EXHIBIT 10.17
VOYAGER INFORMATION NETWORKS, INC.
AGREEMENT
REGARDING INVENTIONS, CONFIDENTIALITY
AND NON-COMPETITION
Employee's Name: Dennis Stepaniak
Date: March 11, 1999
In consideration of my employment by Voyager Information Networks, Inc.
(the "Company"), I, the above-named Employee, hereby agree with the Company as
follows:
1. Definitions.
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(a) Proprietary Information. As used in this Agreement, "Proprietary
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Information" means information which the Company possesses or to which the
Company has rights whether reduced to writing (or in a form from which such
information can be obtained, translated, or derived into reasonably usable
form), or maintained in my mind or memory, which derives independent economic
value from not being readily known to or ascertainable by proper means by others
who can obtain economic value from the disclosure or use of such information,
including, without limitation, financial information, reports, and forecasts;
inventions, improvements and other intellectual property; trade secrets; know-
how; designs, processes or formulae; software; marketing or sales information or
plans; customer lists; and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or facilities) which have
been discussed or considered by the management of the Company. Confidential
Information includes information developed by me in the course of my employment
by the Company, as well as other information to which I may have access in
connection with my employment. Confidential Information also includes the
confidential information of others with which the Company has a business
relationship.
(b) Inventions and Developments. As used in this Agreement,
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"Inventions and Developments" means any and all inventions, developments,
creative works and useful ideas of any description whatsoever, whether or not
patentable. Inventions and Developments include, by way of example and without
limitation, discoveries and improvements which consist of or relate to any form
of Proprietary Information.
(c) Company-Related Inventions and Developments. For purposes of this
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Agreement, "Company-Related Inventions and Developments" means all Inventions
and Developments which either (a) relate at the time of conception or
development to the actual or demonstrably anticipated business of the Company or
to its actual or demonstrably anticipated research and development; (b) result
from or relate to any work performed for the Company, whether or not during
normal business hours; (c) are developed on Company time; or (d) are
developed through the use of the Company's Proprietary Information, equipment
and software, or other facilities or resources.
(d) Company. For purposes of this Agreement, all references to the
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"Company" will be deemed to include the Company and its direct or indirect
subsidiaries and affiliates, including, without limitation, Voyager Holdings,
Inc.
(e) Services. For purposes of this Agreement, all references to
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"Services" means the development, manufacture or marketing of products, or
performance or marketing of services which are competitive with or similar to
the products or services of the Company, or products or services which the
Company has under development or which are the subject of active planning at any
time during my employment, including without limitation, the provision of
Internet connectivity, web hosting, web development and domain hosting services,
Internet telephony and competitive local exchange carrier services.
(f) Customer. For purposes of this Agreement, all references to
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"Customer" means any person or entity who (i) is receiving Services from the
Company on the date of termination of my employment with the Company, (ii)
received Services, directly or indirectly, from the Company or me at any time
during the one (1) year period immediately preceding the date of termination of
my employment with the Company, (iii) I solicited, directly or indirectly, in
whole or in part, on behalf of the Company to provide Services within one (1)
year preceding the termination of my employment, or (iv) anyone solicited,
directly or indirectly, in whole or in part, on behalf of the Company to provide
Services within one (1) year preceding the termination of my employment.
2. Confidentiality. I understand and agree that my employment creates a
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relationship of confidence and trust between me and the Company with respect to
(a) all Proprietary Information, and (b) the confidential information of others
with which the Company has a business relationship. The information referred to
in clauses (a) and (b) of the preceding sentence is referred to in this
Agreement, collectively, as "Confidential Information." At all times, both
during the term of my employment and after its termination, I will keep in
confidence and trust all such Confidential Information, and will not use or
disclose any such Confidential Information without the written consent of the
Company, except as may be necessary in the ordinary course of performing my
duties to the Company. The restrictions set forth in this Section 2 will not
apply to information which is generally known to the public or in the trade,
unless such knowledge results from an unauthorized disclosure by me, but this
exception will not affect the application of any other provision of this
Agreement to such information in accordance with the terms of such provision.
