November 12, 2008
Exhibit 10.1
November
12, 2008
Mr. Harshawardan
Shetty
000
00xx
Xxxx, Xxxxx 0
Xxxx
Xxxxxx Xxxx, XX 00000
Dear
Xxxxxxxxxxxxx:
This
letter is written on behalf of Firefish, Inc., a Nevada corporation (the
“Company”), beginning November 12, 2008 (the “Start Date”). Once countersigned
by you, this letter shall constitute a binding agreement (the “Agreement”)
between you (the “Executive”) and the Company, effective as of the date of this
letter set forth above (the “Effective Date”).
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1.
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Employment. The Company
hereby employs Executive on the terms and conditions set forth in this
Agreement and Executive hereby accepts such employment. Executive shall
serve as President, Chief Executive Officer, Principal Accounting and
Financial Officer and Treasurer, and initially report to and be
accountable to the Company’s board of directors. Executive shall perform
such duties and have such responsibilities as are normally commensurate
with Executive’s position, including such other duties as are reasonably
assigned to Executive from time to time.
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2.
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Salary. Executive’s
salary shall be Five Thousand Dollars ($5,000) monthly, which equates to
Sixty Thousand Dollars ($60,000) on an annualized basis (the “Base
Salary”), subject to standard payroll deductions, as applicable, when such
payroll policies shall be adopted by the Company. The Base Salary shall be
paid on the Company’s regular payroll dates in accordance with the
Company’s normal payroll practices. Executive’s Base Salary shall be
reviewed annually, and the Board of Directors shall determine, in their
sole and absolute discretion, whether to grant Executive any salary
increase based on the performance of Executive and the Company, subject to
any contractual restrictions on such compensation. The
Executive’s Salary shall only accrue and be payable when the Company has
at least $10,000 in cash or cash equivalents and indebtedness of less than
$10,000 in the aggregate, including outstanding accounts payable (“Funding
Threshold”). Failure of the Company to make any salary payment hereunder
due to the failure to meet the Funding Threshold shall in no way alter the
terms of Executive’s responsibilities hereunder.
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3.
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Performance Bonus. For
the year beginning September 1, 2009 and ending August 31, 2010, and for
each year thereafter during Executive’s tenure at the Company, and subject
to the sole and absolute discretion of the Board of Directors of the
Company, Executive’s annual bonus shall be determined under the same
incentive compensation plans applicable to all senior executives, and
Executive may receive an annual end of year bonus (the “Performance
Bonus”) equal to forty percent (40%) of Executive’s Base
Salary.
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4.
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Stock Options. Subject
to approval by the Company’s Board of Directors, the Company shall enter
into a Stock Option Agreement with Executive pursuant to which the Company
is granting to Executive Stock Options in any Stock Option Plan the
Company shall adopt, subject to vesting of no less than a two year term
and consisting of an aggregate of no more than 250,000 shares of common
stock, subject to adjustments for stock splits, dividends and
recapitalizations. The Stock Option Agreement shall
provide further that, in the event of a “Change in Control” of the
Company, as defined therein, Executive shall not be entitled to
accelerated vesting of the options that have not yet vested as of the date
of such event.
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5.
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Employment
at Will; Termination.
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5.1
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Employment at Will.
Executive’s employment with the Company will be on an “at-will”
basis, meaning that Executive’s employment is not for a specified period
of time and can be terminated by Executive or the Company at any time,
with or without cause, and with or without notice.
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5.2
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Termination by Company for
Cause. The Company may terminate this Agreement at any time,
effective immediately, for Cause, which shall be defined as: (i) a
Willful and continued material failure to perform Executive’s duties under
this Agreement in a satisfactory manner where Willful means, when applied
to any action or omission made by Executive, that Executive did so without
a good faith belief that such action or omission was in, or was not
contrary to, the best interests of the Company; (ii) acts of dishonesty,
fraud, embezzlement, misrepresentation, and misappropriation involving the
Company or any of its affiliates; (iii) unprofessional conduct which
may adversely affect the reputation of the Company and/or its relationship
with its customers, employees or suppliers ; (iv) a conviction of, or
entry of a guilty plea or no contest to, any crime involving moral
turpitude or dishonesty; (v) the failure of the Company to achieve a
listing on the OTC Bulletin Board, Nasdaq Small Cap or National Market
Exchange, NYSE or AMEX with a 30 day trailing average bid price of $0.50
or more and 30 day average daily volume of at least 10,000 shares by June
30, 2010 (collectively “Cause”). In the event of termination of this
Agreement for Cause, Executive shall immediately be paid any
amounts due to him under this Agreement. All stock options covered by the
Option shall expire at the date of termination for any of the
above-enumerated reasons to terminate for cause.
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5.3
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Termination by Company Without
Cause. The Company may terminate this Agreement at any time,
effective immediately, without Cause. In the event that the Company
terminates this Agreement without Cause, Executive shall be paid
immediately (except as noted) all accrued Base Salary and any
reasonable and necessary business expenses incurred by Executive in
connection with Executive’s duties hereunder, all to the date of
termination.
