EMPLOYMENT AGREEMENT
Exhibit 99.5
This Employment Agreement (the “Agreement”) entered into this 31st day of
December 2006 (the “Effective Date”), is by and between, Continuum Systems Private Limited, a
company incorporated under the Companies Xxx, 0000, and having its registered office at
0xx Xxxxx, Xxxxxx Xxxxx, 000-X Xxxx Xxxxx, Xxx Xxxxx — 110065 with its principal place
of business at DLF Supermart 1, Gurgaon, Haryana, (hereinafter referred to as the “Continuum”,
which expression shall, unless repugnant to the context, include its successors and permitted
assigns) and Xxxxxx Xxxxxx, son of C. R Xxxxxx, age 33, residing at 000, Xxxxxx 0, XXXX, Xxxxxx,
Xxxxxxx, Xxxxx, 000000 (“the Employee”).
Recitals:
Whereas, Continuum desires to engage the services of the Employee as its Director of
IT Solutions and the Employee is willing to render such services to Continuum in consideration of
the terms and conditions agreed to by the parties; and
Whereas, the Board of Directors of Continuum (the “Board”) has approved the
employment of the Employee on the terms and conditions set forth in this Agreement;
Now therefore, in consideration of the mutual covenants and promises contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, Continuum agrees to employ the Employee, and the Employee
agrees to perform services for Continuum as an employee, upon the terms and conditions set forth
herein.
1. Term.
The initial term of this Agreement shall begin on the Effective Date and be for a period of
two (2) years (the “Employment Term”), unless it is terminated earlier as provided herein.
Beginning on the last date of the Employment Term and on each anniversary thereafter, unless it is
terminated earlier as provided herein or Continuum delivers written notice to the Employee of its
intention not to extend the Agreement at least ninety (90) days before such anniversary date, the
term of this Agreement shall automatically be extended for one additional year. The restrictive
covenants in Section 9 hereof shall survive the termination of this Agreement.
2. Title and Duties.
The Employee shall be employed as Director of IT Solutions of Continuum. The Employee shall
perform such services consistent with his position as might be assigned to him from time to time
and are consistent with the bylaws of Continuum. The Board has caused the appointment of the
Employee to serve as the Director of IT Solutions of Continuum and Employee shall have such
responsibilities and authority as is commensurate with such office and as may be prescribed by the
Board and bylaws of Continuum. The Board shall have the right to review and change the
responsibilities of Employee from time to time as it may deem necessary or appropriate, provided,
however, that such responsibilities shall not be inconsistent with the Employee’s position as
Director of IT Solutions.
3. Location.
The Employee’s place of employment shall be the offices of Continuum in Gurgaon, Haryana,
India, or at such other location as mutually agreed between Employee and the Board.
4. Extent of Services.
a. Duty to Perform Services.
The Employee agrees not to engage in any business activities, whether for any profit, gain, or
other pecuniary advantage, during the term of this Agreement except those that are for the benefit
of Continuum and its group companies, and to devote 100% of his entire business time, attention,
skill, and effort to the performance of his duties under this Agreement for Continuum and any
corporation controlled by Continuum now or during the
term of this Agreement. Notwithstanding the foregoing, the Employee may engage in charitable,
professional and civic activities at his own expense, that do not impair the performance of his
duties to Continuum, as the same may be changed from time to time. While employed by Continuum,
Employee may not serve on the board of directors of any other company except Continuum and its
group companies. Nothing contained herein shall prevent the Employee from managing his own
personal investments and affairs, including, but not limited to, investing his assets in the
securities of publicly traded companies; provided, however, that the Employee’s activities do not
constitute a conflict of interest, violate securities laws of India, or otherwise interfere with
the performance of his duties and responsibilities as described herein. The Employee agrees to
adhere to Continuum’s published policies and procedures, as adopted from time to time, affecting
directors, officers, employees, and agents and shall use his best efforts to promote Continuum’s
interest, reputation, business and welfare within and outside the country.
b. Corporate Opportunities.
The Employee agrees that he will not take personal advantage of any Continuum business
opportunities that arise during his employment with Continuum and that might be of benefit to
Continuum. All material facts regarding such opportunities must be promptly reported to the Board
of Continuum for consideration.
5. Compensation and Benefits.
a. Base Salary.
