Exhibit 10.1
BROADBAND MARITIME INC.
EMPLOYMENTAGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") made effective as of February 8,
2006 by and between Broadband Maritime Inc. (f/k/a Broadband Maritime of
Delaware Inc.), a Delaware corporation with its principal offices located at 00
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Employer"), and Xxxxx Xxxxxxxx
an individual with a residence address 00 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX
("Employee").
WITNESSETH:
WHEREAS, in order to protect the rights of Broadband Maritime with respect
to its proprietary rights and legitimate business interests;
WHEREAS, Employee will derive substantial benefit from the success of
Broadband Maritime; and
WHEREAS, it is a condition and in consideration of Employee's employment by
Employer that Employee agrees to the terms hereof.
NOW, THEREFORE, in consideration of the covenants contained herein, the
parties hereto, intending to be legally bound, agree as follows:
Section 1. Proprietary Information
(a) Proprietary Information Defined. Employee understands that during
Employee's employment by Employer or any of its affiliates Employee may produce,
obtain, make known or learn about certain information which has commercial value
in the business in which Employer is engaged and which is treated by Employer as
confidential. This information may have been created, discovered or developed by
Employer, its predecessors, or otherwise received by Employer from third
parties, including but not limited to clients or potential clients of Employer,
or representatives of clients or potential clients of Employer, subject to a
duty to maintain the confidentiality of such information. All such information
is hereinafter called "Proprietary Information." By way of illustration, but not
limitation, Proprietary Information includes trade secrets, ideas, processes,
formulas, source code, object code, executable code, data, programs, software,
other original works of authorship, know-how, improvements, discoveries,
developments, designs, inventions, techniques, marketing plans, strategies,
forecasts, new products, unpublished financial statements, budgets, projections,
licenses, prices, costs, and customer and supplier lists.
(b) Assignment and Protection of Proprietary Information. Employee
understands that all Proprietary Information shall be the sole property of
Employer and its assigns, and Employer and its assigns shall be the sole. owner
of all patents, copyrights, trademarks, and other rights in connection
therewith. Employee hereby assigns to Employer any rights Employee may have or
acquire in such Proprietary Information from the date of this Agreement through
the
termination of Employee's employment with Employer. At all times, during both
Employee's employment by Employer and after its termination, Employee will keep
in strictest confidence and trust all Proprietary Information, and will not use,
reproduce or disclose any Proprietary Information without the written consent of
Employer, except as may be necessary in the ordinary course of performing
Employee's duties as an employee of Employer. Employee agrees to keep and
maintain adequate and current records of all Proprietary Information developed
by Employee (in the form of notes, sketches, drawings and as may be specified by
Employer) which records shall be available to and remain the sole property of
Employer at all times.
(c) Disclosure of Proprietary Information. Employee agrees that Employee
will not, without the written permission of Employer, use the Proprietary
Information for any purpose other than as may be necessary in the ordinary
course of performing Employee's duties as an employee of Employer. Employee
represents that Employee has no obligations or commitments inconsistent with
this Agreement. Employee shall use all reasonable safeguards to prevent the
unauthorized disclosure of such Proprietary Information. Employee confirms that
such Proprietary Information constitutes the exclusive property of Employer.
Employee agrees to return all tangible evidence of such Proprietary Information
to Employer within three (3) business days of the earlier of (i) the termination
of Employee's employment or (ii) the request of Employer.
Section 2. Conflicting Activities
Employee agrees that during Employee's employment by Employer, Employee
will not engage in any other employment, occupation, consulting or other
activity relating to the business in which Employer is now or may hereafter
become engaged, or which would otherwise conflict with Employee's obligations to
Employer.
Section 3. Trade Secrets of Others
Employee represents that Employee's performance of all of the terms of this
Agreement and as an employee of Employer do not and will not breach any
agreement to keep confidential proprietary information, knowledge or data
acquired by Employee in confidence or in trust prior to Employee's services to
Employer, and Employee will not disclose to Employer, or induce Employer to use,
any confidential or proprietary information or material belonging to any
previous client, employer or others.
Section 4. Employer's Provision of Specialized Training and Proprietary
Information
Employee understands that Employer will provide Employee with specialized
training and access to non-public and Proprietary Information regarding Employer
and Employer's activities.
Section 5. Inventions
Employee understands that during Employee's employment with Employer,
Employee may make, conceive of or reduce to practice various discoveries,
developments, designs,
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improvements, inventions, formulas, processes, techniques, programs, other works
of authorship, know-how and data which are related to the business of Employer
including products and services that are offered or being developed by Employer
(all of which shall be referred to as "Inventions" throughout this Agreement,
whether or not patentable or registrable under copyright, mask work or similar
statutes).
