EXHIBIT 10(0)
EMPLOYMENT AGREEMENT
This Agreement to be effective February 15, 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 in formation,
(the "Employer"), and Xxxxxxxx X. Xxxx, 0000 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 as a Director and Chief
Operating Officer of AIM Group, Inc.; and Director and Chief Operating Officer
of American Internet Media, Inc. (the "Company") of Employer, 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 Director and Chief Operating
Officer of AIM Group, Inc.; and Director and Chief Operating Officer of
American Internet Media, Inc. of Employer. Subject at all times to the
direction of the Officers and Board of Directors of Employer, Employee shall
serve in these capacities to be in charge of 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.
Employee shall have direct responsibility over the operations of AIM
Group, Inc. and the operations of American Internet Media, Inc stated in this
Section 1.
To confer with the Directors and other Officers of the Corporation on
ideas and proposals to further define time opportunities and gain rationale to
propose to the Board of Directors a formal long term as well as immediate plan
of both local, national, and international business.
In the performance of all of the involved research and product/project
development stages and to be aware of other affiliates as well as outside
entities also involved in supporting the progress of the projects to
completion. Furthermore to be responsible for their being informed in a timely
manner to provide for the most efficient and straight forward coordination of
efforts, generally stated, to keep things going.
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,
(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 one year from date. Each one year
term shall be deemed a Contract Year.
5. COMPENSATION
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(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, during the term hereof, shall pay
Employee a base salary at the rate of One-Hundred Twenty Thousand Dollars
($120,000) per annum, payable semi-monthly; during the second-year term,
Employer shall pay Employee a base salary at the rate of One Hundred-Fifty
Thousand Dollars ($150,000) per annum provided that the trailing twelve month
net sales for the Company are in excess of $10 million and the net profits are
in excess of $1 million. 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.
(iii) INCENTIVE STOCK OPTION. Employee shall also receive stock
options under Employer's parent AIM Group, Inc. ("AIM") 1997 Incentive Stock
Option Plan or such other Incentive Stock Option Plan then in existence (the
"ISO Plan") to purchase shares of AIM's Common Stock. The number of options to
be issued to Employee will be set forth by AIM's Board of Directors from time
to time at their sole discretion. Initially, the Employee shall receive
options at minimum, equal to 33,333 common shares of AIM Group, Inc.
exercisable at $3.00 per share in accordance with the terms of the ISO Plan.
The ISO Plan provides a 10 year exercise period and vests 25% per year. During
the second year of employment, the Employee shall receive options provided the
performance criteria is reached as described in Section 5(a)(i) with respect
to target net revenues of $10 million and net profits of $1 million at a
minimum , equal to one-percent (1/2%) of the number of outstanding common
shares of AIM Group, Inc. and the end of the first term exercisable at the
price of the Common Stock on such day of issuance, each subject the terms as
more clearly defined within the ISO Plan.
(b) 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.
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(c) Employer shall provide to Employee, as partial consideration for
the execution of this agreement, 33,333 common shares of AIM Group, Inc.,
subject to Rules 144 and 145 of the Securities Act of 1933.
The compensation to be paid to the Employee as described in Section 5 (a)(iii)
and (c) above shall be subject to the acceptance by any regulatory authority
having jurisdiction over the Employer. If all or any portion of Section 5
(a)(iii) and/or (c) should be negated, then the parties shall agree to such
other form of compensation which would be mutually acceptable.
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 senior management employees. In addition, Employer will seek to provide
key-man term life insurance on Employee in the amount of One Million Dollars
($1,000,000) to inure Three-Quarters (75%) to the benefit of Employer and
One-Quarter (25%) to the benefit of the Employee's estate. Nothing herein
shall require Employer to obtain or 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;
(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.
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
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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
(a) 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.
(b) 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. NON-COMPETITION
In consideration of the Employee's employment with Employer, its
successors, present or future subsidiaries, or assigns during such time as may
be mutually agreeable, of the compensation provided herein, of the Employee's
Base Salary as an Employee and for other good and valuable consideration,
receipt and adequacy of which are hereby acknowledged, Employee agrees:
(a) That during the employment by Employer, Employee will not (i)
engage in a business that competes, directly or indirectly, with any of the
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products, services or businesses of Employer; (ii) be or become a stockholder,
partner, owner, officer, director, employee or agent of, or consultant to, or
give financial or other assistance to, any person or entity engaged in or
considering engaging in any such business; (iii) seek in competition with the
business of Employer to procure orders from or do business with any customer
of Employer; (iv) solicit, or contact with a view to the engagement or
employment of, any person who is an employee of Employer; (v) seek to contract
or engage (in such a way as to adversely affect or interfere with the business
of Employer) any person or entity who has been contracted with or engaged to
manufacture, assemble, supply or deliver products, goods, materials or
services to Employer; or (vi) engage in or participate in any effort or act to
induce any of the customers, associates, consultants, partners, or employees
of Employer to take any action which might be disadvantageous to Employer;
provided, however, that nothing herein shall prohibit Employee from owning, as
a passive investor, in the aggregate not more than 5% of the outstanding
publicly traded stock of any corporation so engaged.
