdiction. To the
extent that any jurisdiction worldwide recognizes moral rights,
copyright rights or other proprietary rights of a similar nature
in any Work for Hire which in such jurisdiction do not become
property of the Company under the "work made for hire" doctrine,
at the Company's request, Executive will execute and deliver,
during or after the Term, such documents and instruments as may
be deemed necessary to assign or waive such rights. The
obligations set forth in this Section 5.2 shall be binding upon
the successors, assigns, executors, administrators and other
legal representatives of Executive.
5.3 Assignment of Remaining Rights. Executive hereby
transfers, assigns, conveys, grants and sets over to the
Company, and its successors and assigns, forever, and the
Company hereby accepts, assumes and acquires from Executive for
itself and its successors and assigns forever, all of
Executive's right, title and interest in and to the Remaining
Rights. Executive hereby covenants and agrees that, at any time
and from time to time during or after the Term, at the request
of the Company or its successors or assigns, he will (a)
promptly and duly execute and deliver, or cause to be executed
and delivered to the Company, all such further documents and
instruments and (b) promptly take all such other and further
action, as may be requested by the Company to more effectively
transfer, assign, convey, grant, set over, vest, protect,
confirm and establish full and exclusive right, title and
interest in and to all of the Remaining Rights in and to the
Company and its successors and assigns forever, including
without limitation, any and all applications, assignments or
other documents or instruments deemed necessary or advisable by
the Company to apply for and obtain Letters Patent of the United
States or any foreign country or other jurisdiction. The
obligations set forth in this Section 5.3 shall be binding upon
the successors, assigns, executors, administrators and other
legal representatives of Executive.
6. COVENANTS OF EXECUTIVE.
6.1 Devotion to Duties. Executive shall faithfully
and diligently do and perform all such acts and duties, and
furnish such services as are assigned to Executive as of the
date this Agreement is signed, including but not limited to
those duties stipulated in Schedule A hereto, and such
additional or different acts, duties and services as the Board
may assign in the future; and shall devote his full professional
time, energy, skill and best efforts to the performance of his
duties hereunder, in a manner that will faithfully and
diligently further the business and interests of Company, and
shall not be employed by or participate or engage in or in any
manner be a part of the management or operations of any business
enterprise other than Company without the prior written consent
of the Board, which consent may be granted or withheld in its
sole discretion.
6.2 Non-Disclosure; Return of Property.
(a) Executive agrees that, during the Term and
prior to the fifth anniversary of the Termination Date, he
shall not use or disclose (except as necessary during the
Term in connection with the legitimate performance of
Executive's duties on behalf of the Company and in good
faith or as required by law or governmental authority) any
Confidential Information.
(b) Upon the expiration of the Term, or upon the
earlier request of the Company, Executive and his legal or
personal representatives will promptly return to the
Company any and all information, documents or other
materials relating to or containing Confidential
Information which are, and any and all other property of
the Company which is, in Executive's possession, care or
control, regardless of whether such materials were created
or prepared by Executive or at Executive's request and
regardless of the form of, or medium containing, such
information, documents or other materials.
6.3 Non-Competition. As part of the consideration for
the compensation and benefits to be paid to Executive hereunder,
in keeping with Executive's duties as a fiduciary and in order
to protect the Company's interests in the confidential
information of Company and the business relationships developed
by Executive with the clients and potential clients of the
Company, and as an additional incentive for the Company to enter
into this Agreement, the Company and Executive agree to the
following non-competition provisions of this Agreement.
During the Term of this Agreement and for a period of (x)
one year following the date of termination of Executive's
employment if terminated under Section 7(a) hereof or (y) six
months following the date of termination of Executive's
employment if terminated under Section 7(b) hereof, Executive
shall not, directly or indirectly, participate, engage or assist
in any Competitive Activities in the United States of America
other than on behalf of and at the direction of the Company.
The foregoing covenant shall not be deemed breached as a result
of the ownership by Executive of less than an aggregate of five
percent of any class of stock of a Person engaged in Competitive
Activities; provided, however, that such stock is listed on a
national securities exchange or is quoted on the National Market
System of the Nasdaq Stock Market.
