EMPLOYMENT AGREEMENT
Exhibit
99.2
This
EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of this 13th
day of
August, 2008, by and between eBusiness Application Solutions, Inc., a New Jersey
corporation (the “Company”) and Xxxxxxx Xxxxxx (“Executive”);
subject to the condition that this Agreement shall become effective only upon
the closing of the transactions contemplated by that certain Stock Purchase
Agreement (the “Purchase
Agreement”)
by and
among Emtec Global Services LLC, a Delaware limited liability company (“EGS”),
the Company, Aveeva, Inc., a Delaware corporation (“Aveeva”) and Executive,
dated as of the date hereof (the “Effective
Date”).
WITNESSETH
:
WHEREAS,
Executive is a valued employee of the Company;
WHEREAS,
the parties desire to enter into this Agreement pertaining to the employment
of
Executive by the Company;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
below and intending to be legally bound, it is hereby covenanted and agreed
by
Executive and the Company as follows:
1. Agreement
to Employ; No Conflicts.
Upon
the terms and subject to the conditions of this Agreement, the Company hereby
agrees to continue to employ Executive, and Executive hereby accepts continued
employment with the Company. Executive represents that (a) Executive is entering
into this Agreement voluntarily and that Executive’s employment hereunder and
compliance with the terms and conditions hereof will not conflict with or result
in the breach by Executive of any agreement to which Executive is a party or
by
which Executive may be bound, (b) in connection with Executive’s employment with
the Company Executive has and will not violate any nonsolicitation or other
similar covenant or agreement by which Executive is or may be bound, and (c)
in
connection with Executive’s employment with the Company Executive has and will
not use any confidential or proprietary information Executive may have obtained
in connection with Executive’s employment with any prior employer.
2. Term;
Position and Responsibilities.
(a) Term
of Employment.
Unless
Executive’s employment shall terminate earlier pursuant to Section 4,
the
term of employment under this Agreement shall commence on the Effective Date
and
shall end on the third anniversary of the Effective Date (the “Term”).
(b) Position
and Responsibilities.
During
the Term, Executive agrees to serve as the President of the Company and the
President of Aveeva and in such other positions with the Company or its
affiliates as shall from time to time be determined by the Chief Executive
Officer of EGS or EGS’s Board of Directors (the “Board”),
and
shall have such duties and responsibilities as are customarily assigned to
individuals serving in such positions. During the Term, Executive shall report
to the Chief Executive Officer of EGS. Executive shall devote all of her skill,
knowledge and working time to the conscientious performance of the duties and
responsibilities of such positions.
3. Compensation.
(a) Base
Salary.
As
compensation for the services to be performed by Executive during the Term,
Executive shall be entitled to receive a base salary at an annualized rate
of
$180,000, payable in installments on the Company’s regular payroll dates, but no
less frequently than monthly (the “Base
Salary”).
(b) Bonus.
Subject
to Executive’s continued employment with the Company or one of its affiliates on
the applicable payment date, with respect to each Period (as defined below),
Executive shall be entitled to receive a bonus under a bonus program established
by the Company or one of its affiliates (the "Program") equal to 70% of the
Bonus Pool (as defined below). Subject to adjustment as described in this
Section 3(b), the amount available under the Program shall be: (i) $800,000
with
respect to the twelve-month period immediately following the closing of the
Purchase Agreement (the "First Bonus Period"), (ii) $800,000 with respect to
the
twelve-month period immediately following the end of the First Bonus Period
(the
"Second Bonus Period") and (iii) $400,000 with respect to the twelve-month
period immediately following the end of the Second Bonus Period (the "Third
Bonus Period," and together with the First Bonus Period and the Second Bonus
Period, the "Periods" and each, a "Period"). The actual amount available for
distribution under the Program with respect to any Period may, in the sole
discretion of the Chief Executive Officer of EGS, be reduced in the event that
EGS is entitled to indemnification under the Purchase Agreement (the actual
amount available under the Program with respect to any Period after such
reduction, if any, is referred to herein as the "Bonus Pool"). Such bonus,
if
any, shall be paid on the 20th
business
day following the end of the applicable Period. Notwithstanding anything
contained herein to the contrary, if Executive’s employment hereunder is
terminated by reason of Executive’s death or Disability (as defined below), or
due to a Qualifying Termination (as defined below), Executive, or Executive’s
estate, if applicable, shall be entitled to receive the payments described
in
this Section 3(b) on the dates on which such payments would have otherwise
been
made absent such termination of employment.
