Employment Agreement
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and among Xxxxxx
X. Xxxxxx, an individual residing in the State of Florida whose social security
number is 576-86- 3637 (the "Employee"); AmeriNet Communications, Inc., a
Florida corporation ("AmeriCom"; AmeriCom and the Employee being sometimes
hereinafter collectively to as the "Parties" or generically as a "Party".
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of the Employee's
employment hereunder shall be deemed to have commenced on July 5, 2000 and shall
continue until June 30, 2001.
1.2 Renewals.
(a) This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing
not to renew this Agreement provides the other Party with written
notice of its election not to renew ("Termination Election Notice") on
or before the 30th day prior to termination of the then current term.
(b) In the event that in conjunction with a renewal of this Agreement, a
Party desires a modification of the terms of this Agreement that are
not of general application (e.g., the provisions pertaining to salary,
commissions, etc.), then:
(1) Such Party shall provide the other with a written notice
specifying the requested modifications (the "Modification
Request Notice") on or before the 45th day prior to
termination of the then current term which;
(2) If the modifications specified in the Modifications Request
Notice are accepted in writing by the other Party prior to
expiration of the then current term, the Modifications
Request Notice shall be deemed a written amendment to this
Agreement, effective as of the first day of the new renewal
term;
(3) If the Party receiving the Modifications Request Notice
finds the proposed modifications unacceptable, it may
initiate negotiations to reach compromise modifications with
the Party providing the Modifications Request Notice, which
must be concluded and reflected in a written amendment to
this Agreement prior to the end of the then current term,
failing which, the provisions of Section 1.2(B)(4) will be
deemed in effect;
(4) If the modifications specified in the Modifications Request
Notice are not accepted in writing by the other Party prior
to expiration of the then current term, the Modifications
Request Notice shall be deemed a Notice of Termination and
this Agreement will expire effective as of the close of
business on the last day of the then current term.
1.3 Earlier Termination.
AmeriCom shall have the right to terminate this Agreement prior to the
expiration of its Term or of any renewals thereof:
(a) For Cause:
(1) AmeriCom may terminate the Employee's employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice
thereof to the Employee, which notice shall specify the
cause for termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Employee, through sickness or
other incapacity, to discharge his duties under this
Agreement for ten or more consecutive days or for a total of
30 or more days in a period of twelve consecutive months;
(B) The failure of the Employee to abide by the individual
performance plan formulated by the Employee's immediate
supervisor;
(C) Dishonesty; theft; insubordination or conviction of a
crime;
(D) Material default in the performance of the Employee's
obligations, services or duties required under this
Agreement (other than due to illness) or material breach of
any provision of this Agreement, which default or breach has
not been completely remedied within three days after written
notice of such default or breach.
(b) Deterioration or Discontinuance of Business:
(1) In the event that AmeriCom experiences material business
reversals or fails to meet the operational criteria
reflected in its projections or business plans, then, at the
option of AmeriCom, this Agreement shall terminate as of a
date selected by AmeriCom with the same force and effect as
if such date was the date originally set as the termination
date hereof.
(2) In the event that AmeriCom discontinues operating its
business, this Agreement shall terminate as of the last day
of the month on which it ceases operation with the same
force and effect as if such last day of the month were
originally set as the termination date hereof; provided,
however, that a reorganization of AmeriCom shall not be
deemed a termination of its business.
(c) Death:
This Agreement shall terminate immediately on the death of the
Employee; however, all accrued compensation at such time shall be promptly paid
to the Employee's estate.
1.4 Severance Payments and Alternatives to Termination
In the event this Agreement is terminated for reasons other than for
cause as described in Section 1.3(b) above, the Employee shall be entitled to
either ten days prior written notice or to a severance payment in a sum equal to
the salary that would have been paid had ten days prior written notice been
provided; provided, however, that in lieu of termination, AmeriCom may offer to
continue this Agreement under modified compensation arrangements, if such
arrangements are reflected in the written notice and accepted by the Employee
prior to the end of the ten day notice period.
