EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into as of this 1st
day of July, 1999 (the "Effective Date"), by and between Yupi Internet Inc., a
Florida corporation (the "Company"), and Xxxxxxx Xxxxxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to be employed by the Company, on the terms and conditions set forth
herein; and
WHEREAS, the board of directors of the Company (the "Board") has
approved and authorized the entry into this Agreement with the Executive.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT AGREEMENT. On the terms and conditions set forth in this
Agreement, the Company agrees to employ the Executive and the Executive agrees
to be employed by the Company for the Employment Term set forth in Section 2
hereof and in the position and with the duties set forth in Section 3 hereof.
Terms used herein with initial capitalization are defined in Section 21 below.
2. TERM. The initial term of employment under this Agreement shall be
for a three-year period commencing on the Effective Date (the "Initial Term").
This Agreement shall not be deemed to be renewed beyond the Initial Term unless
the parties hereto enter into a separate, written renewal agreement (the
"Extended Term"). In the absence of such a renewal agreement, if the Executive's
employment continues beyond the Initial Term, and any Extended Terms, if any,
such employment shall be terminable at-will, and, in such case, either the
Executive or the Company may terminate the Executive's employment at any time
and for any reason or no reason, with two (2) weeks prior notice. Such Initial
Term and all such Extended Terms are collectively referred to herein as the
"Employment Term." The parties' obligations under Sections 7, 9 and 10 hereof
shall survive the expiration or termination of the Employment Term.
3. POSITION AND DUTIES. The Executive shall serve as Executive Vice
President and Managing Director of the Company during the Employment Term. As
the Executive Vice President and Managing Director of the Company, the Executive
shall render executive, policy and other management services to the Company of
the type customarily performed by persons serving in a similar officer capacity.
The Executive shall report to the Chief Executive Officer of the Company. During
the Employment Term, there shall be no material change in the duties and
responsibilities of the Executive from those previously in effect, other than as
provided herein, unless the parties otherwise agree in writing. The Executive
shall devote the Executive's reasonable best efforts and substantially full
business time to the performance of the Executive's duties and the advancement
of the business and affairs of the Company.
4. PLACE OF PERFORMANCE. In connection with the Executive's employment
by the Company, the Executive shall be based at the principal executive offices
of the Company, except as otherwise agreed by the Executive and the Company and
except for reasonable travel on Company business. If the Executive is required
to relocate his place of employment to a location more than 50 miles from its
location as of the date of this Agreement, the Company shall pay or reimburse
the Executive for the reasonable moving and relocation expenses incurred by him
to establish a personal residence at the new location, including reasonable
traveling and temporary living expenses.
5. COMPENSATION.
(a) BASE SALARY. During the Employment Term, the Company shall
pay to the Executive an annual base salary (the "Base Salary"), which initially
shall be at the rate of $143,000 per year. The Base Salary shall be reviewed no
less frequently than annually and may be increased at the discretion of the
Board or the Compensation Committee of the Board. If the Executive's Base Salary
is increased, the increased amount shall be the Base Salary for the remainder of
the Employment Term. Except as otherwise agreed in writing by the Executive, the
Base Salary shall not be reduced from the amount previously in effect during the
Employment Term. The Base Salary shall be payable bi-weekly or in such other
installments as shall be consistent with the Company's payroll procedures, as
such procedures shall be established or modified from time to time.
(b) BONUS. During the Employment Term, the Executive may also
be eligible to earn an annual bonus pursuant to a bonus plan adopted by the
Board or the Compensation Committee of the Board, for each fiscal year.
(c) BENEFITS. During the Employment Term, the Executive will
be eligible to participate in the Company's standard benefit plans to the same
extent as, and subject to the same terms, conditions and limitations applicable
to other employees of the Company of similar rank and tenure. Nothing contained
in this Agreement shall prevent the Company from amending or terminating any
employee benefit plan or program at any time in any manner or from changing
carriers or from effecting modifications in insurance coverage for the
Executive.
(d) VACATION; HOLIDAYS. The Executive shall be entitled to all
public holidays observed by the Company and vacation days in accordance with the
applicable vacation policies for senior executives of the Company, which shall
be taken at a reasonable time or times.
