Exhibit 10.11
NONCOMPETE AGREEMENT
AGREEMENT, dated as of July 2, 1999, by and between El Sitio
International Corporation, a British Islands corporation, with its principal
offices at Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx, 0000 Xxxxxx Xxxxx, Xxxxxxxxx (the
"Company") and Xxxxxx Xxxxxxxxx (the "Executive).
IN CONSIDERATION of the employment of the Executive by the Company
and the premises and the mutual covenants set forth below, the parties hereby
agree as follows:
1. Confidential Information, Ownership of Documents;
Non-Competition.
(a) Confidential Information. Executive shall hold the
fiduciary capacity for the benefit of the Company all trade secrets and
confidential information, knowledge or data relating to the Company and its
businesses and investments, which shall been obtained by Executive during
Executive's employment by the Company and which is not generally available
public knowledge (other than as a result of acts by Executive in violation of
this Agreement). Except as may be required or appropriate in connection with his
carrying out his duties under this Agreement, Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
any legal process, or as is necessary in connection with any adversarial
proceeding against the Company (in which case Executive shall use his reasonable
best efforts in cooperation with the Company in obtaining a protective order
against disclosure by a court of competent jurisdiction), communicate or divulge
any such trade secrets, information, knowledge or data to anyone other than the
Company and those designated by the Company or on behalf of the Company in the
furtherance of its business or to perform duties hereunder.
(b) Removal of Documents; Rights to Products. All records,
files, drawings, documents, models, equipment, and the like relating to the
Company's business, which Executive has control over shall not be removed from
the Company's premises without its written consent, unless such removal is in
the furtherance of the Company's business or is in connection with Executive's
carrying out his duties under this Agreement and, if so removed, shall be
returned to the Company promptly after termination of employment. Executive
shall assign to the Company all rights to trade secrets and other products
relating to the Company's business developed by him alone or in conjunction with
others at any time while employed by the Company.
(c) Protection of Business. During the period of employment of
the Executive by the Company and until the first anniversary of the date of
termination of Executive's employment with the Company ("Date of Termination"),
the Executive will not (i) engage, anywhere within the geographical areas in
which Company or any of its subsidiaries
(the Designated Entities") are conducting their business operations or providing
services as of the Date of Termination, in any Spanish or Portuguese language
portal or content network which is being engaged by the Designated Entities as
of the Date of Termination or pursue or attempt to develop any project known to
Executive and which the Designated Entities are actively pursuing, developing or
attempting to develop as of the Date of Termination, directly or indirectly,
alone, in association with or as a shareholder, principal agent, partner,
officer, director, employee or consultant of any other organization, (ii) divert
to any entity which is engage in any business conducted by the Designated
Entities in the same geographic area as the Designated Entities, any project or
customer of any of the Designated Entities, or (iii) solicit any officer,
employee (other than secretarial staff) or consultant of any of the Designated
Entities to leave the employ of any of the Designated Entities. Notwithstanding
the preceding sentence, Executive shall not be prohibited from owning less than
one five (5%) percent of any publicly traded corporation, which is in
competition with the Company. If, at any time. The provisions of this Section
1(c) shall be determined to be invalid or unenforceable, by reason of being
vague or unreasonable as to area, duration or scope of activity, this Section
1(c) shall be considered divisible and shall become and be immediately amended
to only such area, duration and scope of activity as shall be determined to be
reasonable and enforceable by the court or other body having jurisdiction over
the matter; and Executive agrees that this Section 1(c) as so amended shall be
valid and binding as through any invalid or unenforceable provision had not been
included herein.
(d) Injunctive Relief. In the event of breach of or threatened
breach of this Section 1, Executive agrees that the Company shall be entitled to
injunctive relief in a court of appropriate jurisdiction to remedy any such
breach or threatened breach, Executive acknowledging that damages would be
inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in
this Section 1, the termination of Executive's employment or of this Agreement
shall have no effect on the continuing operation of this Section 1.
2. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligation of the
Company under this Agreement may be assigned or transferred except that the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 13 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) Executive's Successors. No rights or obligations of
Executive under this Agreement may be assigned or transferred by Executive other
than his rights to payments or benefits hereunder, which may be transferred only
by will or the laws of descent and distribution.
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3. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have duly given when delivered either personally or by
certified or registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to Executive:
x/x Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000, Xxxxxx Xxxxx, Xxxxxxxxx
Telecopier: (5411) 4343-9122, Ext. 104
If to the Company:
Xxxxxxx Xxxxxxxx 000, 0xx Xxxxx
0000, Xxxxxx Xxxxx, Xxxxxxxxx
Telecopier: (5411) 4343-9122, Ext. 104
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
4. Miscellaneous. No provisions of this agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by Executive and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged. No
waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter thereof have been made by either party which are not set forth
expressly in this Agreement. The respective termination of employment and the
termination of this Agreement to the extent necessary for the intended
preservation of such rights and obligations. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York without regard to its conflicts of law principles.
5. Validity. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain
in full force and effect.
6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but al of which
together will constitute one and the same instrument.
7. Entire Agreement. This Agreement sets forth the entire agreement
of the parties hereto in respect to the subject mater contained herein and
supersede all prior
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agreements, promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, by any officer, employee or
representative of any party hereto in respect of such subject matter. Any prior
agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and cancelled.
8. Withholding. All payments hereunder shall be subject to any
required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
9. Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or declaration of trust, or any
agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
10. Section Headings. The section headings in this Employment
Agreement are for convenience of reference only, and they form no part of this
Agreement and shall not affect its interpretation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
EL SITIO INTERNATIONAL CORPORATION
By: /s/ Xxxxxxx Cibrain-Xxxxxx
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Name:
Title:
EXECUTIVE
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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