EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (this “Agreement”) is
entered into as of March 8, 2008 (the “Effective Date”), by
and between collectively, India Globalization Capital, Inc., (“IGC”) a corporation
organized under the laws of Maryland, India Globalization Capital Mauritius,
(“IGC-M” and
collectively with IGC, “Employer”), and Ram
Xxxxxxx (“Executive”) on the
following terms and conditions:
RECITALS:
A. The
Employer desires to be assured of the continued services of Executive;
and
B. Executive
desires to continue to be employed by the Employer as its Chief Executive
Officer upon the terms, covenants and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual
terms, covenants and conditions hereinafter set forth, the parties hereto agree
as follows:
1. Employment
Period. Employer hereby agrees to continue to employ Executive
as its Chief Executive Officer, and Executive, agrees to accept such continued
employment for the period beginning on the Effective Date and ending on the
fifth anniversary of the Effective Date (the “Employment Period”).
Thereafter, Executive’s employment shall continue until terminated in accordance
with this Agreement.
2. Performance of
Duties.
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2.1.
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Executive
agrees that during the Employment Period, and while Executive is employed
by Employer, he shall devote his full normal and customary working time,
energies and talents exclusively to serving in the capacity of Chief
Executive Officer of Employer and to performing such other duties
consistent with his position, as may be properly assigned to him by the
Board of Directors of Employer (the “Board”). He
will carry out such duties faithfully, efficiently and in a professional
manner.
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2.2.
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In
addition to the limitations imposed upon Executive by the Restrictive
Covenants contained in Section 4, Executive shall not during the
Employment Period and while he is employed by the Employer, without prior
written consent from the Board:
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2.2.1.
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serve
as, be a consultant to or employee, officer, manager, agent, or director
of, any corporation, partnership or other entity other than Employer
(other than civic, charitable, or other public service organizations) if,
as determined at the reasonable discretion of the Board, such service,
employment, or position would have a material adverse effect upon the
ability of Executive to perform his duties hereunder and Executive is so
advised in writing and given a period of not less than ninety (90) days to
cease; or
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2.2.2.
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have
more than a ten percent (10%) ownership interest in any enterprise other
than Employer if such ownership interest would have a material adverse
effect upon the ability of Executive to perform his duties hereunder, and
the Executive is so advised in writing and given a period of not less than
ninety (90) days to divest the
interest.
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3. Compensation. Subject
to the terms and conditions of this Agreement, during the FYE March 31, 2009,
Executive shall be compensated by Employer for his services as
follows:
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3.1.
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Executive
shall receive, for each consecutive twelve (12) month period beginning on
the Effective Date and ending on each anniversary thereof, a rate of pay
equal to Three Hundred Thousand Dollars ($300,000.00) per year (“Base
Pay”). Such compensation shall be payable in
substantially equal monthly or more frequent installments and subject to
customary tax withholding.
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3.2.
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Executive
shall receive, a “sign on bonus” of One Hundred and Fifty Thousand Dollars
($150,000.00), payable upon the filing of Employer’s 10-K for the year
ending March 31, 2008 with the Securities and Exchange
Commission.
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3.3.
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Executive
shall receive, an “annual bonus” as set out in Attachment
1:
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3.4.
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Executive
shall receive, a “bonus for new contracts” as set out in Attachment
1:
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3.5.
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Executive
shall be entitled to participate in all executive benefit plans maintained
by Employer on substantially the same terms and conditions as other
executives of Employer including, but not limited to, all health plans,
insurance, retirement, deferred compensation and other plans and programs
generally available to such executives of
Employer.
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3.6.
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Executive
shall receive at least fifteen (20) days paid vacation per year, provided,
however, that such vacation shall be scheduled and taken in accordance
with Employer’s standard vacation policies applicable to Employer’s other
executives. Executive shall also be entitled to all other
holiday and leave pay generally available to Employer’s other
executives. Any vacation days not used in a twelve (12) month
period shall accrue and carry over to subsequent
years.
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3.7.
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Executive
shall receive at least fifteen (15) days paid sick leave per
year. Any sick leave not used in a twelve (12) month period
shall not accrue or carry over to subsequent
years.
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3.8.
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Employer
will provide other benefits as set out in Attachment
1.
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3.9.
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Executive
shall be reimbursed by Employer for all reasonable business, promotional,
travel and entertainment expenses incurred or paid by Executive during the
Employment Period in the performance of his services under this Employment
Agreement.
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4. Restrictive
Covenants. Executive acknowledges and agrees
that:
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4.1.
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The
agreements and covenants contained in this Section 4 are essential to
protect the business interests of Employer and Employer will not enter
into this Agreement but for such agreements and covenants. Accordingly,
Executive covenants and agrees to the
following:
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4.1.1.
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Confidential
Information. Except as may be required by the lawful order of a
court, regulatory body or similar agency of competent jurisdiction, and at
the sole cost and expense of the Employer, if any, unless disclosed with
the Employer’s permission, Executive agrees to keep secret and
confidential, during the Employment Period and while he is employed by
Employer, all confidential non-public information of Employer, and its
respective affiliates that was acquired by, or disclosed to, Executive
during the course of his employment by Employer or any of its affiliates,
including information relating to customers (including, without
limitation, credit history, repayment history, financial information and
financial statements), costs, operations, financial data and plans, and
employee information, whether past, current or planned, and not to
disclose the same, either directly or indirectly, to any other person,
firm or business entity, or to use it in any way; provided, however, that
the provisions of this Section 4.1.1 shall not apply to information
that: (A) was, is now, or becomes generally available to the
public (but not as a result of a breach of any duty of confidentiality by
which Executive is bound); (B) was disclosed to Executive by a third party
not subject to any duty of confidentiality to Employer prior to its
disclosure to Executive; (C) is disclosed by Executive in the ordinary
course of Employer’s business as a proper part of his employment in
connection with communications with customers, vendors and other proper
parties, provided that it is for a proper business purpose solely for the
benefit of Employer. During the Employment Period and while he
is employed by Employer, Executive further agrees that he shall not make
any statement or disclosure that is intended by Executive to be
detrimental to Employer or any of its
affiliates.
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4.1.2.
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Non-Competition.
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4.1.2.1.
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Executive
agrees that for the period commencing on the Effective Date and ending on
the date on which Executive’s employment with Employer is terminated for
any reason or no reason (the “Non-Competition
Period”), Executive shall not directly or indirectly, alone or as a
partner, officer, director, manager, employee, consultant, agent,
independent contractor, member or stockholder of any person or entity
(“Person”),
engage in any business activity in India or the United States that is
directly or indirectly in competition with the Business (as defined
herein) of Employer or which is known by Executive to be detrimental to
the Business or business plans of Employer or its affiliates; provided,
however, that the record or beneficial ownership by Executive or his
immediate family members of five percent (5%) or less of the outstanding
publicly traded capital stock of any company for investment purposes shall
not be deemed to be in violation of this Section 4.1.2.1 so long as
Executive is not an officer, director, manager, employee or consultant of
such Person. The “Business” of Employer shall mean
infrastructure building in India. Executive further agrees that
during the Non-Competition Period, he shall not in any capacity, either
separately or in association with others: (1) employ or solicit
for employment or endeavor in any way to entice away from employment with
Employer or its affiliates (a) any current employee of Employer or its
affiliates or (b) any Person who was employed by Employer or its
affiliates in any preceding 12-month period; (2) solicit, induce or
influence any supplier, customer, agent, consultant or other Person that
has a business relationship with Employer to discontinue, reduce or modify
such relationship with Employer; nor (3) solicit or enter into
negotiations with any of Employer’s identified potential acquisition
candidates.
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4.1.2.2.
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Executive
understands that the foregoing restrictions may limit his ability to
engage in a business similar to Employer’s Business for the duration of
the Non-Competition Period, but acknowledges that he will receive
sufficiently high remuneration and other benefits to justify such
restriction as an employee of Employer pursuant to this
Agreement.
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4.1.2.3.
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Notwithstanding
the generality of any other provision of this Agreement, during the
Non-Competition Period, it shall not be a violation of Section 2.2 or this
Section 4 for Executive to (i) be an owner, partner, officer, director,
manager, employee, consultant, agent, independent contractor, member or
stockholder of any person or entity that does not compete with the
Business of Employer or (ii) make unlimited investments with other family
members in any person or entity that does not compete with the Business of
Employer.
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4.1.3.
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Remedies. If
Executive breaches any of the provisions contained in Sections 4.1.1 or
4.1.2 (the “Restrictive
Covenants”), Employer shall have the following rights and remedies,
each of which shall be enforceable, and each of which is in addition to,
and not in lieu of, any other rights and remedies available to Employer at
law or in equity.
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4.1.3.1.
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Executive
shall account for and pay over to Employer all compensation, profits, and
other benefits which inure to Executive’s benefit which are derived or
received by Executive or any person or business entity controlled by
Executive, resulting from any action or transactions constituting a breach
of any of the Restrictive
Covenants.
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4.1.3.2.
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Notwithstanding
the provisions of Section 4.1.3.1 above, Executive acknowledges and agrees
that in the event of a violation or Executive’s threatened violation of
any of the Restrictive Covenants, Employer shall have no adequate remedy
at law and shall therefore be entitled to enforce each such provision by
temporary or permanent injunction or mandatory relief obtained in any
court of competent jurisdiction without the necessity of proving damages,
posting any bond or other security, and without prejudice to any other
rights and remedies that may be available at law or in
equity.
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4.1.4.
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Severability. If
any of the Restrictive Covenants, or any part thereof, are held to be
invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to
the invalid or unenforceable portions. Without limiting the generality of
the foregoing, if any of the Restrictive Covenants, or any part thereof,
are held to be unenforceable because of the duration of such provision or
the area covered thereby, the parties hereto agree that the court making
such determination shall have the power to reduce the duration and/or area
of such provision and, in its reduced form, such provision shall then be
enforceable.
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4.1.5.
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Proprietary
Rights. Executive acknowledges and agrees that all know-how,
documents, reports, plans, proposals, marketing and sales plans, client
lists, employee files, client files, and any materials made by Executive
or by Employer during the period of Executive’s employment are the
property of Employer and shall not be used by Executive in any way adverse
to Employer’s interests while he is so employed by
Employer.
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5. Termination and Compensation
Due Upon Termination. Executive’s right to compensation for
the period after the date Executive’s employment with Employer terminates shall
be determined in accordance with the following:
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5.1.
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Termination
Without Cause. In the event Employer terminates Executive’s
employment during the Employment Period without Cause, Employer shall pay
Executive compensation, incentive compensation and benefits as specified
in Section 3 through the earlier of eighteen (18) months or the balance of
the Employment Period, during which time Executive shall be entitled
to:
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5.1.1.
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receive
payment of his salary in accordance with the provisions of Section
3.1;
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5.1.2.
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continued
participation in the benefit plans of Employer as specified in Section 3.2
at Employer’s expense.
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5.2.
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Voluntary
Resignation. Executive may terminate his employment with
Employer for any reason (or no reason at all) at any time by giving
Employer ninety (90) days prior written notice of voluntary resignation;
provided, however, that Employer may decide that Executive’s voluntary
resignation be effective immediately upon notice of such resignation.
Employer shall have no obligation to make payments to Executive in
accordance with the provisions of Section 3 for periods after the date on
which Executive’s employment terminates due to Executive’s voluntary
resignation, including in the event Employer accelerates the effectiveness
of the resignation in accordance with this Section 5.2. The
non-competition clause as outlined in Section 4.1.2 shall apply for a
period of 6 months following the effective date of the voluntary
resignation.
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5.3.
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However,
for purposes of this Section 5, if Executive resigns within ninety (90)
days following the occurrence of one of the following events, Executive
shall be deemed to be Terminated without Cause in accordance with Section
5.1:
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5.3.1.
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Executive’s
duties are materially reduced from those described in Section
2;
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5.3.2.
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the
relocation of Executive’s office more than twenty five (25) miles from
Bethesda, Maryland without Executive’s
consent;
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5.3.3.
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a
material breach of any of the provisions of this Agreement by the
Employer.
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5.4.
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Termination
for Cause. Employer shall have no obligation to make payments
to Executive in accordance with the provisions of Section 3 or otherwise
for periods after Executive’s employment with Employer is terminated
because of Executive’s termination for Cause. For purposes of this Section
5.4, Executive shall be considered terminated for “Cause” if he is
discharged by Employer on account of the occurrence of one or more of the
following events:
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5.4.1.
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Executive
becomes habitually addicted to drugs or alcohol, as confirmed by the
written opinion of a medical
doctor;
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5.4.2.
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Executive
intentionally discloses confidential information in violation of Section
4.1.1 or engages in any action in violation of Section
4.1.2.
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5.4.3.
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Employer
is directed by regulatory or governmental authorities to terminate the
employment of Executive or Executive intentionally engages in activities
that cause actions to be taken by regulatory or governmental authorities
that have a material adverse effect on
Employer;
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5.4.4.
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Executive
is convicted of a felony crime (other than a felony resulting from a minor
traffic violation);
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5.4.5.
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Executive
flagrantly disregards his duties under this Agreement after (A) written
notice has been given to Executive by the Board that it views Executive to
be flagrantly disregarding his duties under this Agreement and (B)
Executive has been given a period of thirty (30) days after such notice to
cease such misconduct. However, no notice or cure period shall
be required hereunder if Executive’s disregard of his duties has
materially and adversely affected Employer or is
illegal;
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5.4.6.
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Executive
commits an act of fraud against Employer, violates a duty of loyalty to
Employer, or violates an obligation owed to Employer pursuant to Sections
2 or 4 hereof.
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5.5.
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In
the event Employer attempts to terminate Executive’s employment pursuant
to Section 5.3 and it is ultimately determined that the Employer lacked
Cause, the provisions of Section 5.1 shall apply and, in addition to any
other remedies that Executive may have, Executive shall be entitled to
receive the payments called for by Section 5.1 with interest on any past
due payments at the rate of ten percent (10%) per year from the date on
which the applicable payment would have been made, plus Executive’s costs
and expenses (including but not limited to reasonable attorneys’ fees)
incurred in connection with such dispute and interest thereon at the rate
of ten percent (10%) per year from the date incurred by the
Executive.
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5.6.
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Employer
shall have no obligation to make payments to Executive in accordance with
the provisions of Section 3 for periods after the date of Executive’s
employment with Employer terminates on account of disability, except
payments due and owing through the effective date of termination. For
purposes of this Section 5.6, determination of whether Executive is
disabled shall be determined in accordance with Employer’s long term
disability plan (if any) and applicable
law.
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5.7.
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Employer
shall have no obligation to make payments to Executive in accordance with
the provisions of Section 3 for periods after the date of Executive’s
death, except payments due and owing as of such
date.
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6. Indemnification. Executive
shall be defended, held harmless by and indemnified by Employer to the fullest
extent permitted by applicable law (including, but not limited to payment of all
legal fees and costs and by counsel reasonably satisfactory to him) against
claims asserted against him by third parties, arising out of, or related to, the
business of the Employer or Executive’s services for Employer or its affiliates,
where such services were within the scope of authority of Employee, or
specifically authorized in advance by Employer. However, Employer
shall have no obligation to defend, indemnify or hold Executive harmless from
any claims relying in whole or in part upon any intentionally tortious, grossly
negligent or fraudulent conduct by Executive. This duty of
indemnification shall survive the termination of this Agreement for a period of
two years and is intended to be in addition to and not in lieu of any
indemnification right of Executive that may be contained in the Bylaws or
Articles of Incorporation of Employer.
7. Assignment and
Successors. This Agreement is personal in its nature and
neither of the parties shall, without the written consent of the other, which
may be given or withheld in the absolute discretion of each, assign, delegate or
otherwise transfer this Agreement or any rights or obligations hereunder;
provided, however, that in the event of a merger, consolidation, transfer or
sale of all or substantially all of the assets or other reorganization of the
Employer with or to any other individual(s) or entity, this Agreement shall,
subject to the provisions hereof, be binding upon and inure to the benefit of
such successor and such successor shall discharge and perform all the promises,
covenants, duties and obligations of the Employer hereunder; provided, however,
Employer shall continue to remain obligated hereunder.
8. Governing
Law. THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND
WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS OR ANY OTHER PRINCIPLE
THAT COULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE
INSTITUTED IN THE STATE OR FEDERAL COURTS LOCATED IN THE STATE OF MARYLAND, TO
THE JURISDICTION OF WHICH EACH OF THE PARTIES HEREBY EXPRESSLY AND IRREVOCABLY
AGREES TO SUBMIT. THE PARTIES AGREE TO ENTER INTO MEDIATION PRIOR TO TRIAL IN
ANY SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
9. Entire
Agreement. This Agreement embodies the entire agreement of the
parties respecting the matters within its scope. This Agreement supersedes all
prior agreements of the parties on this subject matter . Any prior negotiations,
correspondence, agreements, proposals or understandings relating to the subject
matter shall be deemed to be merged into this Agreement and to the extent
inconsistent herewith, such negotiations, correspondence, agreements, proposals
or understandings shall be deemed to be of no force or effect. There are no
representations, warranties or agreements, whether express or implied, or oral
or written, with respect to the subject matter , except as set forth
herein.
10. Modifications. This
Agreement shall not be modified by any oral agreement, either express or
implied, and all modifications shall be in writing and signed by the parties
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11. Waiver. Failure
to insist upon strict compliance with any of the terms, covenants or conditions
shall not be deemed a waiver of such terms, covenant or condition, nor shall any
waiver or relinquishment of, or failure to insist upon strict compliance with,
any right or power at any one or more times be deemed a waiver or relinquishment
of such right or power at any other time or times. All waivers shall be in
writing and signed by Executive and Employer.
12. Number and
Gender. Where the context requires, the singular shall include
the plural, the plural shall include the singular, and any gender shall include
all other genders.
13. Headings. The
section and Section headings in this Agreement are for the purpose of
convenience only and shall not limit or otherwise affect any of its terms
..
14. Waiver of Jury
Trial. The parties acknowledge that they are hereby waiving
any right to trial by jury in any action, proceeding or counterclaim brought by
either of the parties against the other in connection with any matter whatsoever
arising out of or in any way connected with this Agreement or Executive’s
Employment.
15. Attorneys’
Fees. Executive and the Employer agree that in any dispute
resolution proceedings arising out of this Agreement, the prevailing party shall
be entitled to its or his reasonable attorneys’ fees and costs incurred by it or
him in connection with resolution of the dispute, in addition to any other
relief granted.
16. Severability. In
the event that it is determined that any portion of this Agreement is in
violation of any statute or public policy, then only the portions of this
Agreement which violate such statute or public policy shall be stricken, and all
portions of this Agreement which do not violate any statute or public policy
shall continue in full force and effect. Furthermore, any determination striking
any portion of this Agreement shall be done as narrowly as possible so as to
give as much effect as possible to the intentions of the parties under this
Agreement.
17. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
document .
18. Notices. All
notices and other communications provided for in the Agreement shall be in
writing and will be deemed duly given (a) when delivered by hand or electronic
mail, (b) two (2) days after being given to an express courier with a reliable
system for tracking delivery, (c) when sent by confirmed facsimile with a copy
sent by another means specified in this provision or (d) five (5) days after the
day of mailing, when mailed by registered or certified mail, return receipt
requested, postage prepaid, and addressed as set forth below. A party may from
time to time change its address or designee for notification purposes by giving
the other written notice of the new address or designee and the date upon which
it will become effective.. The addresses for such notices shall be:
18.1.
if to
Executive: 0000 Xxxxxxxx
Xxxxx
Xxxxxxxx,
Xx. 00000
Attention: Ram
Makunda
with a
copy to:
18.2.
If to
Employer: P. O. BOX 60642
Potomac, Md.
20859
Attention: Treasurer
with a
copy to: Seyfarth Xxxx LLP
000
Xxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx,
XX 00000-0000
Attention: Xxxxxxx
X. Xxxxxxxxx
19. Time of the
Essence. Time is expressly made of the essence with respect to
each and every provision of the Agreement.
20. Inurement. Except
as otherwise specified herein, no Person, other than the parties (and
Executive’s estate upon his death, including his personal representative,
administrator or heirs), shall have any rights under or interest in this
Agreement or its subject matter.
[SIGNATURE
PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have
executed this Employment Agreement as of the Effective Date.
By: /s/ Xxxx
Xxxxxxxx /s/ Ram
Xxxxxxx
Name:Xxxx
Xxxxxxxx Ram
Xxxxxxx
Title:
Treasurer
INDIA
GLOBALIZATION CAPITAL MAURITIUS
By:/s/ Xxxx
Xxxxxxxx
Name:Xxxx
Xxxxxxxx
Title:
Director
ATTACHMENT
1:
The terms
set out in Sections 3.3, 3.4, and 3.8 are subject to annual review and update by
the Board of IGC:
Section
3.3: For the Financial Year Ending March 31, 2009 (FYE
2009), based on net income as reported on IGC’s audited GAAP
financials (before one time charges including charges for employee
options, warrants and other items), Executive shall receive, an “annual bonus”
of seventy five percent (75%) of Executive’s Base Pay per year if Employer
achieves net income of Six Million Dollars ($6,000,000) for FYE 2009, one
hundred percent (100%) of Executive’s Base Pay per year if Employer achieves net
income revenue of Eight Million Dollars ($8,000,000) for the FYE March 31, 2009
and one hundred fifty percent (150%) of Executive’s Base Pay per year if
Employer achieves net income of Twelve Million Dollars ($12,000,000) for FYE
2009.
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The
annual bonus shall be pro rated to (a) between 75%-100% of Executive’s
Base Pay if for FYE 2009 the net income is between $6,000,000 and
$8,000,000 and (b) between 100%-150% if the net income for FYE 2009 is
between $8,000,000-$12,000,000.
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No
annual bonus shall be paid to Executive if for FYE 2009 the net income is
less than Six Million Dollars ($6,000,000). If net income for
FYE 2009 is in excess of $12,000,000, the Board, in its sole discretion,
may award Executive an annual bonus in excess of 150% of Executive’s Base
Pay for FYE 2009.
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Section
3.4: Executive shall receive, a “bonus for new contracts”
of One Hundred and Fifty Thousand Dollars ($150,000.00) if Employer or any of
its subsidiaries obtains a combined total of new Qualified Contracts or
Qualified Mining Contracts totaling One Hundred Twenty Million Dollars
($120,000,000.00), and an additional One Hundred and Fifty Thousand Dollars
($150,000.00) for obtaining new Qualified Contracts or Qualified Mining
Contracts totaling Two Hundred Forty Million Dollars
($240,000,000.00).
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Bonuses
payable pursuant to this section shall not be pro rated for total
Qualified Contracts and Qualified Mining Contracts of less than
$120,000,000 or $240,000,000, respectively. “Qualified
Contracts” means the total value of contracts measured by revenue due to
Employer or any of its subsidiaries over the entire period of the
contracts. “Qualified Mining Contracts” means the estimated
value of material sold by Employer or any of its subsidiaries under mining
contracts or mineral licenses in a single year or a maximum of five years
if contracts are for five or more years. The Board shall
make all determinations of the value of new Qualified Contracts and
Qualified Mining Contracts. For purposes of this Section 3.4
“subsidiaries” shall include any entity in which Employer directly or
indirectly owns 50% or more of the voting
securities.
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Section
3.8: The Employer shall provide the Executive with an
automobile, plus gas and maintenance expenses, to be used by Executive in
connection with the performance of his duties for Employer. Monthly
lease payments, for the Employer, for such automobile shall not exceed $890 per
month. The Employee shall reimburse the Employer $125 per month for
personal use of the automobile. The Employer shall provide the
Executive with life insurance, D&O insurance, and health
insurance.