(e) WITHHOLDING TAXES AND OTHER DEDUCTIONS. To the extent
required by law, the Company shall withhold from any payments due the Executive
under this Agreement any applicable federal, state or local taxes and such other
deductions as are prescribed by law or Company policy.
6. EXPENSES. The Executive is expected and is authorized to incur
reasonable expenses in the performance of his duties hereunder, including the
costs of entertainment, travel, and similar business expenses incurred in the
performance of his duties. The Company shall reimburse the Executive for all
such expenses promptly upon periodic presentation by the
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Executive of an itemized account of such expenses in accordance with the
Company's policy relating to such reimbursement.
7. CONFIDENTIALITY; WORK PRODUCT.
(a) CONFIDENTIAL INFORMATION. "Confidential Information" means
any data, materials or information that is not generally known to the public and
that is owned or possessed by Company whether in oral, written, digital or other
form. Confidential Information includes, but is not limited to: information
concerning Company's customers/principals, prospective customers, vendors,
suppliers, employees, independent contractors or entities with whom Company does
business; Company's business practices, methods of operation, processes,
know-how, strategies or plans; Company's, assets, costs of goods, liabilities,
debt, accounts payable and expenses; Company's systems; Company's internal
organization structure; Company's revenue, profits, accounts receivable or
losses; and other information satisfying the above criteria.
(b) EXCLUDED FROM CONFIDENTIAL INFORMATION. Confidential
Information does not include information which Executive can demonstrate: (i) is
widely available to the public with little effort and at a relatively low cost;
(ii) is known to Executive prior to disclosure by Company, as evidenced by
Executive's disclosure of such prior knowledge on Exhibit A, or (iii) was
rightfully disclosed to Executive by a third party without any breach of an
obligation of confidentiality.
(c) TRADE SECRETS. "Trade Secret" means information, without
regard to form, including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a list of
actual or potential customers or suppliers which is not commonly known by or
available to the public and which information: (A) Derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (B) Is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. Trade Secrets
specifically include any Confidential Information satisfying the criteria in
this Section. Furthermore, Trade Secret includes, but is not limited to,
information satisfying the above criteria that is specifically designated by
Company to be a Trade Secret.
(d) NONDISCLOSURE OF CONFIDENTIAL INFORMATION. During the
effectiveness of this Agreement and for a period of ten (10) years after the
cancellation, expiration or termination of this Agreement for any reason,
Executive will not use, copy, or disclose to any third party, or permit any
unauthorized person access to, Company's Confidential Information, except for
the benefit of the Company as necessary for Executive to perform Executive's
duties as an employee of the Company.
(e) NONDISCLOSURE OF TRADE SECRETS. During the effectiveness
of this Agreement, and indefinitely thereafter (unless trade secrecy status is
lost), Executive will not, except as otherwise expressly directed by Company,
use, copy, or disclose to any third party, or permit any unauthorized person
access to, Company's Trade Secrets, except for the benefit of
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Company as necessary for Executive to perform Executive's duties as an employee
of the Company.
(f) PROTECTION OF CONFIDENTIAL INFORMATION AND TRADE SECRETS.
Executive shall use confidentiality agreements as appropriate to protect Company
Confidential Information and Trade Secrets. Executive shall notify Company as
soon as possible in the event that Executive is ordered to disclose Confidential
Information or Trade Secrets, and Executive shall resist any such order to the
maximum extent allowed by law. If such resistance is or may be unsuccessful,
Executive shall request a protective order to minimize disclosure of
Confidential Information and Trade Secrets.
(g) RESERVATION OF RIGHTS. Executive agrees that all
Confidential Information or Trade Secrets are the exclusive property of Company
and all rights not expressly granted to Executive in this Agreement are hereby
reserved to Company. This Section does not limit any rights provided Company for
Confidential Information and Trade Secrets under federal, state or other law.
(h) PROTECTED WORKS. As used herein, "Protected Works" means
all ideas, inventions, formulas, source and object codes, techniques, processes,
methods of operation, concepts, systems, programs, software, hardware systems,
schematics, flow charts, computer data bases, client lists, trademarks, service
marks, brand names, trade names, compilations, data, documents, notes, designs,
drawings, technical data and/or training materials, including improvements
thereto or derivatives therefrom, whether or not patentable or subject to
copyright or trademark or trade secret protection, developed and produced by
Executive either (1) in connection with Executive employment with Company or (2)
using resources, materials, facilities, Confidential Information, Trade Secrets
or other property of Company.
