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Exhibit 10(x)
EMPLOYMENT AGREEMENT
This Agreement to be effective November 15, 1999 is entered into by and
between AIM Group, Inc., a Delaware corporation ("AIM Group"), and its
wholly-owned subsidiary AIM Solutions, Inc., a Delaware corporation (the
"Employer"), and Xxxxxxx Xxxxxxxx, an individual residing at 000 Xxxxxx Xxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Employee").
WITNESSETH:
WHEREAS, Employer intends to engage in the information technology and
related businesses, including, but not limited to, internet services, software
development and sales, world wide web site development and sales, point of sales
technology and media and advertising (the "Information Technologies"); and to
conduct research, experimentation, development, and exploitation of these
related technologies and to engage in other businesses; and
WHEREAS, Employer desires to employ Employee, and Employee desires to be
employed by Employer in such capacities pursuant to the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, it is agreed as follows:
1. EMPLOYMENT: DUTIES AND RESPONSIBILITIES
Employer hereby employs Employee as a Vice President of Product Marketing
of AIM Group; and a Vice President of Product Marketing of Employer. Subject at
all times to the direction of the Officers and Board of Directors of Employer,
Employee shall serve in these capacities with respect to the overall operations
of AIM Group and the operations of Employer, including the performance of such
other general services and duties as the Board of Directors shall determine.
Employee shall serve in such other positions and offices of the Employer and its
affiliates, if selected, without any additional compensation.
Subject to the ultimate control and responsibility of the Board of
Directors of Employer and of AIM Group as its sole stockholder, until the end of
the term hereof, as defined in Section 4 hereof, Employee shall have the right
to participate in the management of the business and affairs of the Employer and
shall participate directly in the formulation of and execution of both short-
and long- term corporate plans, including, without limitation, the hiring,
retention or termination of employees, the setting of compensation and fringe
benefits of employees other than himself, the expansion of the business and the
making of commitments for capital expenditures out of cash flow of the Employer.
AIM shall cooperate with Employee in seeking to maintain and increase the
Employer's profitability.
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2. FULL TIME EMPLOYMENT
Employee hereby accepts employment by Employer upon the terms and
conditions contained herein and agrees that during the term of this Agreement,
the Employee shall devote substantially all of his business time, attention, and
energies to the business of the Employer. Employee, during the term of this
Agreement, will not perform any services for any other business entity, whether
such entity conducts a business which is competitive with the business of
Employer or is engaged in any other business activity, provided, however, that
nothing herein contained shall be construed as (a) preventing Employee from
investing his personal assets in any business or businesses which do not compete
directly or indirectly with the Employer, provided such investment or
investments do not require any services on his part on the operation of the
affairs of the entity in which such investment is made and in which his
participation is solely that of an investor, (b) preventing Employee from
purchasing securities in any corporation whose securities are regularly traded,
if such purchases shall not result in his owning beneficially at any time more
than 5% of the equity securities of any corporation engaged in a business which
is competitive, directly or indirectly, to that of Employer, or (c) preventing
Employee from engaging in any activities, if he receives the prior written
approval of the Board of Directors of Employer with respect to his engaging in
such activities.
3. RECORDS
In connection with his engagement hereunder, Employee shall accurately
maintain and preserve all notes and records generated by Employer which relate
to Employer and its business and shall make all such reports, written if
required, as Employer may reasonably require.
4. TERM
(a) Term. Employee's employment hereunder shall be for a period of two
one-year terms (each one year term shall be deemed a Contract Year) to commence
on the date hereof and shall continue until the earlier of (A) the second
anniversary of the date hereof or (B) the occurrence of any of the following
events:
(i) the death or Total Disability of Employee ("Total Disability"
meaning the failure of Employee to perform his normal required services
hereunder at his office for a period of three (3) consecutive months, by
reason of Employee's mental or physical disability as so determined by a
licensed physician selected by the Employer satisfactory to Employee);
(ii) the mutual written agreement of the parties hereto to terminate
Employee's employment hereunder;
(iii) the Employer's termination of Employee's employment hereunder,
upon thirty (30) days' prior written notice to Employee, for "Cause" when
it is reasonable to do
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so; or
(iv) the Employee's termination of his employment hereunder for
"Good Reason."
