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EXHIBIT 10.9
MANAGING DIRECTOR'S AGREEMENT
BETWEEN
BLACK SUN INTERACTIVE GMBH
with its seat in
Schillerstrasse 5
80336 Munchen
Germany
-hereafter called "the Company"-
and
BERND-MICHAEL HABERMEYER
residing
Herzogstandstrasse 21
82362 Weilheim
Germany
-hereafter called "Managing Director"-
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Managing Director's Agreement
between Black Sun Interactive GmbH
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ART. I
Duties and Responsibilities
1. The Managing Director shall act as Managing Director (Geschaftsfuhrer
bzw. Vorstand) of the Company. He shall represent the Company in
accordance with the provisions of the Company's Articles of Association
and the Shareholders' Resolutions and the Management-By-Laws of the
Company.
2. The Shareholders shall have the right to appoint additional Managing
Directors. The Shareholders shall determine the allocation of functions
among the Managing Directors from time to time.
3. The Managing Director shall conduct the Company's business in compliance
with the provisions of the pertinent laws, the Articles of Association,
the Company's Management Procedures ('Geschaftsordnung der
Geschaftsfuhrer bzw. des Vorstandes'), if any, and the Shareholder's
Resolutions.
He will act as the Company's Chief Financial Officer ('CFO'). He will be
especially responsible for finance and administration.
The Managing Director shall adopt the Company's Management Procedures.
4. The Managing Director shall devote his energy and experience exclusively
to the Company. He shall not engage in any other occupation, gainful or
otherwise taking up a substantial amount of his time, or act as a member
of a supervisory or advisory board or in a similar capacity, without
prior approval of the Shareholder.
5. The Managing Director shall not have the right to bestow advantages of
any kind on himself, to Shareholders or affiliated persons or affiliated
companies by contract or by unilateral declaration outside a duly made
profit distribution resolution taken in the Shareholders' meeting.
6. According to the Articles of Association, article 7, the Managing
Director must obtain the prior consent of the Board for the following
transactions:
a) the adoption of the annual budget,
b) the conclusion and termination of any rental, tenancy and
lease agreements as far as they concern liabilities of more
than DM 100,000.00 p.a. and as far as they are not within the
frame of the annual budget as resolved by the Board,
c) the purchase or sale of economic goods of the fixed and
current assets, as far as the respective investments are
higher than DM 100,000.00 and as far as they are not within
the frame of the annual budget as resolved by the Board,
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Managing Director's Agreement
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d) the assumption of any obligations of any kind of more than DM
100,000.00 as far as these exceed the current business and as
far as these obligations are not covered by the annual budget
as resolved by the Board,
e) any measures for the procurement of capital by holding
companies or the allocation of own resources to holding
companies in a different way; the assumption of guarantees and
the Managing Director's Agreement between Black Sun
Interactive assumption of liabilities on bills as well as the
granting of loans, the granting of loans to and the assumption
of liabilities for holding companies, if an amount of DM
200,000.00 is exceeded in the specific case,
f) taking up of loans from DM 500,000.00 onwards as far as they
are not covered by the annual budget as resolved by the Board;
the issuance of bonds and participating certificates,
g) the appointment and recall of Managing Directors of
subsidiaries as well as the conclusion, the termination or the
substantial alteration of employment agreements of the Company
and/or the holding companies for Managing Directors with an
annual salary of more than DM 200,000.00,
h) the new determination of the salary of the Managing
Director(s),
i) the appointment and withdrawal of "Prokuren" (full power of
attorney) and commercial powers of attorney.
7. According to the Articles of Association, article 9, paragraph 9, the
Managing Director shall be subject to the prior approval of 90 % of the
votes of the Shareholders for the following transactions:
a) the purchase and sale of direct or indirect participation in
other companies, the establishing of other companies as well
as the exclusion and merging of company functions to other
companies, the purchase, the sale and the creation of
encumbrances on real property and equivalent rights and/or any
kind of liabilities coordinated on such measures,
b) liquidation of the Company
c) increase of the Company's capital and changes of the articles
of association of the Company.
It is the Shareholders' meeting's intent to achieve agreement between
the Shareholders as broad as possible for all important businesses. In
the event no majority can be achieved,
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Managing Director's Agreement
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the Board shall be competent to decide according to the Articles of
Association article 8 no. 1.
8. The list of actions the execution of which requires the prior approval
of the Shareholders can be extended at any time or reduced by means of
a Shareholder's resolution.
9. The Managing Director is committed to present to the Shareholders'
meeting, by the end of a fiscal year at the latest, a budget and
investment plan for the following fiscal year, showing the
to-be-expected current expenses classified by subjects, the planned
investments and the financing proposed to cover the expenses.
ART. 2
Commencement and Duration
1. This contract shall become effective on November 1, 1995.
2. Notwithstanding mandatory periods of notice set forth by German law
either party may terminate the contract by giving 3 (three) months
written notice to the end of the calendar month.
3. The right to termination without notice for good cause (Art. 626 German
Civil Code) is not affected.
ART. 3
Remuneration, Expenses
1. The Managing Director will receive a base gross salary of DM 11,250 per
month (payable 12 times a year). The remuneration is to be paid at the
end of each month.
2. Additionally, the Managing Director shall receive bonus payments. The
bonus will be agreed in July of each year for the following year
between the parties.
Bonus payments for 1995/96 are as described in the attachment to this
agreement.
3. Expenses of the Managing Director in performing his duties under the
contract, including travel and entertainment expenses, will be
reimbursed in accordance with the German wage tax regulations
(Lohnsteuerrichtlinien).
ART. 4
Payment of Remuneration in the Event of Illness
In the event of the Managing Director's temporary incapacity due to illness or
of any other reasons for which the Managing Director is not responsible, the
remuneration according to Article 3 above will be continued to be paid for a
period of six weeks. The Company's payments
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Managing Director's Agreement
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will not be continued beyond a period of six weeks or beyond the date of
termination of this contract.
ART. 5
Annual Leave
1. The Managing Director shall be entitled to a paid annual leave of 30
working days.
2. If the Managing Director is not employed for the entire calendar year,
then he shall only be entitled to the corresponding portion of the
leave mentioned in paragraph 1.
3. Vacation periods shall be agreed upon with the other Managing Directors
bearing in mind the interest of the Company. If no further Managing
Director was appointed, vacation has to be stipulated with the
Shareholders.
ART. 6
Non-Disclosure, Non-Competition and Developments Agreements
The Managing Director undertakes to observe utmost secrecy vis-5-vis third
parties regarding all matters pertaining to the Company's business. This
obligation continues after the termination of this agreement. The Managing
Director agrees to the Company's Non-Disclosure, Non-Competition and
Developments Agreements attached to this Manager's Employment Agreement and is
to sign said attachment.
ART. 7
General Provisions
1. Should any provisions of this contract be invalid, the remaining
provisions shall nevertheless continue to be fully effective. It shall
be the responsibility of the parties to replace the invalid provisions
by a valid one which comes as near as possible to the parties' intended
purpose.
2. Modifications of this contract and supplements to this contract shall
not be valid unless in writing. This shall also apply to any
modification of the foregoing sentence.
3. This contract is subject to German law.
Munich,
August 7, 1995
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Bernd-Michael Habermeyer
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Managing Director's Agreement
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Black Sun Interactive GmbH
Approved by the Members of the Board:
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Chairman of the Board
Black Sun Interactive GmbH
Enclosures:
1. Non-Disclosure, Non-Competition and Developments Agreement