EMPLOYMENT AGREEMENT
Exhibit 10.4
THIS EMPLOYMENT AGREEMENT effective as of May 16, 2005, by and between AIRBEE WIRELESS, INC.
(the “Corporation”), a Delaware corporation, and X.X. Xxxxxxxx whose address is 3 Royal
Enclave, Adyar, Chennai 600 020, India. (the “Executive”).
W
I T N E S S E T H :
WHEREAS, Executive is experienced in business and technical executive management in the
information 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 Chief
Executive Officer of Airbee Wireless (India) Pvt. Ltd. to perform the duties and responsibilities
incident to such position, subject at all times to the control and direction of 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 (but no less than 40 hours per week), 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, subject, at all times, to the direction and control of the Board. 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 operations of the Corporation consistent with his
position as CEO as is normally associated with the position in and 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 Board. 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, except as approved by 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 15th day of
May, 2008.
4. Compensation. As compensation for his services hereunder, the Corporation shall
pay to Executive an initial base salary at the rate of $100,000 per annum, paid in Indian
Rupees and 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. Executive’s base salary may be increased but
not decreased during the Term.
5. Additional Benefits. In addition to such base salary, Executive (and his family)
shall be entitled to participate, to the extent he is (and they are) eligible under the terms and
conditions thereof, in any profit sharing, pension, retirement, hospitalization, insurance,
disability, medical service, stock option, bonus 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. Vacation. Executive shall be entitled to 4 weeks of paid vacation 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 Board.
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, investor or
otherwise, any business entity that is engaged in the short range wireless software and hardware
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
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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 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
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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 30 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 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
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“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 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.
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.
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:
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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 nor 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
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.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Employment Agreement to be duly
executed as of the day and year first above written.
| AIRBEEWIRELESS, INC. | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | President, Chief Operating Officer & Secretary | |||
| EXECUTIVE | ||||
| /s/ X. X. Xxxxxxxx | ||||
| X.X. Xxxxxxxx | ||||
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Exhibit A
Compensation:
Annual Salary: 2,191,750 Rs. & $50,000
Base Salary: |
876,700Rs. |
|||
Housing Allowance: |
438,350Rs. |
|||
Conveyance: |
9,600Rs. |
|||
Medical: |
15,000Rs. |
|||
Food: |
15,000Rs. |
|||
Others: |
837,100Rs. |
|||
Bonuses:
| 1. | Guaranteed bonus: $30, 000 per annum | ||
| 2. | Performance bonus: Evaluated on the following category and weighted as indicated: |
Bonus shall be awarded on the basis of product technical performance, schedule adherence,
customer support and general management of the operation under his supervision which events
shall be made recognizing that certain of these milestones are market driven. Executive shall at
all times be responsive to such milestones but shall have agreed to events, schedules and
product performance level.
Product Technical Performance |
= 30 | % | ||
Delivery Schedule |
= 30 | % | ||
Customer Support |
= 20 | % | ||
General Management |
= 20 | % |
| • | If achieve over 100%+ of objectives, then receive 50% of base salary | ||
| • | If achieve 75%+ of objectives, then receive 25% of base salary | ||
| • | If achieve 50%+ of target, then receive 10% of base salary |
All performance bonus awards shall be subject to the approval by the Board of the bonus plan
allocation each fiscal year.
Stock options:
The Corporation has established a stock option plan(s) for employees, consultants and non-employee
directors which shall govern the issuance and award of options. A copy of such plan shall be
delivered to Executive concurrent with the Employment Agreement.
Executive shall be awarded the following stock options:
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1.5 million stock options at a strike price of $0.82 with a five (5) year term shall be time
vested as follows:
| a. | 375,000 vest after 90 days following the effective date of employment agreement; | ||
| b. | 375,000 vest after 1 year of service; | ||
| c. | 375,000 vest after 2 years of service; | ||
| d. | remaining 375,000 vest after 3 years of service. |
In the event that the Executive is terminated WITHOUT cause, all stock options awarded above
then earned shall immediately be vested at the time of termination. 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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