Severance Agreement - Kanbay International Inc. and Raymond J. Spencer
KANBAY INTERNATIONAL, INC.
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (this "Agreement") is made and entered into by and
among Kanbay International, Inc., a Delaware corporation (the "Company"), Kanbay
Incorporated, an Illinois corporation ("Kanbay") and Raymond J. Spencer
("Executive") as of ________________, 2004 (the "Effective Date").
WHEREAS, it is in the best interests of Kanbay, the Company, and the
Company's stockholders to assure Executive's continued dedication to Kanbay and
the Company; and
WHEREAS, any consideration by Kanbay and the Company of strategic
transactions such as mergers and acquisitions would inevitably create personal
uncertainties for Executive, and therefore distract Executive from the business
of Kanbay and the Company; and
WHEREAS, it is in the best interests of Kanbay, the Company and the
Company's stockholders to retain Executive's dedication and reduce distractions
by providing Executive with compensation and benefits arrangements in the event
of certain terminations of Executive's employment, including terminations in
connection with a strategic transaction, as more fully provided herein; and
WHEREAS, Executive and the Company have entered into a severance agreement
dated as of ______________ and amended effected December 31, 2002 (collectively
the "Old Severance Agreement"), with respect to Executive's employment at
Kanbay; and
WHEREAS, Kanbay and the Company and Executive have determined that it is in
their mutual best interests that the Old Severance Agreement should be replaced,
as provided for herein;
NOW, THEREFORE, in consideration of and reliance upon the foregoing
background statement and the covenants contained in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Kanbay, the Company and Executive agree as follows:
1. DEFINITIONS
1.1 "Affiliate" shall mean any corporation or other business entity that
is a parent or subsidiary of the Company, including ownership of 50% or more of
the voting or profits interests of the corporation or other business entity.
1.2 "Base Salary" shall mean the annual Base Salary payable to Executive
so long as the Company or an Affiliate employs Executive. The annual Base Salary
shall be paid to Executive in equal installments no less frequently than
monthly, unless Executive shall elect to defer the receipt thereof. The Board
shall review Executive's Base Salary at least annually and shall increase
Executive's Base Salary at any time and from time to time as shall be
substantially consistent with increases in Base Salary generally awarded in the
ordinary course of business to other comparably performing peer executives of
the Company or an Affiliate. Any increase in Base Salary shall not serve to
limit or reduce any other obligation to Executive under this Agreement or any
other plan or agreement with the Company or an Affiliate. Base Salary shall
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not be reduced after any such increase and the term Base Salary as utilized in
this Agreement shall refer to Base Salary as so increased.
1.3 "Board" shall mean the Board of Directors of the Company.
1.4 "Cause" shall mean any of the following: (i) Executive's commission
of a willful act (including, without limitation, a dishonest or fraudulent act)
or a grossly negligent act, or the willful or grossly negligent omission to act
by Executive, which is intended to cause, causes or is reasonably likely to
cause material harm to the Company or an Affiliate, monetarily, reputationally
or otherwise; (ii) Executive's commission or conviction of, or plea of NOLO
CONTENDERE to, any felony or any crime or offense involving dishonesty or fraud
or that is significantly injurious to the Company or an Affiliate, monetarily,
reputationally or otherwise; (iii) Executive's willful neglect of or continued
failure to substantially perform, in any material respect, his or her duties (as
assigned to Executive from time to time) or obligations (including a violation
of policy) to the Company or an Affiliate other than any such failure resulting
from his or her incapacity due to physical or mental illness; or (iv)
Executive's abuse of illegal drugs or other controlled substances or habitual
intoxication. For purposes of this Section, an act or omission is "willful" if
it was knowingly done, or knowingly omitted to be done, by Executive not in good
faith and without reasonable belief that the act or omission was in the best
interest of the Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to
be done, in good faith and in the best interests of the Company. The Company has
the discretion, in other circumstances, to determine in good faith, from all the
facts and circumstances reasonably available to it, whether Executive who is
under investigation for, or has been charged with, a crime will be deemed to
have committed it for purposes of this Agreement.