The Employee’s annual base salary shall be Rs.549,600. The base salary shall be payable in
equal installments in accordance with Continuum’s standard payroll practices. The Employee’s
annual base salary shall be further reviewed no less frequently than annually for increases in the
discretion of the Continuum Compensation Committee and/or Board, taking into account the
compensation level for employees with similar skills and responsibilities at companies comparable
to Continuum, the financial condition of Continuum, and the Employee’s value to Continuum relative
to other members of the executive management of Continuum; provided, however, that at no time
during the term of this Agreement shall the Employee’s base salary be decreased from the base
salary then in effect except as part of a general program of salary adjustment by Continuum
applicable to all vice presidents and above.
b. Signing Bonuses.
(i) Options. Upon execution of this Agreement by the parties hereto, Continuum shall
cause Caneum, Inc. (“Caneum”) to grant to Employee ten-year options to purchase 100,000 shares of
common stock of Caneum pursuant to Caneum’s 2002 Stock Option/Stock Issuance Plan (the “Plan”), a
copy of which is attached hereto and incorporated herein, subject to vesting at the rate of 1/4 of
the granted options after one year and 1/48th of the granted options per month thereafter.
(ii) Stock. Upon execution of this Agreement by the parties hereto, Continuum shall
cause Caneum to issue to Employee 25,735 shares of common stock of Caneum as a sign on bonus, of
which 4,963 are hereby authorized and directed by Employee to be issued and delivered to Saffron
Capital Merchant Partners LLC (the “Finder”) to satisfy Employee’s obligation under the letter
agreement dated January 16, 2006, with the Finder (the “Finder’s Agreement”); provided that prior
to delivery of such shares by Caneum, Employee and Finder shall execute and deliver a standard
investor representation form evidencing compliance with U.S. securities laws.
c. Contingent Incentive Payments.
Continuum shall cause Caneum to grant to the Employee an incentive bonus of 66,177 shares of
common stock of Caneum on the first anniversary of the Effective Date of this Agreement (the “First
Contingent Incentive Payment”), of which 3,308 shares are hereby authorized and directed by
Employee to be issued and delivered to Finder, and 55,147 shares of common stock of Caneum on the
second anniversary of the Effective Date of this Agreement (the “Second Contingent Incentive
Payment”), of which 2,757 shares are hereby authorized and directed by Employee to be issued and
delivered to Finder, which incentive bonuses shall be subject to the following terms and
conditions:
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(i) Delivery of Incentive Payments. The First Contingent Incentive Payment shall be
delivered immediately upon calculation of any adjustment pursuant to §5(c)(ii) or (iii) below, but
in no event later than thirty days following the first anniversary of the Effective Date. The
Second Contingent Incentive Payment shall be delivered immediately upon calculation of any
adjustment pursuant to §5(c)(ii) or (iii) below, but in no event later than thirty days following
the second anniversary of the Effective Date. All issuances of the shares of common stock pursuant
to this section shall be made in compliance with applicable exemptions from the registration
requirements under U.S. Securities Laws and qualification of the issuances under applicable foreign
Securities Laws.
(ii) Adjustment to Incentive Payments Based upon Continuum Revenues. If Continuum
fails to generate gross revenue for the twelve-month period ending December 31, 2007 (the “First
Year Period”) or for the twelve-month period ending December 31, 2008 (the “Second Year Period”)
equal to or greater than the gross revenue generated by Continuum during the twelve-month period
ended December 31, 2006 (the “Base Period”), the number of shares of common stock of Caneum to be
delivered to the Employee for the First and Second Contingent Incentive Payments shall be
proportionately reduced, whereby the number of shares to be issued to the Employee for the First or
Second Contingent Incentive Payment shall be multiplied by a factor, the numerator of which is the
gross revenue for the First Year Period or the Second Year Period, as applicable, and the
denominator of which is the gross revenue for the Base Period. The amount of “gross revenue” for
purposes of this calculation shall include revenue generated from all existing and past Continuum
customers as set forth in Annex A, attached hereto and incorporated herein (the “Customer List”),
whether such revenue was received by Continuum (or the Singapore entity or entities organized to
receive revenue generated by Continuum) and any Caneum customer projects completed by Continuum
after December 31, 2006. On or before the close of each calendar quarter after the Effective Date
through the date of the Second Contingent Incentive Payment, the Employee shall cause Continuum to
submit to Caneum a list of any new customers developed by Continuum to be added to the Customer
List, which addition shall be effective on the first day of the calendar quarter following such
submission. The applicable twelve-month gross revenue amount for any period relevant hereto shall
be determined using U.S. Generally Accepted Accounting Principles and shall be delivered to Caneum
within thirty days following the end of the Base Period, the First Year Period, and the Second Year
Period, respectively. If following the audit of the financial statements of Continuum (or the
Singapore entity or entities), any of Continuum, the Employee, or Caneum reasonably determines that
these unaudited amounts are incorrect, the calculations made pursuant to this paragraph shall be
adjusted to reflect the applicable audited amount. If the adjusted audited amounts result in a
fewer number of shares to be delivered to the Employee, Employee shall immediately return to Caneum
the number of shares to reflect the revised number. If the adjusted audited amounts result in a
greater number of shares to be delivered to the Employee, Caneum shall immediately instruct its
transfer agent to issue additional shares to reflect the revised number. If there is a downward
adjustment of the Employee’s Incentive Payments, the Finder’s stock entitlements shall be
proportionately reduced.