(b) Certain Definitions.
(i) For purpose of this Agreement, "Cause" shall mean (A) the
repeated failure or refusal of Employee to follow the lawful directives of
the Employer or its designee (except due to sickness, injury or
disabilities), (B) gross inattention to duty or any other willful,
reckless or grossly negligent act (or omission to act) by Employee, which,
in the good faith judgment of the Board of Directors of the Employer,
materially injures the Employer, including the repeated failure to follow
the policies and procedures of the Employer (it being understood, however,
that neither conduct nor activities pursuant to Employee's exercise of his
good faith business judgment nor unintentional physical damage to any
property of Employer shall be a ground for such a determination by such
Board of Directors, (C) a material breach of this Agreement by Employee or
(D) the conviction of Employee of a felony crime involving moral turpitude
or an act of financial dishonesty against the Employer, after, with
respect to the matters addressed in clauses (A), (B) and (C) of this
subsection, written notice with specificity as to the conduct or
activities complained of and a reasonable opportunity is given to Employee
to cure the same.
(ii) For purposes of this Agreement "Good Reason" shall mean (A) any
assignment to Employee, without his consent, of any duties materially
different from those contemplated by, or any material limitation of the
powers of Employee in any respect not contemplated by, Section 1 hereof,
(B) any removal of Employee from or any failure to re-elect Employee to
any of the positions indicated in Section 1 hereof, except in connection
with termination of Employee's employment for Cause or Total Disability,
(C) a reduction in Employee's Base Salary, or any other material failure
by the Employer to comply with Section 5 hereof, or (D) any material
failure by the Employer to comply with subparagraph (iii) of Section 4(a)
hereof, after, with respect to the matters addressed in clauses (A), (B),
(C) and (D) of this subsection, written notice with specificity as to the
conduct or activities complained of and a reasonable opportunity is given
to Employer to cure the same.
(c) Notice of Termination. Any termination of Employee's employment by the
Employer or by Employee (other than termination for death) shall be communicated
by written Notice of Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Employee's employment under the provision so indicated.
(d) Date of Termination. "Date of Termination" shall mean (i) if
Employee's
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employment is terminated by his death, the date of his death, (ii) if Employee's
employment is terminated for Total Disability, thirty (30) days after Notice of
Termination is given (provided that Employee shall not have returned to the
performance of his duties on a full-time basis during such thirty (30) day
period), (iii) if Employee's employment is terminated for Cause, the date
specified in the Notice of Termination, and (iv) if Employee's employment is
terminated for any other reason, the date on which a Notice of Termination is
given; provided, however, that, in all instances, if within thirty (30) days
after any Notice of Termination is given, the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
final judgment order or decree of a court of competent jurisdiction (the time
for appeal therefrom having expired and no appeal having been perfected).
(e) Exclusive Provisions. Employee may not be terminated by the Employer
and Employee may not terminate his employment hereunder except as provided in
this Section 4.
5. COMPENSATION
(a) As full compensation for the performance of his duties on behalf of
Employer, Employee shall be compensated as follows:
(i) Base Salary. Employer shall pay Employee a base salary ("Base
Salary") at the rate of One Hundred Twenty-Five Thousand Dollars ($125,000) per
annum, payable semi-monthly; provided, however, that in the event that the
aggregate gross revenues of Employer attributable to the combined businesses of
Client Server Solutions, Inc., and Enterprise Solutions Group, Inc.