1.5 "Change in Control" shall mean the occurrence of any one or more of
the following:
(a) Any "person" (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), including a
"group" (as defined in Section 13(d)(3) of the Exchange Act), other than
(i) the Company, (ii) any wholly-owned subsidiary of the Company, or (iii)
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any Affiliate, becomes a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company having fifty percent (50%) or more of the combined voting power of
the then-outstanding securities of the Company that may be cast for the
election of directors of the Company (other than as a result of an issuance
of securities initiated by the Company in the ordinary course of business)
(the "Company Voting Securities"); provided, however, that the event
described in this Section 1.5(a) shall not be deemed to be a Change in
Control by virtue of any underwriter temporarily holding securities
pursuant to an offering of such securities;
(b) During any period of two consecutive years, individuals who
at the beginning of any such period constitute the Board (the "Incumbent
Directors") cease for any reason to constitute at least a majority of the
Board, unless the election, or the
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nomination for election by the stockholders of the Company, of each new
director of the Company during such period was approved by a vote of at
least two-thirds of the Incumbent Directors then still in office;
(c) As the result of, or in connection with, any cash tender or
exchange offer, merger or other business combination, sale of all or
substantially all of the assets or contested election, or any combination
of the foregoing transactions, less than a majority of the combined voting
power of the then-outstanding securities of the Company or any successor
corporation or entity entitled to vote generally in the election of the
directors of the Company or such other corporation or entity after such
transaction is held in the aggregate by the holders of the securities of
the Company entitled to vote generally in the election of directors of the
Company immediately prior to such transaction; or
(d) The stockholders of the Company approve a plan of complete
liquidation of the Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any person acquires beneficial ownership of more than fifty
percent (50%) of the Company Voting Securities as a result of the acquisition of
Company Voting Securities by the Company that reduces the number of Company
Voting Securities outstanding; provided, however, that if after such acquisition
by the Company such person becomes the beneficial owner of additional Company
Voting Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control transaction
shall then occur.
Further notwithstanding the foregoing, unless a majority of the Incumbent
Directors determines otherwise, no Change in Control shall be deemed to have
occurred with respect to a particular Executive if the Change in Control results
from actions or events in which such Executive is a participant in a capacity
other than solely as an officer, employee or director of the Company or an
Affiliate.
1.6 "Good Reason" shall mean any one of the following events, without
Executive's written consent: (i) the assignment to Executive of duties
materially inconsistent with Executive's then-current level of authority or
responsibilities, or any other action by the Company or an Affiliate that
results in a material diminution in Executive's position, compensation,
authority, duties or responsibilities; (ii) a breach by the Company or an
Affiliate of any material term or covenant of any agreement with Executive;
(iii) a requirement that Executive be based at any office or location that is
more than thirty-five (35) miles from the Executive's principal office location
immediately preceding a Change in Control; or (iv) a failure by any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company or the
Affiliate employing Executive to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company or an
Affiliate would be required to perform it if no such succession had taken place.
Executive must provide the Company written notice of any claim of Good Reason
within ninety (90) days after the occurrence of any action/inaction giving rise
to such claim, and the Company or its Affiliate will have fifteen (15) days to
cure such claim.
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2. TERMINATIONS OF EMPLOYMENT TRIGGERING SEVERANCE BENEFITS
2.1 Subject to Section 2.2, and provided that Executive has executed a
full and complete release of the Company and its Affiliates (and their related
parties) from any and all claims, in a form prepared by the Company, the Company
or an Affiliate will provide Executive with the benefits set forth in Section 3
if Executive's employment is terminated for the following reasons ("Qualifying
Terminations"): (i) by the Company or an Affiliate without Cause at any time; or
(ii) by Executive for "Good Reason" at any time.
2.2 In no event will benefits be payable to Executive under this
Agreement in the event of termination due to Executive's death, disability,
retirement, termination by the Company or an Affiliate for Cause, or voluntary
termination by Executive without Good Reason.
2.3 Notwithstanding the foregoing, the following payments will be made
upon Executive's termination of employment for any reason or no reason: (i)
earned but unpaid Base Salary through the date of termination; (ii) any accrued
but unpaid vacation; (iii) any amounts payable under any employee pension or
welfare benefit plans of the Company or an Affiliate in accordance with the
terms of those plans; and (iv) unreimbursed business expenses incurred by
Executive on behalf of the Company or an Affiliate (in accordance with existing
expense reimbursement policies of the Company or an Affiliate).