1.5 Final Settlement.
Upon termination of this Agreement, the Employee shall:
(a) Immediately tender to AmeriCom all records, manuals and written
procedures, as may be desired by it for the continued conduct of its
business; and
(b) Be entitled to payment of all accrued but theretofore unpaid
compensation and, concurrently with receipt thereof, the Employee or the
Employee's representative shall execute and deliver to AmeriCom on a form
prepared by AmeriCom, a release of all claims except such claims as may
have been submitted pursuant to the terms of this Agreement and which
remain unpaid due to disputed amounts or otherwise.
Article Two
Scope of Employment
2.1 Retention.
AmeriCom hereby hires the Employee and the Employee hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) The Employee shall perform the duties generally described in exhibit
2.2(a) annexed hereto or made a part hereof, as well as any duties
reasonably incidental thereto.
(b) The Employee shall also perform such reasonable duties as may be
directed from time to time by AmeriCom's board of directors or the
Employee's superior officers.
2.3 Status.
(a) The Employee shall serve as a commissioned and salaried rather than a
hourly employee of AmeriCom, the Parties acknowledging that the nature of
the Employees' services are marketing and sales, managerial, artistic or
professional, rather than clerical, secretarial, or pertaining to custodial
or maintenance services.
(b) The Employee shall not be deemed an agent of AmeriCom and may not take
any actions which would be deemed binding on AmeriCom, without prior
authorization therefor reflected in a written resolution of AmeriCom's
board of directors.
2.4 Exclusivity.
(a) Unless specifically otherwise authorized by AmeriCom's board of
directors, on a case by case basis, in writing, all of the Employee's
business time shall be devoted exclusively to the affairs of AmeriCom.
(b) Without limiting the generality of the foregoing, the Employee
covenants to perform the employment duties called for hereby in good faith,
devoting substantially all business time, energies and abilities thereto
and will not engage in any other business or commercial activities for any
person or entity without the prior written consent of AmeriCom.
Article Three
Compensation
3.1 Compensation.
(a) The compensation set forth in exhibit 3.1(a) annexed hereto and made a
part hereof.
(b) Incentive stock options complying with the requirements of Section 422
of the Internal Revenue Code of 1986, as amended, or successor provisions
thereto (the "Options"), permitting the Employee to purchase shares of the
common stock of AmeriNet Xxxxx.xxx, Inc., a publicly held Delaware
corporation with a class of securities registered under Section 12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which
holds of all of AmeriCom's capital stock and other securities ("AmeriNet"),
that AmeriNet has reserved for issuance to employees of AmeriNet and its
subsidiaries, including AmeriCom (the "Employee's Option Shares"), on the
terms and subject to the conditions set forth in AmeriNet's Year 2000
Non-Qualified & Incentive Stock Option Plan, as supplemented by the
specific personalizing provisions of exhibit 3.1(b) annexed hereto and made
a part hereof.
3.2 Benefits.
During the term of this Agreement, the Employee shall also be entitled
to the benefits set forth in exhibit 3.2 annexed hereto and made a part hereof.
3.3 Indemnification.
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AmeriCom will defend, indemnify and hold the Employee harmless from all
liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by him in good faith on behalf of AmeriCom, its affiliates or for other
persons or entities at the request of the board of directors of AmeriCom, to the
fullest extent legally permitted, and in conjunction therewith, shall assure
that all required expenditures are made in a manner making it unnecessary for
the Employee to incur any out of pocket expenses; provided, however, that the
Employee permits the majority stockholders of AmeriCom to select and supervise
all personnel involved in such defense and that the Employee waive any conflicts
of interest that such personnel may have as a result of also representing
AmeriCom, its stockholders or other personnel and agrees to hold them harmless
from any matters involving such representation, except such as involve fraud or
bad faith.