(iii) Adjustment to Incentive Payments upon Termination of Engagement. If this
Agreement is terminated by Caneum for Cause, as defined herein, before the date of the First or
Second Contingent Incentive Payment, any unpaid Incentive Payment or Payments shall be forfeited by
the Employee and neither Continuum nor Caneum shall have any obligation to issue or deliver to
Employee any of shares of Caneum common stock for any Contingent Incentive Payment payable
subsequent to such termination.
(iv) Change of Control Transaction. In the event that Caneum or Continuum is subject
to a Change of Control, as defined below, after the date of this Agreement and prior to the date of
the First or Second Contingent Incentive Payment, and the surviving entity does not assume this
Agreements, then, subject to any adjustments made pursuant to this §5(c), any unpaid Incentive
Payment shall be paid to the Employee three days prior to the applicable Change of Control. For
purposes of this provision, “Change of Control” shall mean: (a) a sale or other disposition of all
or any significant portion of the assets of Caneum or Continuum (other than any such sale or other
disposition to Caneum or an Affiliate of Caneum); (b) a merger or consolidation in which Caneum is
not the surviving entity and in which the shareholders of Caneum immediately prior to such
consolidation or merger own less than fifty percent (50%) of the surviving entity’s voting power
immediately after the transaction; (c) a reverse merger in which Caneum is the surviving entity but
the shares of Caneum’s capital stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities, cash or otherwise, and
in which the stockholders of Caneum immediately prior to such reverse merger own less than fifty
percent (50%) of Caneum’s voting power immediately after the transaction; (d) an acquisition by any
person,
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entity or group (excluding any entity controlled by Caneum) of securities of Caneum representing at
least fifty percent (50%) of the voting power entitled to vote in the election of directors of
Caneum; (e) any transaction pursuant to which Continuum’s capital stock ceases to be majority
owned, directly or indirectly, by Caneum (other than any such transaction in which Continuum is
merged with and into Caneum or an Affiliate of Caneum); and (f) any liquidation, dissolution or
winding up of Caneum or Continuum (other than any such liquidation, dissolution or winding up of
Continuum in connection with Continuum’s merger with and into Caneum or an Affiliate of Caneum).
(v) Arbitration of Disputes Relating to the Incentive Payments. Any controversy,
dispute or claim arising out of or relating to this §5(c) or breach thereof shall first be settled
through good faith negotiation. If the dispute cannot be settled through negotiation, the parties
agree to attempt in good faith to settle the dispute by mediation administered by JAMS. If the
parties are unsuccessful at resolving the dispute through mediation, the parties agree to binding
arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures. Any
such arbitration shall be held in Orange County, California. The arbitrator shall determine how
all expenses relating to the arbitration shall be paid, including the respective expenses of each
party, the fees of the arbitrator and the administrative fee of JAMS. The arbitrator shall set a
limited time period and establish procedures designed to reduce the cost and time for discovery
while allowing Buyer and the Seller an opportunity, adequate in the sole judgment of the arbitrator
to discover relevant information from the opposing Parties about the subject matter of the dispute.
