Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 29th day of November, 1999 by and
between xXXX.xxx, Inc. d/b/a Broadband Maritime, a New Hampshire business
corporation with its principal offices located at 000 Xxxx 00xx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000 ("ePCX" or "Employer"), and Xxx Xxxxxx, an individual
with a residence address of 000 Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
("Employee").
WITNESSETH:
WHEREAS Employer is a company providing innovative international Internet,
Internet-telephony and telecommunications service to the maritime market,
represented by its Board of Directors;
WHEREAS Employer has assembled a small, focused team of experienced
professionals, which has extensive knowledge of satellite engineering, telephony
engineering and switching, network deployment, foreign origination
telecommunications marketing, maritime management as well as international
accounting and operations:
WHEREAS Employee has credentials indicating substantial knowledge in areas
important to the success of Employer;
WHEREAS Employee has certified that he is knowledgeable in the areas in which
Employer intends to operate;
WHEREAS Employer wishes to employ Employee and Employee wishes to be employed;
and
WHEREAS the parties to this employment agreement wish to enter into a written
expression of their relationship as Employer and Employee.
NOW, THEREEORE, in consideration of the agreements contained in this Employment
Agreement, the parties, intending to be legally bound, agree as follows:
SECTION 1. EMPLOYMENT OF EMPLOYEE. Employer agrees to employ Employee, and
Employee accepts employment with Employer, commencing on the date shown above,
on and subject to the terms and conditions set forth in this Employment
Agreement.
SECTION 2. DUTIES OF EMPLOYEE.
SECTION 2.1 POSITION AND DUTIES. Employer agrees to employ Employee to act
as Chief Information Officer for Employer. Employee shall be responsible
for performing the following duties:
SECTION 2.1.1 overall responsibility for network integrity and
operations
SECTION 2.1.2 development and improvement of proprietary network
configuration and associated algorithms and software
SECTION 2.1.3 development and maintenance of vendor relations as
relates to network equipment and resources
SECTION 2.1.4 direction of network and satellite engineering staff
Employee's success in performing assigned tasks shall be measured by industry
standards for performance of mission critical systems including; without
limitation, reliability of the Company's deployed network. Employee shall also
be evaluated on his ability to take direction and his ability to work as an
integral part of a team. Employer reserves the right from time to time to change
the nature of Employee's duties and job title.
SECTION 2.2 TIME DEVOTED TO WORK. Employee agrees to devote Employee's
entire business time, attention, and energies, as well as Employee's best
talents and abilities to the business of Employer in accordance with
Employer's instructions and directions and shall not be engaged in any
other business activity, whether or not the activity is pursued for gain,
profit, or other pecuniary advantage, during the term of this employment
agreement without Employer's prior written consent. Nothing contained
herein shall prevent Employee from serving as a director or trustee of any
corporation or other organization, or in another capacity, with any
non-commercial enterprise provided that such service does not materially
interfere with the performance of Employee's duties hereunder and such
business or organization does not have business relations with or compete
with the Employer or any of its subsidiaries or affiliates.
SECTION 3. PLACE OF EMPLOYMENT. Employee shall be based at Employer's principal
office but shall be required to' travel away from that office on business as
needed by Employer. If Employer relocates its principal office to a different
metropolitan area or requests that Employee relocate to one of its offices in a
different metropolitan area and Employee consents to relocate to that new
location, Employer shall promptly pay or reimburse Employee for all reasonable
moving expenses incurred by Employee in connection with the relocation plus an
amount to reimburse Employee for any federal and state income taxes that
Employee has to pay on amounts reimbursed. Employer also shall indemnify
Employee against any loss incurred in connection with the sale of Employee's
principal residence. The amount of any loss shall be determined by taking the
difference between the average of two appraisal prices set by two independent
appraisers agreed to by Employer and Employee and the actual sales price of
Employee's principal residence.
SECTION 4. Compensation of Employee.
SECTION 4.1 BASE SALARY. For all services rendered by Employee under this
employment agreement, Employer agrees to pay Employee an annual base salary
of one hundred eighty thousand ($180,000) dollars, which shall be payable
to Employee in such installments, but not less frequently than monthly, as
are consistent with Employer's practice for its other Employees.
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SECTION 4.2 BENEFITS; INCENTIVES. During the term of his employment,
Employee shall be entitled to participate in all bonus, incentive
compensation, stock option or stock related right, retirement,
profit-sharing, medical payment, disability, health or life insurance and
other benefit plans and arrangements which may be or become available to
employees of the Employer in general; provided, that Employee shall be
required to comply with the conditions attendant to coverage by such plans
and arrangements.
SECTION 4.3 BUSINESS EXPENSES. Employer shall promptly pay or reimburse
Employee for all reasonable business expenses incurred by Employee in
performing Employee's duties and obligations under this employment
agreement, but only if Employee properly accounts for expenses in
accordance with Employer's policies. Employer and Employee agree
specifically that biweekly reimbursement shall be considered prompt for the
purposes of this Section.