Article Four
Special Covenants
4.1 Confidentiality, Non-Circumvention and Non-Competition.
During the term of this Agreement, all renewals thereof and for a
period of two years after its termination, the Employee hereby irrevocably
agrees to be bound by the following restrictions, which constitute a material
inducement for AmeriCom's entry into this Agreement and for AmeriNet's agreement
to provide shares of its common stock as the securities underlying the Options:
(a) Because the Employee will be developing for AmeriCom, making use of,
acquiring and/or adding to, confidential information of special and unique
nature and value relating to such matters as AmeriCom's trade secrets,
systems, procedures, manuals, confidential reports, personnel resources,
strategic and tactical plans, advisors, clients, investors and funders; as
material inducement to the entry into this Agreement by AmeriCom, the
Employee hereby covenants and agrees not to personally use, divulge or
disclose, for any purpose whatsoever, directly or indirectly, any of such
confidential information during the term of this Agreement, any renewals
thereof, and for a period of two years after its termination.
(b) The Employee hereby covenants and agrees to be bound as a fiduciary of
AmeriCom, as if the Employee were a partner in a partnership bound by the
partnership opportunities doctrine, as such concept has been judicially and
legislatively developed in the State of Florida, and consequently, without
the prior written consent of AmeriCom, on a specific, case by case basis,
the Employee shall not, among other things, directly or indirectly:
(1) Engage in any activities, whether or not for profit, competitive
with AmeriCom's business.
(2) Solicit or accept any person providing services to AmeriCom,
whether as an employee, consultant or independent contractor, for
employment or provision of services.
(3) Induce any client or customer of AmeriCom to cease doing business
with AmeriCom or to engage in business with any person engaged in
business activities that compete with AmeriCom's business.
(4) Divert any business opportunity within the general scope of
AmeriCom's business and business capacity, to any other person or
entity.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly
occur to AmeriCom as a result of a breach by the Employee of the covenants or
agreements contained in this Article Four, and in view of the lack of an
adequate remedy at law to protect AmeriCom's interests, the Employee hereby
covenants and agrees that AmeriCom shall have the following additional rights
and remedies in the event of a breach hereof:
(a) In addition to and not in limitation of any other rights, remedies or
damages available to AmeriCom, whether at law or in equity, it shall be
entitled to a permanent injunction in order to prevent or to restrain any
such breach by the Employee, or by the Employee's partners, agents,
representatives, servants, employers, employees, affiliates and/or any and
all persons directly or indirectly acting for or with him and the Employee
hereby consents to the issuance of such a permanent injunction; and
(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which AmeriCom may sustain prior to the effective
enforcement of such injunction, the Employee hereby covenants and agrees to
pay over to AmeriCom, in the event the employee violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
(1) Any payment or compensation of any kind received by the
Employee or by persons affiliated with or acting for or with
the Employee, because of such violation before the issuance of
such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty, for
the injuries suffered by AmeriCom as a result of such
violation, the Parties hereto agreeing that such liquidated
damages are not intended as the exclusive remedy available to
AmeriCom for any breach of the covenants and agreements
contained in this Article Four, prior to the issuance of such
injunction, the Parties recognizing that the only adequate
remedy to protect AmeriCom from the injury caused by such
breaches would be injunctive relief.
4.3 Cumulative Remedies.
The Employee hereby irrevocably agrees that the remedies described in
Section 4.2 shall be in addition to, and not in limitation of, any of the rights
or remedies to which AmeriCom is or may be entitled to, whether at law or in
equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(a) The Employee hereby represents, warrants and acknowledges that having
carefully read and considered the provisions of this Article Four, the
restrictions set forth herein are fair and reasonable and are reasonably
required for the protection of the interests of AmeriCom, its officers,
directors and other employees; consequently, in the event that any of the
above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, the Employee hereby covenants, agrees and directs
such court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, the Employee hereby
covenants and agrees that if so modified, the covenants contained in this
Article Four shall be as fully enforceable as if they had been set forth
herein directly by the Parties.
(b) In determining the nature of this limitation, the Employee hereby
acknowledges, covenants and agrees that it is the intent of the Parties
that a court adjudicating a dispute arising hereunder recognize that the
Parties desire that these covenants not to circumvent, disclose or compete
be imposed and maintained to the greatest extent possible.
