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Exhibit 10(z)
EMPLOYMENT AGREEMENT
This Agreement to be effective July 30, 1999 is entered into by and
between AIM Group, Inc., a Delaware corporation, and its wholly-owned subsidiary
American Internet Media, Inc., a Delaware corporation (the "Employer"), and X.X.
Xxxxx, an individual residing at 000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, 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 New Media Services
of AIM Group, Inc.; a Vice President of New Media Services of Cereus Bandwidth,
Limited Liability Company; and a Vice President of New Media Services of
American Internet Media, Inc. 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, Inc. and the
operations of American Internet Media, Inc. 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.
Employee shall interrelate with outside sources and stimuli (conference,
journals, consultation, etc.) and remain aware and current of the opportunities,
both business and technical in nature particular to the field of Information
Technologies.
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
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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
Employee's employment hereunder shall be for a period of two one-year
terms to commence on the date hereof and end on the second anniversary of the
date hereof, unless terminated earlier for Cause, as defined below. Each one
year term shall be deemed a Contract Year.
For purpose of this paragraph 4, "Cause" shall mean (i) 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), (ii) 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 Employer,
materially injures the Employer, including the repeated failure to follow the
policies and procedures of the Employer, (iii) a material breach of this
Agreement by Employee or (iv) the commission by Employee of a felony or other
crime involving moral turpitude or the commission by Employee of an act of
financial dishonesty against the Employer.
5. COMPENSATION
(a) As full compensation ("Base Salary") 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 at the
rate of Forty-Eight Thousand Dollars ($48,000) per annum, payable semi-monthly;
provided, however, that in the event the gross revenues, less discounts ("Gross
Revenues"), of the former businesses
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of the Employee for the first-year term equal or exceed Two Million Dollars
($2,000,000), Employee shall receive a bonus of Forty-Eight Thousand Dollars
($48,000) upon the completion of the first-year term and Employer shall pay
Employee a revised base salary at the rate of Ninety-Six Thousand Dollars
($96,000) per annum for the second-year term. If the Gross Revenues of the
former businesses of the Employee during the first-year term equal less than Two
Million Dollars ($2,000,000), Employee shall receive a bonus in an amount to be
calculated as set forth on Exhibit A hereto and Employee's salary for the
second-year term shall be increased by the amount of such bonus, if any. In the
event that Gross Revenues for the second-year term exceed Four Million Dollars
($4,000,000) and Gross Revenues for the second-year term exceed the actual Gross
Revenues for the first-year term by more than Two Million Dollars ($2,000,000),
then in such event, Sole Stockholder shall receive a bonus in the amount of
Forty-Eight Thousand Dollars ($48,000) upon completion of the second-year term.
If this Agreement is renewed for a subsequent term or terms, base salary shall
be increased pursuant to; 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
subject to the performance criteria as outlined in Section 1. Future salary
increases will be subject to mutual agreement in accordance with job
performance.
Directors may consider other meritorious adjustments in compensation or a
bonus under appropriate circumstance including the conception of valuable or
unique inventions, processes, discoveries or improvements capable of profitable
exploitation.
(ii) Performance Bonus. Upon the proposed establishment of the
Company's Performance Profit Sharing Plan (the"Plan"), Employee shall receive a
performance bonus of the pre-tax profit generated from the Employer ("additional
compensation") as shall be determined by the Board of Directors of AIM Group,
Inc. For each year of employment, in the event the Plan has not been established
by the end of that year and the businesses of the Employee's former Employer,
The Reddy Group, Inc., show a net profit for that year, then Employee shall
receive a bonus equal to one month's salary.
(j) 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.
6. FRINGE BENEFITS
(a) During the term of this Agreement, Employer shall provide, at
its sole expense to Employee, hospitalization, major medical, life insurance and
other fringe benefits on the same terms and conditions as it shall afford other
similarly situated employees.
(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; (ii) four (4)
weeks per annum up to seven (7) years of full-time
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employment; and (iii) five (5) weeks per annum over seven (7) years of
full-time employment.
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.
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
(k) 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
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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.
(l) 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 Deleted]
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.
(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.
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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. 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 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.
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
AMERICAN INTERNET MEDIA, INC.
By:/s/ Xxxx X. Arena
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XXXX X. ARENA, Director
/s/ X. X.Xxxxx
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X.X. XXXXX, 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 $2,000,000 $48,000 x (Gross Revenues/$2,000,000)
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$2,000,000 or greater $48,000
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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:
$48,000 x $1,500,000 = $36,000 bonus
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$2,000,000
Therefore, the Employee would receive a $36,000 bonus for the first-year term,
and the Employee's salary for the second-year term would be increased by $36,000
to $84,000 [$48,000 + $36,000].
