Exhibit 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of June 18,
1999, by and between El Sitio International Corporation ("El Sitio"), a British
Virgin Islands company, and Xxxxxx Xxxxxxxxx ("Executive").
WHEREAS, El Sitio wishes to assure itself of the services of
Executive for the period provided in this Agreement, and Executive is willing to
provide such services to El Sitio for said period, and upon the other terms and
conditions hereinafter provided; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Services Provided. El Sitio agrees to utilize the services of
Executive, and Executive agrees to provide such services, for the period stated
in Paragraph 2 hereof and upon the other terms and conditions herein provided.
2. Term and Duties.
(a) Term of Agreement. The term of this Agreement will
commence as of the date hereof (the "Commencement Date") and will continue
through the date three (3) years after the Commencement Date (the "Termination
Date"). On the Termination Date, this Agreement will be renewed for a new
three-year term commencing on such Termination Date and thereafter for
successive three-year renewals periods unless either El Sitio or Executive
notifies the other in writing, no later than ninety (90) days prior to the
Termination Date (or the end of such renewal period, as applicable), that it
does not intend to renew this Agreement. If El Sitio notifies Executive that it
does not intend to renew this Agreement, such notice will be considered an Event
of Termination as defined in Paragraph 5 herein, and benefits will be payable to
Executive as specified in Paragraph 5.
(b) Termination Prior to Expiration of the Term. This
Agreement may also be terminated prior to the end of the initial term or any
renewal term hereof.
(c) Duties. During the period of Executive's employment
hereunder, Executive shall serve, as long as El Sitio's business is conducted
through El Sitio (or another legal entity), as President and Chief Executive
Officer of El Sitio (or as principal executive officer of such other legal
entity), or (ii) if the business of El Sitio ceases to be conducted through a
separate legal entity (i.e., El Sitio's business is conducted as a "division"
of a legal entity), as the principal executive in charge of the division
through which El Sitio's business is conducted. Except for illness, vacation
periods and reasonable
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leaves of absence, Executive shall devote all of his business time, attention,
skill and efforts to the faithful performance of his duties in said office, and
will use his best efforts to further El Sitio's business interests.
3. Compensation and Reimbursement of Expenses.
(a) Compensation. For all services rendered by Executive to El
Sitio during the term of this Agreement, El Sitio shall pay Executive a base
salary of FIFTEEN THOUSAND DOLLARS ($15,000) per month, based on a year of
thirteen (13) months (with 1.5 months' salary being paid Executive in June and
December) (the "Base Salary") and a bonus of no less than SEVEN THOUSAND DOLLARS
($7,000) per annum payable on or about year-end. The Base Salary shall be paid
in accordance with El Sitio's normal payroll practices. The Base Salary shall
increase on each anniversary of the date hereof pursuant to a resolution of the
Compensation Committee adopted by the Board of Directors of the Company.
(b) Reimbursement of Expenses and Administrative Support. El
Sitio shall pay or reimburse Executive for all reasonable travel, relocation (if
applicable) and other expenses incurred by Executive in performing his
obligations under this Agreement. El Sitio further agrees to furnish Executive
with office space and administrative support, and any other assistance and
accommodations as shall be reasonably required by Executive in the performance
of his duties under this Agreement.
(c) Stock Options. The parties acknowledge that Executive has
been granted and shall in the future be granted options to purchase stock of El
Sitio pursuant to certain of El Sitio's incentive stock option plans (the "ISO
Plans") and pursuant to certain other such options which may be granted at the
discretion of the Board of Directors of El Sitio.
(d) Vacation. Executive shall be entitled to four (4) weeks
paid vacation in each calendar year.
(e) Deductions. All payments made under this Agreement shall
be subject to such deductions at the source as from time to time may be required
to be made pursuant to any law, regulation or order.
4. Participation in Benefit Plans.
(a) Participation. In addition to the payments provided in
Paragraphs 3 and 5 hereof, Executive will participate, for the term of this
Agreement and during the Severance Period (as defined Paragraph 5(b)), in all El
Sitio benefit programs for
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which key executives are or shall become eligible, on the same terms as other
key executives of El Sitio.
(b) Incapacity. In the event that Executive shall, by reasons
of illness or mental or physical disability or incapacity, be unable to perform
the duties and responsibilities required to be performed by him on behalf of El
Sitio, the Base Salary payments as specified in Paragraph 3(a) herein shall
continue for a period of one hundred eighty (180) days, then such payments shall
be suspended. Such payments shall be resumed upon the assumption by Executive of
his activities on behalf of El Sitio as called for herein.
5. Payments to Executive Upon Termination of Agreement.
(a) Termination. Upon the occurrence of an Event of
Termination during the term of this Agreement, the provisions of this Paragraph
5 shall apply. As used in this Agreement, an "Event of Termination" shall mean
and include any one or more of the following:
(i) The termination by El Sitio of this Agreement for
any reason (including, but not limited to, El Sitio's election
not to renew this Agreement pursuant to Paragraph 2(a) hereof)
other than "cause" (as defined in Paragraph 6 therein); or
(ii) Executive's termination of this Agreement, pursuant
to:
A. a material change by El Sitio of the
Executive's responsibilities or assignments, which change
would cause Executive's responsibilities or assignments to
become of less responsibility or importance from the
assignments and responsibilities described in Paragraph 2
above, and any such material change shall be deemed a
continuing breach of this Agreement; or
B. any other breach of this Agreement by El Sitio.
Upon the occurrence of any event described in clauses A or B above,
Executive shall have the right to elect to terminate this Agreement, upon not
less than thirty (30) days prior written notice given within a reasonable period
of time not to exceed, except in case of a continuing breach, three (3) calendar
months after the event giving rise to said right to elect.