The arbitrator shall rule upon motions to compel or limit discovery and shall have the authority
to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court
of law or equity, should the arbitrator determine that discovery was sought without substantial
justification or that discovery was refused or objected to without substantial justification. The
decision of the arbitrator as to the validity and amount of any indemnification claim or as to any
other matter under this §5(c) shall be final, binding and conclusive upon the parties. All such
decisions shall be written and shall be supported by written findings of fact and conclusions which
shall set forth the award, judgment, decree or order awarded by the arbitrator. All payments
required by the arbitrator shall be made within thirty days after the decision of the arbitrator is
rendered. Judgment upon any award rendered by the arbitrator may be entered in any court having
jurisdiction. Caneum shall pay the reasonable travel costs and legal fees for the Contractor to
attend the arbitration hearing or hearings pursuant to this §5(c) in the event that Caneum or
Caneum shall refuse to issue or deliver the shares of common stock pursuant to this §5(c).
d. Other Benefits.
During the Employment Term, Employee will be entitled to participate in the employee benefit
plans currently and hereafter maintained by Continuum of general applicability to other senior
executives of Continuum, including, without limitation, Continuum’s group medical, dental, vision,
disability, life insurance, and flexible-spending account, in accordance with Continuum’s policy.
In addition the Employee shall be entitled to all other statutory benefits applicable to Continuum.
e. Vacation.
Employee will be entitled to paid vacation of twenty days per year in accordance with
Continuum’s vacation policy, with the timing and duration of specific vacations mutually and
reasonably agreed to by the parties hereto.
f. Reimbursement of Business Expenses.
Continuum shall promptly reimburse the Employee for all reasonable travel, entertainment and
other expenses incurred or paid by the Employee in connection with, or related to, the performance
of his duties, responsibilities or services under this Agreement, upon presentation by the Employee
of such supporting information and documentation as Continuum may reasonably request in accordance
with company policy and the requirements of the Income Tax Act, 1961.
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6. Termination of Employment.
a. Termination Due to Death.
The Employee’s employment and this Agreement shall terminate immediately upon his death. If
the Employee’s employment is terminated due to his death, his estate or his beneficiaries, as the
case may be, shall be entitled to:
(i) payment of any unpaid portion of his base salary through the date of such
termination
(ii) reimbursement for any outstanding reasonable business expenses he incurred
in performing his duties hereunder;
(iii) a pro rata number of the total shares issuable pursuant to §5(c) above
based upon the percentage of the Employment Term served prior to the date of such
termination (for example, if Employee serves 120 days of the Employment Term,
Employee would receive 120/730ths, or approximately 16%, of the total shares
issuable under §5(c), or if Employee serves 420 days of the Employment Term,
Employee would receive all of the shares issuable in the First Contingent Incentive
Payment and 55/365ths, or approximately 15%, of the shares issuable in the Second
Contingent Incentive Payment);
(iv) exercise the options pursuant to clause §5(b)(i) hereof within 12 months
thereafter;
(v) any pension survivor benefits that may become due pursuant to any employee
benefit plan or program of Continuum; and
(vi) payment of any accrued but unpaid benefits, and any other rights, as
required by the terms of any employee benefit plan or program of Continuum, this
Agreement, or any other agreement between Continuum and the Employee.
b. Termination Due to Disability.
Continuum may terminate the Employee’s employment at any time if the Employee becomes
disabled, upon written notice by Continuum to the Employee. For all purposes under this Agreement,
“Disability” shall mean that the Employee, at the time the notice is given, has been unable to
perform his duties under this Agreement for a period of not less than ninety (90) days during any
180-day period as a result of the Employee’s incapacity due to physical or mental illness. If the
Employee’s employment is terminated due to his disability, he shall be entitled to:
(i) payment of any unpaid portion of his base salary through the date of such
termination;
(ii) reimbursement for any outstanding reasonable business expenses he has
incurred in performing his duties hereunder;
(iii) a pro rata number of the total shares issuable pursuant to §5(c) above
based upon the percentage of the Employment Term served prior to the date of such
termination; and
(iv) payment of any accrued but unpaid benefits, and any other rights, as
required by the terms of any employee benefit plan or program of Continuum, this
Agreement, or any other agreement between Continuum and the Employee.
c. Termination for Cause.