(i) OWNERSHIP AND ASSIGNMENT OF PROTECTED WORKS. Executive
agrees that any Protected Works developed by Executive during Executive's
employment are the sole property of Company, and that no compensation other than
that set forth in this Agreement is due to Executive for development of such
Protected Works. Executive hereby assigns and agrees to assign all of
Executive's respective rights, title and interest in Protected Works, including
all patents or patent applications, and all copyrights therein, to Company.
Executive agrees, at Company's request and expense, but without further
consideration, that Executive will communicate to Company any facts known to
Executive and testify in any legal proceedings, sign all lawful papers, make all
rightful oaths, execute all divisional, continuing, continuation-in-part, or
reissue applications, all assignments, all registration applications and all
other instruments or papers to carry into full force and effect, the assignment,
transfer and conveyance hereby made or intended to be made and generally do
everything possible for title to Protected Works and all patents or copyrights
or trademarks or service marks therein to be exclusively held by Company.
Executive agrees not to apply for any state, federal, or other jurisdiction's
registration of rights in any Protected Works and that Executive will not oppose
in any way applications for registration of same by Company or its designees.
Executive agrees to avoid making Protected Works available to a third party and
agrees that Executive will be liable to Company for all damages and costs,
including reasonable attorneys' fees, if Protected Works are made available to
third parties by Executive without Company's express written consent.
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(j) RIGHTS TO COMPANY MEDIA. All records, files, software,
hardware, equipment, software code, schematics, manuals, training materials,
price or customer lists, drawings, plans, documents, and other tangible things
(and all copies thereof) ("Company Media") relating to the business of Company,
that are provided or made available to Executive by Company or that are
discovered, obtained or created by Executive as a result of Executive's
employment, will, as between Company and Executive, remain the sole property of
Company. Upon Executive's termination for any reason, or upon a demand by
Company, Executive will return all Company Media, including all reproductions,
to Company immediately. Company Media includes, but is not limited to, media
upon which Protected Works, Confidential Information or Trade Secrets resides.
(k) INVENTIONS, DISCOVERIES AND IMPROVEMENTS.
(i) Executive will promptly disclose and describe to Company
all inventions, improvements, discoveries and technical developments, whether or
not patentable, made or conceived by Executive, either alone or with others,
either (i) during Executive's employment, or (ii) if based in whole or in part
upon Confidential Information of Company, within one (1) year after Executive's
termination (both categories collectively referred to hereafter as
"Inventions"). All such Inventions that relate in any way to Company's business
("Company Inventions") will be used solely for the benefit of Company and will
become and remain its sole property. Executive agrees to execute an assignment
to Company or its nominee of Executive's entire right, title and interest in and
to such Company Inventions and to execute any other instruments and documents
that may be requested by Company for the purpose of applying for and obtaining
patents with respect to such Company Inventions in the United States and in all
foreign countries. Executive also agrees, whether or not in the employ of
Company, to cooperate to the extent and in the manner reasonably requested by
Company in the prosecution or defense of any patent claims or any litigation or
other proceeding involving any such Company Inventions, but all of Executive's
reasonable expenses in connection with such proceedings will be paid by Company.
(ii) If a patent application or copyright registration is
filed by or on behalf of Executive within one (1) year after Executive's
termination, that describes an Invention within the scope of Executive's work
for Company or that otherwise relates to a portion of Company's business of
which Executive had knowledge during Executive's employment, it is to be
presumed that the Invention was conceived by Executive during such employment.
(iii) Executive acknowledges that Executive is under no other
contract or duty to assign inventions. Executive will not disclose or induce
Company to use any confidential information or material that belongs to anyone
other than Company.
(iv) Executive warrants that attached hereto as Exhibit A and
incorporated in this Agreement by reference is a complete list of all Inventions
and Protected Works, regardless of ownership, conceived by Executive prior to
Executive's employment by Company, that these are the only inventions that are
not subject to this Agreement, and that Executive has not conceived or reduced
to practice any invention not described on Exhibit A.