(collectively, the "CSS Group") for the first Contract Year equal or exceed Six
Million Dollars ($6,000,000), Employee shall receive a bonus equal to
Twenty-Five Thousand Dollars ($25,000), which bonus shall be paid to Employee
within 45 days of the end of the first Contract Year, and Employer shall pay
Employee a revised Base Salary at the rate of One Hundred Fifty Thousand Dollars
($150,000) per annum for the second Contract Year. If the gross revenues of
Employer attributable to the CSS Group during the first Contract Year are less
than Six Million Dollars ($6,000,000), then Employee shall receive a bonus in an
amount to be calculated as set forth on Exhibit A hereto, which bonus shall be
paid to Employee within 45 days of the end of the second Contract Year and
Employee's Base Salary for the second Contract Year shall remain One Hundred
Twenty-Five Thousand Dollars ($125,000). If the parties agree to renew this
Agreement for a subsequent term or terms, base salary shall be increased from
its then current rate by the greater of; a) a minimum of Five-Percent (5%) per
year (the "Minimum Increase"); or b) as the Board of Directors shall determine
if in excess to the Minimum Increase, payable semi-monthly beginning January 1,
2001. Future salary increases will be subject to mutual agreement in accordance
with job performance. The Base Salary shall be payable in accordance with the
usual and customary payroll payment practices from time to time adopted by
Employer.
Directors may consider other meritorious adjustments in compensation or a
bonus under appropriate circumstance, including the conception of valuable or
unique inventions, processes,
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discoveries or improvements capable of profitable exploitation.
(ii) Performance Bonus. Upon the proposed establishment of AIM
Group's Performance Profit Sharing Plan (the "Plan"), Employee shall receive a
performance bonus based upon the pre-tax profit generated from the Employer
("additional compensation") as shall be determined by the Board of Directors of
AIM Group. For each year of employment, in the event the Plan has not been
established by the end of that year and the CSS Group shows a "net pre-tax
profit" (as hereinafter defined) for that year, then Employee shall receive a
bonus equal to one month's salary. For purposes hereof, "net pre-tax profit"
shall mean the income of Employer attributable to the CSS Group before (a)
income and deductions not related to primary operations (i.e., gains or losses
on disposal of fixed assets and other miscellaneous unrelated items); (b) taxes
based on income; (c) discontinued operations; (d) cumulative effects of
accounting changes; and (e) extraordinary items, and shall in no event include
any allocation of corporate expenses by and between Client Server Solutions,
Inc. and CSS Financial Software Sales, Inc., and Enterprise Solutions Group,
Inc. and their direct and indirect parents (subject to adjustment), amortization
of goodwill or other intangible assets relating to the merger effected by the
Agreements and Plans of Merger of Client Server Solutions, Inc. and CSS
Financial Software Sales, Inc. with and into AIM Solutions, Inc. and of
Enterprise Solutions Group, Inc. with and into AIM Solutions, Inc. ("Mergers")
or interest expense related to the Mergers, all of which shall be determined in
accordance with generally accepted accounting principles consistently applied.
(g) Employer shall reimburse Employee for the expenses incurred by
Employee in connection with his duties hereunder, including travel on
businesses, attending technical and business meetings, professional activities
and entertainment, such reimbursement to be made in accordance with regular
Employer policy and upon presentation by Employee of the details of, and
originals of vouchers for, such expenses.
(h) Employer shall maintain term life insurance on the life of the
Employee, to the extent that it is reasonable to do so, in the amount of
$1,000,000.00, with the Employer to receive 75% of any proceeds paid out under
the insurance policy and the Employee to have the right to designate the
recipient(s) of the remaining 25% of such proceeds. Premiums on this policy
shall be paid in the same proportion that the proceeds of the policy are to be
dispersed. Nothing herein shall require the Employer to retain such life
insurance coverage. However, the Employer intends to provide Employee with such
coverage as is afforded to other similarly situated employees of the Employer,
to the extent it is reasonable to do so.
(d) If Employee's employment shall be terminated upon the expiration of
the term of this Agreement as set forth in Section 1 hereof, the Employer shall
pay Employee his full Base Salary through the Date of Termination at the rate in
effect at that time.
