Executive Services Agreement



 Exhibit 10.1 
 

 
 Executive Services Agreement 
 December 21, 2007 
 Dr. Santanu Das 
 President and CEO 
 TranSwitch Corporation 
 3 Enterprise Drive 
 Shelton, CT 06484 
 Dear Dr. Das: 
 Tatum, LLC (“Tatum,”) is pleased that TranSwitch Corporation (the “Company” ) desires to employ Robert A.
Bosi, a member of Tatum (the “Employee”), to serve as Vice President and Chief Financial Officer (“CFO”), Principal Financial Officer (“PFO”), Principal Accounting Officer (“PAO”) and as an Executive Officer
(“Section 16 Officer”) (as contemplated by the Securities Exchange Act of 1934) of the Company commencing on January 4, 2008. Mr. Bosi’s appointment has been approved by the Company’s Board of Directors. This letter
along with the terms and conditions attached as Exhibit A and any other exhibits or schedules attached hereto (collectively, the “Agreement”) confirms our mutual understanding of the terms and conditions upon which we will make available
to you the Employee and Tatum’s intellectual capital to the Employee for use in connection with the Employee’s employment relationship with you. 
 Effective as of January 4, 2008, the Employee will become a full-time Company employee serving in the capacity set forth above and, on the date set forth above Employee shall become the duly elected or appointed CFO, PFO, PAO, and a
Section 16 Officer of the Company. The Employee will work on a full-time basis and be subject to the supervision, direction and control of and report directly to the Company’s CEO with reporting responsibility to the Board of Directors and
the Audit Committee of the Board of Directors. While the Employee will remain a member of Tatum and have access to Tatum’s intellectual capital to be used in connection with the Employee’s employment relationship with you, Tatum will have
no supervision, direction or control over the Employee with respect to the services provided by the Employee to the Company. 
 The Company will pay directly
to the Employee a salary of $28,000 a month (“Salary”). In addition, the Company will reimburse the Employee for ordinary and necessary out-of-pocket expenses approved in a manner consistent with normal operating policy and incurred by the
Employee to the same extent that the Company reimburses other senior managers for such expenses and actual temporary living expenses up to a maximum reimbursement of $2,000 per month. Tatum shall receive a fee of $12,000 a month (“Fees”).

 While there is no provision for the Employee to receive a “bonus”, if a bonus is paid or granted, the granting of such bonus, if any, to be
within the sole discretion of the Company, seventy (70%) percent of any such bonus shall be paid or granted directly to the Employee and the remaining thirty (30%) percent shall be paid or granted directly to Tatum. 
 Payments to the Employee shall be made in accordance with the Company’s standard payroll and expense reimbursement policies. Payments to Tatum should be made in
accordance with the instructions set forth on Exhibit A at the same time payments are made to the Employee. 
  

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 The Employee agrees to waive Company health insurance and elects to continue participating in his current health
insurance plans. Employee shall not be entitled to any equity or cash bonus, except as specifically granted by the Board of Directors or the CEO. As an employee, the Employee will be eligible for any Company employee retirement and/or 401(k) plan
and for vacation and holidays consistent with the Company’s policy as it applies to senior management. The Employee will be exempt from any delay periods otherwise required for vacation and holiday eligibility. 
 You will have the opportunity to make the Employee a regular, full-time member of Company management at any time during the term of this Agreement by entering into
another form of Tatum agreement, the terms of which will be negotiated at such time. 
 As a condition to providing the services hereunder, we require a
security deposit in an amount equal to $10,000 (the “Deposit”), which will only be used by us under the limited circumstances described on Exhibit A. The Deposit is due upon the execution of this Agreement. 
 The Company will provide Tatum or the Employee with written evidence that the Company maintains directors’ and officers’ insurance covering the Employee in an
amount reasonably acceptable to the Employee at no additional cost to the Employee, and the Company will maintain such insurance at all times while this Agreement remains in effect. Furthermore, the Company will maintain such insurance coverage with
respect to occurrences arising during the term of this Agreement for at least three years following the termination or expiration of this Agreement or will provide coverage with respect to occurrences arising during the term of this Agreement after
termination of this Agreement for at least three years. 
 We appreciate the opportunity to serve you and believe this Agreement accurately reflects our
mutual understanding. We would be pleased to discuss this Agreement with you at your convenience. If the foregoing is in accordance with your understanding, please sign a copy of this Agreement and return it to my attention. 
 Sincerely, 
 Tatum, LLC 
  

			
	By:	 	 /s/ Bernard Leone

		 	Bernard Leone
		 	Area Managing Partner

  

			
	Accepted and agreed:
	