Continuum may terminate the Employee’s employment at any time for Cause, provided that it
gives written notice of termination to the Employee as set forth below. If the Employee’s
employment is terminated for Cause, as defined below, he shall be entitled to:
(i) payment of any unpaid portion of his base salary through the date of such
termination;
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(ii) reimbursement for any outstanding reasonable business expenses he incurred
in performing his duties hereunder; and
(iii) payment of any accrued but unpaid benefits, and any other rights, as
required by the terms of any employee benefit plan or program of Continuum, this
Agreement, or any other agreement between Continuum and the Employee.
For purposes of this Agreement, a termination for “Cause” shall mean: (i) the final conviction of
Employee of, or Employee’s plea of guilty or nolo contendere, to any felony involving moral
turpitude, (ii) the final conviction of the Employee of, or the entry of a plea of guilty or nolo
contendere by the Employee to any fraud, misappropriation, misfeasance, negligence or embezzlement
by Employee in connection with Employee’s duties to Caneum or Continuum, or (iii) Employee’s
willful failure or misconduct in the performance of his duties to Continuum.
If Continuum exercises its right to terminate the Employee for Cause, Continuum shall: (1)
give the Employee written notice of termination at least thirty (30) days before the date of such
termination specifying in detail the conduct constituting such Cause, and (2) deliver to the
Employee a copy of a resolution duly adopted by a majority of the entire membership of the Board,
excluding interested directors, after reasonable notice to the Employee and an opportunity for the
Employee to be heard in person by members of the Board, finding that the Employee has engaged in
such conduct.
d. Voluntary Termination.
If the Employee voluntarily terminates his employment on his own initiative for reasons other
than his death, disability, or constructive termination without Cause, he shall be entitled to:
(i) payment of any unpaid portion of his base salary up to the effective date
of such termination;
(ii) reimbursement for any outstanding reasonable business expenses he has
incurred in performing his duties hereunder;
(iii) a pro rata number of the total shares issuable pursuant to §5(c) above
based upon the percentage of the Employment Term served prior to the date of such
termination; and
(iv) payment of any accrued but unpaid benefits, and any other rights, as
required by the terms of any employee benefit plan or program of Continuum or
Caneum, this Agreement, or any other agreement between Continuum or Caneum and the
Employee.
A voluntary termination under this paragraph shall be effective upon fifteen (15) days’ prior
written notice to Continuum unless the parties mutually agree to extend the effective date.
7. Mitigation and Offset.
If the Employee’s employment is terminated during the term of this Agreement pursuant to the
provisions of paragraph 6(d), above, the Employee shall be under no duty or obligation to seek or
accept other employment, and no payment or benefits of any kind due him under this Agreement shall
be reduced, suspended or in any way offset by any subsequent employment. The obligation of
Continuum to make the payments provided for in this Agreement shall not be affected by any
circumstance including, by way of example rather than limitation, any set-off, counterclaim,
recoupment, defense, or other right that Continuum may assert, or due to any other employment or
source of income obtained by the Employee.
8. Entitlement to Other Benefits.
Except as expressly provided herein, this Agreement shall not be construed as limiting in any
way any rights or benefits the Employee, his spouse, dependents or beneficiaries may have pursuant
to any other employee benefits plans or programs.
9. Confidentiality.
a. Definition. “Confidential Information” means any non-public information that relates to
the actual or anticipated business or research and development of Continuum, technical data, trade
secrets or know-how, including, but not limited to, research, product plans or other information
regarding Continuum’s products or
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services and markets therefor, customer lists and customers with whom Employee became
acquainted directly as a result of providing Services during the term of this Agreement), software,
developments, inventions, processes, formulas, technology, designs, drawing, engineering, hardware
configuration information, marketing, finances or other business information. Confidential
Information does not include information that (i) is known to Employee at the time of disclosure to
Employee by Continuum as evidenced by written records of Employee, (ii) has become publicly known
and made generally available through no wrongful act of Employee or (iii) has been rightfully
received by Employee from a third party who is authorized to make such disclosure.
b. Nonuse and Nondisclosure. Employee will not, during or subsequent to the term of this
Agreement, (i) use the Confidential Information for any purpose whatsoever other than the
performance of the Services on behalf of Continuum or (ii) disclose the Confidential Information to
any third party without the consent of Continuum. Employee agrees that all Confidential
Information will remain the sole property of Continuum. Employee also agrees to take reasonable
precautions to prevent unauthorized disclosure of
c. Former Client Confidential Information. Employee agrees that he will not, during the term
of this Agreement, improperly use or disclose to Continuum any proprietary information or trade
secrets of any former or current employer of Employee or other person or entity with which Employee
has an agreement or duty to keep in confidence information acquired by Employee, if any. Employee
also agrees that Employee will not bring onto Continuum’s premises any unpublished document or
proprietary information belonging to any such employer, person or entity unless consented to in
writing by such employer, person or entity.
