EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made as of the latest date indicated below between iGATE
Capital Management, Inc., a Pennsylvania corporation (hereinafter called the
"Company") and the undersigned employee, Xxxxxxxx X. Xxxxxx (hereinafter called
the "Executive").
WHEREAS, this Agreement is a term and condition of Executive's employment
and is made in consideration for employment, wages and benefits offered to
Executive contemporaneously with this Agreement; and
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.
NOW THEREFORE, for the consideration set forth herein, the receipt and
sufficiency of which are acknowledged by the parties, and intending to be
legally bound hereby, Company and Executive agree as follows:
1. DEFINITIONS. As used herein:
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(a) "Company" shall mean iGATE Capital Management, Inc. and any
affiliate or joint venture of iGATE Capital Management, Inc., including any
direct or indirect parent or subsidiary of iGATE Capital Management, Inc., as
well as any of 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 or prospective customers, prospect lists, Company manuals,
formulae, products, processes, methods, financial information or data,
compositions, ideas, improvements, inventions, research, computer programs,
computer related information or data, 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, whether for-profit or not-for-profit (i) whose
existence and business is known to Executive as a result of Executive's access
to the Company's business information, Confidential Information, customer lists
or customer account information; (ii) that is a business entity or individual
with whom the Company has contracted or negotiated during the one (1) year
period preceding the termination of Executive's employment; or (iii) who is or
becomes a prospective client, customer or acquisition candidate of the Company
during the period of Executive's employment.
(d) "Competing Business" shall mean any individual, corporation,
partnership, business or other entity which derives a majority of its business
from design, development, marketing of, engagement in, investment in, production
of or sale of any products, services, or businesses which are the same or
similar to those produced, marketed, invested in or sold by the Company.
2. DUTIES. Executive, who is employed as an at-will employee in the
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position set forth on Attachment A hereof as of the date of this Agreement,
agrees to be responsible for such duties as are commensurate with and required
by such position and any other duties as may be reasonably assigned to Executive
by Company from time to time. Executive further agrees to perform Executive's
duties in a diligent, trustworthy, loyal, businesslike, productive, and
efficient manner and to use Executive's best efforts to advance the business and
goodwill of Company. Executive further agrees to devote all of Executive's
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, Executive will not engage in any other
business for Executive'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, which shall
not be unreasonably withheld.
3. COMPENSATION. Executive's annual base salary and other compensation as
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of the date of this Agreement are as set forth on Schedule A hereto. Said wages
and compensation are subject to being reviewed and modified annually by the
Company. The Company shall be entitled to withhold from any payments to
Executive pursuant to the provisions of this Agreement any amounts required by
any applicable taxing or other authority, or any amounts loaned to Executive by
the Company.
4. BENEFITS. Executive is eligible for the standard Company benefits
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which may be modified by the Company.
5. POLICIES AND PRACTICES. Executive agrees to abide by all Company
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rules, regulations, policies, practices and procedures which the Company may
amend from time to time.
6. AGREEMENT NOT TO COMPETE. In order to protect the business interest
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and good will of the Company with respect to Customers and accounts, and to
protect Confidential Information, Executive covenants and agrees that for the
entire period of time that this Agreement remains in effect, and for a period of
one (1) year after termination of Executive's employment for any reason,
Executive 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
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same as, similar to, or in competition with those products and/or services
made, rendered, offered or under development by the Company;
(b) directly or indirectly employ, or knowingly permit any company or
business directly or indirectly controlled by Executive to employ any person who
is employed by the Company at any time during the term of this Agreement, or in
any manner facilitate the leaving of any such person from his or her employment
with the Company;
(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; or
(d) directly or indirectly engage in any activity or business as a
consultant, independent contractor, agent, employee, officer, partner, director
or otherwise, alone or in association with any other person, corporation or
other entity, in any Competing Business operating within the United States or
any other country where the Executive has worked and/or conducted business for
the Company within the one (1) year period prior to the termination of
Executive's employment. Notwithstanding the above, Executive shall not be
precluded from seeking a legal position with a Competing Business.
