Exhibit 10.11


 


EMPLOYMENT
AGREEMENT


 


This AGREEMENT (the “Agreement”) is made as of
September 6, 2001 (the “Effective Date”), by and between Netblades, Inc., a
Delaware corporation with its headquarters located in Lexington, Massachusetts
(the “Employer”), and Vijay Manwani (the “Executive”). In consideration of the
mutual covenants contained in this Agreement, the Employer and the Executive
agree as follows:


 


1.             Employment.
The Employer agrees to employ the Executive and the Executive agrees to be
employed by the Employer on the terms and conditions set forth in this
Agreement.


 


2.             Capacity.
The Executive shall initially serve the Employer as co-founder, Vice President
and Chief Technology Officer, subject to appointment to such office by the
Board of Directors of the Employer (the “Board of Directors”), which
appointment shall not be unreasonably withheld or delayed. The Executive shall
also serve the Employer in such other or additional offices as the Executive
may be requested to serve by the Board of Directors or the Chief Executive
Officer, subject to the provisions of Section 6 hereof. In such capacity or
capacities, the Executive shall perform such services and duties in connection
with the business, affairs and operations of the Employer as may be assigned or
delegated to the Executive from time to time by or under the authority of the
Board of Directors or the Chief Executive Officer.


 


3.             Term.
Subject to the provisions of Section 6, the term of employment pursuant to this
Agreement (the “Term”) shall be four (4) years from the Effective Date and
shall be renewed automatically for periods of one (1) year commencing at the
fourth anniversary of the Effective Date and on each subsequent anniversary
thereafter, unless either the Executive or the Employer gives written notice to
the other not less than thirty (30) days prior to the date of any such
anniversary of such party’s election not to extend the Term.


 


4.             Compensation
and Benefits. The regular compensation and benefits payable to the
Executive under this Agreement shall be as follows:


 


(a)           Salary.
For all services rendered by the Executive under this Agreement, the Employer
shall pay the Executive a salary (the “Salary”) at the annual rate of One
Hundred Seventy Five Thousand Dollars ($175,000), subject to increase from time
to time in the discretion of the Board of Directors or the Compensation
Committee of the Board of Directors (the “Compensation Committee”). The Salary
shall be payable in periodic installments in accordance with the Employer’s
usual practice for its senior executives.


 


(b)           Bonus.
The Executive shall be entitled to participate in any annual incentive program
established by the Board of Directors or the Compensation Committee with such
terms as may be established in the sole discretion of the Board of Directors or
Compensation Committee.


 


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(c)           Regular
Benefits. The Executive shall also be entitled to participate in any
employee benefit plans, medical insurance plans, life insurance plans,
disability income plans, retirement plans, vacation plans, expense
reimbursement plans and other benefit plans which the Employer may from time to
time have in effect for similarly situated senior executives. Such
participation shall be subject to the terms of the applicable plan documents,
generally applicable policies of the Employer, applicable law and the
discretion of the Board of Directors, the Compensation Committee or any
administrative or other committee provided for in or contemplated by any such
plan. Nothing contained in this Agreement shall be construed to create any
obligation on the part of the Employer to establish any such plan or to
maintain the effectiveness of any such plan which may be in effect from time to
time.


 


(d)           Taxation
of Payments and Benefits. The Employer shall undertake to make deductions,
withholdings and tax reports with respect to payments and benefits under this
Agreement to the extent that it reasonably and in good faith believes that it
is required to make such deductions, withholdings and tax reports. Payments
under this Agreement shall be in amounts net of any such deductions or
withholdings. Nothing in this Agreement shall be construed to require the
Employer to make any payments to compensate the Executive for any adverse tax
effect associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.


 


(e)           Exclusivity
of Salary and Benefits. The Executive shall not be entitled to any payments
or benefits other than those described in or provided under this Agreement or
the Stock Purchase and Stock Restriction Agreement dated August 7, 2001 (the “Stock
Agreement”).


