Exhibit 10.33
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made effective as of the 1st day of November, 1999,
by and between Cybernet Internet Services International, Inc., a Delaware
corporation (the "Corporation"), and Xxxxx Xxxxxxxx (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 Executive
Vice President Sales and Marketing 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 Executive
Vice President Sales and Marketing, 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 Executive Vice President
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Sales and Marketing of 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
presidents 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 Deutsche 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 Thousand Deutsche 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 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
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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
an additional 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
Employee all earned but unpaid Base Salary due to the Employee
hereunder through the date of such termination.
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(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.
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, including the recovery of damages from the Employee.
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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 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
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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
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
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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. Xxxxx Xxxxxxxx
Am Xxxxxxxxxx 00
00000 Xxxxxxxxx, Xxxxxxx
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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
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 and shall not control or affect the meaning or construction of
any of the terms or provisions
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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/ Illegible Signature
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/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
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