Executive 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. Executive further covenants
and agrees that the geographic, length of term and types of activities
restrictions (non-competition restrictions) 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 Paragraph 6 is so broad as to be
unenforceable, then such provision shall be deemed to be reduced in scope or
length, as the case may be, to the extent required to make this Paragraph
enforceable. If the Executive violates the provisions of this Paragraph 6, the
periods described therein shall be extended by that number of days which equals
the aggregate of all days during which at any time any such violations occurred.
Executive acknowledges that the offer of employment by the Company, or any other
consideration offered for signing this agreement, is sufficient consideration
for Executive's agreement to the restrictive covenants set forth in this
Paragraph 6. Executive agrees that Executive's signing of an Employment
Agreement containing the restrictive covenants set forth herein was a condition
precedent to Executive's employment with the Company.
7. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. The Executive
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covenants and agrees during Executive's employment or any time after the
termination of such employment, not to communicate or divulge to any person,
firm, corporation
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or business entity, either directly or indirectly, and to hold
in strict confidence for the benefit of the Company, all Confidential
Information except that Executive may disclose such Information to persons,
firms or corporations who need to know such Information during the course and
within the scope of Executive's employment. Executive will not use any
Confidential Information for any purpose or for Executive's personal benefit
other than in the course and within the scope of Executive's employment.
Executive agrees to sign and abide by the terms and conditions of the Company's
Confidential Information and Intellectual Property Protection Agreement, a copy
of which is attached hereto as Schedule C and incorporated as though fully set
forth herein.
8. TERMINATION. This Agreement may be terminated by either party with or
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without cause under the following conditions:
(a) With Cause Termination. Executive may be terminated from
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employment with "cause." "Cause" shall mean (i) the commission of a crime
involving moral turpitude, theft, fraud or deceit; (ii) conduct which brings the
Company or any of its related entities into public disgrace or disrepute, (iii)
substantial or continued unwillingness to perform duties as reasonably directed
by Executive's supervisors or the Board of Directors; (iv) gross negligence or
deliberate misconduct; or (v) any material breach of paragraphs 6 or 7 of this
Agreement, or Executive's Confidential Information and Intellectual Property
Protection Agreement. In the event that Executive is terminated with "cause,"
the Company may immediately cease payment of any further wages, benefits or
other compensation hereunder. Executive acknowledges that Executive has
continuing obligations under this Agreement including, but not limited to
Paragraphs 6 and 7, in the event that Executive is terminated with cause.
Executive agrees to provide Company with thirty (30) days notice should
Executive voluntarily decide to separate from Executive's employment.
(b) Without Cause. In the event that Executive's employment is
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terminated without cause, Executive will be paid six (6) months severance
("Severance Period") at Executive's last base salary. All payments referenced
herein, less appropriate deductions, will be paid as salary continuation
pursuant to the Company's regular schedule and payroll practices. Executive
shall also be entitled to continued vesting in all applicable equity incentive
and option plans, during the Severance Period. Executive shall also be entitled
to continue in the Company's health, dental, vision and life insurance plans at
the same benefit level existing at the time of employment termination during the
Severance Period. In the event that Executive obtains employment with another
employer during the Severance Period and said new employer provides similar
benefits, Executive's right to receive further benefits (excluding salary and
vesting of options) shall terminate upon receipt of said benefits from
Executive's new employer. Executive shall not be entitled to any salary or
benefits other than those stated herein. Executive acknowledges Executive's
continuing obligations under this Agreement including, but not limited to
Paragraphs 6, and 7, in the event that Executive is terminated without cause.
Executive further acknowledges that the payment of any severance under this
Agreement is conditioned upon Executive first signing an agreement and release
of all claims against the Company in a form similar to the one attached hereto
as Schedule D.
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9. TERM. Executive's employment shall continue from year to year or until
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such employment is terminated in accordance with the provisions of Paragraph 8.
10. EQUITABLE RELIEF; FEES AND EXPENSES. Executive stipulates and agrees
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that any breach of this Agreement by Executive may 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 Executive, to obtain such preliminary or
temporary injunctions or restraining orders or decrees as may be necessary to
protect the Company against, or on account of, any breach by Executive of the
provisions of this Agreement without the need to post bond. Such right to
equitable relief is in addition to all other legal remedies the Company may have
to protect its rights. Executive 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
Executive, to any court of law or other appropriate law enforcement body located
in any other state in the U.S.A. or any other country in the world where Company
does business, and that said court or body shall give full force and effect to
said order and or judgment.