(c) Employee
Benefits.
During
the Term, Executive shall be entitled to participate in such pension,
retirement, savings, medical, disability and other welfare benefit plans as
are
generally made available by the Company for its employees in accordance with
the
terms thereof, as the same may be amended and in effect from time to
time.
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(d) Expenses.
During
the Term, the Company shall reimburse Executive for reasonable travel, lodging,
meal and other reasonable expenses incurred by Executive in connection with
Executive’s performance of services hereunder, upon submission of evidence,
satisfactory to the Company, of the incurrence and purpose of each such expense
and otherwise in accordance with the Company’s business travel and expense
reimbursement policy applicable to its senior executives as in effect from
time
to time.
(e) Paid
Time Off.
During
the Term, Executive shall be entitled to receive four weeks of paid time off
per
calendar year (pro-rated for any partial calendar year during which Executive
is
employed by the Company).
4. Termination
of Employment.
(a) Termination
Due to Death or Disability.
Executive’s employment hereunder may be terminated by the Company in the event
of Executive’s Disability by written Notice of Termination (as defined below) to
Executive, and shall terminate upon Executive’s death. For purposes of this
Agreement, “Disability”
shall
mean that Executive is unable to engage in any substantial gainful activity
by
reason of any medically determinable physical or mental impairment that can
be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months, or Executive is, by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not less than
three months under an accident and health plan covering employees of the
Company. The determination of Executive’s Disability shall (i) be made by an
independent physician selected by the Company and reasonably acceptable to
Executive (or her representative), (ii) be final and binding on the parties
hereto and (iii) be made taking into account such competent medical evidence
as
shall be presented to such independent physician by Executive and/or the Company
or by any physician or group of physicians or other competent medical experts
employed by Executive and/or the Company to advise such independent
physician.
(b) Termination
by the Company for Cause.
Except
as otherwise provided in this Section 4(b), the Company may immediately
terminate Executive’s employment hereunder for Cause (as defined below) by
written Notice of Termination to Executive. For purposes of this Agreement,
“Cause”
shall
mean (i) the failure of Executive to perform her duties hereunder or her
negligent performance of such duties (other than any such failure due to
Executive’s physical or mental illness), (ii) Executive having engaged in
misconduct that has caused or is reasonably expected to result in injury to
the
Company or any of its affiliates, (iii) a violation by Executive of a Company
policy, (iv) the breach by Executive of any of her obligations hereunder or
under any other written agreement or covenant with the Company or any of its
affiliates, (v) failure by Executive to timely comply with a lawful direction
or
instruction given to her by the Chief Executive Officer of EGS or the Board,
(vi) Executive having been convicted of, or entering a plea of guilty or nolo
contendere to, a crime that constitutes a felony or a misdemeanor involving
moral turpitude (or comparable crime in any jurisdiction that uses a different
nomenclature),
including any offense involving dishonesty as such dishonesty relates to the
assets or business of the Company or any of its affiliates, or theft of the
property of the Company or any of its affiliates, and (vii) Executive’s
insobriety or use of illegal drugs, chemicals or controlled substances either
(A) in the course of performing Executive’s duties and responsibilities under
this Agreement, or (B) otherwise affecting the ability of Executive to perform
the same. In
the
event that the Company proposes to terminate Executive’s employment hereunder
for any of the reasons set forth in clauses (i), (iii) or (iv) above, Executive
shall have a period of ten (10) days following the date on which Executive
receives a Notice of Termination from the Company to cure such actions or
inactions (if capable of cure) giving rise to such Notice of Termination to
the
satisfaction of the Chief Executive Officer of EGS. If Executive fails to cure
such actions or inactions during such ten day period, the Company may
immediately terminate Executive’s employment for Cause.
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(c) Termination
by Company Without Cause.
The
Company may terminate Executive’s employment hereunder Without Cause (as defined
below) by written Notice of Termination to Executive, which notice shall be
effective no less than thirty (30) days following the date on which such notice
is provided to Executive, or at such earlier time as agreed to by Executive.
For
purposes of this Agreement, a termination “Without
Cause”
shall
mean a termination of Executive’s employment by the Company other than as a
result of her Disability or for Cause.