 


5.             Extent
of Service. During the Executive’s employment under this Agreement, the
Executive shall, subject to the direction and supervision of the Board of
Directors or the Chief Executive Officer, devote the Executive’s full business
time, best efforts and business judgment, skill and knowledge to the
advancement of the Employer’s interests and to the discharge of the Executive’s
duties and responsibilities under this Agreement. The Executive shall not
engage in any other business activity, except as may be approved by the Board
of Directors; provided that
nothing in this Agreement shall be construed as preventing the Executive from
engaging in religious, charitable or other community or non-profit activities
that do not impair the Executive’s ability to fulfill the Executive’s duties
and responsibilities under this Agreement.


 


6.             Termination
and Termination Benefits. Notwithstanding the provisions of Section 3, the
Executive’s employment under this Agreement shall terminate under the following
circumstances set forth in this Section 6.


 


(a)           Termination
by the Executive. The Executive’s employment under this Agreement may be
terminated by the Executive by written notice to the Board of Directors
(specifying whether such termination is for Good Reason) at least thirty (30)
days prior to such termination. If the Executive terminates his employment for
Good Reason (as defined below), such written notice shall so specify, and
Executive shall be entitled to Termination Benefits as provided in Section 6(d)
hereof.


 


“Good Reason”
means the occurrence of any of the following events:  (i) a substantial adverse change in the
nature or scope of the Executive’s responsibilities, 


 


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authorities, powers,
functions or duties; (ii) a reduction in the Executive’s annual base salary
except for across-the-board salary reductions similarly affecting all or
substantially all management employees; or (iii) the relocation of the offices
at which the Executive is principally employed to a location more than 50 miles
from such offices; or (iv) any material breach of any provision of this
Agreement by Employer.


 


Good
Reason will not exist unless the Executive has provided the Employer with
reasonable notice and an opportunity to cure any of the events listed in (i),
(ii) and (iv) above and the Employer has failed to cure within a reasonable
period, but in any event not more than 30 days after receiving such notice.


 


(b)           Termination
by the Employer Without Cause. Subject to the payment of Termination
Benefits pursuant to Section 6(d), the Executive’s employment under this
Agreement may be terminated by the Employer without cause upon written notice
to the Executive by a vote of the Board of Directors.


 


(c)           Termination
by the Employer for Cause. The Executive’s employment under this Agreement
may be terminated for cause without further liability on the part of the
Employer effective immediately upon a vote of the Board of Directors and
written notice to the Executive. Only the following shall constitute “cause”
for such termination:


 


(i)            the commission of any act by the
Executive constituting material financial dishonesty against the Employer
(which act would be chargeable as a crime under applicable law);


 


(ii)           the Executive’s engaging in any other
act of dishonesty, fraud, intentional misrepresentation, moral turpitude,
illegality or harassment which would, as determined in good faith by the
Board:  (A) materially adversely affect
the business or the reputation of the Employer with its current or prospective
customers, suppliers, lenders and/or other third parties with whom it does or
might do business; or (B) expose the Employer to a risk of civil or criminal
legal damages, liabilities or penalties;


 


(iii)          the repeated failure by the Executive
to follow the reasonable directives of the Employer’s Chief Executive Officer
or Board;


 


(iv)          any gross negligence, material
misconduct or material, willful and deliberate non-performance of duty by the
Executive in connection with the business affairs of the Employer; or


 


(v)           any material breach of any provision
of this Agreement by the Executive which, in the case of a breach that is
capable of being cured, is not corrected after notice and a reasonable
opportunity to cure (which period shall in no event be less than 21 days).


 


(d)           Certain
Termination Benefits. Unless otherwise specifically provided in this
Agreement or otherwise required by law, all compensation and benefits payable
to the Executive under this Agreement shall terminate on the date of
termination of the Executive’s 


 


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employment under
this Agreement. Notwithstanding the foregoing, in the event of termination of
the Executive’s employment with the Employer pursuant to Section 6(a) (for Good
Reason only) or 6(b), the Employer shall provide to the Executive the following
termination benefits (“Termination Benefits”):


 


(i)            continuation of the Executive’s
Salary at the rate then in effect pursuant to Section 4(a); and


 


(ii)           continuation of the Executive’s
rights to all benefits identified in Section 4(c) as if the Executive were
employed on a full-time basis.