4.5 Unauthorized Acts.
The Employee hereby covenants and agrees not do any act or incur any
obligation on behalf of AmeriCom except as authorized by its board of directors
or by its stockholders pursuant to duly adopted stockholder action or reasonably
inferred therefrom.
Article Five
Miscellaneous
5.1 Notices.
(a) (1) All notices, demands or other communications hereunder
shall be in writing, and unless otherwise provided, shall be
deemed to have been duly given on the first business day after
mailing by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
To the Employee: Xxxxxx X. Xxxxxx; 0000 Xxxxxx Xxxxxx; Xxxxxxx,
Xxxxxxx 00000; Telephone (000) 000-0000; Fax (407) ___-____;
e-mail xxxxxxx@xxxxxxxxxxx.xxx
To AmeriCom: AmeriNet Communications, Inc.; Xxxx Xxxxxx Xxx
000000; Xxxxx, Xxxxxxx 00000; 0000 Xxxxxxxxx 00xx Xxxxxx; Xxxxx,
Xxxxxxx 00000; Telephone (000) 000-0000; Fax (000) 000-0000;
e-mail xxxxxxx@xxxxxxxxxxx.xxx; Attention: Xxxxxx Xxxxxxxx, Vice
President, with a fax copy to
AmeriNet Xxxxx.xxx, Inc.; The Crystal Corporate Center; 0000
Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X; Xxxx Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000, Fax (000) 000-0000; and, e-mail
xxxxx@xxxxxxxxxxxxx.xxx; Attention:
Xxxxxxxx X. Xxx Xxxxx, President; and
AmeriNet Xxxxx.xxx, Inc.; 0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx,
Xxxxxxx 00000; Telephone (000) 000-0000; Fax (000) 000-0000; and
e-mail xxxxxxx@xxxxxxxx.xxx; Attention: Xxxxxxx X. Xxxxxxx,
Secretary.
(2) Copies of notices will also be provided to such other address or
to such other person as any Party shall designate to the other for
such purpose in the manner hereinafter set forth.
(b) (1) The Parties acknowledge that The Yankee Companies, Inc., a
Florida corporation ("Yankees") has acted as scrivener for the
Parties in this transaction and that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
(2) Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement on their
behalf since it cannot provide any Party with legal advice.
(3) This Agreement shall not be interpreted more or less strictly
against any Party based on its authorship.
5.2 Amendment.
(a) No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the
Party against which the enforcement of said modification, waiver,
amendment, discharge or change is sought.
(b) This Agreement may not be modified without the consent of a majority
in interest of AmeriCom's stockholders.
5.3 Merger.
(a) This instrument contains all of the understandings and agreements of
the Parties with respect to the subject matter discussed herein.
(b) All prior agreements whether written or oral, are merged herein and
shall be of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
If any provision or any portion of any provision of this Agreement, or
the application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the
State of Florida but any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
5.7 Litigation.
(a) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing
Party shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials and
appeals, whether or not litigation is initiated.
(b) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the dispute
shall, at the request of any Party, be exclusively resolved through the
following procedures:
(1) (A) First, the issue shall be submitted to mediation before
a mediation service in Xxxxxx County, Florida, to be
selected by lot from six alternatives to be provided, two by
AmeriCom's majority stockholder, two by AmeriCom and two by
the Employee.
(B) The mediation efforts shall be concluded within ten
business days after their in itiation unless the Parties
unanimously agree to an extended mediation period.
(2) In the event that mediation does not lead to a resolution of
the dispute then at the request of any Party, the Parties
shall submit the dispute to binding arbitration before an
arbitration service located in Xxxxxx County, Florida to be
selected by lot, from six alternatives to be provided, two by
AmeriCom's majority stockholder, two by AmeriCom and two by
the Employee.
(3) (A) Expenses of mediation shall be borne by AmeriCom, if
successful.