3. Documents, records, etc. All documents, records, apparatus, equipment
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and other physical property, whether or not pertaining to Confidential
Information, which are furnished to me by the Company or are produced by me in
connection with my employment will be and remain the sole property of the
Company. I will return to the Company all such materials and property as and
when requested by the Company. In any event, I will return all such materials
and property
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immediately upon termination of my employment for any reason. I will not take
with me any such material or property or any copies thereof upon such
termination.
4. Ownership of Inventions and Developments. I agree that all Company-
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Related Inventions and Developments which I conceive or develop, in whole or in
part, either alone or jointly with others, during the term of my employment with
the Company will be the sole property of the Company. The Company will be the
sole owner of all patents, copyrights and other proprietary rights in and with
respect to such Company-Related Inventions and Developments. To the fullest
extent permitted by law, such Company-Related Inventions and Developments will
be deemed works made for hire. I hereby transfer and assign to the Company any
proprietary rights which I may have or acquire in any such Company-Related
Inventions and Developments, and I waive any moral rights or other special
rights which I may have or accrue therein. I agree to execute any documents
and take any actions that may be required to effect and confirm such transfer
and assignment and waiver. The provisions of this Section 4 will apply to all
Company-Related Inventions and Developments which are conceived or developed
during the term of my employment with the Company, whether before or after the
date of this Agreement, and whether or not further development or reduction to
practice may take place after termination of my employment, for which purpose it
will be presumed that any Company-Related Inventions and Developments conceived
by me which are reduced to practice within one year after termination of my
employment were conceived during the term of my employment with the Company
unless I am able to establish a later conception date by clear and convincing
evidence. The provisions of this Section 4 will not apply, however, to any
Inventions and Developments which may be disclosed in a separate Schedule
attached to this Agreement prior to its acceptance by the Company, representing
Inventions and Developments made by me prior to my employment by the Company.
5. Disclosure of Inventions and Developments. I agree promptly to
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disclose to the Company, or any persons designated by it, all Company-Related
Inventions and Developments which are or may be subject to the provisions of
Section 4.
6. Obtaining and Enforcing Proprietary Rights. I agree to assist the
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Company, at the Company's request from time to time and at the Company's
expense, to obtain and enforce patents, copyrights or other proprietary rights
with respect to Company-Related Inventions and Developments in any and all
countries. I will execute all documents reasonably necessary or appropriate for
this purpose. This obligation will survive the termination of my employment,
provided that the Company will compensate me at a reasonable rate after such
termination for time actually spent by me at the Company's request on such
assistance. In the event that the Company is unable for any reason whatsoever
to secure my signature to any document reasonably necessary or appropriate for
any of the foregoing purposes (including renewals, extensions, continuations,
divisions or continuations in part), I hereby irrevocably designate and appoint
the Company and its duly authorized officers and agents as my agents and
attorneys-in-fact to act for me and on my behalf, but only for the purpose of
executing and filing any such document and doing all other lawfully permitted
acts to accomplish the foregoing purposes with the same legal force and effect
as if executed by me.
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7. Competitive Activities. During the term of my employment with the
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Company, and for a period of one (l) year thereafter, regardless of reason for
termination, I will not, directly or indirectly, whether as owner, partner,
shareholder, consultant, agent, employee, co-venturer or otherwise, engage,
participate or invest in any business activity in the Restricted Region with
respect to the Services. The prohibition set forth in this Section 7 shall not
restrict me from owning or holding up to one percent (1%) of the shares of stock
of any company registered or sold on any recognized stock exchange or sold in
the over-the-counter market. I understand and agree that the restrictions set
forth in this Section 7 are intended to protect the Company's reasonable
competitive business interests, its interest in its Proprietary Information and
established and prospective customer relationships and goodwill, and agree that
such restrictions are reasonable and appropriate for this purpose. For purposes
hereof, the "Restricted Region" shall mean any state or location in which the
Company operates and conducts its business or into which the Company directs its
services.
8. Nonsolicitation of Customers. During the term of my employment with
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the Company and for one (1) year thereafter, regardless of reason for
termination, I will not, in any capacity, directly or indirectly:
(a) solicit the business or patronage of any Customer for any other
person or entity for the purpose of providing Services;
(b) divert, entice, or otherwise take away from the Company the
business or patronage of any Customer, or attempt to do so;
(c) solicit or induce any Customer to terminate or reduce its
relationship with the Company;
(d) provide or assist with the provision of Services to a Customer
(except in his capacity as an employee of the Company); or
(e) refer a Customer to another provider of Services.
