EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of the 10th day of August 2007 (the
"Agreement"), between Infocrossing, Inc., a Delaware corporation (the "Company")
and William J. McHale (the "Executive").
RECITALS
WHEREAS, the Company desires to continue the employment of 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 continue 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/continue 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.
EXECUTIVE ACKNOWLEDGES THAT EMPLOYMENT WITH THE COMPANY IS "AT WILL" AND MAY BE
TERMINATED BY THE COMPANY OR EXECUTIVE AT ANY TIME, FOR ANY (OR NO) REASON, WITH
OR WITHOUT NOTICE.
2. Position and Duties.
(a) Position. During the term of his employment by the Company, the Executive
shall serve as the Senior Vice-President Finance & Chief Financial Officer and
shall report directly to each of the President of the Company, the Chief
Executive of the Company, and the Board of Directors.
(b) Duties. The Executive shall have such duties and authority consistent with
the position of Senior Vice-President Finance & Chief Financial Officer as shall
be assigned to him from time to time by the Company's Chief Executive Officer,
President, or Board of Directors. 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 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 2 Christie Heights
Street, Leonia, NJ 07605.
4. Term.
The period of the Executive's employment under this Agreement shall begin as of
August 6, 2007 (the "Effective Date") and shall continue until terminated in
accordance with Section 10 below. As used in this Agreement, the phrase "Term"
refers to Employee's period of employment from the date of this Agreement until
the date his/her employment is terminated.
5.
Compensation and Benefits.
(a) Base Salary. During the Term, the Company shall pay the Executive an annual
base salary of two hundred fourty two thousand and fifty dollars ($242,050) (the
"Annual Base Salary") payable in accordance with the Company's regular payroll
practices. 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. The Executive may receive annual performance bonuses if
and as when any such bonuses are awarded, in the amount, and at such time, as
determined in the sole discretion of the Board of Directors or the compensation
committee of such board.
6. The Executive's Benefits.
The Executive shall be entitled to participate in any and all benefit programs
and arrangements, including vacation, holiday, sick, and other leave, made
generally available from time to time by the Company to its senior officers and
other employees of the Company pursuant to the terms and conditions of the plan
documents applicable to other officers and employees.
7. Expense Reimbursement.
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.
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"). In the event of a conflict between
this Agreement and the Confidentiality Agreement, the terms of this Agreement
shall control.
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. Upon termination, the Executive (or his
beneficiary or estate, as the case may be) shall be entitled to receive the
compensation and benefits described in Section 11 below.
(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.
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 due to 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, or a change in title, in either case,
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; (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 2 Christie Heights Street, Leonia, NJ; or (E) an
involuntary reduction of the Executive's Annual Base Salary.
(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 including NOLO
CONTENDRE) 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, (ii) if the Executive's employment is terminated for Cause, the date
specified in the Notice of Termination, provided that such date is no earlier
than the date of receipt of such notice by the Executive, and (iii) if the
Executive's employment is terminated for any other reason, the last day the
Executive provided services to the Company.
(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.
Executive will no longer accrue vacation, sick, or other paid-time-off in
accordance with the Company's policy beginning on the day after the Executive
receives Notice of Termination and the Executive will no longer be obliged to
report to work beginning with such day.
11. Compensation Upon Termination of Employment
Upon termination of the Executive's employment under this Agreement,
the Executive (or his designated beneficiary or estate, as the case may be)
shall be entitled to receive the following compensation:
(a) Earned but Unpaid Compensation. The Company shall pay the Executive any
accrued but unpaid Base Salary for services rendered to the date of termination,
any accrued but unpaid expenses required to be reimbursed under this Agreement,
and any vacation accrued to the date of termination.
(b) Additional Compensation Payable Following Termination Without Cause or
Termination for Good Reason.
(i) Requirements for Additional Compensation. The Executive will
receive the additional compensation and benefits set forth in clause (ii) below,
if the following requirements are met:
(A) The Executive's employment is terminated by the Company
for any reason other than Cause, death or Disability or the Executive terminates
employment for Good Reason; and
(B) The Executive executes a separation agreement and general
release substantially in the form attached hereto as Exhibit A.
(ii) Additional Compensation. The Company shall provide Executive
with the following compensation and benefits: (A) The Company shall pay the
Executive an amount equal to the sum of 12 months of Base Salary (at the rate in
effect immediately prior to his termination date). Such amount shall be paid as
follows in 24 equal bi-monthly installments commencing following the Executive's
employment termination date (the "Severance Period").
