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EXHIBIT 10.6
▇▇▇▇▇▇ ISP
KEY EMPLOYEE AGREEMENT
FOR
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This Key Employment Agreement ("Agreement") is entered into as of the 10th
day of February, 1999, by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Executive") and ▇▇▇▇▇▇
ISP, a Delaware corporation (the "Company").
WHEREAS, the Company desires to employ Executive to provide personal
services to the Company, and wishes to provide Executive with certain
compensation and benefits in return for his services; and
WHEREAS, Executive wishes to be employed by the Company and to provide
personal services to the Company in return for certain compensation and
benefits;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. EMPLOYMENT BY THE COMPANY.
1.1 EFFECTIVE DATE. The effective date of this Agreement (the
"Employment Date") shall be the closing date of the acquisition by the Company
of certain assets of Asia Communications Global Limited Acquisition (the "ACGL
Acquisition"). If the ACGL Acquisition does not close by February 28, 1999, this
Agreement shall have no effect, and shall not be binding on the Company or on
Executive.
1.2 TITLE. Subject to terms set forth herein, the Company agrees to
employ Executive in the position of President and Chief Executive Officer and
Executive hereby accepts such employment effective as of the Employment Date.
You will also be appointed as a member of the Board of Directors.
1.3 DUTIES. Executive shall serve in an executive capacity and shall
perform such duties as are customarily associated with his then current title,
consistent with the Bylaws of the Company and as required by the Company's Board
of Directors (the "Board"). During the term of his employment with the Company,
Executive will devote his best efforts and substantially all of his business
time and attention (except for vacation periods as set forth herein and
reasonable periods of illness or other incapacities permitted by the Company's
general employment policies) to the business of the Company.
1.4 COMPANY POLICIES. The employment relationship between the parties
shall also be governed by the general employment policies and practices of the
Company, including those relating to protection of confidential information and
assignment of inventions, except that when the terms of this Agreement differ
from or are in conflict with the Company's general employment policies or
practices, this Agreement
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shall control. Executive agrees to execute, without exception, the Company's
form of Proprietary Information and Inventions Agreement (the "Inventions
Agreement") in the form attached as Exhibit A, and the benefits of this
Agreement to Executive shall be contingent upon such execution and delivery to
the Company and its counsel.
1.5 INTERNATIONAL ASSIGNMENT. Executive agrees to accept an
international assignment to the Company's overseas office located in Hong Kong
("Assignment"). Executive's Assignment will begin on the Employment Date and,
unless otherwise agreed in writing between Executive and the Company, will
continue until the earliest of (i) three (3) years from the Employment Date,
(ii) the initial public offering of the Company's Common Stock on a U.S.
national exchange , NASDAQ or other globally recognized stock exchange, or (iii)
the sale of control of the Company and expiration of a reasonable period of time
following the closing of such sale of control as necessary to allow investors in
the Company an opportunity to liquidate or sell their holdings; or (iv)
termination of Executive's employment pursuant to this Agreement.
2. COMPENSATION.
2.1 SALARY. Executive shall be paid for services to be rendered
hereunder an annualized base salary of US $240,000, subject to normal
withholdings and deductions, and subject to increase in accordance with the
policies of the Company in force from time to time, as determined by its Board
in its sole discretion, payable in installments in accordance with Company
policy. During the Assignment, Executive will be on the payroll of the Company's
United States of America ("US") office.
2.2 STANDARD COMPANY BENEFITS. Executive shall be entitled to all
rights and benefits for which he is eligible under the terms and conditions of
the standard Company benefits and compensation practices which Executive shall
formulate and adopt with the Board's approval, which may be in effect from time
to time and provided by the Company to its employees generally. Such rights and
benefits will be established by the Board, in consultation with you as Chief
Executive Officer.
2.3 VACATION AND SICK LEAVE. Executive shall be entitled to take four
(4) weeks of paid vacation per year and shall be entitled to sick days during
the terms of his employment consistent with the Company's standard practice for
its employees generally.
2.4 REIMBURSEMENT. Executive shall be entitled to receive prompt
reimbursement of all reasonable expenses incurred by him in performing Company
services, including expenses related to travel and expenses while away from home
on business. Such expenses shall be accounted for under policies and procedures
established by the Company.
2.5 LIVING ALLOWANCE. During the Assignment, Executive shall be
entitled to a monthly living allowance of US $10,000.00 per month, subject to
normal withholdings and deductions.