(e) If Employee's employment shall be terminated by reason of his death,
the Employer shall pay to such person as Employee shall designate in a notice
filed with the Employer, or, if no such person shall be designated, to his
estate as a lump sum death benefit, his full Base Salary to the date of his
death in addition to any payments Employee's spouse,
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beneficiaries or estate may be entitled to receive pursuant to any pension or
employee benefit plan or life insurance policy presently maintained by the
Employer, and such payments shall fully discharge the Employer's obligations
hereunder.
(f) During any period that Employee fails to perform his duties hereunder
as a result of incapacity due to physical or mental illness, Employee shall
continue to receive his full Base Salary and bonus payments until Employee's
employment is terminated for Total Disability pursuant to Section 4 hereof.
After termination due to Total Disability, Employee shall be paid 100% of his
Base Salary at the rate in effect at the time Notice of Termination is given
less, in each case, any disability payments otherwise payable by or pursuant to
plans provided by the Employer and actually paid to Employee in substantially
equal monthly installments over the remaining term hereof, and the Employer
shall have no further obligations to Employee under this Agreement.
(g) If Employee's employment shall be terminated for Cause, the Employer
shall pay Employee his full Base Salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given and the Employer shall
have no further obligations to Employee under this Agreement.
(h) If (A) in breach of this Agreement, the Employer shall terminate
Employee's employment other than in the manner allowed pursuant to Section 4
hereof (a purported termination pursuant to Section 4 hereof which is disputed
and finally determined not to have been proper shall be a termination by the
Employer in breach of this Agreement) or (B) Employee shall terminate his
employment for Good Reason, then:
(i) the Employer shall pay Employee his full Base Salary through the
Date of Termination at the rate in effect at the time Notice of
Termination is given and the amount, if any, with respect to any year then
ended which pursuant to the Plan would have accrued to Employee on the
basis of the Employer's performance but which has not yet been paid to
him; and
(ii) in lieu of any further salary payments to Employee for periods
subsequent to the Date of Termination, the Employer shall pay as severance
pay to Employee in substantially equal monthly installments until the
second anniversary of the date hereof an amount equal to the product of
(A) an amount equal to the sum of (i) the annual Base Salary at the
highest rate in effect during the twelve (12) months immediately preceding
the Date of Termination plus (ii) the highest annual bonus payments paid
or accrued pursuant to this Agreement, multiplied by (B) a fraction, the
numerator of which shall be the number of whole months remaining under the
term hereof and the denominator of which shall be twelve (12); and
(iii) all stock options granted to the Employee during the term
hereof (if any) shall become immediately exercisable and shall become
immediately vested.
(i) Employee shall not be required to mitigate the amount of any payment
provided
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for in this Section 5 by seeking other employment or otherwise, nor shall the
amount of any payment provided for in this Section 5 be reduced by any
compensation earned by Employee as the result of employment by another employer
after the Date of Termination.
6. FRINGE BENEFITS
(a) During the term of this Agreement, Employer, at its sole
expense, shall provide to Employee, hospitalization, major medical and other
fringe benefits on the same terms and conditions as it shall afford other
similarly situated employees. . Nothing herein shall require Employer to
maintain such coverage.
(b) During the term of this Agreement, Employer shall provide paid
vacation to Employee which accrues from the date of execution of this Agreement.
The annual paid vacation earned for each twelve month period is: (i) three (3)
weeks per annum up to three (3) years of full-time employment (including the
first year of employment hereunder); (ii) four (4) weeks per annum up to seven
(7) years of full-time employment; and (iii) five (5) weeks per annum over seven
(7) years of full-time employment.
(c) During the term of this Agreement, Employee shall have the same
right as other similarly situated employees to participate in all
profit-sharing, pension or retirement and incentive compensation or stock option
plans of Employer or its ultimate parent, if any, as are now or may hereafter be
established.
7. SUBSIDIARIES
For the purposes of this Agreement all references to business products,
services and sales of Employer shall include those of Employer's affiliates.