(I) In the event that the Executive is not subject to
the 6-month payment delay requirement applicable to
"specified employees" pursuant to Section 409A of the Internal Revenue Code as
of his employment termination date, then such amount shall be paid in equal
monthly installments during the Severance Period.
(II) In the event that the Executive is subject to
the 6-month payment delay requirement and if the total
of the monthly installments determined under clause (I) above does not exceed
the maximum amount permitted under the separation pay exception set forth in
Treasury Regulation 1.409A-1(b)(9)(iii)(A) (or any successor regulation
thereto), then the monthly installments shall paid in accordance with clause
(I).
(III) In the event that the Executive is subject to
the 6-month payment delay requirement and if the total
of the monthly installments determined under clause (I) above would exceed the
maximum amount permitted under the separation pay exception set forth in
Treasury Regulation 1.409A-1(b)(9)(iii)(A) (or any successor regulation
thereto), then the amount of each monthly installment payable during the 6-month
delay period shall be reduced to an amount equal 1/6th of such maximum amount
and the installments payable during the remainder of the Severance Period shall
be increased accordingly.
(B) Any unvested stock options shall vest immediately upon the
Executive's employment termination date and all stock options shall continue to
be exercisable for up to one year after Executive's last day of employment,
subject to applicable law and in accordance with the applicable plans and stock
option agreements; PROVIDED, HOWEVER, in no event can the exercise period extend
beyond the date on which the option would have expired if the Executive had
continued in active employment.
(C) During the Severance Period, the Company shall pay the
cost of outplacement services up to a maximum amount of fifty thousand dollars
($50,000) (the "Outplacement Benefits"). The Executive shall make an election to
receive this outplacement benefit in a lump sum payment equivalent to the
maximum amount or the outplacement assistance, provided such election is made
within ten (10) days following notice of termination. In the event Executive
elects to receive a cash payment, it will be paid within ten (10) business days
of such election.
(D) If Executive properly and timely elects to continue any
medical or dental coverage under the applicable Plan(s) existing at the date of
termination in accordance with the continuation requirements of COBRA, the
Company shall pay the cost of the premium for such coverage beginning on the
last day of employment and ending one year later. Thereafter, Executive shall be
entitled to elect to continue such COBRA coverage for the remainder of the COBRA
period, at Executive's own expense.
(c) Other Compensation and Benefits.
Except as otherwise provided under this Agreement,
(i) any benefits to which the Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 6 above shall be
determined and paid in accordance with the terms of such plans, policies and
arrangements, except as may be provided in paragraph 11(b)(ii)(D) above; and
(ii) the Executive shall have no right to receive any other
compensation, or to participate in any other plan, arrangement or benefit, with
respect to future periods after such termination or resignation.
12. 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.
13. Arbitration.
Any controversy or claim arising out of or relating to this Agreement, the
breach thereof or the coverage of this arbitration provision, except for claims
concerning the violation of any confidentiality, non-disclosure,
non-solicitation or non-competition promise/ agreement (see Paragraphs 8 and 12
above), shall be submitted to arbitration which shall be in accordance with the
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 except as to any
appellate rights available to the parties. 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 Bergen County, New Jersey. The Company shall pay
the costs and expenses of such arbitration, and each party shall separately pay
his or its attorneys' fees and expenses.
14. 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 except as provided in Paragraph
13 above regarding merger or reorganization.
15. 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:
Infocrossing, Inc.
2 Christie Heights Street
Leonia, New Jersey 07605
Attention: William McHale
If to the Company to:
Infocrossing, Inc.
2 Christie Heights Street
Leonia, New Jersey 07605
Attention: Chief Executive Officer
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. Notice by
mail will be deemed received three (3) days after mailing. Notice by personal
delivery, including overnight courier, will be effective upon receipt.
16. 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. Such indemnification does not apply to any suits,
causes or arbitrations arising under this Agreement.
17. 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.
18. 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.
19. 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 agree to be bound by any judgment rendered
thereby in connection with this Agreement.
20. Entire Agreement.
This Agreement, together with the Employee Confidentiality and Invention
Assignment Agreement or similar confidentiality/non-solicitation agreement
signed by the Executive (the "Confidentiality 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.
21. 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.
22. 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.
23. Withholding of Taxes.
The Company shall withhold from any compensation and benefits payable under this
Agreement all applicable federal, state, local, or other taxes.