3. TERMINATION BENEFITS.
3.1 Subject to the conditions set forth in Section 2, the following
benefits shall be paid or provided to Executive in the event Executive's
employment is terminated in a Qualifying Termination:
(a) CASH SEVERANCE. The Company or an Affiliate shall pay to
Executive an amount equal to two (2) times the sum of (i) Executive's
annual Base Salary as of the date on which the termination occurred and
(ii) Executive's target bonus amount for the year in which the termination
occurred, if such target bonus amount has been set by the Board. In the
event that the Board has not set such target bonus amount, the target bonus
amount shall be deemed to be equal to the target bonus set by the Board for
the year prior to the year in which termination occurs.
If the Qualifying Termination occurs during the 18-month period
after the effective date of a Change in Control (a "Window Period"), the
cash severance benefits in this Section 3.1(a) shall be paid by the Company
or an Affiliate to Executive in a lump sum within thirty (30) days of the
date of such Qualifying Termination. If the Qualifying Termination does not
occur during a Window Period, the cash severance benefits in this Section
3.1(a) shall be paid by the Company or an Affiliate to Executive in
fifty-two (52) equal bi-weekly installments over the twenty-four (24) month
period that shall commence on the first payroll day of the Company or an
Affiliate after the Qualifying Termination occurs. Notwithstanding the
foregoing, no payments under this Section 3.1(a) shall commence prior to
the expiration of any revocation period required by law in connection with
the release being provided to the Company and its Affiliates by Executive
under Section 2.1.
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(b) HEALTH BENEFITS. To the extent permissible under applicable
law, the Company or an Affiliate shall continue to provide coverage to
Executive (and to Executive's spouse and dependents who are covered as of
date of the Qualifying Termination) under the health and welfare benefit
plans the Company or an Affiliate maintains for active employees following
Executive's Qualifying Termination, at the same cost to Executive and under
the same terms applicable to active employees (and their dependents), for a
period of twenty-four (24) months after Executive's Qualifying Termination.
Notwithstanding the foregoing, if Executive becomes employed with another
employer during such twenty-four (24) month period and is eligible to
receive substantially comparable health and welfare benefits from such
employer, the obligation of the Company and its Affiliates to provide the
benefits described in this Section 3.1(b) shall cease.
(c) INCENTIVE PLAN VESTING. All awards under the Kanbay
International, Inc. 1998 Stock Option Plan, the Kanbay International, Inc.
Stock Incentive Plan, or any similar or successor plan, held by Executive
shall immediately become exercisable in full, all restrictions applicable
to such awards shall lapse, and all performance measures with respect to
such awards shall be deemed satisfied in full.
3.2 TAXATION AND WITHHOLDING. Neither the Company nor any Affiliate
makes any representations or warranties with respect to, and has no
responsibility or liability for, the personal tax consequences of this Agreement
to Executive. The Company and its Affiliates may make such provisions and take
such steps as they may deem necessary or appropriate for the withholding of any
taxes that the Company or any Affiliate is required by any law or regulation of
any governmental authority, whether federal, state or local, domestic or
foreign, to withhold in connection with this Agreement.
3.3 GROSS-UP PAYMENT. In the event that any payment, benefit or
distribution by or on behalf of the Company or an Affiliate to or for the
benefit of Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (the "Payments") is
determined to be an "excess parachute payment" pursuant to Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") or any successor or
substitute provision of the Code, with the effect that Executive is liable for
the payment of the excise tax described in Code Section 4999 or any successor or
substitute provision of the Code (the "Excise Tax"), then the Company or an
Affiliate shall pay to Executive an additional amount (the "Gross-Up Payment")
such that the net amount retained by Executive, after deduction of any Excise
Tax on the Payments and any federal, state and local income and employment taxes
and Excise Tax on the Gross-Up Payment, shall be equal to the Payments. All
determinations required to be made under this paragraph, and the assumptions to
be utilized in arriving at such determination, shall be made by the certified
public accounting firm used for auditing purposes by the Company or an Affiliate
immediately prior to Executive's employment termination or, if the parties
determine that such certified public accounting firm cannot make such
determination because of legal restrictions, the parties shall agree on a
different certified public accounting firm (such certified public accounting
firm is hereinafter referred to as the "Accounting Firm"), which shall provide
detailed supporting calculations both to the Company (or the Affiliate) and
Executive. The Company or the Affiliate shall pay all fees and expenses of the
Accounting Firm. Any determination by the Accounting Firm shall be binding upon
the Company, the Affiliate and the
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Executive, except as provided in the following sentences. As a result of the
uncertainty in the application of Code Sections 280G and 4999 at the time of the
initial determination by the Accounting Firm hereunder, it is possible that the
Internal Revenue Service ("IRS") or other agency will claim that a greater or
lesser Excise Tax is due. In the event that the Excise Tax is finally determined
to be less than the amount taken into account hereunder in calculating the
Gross-Up Payment, Executive shall repay to the Company or an Affiliate, at the
time that the amount of such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such reduction (plus that
portion of the Gross-Up Payment attributable to the Excise Tax and federal,
state and local income and employment taxes imposed on the Gross-Up Payment
being repaid by Executive to the extent that such repayment results in a
reduction in Excise Tax and/or a federal, state or local income or employment
tax deduction). In the event that the Excise Tax is determined to exceed the
amount taken into account hereunder in calculating the Gross-Up Payment
(including by reason of any payment the existence or amount of which cannot be
determined at the time of the Gross-Up Payment), the Company or an Affiliate
shall make an additional Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by Executive with respect to such
excess) at the time that the amount of such excess is finally determined.
