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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ADIL SHAFI, an individual,

Defendant/Counterclaim Plaintiff

v.

BRAINTECH, INC, a Nevada corporation,

Counterclaim Defendant,

and

FREDERICK WEIDINGER, an individual,

Additional Counterclaim Defendant.

_____________________________________/

Case No. 09-10454

Hon. Victoria A. Roberts

SHAFI’S RESPONSE TO BRAINTECH’S MOTION IN LIMINE REGARDING

INTRODUCTION OF THE SHARE PURCHASE AGREEMENT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES................................................................. ...............iii

I. ARGUMENT.......................................................................................................................1

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INDEX OF AUTHORITIES

Cases Page(s)

None

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I. ARGUMENT

Admittedly, it is a long contract, weighing in at over 200 pages, terribly hard to 

read, written largely in “legalese” and drafted almost exclusively by attorneys for 

Braintech. Yet it is incomprehensible (and Braintech fails to articulate) how a dour 200 

page contract with multiple exhibits could mislead, confuse or prejudice the jury in this 

matter. It is more than likely to put a jury to sleep, but Braintech does not complain 

about this problem.

Shafi and his attorneys have no intention of going through the Share Purchase 

Agreement line by line, section by section or page by page. Nevertheless, it places the 

Employment Agreement, the contract which is at issue, in context. The Employment 

Agreement is Exhibit 5 of the Share Purchase Agreement. It is incorporated by 

reference and integrated into the Share Purchase Agreement. The Share Purchase 

Agreement contains a “notice” provision (a copy of which is excerpted at Exhibit 1). In 

the Share Purchase Agreement, if “notice” is necessary, the names and addresses of 

the persons entitled to “notice” are identified in the notice provision.

The Share Purchase Agreement shows that the Employment Agreement was 

part of global agreement between Shafi, his two companies, Braintech and Weidinger. 

Like the Share Purchase Agreement, the Employment Agreement required “notice” to 

be provided to Shafi in the event of termination for any reason. Although Braintech 

claims that Shafi was terminated for “good cause,” no notice of such termination has 

ever been provided. The lack of “notice” to Shafi of termination is undisputed. Rather, 

Braintech will seek to prove from the underlying facts that “good cause” existed to 

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terminate Shafi under the Employment Agreement. 

Whether grounds existed to terminate Shafi for “good cause” is irrelevant. The 

sole issue to be litigated is whether Shafi was provided “notice” of termination for any 

reason (good cause or not). The fact is, no “notice” was ever given to Shafi by 

Braintech regarding the termination of his employment, a fact Braintech has no 

evidence to dispute.1 It is noteworthy that the lack of “notice” is consistent with the 

claims originally asserted in this case by Braintech in its now dismissed complaint. 

Braintech only sought rescission of all of the contracts, including the Employment 

Agreement. Braintech made a tactical legal decision not to terminate Shafi under the 

Employment Agreement because having done so would have accepted the benefits of 

the Employment Agreement and eliminated the prospect of rescinding the Employment 

Agreement and possibly eliminating rescission of the remaining agreements, including 

the Share Purchase Agreement. Therefore, Shafi was merely placed on “administrative 

leave,” a status not contemplated in his Employment Agreement. Following his 

placement on “administrative leave,” there were no further communications from 

Braintech to Shafi, let alone “notice.” 

This case will turn on the principles of contract interpretation. Constructive notice 

of the existence of good cause for his termination, is not sufficient under the contract. It 

provided:

 

1 Braintech will likely argue that Shafi must have known or had constructive knowledge that “cause” 

existed for his termination. This is what the 200 or so exhibits proffered by Braintech which pre-date his 

termination are designed to show. But even if Shafi knew this or whether cause in fact existed, the 

Employment Agreement required “notice.” According to the unambiguous terms of the Employment 

Agreement, constructive knowledge or cause in fact does not eliminate the severance. Only “notice” of 

good cause termination eliminates the severance claim and there is no evidence of notice in this case.

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“BRAINTECH may terminate the employment of the EXECUTIVE 

with thirty day notice for any reason.” [emphasis supplied]

Notice required under the Employment Agreement was not specified to be either in 

writing or oral. However, the notice provisions in the Share Purchase Agreement 

require written notice to the parties at the addresses identified therein. Shafi submits 

that the Share Purchase Agreement supplements the Employment Agreement and in 

the event Braintech terminated the Employment Agreement for “notice,” it was required 

to give a written communication to Shafi at his home address in Brighton, Michigan. It is 

undisputed that no such notice was ever given. Regardless of whether written notice 

was required, oral notice was similarly not provided. The fact is, no notice of 

termination was ever provided at any time.

The Share Purchase Agreement should be admitted because its notice 

provisions supplement the notice provisions under the Employment Agreement and 

require written “notice” of a party’s actions under the Agreement. Shafi has no intention 

of boring the Court or the jury with other irrelevant portions of the Share Purchase 

Agreement.

Respectfully submitted,

BERRY MOORMAN P.C.

By: s/James P. Murphy

James P. Murphy (P36728)

Attorneys for Defendant/Counterclaim 

Plaintiff

535 Griswold, Suite 1900

Detroit, Michigan 48226

(313) 496-1200

murph@berrymoorman.com

June 10, 2011

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CERTIFICATE OF SERVICE

STATE OF MICHIGAN )

 )ss

COUNTY OF WAYNE )

I hereby certify that on the 10th day of June, 2011, a copy of the foregoing Reply Brief 

to Braintech’s Motion in Limine Regarding the Share Purchase Agreement was filed 

electronically. Notice of this filing will be sent to all parties by operation of the Court’s 

electronic filing system. Parties may access this filing through the Court’s system. 

Respectfully submitted,

BERRY MOORMAN P.C.

By: s/James P. Murphy

James P. Murphy (P36728)

Attorneys for Defendant/Counterclaim 

Plaintiff

535 Griswold, Suite 1900

Detroit, Michigan 48226

(313) 496-1200

murph@berrymoorman.com

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