Exhibit 10.29
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of December 31, 2001, by and between
eJiva, Inc., a Pennsylvania corporation ("eJiva"), and Xxxxxxxxxx Xxxxxxxx (the
"Employee") and joined in by iGate Capital Corporation, a Pennsylvania
Corporation ("iGate") for purposes of the guarantee set forth on the signature
page hereto.
WHEREAS, on or about the date hereof Innovative Resource Group, Inc.
("IRG") is merging with and into eJiva (the "Transaction"); and
WHEREAS, the Employee is party to an employment agreement dated as of March
1, 2000 by and between IRG and Employee (the "Prior Employment Agreement"); and
WHEREAS, as a condition to the Transaction, eJiva desires to employ the
Employee and the Employee desires to be employed by eJiva on the terms and
conditions set forth herein, as an at-will employee whose employment may be
terminated by either party with or without reason or cause and without any
liability for such termination (subject to the payment of severance (if any), as
provided herein); and
WHEREAS, the Employee acknowledges that in the course of his employment to
eJiva, the Employee has in the past (with regard to IRG) and will in the future
(with regard to eJiva) become acquainted with trade secrets and confidential
information of eJiva and its Affiliates (as defined herein), and that in order
to protect such confidential information and the legitimate interests of eJiva
and its Affiliates, and as a condition precedent to the Employee's continued
employment, the Employee shall execute and deliver this Agreement in exchange
for new and valuable consideration.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. DEFINITIONS.
As used herein:
(a) "Affiliate" shall mean any entity directly or indirectly
controlling, controlled by or under common control with eJiva, including, but
not limited to, iGate, as well as its operating divisions and subsidiaries.
eJiva and its Affiliates shall sometimes herein be referred to as the "iGate
Group".
(b) "Cause" shall mean the occurrence of any one of the following, as
determined by the eJiva Board (as defined herein: (i) indictment of the Employee
for a felony, (ii) acts by the Employee of moral turpitude, fraud or willful
dishonesty that are detrimental to eJiva or its Affiliates, (iii) acts or
omissions by the Employee which cause actual material harm to the business of
eJiva, (iv) refusal or failure by the Employee to faithfully and substantially
carry out or
obey the reasonable and lawful written directives or orders of
eJiva's Board of Directors (the "eJiva Board") for any reason other than due to
a Short Term Disability (as defined below) or (v) gross negligence by the
Employee in the performance of, or willful disregard by the Employee of, his
employment obligations; provided, however, that with respect to items (iii),
(iv) or (v) above, that eJiva provide reasonable written notice to the Employee
of the circumstances that, absent cure, would constitute Cause, and give the
Employee a reasonable opportunity, but in no event less than thirty (30) days,
to correct his actions or failure to act.
(c) "Confidential Information" shall include, but is not necessarily
limited to, any information which may include, in whole or part, information
concerning the iGate Group's accounts, sales, sales volume, sales methods, sales
proposals, customers and prospective customers, prospect lists, identity of
purchasing personnel in the employ of customers and prospective customers,
amount or kind of customer's purchases from the iGate Group, the iGate Group's
source of supply of products and/or personnel, sources of consultants, iGate
Group know-how, business methods, business plans, manuals, formulae, products,
processes, methods, machines, compositions, ideas, improvements, inventions,
research, computer programs, system documentation and software products used in
the business of the iGate Group, and any other trade secret or proprietary
information belonging to the iGate Group or relating to the iGate Group's
affairs that is not available to the public without a breach of confidence;
provided that the foregoing confidentiality provision shall not, however, be
applied to any information that: (i) is conveyed by eJiva to a third party
without confidentiality restrictions; or (ii) was publicly known and made
generally available in the public domain without any action or failure to act on
the part of the Employee.
(d) "Customer(s)" shall mean any individual, corporation,
partnership, business or other entity (each a "Person") who is, at any time
while the Employee is employed by eJiva or (i) a customer of eJiva, or (ii) any
Person with whom contact has been made during the last six (6) months for the
purpose of persuading such Person to become a customer of eJiva, provided, that
the Employee knew or reasonably should have known such contact was made;.
(e) "Good Reason". The Employee may terminate this Agreement for
"Good Reason" upon the occurrence of any of the following events: (a) the
Employee is demoted by means of a material reduction in duties, responsibilities
or position; (b) the Employee's Base Salary (as defined herein) is materially
decreased; (c) relocation of the Employee's principal place of work more than 50
miles from Pittsburgh, Pennsylvania; (d) eJiva materially breaches this
Agreement and fails to cure such breach within thirty (30) days of its receipt
of written notice of the breach; or (e) Employee is no longer the CEO of eJiva
or any such entity that may result from a merger or sale of eJiva.
(f) "Short Term Disability" shall mean incapacity due to physical or
mental illness or injury resulting in the Employee being absent from full-time
duties hereunder for no more than ninety (90) consecutive calendar days, or for
no more than one hundred twenty (120) calendar days during any 12 month period.
(g) "Similar Business" shall mean any individual, corporation,
partnership, business or other entity which provides any products or services
that directly compete with products or services offered by eJiva, including but
not limited to, SAP, Peoplesoft, Oracle,
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Genysys, Siebel, or Data Warehousing solutions that were sold, provided or
offered by eJiva at any time and from time to time during the last two (2) years
prior to the Employee's termination of employment. Notwithstanding the
foregoing, a "Similar Business" shall not include a corporation that derives at
least $500 million of its revenues from the sale of information technology
services.
2. DUTIES.
The Employee will be employed as an at-will employee in the position set
forth on Schedule A hereof. The Employee agrees to be responsible for such
additional duties as are commensurate with and required by such position and any
other duties as may be reasonably assigned to the Employee by the eJiva Board
from time to time. The Employee further agrees to perform his duties in a
diligent, trustworthy, loyal, businesslike, productive, and efficient manner and
to use his best efforts to advance the business and goodwill of the iGate Group.
