EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT, dated as of December 16, 1996, between
Mastech Systems Corporation, a Pennsylvania corporation, with its principal
executive offices at 0000 XxXxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the
"Company"), and Xxxxx X. Xxxxxxx, an individual and resident of Allegheny
County, Pennsylvania (the "Executive").
WHEREAS, the Executive is and has been employed by the Company and is
currently Co-Chairman and President of the Company;
WHEREAS, the Company and the Executive desire to set forth in this
Agreement the terms on which the Company will continue to employ the Executive
and the Executive agrees to be employed by the Company;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and intending to be legally bound hereby, the Company and the
Executive hereby agree as follows:
1. Position and Duties.
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a. The Company agrees to, and hereby does, continue to employ the
Executive for the term of this Agreement to render services to the Company as
Co-Chairman and President of the Company, (and the Executive shall be elected to
the same office and shall serve concurrently as such as an officer of the
Company's ultimate corporate parent, Mastech Corporation), and in connection
therewith, to perform such duties as the Executive is now performing and such
other duties commensurate with such positions as the Executive may reasonably be
directed to perform by the Board of Directors. The Executive shall have the
right to devote a reasonable amount of time to (i) industry, community or
charitable organizations, and (ii) the management of personal investments, so
long as such activities do not interfere or conflict with the performance by the
Executive of his obligations hereunder. Subject to the provisions of Section 8,
Section 9 and Section 10 hereof, the Executive may serve as a director of other
companies with the consent of the Board of Directors of the Company, which
consent shall not be unreasonably withheld.
b. The Executive hereby accepts such employment and agrees
faithfully to perform to the best of his ability the duties described in Section
1(a).
2. Term. Subject to Section 4 hereof, the term of employment of the
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Executive under this Agreement shall commence on the closing date of the initial
public offering of the Company's Common Stock (the "Effective Date") (at which
time this Agreement shall become effective) and shall terminate on the last day
of the calendar month which is 24 calendar months after the Effective Date.
Commencing on the last day of the first full calendar month after the Effective
Date and on the last day of each succeeding calendar month, the term of this
Agreement shall be automatically extended without further action by either party
for one additional calendar month unless one party notifies the other in writing
that such party does not wish to extend the term of this Agreement. In the event
that such notice shall have been
delivered, the term hereof shall no longer be subject to automatic extension and
the term hereof shall expire on the date which is 24 calendar months after the
last day of the month in which such written notice is received. (The last day of
the calendar month in which the term hereof, as extended from time to time,
shall end is hereinafter referred to as the "Expiration Date").
3. Compensation. In consideration for the Executive's agreements
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contained herein, and as compensation to the Executive for the performance of
the services required hereunder, the Company shall pay or grant to him the
following salary and other compensation and benefits:
a. a base salary, payable in equal installments not less
frequently than monthly, at an annual rate of not less than $300,000 per year,
such amount to be determined from time to time by the Board of Directors or an
appropriate committee thereof, provided, however, that the Executive's base
salary shall be periodically reviewed by the Board of Directors and shall be
increased if the Board of Directors 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 the Company;
b. an annual incentive compensation payment (bonus) of not less
than $200,000, the precise amount to be determined by the Board of Directors and
payable to the Executive no later than April 15 of each calendar year for the
prior year; provided that payment of all or a portion of such bonus may be made
subject to the attainment of reasonable Company, business unit or individual
performance goals;
c. such other awards under the Company's 1996 Stock Incentive
Plan (the "Plan") or under any other stock option, incentive compensation or
other compensation plan, program or arrangement now existing, or hereafter
adopted and applicable to executive officers of the Company, as the Board of
Directors, or an appropriate committee thereof administering such plan, program
or arrangement, may determine appropriate in light of the duties and
responsibilities of the Executive in respect to other executive officers;
d. participation on the same terms and conditions as all other
employees in all employee benefit plans, whether or not qualified within the
meaning of Section 401(a) of the Internal Revenue Code of 1986, as may be
amended from time to time (the "Code"), as may be now or hereafter sponsored or
maintained for all employees of the Company, and participation on the same terms
and conditions as other executive officers in such other plan, program or
arrangement as may be now or hereafter sponsored or maintained for executive
officers of the Company;
e. reimbursement for reasonable travel and other expenses
incurred by Executive in performing his obligations hereunder pursuant to the
terms and conditions of the Company's policy in respect thereto; and
f. reasonable vacations, absences on account of temporary
illness and fringe benefits customarily enjoyed by employees or officers of the
Company under the terms and conditions of the Company's policy in respect
thereto.
