EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), effective as of the 8th day of
August 2005 (the "Effective Date"), is by and between Lee C. Fields (the
"Executive") and Infocrossing, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Company desires to employ the Executive and to enter into this
Agreement embodying the terms of such employment; and WHEREAS, the Executive
desires to enter into this Agreement and to accept employment with the Company,
subject to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein set
forth, the parties hereto agree as follows:
1. Employment.
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to be employed by the Company commencing on the Effective Date on the
terms and conditions set forth in this Agreement.
2. Position and Duties.
(a) Position. During the term of his employment by the Company, the Executive
shall serve as the President IT Outsourcing and shall report directly to the
President of the Company.
(b) Duties. The Executive shall have such duties and authority consistent with
the position of President, IT Outsourcing as shall be assigned to him from time
to time by the Company's Chief Executive Officer, President, or Board of
Directors. The Executive shall principally be responsible for selling and
marketing the products and services of the Company and the following
subsidiaries of the Company: Infocrossing Services, Inc.; Infocrossing
Southeast, Inc.; Infocrossing Services Southeast, Inc.; Infocrossing West, Inc;
and Infocrossing Services West, Inc. (collectively, the foregoing subsidiaries
are referred to as the "Companies.") The Executive's duties and authority shall
be those of a senior executive of the Company. The Executive shall devote his
full business time, attention, skill, and best efforts to the performance of his
duties under this Agreement and shall not engage in any other business or
occupation while employed by the Company. Notwithstanding the foregoing, nothing
herein shall preclude the Executive from: (i) engaging in charitable activities
and community affairs and (ii) managing his personal investments and affairs;
PROVIDED, HOWEVER, that the activities set out in clauses (i) and (ii) shall be
limited by the Executive so as not to materially interfere, individually or in
the aggregate, with the performance of his duties and responsibilities
hereunder.
3. Place of Employment.
The Executive shall be employed at the Company's offices at 6620 Bay Circle
Drive, Norcross, GA (subject to necessary and appropriate business related
travel (including the Company's Leonia, NJ headquarters)).
4. Term.
(a) The term of the Executive's employment with the Company under this Agreement
shall be for a continuous period of three (3) years (the "Term") commencing on
the Effective Date.
5. Compensation and Benefits.
(a) Base Salary. During the Term, the Company shall pay the Executive an annual
base salary of Three Hundred Thousand Dollars ($300,000) (the "Annual Base
Salary") payable in accordance with the Company's regular payroll practices, but
not less frequently than twice per month. The Annual Base Salary shall be
reviewed by the Company's Board of Directors, or compensation committee of such
board, at least annually and may be adjusted upwards (but not downwards).
(b) Performance Bonus. For the fiscal year ending December 31, 2005, the target
bonus will be result of Three Hundred Thousand Dollars ($300,000) multiplied by
a fraction, the numerator of which shall be the number of days from and
including the Effective Date through December 31, 2005 and the denominator shall
be three hundred sixty-five (365). Criteria for earning said bonus will be based
equally on achievement of qualitative performance goals and quantitative organic
revenue growth targets to be established by the Company's Board of Directors, or
compensation committee of such board, within ninety (90) days of the Effective
Date. In addition, the Executive will be eligible to receive an additional bonus
relating to the year ending December 31, 2005 equal to the result of One Hundred
Fifty Thousand Dollars ($150,000) multiplied by a fraction, the numerator of
which shall be the number of days from and including the Effective Date through
December 31, 2005 and the denominator shall be three hundred sixty-five (365).
The superior performance goals will also be established by the Company's Board
of Directors, or compensation committee of such board, within ninety (90) days
of the Effective Date. For subsequent fiscal years, the Company's Board of
Directors, or compensation committee of such board, will establish criteria and
conditions to be satisfied for the Executive to earn the performance bonuses.
Criteria for earning said bonus will be based equally on achievement of
qualitative performance goals and quantitative organic revenue growth targets to
be established by the Company's Board of Directors, or compensation committee of
such board, within ninety (90) days of the commencement of the applicable fiscal
year. The target bonus for each subsequent fiscal year will be a target of 100%
of that year's current salary. Also, with respect to fiscal years beginning
after December 31, 2005, the Executive will be eligible to receive an additional
bonus with a target amount of 50% of that year's current salary with respect to
a full fiscal year. The superior performance goals will also be established by
the Company's Board of Directors, or compensation committee of such board,
within ninety (90) days of the commencement of the applicable fiscal year. Any
performance bonuses due to the Executive shall be paid to the Executive within
two and one-half (2 1/2) months following the end of the applicable fiscal year.