The Employee further agrees to devote all of his business time, skill, energy
and attention exclusively to the business of eJiva and to comply with all
reasonable rules, regulations and procedures of eJiva, and agrees to spend as
much as one day per week at the offices of the IRG division of eJiva supervising
and assisting the business and operations of the IRG division. Subject to the
provisions of Section 6 of this Agreement, the Employee may serve as a director
of other companies with the consent of the eJiva Board, which consent shall not
be unreasonably withheld. As of the date hereof, the Employee does not serve as
a director on the board of any company. While employed by eJiva, the Employee
will not engage in any other business for his own account which, in the
reasonable opinion of eJiva, may interfere with the Employee's ability to
fulfill his employment duties under this Agreement, or accept any employment
from any other business entity, or render any services, give any advice to the
extent it interferes with the business of eJiva, or serve in a consulting
capacity, whether gratuitously or otherwise, to or for any other person, firm or
corporation, other than as a volunteer for charitable organizations, without the
prior written approval of the eJiva Board, which shall not be unreasonably
withheld.
3. COMPENSATION.
(a) The Employee's compensation, including annual base salary (the
"Base Salary") and performance bonus will be as set forth on Schedule A hereto.
The payment of Base Salary hereunder shall be subject to all applicable
withholding and payroll taxes and such other deductions as may be required by
the Employee's participation in eJiva's employee benefit plans (the
"Withholding"), and shall be paid in regular intervals in accordance with
eJiva's payroll practices from time to time in effect, but not less frequently
than monthly.
(b) If the Employee's employment is terminated by eJiva without Cause
or by the Employee with Good Reason, then as severance eJiva shall continue to
pay the Employee his Base Salary (the "Severance") then in effect until
expiration of the Restrictions (as defined below in Section 6); Such Severance
will be payable in the form of Base Salary continuation (subject to Withholding)
in accordance with eJiva's then-existing payroll practices. Receipt of Severance
by Employee is contingent upon Employee executing a Release with eJiva in a form
substantially similar to that attached as Schedule "B"
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(c) The Employee shall not be entitled to the payment of any
Severance if his employment is terminated with Cause at any time or if he
terminates his employment with eJiva without Good Reason.
(d) The Employee shall not be required to mitigate the amount of any
Severance payable under this Agreement by seeking other employment or otherwise,
nor shall the amount of any Severance be reduced by any compensation earned by
the Employee as the result of employment by another employer, or otherwise.
(e) In accordance with Section 6 of the Agreement and Plan of Merger
entered into contemporaneously with this Agreement, eJiva shall grant the
Employee, no later than July 1, 2002, 1,280,068 shares of restricted common
stock of eJiva, par value $.01, at a price per share equal to the fair market
price as determined by a nationally recognized appraiser or investment banking
firm selected by iGate (the "Restricted Shares"). The Restricted Shares shall be
subject to the forfeiture restrictions set forth on Schedule C hereto. In
connection with the grant of Restricted Shares, the Employee will enter into the
Restricted Stock Agreement attached hereto as Exhibit A. The Employee may pay
for the Restricted Shares using a full recourse promissory note bearing interest
at the "applicable federal rate," as defined in the Internal Revenue Code.
(f) If the Employee remains employed by eJiva as of March 1, 2003,
the Employee shall be entitled to receive an incentive option package, as
determined by the Chief Executive Officer of eJiva and the eJiva Board.
4. BENEFITS.
(a) The Employee will receive the standard eJiva benefits provided by
eJiva from time to time and which may be modified at any time by the eJiva
Board.
(b) During the Continuation Period (as defined below), the Employee
(and where applicable, the Employee's dependents) shall be entitled to continue
participation in the group term life insurance plan and in the health and dental
care plan for employees maintained by eJiva, if any, as if the Employee were
still an employee of eJiva. The coverage provided herein shall run concurrently
with and shall be offset against any continuation coverage under Part 6 of Title
I of the Employee Retirement Security Act of 1974, as amended. Where applicable,
the Employee's compensation for purposes of such plans shall be deemed to be
equal to the Employee's compensation (as defined in such plans) in effect on the
date of the employment termination. To the extent that eJiva finds it
undesirable to cover the Employee under the group life insurance and health
plans of eJiva, eJiva shall provide the Employee (at eJiva's expense) with the
same level of coverage during the Continuation Period under individual policies.
As used herein, "Continuation Period" shall mean the period beginning on the
Date of Termination and ending on the earlier of (1) 24 months after the
termination of the Employee's employment; or (2) the date of the Employee's
death; provided, however, that there shall be no Continuation Period, and the
provisions of this Section 4(b) shall not apply, in the event that the Employee
terminates his employment without Good Reason or is terminated for Cause.
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(c) Upon termination of this Agreement for any reason, the Employee
shall be entitled to receive all compensation earned and unpaid, and all
benefits and reimbursements due through the date of the termination of his
employment.
5. POLICIES AND PRACTICES.
The Employee agrees to abide by all reasonable rules, regulations and
instruments established by eJiva.
6. AGREEMENT NOT TO COMPETE.
(a) In order to protect the business interests and goodwill of eJiva
and the iGate Group with respect to Customers and accounts, and to protect eJiva
and the iGate Group's Confidential Information, the Employee hereby covenants
and agrees that while he is employed by eJiva (or any of its Affiliates), and
for six (6) months after the termination of the Employee's employment for any
reason, he will not (each of the following shall constitute a "Restriction" and
collectively, the "Restrictions"):
(i) directly or indirectly contact any Customer for the purpose
of soliciting such Customer to purchase, lease or license a
product or service including but not limited to SAP, Peoplesoft,
Oracle, Genysys, Siebel, or Data Warehousing that was offered by
eJiva over the two (2) year period prior to termination;
(ii) engage as a consultant, independent contractor, agent,
employee, employer, officer, partner, director or otherwise,
alone or in association with any other person, corporation or
other entity, in any Similar Business operating in the United
States of America or any other country where eJiva has conducted
business within the two (2) year period prior to the termination
of the Employee's employment, provided, that the Employee shall
not be prohibited by this Section 6 from being employed by, or a
consultant to, a division of a corporation with multiple
divisions, so long as the Employee is not so engaged with any
division engaged in a Similar Business;
(iii) directly or indirectly employ, or knowingly permit any
company or business directly or indirectly controlled by the
Employee to employ, any person who is employed by the eJiva at
any time while the Employee is employed by eJiva, or in any
manner to seek to induce any such person to leave his or her
employment with the eJiva; or
(iv) directly or indirectly interfere with or attempt to disrupt
the relationship, contractual or otherwise, between any member of
the eJiva and any of its employees or solicit, induce, or attempt
to induce employees of the eJiva to terminate employment with the
eJiva and become self-employed or employed with others in the
same or similar business or any product line or service provided
by the eJiva.