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Nothing contained in this Agreement shall prevent the Board of
Directors from amending or otherwise altering the Plan, or any other plan,
program or arrangement so long as such amendment or alteration (i) is
accomplished pursuant to the terms thereof as in effect on the Effective Date or
on the date such is adopted, if later, and (ii) equitably affects all employees,
executive or otherwise, previously covered thereunder.
4. Termination of Employment. This Agreement shall terminate upon the
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Expiration Date or upon the death of the Executive. The Company may terminate
this Agreement prior to the Expiration Date (and the Executive's employment
hereunder shall terminate) for "Disability" or "Cause". Termination of this
Agreement by the Company for any reason not set forth in the two preceding
sentences shall not be deemed a permitted termination and shall be deemed a
breach of this Agreement. In the event of any termination of this Agreement
prior to the Expiration Date, whether a permitted termination or otherwise, the
provisions of Section 5 of this Agreement shall determine the amount, if any, of
any compensation thereafter due the Executive in respect to such termination.
As used in this Agreement, the following terms shall have the
meanings set forth:
a. Disability. If, as a result of the Executive's incapacity
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due to physical or mental illness, the Executive shall have been absent from his
duties with the Company on a full-time basis for six consecutive months, and
within thirty days after written notice of termination is given by the Company,
the Executive shall not have returned to the full-time daily performance of his
duties, the Executive shall be deemed to have experienced a Disability and the
Company may terminate the Executive's employment. The Executive shall be
entitled to leaves of absence from the Company in accordance with the Company's
policy generally applicable to executives for illness or other temporary
disabilities for a period or periods not exceeding an aggregate of six months in
any calendar year, and his compensation and status as an employee hereunder
shall continue during any such period or periods.
b. Cause. Termination by the Company of employment for "Cause"
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shall mean termination upon:
(i) the willful and continued failure by the Executive to
substantially perform his duties with the Company (other than any such failure
resulting from his incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to the Executive by the
Board of Directors which specifically identifies the manner in which the Board
of Directors believes that the Executive has not substantially performed his
duties, and which failure has not been cured within thirty days after such
written demand; or
(ii) the willful and continued engaging by the Executive in
conduct which is demonstrably and materially injurious to the Company,
monetarily or otherwise; or
(iii) the willful breach by the Executive of the Non-
Competition clause in Section 8, the Non-Solicitation clauses in Sections 9 and
10 or the Confidentiality clause in Section 11 hereof.
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For purposes of this Subsection (b), no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted to be
done, by the Executive in bad faith and without reasonable belief that such
action or omission was in the best interest of the Company. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution
duly adopted by the affirmative vote of at least 80% of the directors then
serving (after reasonable notice to the Executive and an opportunity for the
Executive, together with his counsel, to be heard before the Board of
Directors), finding that in the good faith opinion of the Board of Directors the
Executive was guilty of conduct set forth above in clauses (i), (ii) or (iii) of
the first sentence of this Subsection (b) and specifying the particulars thereof
in detail.
c. Notice of Termination. Any purported termination by the
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Company shall be communicated by written Notice of Termination to the Executive
in accordance with Section 13 hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination, resignation or retirement provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination, resignation or retirement under the
provision so indicated.
d. Date of Termination, Etc. "Date of Termination" shall mean (i)
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if the Executive's employment is terminated for Disability, thirty days after
Notice of Termination is given (provided that the Executive shall not have
returned to the performance of the Executive's duties on a full-time daily basis
during such thirty-day period), and (ii) if the Executive's employment is
terminated for any other reason, the date specified in the Notice of Termination
(which shall not be less than thirty days nor more than sixty days, from the
date such Notice of Termination is given) and provided that if within thirty
days after any Notice of Termination is given the Executive and the Executive
has notified the Company that a dispute exists concerning the termination, the
Date of Termination shall be the date on which the dispute is finally determined
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected).