Executive and the Company (or the Affiliate) shall each reasonably cooperate
with the other in connection with any administrative or judicial proceedings
concerning the existence or amount of liability for Excise Tax with respect to
the Payments. The Company or an Affiliate shall pay all fees and expenses of
Executive relating to a claim by the IRS or other agency for the Excise Tax as
provided below.
Executive shall notify the Company in writing of any claim by the IRS that,
if successful, would require the payment by the Company or an Affiliate of the
Gross-Up Payment or an additional Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten (10) business days after
Executive is informed in writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid. Executive shall not pay such claim prior to the expiration of the 30-day
period following the date on which Executive gives such notice to the Company
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies Executive in writing
prior to the expiration of such period that it desires to contest such claim,
the Company or an Affiliate, subject to the provisions of this Section 3.3,
shall control all proceedings taken in connection with such contest and, at its
sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct Executive to pay the tax
claimed and sue for a refund or contest the claim in any permissible manner. In
this connection, Executive agrees, subject to the provisions of this Section
3.3, to (i) prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine, (ii) give the Company or the Affiliate
any information reasonably requested by the Company or the Affiliate relating to
such claim, (iii) take such action in connection with contesting such claim as
the Company or the Affiliate shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation with respect
to such claim by an attorney reasonably selected by the Company, (iv) cooperate
with the Company and the Affiliate in good faith in order to effectively contest
such claim and (v) permit the Company and the Affiliate to participate in any
proceedings relating to such claim. The foregoing is subject, however, to the
following: (i) the Company or an Affiliate shall bear and pay directly all costs
and expenses (including additional
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interest and penalties) incurred in connection with such contest and shall
indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax
or income tax (including interest and penalties with respect thereto) imposed in
connection therewith, (ii) if the Company directs Executive to pay such claim
and sue for a refund, the Company or an Affiliate shall advance the amount of
such payment to Executive, on an interest-free basis and shall indemnify and
hold Executive harmless, on an after-tax basis, from any Excise Tax or income
tax (including interest or penalties with respect thereto) imposed with respect
to such advance or with respect to any imputed income with respect to such
advance, (iii) any extension of the statute of limitations relating to payment
of taxes for the taxable year of Executive with respect to which such contested
amount is claimed to be due shall be limited solely to such contested amount and
(iv) the Company's control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and Executive
shall be entitled to settle or contest, as the case may be, any other issue
raised by the IRS or any other taxing authority.
3.4 EXECUTIVE'S DEATH. If Executive dies before the completion of any
payments or benefits required under the Section 3, the Company or an Affiliate
will make or continue payments and benefits to Executive's surviving spouse, if
any, or Executive's estate in accordance with this Section.