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(v) Notwithstanding the foregoing, (A) if the Employee's
employment is terminated for any reason other than Cause, the
Restrictions shall not be in effect unless Severance is paid to
the Employee during the six (6) month period after termination of
the Employee's employment, and (B) the Employee shall not be
prohibited from purchasing or owning (1) a minority equity
interest in any other company that is engaged in a Similar
Business, provided, that the Employee has delivered thirty (30)
days prior written notice to the eJiva Board of his intention to
make such investment (such written notice to provide details of
such investment, including the name of the company and the amount
of the equity interest to be acquired), and provided further, the
eJiva Board has not delivered written notice to the Employee
within such thirty (30) day period that it has reasonably
determined not to consent to the Employee making such investment;
and (2) stock in a publicly-held corporation, if the Employee's
holdings do not exceed five percent (5%) of the outstanding
capital stock of such corporation. As of the date hereof, the
Employee does not own an equity interest in any privately-held
company that engages in a Similar Business other than eJiva.
(b) The Employee hereby acknowledges that eJiva is engaged in
business throughout the United States and may conduct business in other
countries and that the marketplace for eJiva's products and services is
worldwide. The Employee further covenants and agrees that the geographic scope,
duration and nature of the restrictions contained in this Agreement are
reasonable and necessary to protect the legitimate business interests of eJiva
because of the nature and scope of eJiva's business.
(c) In the event that a court of competent jurisdiction or
arbitration panel shall determine that one or more of the provisions of this
Section 6 is so broad as to be unenforceable, then such provision shall be
deemed to be reduced in scope or length, as the case may be, to the extent
required to make this Section 6 enforceable. If the Employee violates the
provisions of this Section 6, the periods described therein shall be extended by
that number of days which equals the aggregate of all days during which at any
time any such violations occurred.
7. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION.
The Employee hereby covenants and agrees during the Employee's employment
or any time after the termination of such employment, not to communicate or
divulge to any person, firm or corporation, either directly or indirectly, and
to hold in strict confidence for the benefit of the iGate Group, all
Confidential Information except that the Employee may disclose such Confidential
Information to persons, firms or corporations who need to know such Confidential
Information during the course and within the scope of the Employee's employment.
The Employee will not use any Confidential Information for any purpose or for
his personal benefit other than in the course and within the scope of the
Employee's employment. Notwithstanding all of the foregoing, the Employee shall
be entitled to disclose Confidential Information if required by law or pursuant
to a subpoena or order issued by a court, arbitrator or governmental body,
agency or official, provided that, prior to making any such disclosures, the
Employee shall: (i) promptly
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notify the eJiva Board thereof; (ii) consult with the eJiva Board on the
advisability of taking steps to resist or narrow such requirement; and (iii)
cooperate with the eJiva Board to obtain an order or other assurance that such
information will be accorded confidential treatment.
(a) Work Made for Hire. The Employee recognizes and understands that
his duties at eJiva have included and may continue to include the preparation of
materials, including computer software and other written or graphic materials,
and that any such materials conceived or written by him were done and shall
continue to be done as "work made for hire" as defined and used in the Copyright
Act of 1976, 17 USC 1 et seq. In the event of publication of such materials, the
Employee understands that since the work is a "work made for hire," eJiva will
solely retain and own all rights in all such materials, including the right to
copyright.
(b) Disclosure of Discoveries, Ideas and Inventions. The Employee
represents that he does not have any right, title or interest in, nor has he
made or conceived wholly or in part prior to the commencement of his employment
by eJiva any discovery, idea and/or invention, which is related to or has been
used in the conduct of eJiva's business.
(c) Disclosure of Other Discoveries, Ideas and Inventions/Assignment
of Patents. The Employee shall disclose promptly to eJiva, any and all works,
inventions, discoveries, ideas and/or improvements authored, conceived or made
by the Employee during the period of employment, solely or jointly with others,
which are related to the lines of business, work or investigation of the iGate
Group at the time of such work, inventions, discoveries, ideas and/or
improvements or which result from, or are suggested by, any work which the
Employee may do for or on behalf of the iGate Group, and hereby assigns and
agrees to assign all of his interest therein to eJiva or its nominee. Whenever
requested to do so by eJiva, the Employee shall execute any and all
applications, assignments or other instruments which eJiva shall deem necessary
to apply for and obtain Letters Patent or Copyrights of the United States or any
foreign country or to otherwise protect the interest therein and shall assist
eJiva in every proper way (entirely at eJiva's expense, including reimbursement
to him for all expense and loss of income) to obtain such patents and copyrights
and to enforce them. Such obligations shall continue beyond the termination of
employment with respect to works, inventions, discoveries, ideas and
improvements authored, conceived or made by the Employee during the period of
employment, and shall be binding upon the Employee's assigns, executors,
administrators and other legal representatives. All such works, inventions,
discoveries, ideas and improvements shall remain the sole and exclusive property
of eJiva, whether patentable or not.
8. RETURN OF MATERIALS.
Upon termination of employment with eJiva for any reason, the Employee
shall promptly deliver to eJiva any information or materials of the iGate Group
in any tangible form whatsoever, and all copies of same, including but not
limited to, correspondence, drawings, manuals, computerized information,
letters, notes, notebooks, reports, prospect lists, flow charts, programs,
proposals, and any documents concerning the iGate Group's customers or suppliers
and, without limiting the foregoing, will promptly deliver to eJiva any and all
other documents or materials containing or constituting Confidential
Information.