8. INVENTORIES: SHOP RIGHTS
All systems, inventions, discoveries, apparatus, techniques, methods,
know-how, formulae or improvements made, developed or conceived by Employee
during Employee's employment by Employer, whenever or wherever made, developed
or conceived, and whether or not during business hours, which constitutes an
improvement, on those heretofore, now or at any during Employee's employment,
developed, manufactured or used by Employer in connection with the manufacture,
process or marketing of any product heretofore or now or hereafter developed or
distributed by Employer, or any services to be performed by Employer or of any
product which shall or could reasonable be manufactured or developed or marketed
in the reasonable expansion of Employer's business, shall be and continue to
remain Employer's exclusive property, without any added compensation or any
reimbursement for expenses to Employee, and upon the conception of any and every
such invention, process, discovery or improvement and without waiting to perfect
or complete it, Employee promises and agrees that Employee will immediately
disclose it to Employer and to no one else and thenceforth will treat it as the
property and secret of Employer.
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Employee will also execute any instruments requested from time to time by
Employer to vest in it complete title and ownership to such invention, discovery
or improvement and will, at the request of Employer do such acts and execute
such instrument as Employer may require but at Employer's expense to obtain
Letters of Patent, trademarks or copyrights in the United States and foreign
countries, for such invention, discovery or improvement and for the purpose of
vesting title thereto in Employer, all without any reimbursement for expenses
(except as provided in Section 5 or otherwise) and without any additional
compensation of any kind of Employee.
9. NON-DISCLOSURE
(g) Employee acknowledges that the services to be rendered by him or her to
Employer are peculiar, special, unique and extraordinary, and that he may during
the term of his employment obtain confidential information of Employer's method
of doing business, secrets, customers, suppliers, formulae, and processes, the
use or revelation of which by Employee during Employee's employment or after the
termination of the employment hereunder, might, would or could injure or cause
injury to Employer's business. Accordingly, Employee agrees to forever keep
secret and inviolate any knowledge or information as to any of Employer's secret
articles, devices, formulae, processes, invention, customers, suppliers, or
discoveries and will not utilize the same for his private benefit or indirectly
for the benefit of others and will never disclose such secret knowledge or
information to anyone else. The foregoing shall not be applicable to any
information which now is or hereafter shall be in the public domain in the
context in which used provided the Employee does not release such information
without Employer's authorization.
(h) In addition, Employee agrees that all information received from principals
and agents of Employer will be held in total confidence for a period of two (2)
years following termination of employment.
10. [Intentionally Blank]
11. INJUNCTION
(a) Should Employee at any time reveal or threaten to reveal any
such secret knowledge or information, or during any restricted period, engage or
threaten to engage in any business in competition with that of Employer, or
perform or threaten to perform any services for anyone engaged in such
competitive business, or in any way violate or threaten to violate any of the
provisions of this Agreement, Employer shall be entitled to an injunction
restraining Employee from doing or continuing to do or performing any such acts;
and Employee hereby consents to the issuance of such an injunction.
(b) In the event that a proceeding is brought in equity to enforce
the provisions of this Paragraph, Employee shall not argue as a defense that
there is an adequate remedy at law, nor shall Employer be prevented from seeking
any other remedies which may be available.
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(c) The existence of any claim or cause of action by Employer
against Employee, or by Employee against Employer, whether predicated upon this
Agreement or otherwise, shall not constitute a defense to the enforcement by
Employer of the foregoing restrictive covenants but shall be litigated
separately.
12. PRIOR AGREEMENTS
Employee represents that Employee is not now under any written agreement,
nor has he previously, at any time entered into any written agreement with any
person, firm or corporation, which would or could in any manner preclude or
prevent Employee from giving freely and Employer receiving the exclusive benefit
of his services.
13. MISCELLANEOUS
If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, the remaining conditions and provisions or portions thereof
shall nevertheless remain in full force and effect and enforceable to the extent
they are valid, legal and enforceable, and no provision shall be deemed
dependent upon any covenant or provision so expressed herein.