Any party giving notice of a dispute shall pursue the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute, the
Executive will be entitled to indemnification under Section 7 hereof and the
Company will continue to pay the Executive his full compensation in effect when
the notice giving rise to the dispute was given (including, but not limited
to, base salary) and continue the Executive as a participant in all
compensation, employee benefit and insurance plans, programs and arrangements in
which the Executive was participating when the notice giving rise to the dispute
was given, until the dispute is finally resolved in accordance with this
Subsection (d).
5. Compensation Upon Termination.
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a. Death. If the Executive's employment hereunder terminates by
reason of his death, the Company shall be obligated to pay to his surviving
widow, or to his legal representatives if he leaves no surviving widow or if his
surviving widow dies prior to fulfillment of the Company's obligations, (i) the
Executive's then current base salary for a twelve (12) month
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period commencing on the first day of the month following the Executive's death,
or until the Expiration Date, whichever shall be the first to occur, (ii) within
30 days after the Executive's death, a one time payment of $100,000, and (iii)
any benefits to which the Executive is entitled under any insurance policies on
the life of the Executive, under the Company's insurance programs and other
employee benefit plans, programs and arrangements then in effect and under the
Company's pension plan for salaried employees, if any. In addition to the
foregoing, the Company shall arrange to provide the Executive's spouse and
eligible dependents with and shall pay the cost or premiums when due for health
and accident insurance benefits substantially similar to those which the
Executive is receiving immediately prior to his death.
b. Disability. If the Executive's employment hereunder
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terminates by reason of his Disability, the Company shall (i) continue to pay to
the Executive, in accordance with the payroll practices of the Company in effect
prior to the Date of Termination, the Executive's then current base salary for
thirty-six (36) months after the Date of Termination, reduced by any benefits to
which the Executive may be entitled under any Company sponsored disability
income or income protection plan, policy or arrangement, the premiums for which
are paid by the Company, and (ii) for each of the three years after the Date of
Termination an amount equal to the highest annual bonus that the Executive
received in the three years prior to the Date of Termination, payable each year
in a lump sum at approximately the same time as annual bonuses were paid by the
Company in the year prior to the Date of Termination. If the Executive dies
prior to the date on which such additional amounts would have ceased to be
payable under this Subsection (b), the amount that would have been payable by
the Company had he lived shall continue to be paid by the Company to his
surviving widow, for a period of 12 months following the Executive's death, at
the same times and rates as it would have been payable to him.
c. Cause. If the Executive's employment hereunder is terminated
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by the Company for Cause, the Company shall pay to the Executive his full base
salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given and the Company shall have no further obligations to the
Executive under this Agreement.
d. Voluntary Resignation or Retirement. In the event the
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Executive retires or resigns other than because of a material breach of this
Agreement by the Company, the Company shall pay to the Executive his full base
salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given and, except as provided in Section 6, the Company shall
have no further obligations to the Executive under this Agreement.