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9. TERMINATION.
This Agreement may be terminated with or without Cause by either party,
subject to the payment of Severance, if required pursuant to Section 3(b)
hereof, by giving to the other party at least thirty (30) days prior written
notice. Notwithstanding the foregoing, the covenants of Sections 6, 7, 8, 10,
11, 12, 13, 14, 15, 16 and 18 hereof shall survive the termination of this
Agreement for any reason. All payments due as of the date of termination (other
than Severance payments payable by eJiva, if any) shall be paid in full within
thirty (30) days of that date.
10. ENTIRE AGREEMENT.
This Agreement supersedes all prior agreements, written or oral, between
the parties hereto concerning the subject matter hereof including without
limitation the Prior Employment Agreement.
11. CHOICE OF LAW, JURISDICTION AND VENUE.
The parties agree that this Agreement shall be deemed to have been made and
entered into in Pennsylvania and that the law of the Commonwealth of
Pennsylvania shall govern this Agreement, without regard to its conflicts of
laws principles. All disputes arising out of or related to this Agreement or the
transactions contemplated hereby shall be adjudicated exclusively through final
and binding arbitration before a panel of three arbitrators pursuant to the
Commercial Arbitration Rules of the American Arbitration Association.
Arbitration shall take place in Allegheny County, Pennsylvania. At the request
of any party, the arbitrators, attorneys, parties to the arbitration, witnesses,
experts, court reporters, and other persons present at the arbitration shall
agree in writing to maintain the strict confidentiality of the arbitration
proceedings and awards. The award of the arbitrators shall be enforceable under
any applicable law. The arbitrators may award damages and/or injunctive relief,
but in no event shall the arbitrators have the authority to award punitive or
exemplary damages. Notwithstanding the above, a party may apply to a court of
competent jurisdiction for relief in the form of a temporary restraining order
or preliminary injunction pending final determination of a claim through
arbitration in accordance with this paragraph. If proper notice has been given,
the arbitrators will have full power to proceed to take evidence or to perform
any other acts necessary to arbitrate the matter in the absence of any party who
fails to appear.
12. ACKNOWLEDGMENTS OF THE EMPLOYEE.
The Employee hereby acknowledges and agrees that:
(a) this Agreement (including, without limitation, the Restrictions)
is necessary for the protection of the legitimate business interests of the
iGate Group;
(b) the restrictions contained in this Agreement may be enforced by
arbitration in accordance with Section 11, above;
(c) the execution and delivery of this Agreement is a mandatory
condition precedent to the Employee's receipt of the consideration provided
herein;
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(d) the Employee has no intention of competing with the iGate Group
within the limitations set forth above;
(e) the Employee has received adequate and valuable consideration for
entering into this Agreement;
(f) the Employee's covenants shall be construed as independent of any
other provision in this Agreement and the existence of any claim or cause of
action the Employee may have against the iGate Group, whether predicated on this
Agreement or not, shall not constitute a defense to the enforcement by the iGate
Group of these covenants;
(g) this Agreement does not and will not prevent the Employee from
earning a livelihood after termination of employment; and
(h) the Employee further acknowledges that his education and
experience enables the Employee to work for different types of employers, so
that it will not be necessary for the Employee to violate the provisions of the
covenant not to compete contained in Section 6 of this Agreement in order to
remain economically viable.
13. FULL UNDERSTANDING.
The Employee acknowledges that the Employee has carefully read and fully
understands all of the provisions of this Agreement and that the Employee, in
consideration for the compensation set forth herein, is voluntarily entering
into this Agreement.
14. EQUITABLE RELIEF, FEES AND EXPENSES.
The Employee stipulates and agrees that any breach of Sections 6 or 7 of
this Agreement by him will result in immediate and irreparable harm to the iGate
Group, the amount of which will be extremely difficult to ascertain, and that
the iGate Group could not be reasonably or adequately compensated by damages in
an action at law. For these reasons, the iGate Group shall have the right, after
a proven breach by Employee of such sections of this Agreement, without
objection from the Employee, to obtain such preliminary, temporary or permanent
injunctions or restraining orders or decrees as may be necessary to protect the
iGate Group against, or on account of, any breach by the Employee of the
provisions of this Agreement ("Equitable Relief"). Such right to Equitable
Relief is in addition to all other legal remedies the iGate Group may have to
protect its rights ("Legal Relief"). The Employee further covenants and agrees
that any arbitration award or court order obtained by the iGate Group which
enforces the iGate Group's rights under this Agreement may be transferred,
without objection or opposition by the Employee, to any court of law or other
appropriate law enforcement body located in any other country in the world where
the iGate Group does business, and that said court or body will give full force
and effect to said order and or judgment. In the event of litigation or
arbitration pertaining to any controversy, claim or dispute between the parties
hereto arising out of or relating to this Agreement or the breach of any
provision thereof, the prevailing party shall be entitled to recover from the
non-prevailing party reasonable expenses, attorneys' fees and costs.
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15. AMENDMENTS.
No supplement, modification, amendment or waiver of the terms of this
Agreement shall be binding on the parties hereto unless executed in writing by
the parties to be bound thereby. No waiver of any of the provisions of this
Agreement shall be deemed to or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided. Any failure to insist
upon strict compliance with any of the terms and conditions of this Agreement
shall not be deemed a waiver of any such terms or conditions.
16. SUCCESSORS IN INTEREST.
This Agreement shall be binding upon and shall inure to the benefit of any
successor or assign of eJiva. eJiva shall have the right to assign this
Agreement in connection with a merger involving eJiva or a sale or transfer of
substantially all of the business and assets of eJiva, and the Employee agrees
to be obligated by this Agreement to any successor, assign or surviving entity.
The Employee may not assign his obligations hereunder, which shall be binding
upon him, his heirs, executors and legal representatives.
17. HEADINGS.
The headings used in this Agreement are for convenience only and are not to
be considered in construing or interpreting this Agreement.