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(l) WORKS MADE FOR HIRE. Company and Executive acknowledge
that, in the course of Executive's employment, Executive may create for Company
copyrightable works. Such works may consist of (but shall not be limited to)
computer programs, software, software integration techniques, software codes,
technical data, manuals, pamphlets, instructional materials, photographs,
drawings, logos, designs, artwork or other copyrightable material, or portions
thereof, and may be created within or without Company's facilities and before,
during or after normal business hours. All such works related to or useful in
the business of Company are specifically intended to be works made for hire by
Executive, and Executive will cooperate with Company in the protection of
Company's copyrights in such works and, to the extent deemed desirable by
Company, the registration of such copyrights.
(m) NO BREACH OF PRIOR AGREEMENT Executive represents that his
performance of all the terms of this Agreement and his duties as an employee of
the Company will not breach any invention assignment, proprietary information or
similar Agreement with any former employer or other party. Executive also
represents that he will not use in the performance of his duties for the Company
any documents or materials of a former employer which violates such former
employer's rights.
(n) POWER OF ATTORNEY. In the event the Company is unable,
after reasonable effort to secure employee's signature on any letters patent,
copyright or other analogous protection relating to Work Product or any other
item described in this Section 7, whether because of Executive's physical or
mental incapacity or for any reason whatsoever, Executive hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents
as Executive's agent and attorney-in-fact to act for and on the Executive's
behalf and stead, to execute and file any such application or applications or
any other item described in this Section 7, and to do all other lawful acts to
further the prosecution and issuances of letters, patent, copyright, or other
analogous protection relating to a Work Product with the same legal force and
effect as if by the Executive.
8. TERMINATION OF EMPLOYMENT.
(a) PERMITTED TERMINATIONS. The Executive's employment
hereunder may be terminated during the Employment Term without any breach of
this Agreement under the following circumstances:
(i) DEATH. The Executive's employment hereunder shall
terminate upon the Executive's death;
(ii) BY THE COMPANY. The Company may terminate the
Executive's employment:
(A) If the Executive shall have been unable
to perform the essential functions of Executive's job, with or without
reasonable accommodation, by reason of illness, physical or mental disability or
other similar incapacity, which inability shall continue for three (3)
consecutive months, or six month within any eighteen (18) month period;
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(B) With Cause;
(C) Without Cause; or
(D) Upon a Change of Control.
(iii) BY THE EXECUTIVE. The Executive may terminate
employment:
(A) For Good Reason; or
(B) Without Good Reason.
(b) TERMINATION. Any termination of the Executive's employment
by the Company or the Executive (other than because of the Executive's death)
shall be communicated by written Notice of Termination to the other party hereto
in accordance with Section 11 hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon, if any, and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
9. COMPENSATION UPON TERMINATION.
(a) DEATH. If the Executive's employment is terminated during
the Employment Term as a result of the Executive's death, the Company shall pay
to the Executive's estate, or as may be directed by the legal representatives of
such estate, six (6) months' salary continuation at the Executive's full Base
Salary rate as of the Executive's final day of employment, and all other unpaid
amounts, if any, under this Agreement, to which the Executive is entitled as of
the Executive's final day of employment. The Company shall have no further
obligations to the Executive under this Agreement. The salary continuation shall
be subject to all applicable federal, state and local withholdings, payroll or
other taxes. Such payments shall be made in accordance with the Company's normal
payroll procedures as such procedures shall be established or modified from time
to time.
(b) DISABILITY. If the Company terminates the Executive's
employment during the Employment Term pursuant to Section 8(a)(ii)(A) hereof,
the Company shall pay the Executive one (1) month's salary continuation at the
Executive's full Base Salary rate as of the Executive's final day of employment,
and all other unpaid amounts, if any, under this Agreement, to which the
Executive is entitled as of the Executive's final day of employment, and, if the
Executive elects to continue medical and/or dental insurance coverage after
termination of the Executive's employment with the Company pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, if such Act is
applicable, the Company agrees to pay the Executive's monthly premium payments
for a period of one (1) month from the Executive's final day of employment with
the Company or until the Executive obtains other employment which provides
substantially similar benefits and the Executive becomes eligible to participate
in the new employer's medical and/or dental plan, whichever occurs first. The
Company shall have no further obligations to the Executive under this Agreement.