Notwithstanding the foregoing provisions of this Section 4(c), if Executive’s
employment is terminated by the Company in accordance with this Section 4(c)
and, within a reasonable time period thereafter, it is determined by the Board
that circumstances existed which would have constituted a basis for termination
of Executive’s employment for Cause in accordance with Section 4(b), Executive’s
employment will be deemed to have been terminated for Cause in accordance with
Section 4(b).
(d) Termination
by Executive For Good Reason.
Executive may terminate her employment hereunder upon the occurrence of a Good
Reason Event (as defined below) by providing a written Notice of Termination
to
the Company within 15 days after the occurrence of such Good Reason Event;
provided, however, that before Executive may terminate her employment due to
a
Good Reason Event, the Company shall be given a period of 30 days following
the
date on which such Notice of Termination is received by the Company to cure
the
circumstances giving rise to such Good Reason Event. For purposes of this
Agreement, a “Good Reason Event” shall mean any of the following events without
the consent of Executive: (i)
a
material diminution of Executive’s position or responsibilities as set forth in
this Agreement, (ii) a material decrease in Executive’s base salary in effect
immediately prior to such decrease or in other material employee benefits set
forth in this Agreement, other than, in either such case, in connection with
a
reduction occasioned by the Company’s business conditions or prospects and
proportionately applicable to all similarly situated Company employees; or
(iii)
the relocation of Executive's principal place of employment with the Company
to
a location in excess of 50 miles from the principal place of Executive's
employment with the Company as of the Effective Date.
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(e) Voluntary
Termination by Executive Without Good Reason.
Executive may terminate her employment hereunder at any time by giving the
Company prior written Notice of Termination at least 90 days prior to such
termination; provided that the Board may, in its sole discretion, terminate
Executive’s employment hereunder prior to the expiration of the 90-day notice
period. In such event and upon the expiration of such 90-day period (or such
shorter time as the Board in its sole discretion may determine), Executive’s
employment hereunder shall immediately and automatically terminate.
(f) Notice
of Termination.
Any
termination of Executive’s employment hereunder shall be communicated by a
written Notice of Termination addressed to the appropriate party. A
“Notice
of Termination”
shall
mean a notice that indicates the Date of Termination (as defined below), which
shall not be earlier than the date on which the notice is provided, which
indicates the specific termination provision in this Agreement relied upon
for
such termination.
(g) Date
of Termination.
For
purposes of this Agreement, the “Date
of Termination”
is
the
last day that Executive is employed by the Company.
(h) Resignation
upon Termination.
As of
the Date of Termination, Executive shall be deemed to have resigned from all
positions then held by her with the Company and its affiliates.
(i) Duties
on Termination.
Subject
to the terms and conditions of this Agreement, to the extent that there is
a
period of time elapsing between the date of delivery of a Notice of Termination,
and the Date of Termination, Executive shall continue to perform her duties
as
set forth in this Agreement during such period, and shall also perform such
services for the Company as are necessary and appropriate for a smooth
transition to Executive’s successor, if any. Notwithstanding the foregoing
provisions of this Section 4, the Chief Executive Officer of EGS may, in his
sole discretion, relieve Executive from all of her duties, responsibilities
and
authority hereunder and may restrict Executive’s access to Company property
(including the property of any of the Company's affiliates) following the
delivery of a Notice of Termination by either party hereto; provided, however,
that during any such period in which the Chief Executive Officer of EGS
exercises such discretion (which period shall end on the Date of Termination),
Executive shall continue to be treated as employed by the Company for other
purposes, and her rights to compensation or benefits shall not be reduced by
reason of the suspension.
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5. Payments
Upon Certain Terminations.
(a) General.
If,
during the Term, Executive’s employment terminates for any reason, Executive (or
her estate, beneficiary or legal representative, as applicable) shall be
entitled to receive the following:
(i) any
earned or accrued but unpaid Base Salary through the Date of Termination
(including paid time off that is accrued and unused during the Term);
and
(ii) all
amounts payable and vested benefits accrued under any otherwise applicable
plan,
policy, program or practice of the Company (other than relating to severance)
in
which Executive was a participant during her employment with the Company in
accordance with the terms thereof; provided, that, the foregoing shall not
be
construed as requiring Executive to be treated as employed by the Company for
purposes of any employee benefit plan or arrangement following the date of
Executive’s Date of Termination except as otherwise expressly provided in this
Agreement or required by law.