	TranSwitch Corporation
		
	By:	 	 /s/ Santanu Das

	Name:	 	 Santanu Das

	Title:	 	 Chief Executive Officer









 Exhibit A 
 Terms and Conditions 
 1. Relationship of the Parties. The parties agree that Tatum will be serving the
Company as an independent contractor for all purposes and not as an employee, agent, partner of, or joint venturer with the Company and that the Employee will be serving the Company as an employee of the Company for all purposes and not as an
independent contractor. 
 2. Payment Terms. Payments to Tatum should be made by electronic transfer in accordance with the instructions set forth
below or such alternative electronic transfer instructions as provided by Tatum from time to time. Any amounts not paid within ten days when due may be subject to a periodic service charge equal to the lesser of 1.5% per month and the maximum
amount allowed under applicable law, until such amounts are paid in full, including assessed service charges. In lieu of terminating this Agreement, Tatum may suspend the provision of services (including the Employee’s services) if amounts owed
are not paid in accordance with the terms of this Agreement. 
 Bank Name: Wells Fargo, N.A. 
 Branch: San Francisco 
 Account Name: Tatum, LLC 
 Account Number: 4121546642 
 Routing Number for ACH Payments: 121000248 
 Swift Code: WFBIUS6S 
 Please reference Company name in the body of the
payment. 
 3. Deposit. If the Company breaches this Agreement and fails to cure such breach as provided for herein, Tatum will be entitled to apply
the Deposit to its unpaid Fees or the Employee’s damages resulting from such breach. In the event the Deposit falls below the amount required, the Company will pay Tatum an additional amount equal to the shortfall. Within ten (10) days
after the termination of the Agreement, Tatum will return to the Company the balance of the Deposit remaining after application of any amounts to unpaid Fees as provided for herein, including, without limitation, unfulfilled payment obligations of
the Company to Tatum. 
 4. Termination. 
 (a) Either the Company or Tatum may terminate this Agreement by providing the other party a minimum of 30 days’ advance written notice and such termination will be effective as of the date specified in such notice, provided that such
date is no earlier than 30 days after the date of delivery of the notice, Tatum will continue to provide, and the Company will continue to pay the services until the termination effective date. 
 (b) Tatum may terminate this Agreement immediately upon written notice to the Company if: (i) the Company is engaged in or asks Tatum or the
Employee to engage in or ignore any illegal or unethical activity; (ii) the Employee ceases to be a member of Tatum for any reason, (iii) the Employee dies or becomes disabled; or (iv) the Company fails to pay any amounts due to Tatum
or the Employee within 10 days of the date due. For purposes of this Agreement, disability will be defined by the applicable policy of disability insurance or, in the absence of such insurance, by Tatum’s management acting in good faith.

 (c) In the event that a party commits a breach of this Agreement, other than for the reasons described in the above Section, and fails to
cure the same within 10 days following delivery by the non-breaching party of written notice specifying the nature of the breach, the non-breaching party may terminate this Agreement effective upon written notice of such termination. 
 (d) The expiration or termination of this Agreement will not destroy or diminish the binding force and effect of any of the provisions of this Agreement
that expressly, or by reasonable implication, come into or continue in effect on or after such expiration or termination, including, without limitation, provisions relating to payment of fees and expenses (including witness fees and expenses),
hiring the Employee, governing law, arbitration, limitation of liability, and indemnity. 







 5. Hiring the Employee Outside of a Tatum Agreement. During the term of this Agreement and for the 12-month period
following the termination or expiration of this Agreement, other than in connection with this Agreement or another Tatum agreement, the Company will not employ the Employee, or engage the Employee as an independent contractor. The parties recognize
and agree that a breach by the Company of this provision would result in the loss to Tatum of the Employee’s valuable expertise and revenue potential and that such injury will be impossible or very difficult to ascertain. Therefore, in the
event this provision is breached, Tatum will be entitled to receive as liquidated damages (in lieu of any other claims whatsoever) an amount equal to 45% of the Annualized Compensation (as defined below), which amount the parties agree is reasonably
proportionate to the probable loss to Tatum and is not intended as a penalty. The amount will be due and payable to Tatum upon written demand to the Company. If a court or arbitrator determines that liquidated damages are not appropriate for such
breach, Tatum will have the right to seek damages of not more than 45% of Annualized Compensation. “Annualized Compensation” means the equivalent of the Employee’s Salary calculated on a full-time annual basis plus the maximum amount
of any bonus for which the Employee was eligible with respect to the then-current bonus year. 
 6. Warranties and Disclaimers. It is understood that
Tatum does not have a contractual obligation to the Company other than to provide the Employee to the Company and to provide the Employee access to Tatum’s intellectual capital to be used in connection with the Employee’s employment
relationship with the Company. The Company acknowledges that any information, including any resources delivered through Tatum’s proprietary information and technology system, will be provided by Tatum as a tool to be used in the discretion of
the Company. Tatum will not be responsible for any action taken by the Company in following or declining to follow any of Tatum’s or the Employee’s advice or recommendations. Tatum disclaims all other warranties, whether express, implied
or statutory. Without limiting the foregoing, Tatum makes no representation or warranty as to the services provided by the Employee, or the accuracy or reliability of reports, projections, certifications, opinions, representations, or any other
information prepared or made by Tatum or the Employee (collectively, the “Information”) even if derived from Tatum’s intellectual capital, and Tatum will not be liable for any claims of reliance on the Information or that the
Information does not comply with federal, state or local laws or regulations, The services provided by Tatum hereunder are for the sole benefit of the Company and not any unnamed third parties. The services will not constitute an audit, review, or
compilation, or any other type of financial statement reporting or attestation engagement that is subject to the rules of the AICPA or other similar state or national professional bodies and will not result in an opinion or any form of assurance on
internal controls. 
 7. Limitation of Liability; Indemnity. 
 (a) The liability of Tatum in any and all categories and for any and all causes arising out of this Agreement, whether based in contract, tort, negligence, strict liability or otherwise will, in the aggregate, not
exceed the actual Fees paid by the Company to Tatum over the previous four months’ of the Agreement, In no event will Tatum be liable for incidental, consequential, punitive, indirect or special damages, including, without limitation, any
interruption or loss of business, profit or goodwill. As a condition for recovery of any liability, the Company must assert any claim against Tatum within one (1) year after the termination or expiration of this Agreement. 
 (b) The Company agrees to indemnify Tatum and the Employee to the full extent permitted by law for any losses, costs, damages, and expenses (including
reasonable attorneys’ fees), as they are incurred, in connection with any cause of action, suit, or other proceeding arising in connection with the Employee’s services to the Company, other than for willful misconduct or gross negligence.