 


The
Termination Benefits set forth in (i) and (ii) above shall continue effective
until six (6) months after the date of termination. Payment of Termination
Benefits may be conditioned upon receipt by the Employer of a general release
of claims by the Executive in a form reasonably satisfactory to the Employer.


 


(e)           Disability.
If in the judgment of the Board of Directors the Executive shall be disabled so
as to be unable to perform the essential functions of the Executive’s then
existing position or positions under this Agreement with or without reasonable
accommodation, the Chief Executive Officer or the Board of Directors may remove
the Executive from any responsibilities and/or reassign the Executive to
another position with the Employer for the remainder of the Term or during the
period of such disability. Notwithstanding any such removal or reassignment,
the Executive shall continue to receive the Executive’s full Salary (less any
disability pay or sick pay benefits to which the Executive may be entitled under
the Employer’s policies) and benefits under Section 4 of this Agreement (except
to the extent that the Executive may be ineligible for one or more such
benefits under applicable plan terms) for a period of time equal to the lesser
of (i) six (6) months or (ii) the remainder of the Term.


 


7.             Confidential
Information, Noncompetition and Cooperation.


 


(a)           Confidential
Information and Noncompetition. The Executive has entered into the Employer’s
Agreement Concerning Confidentiality, Inventions, Documents, Nonsolicitation
and Unfair Competition on the date hereof, a copy of which is attached to this
Agreement.


 


(b)           Litigation
and Regulatory Cooperation. During and after the Executive’s employment,
the Executive shall cooperate reasonably with the Employer in the defense or
prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Employer which relate to events or
occurrences that transpired while the Executive was employed by the Employer. The
Executive’s reasonable cooperation in connection with such claims or actions
shall include, but not be limited to, being available to meet with counsel to
prepare for discovery or trial and to act as a witness on behalf of the
Employer at mutually convenient times. During and after the Executive’s
employment, the Executive also shall cooperate reasonably with the Employer in
connection with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to events or
occurrences that transpired while the Executive was employed by the Employer. The
Employer shall reimburse the Executive for any reasonable 


 


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out-of-pocket
expenses incurred in connection with the Executive’s performance of obligations
pursuant to this Section 7(b).


 


(c)           Injunction.
The Executive agrees that it would be difficult to measure any damages caused
to the Employer which might result from any breach by the Executive of the
promises set forth in this Section 7, and that in any event money damages would
be an inadequate remedy for any such breach. Accordingly, subject to Section 8
of this Agreement, the Executive agrees that if the Executive breaches, or
proposes to breach, any portion of this Agreement, the Employer shall be
entitled, in addition to all other remedies that it may have, to seek an
injunction or other appropriate equitable relief to restrain any such breach.


 


8.             Arbitration
of Disputes. Any controversy or claim arising out of or relating to this
Agreement or the breach thereof or the Stock Agreement or the breach thereof,
or otherwise arising out of the Executive’s employment or the termination of
that employment (including, without limitation, any claims of unlawful employment
discrimination whether based on age or otherwise) shall, to the fullest extent
permitted by law, be settled by arbitration in any forum and form agreed upon
by the parties or, in the absence of such an agreement, under the auspices of
the American Arbitration Association (“AAA”) in Boston, Massachusetts in
accordance with the Employment Dispute Resolution Rules of the AAA, including,
but not limited to, the rules and procedures applicable to the selection of
arbitrators. In the event that any person or entity other than the Executive or
the Employer may be a party with regard to any such controversy or claim, such
controversy or claim shall be submitted to arbitration subject to such other
person or entity’s agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. This
Section 8 shall be specifically enforceable. Notwithstanding the foregoing,
this Section 8 shall not preclude either party from pursuing a court action for
the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate; provided that any other relief shall
be pursued through an arbitration proceeding pursuant to this Section 8. The
Employer shall pay all administrative fees and arbitrator’s fees and expenses
related to any arbitration. Each party shall pay the cost of his or its own
legal fees and expenses in connection with any arbitration or litigation
provided that if the Executive prevails in such arbitration or litigation, the
Employer shall reimburse the Executive for all reasonable legal fees and
expenses incurred by the Executive in connection with the arbitration or
litigation.


