EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this 31st day
of May, 2002 by and between Brandywine Computer Group, Inc., a Delaware
corporation ("Company"), and Xxxxxxx Xxxxx Xxxxxxxx ("Executive").
Background
Company desires to employ Executive, and Executive desires to be
employed by Company, on the terms and conditions contained in this Agreement.
Executive will be substantially involved with Company's operations and
management and will learn trade secrets and other confidential information
relating to Company and its customers; accordingly, the noncompetition
covenant and other restrictive covenants contained in Section 14 of this
Agreement constitute essential elements hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and intending to be legally bound hereby, the
parties hereto agree as follows:
Terms
1. Definitions. The following words and phrases shall have the
meanings set forth below for the purposes of this Agreement (unless the
context clearly indicates otherwise):
(a) "Base Salary" shall have the meaning set forth in
Section 5.
(b) "Board" shall mean the Board of Directors of Company
or any successor thereto.
(c) "Cause," as determined by the Board in good faith,
shall mean Executive has --
(1) failed to perform his stated duties in any
material respect and not cured such failure (if curable) within 15
days of his receipt of written notice from the Board of the
failure;
(2) materially breached any provision of this
Agreement and not cured such breach (if curable) within 15 days of
his receipt of written notice of the breach;
(3) demonstrated his personal dishonesty in connection with his employment by
Company;
(4) engaged in willful misconduct;
(5) engaged in a breach of fiduciary duty owed to
Company;
(6) willfully violated any law, rule or regulation,
or final cease-and-desist order (other than minor traffic
violations or similar offenses); or
(7) engaged in other serious misconduct of such a
nature that may reasonably be expected to affect adversely the
Company.
(d) "Disability," as determined by the Board in good
faith, shall mean Executive's inability to perform his duties hereunder, at
all or with a reasonable accommodation, by reason of any physical or mental
impairment which is expected to result in death or which has lasted or is
expected to last for a continuous period of not fewer than 3 months.
(e) "Good Reason" shall mean:
(1) a material breach of this Agreement by Company
which is not cured by Company within 15 days of its receipt of
written notice of the breach;
(2) without Executive's express written consent, the
Board reduces Executive's Base Salary or the aggregate fringe
benefits provided to Executive (except to the extent permitted by
Section 5 or Section 6, respectively); provided, Executive resigns
within 30 days after the change objected to; or
(3) Company fails to obtain the assumption of this
Agreement by any successor to Company, whether by merger,
consolidation, sale of more than 50% of the issued and outstanding
stock of the Company or sale of all or substantially all of the
assets of the Company; and
(4) without Executive's prior written consent,
Company permanently relocates Executive outside the Cincinnati,
Ohio greater metropolitan area.
(f) "Principal Executive Office" shall mean Company's
principal office for executives, presently located at 0000 Xxxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxx, XX 00000.
(g) "Termination Date" shall mean the date specified in
the Termination Notice.
(h) "Termination Notice" shall mean a dated notice which:
(i) indicates the specific termination provision in this Agreement relied upon
(if any); (ii) sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for the termination of Executive's employment under
such provision; (iii) specifies a Termination Date; and (iv) is given in the
manner specified in Section 15(e).
2. Employment. Company hereby employs Executive as President
and Chief Executive Officer and Executive hereby accepts such employment and
agrees to render services to Company in such capacity (or in such other
capacity in the future as the Board may reasonably deem equivalent to such
position) on the terms and conditions set forth in this Agreement.
Executive's primary place of employment shall be at the Principal Executive
Office.
3. Term. Unless earlier terminated by Executive or Company as
provided in Section 10 hereof, the term of Executive's employment under this
Agreement shall commence on the date of this Agreement and terminate on May
31, 2006.
4. Duties. Executive shall:
(a) 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, and such additional or different acts, duties
and services as the Board may assign in the future; and
(b) 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.
5. Compensation.
Company shall compensate Executive for his services at a
minimum base salary of $175,000 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 Planet 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.
6. 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
7. 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.
8. 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.
9. Disability. In the event Executive incurs a Disability,
Executive's obligation to perform services under this Agreement will
terminate, and the Board may terminate this Agreement upon written notice to
Executive.
10. Termination
(a) 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.
(b) 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:
(1) pay Executive a severance amount equal to the
lesser of (i) one-half (1/2) times Executive's Base Salary
(determined without regard to any reduction in violation of
Section 5) as of his last day of active employment, or (ii) the
unpaid portion of Executive's Base Salary (determined without
regard to any reduction in violation of Section 5) 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
(2) 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.
(c) Termination Notice. Except in the event of
Executive's death, a termination under this Agreement shall be effected by
means of a Termination Notice.
11. Withholding. Company shall have the right to withhold from
all payments made pursuant to this Agreement any federal, state, or local
taxes and such other amounts as may be required by law to be withheld from
such payments.
12. Assignability. Company may assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any entity to
which Company may transfer all or substantially all of its assets, if in any
such case said entity shall expressly in writing assume all obligations of
Company hereunder as fully as if it had been originally made a party hereto.
Company may not otherwise assign this Agreement or its rights and obligations
hereunder. This Agreement is personal to Executive and his rights and duties
hereunder shall not be assigned except as expressly agreed to in writing by
Company.
13. Death of Executive. Any amounts due Executive under this
Agreement (not including any Base Salary not yet earned by Executive) unpaid
as of the date of Executive's death shall be paid in a single sum as soon as
practicable after Executive's death to Executive's surviving spouse, or if
none, to the duly appointed personal representative of his estate.