 8. Governing Law, Arbitration, and Witness Fees. 
 (a)
This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws provisions. 
 (b)
If the parties are unable to resolve any dispute arising out of or in connection with this Agreement, the parties agree and stipulate that any such disputes will be settled by binding arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association (“AAA”). The arbitration will be conducted in the New York, New York office of the AAA by a single arbitrator selected by the parties according to the rules of the AAA, and the decision of the
arbitrator will be final and binding on both parties. In the event that the parties fail to agree on the selection of the arbitrator within 30 days after either party’s request for arbitration under this Section, the arbitrator will be chosen
by the AAA. The arbitrator may in his or her discretion order documentary discovery 








 
but will not allow depositions without a showing of compelling need. The arbitrator will render his or her decision within 90 days after the call for
arbitration. Judgment on the award of the arbitrator may be entered in and enforced by any court of competent jurisdiction. The arbitrator will have no authority to award damages in excess or in contravention of this Agreement and may not amend or
disregard any provision of this Agreement, including this Section. Notwithstanding the foregoing, either party may seek appropriate injunctive relief from any court of competent jurisdiction, and Tatum may pursue payment of undisputed amounts
through any court of competent jurisdiction. 
 (c) In the event any member or employee of Tatum (including, without limitation, the Employee to the extent
not otherwise entitled in his or her capacity as an employee of the Company) is requested or authorized by the Company or is required by government regulation, subpoena, or other legal process to produce documents or appear as witnesses in
connection with any action, suit or other proceeding initiated by a third party against the Company or by the Company against a third party, the Company will, so long as neither Tatum nor the Employee is a party to the proceeding and in the event
that neither Tatum nor the Employee are a party to the proceedings that no allegation has been made that Tatum or the Employee committed any negligence or contributed in any manner to the allegations which are the subject of the proceeding,
reimburse Tatum for its member’s or employee’s professional time (based on customary rates) and expenses (excluding legal expenses), incurred in responding to such requests. 
 9. Miscellaneous. 
 (a) This Agreement constitutes the entire agreement between the parties with regard to the subject
matter hereof and supersede any and all agreements, whether oral or written, between the parties with respect to its subject matter. No amendment or modification to this Agreement will be valid unless in writing and signed by both parties.

 (b) If any portion of this Agreement is found to be invalid or unenforceable, such provision will be deemed severable from the remainder of this Agreement
and will not cause the invalidity or unenforceability of the remainder of this Agreement, except to the extent that the severed provision deprives either party of a substantial portion of its bargain. 
 (c) Neither the Company nor Tatum will be deemed to have waived any rights or remedies accruing under this Agreement unless such waiver is in writing and signed by the
party electing to waive the right or remedy. The waiver by any party of a breach or violation of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach of such provision or any other provision of this
Agreement. 
 (d) Neither party will be liable for any delay or failure to perform under this Agreement (other than with respect to payment obligations) to
the extent such delay or failure is a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond such party’s reasonable control. 
 (e) The Company may not assign its rights or obligations under this Agreement without the express written consent of Tatum. Nothing in this Agreement will confer any
rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns and the Employee. 
 (f) Tatum, without
the prior consent of the Company, may not use the Company’s logo and/or name on Tatum’s website and other marketing materials. Tatum will not use the Company’s logo or name in any press release or general circulation advertisement or
in any other manner without the Company’s prior written consent. Nothing contained herein shall prohibit the Company from disclosing this Agreement as may be required under applicable securities laws.