(b) Qualifying
Termination.
In the
event of a termination of Executive’s employment by the Company Without Cause or
by Executive for a Good Reason Event during the Term (such termination, a
“Qualifying
Termination”),
Executive (or her estate, beneficiary or legal representative, as applicable)
shall be entitled to receive, in addition to the amounts specified in paragraph
(a) above, and contingent on Executive’s execution and non-revocation of a
general release of all claims in form and substance satisfactory to the Chief
Executive Officer of EGS, her Base Salary, at the rate in effect hereunder
immediately prior to the Date of Termination, which shall be payable in
installments on the Company’s regular payroll dates, for a one-year period after
the Date of Termination.
(c) No
Duplication of Benefits.
In the
event of Executive’s termination of employment during the Term for any reason,
the sole payments or obligations of the Company and its affiliates are provided
in this Section 5. In the event that Executive is entitled to payment under
any
plan, policy, program or practice of the Company relating to severance, any
such
payment shall reduce the amounts otherwise payable hereunder.
6. Restrictive
Covenants.
(a) Non-solicitation.
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(i) During
the period commencing on the Effective Date and ending on the second anniversary
of Executive’s termination of employment with the Company (the “Restrictive
Period”):
(A) Executive
shall not, without the express written consent of the Board, solicit or attempt
to solicit any party who is then or, during the twelve-month period prior to
such solicitation or attempt by Executive was (or was solicited to become),
a
customer or supplier of the Company or its affiliates (collectively, for
purposes of this Section 6, the “Company”), or a user of the services provided
by the Company.
(B) Executive
shall not without the express written consent of the Board, solicit, entice,
persuade, induce or hire any individual who is employed by or providing services
to the Company (or was so employed or providing such services within 12 months
prior to Executive’s action) to terminate or refrain from renewing or extending
such employment or other service or to become employed by or enter into
contractual relations with any other individual or entity other than the
Company, and Executive shall not approach any such employee or service provider
for any such purpose or authorize or knowingly cooperate with the taking of
any
such actions by any other individual or entity.
(b) Non-Disparagement.
During
the Term and at all times thereafter Executive agrees that Executive will not
make any false, defamatory or disparaging statements about the Company or the
officers or directors of the Company that are reasonably likely to cause damage
to the Company or the officers or directors of the Company.
(c) Confidential
Information.
Executive agrees that, during the Term, and at all times
thereafter:
(i) Executive
will keep secret all Confidential Information (as defined below) and
Intellectual Property (as defined below) which may be obtained during the period
of employment by the Company and that Executive shall not reveal or disclose
it,
directly or indirectly, except with the consent of the Chief Executive Officer
of EGS. Executive shall not make use of the Confidential Information or
Intellectual Property for Executive’s own purposes or for the benefit of anyone
other than the Company and shall protect it against disclosure, misuse,
espionage, loss and theft.
(ii) Executive
acknowledges and agrees that all Intellectual Property is and shall be owned
by
the Company. Executive hereby assigns, and shall assign, to the Company all
ownership rights possessed in any Intellectual Property contributed, conceived
or made by Executive (whether alone or jointly with others) while employed
by
the Company, whether or not during work hours. Executive shall promptly and
fully disclose to the Company in writing all such Intellectual Property after
such contribution, conception or other development. Executive agrees to fully
cooperate with the Company, at the Company’s expense, in securing, enforcing and
otherwise protecting throughout the world the Company’s interests in such
Intellectual Property, including, without limitation, by signing all documents
requested by the Company.
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(iii) Immediately
following her termination of employment, Executive agrees to promptly deliver
to
the Company all memoranda, notes, manuals, lab notebooks, computer diskettes,
passwords, encryption keys, electronic mail and other written or electronic
records (and all copies thereof) constituting or relating to Confidential
Information or Intellectual Property that Executive may then possess or have
control over. Executive shall provide written certification that all such
materials have been returned.
(iv) For
purposes of this Agreement, the following terms shall be defined as set forth
below:
(A) “Confidential
Information”
shall
mean all information, in any form or medium, that relates to the business,
suppliers and prospective suppliers, existing and potential creditors and
financial backers, marketing, costs, prices, products, processes, services,
methods, computer programs and systems, personnel, customers, research or
development of the Company and all other information related to the Company
which is not readily available to the public. Confidential Information shall
include any of the foregoing information that is created or developed by
Executive during the Term.