(b) Continuation of Benefits. Upon the occurrence of an Event
of Termination, in addition to any amounts payable pursuant to Section 3 hereof,
El Sitio shall pay monthly to Executive the compensation described in Paragraph
3 herein, including the Base Salary. Such payments shall commence on the first
day of the month following the date of
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termination hereof and shall continue until the Termination Date (or the end of
the renewal period, as applicable) or twenty-four (24) months, whichever is
greater (the "Severance Period"). During the Severance Period, Executive shall
continue to receive all other benefits to which Executive was entitled under
Paragraphs 3 and 4 hereof.
(c) Offset. If Executive becomes employed, other than with El
Sitio, after an Event of Termination, but prior to the date at which the
continued Base Salary, Bonus and other payments would have expired, any salary
received by Executive as a result of such employment will be subtracted from any
payments due Executive from El Sitio under Paragraph 5(b) hereunder.
6. Termination for Breach by Executive.
(a) Conditions for Termination. Executive shall be considered
in breach of this Agreement, and the Agreement subject to termination by El
Sitio, in the following events (each a "cause"):
(i) Willful disobedience of lawful instructions of the
Board of Directors of El Sitio by Executive which continues
after being afforded a reasonable opportunity to cure such
disobedience; or
(ii) The commission of a felony by Executive; or
(iii) Gross negligence by Executive in carrying out his
duties on behalf of El Sitio.
(b) Notice. In the event El Sitio elects to terminate this
Agreement pursuant to Paragraph 6(a), El Sitio shall give a thirty (30) day
written notice of termination to Executive setting out, in detail, the reasons
for termination. Upon the expiration of such thirty (30) day notice period this
Agreement shall be wholly terminated subject to the payment to Executive of any
remuneration or other amounts owing pursuant hereto.
7. Effect of Prior Agreements. This Agreement contains the full and
complete understanding between the parties hereto with respect to the subject
matter hereof and supersedes any prior agreement between El Sitio or any
predecessor of El Sitio and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to Executive of
a kind elsewhere provided and not expressly provided in this Agreement.
8. Binding Agreement. This Agreement shall be binding upon, and
inure to the benefit of Executive and El Sitio and their respective permitted
successors and assigns. Notwithstanding any provision herein to the contrary, in
the event of a sale (whether by an asset
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acquisition, merger, consolidation, stock acquisition or similar transaction)
this Agreement may be assigned by El Sitio or assumed by a purchaser of El Sitio
or El Sitio's assets.
9. Modification and Waiver.
(a) Amendment of Agreement. This Agreement may not be modified
or amended except by an instrument in writing signed by the parties hereto
(b) Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement, except by written instrument of
the party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each such
waiver shall operate only as to the specific term or condition waived and shall
not constitute a waiver of such term or condition for the future or as to any
act other than that specifically waived.
10. Governing Law. This Agreement shall be governed by the laws of
the State of New York, without regard to the conflict of laws principles
thereof.
11. Ownership.
(a) Treatment of Improvements. Executive hereby covenants and
agrees that during the continuance of his employment hereunder, all rights,
title and interest in and to any intellectual or industrial property, including
without limitation, all works ideas, processes, systems, and improvements to El
Sitio's operations (hereinafter, collectively the "Improvements"), that are
created or suggested by Executive in connection with his duties at El Sitio and
each of them, together with all patents and trademarks therein, if any, shall be
and remain the exclusive property of El Sitio and of El Sitio's assignees and
successors.
(b) Full Disclosure. Executive hereby covenants and agrees to
fully disclose all such Improvements, as and when such are created and shall
promptly upon El Sitio's request and without further consideration other than
that provided for herein, but at no expense to Executive, to make all such
applications, execute all such papers, and do all such things as may be
necessary or desirable so that the ownership of such Improvements shall vest in
El Sitio and so that El Sitio may obtain, own and exploit, for its own benefit
and in all respects, such Improvements.
12. Mutual Release. At the end of the Severance Period, upon
receipt by Executive of all payments required by Paragraph 5(b) herein, the
parties hereto will be deemed to have mutually irrevocably and unconditionally
released all claims, promises, debts, causes of action or similar rights of any
type or nature that either party has or had which in any way relate to or arise
from this Agreement. The parties hereto further agree, upon and after the
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effectiveness of such releases, not to criticize, denigrate or otherwise
disparage any other person or entity described in this Agreement.
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IN WITNESS THEREOF, El Sitio has caused this Agreement to be
executed and its seal to be affixed hereunto by its duly authorized officer, and
Executive has signed this Agreement; all as of the day and year first above
written.
EL SITIO INTERNATIONAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