d. Third Party Confidential Information. Employee recognizes that Continuum has received and
in the future will receive from third parties their confidential or proprietary information subject
to a duty on Continuum’s part to maintain the confidentiality of such information and to use it
only for certain limited purposes. Employee agrees that, during the term of this Agreement and
thereafter, Employee owes Continuum and such third parties a duty to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out the Services for Continuum consistent
with Continuum’s agreement with such third party.
e. Return of Materials. Upon the termination of this Agreement, or upon Continuum’s earlier
request, Employee will deliver to Continuum all of Continuum’s property, including but not limited
to all electronically stored information and passwords to access such property, or Confidential
Information that Employee may have in Employee’s possession or control; provided, however, that
Employee may retain a copy of such materials for archival purposes.
10. Arbitration.
Except as provided in §5(c)(v) above, any controversy, dispute or claim arising out of or
relating to this Agreement or breach thereof shall first be settled through good faith negotiation.
If the dispute cannot be settled through negotiation, the parties may refer the dispute to
arbitration of a sole arbitrator in accordance with the provisions of the Arbitration and
Conciliation Act, 1996. The arbitration proceedings shall be held at New Delhi, India and shall be
conducted in the English language. Each party shall bear its own cost for the arbitration
proceedings.
11. Legal Expenses.
Except as provided in Section 10 hereof, if any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Agreement, the successful or
prevailing party or parties will be entitled to recover reasonable attorneys’ fees and other costs
incurred in that action or proceeding, in addition to any other relief to which it or they may be
entitled.
12. Indemnification.
Continuum agrees that if the Employee is made a party, or is threatened to be made a party, to
any action, suit or proceeding, whether civil, criminal, administrative, or investigative (a
“Proceeding”), by reason of the fact that he is or was a director, officer or employee of
Continuum, or is, or was, serving at the request of Continuum as a
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director, officer, member, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether or not the basis of such Proceeding is the Employee’s alleged
action in an official capacity while serving as a director, officer, member, employee or agent, the
Employee shall be indemnified and held harmless by Continuum to the extent permitted by applicable
law in India or authorized by Continuum’s articles of incorporation and bylaws. To the extent
consistent with the foregoing, this obligation to indemnify the Employee and hold him harmless
shall continue even if he has ceased to be a director, officer, member, employee or agent of
Continuum or other such entity described above, and shall inure to the benefit of the Employee’s
heirs, executors and administrators. To the extend permitted by applicable Indian law, or the
articles of incorporation or bylaws, Continuum shall advance to the Employee all reasonable costs
and expenses incurred by him in connection with a proceeding within twenty (20) days after receipt
by Continuum of a written request for such advance. Such request shall include an undertaking by
the Employee to repay the amount of such advance if it shall ultimately be determined that the
Employee is not entitled to be indemnified against such costs and expenses.
Neither the failure of Continuum (including its Board, independent legal counsel or
stockholders) to have made a determination before such proceeding concerning payment of amounts
claimed by the Employee under the paragraph above that indemnification of the Employee is proper
because he has met the applicable standards of conduct, nor a determination by Continuum (including
its Board, independent legal counsel or stockholders) that the Employee has not met such applicable
standards of conduct, shall create a presumption that the Employee has not met the applicable
standards of conduct.
Employee understands and acknowledges that Continuum may be required in the future to
undertake with any regulatory authority or body in India to submit in certain circumstances the
question of indemnification to a court for a determination of Continuum’s right under public policy
to indemnify Employee.
