Exhibit
10.38


 





 


GRIC Communications, Inc.


1421 McCarthy Blvd.


Milpitas, CA  95035


 


Confidential Fax: (408)
435-8687


 


 


 


Personal and Confidential


 


 


February 9, 2004


 


 


Mr. Daniel W. Fairfax


1058 Eastwood Drive


Los Altos, California 94024


 


Dear Dan:


 


I am pleased to offer you the position of Senior Vice
President, Finance and Chief Financial Officer of GRIC Communications, Inc.
(“GRIC” or “the Company”).  The terms
and conditions of this offer are stated below:


 


Responsibility: 
You will be responsible for all of the financial operations of the
Company.


 


You will be part of the Executive Management Team and participate in
management meetings, strategic planning and other responsibilities as assigned
by the Company’s Chief Executive Officer.


 


You will be responsible for meeting or exceeding the Company’s
financial goals on a quarterly and annual basis.


 


Reporting:  You will report to Bharat Davé in his role
as Chief Executive Officer.


 


Base Salary: 
You will be paid a base salary of $225,000.00 per annum, payable
semi-monthly.


 


Performance Bonus:
You will participate in the Company’s Corporate Bonus Plan.  Subject to Board approval, your recommended
target bonus under the 2004 Corporate Bonus Plan will be equal to 50% of your
base salary (“Target Bonus”).   During
2004, 70% of the Target Bonus will relate to corporate objectives established
by the Board of Directors (and will be payable annually subject to achievement)
and 30% of the Target Bonus will relate to individual objectives established by
the Chief Executive Officer (and will be payable quarterly subject to
achievement).


 

















 


Daniel W. Fairfax Offer Letter


February 9, 2004


Page 2


 


 


Performance and Salary Reviews:  Performance/salary reviews are conducted in
January on an annual basis.


 


Employee Stock Option Grants:  You  will be granted an incentive
stock option subject to Board approval for the purchase of three hundred
thousand (300,000) shares of the Company’s common stock.  A recommendation will be made to the
Company’s Board to grant this option at its first meeting following your date
of employment at the closing price of the Company’s common stock on The Nasdaq
National Market and subject to the Company’s standard vesting schedule (20%
after ten months and 2% per month thereafter; vesting to commence on your date
of employment), with vesting starting as of your first day of employment by the
Company.


 


Change of Control:  In the event of a “Change of Control” (as defined herein) during
your first year of employment as Chief Financial Officer, if your employment is
terminated without cause within one year of the effective date of the Change of
Control, then 100% of your then unvested options will be vested immediately
upon your date of termination, without regard to satisfaction of the conditions
to vesting that would otherwise apply. 
In the event of a Change of Control after completion of your first year
of employment as Chief Financial Officer, if your employment is terminated
without cause within one year of the effective date of the Change of Control,
then 50% of your then unvested options will be vested immediately upon your
date of termination, without regard to satisfaction of the conditions to
vesting that would otherwise apply.  For
purposes of this paragraph, a “Change of Control” means (a) a merger or
consolidation in which the Company is not the surviving corporation (other than
a merger or consolidation with a wholly-owned subsidiary, a reincorporation of
the Company in a different jurisdiction, or other transaction in which there is
no substantial change in the stockholders of the Company or their relative
stock holdings and stock options granted under the Company’s 1999 Equity
Incentive Plan are assumed, converted or replaced by the successor corporation,
which assumption will be binding on all employees receiving such options), (b)
a merger in which the Company is the surviving corporation but after which the
stockholders of the Company immediately prior to such merger (other than any
stockholder that merges, or which owns or controls another corporation that
merges, with the Company in such merger) cease to own a majority of the shares
or other equity interest in the Company or its parent, (c) the sale of
substantially all of the assets of the Company, or (d) the acquisition, sale,
or transfer of more than 50% of the outstanding shares of the Company by tender
offer or similar transaction.


 


Employee Benefits:  As an employee of GRIC, you will receive
benefits in accordance with the GRIC employee benefits plans, as may be amended
from time to time.  The current benefit
package includes a choice of medical plans, as well as dental, life, disability
and accidental dismemberment insurance.


 


GRIC 401(k) Plan: As a full-time employee of
GRIC, you may, if you wish, enroll in the Company’s 401(k) Plan at the next or
a subsequent Plan entry date.  You will
be provided with a full description of the Plan including eligible
contributions from your compensation and investment options.


 


Terms of Employment:  Your employment will be considered “at will” and will continue
for an indefinite term.  Employment at
will means that either you or the Company may terminate the employment
relationship at any time for any reason, with or without cause.


 


Termination of Employment without
Cause:  The Company may terminate your employment at
any time without cause. If the Company terminates your employment without
cause, the Company will provide you a severance payment equivalent to six
months’ base salary, payable monthly in accordance with the Company’s normal
payroll policies.


 

















 


Daniel W. Fairfax Offer Letter


February 9, 2004


Page 3


 


 


Additionally, the Company will provide you with reimbursement of up to
six (6) months of COBRA insurance coverage. 
Such insurance reimbursement will be provided for up to six (6) months
unless comparable benefits are otherwise provided to you by a third party.  You may also have additional COBRA rights to
extend GRIC-related insurance benefits at your cost for an additional period of
time.


