Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made effective as of the 1st day of March , 1999, by
and between Cybernet Internet Services International, Inc., a Delaware
corporation (the "Corporation"), and Xx. Xxxxxxxxxx Xxxxxxxxx (the "Employee").
W I T N E S S E T H:
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WHEREAS, the Employee desires to be employed by the Corporation as Chief
Operational Officer upon the terms and conditions hereinafter set forth, and the
Corporation desires that the Employee be so employed.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the parties, intending to be legally bound,
agree as follows:
I. Term of Employment. Subject to the terms and conditions of this
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Employment Agreement, the Corporation hereby employs the Employee as Chief
Operational Officer, and the Employee hereby agrees to serve the Corporation in
such capacity for the period commencing on the date hereof (the "Effective
Date") and ending on the third anniversary of the Effective Date (the
"Employment Period"), unless sooner terminated as hereinafter provided.
2. Scope of Duties. The Employee shall serve as Chief Operational Officer of
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the Corporation, subject to the direction and control of the Board of Directors
of the Corporation (the "Board"). In such capacity, the Employee shall have the
customary powers, responsibilities and authority of an officer of corporations
of the size, type, and nature of the Corporation as it exists from time to time.
The Employee shall undertake such other duties as the Board from time to time
shall reasonably designate, including, without limitation, serving as a
consultant to
affiliates of the Corporation and serving on the Board.
3. Time to be Devoted to Employment. Except during vacation periods or
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absences due to temporary illness, the Employee shall devote all of his
professional and business time, attention, and energies to his duties and
responsibilities hereunder as is reasonable to insure the Corporation's proper
conduct. In performing such services, the Employee shall use his best efforts to
promote the interests of the Corporation pursuant to and in accordance with
reasonable business policies and procedures, as fixed from time to time by the
Board. The Employee covenants and agrees that he will faithfully adhere to and
fulfill such policies, consistent with this Agreement, as are established from
time to time by the Board. Nothing contained herein shall prevent or be
construed as preventing the Employee from holding or purchasing up to five
percent (5%) of any class of stock or securities of a corporation which is
listed on a national securities exchange or regularly traded in the over-the-
counter market, or making other investments or participating in business
ventures not involving telecommunication services and solutions, provided that
such investments and business ventures do not conflict with his duties or
obligations to the Corporation as provided in this Employment Agreement.
4. Compensation. As total compensation for all services to be rendered by
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the Employee during the Employment Period, the Employee shall receive a salary
at the rate of Two Hundred Twenty-Five Thousand Deutsch Xxxx (DM 225,000) per
annum ("Base Salary"), which Base Salary shall be subject to federal, state, and
other tax withholdings, and which shall be paid monthly in arrears or on such
other basis as other employees of the Corporation generally are paid and which
shall be subject to applicable US-taxes or taxes in the Employee's country of
residence. In addition the Employee shall receive a bonus salary up to Seventy-
Five Thousend Deutsch Marks (DM 75.000) per annum ("Bonus Salary") according to
the bonus scheme (the "Bonus Salary Scheme") as approved from time to time by
the Board of Directors.
5. Fringe Benefits. The Employee shall be entitled to participate in any and
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all fringe benefits and/or plans made available to other executives of the
Corporation (to the extent
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the Employee qualifies therefor under the specific terms and conditions of each
such benefit or plan), including, without limitation, dental/medical insurance
and employee benefit plans which are or which may become available generally to
senior management of the Corporation. The Employee shall be entitled to 30
working days vacation during each year of the Employment Period, to be taken at
such time or times as the reasonable needs of the Corporation's business shall
allow.
6. Reimbursement of Expenses. The Corporation shall reimburse the Employee
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for all reasonable expenses incurred in connection with the promotion of the
business of the Corporation, including expenses for travel, entertainment, and
similar expenses incurred by the Employee on the Corporation's behalf; provided,
however, no such reimbursement shall be made except upon the presentation by the
Employee of an itemized account or other evidence of those expenses for which
reimbursement then is being sought, all in form reasonably satisfactory to the
Corporation.
7. Termination of Employment. The Employee's employment shall terminate upon
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the Employee's resignation or death, and may be terminated by the Board on
account of the Employee's Disability (as defined below) or for Cause (as defined
below).
(a) If the Employee dies during the term of his employment hereunder,
the Corporation shall be obligated to pay to the Employee's estate all earned
but unpaid Base Salary through the date of his death and for a period of twelve
months after his death.
(b) If the Employee shall become physically or mentally disabled
("Disability") during the term of this Employment Agreement such that (i) in the
Board's good faith judgement, he is permanently incapable of properly performing
each of the duties customarily performed by him hereunder, or (ii) such
Disability lasts for a period of 60 consecutive days or for 90 days in any six-
month period and the Corporation elects to treat such Disability as being
permanent in nature, then the Corporation shall be obligated to pay to the
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Employee all earned but unpaid Base Salary due to the Employee hereunder through
the date of such termination.