24. Gross-Up Payment
(a) Additional Payment. In the event that any portion of the payments and
benefits provided to Employee under this Agreement (without regard to any amount
payable under this Section 24 and any other payments and benefits under any
other agreement with or plan of the Company (in the aggregate, "Total Payments")
would be subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code (the "Excise Tax"), then Employee shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount that will place Employee
in substantially the same after-tax economic position that he would have enjoyed
if the Excise Tax had not applied to the Total Payments.
(b) Determination by Accounting Firm. Subject to the provisions of Section 24(c)
below, all determinations required to be made under this Section 24, including
whether and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such determination,
shall be made by the Company's independent auditors or such other certified
public accounting firm reasonably acceptable to Employee as may be designated by
the Company (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and Employee. Any Gross-Up Payment, as
determined pursuant to this Section 24, shall be paid by the Company to Employee
not later than the due date for the payment of any Excise Tax. Any determination
by the Accounting Firm shall be binding upon the Company and Employee. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 24(c) and Employee thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for Employee's benefit.
(c) Company's Right to Contest Excise Tax. Employee agrees to notify the Company
in writing of any claim by the Internal Revenue Service that, if successful,
would require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than ten (10)
business days after Employee 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. Employee shall not pay such claim prior to the
expiration of the thirty (30) day period following the date on which Employee
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
Employee in writing prior to the expiration of such period that it desires to
contest such claim, Employee agrees to:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as the
Company 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;
(iii) cooperate with the Company in good faith in order to effectively
contest such claim, and
(iv) permit the Company to participate in any proceedings relating to
such claim.
Without limitation on the foregoing provisions of this Section 24(c),
the Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearing and conferences with the taxing authority in
respect of such claim. The Company may, at its sole option, either direct
Employee to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and Employee agrees to 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; provided, however, that if the Company directs Employee to pay such
claim and sue for a refund, the Company shall advance the amount of such payment
to Employee, on an after-tax and interest-free basis (the "Advance"). The
Company's control of the contest related to the claim shall be limited to the
issues related to the Gross-Up Payment and Employee shall be entitled to settle
or contest, as the case may be, any other issue raised by the Internal Revenue
Service or other taxing authority. If the Company does not timely notify
Employee in writing of its desire to contest the claim, the Company shall pay to
Employee an additional Gross-Up Payment in respect of the excess parachute
payments that are the subject of the claim, and Employee agrees to pay the
amount of the Excise Tax that is the subject of the claim to the applicable
taxing authority in accordance with applicable law.
(d) Repayment to the Company. If, after the receipt by Employee of an Advance
pursuant to Section 24(c), Employee becomes entitled to receive any refund with
respect to the claim to which the Advance relates, Employee shall promptly pay
to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by
Employee of an Advance pursuant to Section 24(c), a determination is made that
Employee is not entitled to any refund with respect to such claim and the
Company does not notify Employee in writing of its intent to contest such denial
of refund prior to the expiration of thirty (30) days after such determination,
then the Advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset the amount of the additional Gross-Up
Payment then required to be paid Employee.
(e) Further Assurances. The Company shall indemnify Employee and hold him
harmless, on an after-tax basis, from any costs, expenses, penalties, fines,
interest or other liabilities ("Losses") incurred by Employee with respect to
the exercise by the Company of any of its rights under Section 24, including,
without limitation, any Losses related to the Company's decision to contest a
claim or any imputed income to him resulting from any Advance or action taken on
Employee's behalf by the Company pursuant to this Section 24. The Company shall
pay all legal fees and expenses incurred under this Section 24 and shall
promptly reimburse Employee for the reasonable expenses incurred by him in
connection with any actions taken by the Company or required to be taken by
Employee under this Section 24. The Company also shall pay all of the fees and
expenses of the Accounting Firm.
25. 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.
26. 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.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of
the date hereinabove set forth.
THE EXECUTIVE
By: /s/ WILLIAM J. McHALE
-------------------------------
WILLIAM J. McHALE
INFOCROSSING, INC.
By: /s/ ROBERT B. WALLACH
-------------------------------
ROBERT B. WALLACH
PRESIDENT
EXHIBIT A
STANDARD AGREEMENT & GENERAL RELEASE
[SEE PARAGRAPH 11(B)(I)(B)]
AGREEMENT AND GENERAL RELEASE
[INSERT COMPANY NAME] and [EMPLOYEE NAME], Employee's heirs,
executors, administrators, successors, and assigns (collectively referred to
throughout this Agreement as "Employee"), agree that: 1. Last Day of Employment.