(B) “Intellectual
Property”
shall
mean, with respect to the following which are created or existing during the
period of Executive’s employment by the Company, any: (1) idea, know-how,
invention, discovery, design, development, software, device, technique, method
or process (whether or not patentable or reduced to practice or including
Confidential Information) and related patents and patent applications and
reissues, re-examinations, renewals, continuations-in-part, continuations,
and
divisions thereof; (2) copyrightable and mask work (whether or not including
Confidential Information) and related registrations and applications for
registration; (3) trademarks, trade secrets and other proprietary rights; and
(4) improvements, updates and modifications of the foregoing made from time
to
time. Intellectual Property shall include any of the foregoing that is created
or developed by Executive during the Term.
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(d) Duty
of Loyalty to Company.
Nothing
in this Section 6 shall be construed as limiting Executive’s duty of loyalty to
the Company, or any other duty otherwise owed to the Company, while Executive
is
employed by the Company.
(e) Blue
Pencil.
It is
the intention of the parties that the potential restrictions on Executive’s
future employment imposed by this Section 6 be reasonable in both duration
and
geographic scope and in all other respects. If for any reason any court of
competent jurisdiction shall at any time find any provision of this Section
6 to
be unreasonable in duration or geographic scope or otherwise, Executive and
the
Company agree that the restrictions and prohibitions contained herein shall
be
effective to the fullest extent allowed under applicable law in such
jurisdiction.
(f) Injunctive
Relief.
Executive acknowledges and agrees that the covenants, obligations and agreements
of Executive contained in this Section 6 relate to special, unique and
extraordinary matters and that a violation of any of the terms of such
covenants, obligations or agreements will cause the Company irreparable injury
for which adequate remedies are not available at law. Therefore, Executive
agrees that the Company shall be entitled to an injunction, restraining order
or
such other equitable relief (without the requirement to post bond unless
required by applicable law) as a court of competent jurisdiction may deem
necessary or appropriate to restrain Executive from committing any violation
of
such covenants, obligations or agreements. These injunctive remedies are
cumulative and in addition to any other rights and remedies the Company may
have. The Company shall be entitled to collect from Executive any costs of
obtaining injunctive relief, including, without limitation, attorneys’
fees.
(g) Certain
Acknowledgements.
Executive acknowledges and agrees that Executive will have a prominent role
in
the management of the business and the development of the goodwill of the
Company and will establish and develop relations and contacts with the principal
customers, suppliers, clients and service providers of the Company in the United
States of America and the rest of the world, all of which constitute valuable
goodwill of, and could be used by Executive to compete unfairly against, the
Company and that (i) in the course of her employment with the Company, Executive
will obtain confidential and proprietary information and trade secrets
concerning the business and operations of the Company in the United States
of
America and the rest of the world that could be used to compete unfairly with
the Company; (ii) the covenants and restrictions contained in this Section
6 are
intended to protect the legitimate interests of the Company in its respective
goodwill, trade secrets and other confidential and proprietary information;
(iii) Executive desires and agrees to be bound by such covenants and
restrictions; and (iv) the compensation to be provided to Executive is adequate
consideration for the restrictive covenants provided in this Section 6.
Executive further acknowledges that the restrictive covenants contained in
this
Section 6 are covenants independent of any other provision of this Agreement
or
any other agreement between the parties hereunder (including the Purchase
Agreement) and the existence of any claim which Executive may allege against
the
Company under any other provision of the Agreement or any other agreement will
not prevent the enforcement of these covenants.
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7. Assistance
with Claims. Executive agrees that, during the Term, and continuing for a
reasonable period after Executive’s Date of Termination, Executive will assist
the Company or its affiliates (collectively, for purposes of this Section 7,
the
“Company”) in defense of any claims that may be made against the Company, and
will assist the Company in the prosecution of any claims that may be made by
the
Company, to the extent that such claims may relate to services performed by
Executive for the Company. Executive agrees to promptly inform the Company
upon
becoming aware of any lawsuits involving such claims that may be filed against
the Company. For periods after Executive’s employment with the Company
terminates, the Company agrees to provide reasonable compensation to Executive
for such assistance. Executive also agrees to promptly inform the Company upon
being asked to assist in any investigation of the Company (or its actions)
that
may relate to services performed by Executive for the Company, regardless of
whether a lawsuit has then been filed against the Company with respect to such
investigation.
