Exhibit 10.20
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EMPLOYMENT AND NON-COMPETITION AGREEMENT
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By and Between
Vsource (CI) Ltd
and
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Dated as of January 1/st/ , 2003
This EMPLOYMENT AND NON-COMPETITION AGREEMENT dated as of January 1st, 2003
(the "Effective Date"), by and between Vsource (CI) Ltd, a Cayman Islands
company (the "Company"), and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Employee").
In consideration of Employee's continued employment by the Company, the
parties hereto agree as follows:
1. Employment. Subject to earlier termination in accordance with Sections
contained within, this Agreement shall be an at-will agreement commencing as of
the Effective Date.
a. Duties. The Company agrees to employ Employee and Employee agrees to
serve the Company, as its Chief Operating Officer, subject to the direction of
the Board of Directors of the Company (the "Board"), and to have such authority
and duties relative to the operation of the Company as may be determined by the
Board.
b. Term. The initial term of this Agreement shall be from the Effective
Date hereof until the day that is two years after the Effective Date (the
"Initial Term"). This Agreement shall renew automatically for additional one
(1) year terms unless either party gives notice of termination not less than 90
days prior to the end of the existing term.
c. Best Efforts. During the term of his employment under this Agreement,
Employee shall devote his full business time, attention, skill, and efforts to
the faithful performance of his duties hereunder, and will use his best efforts
to advance the interests of the Company, the Company's parent company and any
subsidiaries thereof (the "Vsource Companies").
d. Eligibility. This Agreement and the benefits contained herein are
contingent upon Employee's being authorized to work and reside in the country
in which the Company elects to base Employee (the "Host Country"), which may or
may not be the country of incorporation of the Company. If Employee loses his
authorization to work in the Host Country at any time, for any reason during
the life of this Agreement, the Company will consider Employee's circumstances,
but may, at its sole discretion, consider all, or any portion of this Agreement
void.
e. Statutory Benefits. Employee understands and agrees that the
differential payments and adjustments described below as well as any other
allowances or gratuities provided by the Company under this Agreement are, at
the election of the Company, in substitution for the statutory benefits
required under the laws of the Host Country to compensate employees who are not
entitled to receive these contractual benefits.
2. Compensation. The Company shall pay to Employee, as consideration for the
services to be rendered by Employee hereunder, a base salary of US$61,600 per
year (the "Base Salary"), to be paid on a monthly basis in US dollars. Employee
shall be eligible for a target incentive bonus ("Bonus") equal to 249.6% of the
Base Salary, which shall be payable upon the achievement of performance targets
to be set by the Compensation Committee of Vsource's Board of Directors (the
"Compensation Committee.
3. Stock Options, Restricted Stock and Similar Types of Compensation
Benefits. Stock option grants, participation in restricted stock programs or
deferred compensation programs and other similar types of compensation plans
will be decided by the Board of Directors of Vsource but in any event will be
on generally the same terms and conditions made available to other members of
senior management of the Vsource Companies.
4. Benefits. Employee shall be reimbursed US$3,000 per month for housing
related costs in the Host Country.
5. Expenses. Upon presentation of proper vouchers, receipts or other proof,
Employee shall be reimbursed promptly by the Company for all reasonable travel
and other expenses incurred by Employee in connection with performing his
employment obligations hereunder other than that covered by Clause 4 above.
6. Termination of Employment.
a. By the Employee. Employee's employment may be terminated by Employee,
without cause (a "Voluntary Termination") (i) during the Initial Term, at any
time during the period comprised of the last 90 days of the Initial Term, and
(ii) at any time after the Initial Term, in each case upon 90 days written
notice to the Company.