11. EMPLOYMENT DISPUTE SETTLEMENT PROCEDURE-WAIVER OF RIGHTS. In
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consideration of the Company employing Executive and the wages and benefits
provided under this Agreement, Executive and the Company each agree that, in the
event either party (or its representatives, successors or assigns) brings an
action in a court of competent jurisdiction relating to Executive's recruitment,
employment with, or termination of employment from the Company, the plaintiff in
such action agrees to waive his, her or its right to a trial by jury, and
further agrees that no demand, request or motion will be made for trial by jury.
In consideration of the Company employing Executive, and the wages and
benefits provided under this Agreement, Executive further agrees that, in the
event that Executive seeks relief in a court of competent jurisdiction for a
dispute covered by this Agreement, the Company may, at any time within 20 days
of the service of Executive's complaint upon the Company, at its option, require
all or part of the dispute to be arbitrated by one arbitrator in accordance with
the rules of the American Arbitration Association. Executive agrees that the
option to arbitrate any dispute is governed by the Federal Arbitration Act, and
is fully enforceable. Executive understands and agrees that, if the Company
exercises its option, any dispute arbitrated will be heard solely by the
arbitrator, and not by a court. This pre-dispute resolution agreement will
cover all matters directly or indirectly related to Executive's recruitment,
employment or termination of employment by the Company; including, but not
limited to, claims involving laws against any form of discrimination whether
brought under federal and/or state law, and/or claims involving co-employees,
but excluding Worker's Compensation Claims.
THE RIGHT TO A TRIAL, AND TO A TRIAL BY JURY, IS OF VALUE. YOU MAY WISH TO
CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. IF SO, TAKE A COPY OF THIS
AGREEMENT WITH YOU. HOWEVER, YOU WILL NOT BE
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OFFERED EMPLOYMENT UNDER THIS AGREEMENT UNTIL THIS AGREEMENT IS SIGNED AND
RETURNED BY YOU.
12. AMENDMENTS. No supplement, modification, amendment or waiver of the
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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.
13. ACKNOWLEDGMENTS OF EXECUTIVE. Executive hereby acknowledges and
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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 Executive is
terminated with or without cause or for performance related reasons; (c)
Executive has no intention of competing with the Company within the limitations
set forth above; (d) Executive has received adequate and valuable consideration
for entering into this Agreement; (e) Executive's covenants shall be construed
as independent of any other provision in this Agreement and the existence of any
claim or cause of action Executive 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; and (f) the execution and delivery of
this Agreement is a mandatory condition precedent to the Executive's receipt of
the consideration provided herein.
14. FULL UNDERSTANDING. Executive acknowledges that Executive has been
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afforded the opportunity to seek legal counsel, that Executive has carefully
read and fully understands all of the provisions of this Agreement and that
Executive, in consideration for the compensation set forth herein, is
voluntarily entering into this Agreement.
15. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements
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written or oral, between the parties hereto concerning the subject matter
hereof.
16. SEVERABILITY. This Agreement supersedes all prior agreements, written
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or oral, between the parties hereto concerning the subject matter hereof.
Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein. The restrictive covenants
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stated herein may be read as if separate and apart from this Agreement and
shall survive the termination of Executive's employment with the Company for
any reason.
17. OTHER AGREEMENTS. Executive represents and warrants that Executive is
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not a party to or otherwise subject to or bound by the terms of any contract,
agreements or understandings that would affect Executive's right or abilities to
perform under this Agreement. Executive specifically represents that Executive
will not use any confidential information obtained from Executive's prior
employer(s) in the performance of Executive's duties herein and is not subject
to any other restrictive covenants or non-competition agreements.
18. CHOICE OF LAW, JURISDICTION AND VENUE. The parties agree that this
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Agreement shall be deemed to have been made and entered into in Allegheny
County, Pennsylvania and that the Law of the Commonwealth of Pennsylvania shall
govern this Agreement, without regard to conflict of laws principles.
Jurisdiction and venue is exclusively limited in any proceeding by the Company
or Executive to enforce their rights hereunder to any court or arbitrator
geographically located in Allegheny County, Pennsylvania. The Executive hereby
waives any objections to the jurisdiction and venue of the courts in or for
Allegheny County, Pennsylvania, including any objection to personal
jurisdiction, venue, and/or forum non-conveniens, in any proceeding by the
Company to enforce its rights hereunder filed in or for Allegheny County,
Pennsylvania. Executive agrees not to object to any petition filed by the
Company to remove an action filed by Executive from a forum or court not located
in Allegheny County, Pennsylvania.
19. SUCCESSORS IN INTEREST. This Agreement shall be binding upon and
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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, consolidation or
restructuring involving the Company, or a sale or transfer of the business
and/or any assets of the Company, and Executive agrees to be obligated by this
Agreement to any successor, assign or surviving entity. Any successor to the
Company is an intended third party beneficiary of this Agreement. Executive may
not assign this Agreement.
20. NOTICES. All notices, requests, demands or other communications by
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the terms hereof required or permitted to be given by one party to the other
shall be given in writing by personal delivery or by registered mail, postage
prepaid, addressed to such other party or delivered to such other party as
follows:
(a) to the Company at:
Xxxxxx Plaza 10
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: President or Chairman of the Board
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(b) to the Executive at:
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
or at such other address as may be given by either of them to the other in
writing from time to time, and such notices, requests, demands, acceptances or
other communications shall be deemed to have been received when delivered or,
if mailed, three (3) Business Days after the day of mailing thereof; provided
that if any such notice, request, demand or other communication shall have
been mailed and if regular mail service shall be interrupted by strikes or
other irregularities, such notices, requests, demands or other communications
shall be deemed to have been received when delivered or, if mailed, three (3)
Business Days from the day of the resumption of normal mail service.
21. COUNTERPARTS; TELECOPY. This Agreement may be executed in
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counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. Delivery of executed
signature pages by facsimile transmission will constitute effective and binding
execution and delivery of this Agreement.
22. HEADINGS. The headings used in this Agreement are for convenience
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only and are not to be considered in construing or interpreting this Agreement.
23. SURVIVABILITY. The terms of this Agreement survive the termination of
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Executive's employment with the Company for any reason.
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ AND FULLY UNDERSTAND ALL OF THE
PROVISIONS OF THIS AGREEMENT AND THAT I AM VOLUNTARILY ENTERING INTO THIS
AGREEMENT.
iGATE CAPITAL MANAGEMENT, INC.: EXECUTIVE:
By: _________________________________ _____________________________________
Date: _______________________________ Date: ______________________________
Witness: ____________________________ Witness: ____________________________
Date: _______________________________ Date: ______________________________
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Schedule A
1. Position: Managing Director-General Counsel and Secretary and Chief Legal
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Officer. Reports to the Chief Executive Officer.
2. Base Salary: $250,000 (two hundred fifty thousand dollars) for the first
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year of the employment term. Thereafter, Executive's base salary shall be
determined in good faith by the Company's Board of Directors or the Chief
Executive Officer.
3. Bonus: $50,000 (fifty thousand dollars) payable quarterly beginning with
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the first quarter of 2001, for the first year of employment term at the
discretion of the President and/or Chairman and based 50% on individual
achievements and 50% on corporate objectives being met. These objectives will
be established as part of the iGATE Capital Management Bonus Plan. Thereafter,
Executive's annual bonus potential shall be determined in good faith by the
Company's Board of Directors or the Chief Executive Officer.
4. Benefits: Executive is eligible for standard company benefits in the same
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manner as other executives of the Company including twenty (20) days paid
vacation per year.
5. Expenses: The Company will reimburse all properly documented expenses
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reasonably related to Executive's performance of Executive's duties hereunder.
6. Stock Options: Executive shall receive 100,000 non-qualified stock options
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pursuant to the Mastech Corporation Second Amended and Restated 1996 Stock
Incentive Plan and the Executive's Stock Option Agreement. These options will
vest over a four-year period, equally in six-month increments, with the initial
12,500 options vesting six months from the Executive's first day of employment.
7. Change of Control: Executive will be entitled to participate in the
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Company's Change of Control Plan, a copy of which is attached as Exhibit B.
BY: ________________________________ BY: ___________________________________
Xxxxx Xxxxxxxx/Date Xxxxxxxx X. Xxxxxx/Date
ATTACHMENT A
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