18. SEVERABILITY.
If any term or provision of this Agreement is determined by a court or
arbitration panel to be illegal, unenforceable or invalid, such term or
provision shall be stricken from this Agreement, and such provision shall not
affect the legality or enforceability of the remainder of this Agreement.
19. INDEMNIFICATION.
(a) eJiva shall indemnify and hold harmless to the full extent not
prohibited by law, as the same exists or may hereinafter be amended, interpreted
or implemented (but, in the case of any amendment, only to the extent that such
amendment permits eJiva to provide broader indemnification rights than eJiva is
permitted to provide prior to such amendment), the Employee or his estate if
made a party to, or threatened to be threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative or investigative
and whether or not by or in the right of eJiva or otherwise (hereinafter, a
"Proceeding"), by reason of the fact that he, or a person of whom he is the
heir, executor, or administrator, is after the date of this Agreement a director
or officer of eJiva or is after the date of this Agreement serving at the
request of eJiva as a director, officer or trustee of another company or of a
partnership, joint venture, trust or other enterprise (including, without
limitation, service with respect to employee benefit plans), or where the basis
of such proceeding is any alleged action or failure to take any action by the
Employee after the date of this Agreement, while acting in an official capacity
as a director or officer of eJiva or in any other capacity on behalf of eJiva,
against all expenses, liability and loss, including but not
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limited to attorneys' fees, judgments, fines, excise taxes or penalties and
amounts paid or to be paid in settlement whether with or without court approval,
actually incurred or paid by the Employee in connection therewith.
(b) Notwithstanding the foregoing, and except as provided in Section
19(e) below, eJiva shall indemnify the Employee seeking indemnification in
connection with a proceeding (or part thereof) initiated by the Employee only if
such proceeding (or part thereof) was authorized by the eJiva Board after the
date of this Agreement.
(c) Subject to the limitation set forth above concerning proceedings
initiated by the Employee, the right to indemnification conferred in this
Section 19 shall be a contract right and shall include the right to be paid by
eJiva the expenses incurred in defending any such proceeding (or part thereof)
or in enforcing his rights under this Section 19 in advance of the final
disposition thereof promptly after receipt by eJiva of a request therefor
stating in reasonable detail the expenses incurred; provided, however, that to
the extent required by law, the payment of such expenses incurred by the
Employee in advance of the final disposition of a proceeding shall be made only
upon receipt of an undertaking, by or on behalf of the Employee, to repay all
amounts so advanced if and to the extent it shall ultimately be determined by a
court that he is not entitled to be indemnified by eJiva under this Section 19,
or in the case of a criminal action, the majority of the eJiva Board so
determines that he is not entitled to be indemnified by eJiva, or otherwise.
(d) The right to indemnification and advancement of expenses provided
herein shall continue as to the Employee after he has ceased to be employed by
eJiva or to serve in any of the other capacities described herein, and shall
inure to the benefit of his heirs, executors and administrators.
(e) Any dispute related to the right to indemnification, contribution
or advancement of expenses as provided under this Section 19, that eJiva has
undertaken to submit to a court for adjudication, shall be decided only by
arbitration in the metropolitan area in which the principal executive offices of
eJiva are located at the time, in accordance with the commercial arbitration
rules, then in effect, of the American Arbitration Association, before a panel
of three (3) arbitrators, one of whom shall be selected by eJiva, the second of
whom shall be selected by the Employee and the third of whom shall be selected
by the other two (2) arbitrators. In the absence of the American Arbitration
Association, or if for any reason arbitration under the arbitration rules of the
American Arbitration Association cannot be initiated, or if one of the parties
fails or refuses to select an arbitrator of if the arbitrators selected by eJiva
and the Employee cannot agree on the selection of the third arbitrator within
thirty (30) days after such time as eJiva and the Employee have each been
notified of the selection of the other's arbitrators, the necessary
arbitrator(s) shall be selected by the presiding judge of the court of general
jurisdiction in such metropolitan area.
(f) eJiva shall reimburse the Employee for the expenses (including
attorney's fees and disbursements) incurred in successfully prosecuting or
defending such arbitration.
(g) Any award entered by the arbitrators shall be final, binding and
non-appealable and judgement may be entered thereon by any party in accordance
with applicable law in any court of competent jurisdiction. The right to
indemnification and the payment of expenses incurred in defending a proceeding
in advance of a final disposition conferred in this Section 19 shall not be
11
deemed exclusive of any other rights to which the Employee may be entitled under
the articles of incorporation, any bylaw, agreement, vote of shareholders, vote
of directors or otherwise, both as to actions in his official capacity and as to
actions in any other capacity while holding that office.
[Remainder of page intentionally left blank]
12
IN WITNESS WHEREOF, the parties have duly executed this Employment
Agreement as of the date first set forth above.
-------------------------------
Xxxxxxxxxx Xxxxxxxx
eJiva, Inc.
BY:
----------------------------
NAME:
--------------------------
TITLE:
-------------------------
GUARANTEE
The undersigned hereby guarantees the payment by eJiva of all sums due
to the Employee pursuant to this Employment Agreement.
iGATE CAPITAL CORPORATION
BY:
----------------------------
NAME:
--------------------------
TITLE:
-------------------------
13
XXXXXXXXXX XXXXXXXX
SCHEDULE A
1. Position: Chief Executive Officer of eJiva, reporting to the eJiva Board
subject to the reasonable directions given to Employee by the eJiva Board. While
employed, the Employee shall always be a senior executive officer of eJiva.
2. Annual Base Salary: $200,000, subject to the appropriate federal, state
and local taxes and withholding. The Employee's Annual Salary shall be reviewed
at least annually by the eJiva Board and shall be increased if the eJiva Board
determines that an increase is appropriate on the basis of the types of factors
it generally takes into account in increasing the salaries of executive officers
of eJiva.