b. By the Company. Employee's employment may be terminated by the Company:
i. immediately, in the event that (1) Employee is convicted or pleads
guilty or nolo contendere to a felony or a crime of moral turpitude, (2)
the Board determines in good faith that Employee has been grossly
negligent or acted dishonestly to the material detriment of the Company,
(3) Employee willfully disobeys the instructions or mandates of the
Board and such disobedience continues after Employee is afforded a
reasonable opportunity to cure such disobedience, or (4) the Board makes
a good faith determination that Employee has engaged in actions
amounting to willful misconduct or failed to perform his duties
hereunder and such failure continues after Employee is afforded
reasonable opportunity to cure such failure (each of (1), (2), (3) or
(4), refereed to herein as a "Termination for Actual Cause"); or
ii. immediately, in the event that Employee is indicted or otherwise
formally charged with a felony or a crime of moral turpitude, in which
case the Board may, upon three (3) days written notice, suspend
Employee's employment by the Company. Thereafter, all payments of salary
and bonuses, if any, to which Employee otherwise would be entitled under
this Agreement shall be paid into an interest bearing escrow account. In
the event that Employee shall be acquitted of such charges or such
charges shall otherwise be dismissed, Employee shall be reinstated as an
employee, and all salary and accrued bonuses paid into escrow, plus
accrued interest, shall be paid to Employee. In the event Employee shall
be convicted or pleads guilty or nolo contendere to such charges and his
employment is terminated hereunder; all salary and accrued bonuses paid
into escrow plus accrued interest, shall be paid over to the Company,
and for purposes of this Agreement, Employee's employment shall be
deemed to have terminated as of the date of his suspension.
iii. the Board of Directors, in its discretion, resolves to terminate
Employee's employment for any reason other than those set forth in
sub-sections b(i) or b(ii) above, upon 90 days notice to Employee.
c. Death of Employee. In the event of Employee's death during the term of
his employment, Employee's employment pursuant to this Agreement shall be
deemed to have terminated on the last day of the calendar month during which
Employee's death occurred.
d. Disability. In the event Employee is unable to perform his normal duties
by reason of disability, then at the sole discretion of the Board, Employee's
employment pursuant to this Agreement may be treated as having been terminated
on the last day of the calendar month during which Employee shall have been
deemed disabled. For purposes of this Section, "disability" shall mean the
inability of Employee to perform his normal duties under this Agreement for a
cumulative period in excess of six (6) months within any twelve (12) month
period due to illness, injury, incapacity or other disability, either physical
or mental.
7. Severance.
a. Voluntary Termination, Termination for Actual Cause or Termination
Without Cause. In the event of Voluntary Termination, Termination for Actual
Cause or a termination by the Company of Employee's
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employment without cause, the Company shall pay to Employee, in full discharge
of its obligations hereunder, Base Salary through the date specified in the
applicable notice as the termination date (the "Termination Date") of his
employment; provided, that in the case of a Voluntary Termination, if the
Company permits Employee to terminate employment on a date earlier than the
Termination Date, then the Company shall only be obligated to pay Employee's
Base Salary through such earlier date; and provided, further, that in the case
of termination by the Company of Employee's employment without cause, the
Company may, at its option, elect to pay Employee the Base Salary payable
Employee through the Termination Date, and require Employee to leave the
Company's offices immediately or any other time designated by the Company prior
to the Termination Date.
b. Death or Disability. In event Employee's employment by the Company
terminates on account of Employee's death or disability, the Company shall pay
to Employee (or his estate), in full discharge of its obligations hereunder,
Employee's Base Salary through the Termination Date.
8. Non-Competition.
Employee covenants and agrees that during the term of Employee's employment
with the Company and for a period (the "Non-Compete Period") commencing on the
Termination Date and ending on the date which is one (1) year from the date of
the final payment by the Company to Employee pursuant to this Agreement, Employ
will refrain from: (i) directly or indirectly (as a director, officer,
employee, manager, consultant, independent contractor, advisor or otherwise)
engaging in competition with, or owning any interest in, performing any
services for, participating in or being connected with any business or
organization which engages in competition with any of the Vsource Companies in
the Asia-Pacific region, (ii) soliciting directly or indirectly the patronage
of any person with whom Employee has had personal contact or dealings on behalf
of any of the Vsource Companies during the twelve (12) month period immediately
preceding the Termination Date, or (iii) directly or indirectly employing,
soliciting for employment, or advising or recommending to any other person that
they employ or solicit for employment, any employee of any of the Vsource
Companies.