e. Other. If the Executive's employment hereunder is
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terminated (1) by the Company other than for Cause or Disability, or (2) by the
Executive because of a material breach by the Company of this Agreement, then
the Executive shall be entitled to the benefits provided below:
(i) the Company shall pay the Executive his full base
salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given;
(ii) in lieu of any further salary payments to the
Executive for periods subsequent to the Date of Termination, the Company shall
pay as severance pay to the Executive,
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not later than the thirtieth day following the Date of Termination, a lump sum
severance payment equal to the Executive's full base salary for the then
remaining term of this Agreement (without regard to the date of such Notice of
Termination) at the rate then in effect, discounted to present value at a
discount rate of 7% per annum applied to each future payment from the time it
would have become payable;
(iii) the Executive shall receive, not later than the
thirtieth day following the Date of Termination, that number of shares of the
Corporation's common stock with a value equal to the product of (i) the
difference (to the extent that such difference is a positive number) obtained by
subtracting the per share exercise price of each (1) Option and (2) SAR held by
the Executive, whether or not then fully exercisable, from the closing price of
the Common Stock (the "Closing Price") as reported on the National Association
of Securities Dealers Automatic Quotation/National Market System, or such
similar national quotation system or stock exchange on the Date of Termination
(or if not traded on the Date of Termination, the closing price on the preceding
business day on which the Common Stock traded), and (ii) the total number of
Options and SARs held by the Executive provided, however, that the Executive may
elect to receive in lieu of stock an amount of cash equal to his federal and
state income tax liability with respect to amounts received pursuant to this
subsection (iii);
(iv) the Company shall also pay directly as incurred or
reimburse the Executive, upon demand, all legal fees and expenses incurred by
the Executive in contesting or disputing any such termination or in seeking to
obtain or enforce any right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the extent attributable to the
application of Section 4999 of the Internal Revenue Code (the "Code") to any
payment or benefit provided hereunder;
(v) for the remainder of the Executive's life, the Company
shall arrange to provide the Executive with and shall pay the cost or premiums
when due for disability and health-and-accident insurance benefits substantially
similar to those which the Executive is receiving immediately prior to the
Notice of Termination;
(vi) the payments under this Subsection (e) are intended by
the parties to be due and payable under the circumstances of a termination for
the reasons set forth above whether or not such circumstances are preceded by a
change in control of the Company. If, notwithstanding the intentions of the
parties, it is asserted by any governmental agency, in any tax audit,
administrative proceeding or otherwise, that any payments provided under this
Section 5(e) (the "Severance Payments") are or will be subject to the tax (the
"Excise Tax") imposed by Section 4999 of the Code (or any successor provision
thereto) and/or that a federal income tax deduction for amounts paid as
Severance Payments will not be allowed to the Company for any year by reason of
Section 28OG of the Code (or any successor provision thereto), the Executive may
contest or refute such assertion with respect to the Excise Tax in any
appropriate forum (the "Executive's Contest") and the Company shall diligently
and vigorously contest or refute such assertion with respect to the disallowance
of such deduction in all administrative proceedings and in the federal district
court or the Tax Court, whichever shall have jurisdiction (the "Company's
Contest"). The Executive's Contest and the Company's Contest shall be conducted
and presented
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separately unless the Executive, in his discretion but with the consent of the
Company, joins in the Company's Contest. In any event, the Executive shall be
entitled to retain attorneys and other experts deemed necessary or appropriate
by the Executive to the proper presentation of the Executive's Contest and shall
not be compelled by the Company to compromise, settle or otherwise terminate the
Executive's Contest without his written consent thereto. The Company and the
Executive shall cooperate one with the other and each shall provide to the other
copies of all documents relevant to or useful in connection with either the
Executive's Contest or the Company's Contest as may reasonably be requested by
the other. The Executive shall attend any hearing, deposition or other
proceeding at which his attendance in person is material to the Company's
Contest. The Company shall cause the appropriate authorized officer or officers
of the Company to attend any hearing, deposition or other matter at which the
Company's appearance is requested by any party; and
(vii) The payments provided for in this Subsection (e),
shall be made not later than the thirtieth day following the Date of
Termination, provided, however, that if the amounts of such payments cannot be
finally determined on or before such day, the Company shall pay to the Executive
on such day an estimate, as determined in good faith by the Company, of the
minimum amount of such payments and shall pay the remainder of such payments
(together with interest at the rate provided in Section 1274(b)(2)(B) of the
Code) as soon as the amount thereof can be determined but in no event later than
the sixtieth day after the Date of Termination. In the event that the amount of
the estimated payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to the Executive payable
on the fifth day after demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code).
f. The Executive shall not be required to mitigate the amount
of any payment provided for in this Section 5 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section 5 be
reduced by any compensation earned by the Executive as the result of employment
by another employer, or otherwise. Notwithstanding the preceding sentence,
benefits otherwise receivable by the Executive pursuant to Section 5(e)(v) above
shall be reduced to the extent comparable benefits are actually received by the
Executive from the plan or plans of any subsequent employer or from any program
maintained by any governmental body not requiring contribution by the Executive,
and any such benefits actually received by the Executive shall be reported to
the Company.
