Exhibit 10.1


 


KANBAY INTERNATIONAL, INC.


 


SEVERANCE AGREEMENT


 


THIS SEVERANCE AGREEMENT (this “Agreement”) is made
and entered into by and among Kanbay International, Inc., a Delaware
corporation (the “Company”), Kanbay Incorporated, an Illinois corporation (“Kanbay”)
and Rodney J. Rogers (“Executive”) as of April 5, 2006 (the “Effective Date”).


 


WHEREAS, it is in the best interests of Kanbay, the
Company, and the Company’s stockholders to assure Executive’s continued
dedication to Kanbay and the Company; and


 


WHEREAS, any consideration by Kanbay and the Company
of strategic transactions such as mergers and acquisitions would inevitably
create personal uncertainties for Executive, and therefore distract Executive
from the business of Kanbay and the Company; and


 


WHEREAS, it is in the best interests of Kanbay, the
Company and the Company’s stockholders to retain Executive’s dedication and
reduce distractions by providing Executive with compensation arrangements in
the event of certain terminations of Executive’s employment, including
terminations in connection with a strategic transaction, as more fully provided
herein.


 


NOW, THEREFORE, in consideration of and reliance upon
the foregoing background statement and the covenants contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Kanbay, the Company and Executive
agree as follows:


 


1.             DEFINITIONS


 


1.1           “Affiliate” shall mean
any corporation or other business entity that is a parent or subsidiary of the
Company, including ownership of 50% or more of the voting or profits interests
of the corporation or other business entity.


 


1.2           “Base Salary” shall
mean the annual Base Salary payable to Executive so long as the Company or an
Affiliate employs Executive.


 


1.3           “Board” shall mean the
Board of Directors of the Company.


 


1.4           “Cause” shall mean any
of the following: (i) Executive’s commission of a willful act (including,
without limitation, a dishonest or fraudulent act) or a grossly negligent act,
or the willful or grossly negligent omission to act by Executive, which is
intended to cause, causes or is reasonably likely to cause material harm to the
Company or an Affiliate, monetarily, reputationally or otherwise; (ii)
Executive’s commission or conviction of, or plea of nolo contendere to, any felony or any crime or offense
involving dishonesty or fraud or that is significantly injurious to the Company
or an Affiliate, monetarily, reputationally or otherwise; (iii) Executive’s
willful neglect of or continued failure to substantially perform, in any
material respect, his duties (as assigned to Executive from time to time) or
obligations (including a violation of policy) to the Company or an Affiliate
other than any such failure resulting from his incapacity due to physical or
mental illness; or (iv) Executive’s abuse of illegal drugs or other controlled
substances or habitual intoxication.  For
purposes of this Section, an act or omission is “willful” if it was knowingly
done, or knowingly


 

















 


omitted to be
done, by Executive not in good faith and without reasonable belief that the act
or omission was in the best interest of the Company.  Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or based
upon the advice of counsel for the Company shall be conclusively presumed to be
done, or omitted to be done, in good faith and in the best interests of the
Company.  The Company has the discretion,
in other circumstances, to determine in good faith, from all the facts and
circumstances reasonably available to it, whether Executive who is under
investigation for, or has been charged with, a crime will be deemed to have
committed it for purposes of this Agreement.


 


1.5           “Change
in Control” shall mean the occurrence of any one or more of the
following:


 


(a)           Any
“person” (as such term is defined in Section 3(a)(9) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and as used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act), including a “group” (as defined in Section
13(d)(3) of the Exchange Act), other than (i) the Company, (ii) any
wholly-owned subsidiary of the Company, or (iii) any employee benefit plan (or
related trust) sponsored or maintained by the Company or any Affiliate, becomes
a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company having fifty percent (50%)
or more of the combined voting power of the then-outstanding securities of the
Company that may be cast for the election of directors of the Company (other
than as a result of an issuance of securities initiated by the Company in the
ordinary course of business) (the “Company Voting Securities”); provided, however, that the event described
in this Section 1.5(a) shall not be deemed to be a Change in Control by virtue
of any underwriter temporarily holding securities pursuant to an offering of
such securities;


 


(b)           During
any period of two consecutive years, individuals who at the beginning of any
such period constitute the Board (the “Incumbent Directors”) cease for any
reason to constitute at least a majority of the Board, unless the election, or
the nomination for election by the stockholders of the Company, of each new
director of the Company during such period was approved by a vote of at least
two-thirds of the Incumbent Directors then still in office;


 


(c)           As
the result of, or in connection with, any cash tender or exchange offer, merger
or other business combination, sale of all or substantially all of the assets
or contested election, or any combination of the foregoing transactions, less
than a majority of the combined voting power of the then-outstanding securities
of the Company or any successor corporation or entity entitled to vote
generally in the election of the directors of the Company or such other
corporation or entity after such transaction is held in the aggregate by the
holders of the securities of the Company entitled to vote generally in the
election of directors of the Company immediately prior to such transaction; or


 


(d)           The
stockholders of the Company approve a plan of complete liquidation of the
Company.


 


Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any person acquires beneficial ownership
of more than fifty percent (50%) of the Company Voting Securities as a result
of the acquisition of Company Voting Securities by the Company that reduces the
number of Company Voting Securities outstanding; provided, however, that if
after


 


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such acquisition by the Company such person becomes the beneficial
owner of additional Company Voting Securities that increases the percentage of
outstanding Company Voting Securities beneficially owned by such person, a
Change in Control transaction shall then occur.


 


Further notwithstanding the foregoing, unless a majority of the
Incumbent Directors determines otherwise, no Change in Control shall be deemed
to have occurred with respect to a particular Executive if the Change in
Control results from actions or events in which such Executive is a participant
in a capacity other than solely as an officer, employee or director of the
Company or an Affiliate.


 


1.6           “Good
Reason” shall mean any one of the following events, without Executive’s written
consent: (i) the assignment to Executive of duties materially inconsistent with
Executive’s then-current level of authority or responsibilities, or any other
action by the Company or an Affiliate that results in a material diminution in
Executive’s position, compensation, authority, duties or responsibilities; (ii)
a breach by the Company or an Affiliate of any material term or covenant of any
agreement with Executive; (iii) a requirement that Executive be based at any office
or location that is more than
thirty-five (35) miles from the Executive’s principal office location
immediately preceding a Change in Control; or (iv) a failure by any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Company
or the Affiliate employing Executive to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company or an
Affiliate would be required to perform it if no such succession had taken
place.  Executive must provide the Company written notice of any claim of Good
Reason within sixty (90) days after the occurrence of any action/inaction
giving rise to such claim, and the Company or its Affiliate will have thirty
(30) days to cure such claim.


 


2.             TERMINATIONS
OF EMPLOYMENT TRIGGERING SEVERANCE BENEFITS


 


2.1           Subject to Section 2.2, and provided that
Executive has executed a full and complete release of the Company and its
Affiliates (and their related parties) from any and all claims, in a form
prepared by the Company, the Company or an Affiliate will provide Executive
with the benefits set forth in Section 3 if Executive’s employment is
terminated for the following reasons (“Qualifying Terminations”): (i) by the
Company or an Affiliate without Cause at any time; or (ii) by Executive for
Good Reason within eighteen (18) months after the effective date of a Change in
Control.


 


2.2           In no event will benefits be payable to
Executive under this Agreement in the event of termination due to Executive’s
death, disability, retirement, termination by the Company or an Affiliate for
Cause, or voluntary termination by Executive without Good Reason.


 


2.3           Notwithstanding the foregoing, the
following payments will be made upon Executive’s termination of employment for
any reason or no reason:  (i) earned but
unpaid Base Salary through the date of termination; (ii) any accrued but unpaid
vacation; (iii) any amounts payable under any employee pension or welfare benefit
plans of the Company or an Affiliate in accordance with the terms of those
plans; and (iv) unreimbursed business expenses incurred by Executive on behalf
of the Company or an Affiliate (in accordance with existing expense
reimbursement policies of the Company or an Affiliate).