(a) Assignment of Inventions.
Employee hereby assigns and transfers to Employer Employee's entire right,
title and interest in and to all Inventions made or conceived or reduced to
practice by Employee either alone or jointly with others during the period of
Employee's employment with Employer. Employee acknowledges that all original
works of authorship which are made by Employee (solely or jointly with others)
within the scope of Employee's employment and which are protectable by copyright
are "works made for hire", as that term is defined in the United States
Copyright Act as in effect as of this date. Employee will, at Employer's
request, promptly execute a written assignment of title to Employer for any such
Invention and will preserve any such Invention as Proprietary Information of
Employer.
(b) Maintenance of Records.
Employee agrees to keep and maintain adequate and current records of all
Inventions made by Employee (in the form of notes, sketches, drawings and as may
be specified by Employer) which records shall be available to and remain the
sole property of Employer at all times.
(c) Disclosure of Inventions.
During the period of Employee's employment and for six months after
termination of Employee's employment with Employer, Employee will promptly
disclose in writing to Employer all Inventions made or conceived or reduced to
practice by Employee, either alone or jointly with others, during the period of
Employee's employment with Employer.
(d) Execution of Documents.
Employee further agrees as to all Inventions to assist Employer in every
proper way (but at Employer's expense) to obtain and from time to time enforce
patents, copyrights, mask works, and other rights and protections relating to
Inventions in any and all countries, and to that end will execute all documents
for use in applying for and obtaining such patents, copyrights, mask works, and
other rights and protections on and enforcing Inventions as Employer may desire,
together with any assignments thereof to Employer or persons designated by it.
Employee's obligation to assist Employer in obtaining and enforcing patents,
copyrights, mask works, and other rights and protections relating to Inventions
in any and all countries shall continue beyond the termination of Employee's
employment, but Employer shall compensate Employee at a reasonable rate after
such termination for time actually spent by Employee at Employer's request on
such assistance. In the event Employer is unable, after reasonable effort, to
secure Employee's signature on any document or documents needed to obtain or
enforce any patent, copyright, mask
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work, or other right or protection relating to an Invention, whether because of
Employee's physical or mental incapacity or for any other reason whatsoever,
Employee hereby irrevocably designates and appoints Employer and its duly
authorized officers and agents as Employee's agent and attorney-in-fact, to act
for and in my behalf and stead to execute and file any application or assignment
and to do all other lawfully permitted acts to further the protection and
issuance to Employer of patents, copyrights, mask works, or similar protections
thereon with the same legal force and effect as if executed by Employee.
Section 6. Non-Competition
(a) Restrictions. In order to protect Employer's Proprietary Information,
for a period of one (1) year after the termination or expiration, for any
reason, of Employee's employment with Employer hereunder (the "Post-Employment
Period"), Employee will not directly or indirectly engage in activities similar
or reasonably related to those in which Employee shall have engaged hereunder
during Employee's employment with Employer preceding termination or expiration
for, nor render services similar or reasonably related to those which Employee
shall have rendered hereunder during such employment to, any person or entity
whether now existing or hereafter established that directly competes with (or
proposes or plans to directly compete with) Employer ("Direct Competitor") in
any line of business engaged in or under development by Employer in any
territory where Employer markets, sells, designs, or distributes its products or
services. Further, Employee shall not, either directly or indirectly, (i)
solicit clients or customers of Employer during the Post-Employment Period or
(ii) entice, induce or encourage any of Employer's other employees to engage in
any activity which, were it done by Employee, would violate any provision of
this Agreement. Employee understands that as used in this Section,. the term
"any line of business engaged in or under development by Employer" shall be
applied as of the date of termination of Employee's employment, or, if later, as
of the date of termination of any post-employment consultation. Direct
Competitors shall include companies engaged in, and providing,
telecommunications engineering and related services for the maritime/merchant
ship industry similar to those provided by Employer. This section shall not be
construed as to limit Employee's right to be engaged in telecommunications
engineering and related services in another field (i.e., not related to the ship
industry) in which Employee would not be directly competing with Employer's
target market. The Post-Employment Period may be extended by Employer in its
sole discretion for an additional period of up to one (1) year upon payment of
$24,000, payable $2,000 per month of the additional period.
(b) Reasonability of Restrictions. The parties hereto each agree that the
foregoing paragraph imposes a reasonable restraint on Employee in light of the
activities and business of Employer, and that such restraint is intended only to
protect the goodwill and other legitimate business interests of Employer.
Employee agrees that this Agreement is reasonable and enforceable. Employee
acknowledges that Employee will receive significant value and advantage as a
result of Employee's access to Employer's Proprietary Information, including,
without limitation, knowledge of and contact with customers, suppliers and
employees of Employer, which, if used improperly, would cause irreparable harm
to Employer and negatively impact the good will of Employer. Employee
acknowledges and agrees that the consideration offered by Employer under this
Agreement give rise to Employer's interest in restraining and prohibiting
Employee from engaging in the prohibited activities in the foregoing paragraph.
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Employee further agrees that the limitations imposed upon Employee in the
foregoing paragraph are reasonable as to time, geographic area and scope of
activity prohibited and do not impose a greater restraint than is necessary to
protect the goodwill and other legitimate business interests of Employer.
(c) Enforceability. It is the desire and intent of each of the parties that
the provisions of this Section 6 shall be enforced to the fullest extent
permissible under the laws and public policies applied in the State of New York.
Accordingly, if any particular portion of this Section 6 shall be adjudicated to
be invalid or unenforceable, Section 6 shall be deemed amended (i) to reform the
particular portion to provide for such maximum restrictions as will be valid and
enforceable or, if that is not possible, then (ii) to delete therefrom only the
portion thus adjudicated to be invalid or unenforceable.
Section 7. Prior Inventions.
Employee understands that all Inventions, if any, patented or unpatented,
which Employee made prior to Employee's employment with Employer, are excluded
from the scope of this Agreement. To preclude any possible uncertainty, Employee
has set forth on Exhibit A attached hereto a complete list of all of Employee's
prior Inventions, including numbers of all patents and patent applications, and
those that are a property of a previous employer. Employee represents and
covenants that the list is complete and that, if no items are on the list,
Employee has no such prior Inventions.
Section 8. Term of Agreement: Termination of Employment.
Employee's employment by Employer shall be on an at-will basis and
accordingly may be terminated at any time by Employer. Except as otherwise
specifically provided in this Agreement, such as under Sections 5(d) and 6(a)
hereof, this Agreement shall automatically extend for as long as Employee
continues to be employed by Employer. In the event of the termination of
Employee's employment by Employee or by Employer for any reason, Employee will
deliver to Employer all documents, notes, drawings, specifications, programs,
data, devices and other materials of any nature pertaining to Employee's work
with Employer and Employee will neither take with Employee nor recreate any of
the foregoing, any reproduction of any of the foregoing, or any Proprietary
Information that is embodied in a tangible medium of expression. Employee shall
notify Employer at least two weeks prior to voluntarily terminating
Employee's employment with Employer.
Section 9. Modification.
This Agreement may not be changed, modified, released, discharged,
abandoned or otherwise amended, in whole or in part, except by an instrument in
writing, signed by Employee and Employer. Employee agrees that any subsequent
change or changes in Employee's duties, salary or compensation shall not affect
the validity or scope of this Agreement.
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Section 10. Entire Agreement.
Employee acknowledges receipt of this Agreement and agrees that with
respect to the subject matter hereof it is Employee's entire agreement with
Employer, superseding any previous oral or written communications,
representations, understanding or agreements with Employer or any officer or
representative.
Section 11. Severability.
In the event that any paragraph or provision of this Agreement shall be
held to be illegal or unenforceable, such paragraph or provision shall be
severed from this Agreement and the entire Agreement shall not fail on account
thereof, but shall otherwise remain in full force and effect. If anyone or more
of the provisions contained in this Agreement shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision has never been contained herein.
Section 12. Successors and Assigns.
This Agreement shall be binding upon Employee's heirs, executors,
administrators or other legal representatives and is for the benefit of
Employer, and will inure to its successors and assigns.
Section 13. Employment Relationship Not Modified.
Except as provided herein, this Agreement shall in no way alter, modify,
change or amend any existing at-will or contractual employment relationship that
exists between Employer and Employee.
Section 14. Governing Law.
This Agreement shall be governed by the internal laws of the State of New
York, excluding its conflict of laws principles. The parties hereto consent to
the jurisdiction and venue of the courts located in New York County, New York
for the resolution of any disputes arising under or related to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the 8th of February, 2006.
EMPLOYEE: BROADBAND MARITIME INC.
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxx Xxxxx Xxxxxx
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[Xxxxx Xxxxxxxx] Name: Xxxx Xxxxx Xxxxxx
Title: President
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EXHIBIT A
PRIOR INVENTIONS OF EMPLOYEE
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