Exhibit 10.3
AMENDED AND RESTATED AGREEMENT
This Amended and Restated Agreement (the "Agreement") is made as of October
16, 2000 (the "Effective Date") between iGate Capital Corporation, a
Pennsylvania corporation (hereinafter called the "Company") and Xxxxx Xxxxx
(hereinafter called the "Employee") and supercedes and replaces in all respects
that Agreement made as of January 25, 2000 by and between Employee and Mastech
Systems Corporation. This Agreement is entered into contemporaneously with the
cancellation of certain stock options and the receipt of a restricted stock
award granted by Company.
WHEREAS, Employee has been employed by the Company as an at-will employee;
WHEREAS, the Company and the Employee desire to amend the terms and
conditions of the Employee's employment by the Company in the manner set forth
herein;
WHEREAS, this Agreement is necessary for the protection of Company's
legitimate and protectible business interests in its customers, prospective
customers, accounts and confidential, proprietary and trade secret information;
and
WHEREAS, this Agreement is a term and condition of Employee's employment
and is made in consideration for the grant of a restricted stock award offered
to Employee contemporaneously with this Agreement as well as Employee's
continued employment and access to Company's customers, prospective customers,
accounts, and confidential, proprietary and trade secret information.
NOW THEREFORE, for the consideration set forth herein, the receipt and
sufficiency of which is acknowledged by the parties, Company and Employee agree
as follows:
1. DEFINITIONS. As used herein:
(a) "Company" shall mean iGate Capital Corporation and any affiliate
of iGate Capital Corporation, including any direct or indirect parent or
subsidiary of iGate Capital Corporation, as well as their respective operating
divisions.
(b) "Confidential Information" shall include, but is not necessarily
limited to, any information which may include, in whole or part, information
concerning the Company'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 Company, the Company's source of
supply of products and/or personnel, sources of consultants, Company manuals,
formulae, products, processes, methods, machines, compositions, ideas,
improvements, inventions, research, computer programs, system documentation,
software products, patented products, copyrighted information, know how and
operating methods and any other trade secret
or proprietary information belonging to the Company or relating to the
Company's affairs that is not public information.
(c) "Customer(s)" shall mean any individual, corporation, partnership,
business or other entity (i) whose existence and business is known to Employee
as a result of Employee's access to the Company's customer lists or Customer
account information; or (ii) that is an entity with whom the Company has
contracted or negotiated during the two (2) year period preceding the
termination of Employee's employment.
2. TERM. Subject to earlier termination as provided below, Employee's
employment shall be for a term commencing as of the Effective Date and
terminating upon the close of business on March 31, 2001 and may be extended or
renewed only by a written agreement signed by Employee and an authorized
representative of the Company. The term of this Agreement is referred to as
"the term of this Agreement" or "the Term."
3. DUTIES. Employee, who is employed in the position set forth on
Schedule A hereof as of the date of this Agreement, agrees to be responsible for
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such duties as are commensurate with and required by such position and any other
duties as may be assigned to Employee by Company from time to time. Employee
further agrees to perform his or her duties in a diligent, trustworthy, loyal,
businesslike, productive, and efficient manner and to use Employee's best
efforts to advance the business and goodwill of Company. Employee further
agrees to devote all of his or her business time, skill, energy and attention
exclusively to the business of the Company and to comply with all rules,
regulations and procedures of the Company. During the term of this Agreement,
Employee will not engage in any other business for Employee's own account or
accept any employment from any other business entity, or render any services,
give any advice 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 Company. Notwithstanding the foregoing, Employee shall be permitted to
interview for prospective employment with other business entities, provided that
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such interviews do not materially interfere with the performance of Employee's
duties hereunder.
4. COMPENSATION. As compensation for Employee's employment by the
Company, the Company will pay the Employee the salary set forth on Schedule A
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hereto.
5. BENEFITS. Employee will receive the standard Company benefits
described in the Company Employee Handbook that is incorporated as though fully
set forth in this Agreement and which may be modified at any time by the
Company.
6. EXISTING STOCK OPTIONS. Subject to the terms and conditions of this
Agreement, any and all options to purchase shares of common stock or any other
equity security of the Company previously granted to Employee under the
Company's Stock Incentive Plan or otherwise (whether vested or unvested),
including without limitation the options evidenced by the Stock Option
Agreements attached hereto as Exhibit A, shall hereby be cancelled and forfeited
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back to the Company immediately upon the Effective Date.
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7. RESTRICTED STOCK AWARD.
(a) Subject to the terms and conditions of this Agreement,
simultaneously with the execution and delivery hereof, the Company shall grant
Employee a Restricted Stock Award in the amount of Forty Thousand (40,000)
shares (the "Restricted Stock") of common stock of the Company pursuant to the
Company's Stock Incentive Plan (the "Plan") as currently in effect. Initially,
all such shares of Restricted Stock shall be Unvested Restricted Stock (as
defined in the Plan). As such, Employee shall have the benefit of the rights
associated with the shares subject to the Restricted Stock Award as described in
Section 10 of the Plan and shall be bound by the restrictions on transferability
set forth therein. The shares of Unvested Restricted Stock shall become vested
in accordance with the following schedule: Eight Thousand (8,000) shares shall
become vested and no longer subject to a risk of forfeiture on each of November
30, 2000, December 31, 2000, January 31, 2001, February 28, 2001 and March 31,
2001.
(b) For the purpose of addressing any tax withholding obligation that
may arise in connection with the Restricted Stock Award, the Company agrees to
make available to Employee a loan of up to Sixty-Five Thousand Dollars
($65,000). Any such loan shall be full recourse, shall bear interest at the
commercial lending rate then being used by PNC Bank, N.A. and shall be secured
by a pledge of the shares subject to the Restricted Stock Award. One-half of
the principal amount of the loan shall be due and payable on the midpoint of the
Severance Period (as defined in Section 12(g) below) or, in the event that
Employee is terminated for Cause (as defined herein), on the date of termination
of Employee's employment with the Company and the Company may reduce the
Severance Benefit owed to Employee by an amount sufficient to satisfy this
payment. The remaining principal amount of the loan plus any accrued interest
shall be due and payable on the last day of the Severance Period.
8. POLICIES AND PRACTICES. Employee agrees to abide by all rules,
regulations and instruments established by the Company including the policies,
practices and procedures contained in the Company Employee Handbook which
Employee has received and which is incorporated by reference as though fully set
forth herein. The Company reserves the right to disregard the Company Employee
Handbook in the event that a particular portion of the Company Employee Handbook
conflicts with this Agreement or is deemed by the Company to be incompatible
with Employee's position in the Company, and the Company may amend the Employee
Handbook from time to time in its sole discretion.
9. AGREEMENT NOT TO SOLICIT. In order to protect the business interest
and good will of the Company in respect to customers and accounts, and to
protect Confidential Information, Employee covenants and agrees that for the
entire period of time that this Agreement remains in effect, and for a period of
two (2) years after termination of Employee's employment for any reason he or
she will not:
(a) directly or indirectly contact any Customer of the Company for the
purpose of soliciting such Customer to purchase, lease or license a product or
service that is the same as, similar to, or in competition with those products
and/or services made, rendered, offered or under development by the Company
during Employee's employment with the Company;
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(b) directly or indirectly employ, or knowingly permit any company or
business directly or indirectly controlled by Employee to employ, any person who
is employed by the Company at any time during the term of this Agreement, or in
any manner to seek to induce any such person to leave his or her employment with
the Company; or
(c) directly or indirectly interfere with or attempt to disrupt the
relationship, contractual or otherwise, between the Company and any of its
employees or solicit, induce, or attempt to induce employees of the Company to
terminate employment with the Company and become self-employed or employed with
others in the same or similar business or any product line or service provided
by Company.
Employee acknowledges that the Company is engaged in business throughout the
United States as well as in other countries and that the marketplace for the
Company's products and services is worldwide. Employee further covenants and
agrees that the geographic, length of term and types of restrictions (non-
solicitation restrictions, etc.) contained in this Agreement are reasonable and
necessary to protect the legitimate business interests of the Company because of
the scope of the Company's business. In the event that a court of competent
jurisdiction shall determine that one or more of the provisions of this Section
9 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 Paragraph enforceable. If the Employee violates the provisions of this
Section 9, 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.
10. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. The Employee
covenants and agrees during 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 Company, all Confidential Information except
that employee may disclose such Information to persons, firms or corporations
who need to know such Information during the course and within the scope of
Employee's employment. Employee will not use any Confidential Information for
any purpose or for his or her personal benefit other than in the course and
within the scope of Employee's employment.
(a) Work Made For Hire. Employee recognizes and understands that his
or her duties at Company 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 or
her 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, Employee understands that since the work is a
"work made for hire," the Company will solely retain and own all rights in all
such materials, including the right to copyright.
(b) Disclosure of Discoveries, Ideas and Inventions. 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 the Company any discovery, idea and invention.
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(c) Disclosure of Other Discoveries, Ideas and Inventions/Assignment
of Patents. Employee shall disclose promptly to the Company, any and all works,
inventions, discoveries and improvements authored, conceived or made by Employee
during the period of employment and related to the business or activities of the
Company, solely or jointly with others, which is related to the lines of
business, work or investigation of the Company at the time of such discovery,
idea or invention or which results from, or is suggested by, any work which the
Employee may do for or on behalf of the Company, and hereby assigns and agrees
to assign all his interest therein to the Company or its nominee. Whenever
requested to do so by the Company, Employee shall execute any and all
applications, assignments or other instruments which the Company 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 the Company in every proper way (entirely at the Company'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 and improvements authored, conceived or made by Employee during the
period of employment, and shall be binding upon Employee's assigns, executors,
administrators and other legal representatives. All such works, inventions,
discoveries and improvements shall remain the sole and exclusive property of the
Company, whether patentable or not.
11. RETURN OF MATERIALS. Upon termination of employment with Company for
any reason, Employee shall promptly deliver to Company the originals and copies
of all correspondence, drawings, manuals, computerized information, letters,
notes, notebooks, reports, prospect lists, flow charts, programs, proposals, and
any documents concerning Company's customers or suppliers and, without limiting
the foregoing, will promptly deliver to Company any and all other documents or
materials containing or constituting Confidential Information.
12. TERMINATION; SEVERANCE.
(a) Upon Expiration of this Agreement. Unless otherwise terminated as
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provided below, Employee's employment with the Company shall terminate upon the
expiration of the term of this Agreement as set forth in Section 2 hereof. Upon
such termination Employee shall be entitled to a severance benefit (the
"Severance Benefit"), which in this case, shall be equal to Two Hundred Twenty-
Five Thousand Dollars ($225,000) (nine (9) times the Employee's monthly salary
as set forth on Schedule A). The Severance Benefit shall be paid in the form of
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salary continuation during the subsequent nine-month period in accordance with
the Company's then existing payroll practices and shall include the continuation
throughout such severance period of all benefits then currently enjoyed by the
Employee; provided that such benefits are also available to full time employees
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of the Company, including but not limited to health, life and disability
coverage. In no event shall any Severance Benefit payments be made pursuant to
this subsection unless and until Employee executes and delivers to the Company a
general release substantially in the form attached hereto as Exhibit B.
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(b) Upon Death of Employee. In the event of Employee's death during
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the Term, Employee's employment under this Agreement shall immediately and
automatically terminate. The Company shall pay to Employee's designated
beneficiary or, if no beneficiary has
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been designated by Employee, to Employee's estate, any earned and unpaid
salary, prorated through the date of death, and Employee shall be entitled to a
Severance Benefit equal to Two Hundred Twenty-Five Thousand Dollars ($225,000)
(nine (9) times the Employee's monthly salary as set forth on Schedule A). The
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Severance Benefit shall be paid in the manner and form set forth in Section
12(a) above. In addition, upon the death of Employee during the Term, all
unvested shares subject to the Restricted Stock Award shall immediately become
vested.
(c) Upon Disability. The Company may terminate Employee's employment
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under this Agreement prior to the expiration of this Agreement upon notice to
Employee, in the event that Employee becomes disabled during Employee's
employment under this Agreement through any illness, injury, accident or
condition of either a physical or psychological nature so as to be unable to
perform substantially all of Employee's duties and responsibilities. Upon such
termination, the Company shall pay Employee any earned and unpaid salary,
prorated through the date of such termination, and Employee shall be entitled to
a Severance Benefit equal to Two Hundred Twenty-Five Thousand Dollars ($225,000)
(nine (9) times the Employee's monthly salary as set forth on Schedule A). The
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Severance Benefit shall be paid in the manner and form set forth in Section
12(a) above. In addition, upon Employee's termination pursuant to this
subsection, all unvested shares subject to the Restricted Stock Award shall
immediately become vested.
(d) By the Company for Cause. The Company may terminate Employee's
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employment under this Agreement for Cause at any time upon notice to Employee
setting forth in reasonable detail the nature of such Cause. The following
shall constitute "Cause" for termination:
(i) Employee's gross negligence in the performance of, Employee's
duties and responsibilities to the Company; or
(ii) Any act or omission by Employee in the performance of his
duties which constitutes a felony or involves fraud.
Upon the giving of notice of termination of Employee's employment under this
Agreement for Cause, the Company shall have no further obligation or liability
to Employee, other than for salary earned and unpaid at the date of termination,
and all shares subject to the Restricted Stock Award (whether vested or
unvested) shall be forfeited back to the Company.
(e) By the Company Other Than for Cause. The Company may terminate
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Employee's employment under this Agreement other than for Cause upon notice to
Employee. Upon termination other than for cause pursuant to this subsection:
(i) the Company shall pay Employee any earned and unpaid salary, prorated
through the date of such termination, and Employee shall be entitled to a
Severance Benefit equal to Two Hundred Twenty-Five Thousand Dollars ($225,000)
(nine (9) times the Employee's monthly salary as set forth on Schedule A); and
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(ii) all unvested shares subject to the Restricted Stock Award shall immediately
become vested. The Severance Benefit shall be paid in the manner and form set
forth in Section 12(a) above.
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(f) Voluntarily by Employee. Employee may terminate Employee's
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employment under this Agreement upon fifteen (15) days notice to the Company.
Upon the date of such termination, (i) the Company shall pay Employee any earned
and unpaid salary, prorated through the date of such termination, and (ii)
Employee shall be entitled to a Severance Benefit equal to the product of: (A)
Two Hundred Twenty-Five Thousand Dollars ($225,000); multiplied by (B) a
fraction the numerator of which is equal to the number of calendar days from the
beginning of the Term through the date of Employee's termination and the
denominator of which is equal to One Hundred Sixty-Six (166). The Severance
Benefit shall be paid in the form of salary continuation during the number of
successive pay dates necessary to pay the aggregate amount of the Severance
Benefit in accordance with the Company's then existing payroll practices and
shall include the continuation throughout such period of all benefits then
currently enjoyed by the Employee provided that such benefits are also available
to full time employees of the Company, including but not limited to health, life
and disability coverage. Upon termination pursuant to this subsection, all
shares of Restricted Stock that are not then vested shall be immediately
forfeited back to the Company.
Notwithstanding any of the foregoing, the covenants contained in Sections 8, 9,
10, 11, 13, 14, 15, 16, 17, and 19 hereof shall survive the termination of
Employee's employment under this Agreement.
(g) Severance Period. The number of months during which Employee is
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entitled to be paid the Severance Benefit shall be herein defined as the
"Severance Period."
13. ENTIRE AGREEMENTS. This Agreement supersedes all prior agreements,
written or oral, between the parties hereto concerning the subject matter
hereof.
14. 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.
Jurisdiction and venue is proper in any proceeding by the Company to enforce its
rights hereunder filed in any court geographically located in Allegheny County,
Pennsylvania.
15. ACKNOWLEDGMENTS OF EMPLOYEE. Employee hereby acknowledges and agrees
that:
(a) This Agreement is necessary for the protection of the legitimate
business interests of the Company.
(b) the restrictions contained in this Agreement may be enforced in a
court of law whether or not Employee is terminated for Cause or other than for
Cause or for performance related reasons;
(c) The execution and delivery of this Agreement is a mandatory
condition precedent to the Employee's receipt of the consideration provided
herein;
(d) Employee has no intention of competing with the Company within the
limitations set forth above;
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(e) Employee has received adequate and valuable consideration for
entering into this Agreement;
(f) 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 Employee may have against the Company, whether predicated on this
Agreement or not, shall not constitute a defense to the enforcement by Company
of these covenants;
(g) this Agreement does not prevent Employee from earning a livelihood
after termination of employment; and
(h) Employee further acknowledges that his or her education and
experience enables Employee to work for different types of employers, so that it
will not be necessary for Employee to violate the provisions of this Agreement
in order to remain economically viable.
16. FULL UNDERSTANDING. Employee acknowledges that Employee has carefully
read and fully understands all of the provisions of this Agreement and that
Employee, in consideration for the compensation set forth herein, is voluntarily
entering into this Agreement.
17. EQUITABLE RELIEF; FEES AND EXPENSES. Employee stipulates and agrees
that any breach of this Agreement by Employee will result in immediate and
irreparable harm to the Company, the amount of which will be extremely difficult
to ascertain, and that the Company could not be reasonably or adequately
compensated by damages in an action at law. For these reasons, the Company
shall have the right, without objection from Employee, to obtain such
preliminary, temporary or permanent injunctions or restraining orders or decrees
as may be necessary to protect the Company against, or on account of, any breach
by Employee of the provisions of this Agreement. Such right to equitable relief
is in addition to all other legal remedies the Company may have to protect its
rights. In the event the Company obtains any such injunction, order, decree or
other relief, in law or in equity, Employee shall be responsible for reimbursing
the Company for all costs associated with obtaining the relief, including
reasonable attorneys' fees, and expenses and costs of suit. In the event that
Employee is successful in defending this matter, Company agrees to reimburse
Employee for all legal expenses incurred in such defense. Employee further
covenants and agrees that any order of court or judgment obtained by the Company
which enforces the Company's rights under this Agreement may be transferred,
without objection or opposition by Employee, to any court of law or other
appropriate law enforcement body located in any other country in the world where
Company does business, and that said court or body will give full force and
effect to said order and or judgment.
18. 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 party 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.
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19. SUCCESSORS IN INTEREST. This Agreement shall be binding upon and
shall inure to the benefit of the successors, assigns, heirs and legal
representatives of the parties hereto. The Company shall have the right to
assign this Agreement in connection with a merger involving the Company or a
sale or transfer of substantially all of the business and assets of the Company,
and Employee agrees to be obligated by this Agreement to any successor, assign
or surviving entity.
20. HEADINGS. The headings used in this Agreement are for convenience
only and are not to be considered in construing or interpreting this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Agreement to be executed as of the day and year first above written.
iGATE CAPITAL Xxxxx Xxxxx
CORPORATION (COMPANY) (EMPLOYEE)
By: ______________________________ ___________________________________
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Xxxxx Xxxxx
Personal & Confidential
SCHEDULE A
(1) Compensation
Your salary will be $25,000 per month and will be subject to all federal,
state, local taxes and withholdings.
(2) Outside Board Memberships
This will serve as written approval for you to continue your Board
Memberships with Infosage Inc. and CTR Systems Inc.
(3) Position
[Senior Vice President and Chief Financial Officer of iGate Capital
Corporation.]
Xxxxx Xxxxx
Personal & Confidential
EXHIBIT A
Stock Option Agreements
(attached)
Xxxxx Xxxxx
Personal & Confidential
EXHIBIT B
Form of Release
(attached)