In connection with the foregoing provisions of this Section 8, Employee
represents that his experience, capabilities and circumstances are such that
the provisions of these Sections will not prevent him from earning a livelihood
and that the limitations set forth herein are reasonable and properly required
for the adequate protection of the Company.
9. Confidential Information.
a. Non-Disclosure. Employee agrees not to use other than for the benefit of
the Vsource Companies and to keep confidential, during the term of Employee's
employment with the Company and for at least two (2) years thereafter, all
information about the Vsource Companies which the Vsource Companies treat as
confidential, including, but not limited to, information about customers,
marketing plans, marketing techniques, technical information, and possible new
products or services, except that Employee will not be required to keep
particular items of information confidential after those items of information
become generally available to the public without a breach by Employee of
Employee's obligations under this Section. Employee covenants and agrees that
except in the performance of his duties hereunder, he will not, at any time,
directly or indirectly, without the prior written consent of the Company, use
or disclose to any person any confidential or proprietary information
("Confidential Information") obtained or developed by him while employed by the
Company relating to the business of the Vsource Companies, except information
which at the time (i) is available to others in the business or generally known
to the public other than as a result of disclosure by him not permitted
hereunder, (ii) is lawfully acquired from a third party who is not obligated to
a Vsource Company to maintain such information in confidence or (iii) is used
in any dispute or proceedings between the parties and/or Employee is legally
compelled to disclose such information; provided, however, that prior to any
such compelled disclosure, Employee will (a) assert the privileged and
confidential nature of the Confidential Information against the third party
seeking disclosure and (b) cooperate fully with the Company or any other
Vsource Company in protecting
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against any such disclosure and/or obtaining a protective order narrowing the
scope of such disclosure and/or use of the Confidential Information. In the
event that such protection against disclosure is not obtained, Employee will be
entitled to disclose the Confidential Information, but only as and to the
extent necessary to legally comply with such compelled disclosure.
b. Disclosure to the Company. Employee shall disclose promptly to the
Company all new discoveries, ideas, formulae, products, methods, processes,
designs, trade secrets, copyrightable material, patentable inventions, or other
useful technical information or know-how and all improvements, modifications or
alterations of existing discoveries made, discovered, or developed by him,
either alone or in conjunction with any other person during the term of his
employment by the Company, or using the Vsource Companies' materials or
facilities, which discoveries or developments are based on, derived from, or
make use of any information directly related to the business disclosed to, or
otherwise acquired by, Employee from any of the Vsource Companies during his
employment by the Company. Employee agrees that any copyright, patent,
trademark, or other proprietary rights in any such discoveries shall be the
sole and exclusive property of the Company, and none of the Vsource Companies
need account to Employee for any revenue or profit derived therefrom. If by
operation of law or otherwise, any or all of the items set forth in this
Section 9, or any component or element thereof, is considered to be the
intellectual property right of Employee, Employee hereby agrees to irrevocably
assign to the Company, its successor and assigns, ownership of all United
States and international copyrights and all other intellectual property rights
available with respect to each such element or item. Employee shall be deemed
to have granted the Company an irrevocable power of attorney to execute as
Employee's agent any and all documents (including copyright registrations)
deemed necessary by the Company to perfect the Company's intellectual properly
rights in and to each of the items set forth in this Section.
c. Trade Secrets. Employee agrees, in order to effectuate the intent of the
parties hereunder with respect to confidentiality of the trade secrets of the
Vsource Companies, to return to the Vsource Companies forthwith upon the
request of a Vsource Company or the termination of his employment or promptly
thereafter, all documents, materials, photographs, memorandums, and all copies
or reproductions hereof, or any property of a similar or different nature
containing information relating to the business or other Confidential
Information, whether such material was furnished by a Vsource Company, or
otherwise. Employee further agrees to use his best efforts and to exercise
utmost diligence to protect and guard and keep secret and confidential all
Confidential Information that shall come into his possession by reason of his
employment by the Company.
d. Company Property. Employee agrees to return to the Vsource Companies
forthwith upon the request of any Vsource Company or the termination of his
employment or promptly thereafter, all other properly belonging to the Vsource
Companies.
