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Draini v. Naseeb Networks, Inc.

Court of Chancery of Delaware

June 13, 2017

Yasser Draini
v.
Naseeb Networks, Inc., et al.,

          Date Submitted: May 24, 2017

          Theodore A. Kittila, Esquire Greenhill Law Group LLC

          Richard H. Cross, Esquire David G. Holmes, Esquire Cross & Simon LLC

         Dear Counsel:

         This letter opinion resolves Defendants' motion to dismiss this case in favor of arbitration and for lack of personal jurisdiction over Defendants Namma International Marine Services Co. Ltd., a Saudi Arabia company ("Namma"), Nesma Advanced Technology, a Saudi Arabia company ("Nesma"), and Nesma Holding Co., a Saudi Arabia company that wholly owns Namma and Nesma ("Nesma Holding").

         I. BACKGROUND

         Plaintiff Yasser Draini seeks stock certificates for-or the fair value of-(1) certain shares of stock in Naseeb Networks, Inc., a Delaware corporation, ("Naseeb") and (2) stock options to purchase Naseeb stock to which he allegedly is entitled. Draini became the CEO of Gulf Tradanet W.L.L., a Bahrain company, ("Gulf") in late 2012. At that time, Gulf had three stockholders: Namma, Al Safat Energy Holding Company KSC, a Kuwait company ("Al Safat"), and Advanced Solutions, a Saudi Arabia company.

         A. The Al Safat Block of Naseeb Shares

         In April 2012, Defendant Naseeb presented the Gulf stockholders with a letter of intent, which contemplated Naseeb's purchase of all Gulf shares in exchange for Naseeb stock. Namma and Advanced Solutions signed the letter of intent, but Al Safat was reluctant to sell its shares of Gulf in exchange for Naseeb stock. Rather, Al Safat wanted to be "bought out, " presumably for cash. After several months, Namma, Advanced Solutions, and Naseeb executed a stock purchase agreement, dated November 11, 2012. Al Safat continued to refuse to sell its Gulf shares. Draini and Ahmed Reda, the head of Advanced Solutions, allegedly agreed to purchase the Naseeb stock that Al Safat would have received in the stock purchase from Al Safat. To accomplish that goal, Draini, Reda, Al Safat, and Namma agreed to a multi-party transaction under which Namma absorbed a loss that otherwise would have fallen to Al Safat, and Draini and Reda paid cash to Namma. As a result of the proposed transaction, Al Safat would cease to be a Gulf or Naseeb stockholder, and Draini and Reda would receive Al Safat's shares of Naseeb. Reda agreed to purchase two-thirds of Al Safat's shares of Naseeb, and Draini agreed to purchase one-third of the shares-or 824, 517 shares (190, 267 of which were to be placed in escrow until certain benchmarks were met). Once the parties reached this agreement, Al Safat executed the November 11, 2012 stock purchase agreement on March 13, 2013. In April 2013, Draini paid 155, 355 Saudi Riyal (approximately $41, 428) to Namma for the Al Safat block of shares in Naseeb. But Draini never received certificates for the Naseeb shares.

         B. The Options to Purchase Naseeb Shares

         In December 2012, even though Al Safat had not yet executed the stock purchase agreement, Naseeb began to exercise control over Gulf. Naseeb sought to retain Draini as CEO, and Draini allegedly entered a stock option agreement with Naseeb on December 25, 2012. Draini also entered a revised employment agreement with Gulf, dated January 1, 2013 (the "Employment Agreement"). The Employment Agreement provided in part that "[Draini] will be entitled to stock options entitling him to purchase stock of the Company's parent entity, Naseeb Networks Inc. in accordance with the terms and conditions of a stock option agreement to be entered into between [Draini] and Naseeb Networks, Inc."[1] Draini never received the stock options to which he was allegedly entitled under the Employment Agreement.

         C. The Exit Agreement

         In late 2013, Draini resigned from his employment due to disagreements with Naseeb's CEO Monis Rahman. On December 26, 2013, Gulf and Draini entered a Resignation and Release of Claims Agreement (the "Exit Agreement"). Under the Exit Agreement, Draini resigned effective December 31, 2013, and he was entitled to receive $58, 090 in severance pay. The Exit Agreement also states that Naseeb agrees to transfer to Draini the 634, 250 non-escrowed Naseeb shares that Draini purchased from Al Safat "after completion of the share transfer formalities by the Company."[2] And the Exit Agreement states that Draini "shall be granted 158, 561 stock options as per terms of the stock option agreement ('SOA') dated 25 December 2012."[3]

         The Exit Agreement contains certain employment-related clauses. In Section 5, Draini promises to return all company property to Gulf and warrants that he has not retained any company property. In Section 6.1, the Exit Agreement incorporates by reference the non-competition, non-solicitation, and confidentiality clauses from the Employment Agreement, and Draini acknowledges that those clauses remain in effect. And in Section 6.2, the Exit Agreement contains a non-disparagement clause.

         The Exit Agreement provides that "[t]his Agreement and Release contains the entire agreement between the parties and supersedes and terminates any and all previous agreements between them."[4] It also contains an arbitration clause as follows:

You acknowledge and affirm that, in view of the nature of the business in which the Company is engaged, the restrictions and agreements contained in your Employment Agreement and carried over to this Agreement and Release are reasonable and necessary in order to protect the Company's legitimate interests, and any breach or threatened breach thereof will lead to the Company being entitled to obtain from any court of competent jurisdiction temporary, preliminary and permanent injunctive relief or any other equitable remedy, as well as damages, which rights shall be cumulative and in addition to any other rights or remedies to which it may be entitled.
Any claim or controversy arising out of or relating to this Agreement and Release shall be settled via arbitration by a sole arbitrator in accordance with the UNCITRAL Arbitration Rules as at present in force. The place of arbitration shall be Manama, Bahrain and ...

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