2.6 COMMON STOCK OWNERSHIP. Executive shall be entitled to purchase
Common Stock of the Company, at 2(cent) a share (the "Purchased Stock"). The
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number of shares of Purchased Stock shall be determined by mutual agreement
between Executive and the Company's Board of Directors, such that the total
number of shares issued to Executive shall be equal to 8.5% of the fully-diluted
shares of the Company, following the ACGL Acquisition. The Purchased Stock shall
vest 33% following one year after the Employment Date and thereafter 1/36th each
month for the subsequent 24 months, so long as Executive is employed by the
Company. In the event during the Employment of Executive there is (i) the sale
of all or substantially all of the assets of the Company, or (ii) a merger,
consolidation or other transaction which results in the transfer of in excess of
50% of the voting control of the Company, the vesting of the Purchased Stock
shall be fully accelerated on the closing of such event. In the event that
during the employment of Executive there is an initial public offering of the
Company's Common Stock and such stock becomes traded on a US national exchange
or on the Nasdaq National Market, 50% of the then unvested Purchased Stock shall
become vested on the closing of such offering.
2.7 PREFERRED STOCK. Executive shall be entitled to purchase up to
$500,000 of Series A Preferred Stock of the Company at the same price paid by
the initial purchasers of such Preferred Stock. Such right will terminate on the
earlier of (i) April 30, 1999 or (ii) the date of issuance by the Company of
Series B Preferred Stock.
3. TAX SERVICES
Executive will be provided with professional tax consulting services
through the use of a Company-designated accounting service. Executive
acknowledges that the Company is not providing Executive with tax advice with
respect to his employment or the Assignment.
4. OUTSIDE ACTIVITIES.
4.1 Except with the prior written consent of the Company's Board of
Directors (which consent is expected to be set forth in a letter to you), during
the term of his employment by the Company, except on behalf of the Company,
Executive will not directly or indirectly, whether as an officer, director,
stockholder, partner, proprietor, associate, representative, consultant, or in
any capacity whatsoever engage in, become financially interested in, be employed
by or have any business connection with any other person, corporation, firm,
partnership or other entity; provided, however, that anything above to the
contrary notwithstanding, he may own, as a passive investor, securities of any
public corporation, so long as his direct holdings in any one such corporation
shall not in the aggregate constitute more than 1% of the voting stock of such
corporation. In addition, Executive may engage in civic and not-for-profit
activities so long as such activities do not materially interfere with the
performance of his duties hereunder.
5. TERMINATION OF EMPLOYMENT.
5.1 TERMINATION WITHOUT CAUSE.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time without Cause.
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(b) In the event Executive's employment is terminated during the
Assignment by the Company without Cause or by Executive for Good Reason, the
Company shall provide Executive with the following severance benefits: (i)
continuation of Executive's base salary for a period of twelve (12) months; (ii)
to the extent permitted by federal COBRA law and by the Company's health policy,
continuation of Executive's health care coverage for six (6) months; and (iii)
vesting of the Purchased Stock shall be accelerated by the number of shares that
would have vested during a period of four (4) months following the date of
termination, or if the date of termination is within twelve (12) months after
the Employment Date, by the number of shares that would have vested four (4)
months after the Employment Date, and Executive shall be entitled to retain the
number of shares of Executive's Purchased Stock vested as of such future date of
termination, including shares vested pursuant to this (iii).
(c) "Good Reason" for termination by Executive shall mean any one
of the following events: (i) material reduction of the Executive's rate of
compensation; (ii) material reduction in the package of welfare benefit plans,
taken as a whole, provided to the Executive (except that employee contributions
may be raised to the extent of any cost increases imposed by third parties);
(iii) material reduction in the Executive's responsibilities, authority, title
or duties; or (v) material, uncured breach by the Company or any successor to
the Company of any of the material provisions of the Agreement.
5.2 TERMINATION FOR CAUSE.
(a) The Company shall have the right to terminate Executive's
employment with the Company at any time for Cause.
(b) "Cause" for termination shall mean: (i) conviction of any
felony or of any crime involving dishonesty; (ii) participation in any material
fraud against the Company; (iii) material breach of Executive's duties to the
Company, including persistent unsatisfactory performance of job duties; provided
that such breach was not cured after at least 30 days notice to Executive; (iv)
intentional and material damage to any property of the Company; or (v) conduct
by Executive which in the good faith and reasonable determination of the Board
demonstrates gross unfitness to serve.
(c) In the event (i) Executive's employment is terminated at any
time with Cause, (ii) or Executive is in material breach of the terms of this
Agreement or the Inventions Agreement, Executive will not be entitled to
severance pay, severance benefits, or any compensation or benefits from the
Company whatsoever.
5.3 VOLUNTARY OR MUTUAL TERMINATION.
(a) Executive may voluntarily terminate his employment with the
Company, for any reason, sixty (60) days after giving written notice to the
Company.
(b) In the event Executive voluntarily terminates his employment
without Good Reason, he will not be entitled to severance pay, pay in lieu of
notice or any other compensation or benefits from the Company whatsoever.
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5.4 RESTRICTIVE COVENANT. In order to protect the confidential and
valuable proprietary and trade secret formation of the Company as more fully
described in the Inventions Agreement, in the event Executive voluntarily
terminates his employment with the Company, or Executive's employment is
terminated for Cause, then for one (1) year immediately following the
termination date, Executive shall not, without first obtaining the prior written
approval of the Company (i) directly or indirectly engage or prepare to engage,
in any activities in competition with the Company or any subsidiary or affiliate
(collectively the "Company Entities") in Asia, or (ii) accept employment or
establish a business relationship with a business engaged in or preparing to
engage in competition with any Company Entity, in any geographical location in
Asia in which any Company Entity as of the termination date either (A) conducts
business or (B) plans to conduct business within one year of Executive's
termination pursuant to a Company Entity's business plan; but only if
Executive's employment or business relationship with such business is related to
its competitive activities in Asia.
6. NONINTERFERENCE.
While employed by the Company, and for one (1) year immediately
following the date of termination of employment for any reason, Executive agrees
not to interfere with the business of the Company by:
(a) soliciting or attempting to solicit any employee of any
Company Entity to terminate his or her employment in order to become an
employee, consultant or independent contractor to or for any competitor of any
Company Entity; or
(b) directly or indirectly soliciting the business of any
customer of any Company Entity for any competitor of such Company Entity, which
at the time of termination or one year immediately prior thereto was a customer
of any Company Entity.
7. GENERAL PROVISIONS.
7.1 NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery, the date of
confirmed delivery by facsimile or international document courier or the third
day after mailing by first class mail, to the Company at its primary office
location and to Executive (i) at his address as listed on the Company payroll
and (ii) at (▇▇▇) ▇▇▇-▇▇▇▇ (fax) and ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ or such other facsimile
number and e-mail address as Executive may provide Company in a notice to
Company.
7.2 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
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7.3 WAIVER. If either party should waive any breach of any provisions
of this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
7.4 COMPLETE AGREEMENT. This Agreement and other agreements referenced
herein constitute the entire agreement between Executive and the Company and it
is the complete, final, and exclusive embodiment of their agreement with regard
to this subject matter. It is entered into without reliance on any promise or
representation other than those expressly contained herein, and it cannot be
modified or amended except in a writing signed by an officer of the Company.
7.5 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
7.6 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
7.7 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that Executive may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
7.8 ATTORNEY FEES. If either party hereto brings any action to enforce
his or its rights hereunder, the prevailing party in any such action shall be
entitled to recover his or its reasonable attorneys' fees and costs incurred in
connection with such action.
7.9 CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the law of the State of
Delaware.
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IN WITNESS WHEREOF, the parties have executed this Key Employee
Agreement on the day and year first above written.
▇▇▇▇▇▇ ISP
By: /s/ signature illegible
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Title:
Accepted and agreed:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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July 30, 1999
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
23/F Citicorp Centre
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Dear ▇▇▇▇▇:
The Board of Directors of Asia Online, Ltd. (the "Company") has agreed to amend
the terms of the Key Employee Agreement, dated as of February 10, 1999, by and
between the Company and you, in order to permit you to exercise a portion of the
option granted thereunder to purchase Series A Preferred Stock until December
31, 1999. Accordingly, by signing and returning a copy of the letter to the
Company, you and the Company agree that, effective as of the date hereof,
Section 2.7 is amended in its entirety to read as follows:
"2.7 PREFERRED STOCK. Executive shall be entitled to purchase up to
eighty seven thousand seven hundred nineteen (87,719) shares of Series A
Preferred Stock of the Company at the same price paid by the initial purchasers
of such Preferred Stock. Such right will terminate on December 31, 1999."
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Page Two
If the terms set forth above are acceptable, please execute and return
the accompanying copy of this letter.
ASIA ONLINE, LTD.
BY ORDER OF THE BOARD OF DIRECTORS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Secretary
Acknowledged and agreed:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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