13. Assignability and Binding Nature.
No rights or obligations under this Agreement may be assigned or transferred by Continuum
except that such rights or obligations may be assigned or transferred pursuant to a merger or
consolidation in which Continuum is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of Continuum, provided that the assignee or transferee is the
successor to all or substantially all of the assets of Continuum and such assignee or transferee
assumes the liabilities, obligations, and duties of Continuum, as contained in this Agreement,
either contractually or as a matter of law. Continuum further agrees, that in the event of a sale
of assets or liquidation as described in the foregoing sentence, it shall take whatever action it
is legally entitled to take in order to cause the assignee or transferee to expressly assume the
liabilities, obligations, and duties of Continuum under this Agreement. Notwithstanding any such
assignment, Continuum shall not be relieved from liability under this Agreement. No rights or
obligations of the Employee under this Agreement may be assigned or transferred by the Employee,
other than his right to receive compensation and benefits, provided such assignment or transfer is
otherwise permitted by law.
14. Notices.
All notices required or permitted hereunder shall be in writing and shall be deemed effective:
(1) upon personal delivery; (2) by facsimile upon confirmation of transmission by facsimile; or (3)
in the case of delivery by internationally recognized overnight delivery service, when received,
addressed as follows:
If to Continuum to:
0xx Xxxxx, Xxxxxx Xxxxx
000-X Xxxx Xxxxx
Xxx Xxxxx — 110065
000-X Xxxx Xxxxx
Xxx Xxxxx — 110065
With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxx
Attorney at Law
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attorney at Law
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
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If to the Employee, to:
Xxxxxx Xxxxxx
000, Xxxxxx 0, XXXX
Xxxxxx, Xxxxxxx, Xxxxx
124001
000, Xxxxxx 0, XXXX
Xxxxxx, Xxxxxxx, Xxxxx
124001
or to such other address or addresses as either party shall designate to the other in writing from
time to time by like notice.
15. Amendment.
This agreement may be amended or modified only by a written instrument executed by both
Continuum and the Employee.
16. Pronouns.
Whenever the context might require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular forms of nouns and pronouns shall include the
plural, and vice versa.
17. Captions.
The captions appearing herein are for convenience of reference only and in no way define,
limit or affect the scope or substance of any section hereof.
18. Time.
All references herein to periods of days are to calendar days, unless expressly provided
otherwise. Where the time period specified herein would end on a weekend or holiday, the time
period shall be deemed to end on the next business day.
19. Entire Agreement.
This Agreement constitutes the entire agreement between Continuum and the Employee and
supersedes all prior agreements and understandings, whether written or oral relating to the subject
matter hereof.
20. Severability.
In case any provision hereof shall be held by a court or arbitrator with jurisdiction over
Continuum or the Employee to be invalid, illegal, or otherwise unenforceable, such provision shall
be restated to reflect as nearly as possible the original intentions of Continuum and the Employee
in accordance with applicable law, and the validity, legality, and enforceability of the remaining
provisions shall in not way be affected or impaired thereby.
21. Waiver.
No delays or omission by Continuum or the Employee in exercising any right hereunder shall
operate as a waiver of that or any other right. A waiver or consent given by Continuum or the
Employee or any one occasion shall be effective only in that instance and shall not be construed as
a bar or waiver of any right on any other occasion.
22. Governing Law/Jurisdiction.
This Agreement shall be construed, interpreted, and enforced in accordance with the laws of
India, and shall be subject to the jurisdiction of the courts at Delhi..
23. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of both Continuum and the
Employee and their respective successors and assigns, including any entity with which or into which
Continuum might be merged
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or that might succeed to its assets or business or any entity to which Continuum might assign
its rights and obligations hereunder; provided, however, that the obligations of the Employee are
personal and shall not be assigned or delegated by him.
24. Withholding.
Continuum may make any appropriate arrangements to deduct from all benefits provided hereunder
any taxes reasonably determined to be required to be withheld by any government or government
agency. The Employee shall bear all taxes on benefits provided hereunder to the extent that no
taxes are withheld, irrespective of whether withholding is required.
25. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
26. Full Knowledge.
By their signatures, the parties acknowledge that they have carefully read and fully
understand the terms and conditions of this Agreement, that each party has had the benefit of
separate counsel, or has been advised to obtain separate counsel, and that each party has freely
agreed to be bound by the terms and conditions of this Agreement.
In Witness Whereof, each of the parties has executed this Agreement the respective
day and year set forth below.
Continuum: |
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Date: December 31, 2006
|
By: | /s/ Suki Mudan | ||||
Director | ||||||
EMPLOYEE: |
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Date: December 31, 2006 | /s/ Xxxxxx Xxxxxx | |||||
Xxxxxx Xxxxxx |
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