The salary
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continuation shall be subject to all applicable federal, state and local
withholdings, payroll or other taxes. Such payments shall be made in accordance
with the Company's normal payroll procedures as such procedures shall be
established or modified from time to time.
(c) BY THE COMPANY WITH CAUSE OR BY THE EXECUTIVE WITHOUT GOOD
REASON. If the Company terminates the Executive's employment during the
Employment Term for Cause pursuant to Section 8(a)(ii)(B) hereof or if the
Executive voluntarily terminates the Executive's employment during the
Employment Term other than for Good Reason, the Executive shall not be entitled
to any further payments, severance or other benefits under this Agreement beyond
the Executive's final day of employment. If the Executive terminates employment
other than for Good Reason, the Executive shall be required to give written
notice of at least six (6) months. The Company may, in its sole discretion,
accelerate the Executive's final day of employment.
(d) BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE FOR GOOD
REASON. If the Company terminates the Executive's employment during the
Employment Term other than for death, disability or Cause pursuant to Section
8(a)(i), 8(a)(ii)(A) or Section 8(a)(ii)(B) hereof, or the Executive terminates
his employment during the Employment Term for Good Reason pursuant to Section
8(a)(iii)(A) hereof, and if the Executive signs a comprehensive release in the
form and scope acceptable to the Company, the Company shall pay the Executive
one (1) year's salary continuation at the Executive's full Base Salary rate as
of the Executive's final day of employment, and all other unpaid amounts, if
any, under this Agreement, to which Executive is entitled as of the Executive's
final day of employment. In addition, if the Executive elects to continue
medical and/or dental insurance coverage after termination of the Executive's
employment with the Company pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985, if such Act is applicable, the Company agrees to pay
the Executive's monthly premium payments for a period of twelve (12) months from
the Executive's final day of employment with the Company or until the Executive
obtains other employment which provides substantially similar benefits and the
Executive becomes eligible to participate in the new employer's medical and/or
dental plan, whichever occurs first. The salary continuation shall be subject to
all applicable federal, state and local withholdings, payroll or other taxes.
Such payments shall be made in accordance with the Company's normal payroll
procedures as such procedures shall be established or modified from time to
time.
(e) CHANGE OF CONTROL. If the Executive's employment is
terminated by the Company in anticipation of, in connection with or within one
year after the date of a Change of Control, the Company shall pay the Executive
(in lieu of any other salary continuation rights of the Executive hereunder) one
(1) year's salary continuation at the Executive's Base Salary rate as of the
Executive's final day of employment and all other unpaid amounts, if any, under
this Agreement, to which the Executive is entitled as of the Executive's final
day of employment. In addition, if the Executive elects to continue medical
and/or dental insurance coverage after termination of the Executive's employment
with the Company pursuant to the Consolidated Omnibus Budget Reconciliation Act
of 1985, if such Act is applicable, the Company agrees to pay the Executive's
monthly premium payments for a period of twelve (12) months from the Executive's
final day of employment with the Company or until the Executive obtains other
employment which provides substantially similar benefits and the executive
becomes eligible to participate in the new employer's medical and/or dental
plan, whichever occurs first. The salary
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continuation shall be subject to all applicable federal, state and local
withholdings, payroll or other taxes. Such payments shall be made in accordance
with the Company's normal payroll procedures as such procedures shall be
established or modified from time to time. The Company shall have no further
obligations to the Executive under this Agreement.