Executive understands that the foregoing restrictions may
limit Executive's ability to engage in certain businesses
anywhere in the United States of America during the period
provided for above, but acknowledges that, Executive will
receive sufficiently high compensation and other benefits under
this Agreement to justify such restriction. It is expressly
understood and agreed that the Company and Executive consider
the restrictions contained in this Section 6.3 to be reasonable
and necessary. Nevertheless, if any of the aforesaid
restrictions are found by a court having jurisdiction to be
unreasonable, or overly broad as to geographic area or time, or
otherwise unenforceable, the parties intend for the restrictions
therein set forth to be modified by such court so as to be
reasonable and enforceable and, as so modified by the court, to
be fully enforced.
6.4 Non-Solicitation. Subject to the Company's
performance of its payment obligations, if any, pursuant to
Sections 7.1 and 7.2, prior to the second anniversary of the
Termination Date, Executive shall not directly or indirectly
solicit or recruit any Person employed or retained, or employed
or retained within the preceding six (6) month period, as an
employee, consultant or other independent contractor by the
Company or any of its affiliates, or encourage any such Persons
to terminate or adversely alter their relationship with the
Company or any of its affiliates.
6.5 Irreparable Harm. Executive acknowledges and
admits that a breach of any of the covenants contained in
Sections 6.2, 6.3 or 6.4 may cause the Company irreparable harm.
Executive further acknowledges and admits that the damages
resulting from such a breach may be difficult or impossible to
ascertain, and may be of the sort that cannot be compensated by
money or other damages. Executive therefore waives (and is
estopped from asserting in a court of law or equity) any
argument that the breach, or threatened breach, of any of the
covenants contained in Sections 6.2, 6.3 or 6.4 does not
constitute irreparable harm for which an adequate remedy at law
is unavailable. Nothing contained in Sections 6.2, 6.3 or 6.4
or elsewhere in this Agreement shall be construed as prohibiting
the Company from pursuing any other remedies available at law or
in equity for a breach, or threatened breach, by Executive of
any of the covenants contained in Sections 6.2, 6.3 or 6.4.
7. TERMINATION AND SEVERANCE.
7.1 Termination without Salary Continuation. In the
event (i) Executive terminates his employment hereunder other
than for Good Reason, or (ii) Executive's employment is
terminated by Company due to his death, or for Cause, Executive
shall have no right to compensation or other benefits pursuant
to this Agreement for any period after his last day of active
employment.
7.2 Termination with Salary Continuation. In the
event (i) Executive's employment is terminated by Company for a
reason other than death or Cause, or (ii) Executive terminates
his employment for Good Reason, then Company shall:
(a) pay Executive a severance amount equal to
the lesser of (i) one-half (1/2) times Executive's Base Salary
as of his last day of active employment, or (ii) the unpaid
portion of Executive's Base Salary for the remainder of the Term
of this Agreement; the severance amount shall be paid in a
single sum within 30 days following the Termination Date;
provided, however, that in the event Executive's employment is
terminated due to a Disability, such amount shall be reduced by
any payments received by Executive under disability policies
provided for the benefit of Executive; and
(b) maintain and provide to Executive, at no
cost to Executive, for a period ending at the earliest of (i)
the expiration of six (6) months from Executive's last day of
active employment; (ii) the date of Executive's full-time
employment by another employer; or (iii) Executive's death,
continued participation in all group insurance, life insurance,
health and accident, disability, and other employee benefit
plans in which Executive would have been entitled to participate
had his employment with Company continued throughout such
period, provided that such participation is not prohibited by
the terms of the plan or by Company for legal reasons.
7.3 Termination Notice. Except in the event of
Executive's death, a termination under this Agreement shall be
effected by means of a Termination Notice.
8. MISCELLANEOUS.
8.1 Survival. The representations, warranties,
covenants and agreements made herein shall survive the execution
of this Agreement.
8.2 Assignment. This Agreement and the rights and
obligations hereunder shall be assignable only with the prior
written consent of each of the parties.
8.3 Benefits of Agreement. This Agreement and all
obligations of the parties shall be binding upon, and inure to
the benefit of, the parties and their respective successors and
assigns.
8.4 Severability. In case any provision of this
Agreement shall be declared by a court of competent jurisdiction
to be invalid or unenforceable, then such provision shall be
deemed automatically adjusted to conform to the requirements for
validity or enforceability as declared at such time, and, as so
adjusted, shall be deemed a provision of this Agreement as
though originally included herein. In particular, any court
considering the validity or enforceability of Section 6.2, 6.3
and/or 6.4, shall have and exercise the power to reduce the
scope, duration or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is
valid, legal and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or
provision, and in any such case, this Agreement shall be
enforceable as so modified. In the event that any provision of
this Agreement deemed invalid or unenforceable is of such a
nature that it cannot be so adjusted or reformed, the provision
shall be deemed deleted from this Agreement as though the
provision had never been included therein, and in any case, the
remaining provisions of the Agreement shall remain in effect.