(B) Expenses of mediation, if unsuccessful and of
arbitration shall be borne by the Party or Parties against
whom the arbitration decision is rendered.
(C) If the terms of the arbitral award do not establish a
prevailing Party, then the expenses of unsuccessful
mediation and arbitration shall be borne equally by the
Parties.
5.8 Benefit of Agreement.
(a) This Agreement may not be assigned by the Employee without the prior
written consent of AmeriCom.
(b) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the Parties, their successors, assigns,
personal representative, estate, heirs and legatees.
5.9 Captions.
The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this Agreement or
the intent of any provisions hereof.
5.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or
cause to be done, executed or acknowledged or delivered and to perform all such
acts and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
5.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather,
the relationship established hereby is that of employer-employee in AmeriCom.
5.13 Counterparts.
(a) This Agreement may be executed in any number of counterparts.
(b) Execution by exchange of facsimile transmission shall be deemed
legally sufficient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this
Agreement, which shall be the document filed with the Securities and
Exchange Commission.
5.14 License.
(a) This Agreement is the property of Yankees and the use hereof by the
Parties is authorized hereby solely for purposes of this transaction.
(b) The use of this form of agreement or of any derivation thereof without
Yankees' prior written permission is prohibited.
In Witness Whereof, the Parties have executed this Agreement,
effective as of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
The Employee
--------------------------
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Xxxxxx X. Xxxxxx
Dated: October __, 2000
____________________________
AmeriNet Communications, Inc.
a Florida corporation.
--------------------------
__________________________ By: ___________________________
Xxxxxxxx X. Xxx Xxxxx, President
(CORPORATE SEAL)
Attest: __________________________
Xxxxxxx X. Xxxxxxx, Secretary
Dated: October___, 2000
Exhibit 2.2(a)
General Description of Duties
(A) Illustration of Services to be Provided
The Employee shall serve as AmeriCom's vice president, client services,
and shall perform the following duties:
(1) (a) Recruitment, training and supervision of all of AmeriCom's
sales marketing personnel, subject to such parameters as may
be established from time to time by AmeriCom's board of
directors, president and vice president for human resources;
(b) Develop and monitor local sales marketing plans for
AmeriCom's sales personnel, consistent with the marketing
plan and objectives established from time to time by
AmeriCom's board of directors and president;
(c) Identification, recruitment and servicing of business
accounts for AmeriCom in all areas that AmeriCom provides
services, including, without limitation, media placement,
cable leased access, advertising, marketing, public
relations, video and audio production, artistic design, copy
writing, web design and Internet related applications and
performing such other related functions as are assigned by
AmeriCom's board of directors, in each case subject to
compliance with all applicable laws and fiduciary
obligations;
(d) Availability to consult with the board of directors,
officers, employees and representatives and agents of
AmeriCom at reasonable times concerning its duties under
this Agreement and in order to assure that AmeriCom's
records and information concerning its Client's are
accurate, complete and current; and
(e) Establishment and maintenance of contacting AmeriCom's
clients on a regular basis to insure the client's active
participation and ongoing involvement with AmeriCom.
(f) Coordination between AmeriCom's clients and AmeriCom
personnel to insure harmonious working relationships and
assistance in resolving problems or disputes AmeriCom may
have with any clients.
(g) Meeting the sales parameters and objectives established for
the Employee by AmeriCom.
(2) The Employee shall also be subject to AmeriCom's generally
applicable rules and regulations governing the conduct of its
employees, current copies of which will be posted on
AmeriCom's employees' information website.
(B) Termination of Client Contact
The Employee shall restrict or cease, as directed by AmeriCom, all
efforts on behalf of AmeriCom's clients, including all dissemination of
information regarding AmeriCom's clients, immediately upon receipt of
instructions (in writing by fax or letter) to that effect from
AmeriCom.
(C) Avoidance of Negative Activities
The Employee shall not take any action which would in any way adversely
affect the reputation, standing or prospects of AmeriCom or AmeriCom's
clients or which would cause AmeriCom or its clients to be in violation
of applicable laws.
(D) Representations & Warranties
The Employee hereby represents, warrants, acknowledges and covenants
that:
(1) He, she or it:
(a) Is subject to no legal, self regulatory organization
or regulatory impediments to the provision of the
services called for by this Agreement, or to receipt
of the compensation called for under this Agreement
or any supplements thereto; and, will immediately
bring to the attention of AmeriCom any facts required
to make the foregoing representation and warranty
continuingly accurate throughout the term of this
Agreement, or any supplements or extensions thereof.
(b)(1) Has and will have access to certain confidential
information of AmeriCom and its affiliates that may be
regulated by applicable federal and state securities laws
such as the Securities Act of 1933, as amended (the
"Securities Act") and the Securities Exchange Act of 1934,
as amended (the "Exchange Act") because AmeriCom is a wholly
owned subsidiary of a public company subject to Section
12(g) of the Exchange Act, including restrictions on the
release or use of "material inside information."
(2) Will not, during the term of this Agreement or
thereafter, disclose, without the prior written consent or
authorization of AmeriCom, any of such information to any
person, for any reason or purpose whatsoever and the
Employee agrees that authorization or consent to disclose by
AmeriCom may be conditioned upon the disclosure being made
pursuant to a secrecy agreement, protection order, provision
of statute, rule, regulation or procedure under which the
confidentiality of the information is maintained in the
hands of the person to whom the information is to be
disclosed or in compliance with the terms of a judicial
order or administrative process.
(2) In rendering his services, the Employee shall not
disclose to any third party any confidential non-public
information furnished by AmeriCom or its clients or
otherwise obtained by him, her or it with respect to
AmeriCom or its clients.
(E) Duty of Loyalty and Conflicts Resolution
The Employee's primary duties shall be to AmeriCom and in the event of
a conflict, perceived or actual, between the Employee's obligations to
AmeriCom and AmeriCom's clients, the Employee's duties to AmeriCom
shall be controlling.
Exhibit 3.1(a)
Compensation
The Employee shall be entitled to the following compensation:
A. (1) A commission, payable monthly, subject to continuing annualizing
adjustments as described below, equal to:
(a) 7.5% of media placement income generated directly by
the Employee, predicated on the assumption that the
related media income received by AmeriCom constitutes
no less than 15% and therefore the Employee is
receiving 50% of the related payments to AmeriCom,
with any variations of such assumption resulting in a
pro rata decrease of the percentage to which the
Employee will be entitled (the "Media Placement
Commissions"); and
(b) 10% of the gross income other than media placement
income (net of required allocations or payments to
third parties) that the Employee generates for
AmeriCom (the "General Commission").
(c) An override equal to .75% of the commissions paid to
members of her personal sales staff by AmeriCom (the
"Override Commission," the Override Commission, the
Media Placement Commission and the General Commission
being hereinafter collectively and generically
referred to as the "Commission").
(2) (a) The Commission will be determined in accordance
with generally accepted accounting practices,
consistently applied ("GAAP") and shall be payable
less the continuing annualizing adjustments described
below, within ten business days after the end of the
month during which AmeriCom receives the related
payments, in cleared funds, and in a manner
permitting AmeriCom to treat such payments as fully
earned in accordance with GAAP.
(b) The Commission will be adjusted within ten business
days following the date that the audit of AmeriCom's
financial statements for each fiscal year to correct
any miscalculations during the year.
(3) In addition to the Commissions, the Employee shall be entitled
to a monthly salary in the sum of $5,000 (the "Salary"),
payable in equal bimonthly installments.
(B) The Employee may also be entitled to additional incentive bonuses based
on attainment of projections and goals established by AmeriCom's board
of directors, on such terms as may be negotiated by the Parties and
documented in a written and signed supplement to this Agreement.
