________________________________________
EMPLOYMENT AND NON-COMPETITION AGREEMENT
________________________________________
BY AND BETWEEN
XXXXXX000.XXX LTD
AND
XXXXXXX X. XXXXX
DATED AS OF JUNE 22, 2001
This EMPLOYMENT AND NON-COMPETITION AGREEMENT dated as of June 22, 2001 (the
"Effective Date"), by and between XxxXxx000.xxx Ltd, a Cayman Islands company
(the "Company"), and Xxxxxxx X. Xxxxx ("Employee").
In consideration of Employee's continued employment by the Company, the
Parties hereto agree as follows:
1. EMPLOYMENT. Subject to earlier termination in accordance with Sections
contained within, this Agreement shall be an at-will agreement commencing as of
the Effective Date.
a. Duties. The Company agrees to employ Employee and Employee agrees
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to serve the Company, as its Chief Executive Officer, subject to the direction
of the Board of Directors of the Company (the "Board"), and to have such
authority and duties relative to the operation of the Company as may be
determined by the Board. In addition, Employee agrees, if requested by Vsource,
Inc., the Company's parent ("Vsource"), to serve as the Co-Chairman and Chief
Executive Officer of Vsource subject to the direction of the Board of Directors
of Vsource, with such authority and duties relative to the operation of Vsource
as may be determined by the Board of Directors of Vsource.
b. Term. The initial term of this Agreement shall be from the
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Effective Date hereof until the day that is two years after the Effective Date
(the "Initial Term"). This Agreement shall renew automatically for additional
one (1) year terms unless either party gives notice of termination not less than
90 days prior to the end of the existing term.
c. Best Efforts. During the term of his employment under this
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Agreement, Employee shall devote his full business time, attention, skill, and
efforts to the faithful performance of his duties hereunder, and will use his
best efforts to advance the interests of the Company, the Company's parent
company and any subsidiaries thereof (the "Vsource Companies").
d. Eligibility. This Agreement and the benefits contained herein are
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contingent upon Employee's being authorized to work and reside in the host
country in which the Company elects to base Employee (the "Host Country"). If
Employee loses his authorization to work in the Host Country at any time, for
any reason during the life of this Agreement, the Company will consider
Employee's circumstances, but may, at its sole discretion, consider all, or any
portion of this Agreement void.
e. Statutory Benefits. Employee understand and agree that the
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differential payments and adjustments described below as well as any other
allowances or gratuities provided by the Company under this Agreement are, at
the election of the Company, in substitution for the statutory benefits required
under the laws of the Host Country to compensate employees who are not entitled
to receive these contractual benefits.
2. COMPENSATION. The Company shall pay to Employee, as consideration for
the services to be rendered by Employee hereunder, a base salary of US$87,600
per year (the "Base Salary"). Employee shall be eligible for a target incentive
bonus ("Bonus") equal to 100% of Employee's Base Salary, which shall be payable
upon the achievement of performance targets to be set by the Compensation
Committee of Vsource's Board of Directors (the "Compensation Committee").
3. STOCK OPTIONS, RESTRICTED STOCK AND SIMILAR TYPES OF COMPENSATION
BENEFITS. Stock option grants, participation in restricted stock programs or
deferred compensation programs and other similar types of compensation plans
will be decided by the Board of Directors of Vsource but in any event will be on
generally the same terms and conditions made available to other members of
senior management of the Vsource Companies. Notwithstanding the foregoing, the
Company agrees, subject to Vsource obtaining approval of its shareholders, to
grant Employee:
(a) an option to acquire a number of shares of Vsource's common stock
(the "Common Stock") equal to four percent (4.0%) of Vsource's outstanding
Common Stock, calculated on a fully diluted basis, on the date of grant. If at
any time after the issuance of such option and prior to February 15, 2002,
Vsource issues additional shares of Common Stock or securities convertible into
or exchangeable for shares of Common Stock, then, subject to shareholder
approval, the Company shall issue Employee an additional option for a number of
shares of Common Stock so that in the aggregate Employee will have been granted
options to acquire four percent (4.0%) of the Company's outstanding Common
Stock, calculated on a fully diluted basis, as of February 15, 2002. These
options will have an exercise price of $0.10 per share and will vest in
accordance with the following schedule: 50% will vest on the date hereof, and
the balance will vest in a series of four successive equal quarterly
installments of 12.5% each, beginning on the date that is three months after the
date hereof. The other terms of these options will be as determined by the
Board of Directors of Vsource.
(b) an option to purchase 1,752,000 shares of Vsource's Common Stock.