8.5 Further Assurances. Each party agrees to execute
such other documents, instruments, agreements and consents, and
take such other actions as may be reasonably requested by the
other parties hereto to effectuate the purposes of this
Agreement.
8.6 Amendment and Waiver. This Agreement may be
amended, modified or waived only with prior written consent of
each of the parties.
8.7 Delays or Omissions. It is agreed that no delay
or omission to exercise any right, power or remedy accruing to
any party, upon any breach, default or noncompliance by another
party under this Agreement shall impair any such right, power or
remedy, nor shall it be construed to be a waiver of any such
breach, default or noncompliance, or any acquiescence therein,
or of or in any similar breach, default or noncompliance
thereafter occurring. All remedies shall be cumulative and not
alternative.
8.8 Notices. All notices required or permitted
hereunder shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified,
(b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next
business day, (c) the earlier of receipt or five (5) days after
having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) day after deposit
with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. Any notice
herein required or permitted to be given shall be given by
depositing the same in the United States first class mail,
postage prepaid, or hand delivered or transmitted by facsimile,
in any case with a copy sent by overnight courier service, and
addressed to the parties as follows:
If to the Company: Brandywine Computer Group,
Inc.
0000 XxxxxxXxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
With a copy to: Zanett, Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Pierre-Xxxxxxx Xxx,
Chief Legal Officer
If to Executive: Xxxxx Xxxxx
or, to such other address or facsimile number as the party to
whom notice is to be given may have furnished to the other
parties in writing in accordance herewith.
8.9 Titles and Subtitles. The titles of the sections
and subsections of the Agreement are for convenience of
reference only and are not to be considered in construing this
Agreement.
8.10 Counterparts. This Agreement may be executed in
any number of counterparts (facsimile or otherwise), each of
which shall be an original, but all of which together shall
constitute one instrument.
8.11 Pronouns. All pronouns contained herein, and any
variations thereof, shall be deemed to refer to the masculine,
feminine or neutral, singular or plural, as the identity of the
parties hereto may require.
8.12 Governing Law. This Agreement shall be construed
in accordance with, and governed by, the laws of the State of
New York (without giving effect to its conflict of laws
principles).
8.13 Consent to Jurisdiction and Service of Process.
Each of the parties hereby irrevocably and unconditionally
submits to the jurisdiction of the courts of the State of New
York and of the Federal courts sitting in the State of New York
in any action or proceeding directly or indirectly arising out
of or relating to this Agreement or the transactions
contemplated hereby (whether based in contract, tort, equity or
any other theory). Each of the parties agrees that all actions
or proceedings arising out of or relating to this agreement may
be litigated in any such State or, to the extent permitted by
law, Federal court that sits in the County of New York, and
accordingly, each party irrevocably waives any objection which
it may now or hereafter have to the laying of the venue of any
such action or proceeding in any such court. Each party further
irrevocably consents to service of process in the manner
provided for notices in Section 8.8. Nothing in this Agreement
will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
8.14 Waiver of Jury Trial. Each party waives any
right it may have to a trial by jury in any action or proceeding
directly or indirectly arising out of or relating to this
Agreement or the transactions contemplated hereby (whether based
on contract, tort, equity or any other theory). Each of the
parties (a) certifies that no representative, agent or attorney
of any other party has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to
enforce the foregoing waiver and (b) acknowledges that it and
the other parties hereto have been induced to enter into this
agreement by, among other things, the mutual waivers and
certifications in this Section 9.14.
8.15 Representations and Warranties by Executive.
Executive hereby represents and warrants to the Company that
(i) Executive's execution and delivery of this Agreement and the
performance of his duties and obligations hereunder will not
conflict with, or cause a default under, or give any party a
right to damages under, or to terminate, any other agreement to
which Executive is a party or by which he is bound, and
(ii) there are no agreements or understandings that would make
unlawful Executive's execution or delivery of this Agreement or
his employment hereunder.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the Effective Date.
BRANDYWINE COMPUTER GROUP, INC.
By: /s/ Pierre-Xxxxxxx Xxx
Name: Pierre-Xxxxxxx Xxx
Title: Vice-President and
Secretary
/s/ Xxxxx Xxxxx
XXXXX XXXXX