4. RESTRICTIVE COVENANTS
4.1 TRADE SECRETS. Executive acknowledges that he has had and will have
access to confidential information of the Company and its Affiliates (including,
but not limited to, current and prospective confidential know-how, specialized
training, customer lists, marketing plans, business plans, financial and pricing
information, and information regarding acquisitions, mergers and/or joint
ventures) concerning the business, customers, clients, contacts, prospects, and
assets of the Company and its Affiliates that is unique, valuable and not
generally known outside the Company and its Affiliates, and that was obtained
from the Company or an Affiliate or which was learned as a result of the
performance of services by Executive on behalf of the Company or an Affiliate
("Trade Secrets"). Trade Secrets shall not include any information that: (i) is
now, or hereafter becomes, through no act or failure to act on the part of
Executive that constitutes a breach of this Section 4, generally known or
available to the public; (ii) is known to Executive at the time such information
was obtained from the Company or an Affiliate; (iii) is hereafter furnished
without restriction on disclosure to Executive by a third party, other than an
employee or agent of the Company or an Affiliate, who is not under any
obligation of confidentiality to the Company or an Affiliate; (iv) is disclosed
with the written approval of the Company or an Affiliate; or (v) is required to
be disclosed or provided by law, court order, or similar compulsion, including
pursuant to or in connection with any legal proceeding involving the parties
hereto; provided however, that such disclosure shall be limited to the extent so
required or compelled; and provided further, however, that if Executive is
required to disclose such confidential information, he shall give the Company
notice of such disclosure and cooperate in seeking suitable protections. Other
than in the course of performing services for the Company and its Affiliates,
Executive will not, at any time, directly or indirectly use, divulge, furnish or
make accessible to any person any Trade Secrets, but instead will keep all Trade
Secrets strictly and absolutely confidential. Executive will deliver promptly to
the Company or the Affiliate that employed Executive, at the termination of his
employment or at any other time at the request of
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the Company or an Affiliate, without retaining any copies, all documents and
other materials in his possession relating, directly or indirectly, to any Trade
Secrets.
4.2 NON-COMPETITION. Beginning on the Effective Date and for a period
continuing through the later of (i) twelve (12) months following termination of
Executive's employment with the Company and all Affiliates and (ii) the period
the Company or an Affiliate is making severance payments to Executive under
Section 3.1(a) (the "Restricted Period"), Executive shall not directly or
indirectly own any interest in, operate, control or participate as a partner,
director, principal, officer, or agent of, enter into the employment of, act as
a consultant to, or perform any services for, any company, person, or entity
engaged in a "Competitive Business" (as defined herein). A Competitive Business
shall include any company, person or entity that is involved in or seeks to
become involved in providing information technology services and solutions to
the financial services industry, including business process and technology
advice, software package selection and integration, application development,
maintenance and support, network and system security and specialized services,
in any country in which the Company or an Affiliate is doing business at the
time of termination of Executive's employment.
4.3. NON-SOLICITATION OF EMPLOYEES. During the Restricted Period,
Executive shall not, directly or indirectly solicit or induce, or attempt to
solicit or induce, any current employee of the Company or an Affiliate, or any
individual who becomes an employee during the Restricted Period, to leave his or
her employment with the Company or an Affiliate or join or become affiliated
with any other business or entity, hire any employee of the Company or an
Affiliate or in any way interfere with the relationship between any employee and
the Company or an Affiliate.
4.4 NON-SOLICITATION OF CUSTOMERS. During the Restricted Period,
Executive shall not, directly or indirectly, solicit or induce, or attempt to
solicit or induce, any customer, supplier, licensee, licensor or other business
relation of the Company or an Affiliate to terminate its relationship or
contract with the Company or an Affiliate, to cease doing business with the
Company or an Affiliate, or in any way interfere with the relationship between
any such customer, supplier, licensee or business relation and the Company or an
Affiliate (including making any negative statements or communications concerning
the Company or an Affiliate or their employees).
4.5 IRREPARABLE HARM. Executive acknowledges that: (i) Executive's
compliance with this Agreement is necessary to preserve and protect the
proprietary rights, Trade Secrets, and the goodwill of the Company or an
Affiliate as going concerns, and (ii) any failure by Executive to comply with
the provisions of this Agreement will result in irreparable and continuing
injury for which there will be no adequate remedy at law. In the event that
Executive fails to comply with the terms and conditions of this Agreement, the
obligations of the Company and its Affiliates to pay the severance benefits set
forth in Section 3 shall cease, and the Company or an Affiliate will be
entitled, in addition to other relief that may be proper, to all types of
equitable relief (including, but not limited to, the issuance of an injunction
and/or temporary restraining order) that may be necessary to cause Executive to
comply with this Agreement, to restore to the Company and its Affiliates their
property, and to make the Company and its Affiliates whole.
4.6 SURVIVAL. The provisions set forth in this Section 4 shall survive
termination of this Agreement.