(c) If the Employee is terminated for Cause or the Employee resigns,
the Employee shall be entitled to receive only his Base Salary through the date
of termination.
(d) As used herein, "Cause" shall mean:
i) the willful failure by the Employee to substantially
perform his duties hereunder (including, without limitation,
the Employee's refusal to carry out the directives of the
Board provided that such directives do not offend against a
law), for reasons other than death or disability;
ii) a material breach of this Employment Agreement by the
Employee (including, without limitation, the breach of any
provision of Sections 8 and/or 9 hereof);
iii) the willful engaging by the Employee in misconduct
materially injurious to the Corporation;
iv) a breach of the Employee's duty of loyalty to the
Corporation or any act of dishonesty or fraud with respect
to the Corporation; or
v) the commission of a felony, a crime involving moral
turpitude or other act causing material harm to the
Corporation's standing and reputation.
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8. Disclosure of Information.
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(a) All memoranda, notes, records, and other documents made or compiled
by the Employee or made available to him during the term of his employment
concerning the business of the Corporation or any affiliate of the Corporation
(for purposes of this Section 8, the "Corporation"), shall be the Corporation's
property and shall be delivered to the Corporation on the termination of the
Employee's employment. The Employee shall not use for himself or others, or
divulge to others, any proprietary or confidential information of the
Corporation obtained by him as a result of his employment, unless authorized by
the Corporation. For purposes of this Section 8, the term "proprietary or
confidential information" shall mean all information which is known only to the
Employee or to the Employee and the employees, former employees, consultants, or
others in a confidential relationship with the Corporation, and relates to
specific matters such as trade secrets, customers, potential customers, vendor
lists, pricing and credit techniques, research and development activities,
private processes, business plans, technical information, books and records, and
any other information which the Corporation is obligated to keep confidential
pursuant to the Corporation's contractual obligations to third parties, as they
may exist from time to time, which the Employee may have acquired or obtained by
virtue of work heretofore or hereafter performed for or on behalf of the
Corporation, or which he may acquire or may have acquired knowledge of during
the performance of said work, and which is not in the public domain.
(b) In the event of a breach or a threatened breach by the Employee of
the provisions of this Section 8, the Corporation shall be entitled to an
injunction, without being required to post any bond, restraining the Employee
from disclosing, in whole or in part, the aforementioned proprietary or
confidential information of the Corporation, or from rendering any services to
any person, firm, corporation, association, or other entity to whom such
proprietary or confidential information, in whole or in part, has been disclosed
or is threatened to be disclosed. Nothing contained herein shall be construed as
prohibiting the Corporation from pursuing any other remedies available to the
Corporation for such breach or threatened breach,
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including the recovery of damages from the Employee.
9. Restrictive Covenants.
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(a) In light of the unique and valuable services it is expected the
Employee will render to the Corporation, the Employee's knowledge of the
business of the Corporation and proprietary information relating to the business
of the Corporation and similar knowledge regarding the Corporation it is
expected the Employee will obtain during the course of his employment with the
Corporation, and in consideration of this Agreement and the compensation to be
received by the Employee hereunder, the Employee agrees that for so long as he
is employed by the Corporation and for a period of one year thereafter (the
"Covenant Period"), he will not compete, directly or indirectly, with the
Corporation or any of its subsidiaries now owned or hereafter acquired (for
purposes of this Section 9, the "Corporation") or, directly or indirectly
(except as permitted by Section 3 hereof), own, manage, operate, control, loan
money to, or participate in the ownership, management, operation or control of,
or be connected with as a director, officer, employee, partner, consultant,
agent, independent contractor or otherwise, or acquiesce in the use of his name
in, any other business or organization which competes, directly or indirectly,
with the Corporation, in any geographical area in which the Corporation is then
conducting business or any geographical area in which, to the knowledge of the
Employee, the Corporation plans to conduct business within a six (6) month
period.
(b) During the Covenant Period, the Employee will not, directly or
indirectly, either individually or on behalf of any other person or entity (i)
solicit customers, suppliers, or other business relations of the Corporation for
the purpose of interfering with or encouraging them to terminate their
relationship with the Corporation, or (ii) encourage other employees (full-time
or part-time) of the Corporation to terminate their employment with the
Corporation.
(c) It is acknowledged and agreed that the restrictions contained in
this Section 9, including, without limitation, the time periods and the
geographical areas of the
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restrictions, are fair and reasonable and do not place any undue hardship on the
Employee, and are reasonably required for the protection of the goodwill, the
business, and the interests of the Corporation and its officers, directors, and
other employees.