8. Miscellaneous.
(a) 409A
Compliance.
Notwithstanding any other provision of this Agreement to the contrary, any
amount payable hereunder, including reimbursements, that is subject to the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(the "Code"), shall be paid in compliance with Code Section 409A and the
regulations issued thereunder. If Executive is a "specified employee" within
the
meaning of Code Section 409A and the regulations issued thereunder, and a
payment or benefit provided for in this Agreement would be subject to additional
tax under Code Section 409A if such payment or benefit is paid within six (6)
months after Executive’s "separation from service" (within the meaning of Code
Section 409A), then such payment or benefit required under this Agreement shall
not be paid (or commence) during the six (6) month period immediately following
Executive’s separation from service except as provided in the immediately
following sentence. In such an event, any payments or benefits that would
otherwise have been made or provided during such six (6) month period and which
would have incurred such additional tax under Code Section 409A shall instead
be
paid to Executive in a lump sum cash payment on the earlier of (i) the first
business day of the seventh month following Executive’s separation from service
or (ii) the 10th
business
day following Executive's death. In addition, if Executive’s termination of
employment hereunder does not constitute a "separation from service" within
the
meaning of Code Section 409A, then any amounts payable hereunder on account
of a
termination of Executive’s employment and which are subject to Code Section 409A
shall not be paid until Executive has experienced a "separation from service"
within the meaning of Code Section 409A.
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(b) Binding
Effect; Assignment.
This
Agreement shall be binding on and inure to the benefit of the Company, and
its
respective successors and permitted assigns. This Agreement shall also be
binding on and inure to the benefit of Executive and her heirs, executors,
administrators and legal representatives. This Agreement shall not be assignable
by any party hereto without the prior written consent of the other parties
hereto, except as provided pursuant to this Section 8(b). The Company may effect
such an assignment without prior written approval of Executive (i) to any
subsidiary of the Company and (ii) upon the transfer of all or substantially
all
of its business and/or assets (by whatever means); provided that, in the case
of
(ii), the successor to the Company shall expressly assume and agree to perform
this Agreement.
(c) Entire
Agreement.
This
Agreement and the Purchase Agreement constitute the entire agreement among
the
parties hereto concerning the subject matter hereof and supersede all prior
and
contemporaneous correspondences and proposals (including but not limited to
summaries of proposed terms) and all prior and contemporaneous promises,
representations, understandings, arrangements and agreements, if any, concerning
such subject matter (including but not limited to those made to or with
Executive by any other person); provided, however, that nothing in this
Agreement shall be construed to limit any policy or agreement that is otherwise
applicable relating to confidentiality, rights to inventions, copyrightable
material, business and/or technical information, trade secrets, solicitation
of
employees, interference with relationships with other businesses, competition,
and other similar policies, restrictive covenants or agreements for the
protection of the business and operations of the Company and its
affiliates.
(d) Applicable
Law.
This
Agreement shall be governed in all respects, including as to validity,
interpretation and effect, by the laws of the State of California without giving
effect to the conflict of laws rules of any state.
(e) Consent
to Jurisdiction; Waiver of Jury Trial.
(i) Consent
to Jurisdiction.
Each
party hereby irrevocably submits to the jurisdiction of the courts of the State
of Delaware and the federal courts of the United States of America located
in
the State of Delaware solely in respect of the interpretation and enforcement
of
the provisions of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby and thereby.
Each party hereby waives and agrees not to assert, as a defense in any action,
suit or proceeding for the interpretation and enforcement hereof, or any such
document or in respect of any such transaction, that such action, suit or
proceeding may not be brought or is not maintainable in such courts or that
the
venue thereof may not be appropriate or that this Agreement or any such document
may not be enforced in or by such courts. Each party hereby consents to and
grants any such court jurisdiction over the person of such parties and over
the
subject matter of any such dispute and agrees that the mailing of process or
other papers in connection with any such action or proceeding in the manner
provided in Section 8(l) or in such other manner as may be permitted by law,
shall be valid and sufficient service thereof.
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(ii) Waiver
of Jury Trial.