(f) PARACHUTE LIMITATIONS. Notwithstanding any other provision
of this Agreement or of any other agreement, contract or understanding
heretofore or hereafter entered into by the Executive with the Company or any
subsidiary or affiliate thereof, except an agreement, contract or understanding
hereafter entered into that expressly modifies or excludes application of this
Section 9(f) (the "Other Agreements"), and notwithstanding any formal or
informal plan or other arrangement heretofore or hereafter adopted by the
Company (or any subsidiary or affiliate thereof) for the direct or indirect
compensation of the Executive (including groups or classes of participants or
beneficiaries of which the Executive is a member), whether or not such
compensation is deferred, is in cash, or is in the form of a benefit to or for
the Executive (a "Benefit Plan"), if the Executive is a "disqualified
individual" (as defined in Section 280G(c) of the Internal Revenue Code of 1986,
as amended (the "Code")), the Executive shall not have any right to receive any
payment or benefit under this Agreement, any Other Agreement or any Benefit Plan
(i) to the extent that such payment or benefit, taking into account all other
rights, payments or benefits to or for the Executive under this Agreement, all
Other Agreements and all Benefit Plans, would cause any payment or benefit to
the Executive under this Agreement, any Other Agreement or any Benefit Plan to
be considered a "parachute payment" within the meaning of Section 280G(b)(2) of
the Code as then in effect (a "Parachute Payment") and (ii) if, as a result of
receiving a Parachute Payment, the aggregate after-tax amount received by the
Executive under this Agreement, all Other Agreements and all Benefit Plans would
be less than the maximum after-tax amount that could be received by the
Executive without causing any such payment or benefit to be considered a
Parachute Payment. In the event that the receipt of any such payment or benefit
under this Agreement, any other Agreement or any Benefit Plan would cause the
Executive to be considered to have received a Parachute Payment that would have
the adverse after-tax effect described in clause (ii) of the preceding sentence,
then the Executive shall have the right, in the Executive's sole discretion, to
designate those rights, payments or benefits under this Agreement, any Other
Agreements and any Benefit Plan that should be reduced or eliminated so as to
avoid having the payment or benefit to the Executive under this Agreement be
deemed to be a Parachute Payment.
(g) MITIGATION. The Company's obligation to continue to
provide the Executive with insurance benefits pursuant to Sections 9(b), (d) and
(e) above shall cease if the Executive becomes eligible to participate in
benefits substantially similar to those provided under this Agreement as a
result of the Executive's subsequent employment.
10. NONCOMPETITION AND NONSOLICITATION.
(a) NONCOMPETITION. The Executive acknowledges that in the
course of his employment with the Company and/or its subsidiaries and/or their
predecessors, he has and will become familiar with the trade secrets of, and
other valuable confidential and proprietary information concerning, the Company
and/or its subsidiaries and/or their predecessors.
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Therefore, and in consideration of his continued employment and other good and
valuable consideration, and in further consideration of certain rights of
acceleration of certain stock options upon a change of control of the Company if
and to the extent set forth in separate stock option agreements, the Executive
agrees that during the Executive's employment by the Company and for the longer
of:
(i) a period of four (4) months after the termination
of Executive's employment by the Company for any reason, or
(ii) during any time in which the Company is making
any payments to the Executive under this Agreement,
Executive shall not alone or as a partner, joint venturer, consultant, officer,
director, employee, agent, marketing representative, distributor, independent
contractor, stockholder or equity holder of any company or business
organization, directly or indirectly, engage in any business activity (other
than participation in mutual funds), and/or accept employment with any person or
entity, which is in competition with the services or products developed or being
developed, planned, drafted, manufactured, marketed, distributed, sold, licensed
or otherwise provided by the Company and/or its subsidiaries, in any state,
county or country in which the Company and/or its subsidiaries do business.
(b) NONSOLICITATION. During the Employment Term and for one
year following the Executive's final day of employment, the Executive shall not
directly or indirectly (i) induce or attempt to induce any employee of the
Company or any subsidiary to leave the employ of the Company or such subsidiary,
or in any way willfully interfere with the relationship between the Company or
any subsidiary and any employee thereof, (ii) induce or attempt to induce any
customer, supplier, licensee or other business relation of the Company or any
subsidiary to cease doing business with the Company or such subsidiary, or in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any subsidiary, or (iii)
initiate or engage in any discussions regarding an acquisition of, or the
Executive's employment (whether as an Executive, an independent contractor or
otherwise) by, any businesses with which the Company or any of its subsidiaries
has entertained discussions or has requested and received information relating
to the acquisition of such business by the Company or its subsidiaries upon or
within the 18-month period prior to the Executive's final day of employment.