9. Nonsolicitation of Employees. During the term of my employment with
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the Company and for one (1) year thereafter, regardless of reason for
termination, I will not:
(a) hire or employ, directly or indirectly through any enterprise
with which I am associated, any current employee or consultant of
the Company or any individual who had been employed by or served
as a consultant to the Company within one (1) year preceding my
termination; or
(b) recruit, solicit or induce (or in any way assist another person
or enterprise in recruiting, soliciting or inducing) any employee
or consultant of the Company to terminate his or her employment
or other relationship with the Company.
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10. Acknowledgments. I acknowledge and agree that the restrictions set
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forth in this Agreement are intended to protect the Company's interest in
Confidential Information and its commercial relationships and goodwill (with its
customers, prospective customers, vendors, consultants and employees),
including, without limitation, Confidential Information, commercial
relationships and are reasonable and appropriate for these purposes.
11. Disclosure of Agreement. I will disclose the existence and terms of
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this Agreement to any prospective employer, partner, co-venturer, investor or
lender prior to entering into an employment, partnership or other business
relationship with such person or entity.
12. Third-Party Agreements and Rights. I hereby confirm that I am not
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bound by the terms of any agreement with any previous employer or other party
which restricts in any way my use or disclosure of information or my engagement
in any business, except as may be disclosed in a separate Schedule attached to
this Agreement prior to its acceptance by the Company. I have delivered to the
Company true and complete copies of any agreements listed on said Schedule. I
represent to the Company that my execution of this Agreement, my employment with
the Company and the performance of my proposed duties for the Company will not
violate any obligations I may have to any such previous employer or other party.
In my work for the Company, I will not disclose or make use of any information
in violation of any agreements with or rights of any such previous employer or
other party, and I will not bring to the premises of the Company any copies or
other tangible embodiments of non-public information belonging to or obtained
from any such previous employment or other party.
13. Injunction. I agree that it would be difficult to measure any damages
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caused to the Company which might result from any breach by me of the promises
set forth in this Agreement, and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly, I agree that if I breach, or
propose to breach, any portion of this Agreement, the Company shall be entitled,
in addition to all other remedies that it may have, to an injunction or other
appropriate equitable relief to restrain any such breach without showing or
proving any actual damage to the Company.
14. Binding Effect. This Agreement will be binding upon me and my heirs,
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executors, administrators and legal representatives and will inure to the
benefit of the Company, any subsidiary of the Company, and its and their
respective successors and assigns.
15. Enforceability. If any portion or provision of this Agreement is to
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any extent declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, will not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. In the event that any provision of this
Agreement is determined by any court of competent jurisdiction to be
unenforceable by reason of excessive scope as to geographic, temporal or
functional coverage, such provision will be deemed to extend only over the
maximum geographic, temporal and functional scope as to which it may be
enforceable.
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16. Entire Agreement. This Agreement constitutes the entire agreement
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between the Company and myself with respect to the subject matter hereof, and
supersedes all prior representations and agreements with respect to such subject
matter. This Agreement may not be amended, modified or waived except by a
written instrument duly executed by the person against whom enforcement of such
amendment, modification or waiver is sought. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, in any particular case will
not prevent any subsequent enforcement of such term or obligation or to be
deemed a waiver of any separate or subsequent breach.
17. Notices. Any notices, requests, demands and other communications
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provided for by this Agreement will be sufficient if in writing and delivered in
person or sent by registered or certified mail, postage prepaid, to me at the
last address which I have filed in writing with the Company or, in the case of
any notice to the Company, at its main offices, to the attention of its Chief
Executive Officer.
18. Governing Law. This is a Michigan contract and shall be construed
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under and be governed in all respects by the laws of the State of Michigan.
[End of Text]
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I UNDERSTAND THAT THIS AGREEMENT AFFECTS IMPORTANT RIGHTS. I HAVE READ IT
CAREFULLY AND AM SATISFIED THAT I UNDERSTAND IT COMPLETELY.
/s/ Dennis Stepaniak
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Dennis Stepaniak
Accepted and Agreed to:
VOYAGER INFORMATION
NETWORKS, INC.
By: /s/ Christopher P. Torto
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Name: Christopher Torto
Title: Chief Executive Officer
Date: March 11, 1999
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