3. Performance Bonus: The Employee shall have the opportunity to earn an
annual bonus of up to $200,000 ("Bonus") determined on a quarterly basis and
paid to the Employee within thirty (30) days after the expiration of each
quarter. The Bonus shall be calculated as follows:
(a) If the Employee achieves 100% of the performance goals to be proposed
by Employee and approved by the eJiva Board ("Performance Goals"), the Employee
will be entitled to receive the Bonus. One half of the Performance Goals will be
based upon the gross revenues and cash flows of eJiva and the remaining amount
of the Performance Goals will be based upon other criteria to be mutually agreed
upon by the Employee and eJiva Board;
(b) If the Employee achieves less than 100% of the Performance Goals, the
Bonus amount shall be adjusted by multiplying the Bonus by the percentage of the
Performance Goals actually achieved. For example, if 90% of the Performance
Goals are achieved, the Employee shall be entitled to $180,000 ($200,000 x 90%).
However, if actual results are less than 50% of the Performance Goals, no Bonus
will be earned or paid; and
(c) Notwithstanding the foregoing, Employee shall be guaranteed the payment
of 100% of his quarterly bonus due from IRG for the quarter ending September 30,
2001.
14
SCHEDULE C
TERMINATION OF
EMPLOYMENT VOLUNTARY TERMINATION FOR TERMINATION FOR TERMINATION FOR
DATE TERMINATION CAUSE GOOD REASON NON-PERFORMANCE
-------------------- --------------------- --------------------- --------------------- --------------------
Before 7/1/02 Forfeit 100% of Forfeit 100% of Forfeit 50% of Forfeit 50% of
Restricted Shares. Restricted Shares. Restricted Shares. Restricted Shares.
All other terms All other terms All other terms All other terms
remain the same. remain the same. remain the same. remain the same.
-------------------- --------------------- --------------------- --------------------- --------------------
7/1/02 - 2/28/03 Forfeit 80% of Forfeit 80% of No Penalties No Penalties.
Restricted Shares. Restricted Shares.
All other terms All other terms
remain the same. remain the same.
-------------------- --------------------- --------------------- --------------------- --------------------
3/1/03 - 2/29/04 Forfeit 25% of Forfeit 25% of No Penalties No Penalties.
Restricted Shares. Restricted Shares.
All other terms All other terms
remain the same. remain the same.
-------------------- --------------------- --------------------- --------------------- --------------------
3/1/04+ No Penalties No Penalties. No Penalties No Penalties.
-------------------- --------------------- --------------------- --------------------- --------------------
15
EXHIBIT A
RESTRICTED STOCK AGREEMENT
[ATTACHED]
16
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is entered into as of the
31rst day of December, 2001, by and between eJiva, Inc. ("eJiva"), and
Xxxxxxxxxx Xxxxxxxx ("Employee").
RECITALS:
WHEREAS, eJiva and Employee are parties to an Employment Agreement dated as
of December 31,, 2001, (the "eJiva Employment Agreement");
WHEREAS, eJiva's Board of Directors ("Board") has authorized the grant to
the Employee of 1,280,068 shares (the "Restricted Shares") of eJiva's common
stock, par value $.01 per share, at a purchase price per Restricted Share to be
set following a valuation of eJiva and subject to forfeiture and the other
restrictions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and intending to be legally bound, Employee and eJiva agree as follows:
1. Restrictions.
Employee shall have all rights and privileges of a stockholder of
eJiva as to the Restricted Shares, except that the following restrictions shall
apply:
(a) None of the Restricted Shares may be exercised, sold,
transferred, assigned, pledged or otherwise encumbered or disposed of
during the "Restriction Period" (as defined below) nor may the
Employee vote the Restricted Shares or receive dividends with respect
to the Restricted Shares.
(b) The Restricted Shares are subject to forfeiture during the
Restriction Period in accordance with Section 3 of this Agreement.
(c) As security for the faithful performance of this Agreement,
Employee agrees that the certificate representing the Restricted
Shares shall be delivered to the Secretary of eJiva to be held in
custody by the Secretary of eJiva until the end of the applicable
Restriction Period as set forth in Section 2(b) and such Restricted
Shares are exercised. Such certificate shall be subject to such
stop-transfer orders and other restrictions as the Board may deem
advisable, and the Board may cause a legend or legends to be placed on
such certificate or certificates to make appropriate reference to such
restrictions. Employee hereby irrevocably appoints the Secretary of
eJiva (or such Secretary's designee) as escrow agent for the
Restricted Shares and as Employee's attorney-in-fact to sell, assign
and transfer to the eJiva, all of the Restricted Shares that are
subject to forfeiture.
2. Term of Restrictions.
(a) Restriction Period. Subject to the provisions of Section 3
hereof, the Restricted Shares shall vest and cease to be subject to
the restrictions set forth in Section 1 in accordance with the
following schedule (the period during which the restrictions set forth
in Section 1 apply to the Restricted Shares is referred to herein as
the "Restriction Period"):
(i) the restrictions on 256,014 Restricted Shares shall
lapse on July 1, 2002; the restrictions on 704,037
Restricted Shares shall lapse on March 1, 2003; the
restrictions on the remaining 320,017 Restricted Shares
shall lapse on March 1, 2004.
(b) Lapse of Restrictions. Upon the lapse of any restrictions as to
all or a portion of the Restricted Shares pursuant to Section
2(a), (i) such Restricted Shares shall no longer be subject to
forfeiture and shall no longer be "Restricted Shares" and (ii)
the Secretary of eJiva shall deliver or cause to be delivered to
Employee a certificate or certificates representing the shares of
Common Stock that are no longer subject to forfeiture (such
shares together with the Restricted Shares shall hereinafter be
referred to as, the "Shares").
3. Forfeiture of Restricted Shares. If Employee's employment by
eJiva is terminated prior to March 1, 2004, then a percentage, if any, of
Restricted Shares held by Employee shall automatically be forfeited and shall be
deemed to have been transferred to eJiva, such percentage to be determined by
reference to Schedule A hereto..
4. Legend. The share certificate evidencing the Shares shall be
endorsed with the following legend (in addition to any legend required under
applicable securities laws):
THE TRANSFERABILITY OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE TERMS AND CONDITIONS OF A RESTRICTED SHARES AGREEMENT
ENTERED INTO BY AND BETWEEN EJIVA, INC. AND THE HOLDER OF THIS
CERTIFICATE. COPIES OF SUCH AGREEMENT ARE ON FILE WITH THE SECRETARY
IN THE OFFICES OF EJIVA, INC.