(c) ENFORCEMENT. If a court finds that the restrictions stated
herein are unreasonable under circumstances then existing, the parties hereto
agree that the maximum duration, scope or geographical area reasonable under
such circumstances shall be substituted for the stated period, scope or area and
that the court shall be allowed to revise the restrictions contained herein to
cover the maximum duration, scope and area permitted by law. The Executive
understands and agrees that his services are unique, that he has access to trade
secrets, valuable confidential and professional information, and that he has or
will have substantial relationships with prospective and existing customers, and
thus the Company has legitimate business interests which justify the
restrictions set forth in this Section 10. The parties hereto agree that money
damages would be an inadequate remedy for any breach of any provision of
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this Agreement. Therefore, in the event of a breach or threatened breach by the
Executive of any provision of this Agreement, the Company may, in addition to
other rights and remedies existing in its favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce, or prevent any violations of, the provisions hereof (without posting
a bond or other security). Executive agrees and understands that the existence
of any claim or cause of action that he may have against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a valid defense
to the enforcement of the restrictive covenants contained in Paragraphs 7 and 10
of this Agreement. Furthermore Executive understands that the rights and
remedies provided for in this Agreement are cumulative and will be in addition
to any rights and remedies otherwise available to the Company under applicable
law.
11. NOTICES. All notices, demands, requests or other communications
required or permitted to be given or made hereunder shall be in writing and
shall be delivered, telecopied or mailed by first class registered or certified
mail, postage prepaid, addressed as follows:
(a) If to the Company: Yupi Internet Inc.
0000 Xxxxxxxx Xxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Fax #: (000)000-0000
Attention: Chief Executive Officer
(b) If to the Executive: Xxxxxxx Xxxxxxx
0000 Xxxx Xxx. XX0
Xxxxx Xxxxx, XX 00000
or to such other address as may be designated by either party in a notice to the
other. Each notice, demand, request or other communication that shall be given
or made in the manner described above shall be deemed sufficiently given or made
for all purposes three days after it is deposited in the U.S. mail, postage
prepaid, or at such time as it is delivered to the addressee (with the return
receipt, the delivery receipt, the answer back or affidavit of messenger being
deemed conclusive evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation, and given or made by telecopy, then
on the date of confirmed electronic receipt.
12. SEVERABILITY. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
the other provisions of this Agreement, which shall remain in full force and
effect.
13. SURVIVAL. It is the express intention and agreement of the parties
hereto that the provisions of Sections 7, 9 and 10 hereof shall survive the
termination of employment of the Executive. In addition, all obligations of the
Company to make payments hereunder shall survive any termination of this
Agreement on the terms and conditions set forth herein.
14. ASSIGNMENT. The rights and obligations of the parties to this
Agreement shall not be assignable or delegable, except that (i) in the event of
the Executive's death, the personal
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representative or legatees or distributees of the Executive's estate, as the
case may be, shall have the right to receive any amount owing and unpaid to the
Executive hereunder; and (ii) the rights and obligations of the Company
hereunder shall be assignable and delegable in connection with any subsequent
merger, consolidation, sale of all or substantially all of the assets of the
Company or similar reorganization of a successor corporation.
15. BINDING EFFECT. Subject to any provisions hereof restricting
assignment, this Agreement shall be binding upon the parties hereto and shall
inure to the benefit of all parties and their respective heirs, devisees,
executors, administrators, legal representatives, successors and assigns.
16. AMENDMENT; WAIVER. This Agreement shall not be amended, altered or
modified except by an instrument in writing duly executed by the parties hereto.
Neither the waiver by either of the parties hereto of a breach of or a default
under any of the provisions of this Agreement, nor the failure of either of the
parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall thereafter be
construed as a waiver of any subsequent breach or default of a similar nature,
or as a waiver of any such provisions, rights or privileges hereunder.
17. HEADINGS. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
18. GOVERNING LAW. This Agreement, the employment relationship
contemplated herein, the rights and obligations of the parties hereto, and any
claims or disputes relating thereto, shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to the
principles of conflicts of laws of such state.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties as to its subject matter and supersedes any formal or
informal prior agreements or understandings between the parties as to the
subject matter hereof, including any employment agreement and/or compliance
agreement (except that this Section 19 shall not effect any of the Company's
rights now or in the future under Sections 2(a), 2(b) and 3(c) of such
compliance agreement between the Company and the Executive and such rights shall
survive as provided therein or contemplated thereby), there being no
representations, warranties or commitments as to the subject matter hereof
except as set forth herein. This Agreement is not, and shall not be construed to
be, a waiver or release of any claims arising out of the breach or violation of
any previous agreement between the Executive and the Company, its subsidiaries
and/or its predecessors.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
21. DEFINITIONS.
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"AGREEMENT" means this Employment Agreement.