Employee's last day of employment with Infocrossing, Inc. was
__________________. 2. Consideration. In consideration for signing this
Agreement and General Release, and complying with its terms, Infocrossing agrees
to pay the "Additional Compensation In Change Of Control" as set forth in
paragraph 4.(d)(ii) of the Employment Agreement entered between Employee and
Infocrossing, Inc., dated ________________. 3. No Consideration Absent Execution
of this Agreement. Employee understands and agrees that Employee would not
receive the monies and/or benefits specified in paragraph "2" above, except for
Employee's execution of this Agreement and General Release and the fulfillment
of the promises contained herein. 4. General Release of All Claims. Employee
knowingly and voluntarily releases and forever discharges [Insert Company Name],
its parent corporation, affiliates, subsidiaries, divisions, predecessors,
insurers, successors and assigns, and their current and former employees,
attorneys, officers, directors and agents thereof, both individually and in
their business capacities, and their employee benefit plans and programs and
their administrators and fiduciaries (collectively referred to throughout the
remainder of this Agreement as "Releasees"), of and from any and all claims,
known and unknown, asserted or unasserted, which the Employee has or may have
against Releasees as of the date of execution of this Agreement and General
Release, including, but not limited to, any alleged violation of: o The National
Labor Relations Act; o Title VII of the Civil Rights Act; o Sections 1981
through 1988 of Title 42 of the United States Code; o The Employee Retirement
Income Security Act (except for any vested benefits under any tax qualified
benefit plan); o The Immigration Reform and Control Act; o The Americans with
Disabilities Act; o The Age Discrimination in Employment Act; o The Occupational
Safety and Health Act; o The Workers Adjustment and Retraining Notification Act;
o The Fair Credit Reporting Act; o The Uniformed Services Employment and
Reemployment Rights Act; o Worker Adjustment and Retraining Notification Act; o
Employee Polygraph Protection Act; o The employee (whistleblower) civil
protection provisions of the Corporate and Criminal Fraud Accountability Act
(Sarbanes-Oxley Act);
o The New Jersey Law Against Discrimination;
o The New Jersey Civil Rights Act;
o The New Jersey Family Leave Act;
o The New Jersey State Wage and Hour Law;
o The New Jersey Conscientious Employee Protection Act;
o The New Jersey Equal Pay Law;
o The New Jersey Occupational Safety and Health Law;
o The New Jersey Smokers' Rights Law;
o The New Jersey Genetic Privacy Act;
o The New Jersey Fair Credit Reporting Act;
o The New Jersey Statutory Provision Regarding Retaliation/Discrimination for
Filing A Workers' Compensation Claim; o The New Jersey Public Employees'
Occupational Safety and Health Act; o New Jersey laws regarding Political
Activities of Employees, Lie Detector Tests, Jury Duty, Employment Protection,
and
Discrimination;
o any other federal, state or local law, rule, regulation, or ordinance;
o any public policy, contract, tort, or common law;
o any claims for vacation, sick or personal leave pay, short term or long
term disability benefits, or payment pursuant to any practice, policy,
handbook or manual; or
o any basis for recovering costs, fees, or other expenses including attorneys'
fees incurred in these matters. Employee understands this Release includes all
claims related in any manner to Employee's employment or the cessation of that
employment. Employee further understands that Employee is hereby releasing any
known or unknown claim for alleged right to discovery of information or
documents of Releasees.
5. Acknowledgments and Affirmations.
Employee affirms that Employee has not filed, caused to be filed, or presently
is a party to any claim against Infocrossing, Inc. except ________________.
Employee also affirms that Employee has [reported all hours worked as of the
date Employee signs this release and has been paid and/or has received all
compensation, wages, bonuses, commissions, and/or benefits to which Employee may
be entitled. Employee affirms that Employee has been granted any leave to which
Employee was entitled under the Family and Medical Leave Act or New Jersey
Family Leave Act or related state or local leave or disability accommodation
laws.
Employee further affirms that Employee has no known workplace injuries or
occupational diseases.
Employee further affirms that Employee has not been retaliated against for
reporting any allegations of wrongdoing by Infocrossing, Inc. or its officers,
including any allegations of corporate fraud. Both Parties acknowledge that this
Agreement does not limit either party's right, where applicable, to file or
participate in an investigative proceeding of any federal, state or local
governmental agency. To the extent permitted by law, Employee agrees that if
such an administrative claim is made, Employee shall not be entitled to recover
any individual monetary relief or other individual remedies.
Employee shall not apply in the future for employment with [INSERT COMPANY NAME]
because of, among other things, irreconcilable differences with [INSERT COMPANY
NAME].