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5.4
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Effect of Termination;
Stock Repurchase
Right. The
Executive is the owner of 6,666,666 common shares of the Company’s stock
(“Executive’s Shares”). The Executive hereby grants the Company
an option to repurchase these shares for the same price Executive paid to
acquire those shares for a period of two years from the date of this
Agreement, provided however, that this repurchase right may only be
exercised in the event that the Executive’s employment with the Company
terminates for any reason other than a termination without Cause by the
Company. Executive may not sell, pledge or
hypothecate the Executive’s Shares during this period.
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6.
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Miscellaneous.
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6.1 Entire Agreement. The terms
described in this Agreement set forth the entire understanding between Executive
and the Company, and supercede any prior representations or agreements, whether
written or oral, with respect to the subject matter hereof. No
term or provision of this Agreement or attached exhibits may be amended waived,
released, discharged or modified except in writing, signed by Executive and an
authorized officer of the Company, except as otherwise specifically provided
herein. Furthermore, this Agreement is authorized by a representative
of Genesis Venture Fund India I, LP, a Delaware limited partnership (“Genesis”)
pursuant to the Company’s written obligations to Genesis and any changes to this
Agreement must have the written permission of Genesis.
6.2 Governing Law. This Agreement
shall be governed by and construed in accordance with the laws of the
Commonwealth of Nevada, without reference to conflict of law
principles.
6.3 Successors. The Agreement
shall be binding upon and shall inure to the benefit of the Company and its
successors and assigns. In that the Agreement constitutes a non-delegable
personal services agreement, it may not be assigned by Executive and any
attempted assignment by Executive in violation of this covenant shall be null
and void.
6.4 Severability. In the event
that any one ore more of the provisions of this Agreement shall be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not be
affected thereby, and all such remaining provisions shall remain in full force
and effect.
6.5 Waiver. The failure of either
party to insist on strict compliance with any of the terms of this Agreement
will not be deemed to be a waiver of any terms of this Agreement or of the
party’s right to require strict compliance with the terms of the Agreement in
any other instance.
6.6 Notices. All notices, demands,
or requests provided for or permitted to be given pursuant to this Agreement
must be given in writing, unless otherwise specified, and shall be deemed to
have been properly given, delivered, or served by depositing the same in the
United States mail, postage prepaid, certified or registered mail, with
deliveries to be made to the following addresses:
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If
to Harshawardan Shetty:
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Xxxxxxxxxxxxx
Xxxxxx
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000
00xx
Xxxx, Xxxxx 0
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Xxxx
Xxxxxx Xxxx, XX 00000
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If
to Company:
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Attn:
Board of Directors
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000
00xx
Xxxx, Xxxxx 0
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Xxxx
Xxxxxx Xxxx, XX 00000
With
a copy to:
Genesis
Venture Fund India, I LP
Attention:
Xxxxx Xxxxx
00000
Xxxx Xxxxx Xx
Xxxxx
000
Xxx
Xxxxx, XX 00000
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Either
party may change such party’s address for notices as necessary by notice given
pursuant to this Section.
6.7 Captions. Section headings
used in the Agreement are for convenience of reference only and shall not be
considered a part of the Agreement.
6.8 Amendments and Further Assurances.
This Agreement may be amended or modified from time to time, but only by
written instrument executed by all the parties hereto. No variations,
modifications, or changes herein or hereof shall be binding upon any party
except as set forth in such a written instrument. The parties will execute such
further instruments and take such further action as may be reasonably necessary
to carry out the intent of the Agreement.
6.9 Counterparts. The Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, and all of which together shall constitute one
instrument.
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7.
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Representations by Executive:
Executive represents and warrants
that:
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(a)
Executive is free to enter into and perform each of the terms and conditions of
this Agreement. Executive is not subject to any agreement, judgment, order or
restriction that would be violated by Executive being employed by Company or
that in any way restricts the services that may be rendered by Executive for
Company. Executive’s execution of this Agreement and performance of Executive’s
obligations under this Agreement does not and will not violate or breach any
other agreement between Executive and any other person or entity.
(b)
Executive has carefully considered the nature and extent of the restrictions and
covenants in this Agreement and Executive agrees that they will not prevent
Executive from earning a livelihood after employment with Company and that they
are fair, reasonable and necessary to protect and maintain the proprietary
interests, goodwill and other legitimate business interests of Company in view
of the following facts: (i) Executive will hold a position of confidence
and trust with Company as a result of Executive’s employment with Company,
access to confidential financial and other information, and relationship with
the customers, suppliers and other employees of Company, (ii) it would be
impossible for Executive to be employed or engaged in a directly competitive
business to that of the
Company
without inevitably using Company’s proprietary information, and (iii) Executive
has broad skills that will permit gainful employment in many areas and
businesses outside the scope of Company’s business.
(c)
Executive acknowledges that but for the above representations and warranties of
Executive, Company would not employ Executive or enter into this
Agreement.
Agreed
and accepted as of the date first written above,
Executive
X__________________________________
Xxxxxxxxxxxxx Xxxxxx
A Nevada
corporation
X__________________________________
Xxxxxxxxxxxxx Xxxxxx
President and CEO
With the
permission of:
Genesis
Venture Fund India I, LP
A
Delaware Limited Partnership
X__________________________________
Xxxxxxxx Xxxxxxxxxx
On Behalf of the General
Partner