This option will have an exercise price of $0.10 per share and will vest in a
series of four successive equal quarterly installments of 25% each, beginning on
the date that is three months after the date hereof. The other terms of this
option will be as determined by the Board of Directors of Vsource. The option
granted in this paragraph (b) will not be included when the Company calculates
the size of the options required to be granted under paragraph (a) of this
Section 3.
(c) an option to purchase 723,240 shares of Vsource's Common Stock.
This option will have an exercise price of $0.01 per share and 100% of this
option will vest on March 23, 2002. The other terms of this option will be as
determined by the Board of Directors of Vsource. The option granted in this
paragraph (c) will not be included when the Company calculates the size of the
options required to be granted under paragraph (a) of this Section 3.
4. BENEFITS. Employee shall receive the following benefits:
(a) Income Tax Equalization: At the Company's expense, an
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international consultant will advise Employee as to the filing requirements in
the United States and the Host Country, and will prepare Employee's annual tax
returns for those jurisdictions. Employee's taxes will be equalized to the
level he would be responsible for in the United States to the extent provided
for in a tax equalization policy to be established by the Compensation
Committee.
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(b) Transportation: All air transportation will be Business Class.
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Employee will be provided air transportation to the US monthly, provided
business is also transacted on these trips.
5. EXPENSES. Upon presentation of proper vouchers, receipts or other proof,
Employee shall be reimbursed promptly by the Company for all reasonable travel
and other expenses incurred by Employee in connection with performing his
employment obligations hereunder.
6. VACATIONS. Employee shall be entitled to eight (8) weeks paid vacation
per year during the term of his employment.
7. TERMINATION OF EMPLOYMENT.
a. By the Employee. Employee's employment may be terminated by
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Employee, without cause (a "Voluntary Termination") (i) during the Initial Term,
at any time during the period comprised of the last 90 days of the Initial Term,
and (ii) at any time after the Initial Term, in each case upon 90 days written
notice to the Company.
b. By the Company. Employee's employment may be terminated by the
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Company:
i. immediately, in the event that (1) Employee is convicted or
pleads guilty or nolo contendere to a felony or a crime of moral turpitude,
(2) the Board determines in good faith that Employee has been grossly
negligent or acted dishonestly to the material detriment of the Company,
(3) Employee willfully disobeys the instructions or mandates of the Board
and such disobedience continues after Employee is afforded a reasonable
opportunity to cure such disobedience, or (4) the Board makes a good faith
determination that Employee has engaged in actions amounting to willful
misconduct or failed to perform his duties hereunder and such failure
continues after Employee is afforded reasonable opportunity to cure such
failure (each of (1), (2), (3) or (4), refereed to herein as a "Termination
for Actual Cause"); or
ii. immediately, in the event that Employee is indicted or
otherwise formally charged with a felony or a crime of moral turpitude, in
which case the Board may, upon three (3) days written notice, suspend
Employee's employment by the Company. Thereafter, all payments of salary
and bonuses, if any, to which Employee otherwise would be entitled under
this Agreement shall be paid into an interest bearing escrow account. In
the event that Employee shall be acquitted of such charges or such charges
shall otherwise be dismissed, Employee shall be reinstated as an employee,
and all salary and accrued bonuses paid into escrow, plus accrued interest,
shall be paid to Employee. In the event Employee shall be convicted or
pleads guilty or nolo contendere to such charges and his employment is
terminated hereunder; all salary and accrued bonuses paid into escrow plus
accrued interest, shall be paid over to the Company, and for purposes of
this Agreement, Employee's employment shall be deemed to have terminated as
of the date of his suspension.
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iii. the Board of Directors, in its discretion, resolves to
terminate Employee's employment for any reason other than those set forth
in sub-sections b(i) or b(ii) above, upon 90 days notice to Employee.
c. Death of Employee. In the event of Employee's death during the term
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of his employment, Employee's employment pursuant to this Agreement shall be
deemed to have terminated on the last day of the calendar month during which
Employee's death occurred.
d. Disability. In the event Employee is unable to perform his normal
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duties by reason of disability, then at the sole discretion of the Board,
Employee's employment pursuant to this Agreement may be treated as having been
terminated on the last day of the calendar month during which Employee shall
have been deemed disabled. For purposes of this Section, "disability" shall
mean the inability of Employee to perform his normal duties under this Agreement
for a cumulative period in excess of six (6) months within any twelve (12) month
period due to illness, injury, incapacity or other disability, either physical
or mental.