6. Confidentiality and Return of Property. To the extent
permitted by law, Employee agrees not to disclose any information regarding the
underlying facts leading up to or the existence or substance of this Agreement
and General Release, except to Employee's spouse, tax advisor, and/or an
attorney with whom Employee chooses to consult regarding Employee's
consideration of this Agreement and General Release. In the event Employee or
Employee's counsel believe either is compelled to provide or disclose
information described in this paragraph, they will provide written notice of
such belief, via facsimile and mail, to [Insert the title, address and fax
number of the appropriate client representative], no later than seven (7)
business days prior to said production or disclosure. This Agreement shall not
be filed with any court and shall remain forever confidential except in an
action to enforce or for breach of this Agreement. If Employee asserts an action
to enforce this Agreement or for breach of this Agreement, Employee shall
maintain such confidentiality by whatever means necessary, including, but not
limited to, submitting the Agreement to a court under confidential seal.
Employee affirms that Employee has returned all of Infocrossing, Inc.'s
property, documents, and/or any confidential information in Employee's
possession or control. Employee also affirms that Employee is in possession of
all of Employee's property that Employee had at the Company's premises and that
Infocrossing, Inc. is not in possession of any of Employee's property. 7.
Governing Law and Interpretation. This Agreement and General Release shall be
governed and conformed in accordance with the laws of the State of New Jersey
without regard to its conflict of laws provision. In the event of a breach of
any provision of this Agreement and General Release, either party may institute
an action specifically to enforce any term or terms of this Agreement and
General Release and/or seek any damages for breach. Should any provision of this
Agreement and General Release be declared illegal or unenforceable by any court
of competent jurisdiction and cannot be modified to be enforceable, excluding
the general release language, such provision shall immediately become null and
void, leaving the remainder of this Agreement and General Release in full force
and effect.
8. Nonadmission of Wrongdoing. The Parties agree that neither this Agreement and
General Release nor the furnishing of the consideration for this Agreement and
General Release shall be deemed or construed at any time for any purpose as an
admission by Releasees of wrongdoing or evidence of any liability or unlawful
conduct of any kind.
9. Amendment. This Agreement and General Release may not be modified, altered or
changed except in writing and signed by both Parties wherein specific reference
is made to this Agreement and General Release. 10. Entire Agreement. This
Agreement and General Release sets forth the entire agreement between the
Parties hereto, and fully supersedes any prior agreements or understandings
between the Parties, except Employee Confidentiality and Invention Assignment
Agreement or similar confidentiality/non-solicitation agreement signed by the
Executive (the "Confidentiality Agreement") and Employment Agreement dated
__________, both of which are incorporated herein by reference. Employee
acknowledges that Employee has not relied on any representations, promises, or
agreements of any kind made to Employee in connection with Employee's decision
to accept this Agreement and General Release, except for those set forth in this
Agreement and General Release. EMPLOYEE IS ADVISED THAT EMPLOYEE HAS UP TO
TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS AGREEMENT AND GENERAL RELEASE.
EMPLOYEE ALSO IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EMPLOYEE'S SIGNING
OF THIS AGREEMENT AND GENERAL RELEASE. EMPLOYEE MAY REVOKE THIS AGREEMENT AND
GENERAL RELEASE FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY
EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL RELEASE. ANY REVOCATION WITHIN THIS
PERIOD MUST BE SUBMITTED, IN WRITING, TO ____________ [IDENTIFY COMPANY
REPRESENTATIVE] AND STATE, "I HEREBY REVOKE MY ACCEPTANCE OF OUR AGREEMENT AND
GENERAL RELEASE." THE REVOCATION MUST BE PERSONALLY DELIVERED TO
_________________ [IDENTIFY COMPANY REPRESENTATIVE] OR HIS/HER DESIGNEE, OR
MAILED TO ____________________ [IDENTIFY ADDRESS] AND POSTMARKED WITHIN SEVEN
(7) CALENDAR DAYS AFTER EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL RELEASE.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS
AGREEMENT AND GENERAL RELEASE, DO NOT RESTART OR AFFECT IN ANY MANNER THE
ORIGINAL UP TO TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD. EMPLOYEE
FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT
AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE
HAS OR MIGHT HAVE AGAINST RELEASEES.
The Parties knowingly and voluntarily sign this Agreement and General Release as
of the date(s) set forth below:
THE EXECUTIVE
By:_________________________________
INFOCROSSING, INC.
By:_________________________________
Name:
Title: