EMPLOYMENT AGREEMENT
Exhibit 10.3
THIS EMPLOYMENT AGREEMENT effective as of the 15th day of September, 2002, and updated on
September 16, 2005 by and between AIRBEE WIRELESS (India) Pvt. Ltd. a subsidiary of Airbee
Wireless, Inc. (the “Corporation”), a Delaware corporation, and Xxxxxxxxx Xxxxxxxxx,
residing at Old 00 Xxx 00, Xxxxxxxxxxx Xxxxxx, X’Xxxxx, Xxxxxxx 000000, Xxxxx (the
“Executive”). Such update is made effective April 1, 2005.
W
I T N E S S E T H :
WHEREAS, the Corporation has purchased the assets of Connexus Technologies, Inc. (“Connexus”)
pursuant to an merger agreement;
WHEREAS, Executive is experienced in the technology industry; and
WHEREAS, the Corporation desires to enter into this Employment Agreement in order to assure
itself of the service of Executive, and Executive desires to accept employment with the
Corporation, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Employment of Executive. The Corporation hereby employs Executive as its Vice
President and Chief Technology Officer (“CTO”) to perform the duties and responsibilities incident
to such position, subject at all times to the control and direction of the CEO of Airbee Wireless
(India) Pvt. Ltd., and additionally to the Board of Directors of the Corporation (the
“Board”).
2. Acceptance of Employment; Time and Attention. Executive hereby accepts such
employment and agrees that throughout the period of his employment hereunder, he will devote
substantially all his time, attention, knowledge and skills, faithfully, diligently and to the best
of his ability, in furtherance of the business of the Corporation, and will perform the duties and
responsibilities assigned to him pursuant to Paragraph 1 hereof. As an executive officer,
Executive shall perform such specific duties and shall exercise such specific authority related to
the management of the day-to-day technical operations of the Corporation consistent with his
position as Vice President as is normally associated with the position of Vice President of a
company (consistent with the governing documents of the corporation) and also as may be assigned to
Executive from time to time by the Corporation. Executive shall at all times be subject to,
observe and carry out such rules, regulations, policies, directions and restrictions as the
Corporation shall from time to time establish. During the period of his employment hereunder,
Executive shall not, directly or indirectly, accept employment or compensation from, or perform
services of any nature for, any business enterprise other than the Corporation.
Executive shall be elected to such offices of the Corporation as may from time to time be
determined by the Board. During the period of Executive’s employment hereunder, he shall not be
entitled to additional compensation for serving in any offices of the Corporation to which he is
elected or appointed.
3. Term. Except as otherwise provided herein, the term of Executive’s employment
hereunder shall commence as of the date of this Agreement and shall terminate on the 1st day of
October, 2007. If the Executive chooses to resign his position of his own accord, a minimum of 90
days notice of such termination shall be given to the company president.
4. Compensation. As compensation for his services hereunder, the Corporation shall
pay to Executive an initial base salary at the rate of $80,000 per annum (and paid in Indian Rupees
at a conversion rate of 43.385 Rs. Per 1 USD) payable in equal installments no less frequently than
monthly. Additionally, Executive shall be eligible for stock options and bonuses as set forth on
Exhibit A hereto. All compensation paid to Executive shall be subject to withholding and other
employment taxes imposed by applicable law in such jurisdiction as may dictate.
5. Additional Benefits. In addition to such base salary, Executive shall be entitled
to participate, to the extent he is eligible under the terms and conditions thereof, in any profit
sharing, pension, retirement, hospitalization, insurance, disability, medical service, stock
option, bonus, relocation reimbursement or other employee benefit plan available to the executive
officers of the Corporation that may be in effect from time to time during the period of
Executive’s employment hereunder. The Corporation shall be under no obligation to institute or
continue the existence of any such employee benefit plan.
6. Reimbursement of Expenses. The Corporation shall promptly reimburse Executive in
accordance with applicable policies of the Corporation for all expenses reasonably incurred by him
in connection with the performance of his duties hereunder and the business of the Corporation,
upon the submission to the Corporation of appropriate receipts or vouchers. .
7. Facilities and Personnel. Executive shall be provided with (or reimbursed for) an
office, secretarial services and such other facilities, supplies, personnel and services as shall
be required or reasonably requested for the performance of his duties hereunder.
8. PTO/Vacation. Executive shall be entitled to 4 weeks of paid vacation (personal
time off [PTO]) in respect of each 12-month period during the term of his employment hereunder,
such vacation to be taken at times mutually agreeable to Executive and the Corporation.
9. Restrictive Covenant. In consideration of his employment hereunder, Executive
agrees that during the period of his employment hereunder and for two years (unless Executive is
terminated without Cause in which case this covenant will not apply) thereafter, he will not (a)
directly or indirectly own, manage, operate, join, control, participate in, invest in, or otherwise
be connected with, in any manner, whether as an officer, director, employee, partner,
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investor or otherwise, any business entity that is engaged in the technology industry or in
any other business in which the Corporation is engaged as of termination, (1) in all locations in
which the Corporation is doing business, and (2) in all locations in respect of which the
Corporation is actively planning for and/or pursuing a business opportunity; (b) for himself or on
behalf of any other person, partnership, corporation or entity, call on any customer of the
Corporation for the purpose of soliciting, diverting or taking away any customer from the
Corporation (1) in all locations in which the Corporation is doing business, and (2) in all
locations in respect of which the Corporation is actively planning for and/or pursuing a business
opportunity, or (c) induce, influence or seek to induce or influence any person engaged as an
employee, representative, agent, independent contractor or otherwise by the Corporation, to
terminate his or her relationship with the Corporation. Nothing herein contained shall be deemed
to prohibit Executive from (x) investing his funds in securities of an issuer if the securities of
such issuer are listed for trading on a national securities exchange or are traded in the
over-the-counter market and Executive’s holdings therein represent less than 2% of the total number
of shares or principal amount of the securities of such issuer outstanding, or (y) owning
securities, regardless of amount, of the Corporation.
Executive acknowledges that the provisions of this Paragraph 9 are reasonable and necessary
for the protection of the Corporation, and that each provision, and the period or periods of time,
geographic areas and types and scope of restrictions on the activities specified herein are, and
are intended to be, divisible. In the event that any provision of this Paragraph 9, including any
sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any
respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but
shall, subject to the discretion of such court, remain in full force and effect and any invalid and
unenforceable provisions shall be deemed, without further action on the part of the parties hereto,
modified, amended and limited to the extent necessary to render the same valid and enforceable.
10. Confidential Information. Executive shall hold in a fiduciary capacity for the
benefit of the Corporation all information, knowledge and data relating to or concerned with its
operations, sales, business and affairs, and he shall not, at any time, use, disclose or divulge
any such information, knowledge or data to any person, firm or corporation (unless the Corporation
no longer treats such information as confidential) other than to the Corporation or its designees
and employees or except as may otherwise be required in connection with the business and affairs
of the Corporation; provided, however, that Executive may use, disclose or divulge
such information, knowledge or data that (i) was previously known by the Executive; or (ii) is or
becomes generally available to the public through no wrongful act on Executive’s part; or (iii)
becomes available to Executive from a person or entity other than the Corporation or its agents
not bound by this or a similar agreement with the Corporation; and provided,
further, that the provisions of this Paragraph 10 shall not apply to Executive’s know how
to the extent utilized by him in subsequent employment so long as such employment is not in breach
of this Agreement.
11. Equitable Relief. The parties hereto acknowledge that Executive’s
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services are unique and that, in the event of a breach or a threatened breach by either party
of any of its obligations under this Agreement, the other party will not have an adequate remedy
at law. Accordingly, in the event of any such breach or threatened breach by one party, the other
party shall be entitled to such equitable and injunctive relief as may be available to restrain
the first party and any business, firm, partnership, individual, corporation or entity
participating in such breach or threatened breach from the violation of the provisions hereof.
Nothing herein shall be construed as prohibiting either party from pursuing any other remedies
available at law or in equity for such breach or threatened breach, including the recovery of
damages.
12. Survival of Provisions. Neither the termination of this Agreement, nor of
Executive’s employment hereunder, shall terminate or affect in any manner any provision of this
Agreement that is intended by its terms to survive such termination.
13. Death; Disability. In the event that during the term of his employment by the
Corporation Executive shall die or become Disabled (as such term is hereinafter defined) he or his
estate, as the case may be, shall continue to receive the full amount of the base salary, as well
as bonus and stock rights earned as at that time, to which he was theretofore entitled for the
lesser of (i) one year or (ii) the remainder of the Term. Thereafter, Executive shall not be
entitled to receive any further payments on account of his base salary until he shall cease to be
Disabled and shall have resumed his duties hereunder and provided that the Corporation shall not
have theretofore terminated this Agreement as hereinafter provided. This Agreement shall
automatically terminate upon the death of Executive. The Corporation may terminate this Agreement
and Executive’s employment hereunder at any time after Executive is Disabled, upon at least 30
days’ prior written notice. For the purposes of this Agreement, Executive shall be deemed to have
become “Disabled” when (x) by reason of physical or mental incapacity, Executive is not
able to perform a substantial portion of his duties hereunder for a period of 90 consecutive days
or for 90 days in any consecutive 180-day period or (y) when Executive’s physician and a physician
designated by the Corporation shall have determined that Executive shall not be able, by reason of
physical or mental incapacity, to perform a substantial portion of his duties hereunder. In the
event that such physicians are unable to agree on whether the Executive is Disabled pursuant to
clauses (x) or (y) above, the matter shall be resolved by the determination of a third physician
qualified to practice medicine in the United States of America and selected by the designated
physicians. If Executive shall receive benefits under any disability policy maintained by the
Corporation, the Corporation shall be entitled to deduct the amount equal to the benefits so
received from base salary that it otherwise would have been required to pay to Executive as
provided above.
14. Termination for Cause. The Corporation may at any time upon written notice to
Executive terminate Executive’s employment for Cause. For purposes of this Agreement, the
following shall constitute “Cause”: (i) the willful and repeated failure of Executive to
perform any material duties hereunder or gross negligence of Executive in the performance of such
duties, and if such failure or gross negligence is susceptible of cure by Executive, the failure to
effect such cure within 20 days after written notice of such failure or
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gross negligence is given to Executive; (ii) excessive use of alcohol or illegal drugs
interfering with the performance of Executive’s duties hereunder; (iii) theft, embezzlement, fraud,
misappropriation of funds, other acts of dishonesty or the violation of any law relating to
Executive’s employment; (iv) the conviction of Executive of a felony; or (v) the breach by
Executive of any other material provision of this Agreement, and if such breach is susceptible of
cure by Executive, the failure to effect such cure within 30 days after written notice of such
breach is given to Executive. For purposes of this Agreement, an action shall be considered
“willful” if it is done intentionally, purposely or knowingly, distinguished from an act done
carelessly, thoughtlessly or inadvertently. In any such event, Executive shall be entitled to
receive his base salary to and including the date of termination. Should Executive in good faith
dispute his termination for cause, he shall give prompt written notice thereof to the Corporation,
in which event such dispute shall be submitted to and determined by arbitration in Washington, DC,
before an arbitrator appointed pursuant to the rules of the American Arbitration Association (the
“Arbitrator”). Such arbitration shall be conducted in accordance with the rules then
obtaining of the American Arbitration Association. Any award or decision of the Arbitrator shall
be conclusive in the absence of fraud and judgment thereon may be entered in any court having
jurisdiction thereof. The costs of such arbitration shall be borne by the party against whom any
award or decision is rendered. Executive shall not be entitled to receive any compensation for
periods subsequent to his dismissal pursuant to this Paragraph 14.
15. Termination for Employer Breach. Executive may upon written notice to the
Corporation terminate this Agreement (a termination for “Employer Breach”) in the event of
the breach, or threatened breach by the Corporation of any material provision of this Agreement,
and if such breach relates to a provision of this Agreement and is susceptible of cure, the
failure to effect such cure within 30 days after written notice of such breach is given to the
Corporation. Nothing herein shall be construed as prohibiting the Executive from pursuing any
other remedies available at law or in equity for such breach or threatened breach, including the
recovery of damages
16. Insurance Policies. The Corporation shall have the right from time to time to
purchase, increase, modify or terminate insurance policies on the life of Executive for the benefit
of the Corporation, in such amounts as the Corporation shall determine in their sole discretion.
In connection therewith, Executive shall, at such place or places as the Corporation may reasonably
direct, submit himself to physical examinations on an annual basis (or more frequently) should an
insurer or prospective insurer so require, and execute and deliver such documents as the
Corporation may deem necessary to obtain such insurance policies.
17. Entire Agreement; Amendment. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof, and any other prior agreement between
the Corporation and Executive with respect to the subject matter hereof is hereby superseded and
terminated effective immediately and shall be without further force or effect. No amendment or
modification shall be valid or binding unless made in writing and signed by the party against whom
enforcement thereof is sought.
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18. Notices. Any notice required, permitted or desired to be given pursuant to any of
the provisions of this Agreement shall be deemed to have been sufficiently given or served for all
purposes if and when delivered in person or by responsible overnight delivery service or sent by
certified mail, return receipt requested, postage and fees prepaid as follows:
If to the Corporation, to:
If to Executive, at his address set forth above.
Any of the parties hereto may at any time and from time to time change the address to which notice
shall be sent hereunder by notice to the other parties given under this Paragraph 18. The date of
the giving of any notice hand delivered or delivered by responsible overnight carrier shall be the
date of its delivery and of any notice sent by mail shall be the date five days after the date of
the posting of the mail.
19. No Assignment; Binding Effect. Neither this Agreement, nor the right to receive
any payments hereunder, may be assigned by Executive or the Corporation without the prior written
consent of the other parties hereto. This Agreement shall be binding upon Executive, his heirs,
executors and administrators and upon the Corporation, their respective successors and permitted
assigns.
20. Waivers. No course of dealing or any delay on the part of the Corporation or
Executive in exercising any rights hereunder shall operate as a waiver of any such rights. No
waiver of any default or breach of this Agreement shall be deemed a continuing waiver or a waiver
of any other breach or default.
21. Invalidity. If any clause, paragraph, section or part of this Agreement shall be
held or declared to be void, invalid or illegal, for any reason, by any court of competent
jurisdiction, such provision shall be ineffective but shall not in any way invalidate or affect any
other clause, paragraph, section or part of this Agreement.
22. Further Assurances. Each of the parties shall execute such documents and take
such other actions as may be reasonably requested and agreed to by the other party to carry out
the provisions and purposes of this Agreement in accordance with its terms.
23. Attorneys’ Fees. If any action, suit or proceeding is filed by any party to
enforce or rescind this Agreement or otherwise with respect to the subject matter of this
Agreement, the party prevailing on an issue shall be entitled to recover with respect to such
issue, in addition to costs, reasonable attorneys’ fees incurred in preparation or in prosecution
or defense of such action, suit or proceeding as fixed by the arbitrator or trial court, and if any
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appeal is taken from the decision of the trial court, reasonable attorneys’ fees as fixed on
appeal.
24. Governing Law. This Agreement shall be governed, interpreted and construed in
accordance with the terms of the State of Maryland, except that body of law relating to choice of
laws.
IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to be duly
executed as of the day and year first above written.
| AIRBEE WIRELESS, INC. | EXECUTIVE | |||||||||
| By: /s/ E. Xxxxxx Xxxxxx | By: /s/ Xxxxxxxxx Xxxxxxxxx | |||||||||
Name:
|
E. Xxxxxx Xxxxxx | Name: | Xxxxxxxxx Xxxxxxxxx | |||||||
Title:
|
President and Chief Operating Officer | |||||||||
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Exhibit A
Compensation:
Annual Salary: 3,470,800 Rs.
Housing Allowance: |
350,680Rs. |
|||
Conveyance: |
9,600Rs. |
|||
Medical: |
15,000Rs. |
|||
Food: |
15,000Rs. |
|||
Others: |
661,760Rs. |
|||
Bonuses:
Guaranteed bonus: $1,315,050 Rs. per annum
Stock options:
The corporation shall establish stock option plan(s) for employees, consultants and non- employee
directors which shall govern the issuance and award of options.
Executive shall be awarded the following stock options:
1) 375,000 stock options with a $0.00004 strike price, 5 year term shall be time vested as follows:
62,500 vest immediately at effective date of employment agreement
62,500 vest after 1 year of service;
62,500 vest after 2 years of service;
62,500 vest after 3 years of service;
62,500 vest after 4 years of service; and the
remaining 62,500 vests after 5 years of service
62,500 vest after 1 year of service;
62,500 vest after 2 years of service;
62,500 vest after 3 years of service;
62,500 vest after 4 years of service; and the
remaining 62,500 vests after 5 years of service
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In the event that the Executive is terminated WITHOUT cause, all stock options then earned shall
immediately be vested at the time of termination. Additionally, in the event of a Change of Control
of the Company, consisting of an entity, group, corporation, or individual acquiring over 50% of
the voting shares of the company, or a Change of Control as defined by the Securities and Exchange
Commission, it is understood that all earned and as of then unvested options shall immediately be
vested.
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