8. SEVERANCE.
a. Voluntary Termination, Termination for Actual Cause or Termination
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Without Cause. In the event of Voluntary Termination, Termination for Actual
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Cause or a termination by the Company of Employee's employment without cause,
the Company shall pay to Employee, in full discharge of its obligations
hereunder, Base Salary through the date specified in the applicable notice as
the termination date (the "Termination Date") of his employment; provided, that
in the case of a Voluntary Termination, if the Company permits Employee to
terminate employment on a date earlier than the Termination Date, then the
Company shall only be obligated to pay Employee's Base Salary through such
earlier date; and provided, further, that in the case of termination by the
Company of Employee's employment without cause, the Company may, at its option,
elect to pay Employee the Base Salary payable Employee through the Termination
Date, and require Employee to leave the Company's offices immediately or any
other time designated by the Company prior to the Termination Date.
b. Death or Disability. In event Employee's employment by the Company
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terminates on account of Employee's death or disability, the Company shall pay
to Employee (or his estate), in full discharge of its obligations hereunder,
Employee's Base Salary through the Termination Date.
9. NON-COMPETITION. Employee covenants and agrees that during the term of
Employee's employment with the Company and for a period (the "Non-Compete
Period") commencing on the Termination Date and ending on the date which is one
(1) year from the date of the final payment by the Company to Employee pursuant
to this Agreement, Employ will refrain from: (i) directly or indirectly (as a
director, officer, employee, manager, consultant, independent contractor,
advisor or otherwise) engaging in competition with, or owning any interest in,
performing any services for, participating in or being connected with any
business or organization which engages in competition with any of the Vsource
Companies (ii) soliciting directly or indirectly the patronage of any person
with whom Employee has had personal contact or dealings on behalf of any of the
Vsource Companies during the twelve (12) month period immediately preceding the
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Termination Date, or (iii) directly or indirectly employing, soliciting for
employment, or advising or recommending to any other person that they employ or
solicit for employment, any employee of any of the Vsource Companies.
In connection with the foregoing provisions of this Section 9, Employee
represents that his experience, capabilities and circumstances are such that the
provisions of these Sections will not prevent him from earning a livelihood and
that the limitations set forth herein are reasonable and properly required for
the adequate protection of the Company.
9. CONFIDENTIAL INFORMATION.
a. Non-Disclosure. Employee agrees not to use other than for the
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benefit of the Vsource Companies and to keep confidential, during the term of
Employee's employment with the Company and for at least two (2) years
thereafter, all information about the Vsource Companies which the Vsource
Companies treat as confidential, including, but not limited to, information
about customers, marketing plans, marketing techniques, technical information,
and possible new products or services, except that Employee will not be required
to keep particular items of information confidential after those items of
information become generally available to the public without a breach by
Employee of Employee's obligations under this Section. Employee covenants and
agrees that except in the performance of his duties hereunder, he will not, at
any time, directly or indirectly, without the prior written consent of the
Company, use or disclose to any person any confidential or proprietary
information ("Confidential Information") obtained or developed by him while
employed by the Company relating to the business of the Vsource Companies,
except information which at the time (i) is available to others in the business
or generally known to the public other than as a result of disclosure by him not
permitted hereunder, (ii) is lawfully acquired from a third party who is not
obligated to a Vsource Company to maintain such information in confidence or
(iii) is used in any dispute or proceedings between the parties and/or Employee
is legally compelled to disclose such information; provided, however, that prior
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to any such compelled disclosure, Employee will (a) assert the privileged and
confidential nature of the Confidential Information against the third party
seeking disclosure and (b) cooperate fully with the Company or any other Vsource
Company in protecting against any such disclosure and/or obtaining a protective
order narrowing the scope of such disclosure and/or use of the Confidential
Information. In the event that such protection against disclosure is not
obtained, Employee will be entitled to disclose the Confidential Information,
but only as and to the extent necessary to legally comply with such compelled
disclosure.
b. Disclosure to the Company. Employee shall disclose promptly to the
--------------------------
Company all new discoveries, ideas, formulae, products, methods, processes,
designs, trade secrets, copyrightable material, patentable inventions, or other
useful technical information or know-how and all improvements, modifications or
alterations of existing discoveries made, discovered, or developed by him,
either alone or in conjunction with any other person during the term of his
employment by the Company, or using the Vsource Companies' materials or
facilities, which discoveries or developments are based on, derived from, or
make use of any information directly related to the business disclosed to, or
otherwise acquired by, Employee from any of the Vsource Companies during his
employment by the Company. Employee agrees that any copyright, patent,
trademark, or other proprietary rights in any such discoveries shall be the sole
and exclusive property of the Company, and none of the Vsource Companies need
account to Employee for any revenue or profit derived therefrom. If by
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operation of law or otherwise, any or all of the items set forth in Section 9,
or any component or element thereof, is considered to be the intellectual
property right of Employee, Employee hereby agrees to irrevocably assign to the
Company, its successor and assigns, ownership of all United States and
international copyrights and all other intellectual property rights available
with respect to each such element or item. Employee shall be deemed to have
granted the Company an irrevocable power of attorney to execute as Employee's
agent any and all documents (including copyright registrations) deemed necessary
by the Company to perfect the Company's intellectual properly rights in and to
each of the items set forth in this Section.
c. Trade Secrets. Employee agrees, in order to effectuate the intent
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of the parties hereunder with respect to confidentiality of the trade secrets of
the Vsource Companies, to return to the Vsource Companies forthwith upon the
request of a Vsource Company or the termination of his employment or promptly
thereafter, all documents, materials, photographs, memorandums, and all copies
or reproductions hereof, or any property of a similar or different nature
containing information relating to the business or other Confidential
Information, whether such material was furnished by a Vsource Company, or
otherwise. Employee further agrees to use his best efforts and to exercise
utmost diligence to protect and guard and keep secret and confidential all
Confidential Information that shall come into his possession by reason of his
employment by the Company.
d. Company Property. Employee agrees to return to the Vsource
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Companies forthwith upon the request of any Vsource Company or the termination
of his employment or promptly thereafter, all other properly belonging to the
Vsource Companies.
11. DAMAGES. Employee acknowledges that the Company may suffer irreparable
harm, which cannot readily be measured by monetary terms, if Employee breaches
his obligations under Section 9 or any other section. Employee agrees and
acknowledges that, in the event of any such breach, the Company shall be
entitled to cancel any and all shares, and/or options or rights to purchase
shares, of its or Vsource's capital stock received by the Employee and/or cancel
Employees rights to receive additional compensation pursuant to Section 2 or 3
as compensation for services rendered. Employee further acknowledges and agrees
that the Company may obtain injunctive or other equitable relief against
Employee to prevent or restrain such breach causing such harm; provided,
however, that where such breach involves subject matter that is susceptible of
being cured, Employee will cure such breach as promptly as practicable upon
notice of such breach to Employee. Such injunctive relief shall be in addition
to any other remedies the Company might have under this Agreement or at law.
12. MISCELLANEOUS.
a. Notice. Any notices or other communications to Employee or to the
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Company under or relating to this Agreement must be in writing and will be
deemed given when delivered in person or sent by facsimile transmission to the
Company or Employee, as the case may be, at the Company's principal offices, or
on the third day after the day on which mailed to the Company or Employee, as
the case may be, by first class mail addressed to the Company or Employee at the
Company's principal offices, except that after the term of this Agreement
terminates, any notice or other communication to Employee will be deemed given
when delivered in person or sent by facsimile transmission, or on the third day
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after the day on which mailed by first class mail, to Employee at an address
specified by Employee to the Company in the manner provided in this Section (or,
if Employee does not specify an address, at the Company's principal offices).
b. No Duplication. The payments and benefits received by Employee
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hereunder are in addition to, and not duplicative of, payments and benefits
received by Employee under Employee's employment and non-competition agreement
with NetCel360 Hong Kong Limited dated as of the same date hereof.
c. Entire Agreement; Amendment. This Agreement represents the entire
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understanding of the parties with respect to the subject matter hereof. No
termination, revocation, waiver, modification, amendment or supplement to this
Agreement shall be binding unless consented to in writing by Employee and the
Company.
d. Governing Law. This Agreement shall be interpreted and construed in
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accordance with the laws of Delaware, without giving effect to the conflict of
laws provisions thereof.
e. Interpretation. As used in this Agreement, the masculine gender
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shall include the feminine or neuter gender and the plural shall include the
singular wherever appropriate. The titles of the paragraphs and sections have
been inserted as a matter of convenience of reference only and shall not control
or affect the meaning or construction of any of the terms or provisions hereof.
Nothing herein shall be construed against or more favorably toward any party by
reason of any party having drafted this Agreement or any portion hereof.
f. Severability. Any provision of this Agreement that is invalid,
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illegal or unenforceable in any jurisdiction shall be automatically reformed and
construed so as to be valid, operative and enforceable to the maximum extent
permitted by law, or if no reformation is permissible, shall be ineffective to
the extent of such invalidity, illegality or unenforceability without
invalidating or rendering unenforceable the remaining provisions of this
Agreement, and any such invalidity, illegality or unenforceability shall not, of
itself, affect the validity, legality or enforceability of such provision in any
other jurisdiction.
g. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall constitute one and the same instrument.
h. No Waiver. No failure or delay on the part of either party is
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exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power preclude any
other right or power.
i. Previous Employer. Employee hereby represents that he is under no
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obligation or agreement that would prevent him from being an employee of the
Company or adversely impact his ability to perform the expected services for the
Company. As a condition of employment, no confidential documents, computer
discs, computer stored information, or any other confidential properly of any
previous employer are to be brought on the premises or used in any way in your
employment by the Company. As a further condition of employment, Employee
agrees not to use or disclose the trade secrets or confidential information, if
any, of a previous employer in connection with Employee's services for the
Company.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
XxxXxx000.xxx Ltd
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Nationality: US Citizen
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_________________________________________
EMPLOYMENT AND NON-COMPETITION AGREEMENT
_________________________________________
BY AND BETWEEN
NETCEL360 HONG KONG LIMITED
AND
XXXXXXX X. XXXXX
DATED AS OF JUNE 22, 2001
This EMPLOYMENT AND NON-COMPETITION AGREEMENT dated as of June 22, 2001 (the
"Effective Date"), by and between NetCel360 Hong Kong Limited, a Hong Kong
company (the "Company"), and Xxxxxxx X. Xxxxx ("Employee").
In consideration of Employee's continued employment by the Company, the
parties hereto agree as follows:
1. EMPLOYMENT. Subject to earlier termination in accordance with Sections
contained within, this Agreement shall be an at-will agreement commencing as of
the Effective Date.
a. Duties. The Company agrees to employ Employee and Employee agrees
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to serve the Company, as its Chief Executive Officer, subject to the direction
of the Board of Directors of the Company (the "Board"), and to have such
authority and duties relative to the operation of the Company as may be
determined by the Board.
b. Term. The initial term of this Agreement shall be from the
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Effective Date hereof until the day that is two years after the Effective Date
(the "Initial Term"). This Agreement shall renew automatically for additional
one (1) year terms unless either party gives notice of termination not less than
90 days prior to the end of the existing term.
c. Best Efforts. During the term of his employment under this
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Agreement, Employee shall devote his full business time, attention, skill, and
efforts to the faithful performance of his duties hereunder, and will use his
best efforts to advance the interests of the Company, the Company's parent
company and any subsidiaries thereof (the "Vsource Companies").
d. Eligibility. This Agreement and the benefits contained herein are
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contingent upon Employee's being authorized to work and reside in the host
country in which the Company elects to base Employee (the "Host Country"). If
Employee loses his authorization to work in the Host Country at any time, for
any reason during the life of this Agreement, the Company will consider
Employee's circumstances, but may, at its sole discretion, consider all, or any
portion of this Agreement void.
e. Statutory Benefits. Employee understand and agree that the
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differential payments and adjustments described below as well as any other
allowances or gratuities provided by the Company under this Agreement are, at
the election of the Company, in substitution for the statutory benefits required
under the laws of the Host Country to compensate employees who are not entitled
to receive these contractual benefits.
2. COMPENSATION. The Company shall pay to Employee, as consideration for
the services to be rendered by Employee hereunder, a base salary of US$87,600
per year (the "Base Salary"). Employee shall be eligible for a target incentive
bonus ("Bonus") equal to 100% of Employee's Base Salary, which shall be payable
upon the achievement of performance targets to be set by the Compensation
Committee (the "Compensation Committee") of the Board of Directors of Vsource,
Inc. ("Vsource").
3. STOCK OPTIONS, RESTRICTED STOCK AND SIMILAR TYPES OF COMPENSATION
BENEFITS. Stock option grants, participation in restricted stock programs or
deferred compensation programs and other similar types of compensation plans
will be decided by the Board of Directors of Vsource but in any event will be on
generally the same terms and conditions made available to other members of
senior management of the Vsource Companies.
4. BENEFITS. Employee is entitled to participate in the Company's programs
for medical, dental, vision, and retirement coverage provided by the Company.
All claims against health services should be submitted to the relevant insurance
provider. In addition, Employee shall receive the following benefits:
(a) Housing: Employee will be reimbursed for all housing expenses up
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to HK$46,000 per month (inclusive of rent, management fees and government
rates), plus all utilities.
(b) Automobile: Employee will be provided with the use of a Lexus
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sedan, or similar make and style of automobile, and driver.
(c) Income Tax Equalization: At the Company's expense, an
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international consultant will advise Employee as to the filing requirements in
the United States and the Host Country, and will prepare Employee's annual tax
returns for those jurisdictions. Employee's taxes will be equalized to the
level he would be responsible for in the United States to the extent provided
for in a tax equalization policy to be established by the Compensation
Committee.
5. EXPENSES. Upon presentation of proper vouchers, receipts or other proof,
Employee shall be reimbursed promptly by the Company for all reasonable travel
and other expenses incurred by Employee in connection with performing his
employment obligations hereunder.
6. VACATIONS. Employee shall be entitled to eight (8) weeks paid vacation
per year during the term of his employment.
7. TERMINATION OF EMPLOYMENT.
a. By the Employee. Employee's employment may be terminated by
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Employee, without cause (a "Voluntary Termination") (i) during the Initial Term,
at any time during the period comprised of the last 90 days of the Initial Term,
and (ii) at any time after the Initial Term, in each case upon 90 days written
notice to the Company.
b. By the Company. Employee's employment may be terminated by the
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Company:
i. immediately, in the event that (1) Employee is convicted or pleads
guilty or nolo contendere to a felony or a crime of moral turpitude, (2)
the Board determines in good faith that Employee has been grossly negligent
or acted dishonestly to the material detriment of the Company, (3) Employee
willfully disobeys the instructions or mandates of the Board and such
disobedience continues after Employee is afforded a reasonable opportunity
to cure such disobedience, or (4) the Board makes a good faith
determination that Employee has engaged in actions amounting to willful
misconduct or failed to perform his duties hereunder and such failure
continues after Employee is afforded reasonable opportunity to cure such
failure (each of (1), (2), (3) or (4), refereed to herein as a "Termination
for Actual Cause"); or
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ii. immediately, in the event that Employee is indicted or otherwise
formally charged with a felony or a crime of moral turpitude, in which case
the Board may, upon three (3) days written notice, suspend Employee's
employment by the Company. Thereafter, all payments of salary and bonuses,
if any, to which Employee otherwise would be entitled under this Agreement
shall be paid into an interest bearing escrow account. In the event that
Employee shall be acquitted of such charges or such charges shall otherwise
be dismissed, Employee shall be reinstated as an employee, and all salary
and accrued bonuses paid into escrow, plus accrued interest, shall be paid
to Employee. In the event Employee shall be convicted or pleads guilty or
nolo contendere to such charges and his employment is terminated hereunder;
all salary and accrued bonuses paid into escrow plus accrued interest,
shall be paid over to the Company, and for purposes of this Agreement,
Employee's employment shall be deemed to have terminated as of the date of
his suspension.
iii. the Board of Directors, in its discretion, resolves to terminate
Employee's employment for any reason other than those set forth in
sub-sections b(i) or b(ii) above, upon 90 days notice to Employee.
c. Death of Employee. In the event of Employee's death during the term
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of his employment, Employee's employment pursuant to this Agreement shall be
deemed to have terminated on the last day of the calendar month during which
Employee's death occurred.
d. Disability. In the event Employee is unable to perform his normal
----------
duties by reason of disability, then at the sole discretion of the Board,
Employee's employment pursuant to this Agreement may be treated as having been
terminated on the last day of the calendar month during which Employee shall
have been deemed disabled. For purposes of this Section, "disability" shall
mean the inability of Employee to perform his normal duties under this Agreement
for a cumulative period in excess of six (6) months within any twelve (12) month
period due to illness, injury, incapacity or other disability, either physical
or mental.
8. SEVERANCE.
a. Voluntary Termination, Termination for Actual Cause or Termination
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Without Cause. In the event of Voluntary Termination, Termination for Actual
--------------
Cause or a termination by the Company of Employee's employment without cause,
the Company shall pay to Employee, in full discharge of its obligations
hereunder, Base Salary through the date specified in the applicable notice as
the termination date (the "Termination Date") of his employment; provided, that
in the case of a Voluntary Termination, if the Company permits Employee to
terminate employment on a date earlier than the Termination Date, then the
Company shall only be obligated to pay Employee's Base Salary through such
earlier date; and provided, further, that in the case of termination by the
Company of Employee's employment without cause, the Company may, at its option,
elect to pay Employee the Base Salary payable Employee through the Termination
Date, and require Employee to leave the Company's offices immediately or any
other time designated by the Company prior to the Termination Date.
b. Death or Disability. In event Employee's employment by the Company
--------------------
terminates on account of Employee's death or disability, the Company shall pay
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to Employee (or his estate), in full discharge of its obligations hereunder,
Employee's Base Salary through the Termination Date.
9. NON-COMPETITION. Employee covenants and agrees that during the term of
Employee's employment with the Company and for a period (the "Non-Compete
Period") commencing on the Termination Date and ending on the date which is one
(1) year from the date of the final payment by the Company to Employee pursuant
to this Agreement, Employ will refrain from: (i) directly or indirectly (as a
director, officer, employee, manager, consultant, independent contractor,
advisor or otherwise) engaging in competition with, or owning any interest in,
performing any services for, participating in or being connected with any
business or organization which engages in competition with any of the Vsource
Companies (ii) soliciting directly or indirectly the patronage of any person
with whom Employee has had personal contact or dealings on behalf of any of the
Vsource Companies during the twelve (12) month period immediately preceding the
Termination Date, or (iii) directly or indirectly employing, soliciting for
employment, or advising or recommending to any other person that they employ or
solicit for employment, any employee of any of the Vsource Companies.
In connection with the foregoing provisions of this Section 9, Employee
represents that his experience, capabilities and circumstances are such that the
provisions of these Sections will not prevent him from earning a livelihood and
that the limitations set forth herein are reasonable and properly required for
the adequate protection of the Company.
9. CONFIDENTIAL INFORMATION.
a. Non-Disclosure. Employee agrees not to use other than for the
--------------
benefit of the Vsource Companies and to keep confidential, during the term of
Employee's employment with the Company and for at least two (2) years
thereafter, all information about the Vsource Companies which the Vsource
Companies treat as confidential, including, but not limited to, information
about customers, marketing plans, marketing techniques, technical information,
and possible new products or services, except that Employee will not be required
to keep particular items of information confidential after those items of
information become generally available to the public without a breach by
Employee of Employee's obligations under this Section. Employee covenants and
agrees that except in the performance of his duties hereunder, he will not, at
any time, directly or indirectly, without the prior written consent of the
Company, use or disclose to any person any confidential or proprietary
information ("Confidential Information") obtained or developed by him while
employed by the Company relating to the business of the Vsource Companies,
except information which at the time (i) is available to others in the business
or generally known to the public other than as a result of disclosure by him not
permitted hereunder, (ii) is lawfully acquired from a third party who is not
obligated to a Vsource Company to maintain such information in confidence or
(iii) is used in any dispute or proceedings between the parties and/or Employee
is legally compelled to disclose such information; provided, however, that prior
-------- -------
to any such compelled disclosure, Employee will (a) assert the privileged and
confidential nature of the Confidential Information against the third party
seeking disclosure and (b) cooperate fully with the Company or any other Vsource
Company in protecting against any such disclosure and/or obtaining a protective
order narrowing the scope of such disclosure and/or use of the Confidential
Information. In the event that such protection against disclosure is not
-4-
obtained, Employee will be entitled to disclose the Confidential Information,
but only as and to the extent necessary to legally comply with such compelled
disclosure.
b. Disclosure to the Company. Employee shall disclose promptly to the
--------------------------
Company all new discoveries, ideas, formulae, products, methods, processes,
designs, trade secrets, copyrightable material, patentable inventions, or other
useful technical information or know-how and all improvements, modifications or
alterations of existing discoveries made, discovered, or developed by him,
either alone or in conjunction with any other person during the term of his
employment by the Company, or using the Vsource Companies' materials or
facilities, which discoveries or developments are based on, derived from, or
make use of any information directly related to the business disclosed to, or
otherwise acquired by, Employee from any of the Vsource Companies during his
employment by the Company. Employee agrees that any copyright, patent,
trademark, or other proprietary rights in any such discoveries shall be the sole
and exclusive property of the Company, and none of the Vsource Companies need
account to Employee for any revenue or profit derived therefrom. If by
operation of law or otherwise, any or all of the items set forth in Section 9,
or any component or element thereof, is considered to be the intellectual
property right of Employee, Employee hereby agrees to irrevocably assign to the
Company, its successor and assigns, ownership of all United States and
international copyrights and all other intellectual property rights available
with respect to each such element or item. Employee shall be deemed to have
granted the Company an irrevocable power of attorney to execute as Employee's
agent any and all documents (including copyright registrations) deemed necessary
by the Company to perfect the Company's intellectual properly rights in and to
each of the items set forth in this Section.
c. Trade Secrets. Employee agrees, in order to effectuate the intent
--------------
of the parties hereunder with respect to confidentiality of the trade secrets of
the Vsource Companies, to return to the Vsource Companies forthwith upon the
request of a Vsource Company or the termination of his employment or promptly
thereafter, all documents, materials, photographs, memorandums, and all copies
or reproductions hereof, or any property of a similar or different nature
containing information relating to the business or other Confidential
Information, whether such material was furnished by a Vsource Company, or
otherwise. Employee further agrees to use his best efforts and to exercise
utmost diligence to protect and guard and keep secret and confidential all
Confidential Information that shall come into his possession by reason of his
employment by the Company.
d. Company Property. Employee agrees to return to the Vsource
-----------------
Companies forthwith upon the request of any Vsource Company or the termination
of his employment or promptly thereafter, all other properly belonging to the
Vsource Companies.
11. DAMAGES. Employee acknowledges that the Company may suffer irreparable
harm, which cannot readily be measured by monetary terms, if Employee breaches
his obligations under Section 9 or any other section. Employee agrees and
acknowledges that, in the event of any such breach, the Company shall be
entitled to cancel any and all shares, and/or options or rights to purchase
shares, of its or Vsource's capital stock received by the Employee and/or cancel
Employees rights to receive additional compensation pursuant to Section 2 or 3
as compensation for services rendered. Employee further acknowledges and agrees
that the Company may obtain injunctive or other equitable relief against
Employee to prevent or restrain such breach causing such harm; provided,
-5-
however, that where such breach involves subject matter that is susceptible of
being cured, Employee will cure such breach as promptly as practicable upon
notice of such breach to Employee. Such injunctive relief shall be in addition
to any other remedies the Company might have under this Agreement or at law.
12. MISCELLANEOUS.
a. Notice. Any notices or other communications to Employee or to the
------
Company under or relating to this Agreement must be in writing and will be
deemed given when delivered in person or sent by facsimile transmission to the
Company or Employee, as the case may be, at the Company's principal offices, or
on the third day after the day on which mailed to the Company or Employee, as
the case may be, by first class mail addressed to the Company or Employee at the
Company's principal offices, except that after the term of this Agreement
terminates, any notice or other communication to Employee will be deemed given
when delivered in person or sent by facsimile transmission, or on the third day
after the day on which mailed by first class mail, to Employee at an address
specified by Employee to the Company in the manner provided in this Section (or,
if Employee does not specify an address, at the Company's principal offices).
b. No Duplication. The payments and benefits received by Employee
---------------
hereunder are in addition to, and not duplicative of, payments and benefits
received by Employee under Employee's employment and non-competition agreement
with XxxXxx000.xxx Ltd dated as of the same date hereof.
c. Entire Agreement; Amendment. This Agreement represents the entire
-----------------------------
understanding of the parties with respect to the subject matter hereof. No
termination, revocation, waiver, modification, amendment or supplement to this
Agreement shall be binding unless consented to in writing by Employee and the
Company.
d. Governing Law. This Agreement shall be interpreted and construed in
-------------
accordance with the laws of Hong Kong, without giving effect to the conflict of
laws provisions thereof.
e. Interpretation. As used in this Agreement, the masculine gender
--------------
shall include the feminine or neuter gender and the plural shall include the
singular wherever appropriate. The titles of the paragraphs and sections have
been inserted as a matter of convenience of reference only and shall not control
or affect the meaning or construction of any of the terms or provisions hereof.
Nothing herein shall be construed against or more favorably toward any party by
reason of any party having drafted this Agreement or any portion hereof.
f. Severability. Any provision of this Agreement that is invalid,
------------
illegal or unenforceable in any jurisdiction shall be automatically reformed and
construed so as to be valid, operative and enforceable to the maximum extent
permitted by law, or if no reformation is permissible, shall be ineffective to
the extent of such invalidity, illegality or unenforceability without
invalidating or rendering unenforceable the remaining provisions of this
Agreement, and any such invalidity, illegality or unenforceability shall not, of
itself, affect the validity, legality or enforceability of such provision in any
other jurisdiction.
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g. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall constitute one and the same instrument.
h. No Waiver. No failure or delay on the part of either party is
----------
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power preclude any
other right or power.
i. Previous Employer. Employee hereby represents that he is under no
------------------
obligation or agreement that would prevent him from being an employee of the
Company or adversely impact his ability to perform the expected services for the
Company. As a condition of employment, no confidential documents, computer
discs, computer stored information, or any other confidential properly of any
previous employer are to be brought on the premises or used in any way in your
employment by the Company. As a further condition of employment, Employee
agrees not to use or disclose the trade secrets or confidential information, if
any, of a previous employer in connection with Employee's services for the
Company.
-7-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
NetCel360 Hong Kong Limited
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx
Nationality: US Citizen
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