Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement (hereinafter, the "Agreement") is entered
into between XXXXXXX XXXXX ("Employee") and Intelligroup, Inc., a New Jersey
Corporation including, without limitation, its predecessors, successors,
parents, subsidiaries, and affiliates ("Intelligroup") effective as of the
Effective Date (as defined in Section 10 below).
WHEREAS, it has been determined that Employee's employment with
Intelligroup shall be terminated;
WHEREAS, by this Agreement, Employee and Intelligroup desire to resolve
any and all matters relating to Employee's employment and the termination
thereof, completely and forever;
NOW THEREFORE, in consideration of the mutual promises contained in
this Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows.
1. Employee's last day of employment shall be DECEMBER 6, 2004. (the
"Separation Date").
2. Intelligroup agrees to provide Employee with the following
separation benefits assuming successful transition, payable beginning on the
Effective Date of this Agreement, as defined in paragraph 10 below. Note that
wages, banked vacation, expenses and other monies due and owing, if any, shall
be paid to employee following the Separation Date. Severance payments shall not
commence until the Effective Date as defined in Section 10 below.
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Separation Benefits:
A.) Intelligroup shall pay to the Employee the equivalent of
his or her regular salary beginning DECEMBER 6, 2004 and
continuing for a period of six MONTHS. This amount shall be
paid in accordance with the normal payroll schedule.
B.) Intelligroup shall pay to the Employee all accrued and
remaining vacation time through Separation Date.
C.) As set forth above, severance benefits shall not be paid
until the Effective Date as defined in Section 10 herein. Note
that this date will not occur until after this agreement has
been signed. Employee understands and acknowledges that the
terms and conditions of this Agreement shall not be binding
until signed by Employee and properly delivered to
Intelligroup. To properly deliver the signed Agreement to
Intelligroup, Employee must deliver the signed and dated
Agreement, by one witness, to Intelligroup by hand or by mail
within the forty-five (45) calendar day period as set forth in
paragraph 10. All personal deliveries shall be made to
Intelligroup at the following address: Human Resources, Attn
Xxxxxxx Xxxxxx, Intelligroup, Inc., 000 Xxxxxxxx, Xxxxxxxx
Xxxxx, Xxxxxx, XX 00000.
E.) If applicable, Employee shall have ninety (90) days to
exercise any vested stock options.
3. As a material inducement to Intelligroup to enter into this
Agreement, Employee hereby irrevocably and unconditionally releases, acquits,
and forever discharges Intelligroup and its predecessors, successors, parents,
subsidiaries and divisions, assigns, agents, officers, employees, trustees,
directors, shareholder, representatives, attorneys, affiliates, and any other
related entities, and all persons acting by, through, under, or in concert with
any of them (collectively referred to herein as "Releasees"), from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
damages, causes of action, suits, demands, losses, debts, attorneys' fees and
expenses of any nature whatsoever, known or unknown ("Claim" or "Claims") which
Employee has or claims to have against any or all of the Releasees. This General
Release of Claims shall include, without limitation, all Claims based upon
actions or omissions (or alleged actions or omissions) that have occurred up to
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and including the Effective Date of this Agreement, and all Claims relating to
Employee's employment and separation from employment with Intelligroup,
including, without limitation, all Claims of discrimination under the common law
or any federal or state statute (including, without limitation, the Age
Discrimination in Employment Act, as amended, and Older Workers Benefit
Protection Act, Title VII of the Civil Rights Act of 1964, the National Labor
Relations Act, the New Jersey Human Rights Act, and the Americans with
Disabilities Act or any other applicable state employment practices laws) and
all other statutory, common law, or other claims of any nature whatsoever, to
the extent permitted by law. With respect to the Claims Employee is waiving
herein, Employee is waiving his or her right to receive money or any other
relief in any action instituted on his or her behalf by any other person, entity
or government agency. Employee further agrees that if any agency or court
assumes jurisdiction over any complaint or charge on his or her behalf against
any of the Releasees, he or she will request the immediate dismissal of the
matter.
4. Employee represents and warrants that he or she has not filed any
cause of action, claim, charge or other action or proceeding against
Intelligroup or any Releasees, and consistent with paragraph 3, above, that he
or she will not file or assert any cause of action, claim, charge or other
action or proceeding against Intelligroup or any Releasees.
5. Employee and the Company agree to keep the existence and terms of
this Agreement and the existence and terms of the negotiations leading up to
this Agreement completely confidential and shall not disclose these matters to
anyone, in words or in substance. Notwithstanding the foregoing, either party
may disclose such matters:
a. To their immediate family members, executive team, board of
directors, attorneys, accountants, and/or financial/tax
advisors, provided that the disclosing party shall first
obtain any such person's agreement to keep all such matters
completely confidential and not to disclose any such matters
to anyone;
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b. To the extent required by law, any government taxing authority
or to the extent necessary to enforce the disclosing party's
rights under this Agreement, provided that if either party
anticipates making disclosure pursuant to this subparagraph,
he or it shall inform the other party of his or its
anticipated disclosure and the reasons therefore no fewer than
ten (10) days in advance of such disclosure. The parties
understand that Intelligroup may be required to disclose this
Agreement publicly as required by securities laws and
regulations.
c. Nothing herein shall limit the rights of any government agency
or either party's right of access to any government agency.
6. Employee agrees that he or she will not refer negatively to his or
her association with or make disparaging statements in oral, printed, electronic
or any other form about Intelligroup, its products and services or its past or
present directors, officers, employees, representatives or any other Releasee
described in paragraph 3, above. Intelligroup agrees that it will not refer
negatively to its association with or make disparaging remarks in oral, printed,
electronic or any other form about Employee.
7. Each party acknowledges that any breach of the provisions of
paragraphs 5 and/or 6 above would cause the non-breaching party to incur
substantial and irreparable harm. Accordingly, in addition to provable damages,
the non-breaching party shall be entitled to preliminary and permanent
injunctive relief prohibiting any conduct that violates paragraphs 5 and/or 6 of
this Agreement.
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8. At Employee's request, Intelligroup will provide a mutually agreed
upon reference. Such reference will be provided by a mutually agreed upon
person.
9. Employee warrants and represents that he or she has returned to
Intelligroup: (a) all originals and copies of all proprietary or confidential
information and trade secrets of Intelligroup; (b) all originals and copies of
Intelligroup files, whether in printed or electronic format; (c) all
identification cards, keys, or other means of access to Intelligroup; and (d)
any other property of Intelligroup in his or her possession, custody or control.
10. Employee agrees that he or she will cooperate with and assist
Intelligroup in the future in the event that Intelligroup is presented with
legal issues as to which he or she has relevant information and knowledge. In
the event the Employee is contacted regarding any such matter, the Employee
shall promptly contact the Company. The parties acknowledge that any and all
indemnification obligations that Intelligroup has in relation to the Employee
shall survive and continue to the extent provided for by Intelligroup's bylaws.
11. Employee acknowledges that he or she has been given up to
forty-five (45) days to complete his or her review of this Agreement, sign it
and return it to Intelligroup by certified mail, return receipt requested at the
following address: Intelligroup, Inc., Human Resources, Attn. Xxxxxxx Xxxxxx,
000 Xxxxxxxx, Xxxxxx, XX 00000. Employee also understands that he or she has
fifteen (15) days following his or her execution of this Agreement to revoke
this Agreement (the "Revocation Period"). To be effective, any revocation of the
Agreement by Employee must be in writing and received by Intelligroup prior to
the expiration of the Revocation Period, such notice shall be sent to
Intelligroup by certified mail, return receipt requested at the following
address: Intelligroup, Inc., Human Resources, Attn. Xxxxxxx Xxxxxx, 000
Xxxxxxxx, Xxxxxx, XX 00000. The Effective Date of this Agreement shall be the
date immediately following expiration of the Revocation Period.
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12. This Agreement shall be binding upon Employee, his or her heirs,
administrators, representatives, executors, successors, and assigns, and shall
likewise be binding upon Intelligroup, its representatives, successors, and
assigns, and shall inure to the benefit of Employee, Intelligroup and to their
respective heirs, administrators, representatives, executors, successors, and
assigns.
13. This Agreement constitutes a single, integrated contract expressing
the entire agreement between the parties and terminates and supersedes all other
agreements or arrangements between Employee and Intelligroup pertaining to
Employee's separation of employment from Intelligroup and the release of claims
as set forth herein. With the exception of the foregoing, all other agreements
between Employee and Intelligroup shall remain in full force and effect
including, without limitation, the Employee Agreement Regarding Inventions,
Confidentiality and Non-Competition which shall survive the separation of
employment from Intelligroup, consistent with its terms. This Agreement may be
modified only by a writing signed by both parties. Notwithstanding the
foregoing, in the event Employee obtains employment with a potential competitor,
Employee may request a determination by Intelligroup as to whether or not
Intelligroup considers said association to be in breach of the Employee
Agreement Regarding Inventions, Confidentiality and Non-Competition.
Intelligroup shall respond to such request in a timely manner. Intelligroup
further agrees to not unreasonably withhold its consent. In addition, the
parties agree that the terms of the noncompete contained in Section 9
(Competitive Activities) of the Employee Agreement shall be reduced to six (6)
months.
14. The parties represent and acknowledge that in executing this
Agreement they do not rely and have not relied upon any promise, inducement,
representation or statement, whether oral or in writing, made by the other or by
the other's agents, representatives, or attorneys with regard to the subject
matter, basis or effect of this Agreement, except as expressly set forth in this
Agreement.
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15. This Agreement is made and entered into in the State of New Jersey,
and shall in all respects be interpreted, enforced, and governed under the laws
of New Jersey as a sealed instrument. Employee and Intelligroup agree that any
disputes or claims arising under this Agreement shall be resolved exclusively in
the courts residing in the State of New Jersey and each agree to submit to the
personal jurisdiction of such courts for such purposes.
16. Should any portion, term or provision of this Agreement be declared
or determined by any court to be illegal, invalid or unenforceable, the validity
of the remaining portions, terms and provisions shall not be affected thereby,
and the illegal, invalid or enforceable portion, term or provision shall be
deemed stricken from this Agreement.
17. The parties agree that the failure of a party at any time to
require performance of any provision of this Agreement shall not affect,
diminish, obviate or void in any way any party's full right or ability to
require performance of the same, or any other provisions of this Agreement, at
any time thereafter.
18. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
19. This Agreement may be terminated at any time by Intelligroup in the
event of a material breach of this or any other agreement entered into by
Employee and Intelligroup, or upon any violation by the Employee of any
Intelligroup policy. Upon such termination, all benefits provided hereunder and
any and all rights or claims thereto shall be forfeited in their entirety by the
Employee.
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20. Intelligroup denies that it is responsible or legally obligated to
Employee in any manner notwithstanding the release of the claims set forth
above.
21. THIS AGREEMENT RESTRICTS OR RELEASES IMPORTANT RIGHTS. EMPLOYEE IS
VOLUNTARILY RELEASING EMPLOYEE'S CLAIMS AS SET FORTH ABOVE. EMPLOYEE REPRESENTS
AND ACKNOWLEDGES THAT HE OR SHE HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN
ATTORNEY, THAT HE OR SHE HAS BEEN REPRESENTED BY COUNSEL OF HIS OR HER CHOICE IN
THE NEGOTIATION OF THIS AGREEMENT, THAT HE OR SHE HAS CONSULTED WITH HIS OR HER
COUNSEL BEFORE EXECUTING THIS AGREEMENT, THAT HE OR SHE HAS CAREFULLY READ AND
FULLY UNDERSTANDS ALL OF THE PROVISIONS OF THIS AGREEMENT, THAT HE OR SHE HAS
HAD ADEQUATE TIME AND OPPORTUNITY TO CONSIDER THIS AGREEMENT, AND THAT HE OR SHE
IS VOLUNTARILY ENTERING INTO THIS AGREEMENT.
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WHEREFORE, Employee and Intelligroup have read this Agreement, have
carefully considered its provisions and attest that they are fully competent to
execute this Agreement and that they fully understand and knowingly accept its
terms in their entirety and without reservation.
Employee - XXXXXXX XXXXX Intelligroup, Inc.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxx Title: General Counsel & Secretary
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Date: Dec 10, 2004 Date: 10 Dec 2004
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/s/ Illegible
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Witness No. 1
Date: 12/10/04
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