 


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3.             TERMINATION
BENEFITS


 


3.1           Subject to the
conditions set forth in Section 2, and so long as Executive has not violated
and does not violate any of the terms of this Agreement, the following benefits
shall be paid or provided to Executive in the event Executive’s employment is
terminated in a Qualifying Termination:


 


(a)           Salary
Continuation.  The Company or an
Affiliate will pay Executive severance pay consisting of bi-weekly pay checks
in an amount based on Executive’s Base Salary on the date of termination (less
applicable deductions for federal and state taxes and FICA) for a period of six
(6) months following the date of termination. 
The severance pay will be paid on regularly scheduled pay dates.  Notwithstanding the foregoing, no payments
under this Section 3.1(a) shall commence prior to the effective date of the
release of claims being provided to the Company and its Affiliates by Executive
under Section 2.1 (including the expiration of any revocation period required
by law in connection with such release).


 


(b)           Incentive
Plan Vesting.  All awards under the
Kanbay International, Inc. Stock Incentive Plan, or any similar or successor
plan, held by Executive shall immediately become exercisable in full, all
restrictions applicable to such awards shall lapse, and all performance
measures with respect to such awards shall be deemed satisfied in full.  Executive will have a period of time
following the date of termination, as stated in Kanbay International,
Inc. Stock Incentive Plan or the applicable Award Agreement issued thereunder, during which Executive
may exercise his awards, if any.  Except
as specifically stated in this Section 3.1(b), this Agreement shall not be construed to amend, modify or supersede any
of the provisions of the Kanbay International, Inc. Stock Incentive
Plan, or any similar or successor plan, or any applicable Award Agreement
issued thereunder.


 


(c)           Health
Benefits.  To the extent permissible
under applicable law, the Company or an Affiliate shall continue to provide
coverage to Executive (and to Executive’s spouse and dependents who are covered
as of date of the Qualifying Termination) under the health and welfare benefit
plans the Company or an Affiliate maintains for active employees following
Executive’s Qualifying Termination, at the same cost to Executive and under the
same terms applicable to active employees (and their dependents), for a period
of eighteen (18) months after Executive’s Qualifying Termination.  Notwithstanding the foregoing, if Executive
becomes employed with another employer during such eighteen (18) month period
and is eligible to receive substantially comparable health and welfare benefits
from such employer, the obligation of the Company and its Affiliates to provide
the benefits described in this Section 3.1(c) shall cease.


 


3.2           Taxation and
Withholding.  Neither the Company nor
any Affiliate makes any representations or warranties with respect to, and has
no responsibility or liability for, the personal tax consequences of this
Agreement to Executive.  The Company and
its Affiliates may make such provisions and take such steps as they may deem
necessary or appropriate for the withholding of any taxes that the Company or
any Affiliate is required by any law or regulation of any governmental
authority, whether federal, state or local, domestic or foreign, to withhold in
connection with this Agreement.


 


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3.3           Executive’s Death.  If Executive dies before the completion of
any payments or benefits required under this Section 3, the Company or an
Affiliate will make or continue payments and benefits to Executive’s surviving
spouse, if any, or Executive’s estate in accordance with this Section.


 


4.             RESTRICTIVE
COVENANTS


 