SECTION 4.4 VACATIONS AND OTHER PAID ABSENCES. Employee shall be entitled
to fifteen (15) paid vacation days each calendar year during the term of
this Employment Agreement. Such vacation shall be taken at such time or
times as may be mutually agreed upon by the Employer and Employee. Employee
shall be entitled to the same paid holidays as authorized by Employer for
its other Employees. Employee shall be entitled to the same number of paid
sick days and personal absence days authorized by Employer for its other
Employees.
SECTION 5. TERMINATION OF EMPLOYMENT. Employee's employment shall commence on
November 29, 1999 and shall terminate on November 29, 2005, unless extended or
terminated sooner, as provided by this section (Section) of the Employment
Agreement. On November 28, 2005, and on each anniversary thereafter, Employee's
employment with Employer shall be extended automatically for an additional year
unless, at least ninety (90) days prior to the termination date, Employer or
Employee delivers to the other written notice that Employee's employment with
Employer is not to be extended.
SECTION 5.1 TERMINATION AT EMPLOYEE'S DEATH. Employee's employment with
Employer shall terminate at Employee's death.
SECTION 5.2 TERMINATION UPON EMPLOYEE'S DISABILITY. If, because of illness
or injury, Employee becomes unable to work full time for Employer for a
period of more than thirty (30) days, Employer may, in its sole discretion
at any time after that period give Employee thirty (30) days written notice
that it will replace Employee if Employee is unable to return to work full
time before the date specified in the written notice.
SECTION 5.3 TERMINATION BY EMPLOYEE. Employee may, but is not obligated to,
terminate this employment agreement at any time under the following
circumstances:
SECTION 5.3.1 Employee's health becomes so impaired that continued
performance of Employee's duties under this employment agreement would
be hazardous to Employee's physical or mental health.
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SECTION 5.3.2 There is a change in control of Employer such that
someone other than the current majority shareholder of Employer
becomes the beneficial owner of 50 percent or more of the voting power
of Employer. No transaction or event will be deemed to have caused a
change in control if Employee gives prior consent to the transaction
or event.
SECTION 5.3.3 Employer becomes insolvent or files a bankruptcy
petition.
SECTION 5.4 TERMINATION BY EMPLOYER. Employer may terminate Employee's
employment for cause. For the purposes of this Employment Agreement,
"Cause" shall be defined as follows: Employer shall have cause to terminate
Employee's employment if Employee repeatedly or willfully fails to perform
any duties required by this Employment Agreement, Employee is consistently,
flagrantly, or grossly negligent in the performance of required duties,
Employee engages in conduct that demonstrably or substantially damages
Employer, Employee is convicted of a felonious act of moral turpitude, or
Employee discloses material confidential information in violation of
Section 6 of this Employment Agreement.
SECTION 5.5 NOTICE OF TERMINATION. Any termination of Employee's employment
by Employer or Employee must be communicated to the other party by a
written notice of termination. The notice must specify the provision of
this Employment Agreement authorizing the termination and must set forth in
reasonable detail the facts and circumstances providing the basis for
termination of Employee's employment.
SECTION 5.6 DATE TERMINATION IS EFFECTIVE. If Employee's employment
terminates because this Employment Agreement expires, then Employee's
employment will be considered to have terminated on that expiration date.
If Employee's employment terminates because of Employee's death, then
Employee's employment will be considered to have terminated on the date of
Employee's death. If Employee's employment is terminated by Employee, then
Employee's employment will be considered to have terminated on the date
that notice of termination is given. If Employee's employment is terminated
by Employer for cause, then Employee's employment will be considered to
have terminated on the date specified by the notice of termination.
SECTION 5.7 COMPENSATION FOLLOWING TERMINATION. Regardless of the reason
for termination, Employer shall pay Employee Employee's then current base
salary through the date employment is terminated and Employer shall have no
further obligations to Employee under this Employment Agreement.
SECTION 5.8 ACCELERATED VESTING OF SHARES. Notwithstanding the provisions
of Section 4.4, above, all shares of common stock issued to Employee by
Employer shall vest in full upon a change of control of ePCX as defined un
Section 5.3.2., hereof. In the event of Employee's termination of
employment with Employer, or an affiliate, for any reason, with or without
cause, Employee shall be entitled to a pro rated share of the issued shares
calculated
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based on Section 4.4, hereof, and Employee's tenure with Employer. All of
Employee's unvested issued shares then remaining shall be tendered to the
Employer at the price of one ($.01) cent per share.
SECTION 6. CONFIDENTIAL INFORMATION. While employed by Employer, Employee shall
not disclose any material confidential information about Employer to anyone
other than an Employee of Employer or someone to whom disclosure is reasonably
necessary to perform Employee's duties without the written consent of Employer.