Notwithstanding the Executive's performance, the Company's Board of Directors,
or compensation committee of such board, may adjust the actual bonus to be paid
in the good faith discretion of such board or committee, as the case may be.
(c)Stock Options. On the Effective Date, the Executive shall be granted an
option for two hundred thousand (200,000) shares of the Company's common stock
pursuant to the Company's 2005 Stock Plan (the "Plan"), which option: (i) shall
have an exercise price equal to the per share "Fair Market Value" (as defined in
the Plan); (ii) shall have a term of ten (10) years; and (iii) shall vest as
follows: twenty-five percent (25%) on the Effective Date; twenty-five percent
(25%) twelve (12 ) months following the Effective Date; and thereafter, one
twenty-fourth (1/24) per month over the next twenty-four (24) months. On each
annual anniversary of the Effective Date beginning with the first anniversary of
the Effective Date, the Company's Board of Directors, or compensation committee
of such board, will consider whether the Executive should be granted additional
awards pursuant to the Plan.
(d) Sign-on Bonus. The Executive will receive a sign-on bonus of one hundred
thousand dollars ($100,000) to be paid in two (2) equal installments within the
first six months of the Effective Date. The first installment will be paid at
the end of the first payroll period following the Effective Date, with the
second installment paid at the end of the first payroll period following six (6)
months after the Effective Date. If the Executive's employment is terminated by
the Company for "Cause," or by the Executive other than for "Good Reason" within
six (6) months after the Effective Date, the gross amount of the sign-on bonus
will be repaid to the Company in a lump sum within thirty (30) days after the
"Date of Termination." "Cause," "Good Reason," and "Date of Termination" are
defined below.
(e) Withholding. In addition to employee contributions to the Company's
insurance and other benefit plans, the Company shall deduct and withhold from
any compensation payments payable to the Executive all social security and other
federal, state, and local taxes and charges in the minimum amounts (or such
greater amounts as the Executive may from time to time request) which currently
are or which hereafter may be required by law to be so deducted and withheld,
including withholding pursuant to bonus withholding rates, as applicable. The
Executive's employee contributions and withheld taxes, charges, etc., shall be
referred to as "Payroll Deductions."
6. The Executive's Benefits.
(a) Vacation and Other Leave. During the term of the Executive's employment, the
Executive shall be entitled each fiscal year to five (5) weeks paid vacation,
and such other holiday, sick leave, personal days and other "leave" benefits
commensurate with his position as a senior executive of the Company and in
accordance with the Company's regular policies.
(b) Group Medical, Life and Disability Insurance. The Executive shall be
entitled to participate in all of the Company's group health, life and
disability insurance plans generally provided to its executives from time to
time and shall be entitled to participate in any other benefit plans on the same
basis as applicable to other executives of the Company. The Company agrees to
reimburse the Executive for the cost of continuing his participation in his
former employer's group health plan until the Executive is eligible to
participate in the Company's health plan.
(c) Office. The Executive shall be furnished with an office at 6620 Bay Circle
Drive, Norcross, GA and hire local administrative support services necessary to
perform his duties.
7. Other.
(a) Reimbursement; Vouchers. The Company shall reimburse the Executive for all
reasonable business expenses incurred, in accordance with the Company's
policies, by the Executive in connection with his employment hereunder. The
Executive shall submit to the Company such vouchers or expense statements
satisfactorily evidencing such expenses as may be reasonably requested by the
Company.
(b) Automobile. The Company shall pay the Executive an additional benefit of
Five Hundred Dollars ($500) per month as an automobile allowance.
8.Confidentiality Agreement.
Concurrently with the execution of this Agreement, the Executive shall execute
the Company's standard Employee Confidentiality and Invention Assignment
Agreement (the "Confidentiality Agreement").
9. Representation of the Executive.
The Executive hereby warrants and represents that he is not bound by any other
agreement or subject to any other restriction which would either prevent him
from entering into this Agreement or from performing his duties as contemplated
hereunder.