4.1           Trade
Secrets.  Executive acknowledges that
he has had and/or will have access to confidential information of the Company
and its Affiliates (including, but not limited to, current and prospective
confidential know-how, specialized training, customer lists, marketing plans,
business plans, financial and pricing information, and information regarding
acquisitions, mergers and/or joint ventures) concerning the business,
customers, clients, contacts, prospects, and assets of the Company and its
Affiliates that is unique, valuable and not generally known outside the Company
and its Affiliates, and that was obtained from the Company or an Affiliate or
which was learned as a result of the performance of services by Executive on
behalf of the Company or an Affiliate (“Trade Secrets”).  Trade Secrets shall not include any
information that: (i) is now, or hereafter becomes, through no act or failure
to act on the part of Executive that constitutes a breach of this Section 4,
generally known or available to the public; (ii) is known to Executive at the
time such information was obtained from the Company or an Affiliate; (iii) is
hereafter furnished without restriction on disclosure to Executive by a third
party, other than an employee or agent of the Company or an Affiliate, who is
not under any obligation of confidentiality to the Company or an Affiliate;
(iv) is disclosed with the written approval of the Company or an Affiliate; or
(v) is required to be disclosed or provided by law, court order, or similar
compulsion, including pursuant to or in connection with any legal proceeding
involving the parties hereto; provided however, that such disclosure shall be
limited to the extent so required or compelled; and provided further, however,
that if Executive is required to disclose such confidential information, he
shall give the Company notice of such disclosure and cooperate in seeking
suitable protections.  Other than in the
course of performing services for the Company and its Affiliates, Executive
will not, at any time, directly or indirectly use, divulge, furnish or make
accessible to any person any Trade Secrets, but instead will keep all Trade
Secrets strictly and absolutely confidential. 
Executive will deliver promptly to the Company or the Affiliate that
employed Executive, at the termination of his employment or at any other time
at the request of the Company or an Affiliate, without retaining any copies,
all documents and other materials in his possession relating, directly or indirectly,
to any Trade Secrets.


 


4.2           Non-competition.  Beginning on the Effective Date and for a
period continuing through the later of (i) six (6) months following termination
of Executive’s employment with the Company and all Affiliates and (ii) the period
the Company or an Affiliate is making severance payments to Executive under
Section 3.1(a) (the “Restricted Period”), Executive shall not directly or
indirectly own any interest in, operate, control or participate as a partner,
director, principal, officer, or agent of, enter into the employment of, act as
a consultant to, or perform any services for, any company, person, or entity
engaged in a “Competitive Business” (as defined herein).  A Competitive Business shall include any
company, person or entity that is involved in or seeks to become involved in
providing information technology services and solutions to the financial
services industry, including business process and technology advice, software
package selection and integration, application development, maintenance and
support, network and system security and specialized services, in any country
in which the Company or an Affiliate is doing business at the time of
termination of Executive’s employment.


 


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4.3.          Employee
Agreements.  As a condition of this
Agreement and as a condition of Executive’s employment with the Company or an
Affiliate, Executive is required to sign a separate Employee Non-Disclosure, Development and Non-Solicitation Agreement and/or
other similar agreement(s) (collectively, “Employee Agreements”).  Executive hereby reaffirms his commitment to
abide by all obligations set forth in all such Employee Agreements.  Executive further agrees that any breach by
Executive of any Employee Agreement shall be considered a breach by Executive
of this Agreement.  This Agreement shall
not be construed to amend, modify or terminate any of Executive’s obligations
under any Employee Agreement to the extent this Agreement and the Employee
Agreement are not inconsistent.  However,
in the event of any direct conflict between the terms of any Employee Agreement
and the terms of this Agreement, the terms of this Agreement shall govern and
supersede any Employee Agreement.


 


4.4           Irreparable Harm. 
Executive acknowledges that: (i) Executive’s compliance with this
Agreement is necessary to preserve and protect the proprietary rights, Trade
Secrets, and the goodwill of the Company or an Affiliate as going concerns, and
(ii) any failure by Executive to comply with the provisions of this Agreement
will result in irreparable and continuing injury for which there will be no
adequate remedy at law.  In the event
that Executive fails to comply with the terms and conditions of this Agreement,
the obligations of the Company and its Affiliates to pay the severance benefits
set forth in Section 3 shall cease, and the Company or an Affiliate will be
entitled, in addition to other relief that may be proper, to all types of
equitable relief (including, but not limited to, the issuance of an injunction
and/or temporary restraining order) that may be necessary to cause Executive to
comply with this Agreement, to restore to the Company and its Affiliates their
property, and to make the Company and its Affiliates whole.


 


4.5           Survival.  The
provisions set forth in this Section 4 shall survive termination of this
Agreement.


 


4.6           Scope Limitations. 
If the scope, period of time or area of restriction specified in this
Section 4 are or would be judged to be unreasonable in any court proceeding,
then the period of time, scope or area of restriction will be reduced or
limited in the manner and to the extent necessary to make the restriction
reasonable, so that the restriction may be enforced in those areas, during the
period of time and in the scope that are or would be judged to be reasonable.


 


5.             MISCELLANEOUS


 


5.1           Employment Status.  Nothing herein shall be deemed to create any
term of employment, it being expressly understood and agreed between the
parties that Executive’s employment is at will and that either party may
terminate such employment at any time.


 


5.2           Governing Law.  All provisions of this Agreement will be
construed and governed by Illinois law without regard to its choice of law
principles or the laws of any other jurisdiction.  Any suit, claim or other legal proceeding
arising out of or relating to Executive’s employment, his termination from
employment, or this Agreement shall be brought exclusively in the federal or
state courts located in Cook County, Illinois, and Executive and the Company
and its Affiliates hereby submit to personal jurisdiction in the State of
Illinois and to venue in such courts. 
Notwithstanding the foregoing, the Company or an Affiliate may seek and
obtain injunctive relief against Executive in any court having jurisdiction
over Executive.


 


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5.3           Severability.  Every provision of this Agreement is intended
to be severable. If any provision or portion of a provision is illegal or
invalid, then the remainder of this Agreement shall not be affected. Moreover,
any provision of this Agreement which is determined to be unreasonable,
arbitrary or against public policy shall be modified as necessary so that it is
not unreasonable, arbitrary or against public policy while maximizing the
intent of the parties.


 


5.4           Entire Agreement.  Except as provided in any non-disclosure,
non-solicitation, intellectual property or similar agreement signed by
Executive, with respect to its subject matter, this Agreement constitutes the
entire understanding of the parties superseding all prior agreements,
understandings, negotiations and discussions between them, whether written or
oral, and there are no other understandings, representations, warranties or
commitments with respect thereto. 
Notwithstanding any terms contained herein to the contrary, the Company
or its Affiliates, in addition to any rights set forth herein, shall have the
right to seek enforcement of any other penalties or restrictions that may apply
under any other non-disclosure, non-solicitation, intellectual property or
similar agreement between Executive and the Company or its Affiliates.


 


5.5           Successors and
Assigns.  This Agreement may not be
assigned by Executive.  This Agreement
shall be binding upon and inure to the benefit of all successors and assigns
(whether by operation of law or otherwise) of the Company and its Affiliates.


 


5.6           Amendment. This
Agreement may only be amended or terminated by mutual written agreement between
the Company and Executive.


 


5.7.          No
Waiver.  No failure or delay by the
Company or an Affiliate or Executive in enforcing or exercising any right or
remedy hereunder shall operate as a waiver thereof.  No modification, amendment or waiver of this
Agreement nor consent to any departure by Executive from any of the terms or
conditions thereof, shall be effective unless in writing and signed by the
Chairman of the Board.  Any such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given.


 


5.8.          Counterparts.  The parties may execute this Agreement in one
or more counterparts, all of which together shall constitute but one Agreement.


 


IN WITNESS WHEREOF, each party has executed this
Severance Agreement or caused this Severance Agreement to be duly executed as
of the Effective Date.


 


	
  KANBAY INTERNATIONAL, INC.

  	
  RODNEY J. ROGERS

  
	
   

  	
   

  
	
  By:

  	
  /s/ Raymond J. Spencer

  	
   

  	
  /s/ Rodney J. Rogers

  	
   

  
	
  Its: 

  	
  Chairman and CEO

  	
   

  	
   

  



 


 


	
  KANBAY INCORPORATED

  
	
   

  
	
  By:

  	
  /s/ Robert A. Williams

  	
   

  
	
  Its :

  	
  Vice President and General Counsel

  	
   

  



 


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