Each
party acknowledges and agrees that any controversy which may arise under this
agreement is likely to involve complicated and difficult issues, and therefore
each party hereby irrevocably and unconditionally waives any right such party
may have to a trial by jury in respect of, or any litigation directly or
indirectly arising out of or relating to, this agreement, or the breach,
termination or validity of this agreement, or the transactions contemplated
by
this agreement.
Each
party certifies and acknowledges that (A) 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, (B) each such party understands and has considered the implications
of
this waiver, (C) each such party makes this waiver voluntarily, and (D) each
such party has been induced to enter into this Agreement by, among other things,
the mutual waivers and certifications in this Section 8(e)(ii).
(f) Taxes.
The
Company may withhold from any payments made under this Agreement all applicable
taxes.
(g) Key
Man Insurance.
Executive acknowledges that the Company may purchase “key man” insurance on her
life and hereby agrees to cooperate with the Company in obtaining such
insurance, including without limitation, submitting to such medical examinations
as may be required promptly upon request by the Company.
(h) Amendments.
Subject
to Section 8(a) hereof, this Agreement may be amended or cancelled only by
mutual agreement of the parties in writing. So long as Executive lives, no
person, other than the parties hereto, shall have any rights under or interest
in this Agreement or the subject matter hereof.
(i) Severability.
The
invalidity or unenforceability of any provision of this Agreement will not
affect the validity or enforceability of any other provision of this Agreement,
and this Agreement will be construed as if such invalid or unenforceable
provision were omitted (but only to the extent that such provision cannot be
appropriately reformed or modified).
12
(j) Waiver
of Breach.
The
waiver of any provision of this Agreement shall be set forth in a writing
specifically referring to the provision being waived and signed by the waiving
party. No waiver by any party hereto of a breach of any provision of this
Agreement by any other party, or of compliance with any condition or provision
of this Agreement to be performed by such other party, will operate or be
construed as a waiver of any subsequent breach by such other party of any
similar or dissimilar provisions and conditions at the same or any prior or
subsequent time. The failure of any party hereto to take any action by reason
of
such breach will not deprive such party of the right to take action at any
time
while such breach continues.
(k) Survival
of Agreement.
Except
as otherwise expressly provided in this Agreement, the rights and obligations
of
the parties to this Agreement shall not survive the termination of Executive’s
employment with the Company.
(l) Notices.
Notices
and all other communications provided for in this Agreement shall be in writing
and shall be delivered personally or sent by registered or certified mail,
return receipt requested, postage prepaid, or sent by facsimile or prepaid
overnight courier to the parties at the addresses set forth below (or such
other
addresses as shall be specified by the parties by like notice). Such notices,
demands, claims and other communications shall be deemed given:
(i) in
the
case of delivery by overnight service with guaranteed next day delivery, the
next day or the day designated for delivery;
(ii) in
the
case of certified or registered U.S. mail, five days after deposit in the U.S.
mail; or
(iii) in
the
case of facsimile, the date upon which the transmitting party received
confirmation of receipt by facsimile, telephone or otherwise;
provided,
however, that in no event shall any such communications be deemed to be given
later than the date they are actually received. Communications that are to
be
delivered by the U.S. mail or by overnight service or two-day delivery service
are to be delivered to the addresses set forth below:
to
the
Company:
Emtec,
Inc.
00
Xxxxxxx Xxxx
Xxxxxx
Xxxxx, Xxx Xxxxxx 00000
Fax:
000-000-0000
Attention:
Xxxxxxx X. Xxxxxxxx
or
to
Executive:
at
Executive’s address in the Company’s records.
13
All
notices to the Company shall be directed to the attention of the Chief Financial
Officer of the Company, with a copy to the Board. Each party, by written notice
furnished to the other party, may modify the applicable delivery address, except
that notice of change of address shall be effective only upon
receipt.
(m) Headings.
The
section and other headings contained in this Agreement are for the convenience
of the parties only and are not intended to be a part hereof or to affect the
meaning or interpretation hereof.
(n) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.
14
IN
WITNESS WHEREOF, the Company has duly executed this Agreement by its authorized
representative, and Executive has hereunto set her hand, in each case effective
as of the date first above written.
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EBUSINESS
APPLICATION SOLUTIONS, INC.
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| By: | /s/ Xxxxxx Xxxxx | |
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Name: Xxxxxx Xxxxx |
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Title:
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EXECUTIVE
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/s/
XXXXXXX XXXXXX
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XXXXXXX
XXXXXX
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