The president of ePCX is authorized by Employer to give such consent.
"Confidential information" does not include any information that is known
generally by the public, other than as a result of unauthorized disclosure by
Employee, or information that is not the type of information considered
confidential by persons engaged in a business that is the same or similar to
that conducted by Employer. Confidential information is material if its
disclosure would be materially damaging to Employer. For two (2) years after
Employee's employment with Employer terminates or, if longer, the period of time
remaining in the term of this Employment Agreement, Employee shall not disclose
any material confidential information, as described herein, except as required
in connection with any judicial or administrative proceeding or inquiry.
SECTION 7. NONCOMPETITION AGREEMENT. For two (2) years after Employee's
employment with Employer terminates, Employee agrees not to directly or
indirectly own, manage, control, or operate, serve as an officer, director,
partner, or employee of, or have any direct or indirect financial interest in,
or help anyone, either conduct any of Employer's businesses or assist any other
entity that competes with any business conducted by Employer or any of its
subsidiaries. No business will be considered conducted by Employer unless at
least ten (10%) percent of Employer's assets are devoted to the business or at
least ten (10%) percent of Employer's gross sales are derived from the business.
Whether an entity competes with a business conducted by Employer is determined
as of the date that Employee terminates employment with Employer.
SECTION 8. NOTICES. Any notice given under this Employment Agreement to either
party shall be made in writing. Notices shall be deemed given when delivered by
hand or when mailed by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the party at the address set forth below.
Employee's address: Xxx Xxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Employer's address: xXXX.xxx, Inc. d/b/a Broadband Maritime
000 Xxxx 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Each party may designate a different address for receiving notices by giving
written notice of the different address to the other party. The written notice
of the different address will be deemed given when it is received by the other
party.
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SECTION 9. BINDING AGREEMENT. The rights and obligations of Employer under this
employment agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Employer. This Employment Agreement shall inure to the
benefit and be enforceable by Employee's personal representatives, legatees, and
heirs. If Employee dies while amounts are still owed, such amounts shall be paid
to Employee's legatees or, if no such person or persons have been designated, to
Employee's estate.
SECTION 10. ATTORNEY'S FEES. If either party hereto shall breach any of the
terms hereof, such party shall pay to the non-defaulting party all of the
non-defaulting party's costs and expenses, including reasonable attorneys' fees,
incurred by such party enforcing the term of this Agreement.
SECTION 11. FORCE MAJEURE. Whenever a period of time is herein prescribed for
the taking of any action by either party hereto, such party shall not be liable
or responsible for any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws and regulations or any other cause
whatsoever beyond the control of such party.
SECTION 12. AMENDMENT AND WAIVER. This Agreement may be amended, or any
provision of this Agreement may be waived, provided that any amendment or waiver
will be binding on Client only if such amendment or waiver is set forth in a
writing executed by Client, and provided that any amendment or waiver will be
binding upon Agency only if such amendment or waiver is set forth in a writing
executed by Agency. The waiver of any party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
SECTION 13. CONSTRUCTION & APPLICABLE LAW. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York as
if the Agreement were fully executed and performed under the laws of the State
of New York so that the principles of conflicts of laws would not apply.
SECTION 14. SEVERABILITY. Should any provision of this Agreement be determined
to be invalid, illegal or unenforceable by a court of competent jurisdiction,
then such provision shall be amended by the parties hereto so as to make it
valid, legal and enforceable but keeping it as close to its original meaning as
possible. The invalidity, illegality or unenforceability of any provision shall
not affect in any manner the other provisions herein contained, which remain in
full force and effect
SECTION 15. GRAMMATICAL USAGE. Throughout this Agreement, reference to the
neuter gender shall be deemed to include the masculine and feminine, the
singular the plural and the plural the singular, as indicated by the context in
which used.
SECTION 16. HEADINGS; CONTEXT. The headings of the sections (Sections) and
paragraphs (P. P.) contained in this Agreement are for convenience of reference
only and do not form a part hereof and in no way modify, interpret or construe
the meaning of this Agreement.
SECTION 17. COUNTERPARTS. This Agreement may be executed in numerous
counterparts, all of which shall be considered one and the same agreement.
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SECTION 18. ENTIRE AGREEMENT. This Agreement contains all of the terms agreed
upon by the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements, representations and warranties of the parties
as to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties to this Employment Agreement have executed
this Agreement in multiple originals as of the day and year first above written.
EMPLOYER: XXXX.XXX, INC.
D/B/A BROADBAND MARITIME EMPLOYEE:
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BY: /S/ XXXXXXXXX XXXXXX /S/ XXX XXXXXX
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XXXX XXXXX XXXXXX, PRESIDENT
WITNESS: XXXXXXX XXXXXX WITNESS: /S/ XXXXXXX XXXXXX
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