 


The Company may, also, terminate your employment for cause in its sole
discretion.  For the purposes of this
Offer of Employment, unless otherwise noted, “cause” shall be defined as:


 


(1)  Failure to continually and substantially
perform the reasonably assigned responsibilities of the position in an
acceptable manner, gross negligence, gross misconduct, habitual neglect of
duties, criminal acts, violation of any state or federal securities laws,
commission of any felony involving fraud or dishonesty, violation of the
written lawful policies or written instructions of the Board of Directors,
commencement of employment or any other businesses arrangements with another
employer while you are an employee of the Company, or violation of the
Company’s Code of Business Conduct and Ethics.


 


(2)  Your
death, or your total disability lasting more than 90 days.


 


If the Company terminates your employment without cause during the
first ten months of your employment, then the vesting of options pursuant to
your initial option grant will accelerate in an amount equal to 2% per month
for each full month from your hire date through your termination date.


 


Termination of Employment with
Cause.  If the
Company terminates your employment with cause, the Company will provide you a
severance payment equivalent to three months’ base salary, payable monthly in
accordance with the Company’s normal payroll policies. However, if the cause
for termination relates to violation by you of state or federal law, then you
will receive no severance payment from the Company.


 


Additionally, unless the cause for termination relates to violation by
you of state or federal law, the Company will provide you with reimbursement of
up to three (3) months of COBRA insurance coverage.  Such insurance reimbursement will be provided for up to three (3)
months unless comparable benefits are otherwise provided to you by a third
party.  You may also have additional
COBRA rights to extend GRIC-related insurance benefits at your cost for an
additional period of time.


 


Confidentiality:  This offer is being extended to you solely based on your skill,
experience, education and our view of your potential for success here. 
This offer is not being made in order to acquire confidential or proprietary
information or trade secrets from any previous employer that you may have come
to possess.  Consequently, we must instruct you to abide by any
contractual or legal obligations that you have to maintain the confidentiality
of information that you are obligated to protect.  By accepting employment
with GRIC, you agree not to use or disclose proprietary information or trade
secrets from any previous employer in the course of performing your duties for
GRIC under any circumstances.  You must not keep any items or materials
related to your former employer or use such materials during your employment
with GRIC.  If you have any questions regarding what constitutes such
information, GRIC encourages you to contact your former employer.


 


By accepting employment with
GRIC, you agree to be bound by its policies and procedures, including the GRIC
Code of Business Conduct and Ethics and GRIC’s Employee Invention Assignment
and Confidentiality Agreement, which you will be asked to sign on or before your
first day of work at GRIC.  This offer
is the entire initial basic agreement relating to your position, compensation,
reporting relationship and employee benefits. 
By signing below, you acknowledge that you have not been induced to
accept employment by any representations or statements, oral or written, not
contained in this letter.


 

















 


Daniel W. Fairfax Offer Letter


February 9, 2004


Page 4


 


 


Start Date:   Your employment with GRIC will commence on
or before February 23, 2004.


 


If you agree with the terms stated in this letter, please sign and
return the attached Acceptance and Acknowledgement.  This offer will expire at 6:00 p.m. on February 9, 2004.


 


Dan, the GRIC team looks forward to a long and mutually
prosperous relationship with you.   We
are confident that you will have a significant and positive impact on the
future growth and success of GRIC Communications, Inc.


 


 


Sincerely,


 


/s/ DAVID L. TEICHMANN


 


David L. Teichmann


Senior Vice President, General Counsel and Secretary


 


Enclosure:    Employee Non-Disclosure, Conflicts of
Interest and Proprietary Rights Agreement


 


 


Copy:   Bharat Davé, CEO and
President


 

















 


Daniel W. Fairfax Offer Letter


February 9, 2004


Page 5


 


 


Acceptance and Acknowledgment


 


 


I have read, understand, and accept the foregoing terms of employment
at GRIC Communications, Inc. and will start work no later than
February 23, 2004.  I certify that
on this date I will not be employed by, on the payroll of, or compensated by
any other Company, with the exception of a position(s) on the Board of
Directors of a Company whose business activity is not in conflict or
competitive with GRIC Communications, Inc. 
I will provide a listing of all current Board-level obligations to the
Board of Directors of GRIC at the first Board meeting that follows my
acceptance of this position with the Company. 
I will provide a written request to the Board seeking its approval of
prospective new Board positions prior to entering into new Board-level
commitments.


 


I understand that you do not wish me to bring any confidential or
proprietary material of any former employer or to violate any lawful obligation
to my former employers.


 


I understand that my employment is contingent on my providing
appropriate legal proof of eligibility to be employed in the United States as
well as signing the Company’s customary Employee Invention Assignment and
Confidentiality Agreement and acknowledging my agreement to abide by the Company’s
Code of Business Conduct and Ethics, both of which are attached.


 


I have indicated my anticipated start date below.


 


 


	
  Signed:

  	
  /s/ DANIEL W. FAIRFAX

  	
   

  	
  Anticipated Start Date: February 23, 2004

  
	
   

  	
  Daniel W. Fairfax

  	
   

  	
   

  



 


 


Date  Signed:  February 9, 2004