10. Termination.
(a) Termination of Employment. The Executive's employment may be terminated (i)
by the Company at any time with or without "Cause" (as defined below)
(including, without limitation, due to the "Disability" (as defined below) of
the Executive) and (ii) by the Executive at any time with or without "Good
Reason" (as defined below). In addition, Executive's employment shall terminate
upon the death of the Executive.
(b) Definitions.
(i) Disability. For purposes of this Agreement: (A) the Executive shall be
"disabled" if the Company, in its reasonable discretion and after any period of
leave required by federal or state law, determines that a physical or mental
impairment or condition renders the Executive incapable of performing his
essential job functions; (B) in making the determination of whether the
Executive is disabled, the Company shall consider any reasonable accommodations
that might enable the Executive to safely and successfully perform his essential
job functions provided that: i) the Executive or his medical care provider
advises the President of the Company of such potential accommodations; ii) the
Executive or his medical care provider submits documentation establishing that
the Executive's physical or mental impairment or condition substantially limits
one or more major life activities; and iii) the accommodation sought or proposed
by the Executive or his medical care provider does not pose an undue hardship on
the Company; (C) without limiting the foregoing, the Executive's receipt of
disability benefits under the Company's disability benefit plans or any
privately owned long term disability insurance plan, or receipt of Social
Security disability or workers' compensation benefits shall be deemed conclusive
evidence of disability for purposes of this Agreement and shall dispense with
any need for the Company to determine that the Executive is disabled; (D) upon
making the determination referenced in 10.(b)(i)(A), the Company shall provide
the Executive with thirty (30) days written notice setting forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
for disability. Such termination shall not be effective if the Executive returns
to regular and full-time performance of the Executive's essential job functions
within such thirty (30) day period. The Company shall, in its sole discretion,
determine whether the Executive has returned to regular and full-time
performance of the Executive's essential job functions.
(ii) Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without the Executive's prior written consent: (A) the occurrence of any
material breach of this Agreement by the Company which remains uncured for a
period of more than thirty (30) days after written notice of such breach and of
the Executive's intention to terminate his employment for "Good Reason" if such
breach is not remedied; (B) a failure by the Company to pay any amount due
hereunder within ten (10) business days following written demand for payment,
which demand shall state that the Executive intends to resign for Good Reason if
such payment is not made within such ten (10) business day period; (C) the
assignment to the Executive of duties or responsibilities materially
inconsistent with the Executive's current position, duties or responsibilities,
as contemplated by this Agreement, sufficient to constitute a substantial
diminution of status within the Company which duties or responsibilities are not
reassigned within thirty (30) days after written demand from the Executive,
which demand shall state that the Executive intends to resign for Good Reason if
such duties and responsibilities are not reassigned; or (D) a relocation of the
office of the Company to which the Executive is required to report to a location
more than fifty (50) miles from its current location of 6620 Bay Circle Drive,
Norcross, GA or a requirement that the Executive relocate his residence from
Alpharetta, Georgia.
(iii) "Cause" shall mean: (1) any act of theft, fraud, embezzlement,
falsification of Company or customer documents, misappropriation of funds or
other assets of the Company or other acts of dishonesty or misconduct involving
the property or affairs of the Company or the carrying, out of the Executive's
duties; (2) a conviction (by trial, upon a plea or otherwise) or the admission
of guilt of any felony or misdemeanor involving moral turpitude or other act of
dishonesty, fraud or deceit; or (3) the repeated material violation of any
written policy or procedure of the Company subject to written notice with
fifteen (15) days to cure.
(iv) "Date of Termination" shall mean (i) if the Executive's employment is
terminated by his death, the date of his death, or by reason of his Disability,
the date all of the conditions to constitute a Disability have occurred, or, if
upon expiration of the Term, the last day of the Term, (ii) if the Executive's
employment is terminated for Cause, the date specified in the Notice of
Termination, and (iii) if the Executive's employment is terminated for any other
reason, the date which is seven (7) days after the date on which the Notice of
Termination is given.
(v) Notice of Termination. Any termination of the Executive's employment by the
Company or by the Executive shall be communicated by a written notice to the
other party. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated. Any purported termination not satisfying the
requirements of this subsection (v) shall not be effective.