14. Restrictive Covenants.
(a) Covenant Not to Compete. During the term of this
Agreement and for a period of either (x) five years following the date of this
Agreement if Executive's employment is terminated under Section 10(a) or if
this Agreement expires by its terms, or (y) six months following the
termination of Executive's employment if Executive's employment is terminated
under Section 10(b), Executive shall not, directly or indirectly, in the
United States (i) engage in the business of providing information technology
consulting services (the "Business"), (ii) be or become a stockholder,
partner, owner, officer, director or employee of, or a consultant to, any
person or entity engaging in such activities; (iii) solicit the employment of
any person who is an employee of Company as of the Termination Date or solicit
to provide consulting services to any customer or qualified prospect of
Company as of the Termination Date; or (iv) hire or employ any person who is
an employee of Company as of the Termination Date. Notwithstanding anything
herein to the contrary, nothing herein shall prohibit Executive from owning,
as a passive investor, in the aggregate not more than five percent (5%) of the
outstanding shares of capital stock or other beneficial ownership interests of
any entity (other than a successor in interest to Company) engaged in the
Business.
(b) Confidentiality. Executive acknowledges a duty of
confidentiality owed to Company and shall not, at any time during or after his
employment by Company, retain in writing, use, divulge, furnish, or make
accessible to anyone, without the express authorization of the Board, any
trade secret, private or confidential information or knowledge of Company,
Zanett or any of their affiliates obtained or acquired by him while so
employed. All computer software, business cards, telephone lists, customer
lists, price lists, contract forms, catalogs, Company books, records, files
and know-how acquired while an employee of Company are acknowledged to be the
property of Company and shall not be duplicated, removed from Company's
possession or premises or made use of other than in pursuit of Company's
business or as may otherwise be required by law or any legal process, or as is
necessary in connection with any adversarial proceeding against Company and,
upon termination of employment for any reason, Executive shall deliver to
Company, without further demand, all copies thereof which are then in his
possession or under his control.
(c) Inventions and Improvements. Executive shall promptly
communicate to Company all ideas, discoveries and inventions which are or may
be useful to Company or its business. Executive acknowledges that all such
ideas, discoveries, inventions, and improvements which heretofore have been or
are hereafter made, conceived, or reduced to practice by him at any time
during his employment with Company heretofore or hereafter gained by him at
any time during his employment with Company are the property of Company, and
Executive hereby irrevocably assigns all such ideas, discoveries, inventions,
and improvements to Company for its sole use and benefit, without additional
compensation. The provisions of this Section 14(c) shall apply whether such
ideas, discoveries, inventions, or improvements were or are conceived, made or
gained by him alone or with others, whether during or after usual working
hours, whether on or off the job, whether applicable to matters directly or
indirectly related to Company's business interests (including potential
business interests), and whether or not within the specific realm of his
duties. Executive shall, upon request of Company, but at no expense to
Executive, at any time during or after his employment with Company, sign all
instruments and documents reasonably requested by Company and otherwise coop-
erate with Company to protect its right to such ideas, discoveries,
inventions, or improvements including applying for, obtaining, and enforcing
patents and copyrights thereon in such countries as Company shall determine.
(d) Breach of Covenant. Any breach or violation of the
provisions in this Section 14 by Executive will result in forfeiture by
Executive and all other persons of all rights to any further payments or
benefits under this Agreement, and in such event Company shall have no further
obligation to pay any amounts related thereto. Executive expressly
acknowledges that damages alone will be an inadequate remedy for any breach or
violation of any of the provisions of this Section 14 and that Company, in
addition to all other remedies, shall be entitled as a matter of right to
equitable relief, including injunctions and specific performance, in any court
of competent jurisdiction. If any of the provisions of this Section 14 are
held to be in any respect unenforceable, then they shall be deemed to extend
only over the maximum period of time, geographic area, or range of activities
as to which they may be enforceable.
15. Miscellaneous
(a) Amendment. No provision of this Agreement may be
amended unless such amendment is signed by Executive and such officer as may
be specifically designated by the Board to sign on Company's behalf.
(b) Prior Employment. Executive represents and warrants
that his acceptance of employment with Company has not breached, and the
performance of his duties hereunder will not breach, any duty owed by him to
any prior employer or other person.
(c) Severability. If any provision of this Agreement or
the application thereof to any person or circumstance shall be invalid or
unenforceable under any applicable law, such event shall not affect or render
invalid or unenforceable any other provision of this Agreement and shall not
affect the application of any provision to other persons or circumstances.
(d) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors, permitted assigns, heirs, executors, and administrators.
(e) Notice. For purposes of this Agreement, notices and
all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given if hand-delivered, sent by
documented overnight delivery service or by certified or registered mail,
return receipt requested, postage prepaid, addressed to the respective
addresses set forth below:
To Company: Brandywine Computer Group, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Pierre-Xxxxxxx Xxx
To Executive: Xxxxxxx Xxxxx Seagrave
(f) Entire Agreement. This Agreement sets forth the
entire understanding of the parties and supersedes all prior agreements,
arrangements and communications, whether oral or written, pertaining to the
subject matter hereof.
(g) Governing Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws
of the United States where applicable and otherwise by the laws of the State
of Ohio, without regards to the conflicts of law principles thereof.
IN WITNESS WHEREOF, this Agreement has been executed as of the
date first above written.
BRANDYWINE COMPUTER GROUP, INC.
By: /s/ Pierre-Xxxxxxx Xxx
Title: Director
EXECUTIVE
Xxxxxxx Xxxxx Seagrave