(d) It is the desire and intent of the parties that the provisions of
this Section 9 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular provision of this Section 9 shall be
adjudicated to be invalid or unenforceable, such provision shall be deemed
amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable. Such deletion shall apply only with respect to the operation of
such provisions of this Section 9 in the particular jurisdiction in which such
adjudication is made. In addition, if the scope of any restriction contained in
this Section 9 is too broad to permit enforcement thereof to its fullest extent,
then such restriction shall be enforced to the maximum extent permitted by law,
and the Employee hereby consents and agrees that such scope may be judicially
modified in any proceeding brought to enforce such restriction.
(e) In the event of a breach or threatened breach by the Employee of
the provisions of this Section 9, the Corporation shall be entitled to an
injunction and such other equitable relief as may be necessary or desirable to
enforce the restrictions contained herein. Nothing herein contained shall be
construed as prohibiting the Corporation from pursuing any other remedies
available for such breach or threatened breach or any other breach of this
Employment Agreement.
10. Representations.
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(a) The Employee represents and warrants to the Corporation that (i)
the execution, delivery and performance of this Employment Agreement by the
Employee does not and will not conflict with, breach, violate or cause a default
under any contract, agreement, instrument, order, judgment or decree to which
the Employee is a party or by which he is
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bound, (ii) the Employee is not a party to or bound by any employment agreement,
non-compete agreement or confidentiality agreement with any other person or
entity, and (iii) upon the execution and delivery of this Employment Agreement
by the Employee, this Employment Agreement shall be the valid and binding
obligation of the Employee, enforceable against him in accordance with its
terms.
(b) The Corporation represents and warrants to the Employee that (i)
the execution, delivery, and performance of this Employment Agreement by the
Corporation does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Corporation is a party or by which he is bound, and (ii) upon the
execution and delivery of this Employment Agreement by the Corporation, this
Employment Agreement shall be the valid and binding obligation of the
Corporation, enforceable against it in accordance with its terms.
11. Miscellaneous.
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(a) Notices. All notices required or permitted to be given under the
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provisions of this Employment Agreement shall be in writing and delivered
personally or by certified or registered mail, return receipt requested, postage
prepaid, to the following persons at the following addresses, or to such other
persons at such other addresses as any party may request by notice in writing to
the other party to this Employment Agreement.
If to the Employee:
Xx. Xxxxxxxxxx Xxxxxxxxx
Am Lohholz 3
85614 Kirchseeon
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If to the Corporation:
Cybernet Internet Services International, Inc.
Xxxxxx-Xxxxxx-Xxxx 00-00
00000 Xxxxxx, Xxxxxxx
(x) Successors and Assigns. This Employment Agreement shall be binding
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upon the successors and assigns of the Corporation, and shall inure to the
benefit of and be enforceable by and against its successors and assigns. This
Employment Agreement is personal in nature and may not be assigned or
transferred by the Employee without the prior written consent of the
Corporation.
(c) Entire Agreement. This instrument contains the entire understanding
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and agreement between the parties relating to the subject matter hereof, and
neither this Employment Agreement nor any provision hereof may be waived,
modified, amended, changed, discharged, or terminated, except by an agreement in
writing signed by the party against whom enforcement of any waiver,
modification, change, amendment, discharge, or termination is sought.
(d) Counterparts. This Employment Agreement may be executed
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simultaneously in counterparts, each of which shall be deemed an original, and
all of which counterparts shall together constitute a single agreement.
(e) Illegality. If any one or more of the provisions of this Employment
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Agreement shall be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
(f) Captions. The captions of the sections hereof are for convenience
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only
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and shall not control or affect the meaning or construction of any of the terms
or provisions of this Employment Agreement.
(g) Governing Law. This Employment Agreement shall be governed by and
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construed in accordance with the laws of the Federal Republic of Germany,
without giving any effect to any doctrine pertaining to the conflict of laws.
The parties hereto irrevocably (i) submit to the jurisdiction of any German
state or federal court in any action or proceeding arising out of or relating to
this Employment Agreement, (ii) agree that all claims with respect to such
action or proceeding shall be heard and determined in such a German state or
federal court, and (iii) waive, to the fullest extent possible, the defense of
an inconvenient forum. The parties hereby consent to and grant any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
11 hereof or in such other manner as may be permitted by law, shall be valid and
sufficient service thereof.
IN WITNESS WHEREOF, the parties hereto have set their hands and executed this
Employment Agreement on the day and year first above written.
CYBERNET INTERNET SERVICES INTERNATIONAL INC.
By: /s/ Xxxxxxx Xxxx
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President and Chief Executive Officer
/s/ Xxxxxxxxxx Xxxxxxxxx
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Xxxxxxxxxx Xxxxxxxxx
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