Exhibit 3.1(b)
Incentive Stock Option Provisions
The Employee shall receive incentive stock options as governed by
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"),
permitting purchase of 25,000 shares of AmeriNet's common stock, $0.01 par value
at an exercise price of $0.475 per share (the price per share on the date the
terms of this Agreement were accepted by the Employee), subject to the following
conditions and requirements (the "Options"):
(A) The Employee's rights to the Options will vest only if the Employee
remains in the employ of AmeriCom, AmeriNet or another AmeriNet
subsidiary for an uninterrupted period of one fiscal year following the
date of the Agreement.
(B) The Options will be exercisable for a period ending on the earlier of
the final day of the third fiscal year after which they first become
vested or the 90th day after termination of the Employee's employment
by AmeriCom, all other terms pertaining to the Options being reflected
in AmeriNet's Non-Qualified Stock Option & Stock Incentive Plan,
Effective as of March 8 , 2000 filed by AmeriNet with the United States
Securities and Exchange Commission (the "Commission"), a copy of which
is maintained on the AmeriCom employees' information website and which
the Employee has downloaded and printed.
(C) (1) Neither the Options nor the shares of AmeriNet's common
stock issuable upon their exercise have been registered with
the Commission; rather, they have been issued in reliance on
the exemption from required registration provided by Section
4(2) of the Securities Act of 1933, as amended (the
"Securities Act").
(2) Consequently, neither the Options nor the underlying shares of
AmeriNet's common stock may be publicly resold except in
compliance with the requirements of Commission Rule 144 unless
they are hereafter registered with the Commission.
(3) Registration on Commission Form S-8 may be available for
registration of the shares of AmeriNet common stock underlying
the Options at the time they become exercisable; however,
certain factors may lead AmeriNet not to file such
registration statement, such as agreements with funders,
underwriters or market makers in AmeriNet's securities, the
unavailability of adequate information, the failure of
AmeriNet to maintain its status as an issuer with a class of
securities registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(4) In the event that AmeriNet does file a registration statement
on Form S-8 the Options provided for by this Agreement will be
included if legally eligible.
(D) (1) The Code provides significant benefits involving taxation
for qualified incentive stock options; however, the benefits
are conditioned on compliance with requirements pertaining to
the time that the AmeriNet common stock must be held prior to
its disposition, the price that must be paid on exercise and
the term of the Options.
(2) The Employee will be provided access to publications by third
parties that explain such requirements, at the Employee's
request, but should rely on advice provided only from the
Employee's own legal, accounting and tax advisors.
Exhibit 3.2
Employee's Benefits
(A) The Employee shall be entitled to the following benefits, starting as
of the ninetieth day following the Employee's first association as an
Employee with AmeriCom, or with any affiliate of AmeriCom (e.g.,
Xxxxxxx Communications, Inc.):
(1) A $95 per month allowance towards payment of health insurance
premiums under AmeriCom's health insurance plan;
(2) Forty hours of personal time on an annualized basis, vesting at
the rate of four hours per month;
(3) Seven paid holidays per year, including religious holidays
selected by the Employee.
(B) After completion of the first year following the Employee's first
association as an Employee with AmeriCom, or with any affiliate of
AmeriCom, forty hours of paid vacation time per year, increased to 80
hours of paid vacation time after completion of the third year as an
Employee with AmeriCom, or with any affiliate of AmeriCom.
(1) If deemed appropriate under the circumstances by AmeriCom's
board of directors, an expense allowance in an amount
established from time to time by AmeriCom's board of directors
for traveling, telephone and other direct business expenses
required in connection with the performance of the Employee's
duties hereunder, the amount of the allowance being limited to
actual expenditures verified and documented as required by
AmeriCom for audit purposes, for tax deduction purposes and in
order to assure compliance with applicable laws and
regulations; provided that, without the prior consent of
AmeriCom's stockholders, such expense allowance may not exceed
$250 during any consecutive 30 day period. Currently, such
expense allowance has been set at the maximum $250 per month.
(2) The Employee shall be entitled to receive all other benefits
of employment generally available to all of AmeriCom's
employees, provided that such benefits have been approved by
AmeriCom's stockholders. A current list of generally
applicable benefits shall be posted on AmeriNet's employees'
information website.