 


9.             Consent
to Jurisdiction. To the extent that any court action is permitted
consistent with or to enforce Section 8 of this Agreement, the parties hereby
consent to the jurisdiction of the Superior Court of the Commonwealth of
Massachusetts and the United States District Court for the District of
Massachusetts. Accordingly, with respect to any such court action, the
Executive (a) submits to the personal jurisdiction of such courts; (b) consents
to service of process; and (c) waives any other requirement (whether imposed by
statute, rule of court, or otherwise) with respect to personal jurisdiction or
service of process.


 


10.           Integration.
This Agreement, together with the Agreement Concerning Confidentiality,
Inventions, Documents, Nonsolicitation and Unfair Competition between the
Executive and the Employer and the Stock Restriction Agreement between the
Executive and the Employer, each of even date herewith, constitutes the entire
agreement between the parties with 


 


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respect to the subject matter hereof and supersedes all prior agreements
between the parties with respect to any related subject matter.


 


11.           Assignment;
Successors and Assigns, etc. Neither the Employer nor the Executive may
make any assignment of this Agreement or any interest herein, by operation of
law or otherwise, without the prior written consent of the other party; provided that the Employer may assign
its rights under this Agreement without the consent of the Executive in the
event that the Employer shall effect a reorganization, consolidate with or merge
into any other corporation, partnership, organization or other entity, or
transfer all or substantially all of its properties or assets to any other
corporation, partnership, organization or other entity. This Agreement shall
inure to the benefit of and be binding upon the Employer and the Executive,
their respective successors, executors, administrators, heirs and permitted
assigns.


 


12.           Enforceability.
If any portion or provision of this Agreement (including, without limitation,
any portion or provision of any section of this Agreement) shall to any extent
be declared illegal or unenforceable by a court of competent jurisdiction, then
the remainder of this Agreement, or the application of such portion or
provision in circumstances other than those as to which it is so declared
illegal or unenforceable, shall not be affected thereby, and each portion and
provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.


 


13.           Waiver.
No waiver of any provision hereof shall be effective unless made in writing and
signed by the waiving party. The failure of any party to require the
performance of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent any subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.


 


14.           Notices.
Any notices, requests, demands and other communications provided for by this
Agreement shall be sufficient if in writing and delivered in person or sent by
a nationally recognized overnight courier service or by registered or certified
mail, postage prepaid, return receipt requested, to the Executive at the last
address the Executive has filed in writing with the Employer or, in the case of
the Employer, at its main offices, attention of the Board of Directors, and
shall be effective on the date of delivery in person or by courier or three (3)
days after the date mailed.


 


15.           Amendment.
This Agreement may be amended or modified only by a written instrument signed
by the Executive and by a duly authorized representative of the Employer.


 


16.           Governing
Law. This is a Massachusetts contract and shall be construed under and be
governed in all respects by the laws of the Commonwealth of Massachusetts,
without giving effect to the conflict of laws principles of such Commonwealth. With
respect to any disputes concerning federal law, such disputes shall be
determined in accordance with the law as it would be interpreted and applied by
the United States Court of Appeals for the First Circuit.


 


17.           Counterparts.
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be taken to be an original; but such
counterparts shall together constitute one and the same document.


 


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IN WITNESS WHEREOF, this Agreement has been executed
as a sealed instrument by the Employer, by its duly authorized officer, and by
the Executive, as of the Effective Date.


 


 


	
   

  	
  NETBLADES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Dev Ittycheria

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Dev Ittycheria

  
	
   

  	
   

  	
  Title: 

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Vijay Manwani

  	
   

  
	
   

  	
  Vijay Manwani

  
						



 


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