10. Damages.
Employee acknowledges that the Company may suffer irreparable harm, which
cannot readily be measured by monetary terms, if Employee breaches his
obligations under Section 8 or 9, or any other section. Employee agrees and
acknowledges that, in the event of any such breach, the Company shall be
entitled to cancel any and all shares, and/or options or rights to purchase
shares, of its or Vsource's capital stock received by the Employee and/or
cancel Employees rights to receive additional compensation pursuant to Section
2, 3 or 4 as compensation for services rendered. Employee further acknowledges
and agrees that the Company may obtain injunctive or other equitable relief
against Employee to prevent or restrain such breach causing such harm;
provided, however, that where such breach involves subject matter that is
susceptible of being cured, Employee will cure such breach as promptly as
practicable upon notice of such breach to Employee. Such injunctive relief
shall be in addition to any other remedies the Company might have under this
Agreement or at law.
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11. Miscellaneous.
a. Notice. Any notices or other communications to Employee or to the
Company under or relating to this Agreement must be in writing and will be
deemed given when delivered in person or sent by facsimile transmission to the
Company or Employee, as the case may be, at the Company's principal offices, or
on the third day after the day on which mailed to the Company or Employee, as
the case may be, by first class mail addressed to the Company or Employee at
the Company's principal offices, except that after the term of this Agreement
terminates, any notice or other communication to Employee will be deemed given
when delivered in person or sent by facsimile transmission, or on the third day
after the day on which mailed by first class mail, to Employee at an address
specified by Employee to the Company in the manner provided in this Section
(or, if Employee does not specify an address, at the Company's principal
offices).
b. No Duplication. The payments and benefits received by Employee hereunder
are in addition to, and not duplicative of, payments and benefits received by
Employee under Employee's employment and non-competition agreement with Vsource
(Malaysia) Sdn Bhd dated as of the same date hereof (the "Malaysia Agreement").
c. Entire Agreement; Amendment. This Agreement, together with the Malaysia
Agreement, represents the entire understanding of the parties with respect to
the subject matter hereof and thereof, and replaces in its entirety the
employment agreement dated April 4, 2001 between Employee and Vsource
(Malaysia) Sdn Bhd (formerly NetCel360 Sdn Bhd), which Employee agrees is
cancelled and terminated as of the Effective Date, except that Employee shall
be credited hereunder with all benefits that have accrued thereunder through
the Effective Date, including without limitation accrued vacation and employee
stock options that have previously been granted. No termination, revocation,
waiver, modification, amendment or supplement to this Agreement shall be
binding unless consented to in writing by Employee and the Company.
d. Governing Law. This Agreement shall be interpreted and construed in
accordance with the laws of Hong Kong, without giving effect to the conflict of
laws provisions thereof.
e. Interpretation. As used in this Agreement, the masculine gender shall
include the feminine or neuter gender and the plural shall include the singular
wherever appropriate. The titles of the paragraphs and sections have been
inserted as a matter of convenience of reference only and shall not control or
affect the meaning or construction of any of the terms or provisions hereof.
Nothing herein shall be construed against or more favorably toward any party by
reason of any party having drafted this Agreement or any portion hereof.
f. Severability. Any provision of this Agreement that is invalid, illegal
or unenforceable in any jurisdiction shall be automatically reformed and
construed so as to be valid, operative and enforceable to the maximum extent
permitted by law, or if no reformation is permissible, shall be ineffective to
the extent of such invalidity, illegality or unenforceability without
invalidating or rendering unenforceable the remaining provisions of this
Agreement, and any such invalidity, illegality or unenforceability shall not,
of itself, affect the validity, legality or enforceability of such provision in
any other jurisdiction.
g. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
h. No Waiver. No failure or delay on the part of either party is exercising
any right or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power preclude any other right
or power.
12. Data Privacy Consent.
Employee authorizes and consents to the transfer by the Company of various
personnel and employment data concerning and relating to Employee (via
electronic mail or fax) to the Vsource Companies or third parties assisting the
Company in implementation, administration and management of employee programmes.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as
of the date first above written.
VSOURCE (CI) LTD
By: /s/
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Name:
Title:
By: /s/
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Nationality: Republic of Ireland
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