6. Retirement.
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Nothing contained in this Agreement shall be deemed to limit the
Executive's right to receive vested benefits under the Company's retirement
policies and pension plan for salaried employees, if any, and to thereby receive
all benefits for which he is eligible under such plans and any other plan,
program or arrangement of the Company, all subject to and in accordance with the
terms of those plans.
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7. Indemnification.
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a. The Company 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 the Company to provide broader
indemnification rights than the Company is permitted to provide prior to such
amendment), the Executive or his estate if made a party to, or threatened to be
made a party to, or is otherwise involved in (as a witness or otherwise) any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative and whether or not by or in the right
of the Company 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 or
was a director, officer or controlling person (within the meaning of the
Securities Exchange Act of 1934, as amended) of the Company or is or was serving
at the request of the Company 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 Executive while acting in an official capacity as a director,
officer or controlling person of the Company or in any other capacity on behalf
of the Company, against all expenses, liability and loss, including but not
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 Executive in connection therewith.
b. Notwithstanding the foregoing, and except as provided in
Section 7(e) below, the Company shall indemnify the Executive seeking
indemnification in connection with a proceeding (or part thereof) initiated by
the Executive only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Company.
c. Subject to the limitation set forth above concerning
proceedings initiated by the Executive, the right to indemnification conferred
in this Section 7 shall be a contract right and shall include the right to be
paid by the Company the expenses incurred in defending any such proceeding (or
part thereof) or in enforcing his rights under this Section 7 in advance of the
final disposition thereof promptly after receipt by the Company 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 Executive in advance of the final disposition of a proceeding shall be made
only upon receipt of an undertaking, by or on behalf of the Executive, 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 the Company under this
Section 7, or in the case of a criminal action, the majority of the Board of
Directors so determines that he is not entitled to be indemnified by the
Company, or otherwise.
d. The right to indemnification and advancement of expenses
provided herein shall continue as to the Executive after he has ceased to be
employed by the Company or to serve in any of the other capacities described
herein, and shall inure to the benefit of his heirs, executors and
administrators.
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e. The Company shall reimburse the Executive for the expenses
(including attorneys' fees and disbursements) incurred in successfully
prosecuting or defending any dispute related to his right to indemnification
hereunder.
f. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of a final disposition conferred
in this Section 7 shall not be deemed exclusive of any other rights to which the
Executive 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.
8. Non-Competition. During the term of this Agreement and, if and
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only if the Executive's employment has been terminated by the Company for Cause,
and in no other case, for one (1) year after the Date of Termination, the
Executive shall refrain from competing with the Company or any subsidiary of the
Company except with the Company's prior written consent. The phrase "refrain
from competing with the Company or any subsidiary of the Company" shall mean
that the Executive will not engage, directly or indirectly (including, by way of
example only, as a principal, partner, venturer, employee or agent) nor have any
direct or indirect interest in any enterprise (a "Competing Enterprise") which
competes with the Company or any subsidiary thereof by providing information
technology consultants to clients on an independent contractor basis. It is
agreed that the foregoing provisions shall not restrict the Executive from
either (i) being a director of or having any investments or other interests in
an enterprise which is not a competing enterprise, or (ii) having any
investments in any competing enterprise the stock of which is listed on a
national securities exchange or traded publicly over-the-counter so long as such
investment does not give the Executive more than five percent (5%) of the voting
stock of such enterprise.
9. Non-Solicitation of Customers and Suppliers. Executive agrees that
-------------------------------------------
during his employment with the Company he shall not, directly or indirectly,
solicit the trade of, or trade with, any customer, prospective customer,
supplier, or prospective supplier of the Company for any business purpose other
than for the benefit of the Company. Executive further agrees that for one (1)
year following termination of his employment with the Company, including without
limitation termination by the Company for cause or without cause, Executive
shall not, directly or indirectly, solicit the trade of, or trade with, any
customers or suppliers, or prospective customers or suppliers, of the Company
except in instances where the Company has not solicited the potential client in
the past or where the services proposed to be offered by the Executive are not
then offered by the Company.