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4.7 SCOPE LIMITATIONS. If the scope, period of time or area of
restriction specified in this Section 4 are or would be judged to be
unreasonable in any court proceeding, then the period of time, scope or area of
restriction will be reduced or limited in the manner and to the extent necessary
to make the restriction reasonable, so that the restriction may be enforced in
those areas, during the period of time and in the scope that are or would be
judged to be reasonable.
5. MISCELLANEOUS
5.1 EMPLOYMENT STATUS. Nothing herein shall be deemed to create any term
of employment, it being expressly understood and agreed between the parties that
Executive's employment is at will and that either party may terminate such
employment at any time.
5.2 GOVERNING LAW. All provisions of this Agreement will be construed
and governed by Illinois law without regard to its choice of law principles or
the laws of any other jurisdiction. Any suit, claim or other legal proceeding
arising out of or relating to Executive's employment, his or her termination
from employment, or this Agreement shall be brought exclusively in the federal
or state courts located in Cook County, Illinois, and Executive and the Company
and its Affiliates hereby submit to personal jurisdiction in the State of
Illinois and to venue in such courts. Notwithstanding the foregoing, the Company
or an Affiliate may seek and obtain injunctive relief against Executive in any
court having jurisdiction over Executive.
5.3 SEVERABILITY. Every provision of this Agreement is intended to be
severable. If any provision or portion of a provision is illegal or invalid,
then the remainder of this Agreement shall not be affected. Moreover, any
provision of this Agreement which is determined to be unreasonable, arbitrary or
against public policy shall be modified as necessary so that it is not
unreasonable, arbitrary or against public policy while maximizing the intent of
the parties.
5.4 ENTIRE AGREEMENT. Except as provided in Section 5.7 and in any
non-disclosure, non-solicitation, intellectual property or similar agreement
signed by Executive, with respect to its subject matter, this Agreement
constitutes the entire understanding of the parties superseding all prior
agreements, understandings, negotiations and discussions between them, whether
written or oral, and there are no other understandings, representations,
warranties or commitments with respect thereto. Notwithstanding any terms
contained herein to the contrary, the Company or its Affiliates, in addition to
any rights set forth herein, shall have the right to seek enforcement of any
other penalties or restrictions that may apply under any other non-disclosure,
non-solicitation, intellectual property or similar agreement between Executive
and the Company or its Affiliates.
5.5 SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
Executive. This Agreement shall be binding upon and inure to the benefit of all
successors and assigns (whether by operation of law or otherwise) of the Company
and its Affiliates.
5.6 AMENDMENT. This Agreement may only be amended or terminated by
mutual written agreement between the Company and Executive.
5.7 INSURANCE AND INDEMNIFICATION. The Company or the Affiliate that
employed Executive agrees to indemnify Executive on at least the same basis and
for the same period of time as other officers, in accordance with the Company's
Bylaws and the terms of an Indemnification Agreement between Executive and the
Company (or the Affiliate).
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5.8 LEGAL FEES. The Company or an Affiliate agrees to pay promptly as
incurred, to the full extent permitted by law, all legal fees and expenses that
Executive may reasonably incur as a result of any contest by the Company or an
Affiliate, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement, unless the court or
arbitrator, as the case may be, finds the Executive's claims or defenses to be
wholly without merit.
5.9 EFFECT ON OTHER OBLIGATIONS. The obligations of the Company or an
Affiliate to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action that the
Company or an Affiliate may have against Executive or others. In no event shall
Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to Executive under any of the provisions of
this Agreement, except as provided in Section 3.1(b).
5.10. NO WAIVER. No failure or delay by the Company or an Affiliate or
Executive in enforcing or exercising any right or remedy hereunder shall operate
as a waiver thereof. No modification, amendment or waiver of this Agreement nor
consent to any departure by Executive from any of the terms or conditions
thereof, shall be effective unless in writing and signed by the Chairman of the
Board. Any such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
5.11. COUNTERPARTS. The parties may execute this Agreement in one or more
counterparts, all of which together shall constitute but one Agreement.
IN WITNESS WHEREOF, each party has executed this Severance Agreement or
caused this Severance Agreement to be duly executed as of the Effective Date.
KANBAY INTERNATIONAL, INC. EXECUTIVE
By:
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Its : By: Raymond J. Spencer
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KANBAY INCORPORATED
By:
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Its :
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