"BASE SALARY" is defined in Section 5(a) above.
"BENEFIT PLAN" is defined in Section 9(f) above.
"BOARD" means the board of directors of the Company.
"CAUSE" means (i) the commission of a felony or a crime
involving moral turpitude or the commission of any other act or omission
involving dishonesty or fraud, (ii) conduct tending to bring the Company or any
of its subsidiaries into substantial public disgrace or disrepute, (iii)
substantial and repeated failure to perform duties of the office held by the
Executive as reasonably directed by the Company, and such failure is not cured
within 30 days after the Executive receives notice thereof from the Company,
(iv) gross negligence or willful misconduct with respect to the Company or any
of its subsidiaries, (v) Executive's engagement in any transaction that, either
directly or indirectly, constitutes self-dealing, (vi) conduct of Executive that
in the Company's good faith determination demonstrates Executive's unfitness to
serve as an officer or Executive of the Company, including, but not limited to,
any acts of employee discrimination/harassment by Executive, or (vii) any breach
of Section 7 or 10 of this Agreement.
"CHANGE OF CONTROL" occurs when or upon (A) any entity or
person, other than any person who is a beneficial owner (under Rule 13d of the
Securities Exchange Act of 1934) of the Company's securities before July 1,
1999, which becomes, after the date set forth immediately above, the beneficial
owner, directly or indirectly, of securities of the Company representing 50% or
more of the then outstanding voting securities of the Company; (B) the sale in
one or a series of transactions of all or substantially all of the assets of the
Company; or (C) any entity or person enters into an agreement or receives an
option to acquire beneficial ownership of 50% or more of the then outstanding
voting securities of the Company.
"CODE" is defined in Section 9(f) above.
"COMPANY" means Yupi Internet Inc. and its successors and
assigns.
"EFFECTIVE DATE" is defined in the first paragraph of this
Agreement.
"EMPLOYMENT TERM" is defined in Section 2 above.
"EXTENDED TERM" is defined in Section 2 above.
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"GOOD REASON" means (i) the Company's failure to perform or
observe any of the material terms or provisions of this Agreement, and the
continued failure of the Company to cure such default within thirty (30) days
after written demand for performance has been given to the Company by the
Executive, which demand shall describe specifically the nature of such alleged
failure to perform or observe such material terms or provisions; or (ii) a
material reduction in the scope of the Executive's responsibilities and duties.
"INITIAL TERM" is defined in Section 2 above.
"NOTICE OF TERMINATION" is defined in Section 8(b) above.
"OTHER AGREEMENTS" is defined in Section 9(f) above.
"PARACHUTE PAYMENT" is defined in Section 9(f) above.
"PERSON" means an individual, a partnership, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement,
or have caused this Agreement to be duly executed on their behalf, as of the day
and year first hereinabove written.
YUPI INTERNET INC.
By: /S/ XXXXXX XXXXXXX
------------------
Name: Xxxxxx Xxxxxxx
Title: CTO
THE EXECUTIVE:
/S/ XXXXXXX XXXXXXX
---------------------
Name: Xxxxxxx Xxxxxxx
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EXHIBIT A
DATE: JULY 1, 1999
CONFIDENTIAL INFORMATION KNOWN BY EXECUTIVE
The following is Confidential Information (as defined in Section 7 (a) of
the Employment Agreement) that is known by Executive prior to disclosure by
Company:
PRIOR INVENTIONS AND PROTECTED WORKS
The following are the ONLY Inventions and Protected Works that Executive
has made or conceived prior to the start of his/her employment with Yupi and are
not assigned to Yupi pursuant to Section 7 of the Employment Agreement.
DESCRIPTION OF PRIOR INVENTIONS AND PROTECTED WORKS:
Indicate any prior Inventions and Protected Works listed above that have been
published, registered as a copyright, or are or have been the subject of a
patent application.
Indicate the name of any third party that also has rights in any of the prior
Inventions or Protected Works listed above (such as former employers, partners,
etc.).
IF THERE ARE NO PRIOR INVENTIONS OR PROTECTED WORKS, PLEASE INITIAL HERE: /s/
MD.
/S/ XXXXXXX XXXXXXX
---------------------
[Executive Signature]
XXXXXXX XXXXXXX
----------------
[Executive Name]
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