All prior agreements with respect to the subject matter hereof between the
parties are hereby cancelled. This Agreement contains the entire agreement of
the parties relating to the subject matter hereof, and the parties hereto have
made no agreements, representations or warranties relating to the subject matter
of this Agreement which are not set forth herein. No modification of this
Agreement shall be valid unless made in writing and signed by the parties
hereto.
The rights, benefits, duties and obligations under this Agreement shall
inure to, and be binding upon, the Employer, its successors and assigns, and
upon the Employee and his legal representatives, heirs and legatees. If Employee
should die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to Employee's devisee,
legatee, or other designee or, if there be no such designee, to the Employee's
estate. Notwithstanding anything herein to the contrary, if Employee should die
during the term of this Agreement, Employee's devisee, legatee, other designee
or estate shall only be entitled to collect the unpaid portion of Employee's
Base Salary to and through the date of Employee's death, and in such event, any
bonus earned under this Agreement shall be pro-rated for the portion of the
Contract Year during which the Employee was alive and employed by Employer. This
Agreement constitutes a personal service agreement, and the performance of the
Employee's obligations hereunder may not be transferred or assigned by the
Employee.
The failure of either party to insist upon the strict performance of any
of the terms, conditions and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions and provisions shall remain in full force and effect. No waiver of
any term or conditions of this Agreement on the part of either
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party shall be effective for any purpose whatsoever unless such waiver is in
writing and signed by such party.
This Agreement shall be construed and governed by the laws of the State of
Georgia.
Any controversy or claim arising under, out of, or in connection with this
Agreement or any breach or claimed breach thereof, shall be settled by
arbitration before the American Arbitration Association, in Atlanta, Georgia,
before a panel of three arbitrators, in accordance with its rules, and judgement
upon any award rendered may be entered in any court having jurisdiction thereof.
If any party to this Agreement shall bring any action, suit, counterclaim,
appeal, arbitration or mediation for any relief against the other, declaratory
or otherwise, to enforce the terms hereof or to declare rights hereunder
(collectively, an "Action"), the losing party shall pay to the prevailing party
a reasonable sum for attorneys' fees and costs (at the prevailing party's
attorneys' then prevailing rates as increased from time to time by the giving of
advance written notice by such counsel to such party) incurred in bringing and
prosecuting such Action and/or enforcing any judgment, order, ruling or award
(collectively, a "Decision") granted therein, all of which shall be deemed to
have accrued on the commencement date of such Action and shall be paid whether
or not such Action is prosecuted to a Decision. Any Decision entered in such
Action shall contain a specific provision providing for the recovery of
attorneys' fees and costs incurred in enforcing such Decision. The court or
arbitrator may fix the amount of reasonable attorneys' fees and costs on the
request of either party. For the purposes of this paragraph, attorneys' fees
shall include, without limitation, fees incurred in the following: (1)
post-judgment motions and collection actions; (2) contempt proceedings; (3)
garnishment, levy and debtor and third party examinations; (4) discovery; and
(5) bankruptcy litigation. "Prevailing party" within the meaning of this
paragraph includes, without limitation, a party who agrees to dismiss an Action
on other party's payment of the sums allegedly due or performance of the
covenants allegedly breached, or who obtains substantially the relief sought by
it.
This Agreement may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
[ The next page is the signature page. ]
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IN WITNESS WHEREOF the parties have set their hands and seals on the date first
above written.
On Behalf of Employer:
AIM GROUP, INC. and
AIM SOLUTIONS, INC.
By: /s/ Xxxx X. Arena
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XXXX X. ARENA, President
/s/ Xxxxxxx Xxxxxxxx
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XXXXXXX XXXXXXXX, Employee
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EXHIBIT A
Bonus Calculation Chart
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Contract Year If gross revenues equal: Then the bonus shall be:
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First-year term $0 $0
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Between $0 and $6,000,000 $25,000 x (Gross Revenues/$6,000,000)
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$6,000,000 or greater $25,000
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For example only, if gross revenues for the first-year term equal $1,500,000,
then the bonus to be paid to Employee shall be calculated as follows:
$25,000 x $2,250,000 = $9,375 bonus
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$6,000,000