11. Compensation Upon Termination of Employment
(a) Termination for Cause or Without Good Reason. In the event the Executive's
employment is terminated by the Company for "Cause," or by the Executive other
than for "Good Reason," both as defined above, (i) the Executive shall be owed
all compensation and benefits accrued through the Date of Termination; (ii) the
Executive shall receive such other benefits, if any, as may be provided to him
under the terms of any employee benefit, incentive, option, stock award and
other plans or programs of the Company in which he may be, or have been, a
participant; and (iii) the Company shall have no further obligation to the
Executive.
(b) Termination by the Company Other Than for Cause, Death, or Disability or by
the Executive for Good Reason. In the event the Executive's employment is
terminated by the Company other than for Cause, death, or Disability or is
terminated by the Executive for Good Reason during the Term, the Executive shall
be entitled to receive (i) all compensation and benefits accrued through the
Date of Termination; (ii) the "Severance Benefit" as described below; and (iii)
such other benefits, if any, as may be provided to him under the terms of any
employee benefit, incentive, option, stock award and other plans or programs of
the Company in which he may be, or have been, a participant except that the
Company shall pay for cost of the Executive's continued participation in the
Company's health plan until the earlier of the termination of the "Severance
Period," as described below or if the Executive commences an employment or
consulting relationship with any third party during the Severance Period, the
date on which the Executive becomes eligible to participate in the group health
plan of such third party. In addition, in the event of termination by the
Company other than for Cause, death, or Disability or by the Executive for Good
Reason, any unvested stock options due to vest during that fiscal year shall
vest immediately and all stock options shall continue to be exercisable, subject
to applicable law and in accordance with the Plan. The "Severance Period" shall
equal twelve (12) months beginning on the day following the Date of Termination.
The "Severance Benefit" shall equal the sum of (x) the Executive's Annual Base
Salary at the time of termination multiplied by the "Severance Benefit Factor,"
as described below, and (y) an amount equal to the target bonus (and the
additional target bonus) for the year in which termination occurs multiplied by
a fraction, the numerator of which is the number of days in the fiscal year up
to and including the Date of Termination and the denominator of which is three
hundred sixty-five (365). The "Severance Benefit Factor" shall be one hundred
percent (100%) if the date of termination for Cause or Good Reason occurs during
the first twelve (12) months immediately following the Effective Date;
eighty-three and thirty-three one hundredths percent (83.33%) if such
termination date occurs during the twelve (12) months beginning on the first
anniversary of the Effective Date; and sixty-six and sixty-six one hundredths
percent (66.66%) if such termination date occurs during the twelve (12) months
beginning on the second anniversary of the Effective Date. The Severance Benefit
shall be payable in twenty-four (24) equal installments, in arrears, during the
Severance Period. All payments of the Severance Benefit shall be net of
applicable Payroll Deductions. If the Executive accepts employment or a
consulting engagement with a third party during the Severance Period, the amount
of any remaining installments of the Severance Benefit shall be reduced by fifty
percent (50%) effective as of the date such employment or consulting engagement
commences. The Company shall have no further obligation to the Executive.
(c)Termination for Death or Disability. If the Executive's employment is
terminated due to the death or Disability of the Executive, the Executive's
estate, heirs, legatees, or beneficiaries, as the case may be, shall be entitled
to receive all compensation and benefits accrued through the Date of Termination
as well as such other benefits, if any, as may be provided under the terms of
any employee benefit, incentive, option, stock award and other plans or programs
of the Company in which the Executive had been a participant. The Company shall
have no further obligation to the Executive, or to his estate, or to his heirs,
legatees, or beneficiaries.
12. Change in Control.
(a) Anything in this agreement to the contrary notwithstanding, in the event
that there is a Change in Control, as defined below, any unvested stock options
or other awards under the Plan shall vest immediately. The Executive shall be
entitled to terminate employment voluntarily for any reason within ninety (90)
days of the Change in Control. If the Executive elects to terminate his
employment due to a Change in Control, within ninety (90) days following the
Date of Termination: (i) the Executive shall be paid all compensation and
benefits accrued through the Date of Termination, (ii) the Executive shall
receive such other benefits, if any, as may be provided to him under the terms
of any employee benefit, incentive, option, stock award and other plans or
programs of the Company in which he may be, or have been, a participant; and
(iii) the Company shall have no further obligation to the Executive.