10. Non-Solicitation of Employees. Executive agrees that, during his
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employment with the Company and for one (1) year following termination of
Executive's employment with the Company, including without limitation
termination by the Company for cause or without cause, Executive shall not,
directly or indirectly, solicit or induce, or attempt to solicit or induce, any
employee of the Company to leave the Company for any reason whatsoever, or hire
any employee of the Company.
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11. Confidentiality. The Executive agrees:
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a. To keep secret all trade secret and proprietary information
of the Company and its subsidiaries and affiliates and not to disclose them to
anyone outside the Company or its subsidiaries and affiliates, either during or
for one year after his employment with the Company, except with the Company's
prior written consent or as required by law; and
b. To deliver promptly to the Company on termination of
Executive's employment with the Company all memoranda, notes, records, reports
and other documents (and all copies thereof) with respect to any such trade
secret and proprietary information (such as customers lists, suppliers lists,
etc.) which the Executive may then possess or have under his control.
12. Arbitration. Any disputes hereunder shall be settled by
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arbitration in Pittsburgh, Pennsylvania under the auspices of, and in accordance
with the rules of, the American Arbitration Association, and the decision in
such arbitration shall be final and conclusive on the parties and judgment upon
such decision may be entered in any court having jurisdiction thereof.
13. Notices. All notices and other communications which are required
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or may be given under this Agreement shall be in writing and shall be delivered
personally, by overnight courier, or by registered or certified mail addressed
to the party concerned at the following addresses:
If to the Company:
Mastech Corporation
0000 XxXxx Xxxx
Xxxxxxx, XX 00000
If to the Executive:
Xxxxx Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
or to such other address as shall be designated by notice in writing to the
other party in accordance herewith. Notices and other communications hereunder
shall be deemed effectively given when personally delivered, or, if sent by
overnight courier or by mail, upon receipt.
14. Miscelleneous.
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a. This Agreement supersedes all prior agreements, arrangements
and understandings, written or oral, relating to the subject matter hereof.
b. (i) This Agreement shall inure to the benefit of the
Executive's heirs, representatives or estate to the extent stated herein.
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(ii) This Agreement shall be binding on the successors and
assigns of the Company, and the Company shall require any successor (whether
direct or
(iii) indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business or assets of the Company, by
agreement in form and substance satisfactory to the Executive, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such succession had
taken place. As used in this Agreement, "Company" shall mean the Company as
defined in the preamble to this Agreement and any successor to its business or
assets which executes and delivers the agreement provided for in this Subsection
14 (b) (ii) or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
c. This Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either party at any time
or times to require performance of any provisions hereof shall in no manner
affect the right at a later time to enforce such provisions thereafter. No
waiver by either party of the breach of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
breach or a waiver of the breach of any other term or covenant contained in this
Agreement.
d. In the event any one or more of the covenants, terms or
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants, terms and
provisions contained herein shall be in no way affected, prejudiced or disturbed
thereby.
e. This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder, except as provided in
Subsection 14(b) above. Without limiting the foregoing, the Executive's right to
receive payments hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other 1han a transfer by
his will or by the laws of descent or distribution, and in the event of any
attempted assignment or transfer contrary to this Subsection 14(e) the Company
shall have no liability to pay any amount so attempted to be assigned or
transferred; provided, however, that the Executive may ask the Company to
consent to any assignment of any payments due after the termination of his
employment and the Company shall not unreasonably withhold such consent.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
-11-
ATTEST: MASTECH SYSTEMS CORPORATION:
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxxx
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Secretary Xxxxx Xxxxxxxx
Co-Chairman and Chief Executive Officer
WITNESS: EXECUTIVE:
/s/ [Illegible] /s/ Xxxxx Xxxxxxx
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-12-