5. Proxy; Attorney-in-Fact. Employee hereby grants to the Chief
Executive Officer of eJiva, with full power of substitution and resubstitution,
an irrevocable proxy to vote all Restricted Shares, at all meetings of the
stockholders of eJiva held or taken after the date of this Agreement, or to
execute any written consent in lieu thereof, and hereby irrevocably appoints the
Chief Executive Officer of eJiva as Employee's attorney-in-fact with authority
to sign any documents with respect to any such vote or any actions by written
consent of the stockholders taken after the date of this Agreement. This proxy
shall be deemed to be coupled with an interest and shall be irrevocable;
provided, however, that this proxy shall terminate (i) with respect to any
Restricted Shares which are no longer subject to the restrictions set forth in
Section 1, and (ii) upon the first underwritten public offering of eJiva's
common stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended ("IPO").
6. Withholding. eJiva may withhold from any cash amount payable
hereunder or any other cash payments due from eJiva to Employee all taxes,
including social security taxes, which eJiva is required or otherwise authorized
to withhold with respect to the Shares.
7. Adjustments to Number of Shares. Any shares issued to Employee
with respect to the Restricted Shares in the event of any change in the number
of outstanding shares of Common Stock through the declaration of a stock
dividend or a stock split or combination of shares or any other similar
capitalization change shall be deemed to be Restricted Shares subject to all the
terms set forth in this Agreement.
2
8. No Right to Continued Employment; Effect on Benefit Plans. This
Agreement shall not confer upon Employee any right with respect to the
continuance of Employee's employment, nor shall it interfere in any way with the
right of eJiva to terminate Employee's employment at any time. Income realized
by Employee pursuant to this Agreement shall not be included in Employee's
earnings for the purpose of any benefit plan of eJiva in which Employee may be
enrolled or for which Employee may become eligible unless otherwise specifically
provided for in such plan.
9. Market Standoff Agreement. In connection with an IPO and upon
request of eJiva or the underwriters managing such IPO, Employee agrees not to
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Shares (other than those included in the registration)
without the prior written consent of eJiva or such underwriters, as the case may
be, for such period of time (not to exceed 180 days) from the effective date of
such registration as may be requested by eJiva or such managing underwriters and
to execute an agreement reflecting the foregoing as may be requested by the
underwriters at the time of an IPO.
10. Employee's Representations. In connection with the issuance of
the Restricted Shares, Employee represents to eJiva the following:
(a) Employee understands that the Shares have not been registered
under the Securities Act of 1933, as amended, by reason of a
specific exemption therefrom, which exemption depends upon, among
other things, the bona fide nature of Employee's investment
intent as expressed herein.
(b) Employee understands that the Shares are "restricted securities"
under applicable U.S. federal and state securities laws and that,
pursuant to these laws, Employee must hold the Shares
indefinitely unless they are registered with the Securities and
Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements
is available. Employee acknowledges that eJiva has no obligation
to register or qualify the Shares for resale. Employee further
acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner
of sale, the holding period for the Shares, and requirements
relating to eJiva which are outside of Employee's control, and
which eJiva is under no obligation to and may not be able to
satisfy.
(c) Employee hereby acknowledges that Employee has been informed
that, with respect to the issuance of the Shares, an election may
be filed by Employee with the Internal Revenue Service, within
thirty days of the issuance of such Shares, electing pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as amended
(the "Code"), to be taxed currently on the fair market value of
such Shares on the date of purchase. Employee acknowledges that
Employee has sought the advice of Employee's own tax advisors in
connection with the issuance of the Shares and the advisability
of filing of such Election under Section 83(b) of the Code.
EMPLOYEE ACKNOWLEDGES THAT IT IS EMPLOYEE'S SOLE RESPONSIBILITY
TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) AND THAT EJIVA
HAS NO OBLIGATIONS WITH RESPECT THERETO.
(d) Employee has reviewed with Employee's own tax advisors the
federal, state, local and foreign tax consequences of this
Agreement and the transactions contemplated hereby. Employee is
relying solely on such advisors and not on any statements or
representations of eJiva or any of its agents. Employee
understands that Employee (and not eJiva) shall
3
be responsible for Employee's own tax liability that may arise as
a result of this Agreement and the transactions contemplated
hereby.
11. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the Commonwealth of
Pennsylvania other than any laws that would cause the substantive
laws of another jurisdiction to apply.
(b) Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of, and be binding upon, the successors,
permitted assigns, heirs, executors and administrators of the
parties hereto.
(c) Entire Agreement; Amendment. This Agreement contains the entire
understanding between the parties hereto with respect to the
subject matter of this Agreement and supersedes all prior and
contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, with respect to
the subject matter of this Agreement. This Agreement may not be
amended or modified without the written consent of eJiva and
Employee.
(d) Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which when so executed and
delivered shall be taken to be an original and all of which
together shall constitute one document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties have executed this Restricted Stock
Agreement as of the date first above written.
eJIVA, INC.
By:
------------------------------------------
Chairman of the Board of Directors
EMPLOYEE
---------------------------------------------
Print Name:
----------------------------------
Social Security Number:
----------------------
Address:
-------------------------------------
---------------------------------------------
---------------------------------------------
SCHEDULE A
TERMINATION
OF VOLUNTARY TERMINATION FOR TERMINATION FOR TERMINATION FOR
EMPLOYMENT TERMINATION CAUSE GOOD REASON NON-PERFORMANCE
DATE
--------------------- --------------------- ---------------------- --------------------- -------------------
Before 7/1/02 Forfeit 100% of Forfeit 100% of Forfeit 50% of Forfeit 50% of
Restricted Shares. Restricted Shares. Restricted Shares. Restricted Shares.
--------------------- --------------------- ---------------------- --------------------- -------------------
7/1/02 - Forfeit 80% of Forfeit 80% of No Penalties No Penalties.
2/28/03 Restricted Shares. Restricted Shares.
--------------------- --------------------- ---------------------- --------------------- ------------------
3/1/03 - Forfeit 25% of Forfeit 25% of No Penalties No Penalties.
2/29/04 Restricted Shares. Restricted Shares.
--------------------- --------------------- ---------------------- --------------------- -------------------
3/1/04+ No Penalties No Penalties. No Penalties No Penalties.
--------------------- --------------------- ---------------------- --------------------- -------------------
[ ] Voluntary Termination: Voluntary resignation, other than for
Good Reason (as defined in the eJiva Employment Agreement).
[ ] Termination For Good Reason: Resignation for Good Reason (as
defined in the eJiva Employment Agreement).
[ ] Termination For Cause: Termination for Cause (as defined in
the eJiva Employment Agreement).
[ ] Termination For Non-Performance: Termination due to poor
performance.
ATTACHMENT C
GENERAL RELEASE
1. I, XXXX, for and in consideration of XXX, to be provided to me by iGate
Capital Management Inc. (the "Company"), and conditioned upon such payments
and provisions, do hereby REMISE, RELEASE, AND FOREVER DISCHARGE the
Company and each of its subsidiaries and affiliates, their officers,
directors, shareholders, partners, employees and agents, their respective
successors and assigns, heirs, executors and administrators (hereinafter
collectively included within the term the "Company"), acting in any
capacity whatsoever, of and from any and all manner of actions and causes
of actions, suits, debts, claims and demands whatsoever in law or in
equity, which I ever had, now have, or hereafter may have, or which my
heirs, executors or administrators hereafter may have, by reason of any
after, cause or thing whatsoever from the beginning of my employment with
the Company to the date of these presents arising from or relating in any
way to my employment relationship, and the terms, conditions and benefits
payments resulting therefrom, my termination of my employment relationship
with the Company, including but not limited to, any claims which have been
asserted, could have been asserted, or could be asserted now or in the
future under any federal, state or local laws, including any claims under
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Section 621 et
seq., Americans with Disabilities Act ("ADA"), 42 U.S.C.Section 2000e et
seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C.Section 2000 et
seq., Pennsylvania Wage Payment and Collection laws, Pennsylvania Human
Relations Act, Older Workers' Benefit Protection Act, Family and medical
Leave Act, any contract between the Company and me and my common law claims
now or hereafter recognized and all claims for counsel fees and costs.
2. Subject to the limitations of Section 1 above, I expressly waive all rights
afforded by any statute which expressly limits the effects of a release
with respect to unknown claims. I understand the significance of this
release of unknown claims and the waiver of statutory protection against a
release of unknown claims.
3. I further agree and covenant that the amounts set forth herein shall serve
as a full and final settlement of any and all claims that I have against
the Company and that neither I, nor any person, organization or other
entity on my behalf, will file, charge, claim, xxx or cause or permit to be
filed, charged, or claimed, any action for personal equitable, monetary or
other similar relief against the Company (including any action for damages,
injunctive, declaratory or other relief), arising from or relating in any
way to my employment relationship, and the terms, conditions and benefits
payments resulting therefrom, the termination of my employment relationship
with the Company, except as may be necessary to enforce the obligations of
the Company to me in accordance with the express terms of the agreement or
under any other plans or programs of the Company in which I participated
and under which I have accrued a benefit involving any matter occurring
from the beginning of my employment with the Company to the date of these
presents, or involving my continuing effects of any actions or practices
which may have arisen or occurred from the beginning of my employment with
the Company to the date of these presents, including any charge of
discrimination under Title VII of Civil Rights Act of 1964, or ADEA. In
addition, I also agree and covenant that should I, or any other person,
organization or entity on my behalf, file, charge, claim, xxx or cause or
permit to be filed, charged, or claimed, any action prohibited by the
proceeding sentence for personal equitable, monetary or other similar
relief, despite my agreement not to do so hereunder, or should I otherwise
fail to abide by any of the terms of this General Release, and any claim is
made against the Company that might result in liability of the Company to
Executive, except to the extent not covered by this General Release as
slated above, then I will pay all of the costs and expenses of the Company
(including reasonable attorneys' fees) incurred in the defense of any such
action or undertaking.
4. I hereby agree and recognize that my employment by the Company was
permanently and irrevocably severed on XXX and the Company has no
obligation, contractual or otherwise to me to hire, rehire or reemploy me
in the future.
5. I hereby agree and acknowledge that the payments and benefits provided by
the Company are to bring about an amicable resolution of my employment
arrangements and are not to be construed an admission of any violation of
any federal, state or local stature or regulation, or of any duty owed by
the Company and that the Agreement and this General Release are made
voluntarily to provide an amicable resolution of my employment relationship
with the Company and the termination of the Employment Agreement executed
by me with the Company on ______ (Employment Agreement).
6. I hereby certify that I have read the terms of the General Release, that I
have been advised by the Company to discuss it with my attorney, and that I
have done so, and that I understand its terms and effects. I acknowledge,
further, that I am executing this General Release of my own volition with a
full understanding of its terms and effects and with the intention of
releasing all claims recited herein in exchange for the consideration
described in the Employment Agreement, which I acknowledge is adequate and
satisfactory to me. None of the above-named parties, nor their agents,
representatives or attorneys has made any representations to me concerning
the terms of effects of this General Release other than those contained
herein.
7. I hereby acknowledge that I have been informed that I have the right to
consider the General Release for a period of 21 (twenty one) days prior to
execution. I also understand that I have the right to revoke this General
Releases for a period of 7 (seven) days following execution by giving the
written notice to the Company at iGATE Capital Management Inc., Xxxxxx
Plaza Ten, 000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Chief
Executive Officer.
8. I hereby further acknowledge that the terms of Sections 6 and 7 of the
Employment Agreement continue to apply for the balance of the time periods
provided therein and that I will abide by and fully perform such
obligations.
Intending to legally bound hereby, I execute the foregoing General Release the
____day of _________.
---------------------------- ---------------------------------
Witness