(b) "Change in Control" of the Company shall mean a sale by the Company of all
or substantially all of its assets, a Change in Control of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Act or any successor thereto, provided that
without limiting the foregoing, a Change in Control of the Company also shall
mean the occurrence of any of the following events:
(i) any "person" (as defined under Section 3(a)(9) of the Act) or "group" of
persons (as provided under Section 13d-3 of the Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 or otherwise under the Act),
directly or indirectly (including as provided in Rule 13d-3(d)(1) of the Act),
of capital stock of the Company the holders of which are entitled to vote for
the election of directors ("voting stock") representing that percentage of the
Company's then outstanding voting stock (giving effect to the deemed ownership
of securities by such person or group, as provided in Rule 13d-3(d)(1) of the
Act, but not giving effect to any such deemed ownership of securities by another
person or group) equal to or greater than twenty-five percent (25%) of all such
voting stock;
(ii) during any period of twenty-four (24) consecutive months, individuals who
at the beginning of such period constituted the Board of Directors of the
Company (including for this purpose any new director whose election or
nomination for election by the Company's shareholders was approved by a vote of
at least a majority of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors of the Company (excluding any Board seat that
is vacant or otherwise unoccupied); or
(iii) there shall be consummated any consolidation, merger, stock for stock
exchange or similar transaction (collectively, "Merger Transactions") involving
securities of the Company in which holders of voting stock of the Company
immediately prior to such consummation own, as a group, immediately after such
consummation, voting stock of the Company (or, if the Company does not survive
the Merger Transaction, voting securities of the corporation surviving such
transaction) having less than fifty percent (50%) of the total voting power in
an election of directors of the Company (or such other surviving corporation).
(c) In the event it shall be determined that any payment or distribution of any
type by the Company to or for the benefit of the Executive, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Total Payments"), would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"),
or any interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are collectively referred to as
the "Excise Tax"), then the Company shall, within thirty days following the
Executive's incurrence thereof, pay the Executive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Total Payments.
13. Non-Solicitation; Confidentiality.
(a) The Executive agrees and acknowledges that for a period of twelve (12)
months after the termination of the Executive's employment with the Company for
any reason, except if the Executive is entitled to receive the Severance
Benefit, in which case the period shall be twelve (12) months after the due date
of the final installment of the Severance Benefit, the Executive shall not, on
behalf of himself or any other person, firm or entity, directly or indirectly
(i) solicit any customer or prospective customer of the Company or the Companies
with whom he had material contact for the purpose of offering or providing
computer outsourcing services that compete with those offered or provided by the
Company or the Companies. For purposes of this restriction, "material contact"
means interaction for the purpose of offering or providing computer outsourcing
services or products to the customer or prospective customer; (ii) solicit for
the purpose of offering or providing computer outsourcing services that compete
with those offered or provided by the Company or the Companies any customer of
the Company or the Companies with whom employees that Executive supervised in
the last twelve (12) months of his employment had material contact (as that
phrase is defined in subsection (i)). This subsection (ii) is further limited to
the United States; (iii) solicit or recruit any employee, consultant,
contractor, agent or representative of the Company or the Companies with whom
Executive had contact, to end their employment or engagement with the Company.
For purposes of this provision, "contact" means interaction for the purpose of
conducting the business of the Company or the Companies.
(b) The Executive shall not use for competitive purposes, or divulge to any
other person, firm or corporation (otherwise than in furtherance of the business
purposes of the Company), any confidential information of the Company or the
Companies. "Confidential Information" shall mean all information of a
confidential nature and includes information contained in the current and
potential customer lists, marketing and business plans and financial records of
the Company or the Companies, and specifications of proprietary products under
development and not yet marketed or sold by the Company or the Companies;
provided, that confidential information shall not include (and the restrictions
of this Section 13(b) shall not apply to) any information which: (i) is at the
time of disclosure, part of the public domain or thereafter through no action of
the Executive in violation of this Agreement, becomes a part of the public
domain or is generally known in the computer outsourcing industry through no
violation of this Agreement; (ii) information which has been publicly disclosed
by the Company or any subsidiary in public announcements, press releases or in
publicly available governmental filings; or (iii) is required to be disclosed by
court order or compliance with governmental requirements or legal process. The
confidentiality terms set forth in this Agreement will apply to all Confidential
Information that is material non-public information relating to the Company or
the Companies under applicable federal or state securities laws until such
information ceases being material non-public information. The confidentiality
terms set forth in this Agreement will apply to all Confidential Information
that constitutes "trade secrets" of the Company or the Companies under
applicable New Jersey trade secrets law for so long as such information is not
generally known to the public. However, for all Confidential Information that
does not rise to the level of being a trade secret under the applicable New
Jersey trade secrets law, the confidentiality obligation not to use or disclose
shall only survive for a period of twelve (12) months after the termination of
the Executive's employment with the Company for any reason, except if the
Executive is entitled to receive the Severance Benefit, in which case the period
shall be twelve (12) months after the due date of the final installment of the
Severance Benefit.
In addition to the foregoing, the Executive understands that
certain federal and state laws impose obligations on the Company and the
Companies to respect the privacy of customers and to protect the security and
confidentiality of their customers and to prevent the disclosure of other
material, non-public information. The Executive agrees that he will obey these
laws.
(c) The Executive agrees that damages at law would not be an adequate remedy for
violation of the covenants set forth in this Section 13 by the Executive, and he
therefore agrees that these covenants may be specifically enforced against him
in any court of competent jurisdiction.
14. Merger or Reorganization.
This Agreement shall not be terminated by the voluntary or involuntary
dissolution of the Company or by any merger or consolidation where the Company
is not the surviving or resulting corporation, or upon any transfer of all or
substantially all of the assets of the Company. In the event of any such merger
or consolidation or transfer of assets, the provisions of this Agreement shall
be binding and shall inure to the benefit of the surviving or resulting
corporation or the corporation to which such assets shall be transferred, and
the Company shall require the successor to the Company as the Executive's
employer (whether such succession is direct or indirect, by purchase, merger,
consolidation or otherwise, to all or a substantial portion of the business
and/or assets of the Company) to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, the term "Company" shall mean the Company as hereinbefore defined and
any successor to all or a substantial portion of its business and/or assets as
aforesaid.
15. Arbitration.
Any controversy or claim arising out of or relating to this Agreement, the
breach thereof or the coverage of this arbitration provision shall be settled by
arbitration which shall be in accordance with the then current Employment
Dispute Resolution Rules of the American Arbitration Association as such rules
shall be in effect on the date of delivery of demand for arbitration. The
arbitration of such issues, including the determination of the amount of any
damages suffered by either party hereto by reason of the acts or omissions of
the other, shall be to the exclusion of any court of law. The decision of the
arbitrator shall be final and binding on both parties and their respective
heirs, executors, administrators, successors and assigns. Judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction. The arbitration shall be conducted before a single arbitrator,
such arbitrator being reasonably satisfactory to each party, in New York, NY.
The Company shall pay the costs and expenses of such arbitration, and each party
shall separately pay his or its attorneys' fees and expenses. Nothing contained
herein shall be construed or interpreted to preclude the Company prior to, or
pending the resolution of, any matter subject to arbitration from seeking
injunctive relief in a New Jersey court for any breach or threatened breach of
any of the Executive's agreements in Section 13 hereof.
Executive's Initials: LCF Company Initials: RBW
16. Non-Assignability.
The obligations of the Executive hereunder are personal and may not be assigned
or transferred in any manner whatsoever, nor are such obligations subject to
involuntary alienation, assignment or transfer.
17. Amendment.
This Agreement contains the entire agreement of the parties. It may not be
changed orally but only by a written agreement executed by both of the parties
hereto.
18. Notices.
All notices which a party is required or may desire to give
to the other party under or in connection with this Agreement shall be
sufficient if given by addressing same to the other party as follows:
If to the Executive to:
Lee C. Fields
525 Pennroyal Lane
Alpharetta, Georgia 30004
With a copy to:
William D. Friend, Esq.
Friends, Hudak & Harris
Three Ravina Drive, Suite 1450
Atlanta, Georgia 30346-2117
If to the Company to:
Infocrossing, Inc.
2 Christie Heights Street
Leonia, New Jersey 07605
Attention: Chairman
With a copy to:
Infocrossing, Inc.
2 Christie Heights Street
Leonia, New Jersey 07605
Attention: General Counsel
or at such other place as may be designated in writing by like notice. Any
notice shall be deemed to have been delivered when addressed as required herein
and deposited, postage prepaid, in the United States Mail.
19. Indemnification.
The Company will indemnify the Executive (and his legal representatives, heirs,
estate or other successors) to the fullest extent permitted (including payment
of expenses in advance of final disposition of any proceeding) by the laws of
the jurisdiction of the incorporation of the Company as in effect at the time of
the subject act or omission, or by the certificate of incorporation and by-laws
of the Company as in effect at such time or on the date of this Agreement, or by
the terms of any indemnification agreement between the Company and the
Executive, whichever affords or afforded greatest protection to the Executive,
and the Executive shall be entitled to the protection of any insurance policies
the Company may elect to maintain generally for the benefit of its directors and
officers (and to the extent the Company maintains such an insurance policy or
policies, the Executive shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for a person serving or having served in the positions and offices in
which the Executive is serving or has served), against all costs, charges and
expenses whatsoever incurred or sustained by him (or his legal representatives,
heirs, estate or other successors) at the time such costs, charges and expenses
are incurred or sustained, in connection with any action, suit or proceeding to
which he (or his legal representatives, heirs, estate or other successors) may
be made a party by reason of his being or having been a director, officer or
employee of the Company or any subsidiary, or by reason of his serving or having
served any other enterprise as a director, officer or employee at the request of
the Company or any subsidiary.
20. Waiver; Modification.
No provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Executive and the Company. No waiver by either party at any time of any breach
by the other party of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver or
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
21. Severability.
The various Sections of this Agreement are severable, and if any Sections or an
identifiable part thereof is held to be invalid or unenforceable by any court of
competent jurisdiction, then such invalidity or unenforceability shall not
affect the validity or enforceability of the remaining Sections or identifiable
parts thereof in this Agreement, and the parties hereto agree that the portion
so held invalid, unenforceable or void shall, if possible, be deemed amended or
reduced in scope, or otherwise be stricken from this Agreement, to the extent
required for the purposes of the validity and enforcement hereof.
22. Choice of Law; Jurisdiction.
This Agreement shall be governed by the laws of the State of New Jersey without
reference to such State's conflict of law rules. Each party irrevocably consents
to the exclusive jurisdiction of the courts of the state or federal courts
located in New Jersey and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement.
23. Entire Agreement.
This Agreement sets forth the entire agreement between the parties with respect
to the subject matter hereof and supersedes any and all prior agreements between
the Company and the Executive, whether written or oral, relating to any or all
matters covered by, and contained or otherwise dealt with, in this Agreement. No
agreements or representations, oral or otherwise, express or implied, have been
made by either party with respect to the subject matter of this Agreement,
unless set forth expressly in this Agreement.
24. Beneficiaries; References.
The Executive shall be entitled to select (and change, to the extent permitted
under any applicable law) a beneficiary or beneficiaries to receive any
compensation or benefit payable hereunder following the Executive's death, and
may change such election by giving the Company written notice thereof. In the
event of the Executive's death, Disability or a judicial determination of his
incompetence, all references in the Agreement to the Executive shall be deemed,
where appropriate, to refer to his beneficiary, estate or other legal
representative.
25. Compliance With Section 409A of the Code.
It is intended that all applicable provisions of this Agreement comply with the
requirements of Section 409A of the Code, and this Agreement shall be
interpreted and operated in accordance with such requirements, where applicable.
26. Interpretation.
The division of this Agreement into Sections, and subsections and the insertion
of headings are for convenience of reference only and will not affect its
construction or interpretation. Terms of gender will be deemed interchangeable,
as will singular and plural terms, in each case, unless the context otherwise
requires.
27. No Strict Construction.
The parties hereto have participated jointly in the negotiation and drafting of
this Agreement. In the event any ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by all parties hereto, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provision
of this Agreement.
[SEPARATE SIGNATORY PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
hereinabove set forth.
THE EXECUTIVE
By: /s/ LEE C. FIELDS
---------------------------------
Name:Lee C. Fields
INFOCROSSING, INC.
By:/s/ ROBERT B WALLACH
---------------------------------
Name: Robert B Wallach
Title:President & COO