(b) That for a period of two years following termination of Employee's
employment, Employer shall, at its option, have the right to require that the
Employee not (i) engage in a business that competes, directly or indirectly
with any of the products sold or businesses conducted by any division or
subsidiary of Employer in which the Employee worked during the two (2) year
period prior to the termination of the Employee's employment by Employer; (ii)
be or become a stockholder, partner, owner, officer, director, employee or
agent of, or a consultant to, or give financial or other assistance to, any
person or entity engaged in or considering engaging in any such business;
(iii) seek in competition with the business of Employer to procure orders from
or do business with any customer of Employer with which Employee had contact
during the two years prior to termination of Employee's employment with
Employer; (iv) solicit, or contact with a view to the engagement or employment
of, any person who is an employee of Employer; (v) seek to contract or engage
(in such a way as to adversely affect or interfere with the business of
Employer) any person or entity who has been contracted with or engaged to
manufacture, assemble, supply or deliver products, goods, materials or
services to Employer; or (vi) engage in or participate in any effort or act to
induce any of the customers, associates, consultants, partners, or employees
of Employer to take any action which might be disadvantageous to Employer;
provided, however, that nothing herein shall prohibit Employee from owning, as
a passive investor, in the aggregate not more than 5% of the outstanding
publicly traded stock of any corporation so engaged. The foregoing
restrictions shall apply to conduct and activities in any city, county or
state in the United States or in any foreign country in which any Employer
subsidiary or division in which Employee worked during the two years prior to
termination of Employee's employment with Employer sells products or services
or conducts business. Employer shall, if it exercises its option set forth in
this Section 10 (b), with respect to employment or consulting activities, make
the payments described in Section 10 (d) below to Employee. In the event that
the Employee would violate the provisions of this section following
termination of Employee's employment, Employer may, at its option, extend the
foregoing two (2) year period by the duration of the Employee's violation.
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(c) During Employee's employment by Employer and during the course of
the above-mentioned two (2) year period, Employee shall advise Employer in
writing of each and every BONA FIDE OFFER subject to the restrictions set
forth in this Agreement which Employee receives and wishes to accept.
Employees notice shall be sufficiently detailed regarding the nature and scope
of the offer and the identity and business of the offeror to permit Employer
to make an informed decision whether to exercise its option hereunder, and
shall include a copy of the written offer from the offeror. Employee agrees to
supplement the notice with further information upon request by Employer.
(d) Employer shall have ten (10) business days following receipt of
Employee's written notification (and any requested supplement) to advise me of
its election, in its sole discretion, either; (i) to waive the non-competition
provisions of this Agreement, in which case Employee shall be free to accept
such offer subject to all the other terms and conditions of any agreements
with Employer relating to inventions and confidential information; or (ii) to
insist upon Employers full compliance with the provisions of this Agreement.
If Employer elects option (ii) with respect to an employment or consulting
offer, Employer shall compensate Employee monthly in an amount equal to my
latest monthly base pay as an employee of the Employer in lieu of salary,
benefits and all other remuneration Employee would have received in connection
with the proposed employment or consulting for a period beginning on the date
of Employees notice as provided above and ending twenty-four (24) months from
severance of Employee's employment with Employer. The amount payable may be
reduced as provided herein. Monthly payments shall begin with the end of the
month Employer elects option (ii) above. In the event Employee receives an
offer of temporary or part-time employment or an offer to serve as consultant,
the amount payable pursuant to this Section 10(d) shall be the lesser of (a)
my latest monthly base pay or (b) the amount offered for temporary or
part-time employment or consulting. Payments for temporary employment or
consulting shall only be paid during the period for which Employee receives an
offer of temporary employment or consulting.
(e) The election by Employer of option (i) in Section 10(d) above with
respect to any one offer shall not be deemed a release or a waiver with
respect to any other offers which Employee may receive during the two-year
period of restriction. Payments pursuant to Section 10(d) above will be
adjusted if Employer exercises its option with respect to a subsequent offer
of employment or consulting which results in different payments. Payments
ender Section 10(d) will be based solely upon the most recent offer of
employment or consulting presented to Employer. In no event will compensation
ender Section 10(d) exceed Employee's latest monthly base pay as an employee
of Employer.
(f) If Employee accepts employment or performs services for any
business acceptable to Employer or not subject to the restriction set forth in
this Agreement during the two-year period of restriction, the amount of any
compensation to which Employee may later become entitled hereunder shall be
reduced by the amount by which compensation received for such employment or
services exceeds the base pay Employee would have received at Employer for a
period of time of the same duration as such employment or services. Employee
shall promptly advise Employer in writing upon seeking payment pursuant to
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Section 10(d) of the dates such acceptable or unrestricted employment
commenced and terminated and the compensation received therefor. In such case,
Employer shall reduce future payments to Employee under Section 10(d) as
provided herein.
Payments pursuant to Section 10(d) above shall also be reduced by an amount
equal to the amount paid to Employee by Employer under any other agreement, if
any, limiting Employee's right to subsequent employment.
(g) Notices shall be sent to Employer at most recent corporate
headquarters address, and to Employee at the most recent address Employer has
for Employee, or at such different address as either party shall have given
notice by certified mail, Return Receipt Requested. Refusal by either party to
accept a notice shall be deemed receipt of that notice.
(h) If any provision of this Section 10 should be adjudicated to be
invalid or unenforceable, such provision shall be deemed deleted herefrom with
respect, and only with respect, to the operation of such provision in the
particular jurisdiction in which such adjudication was made; provided,
however, that to the extent any such provision may be made valid and
enforceable in such jurisdiction by limitations on the scope of activities,
geographical area or time period covered, the parties agree that such
provision instead shall be modified and deemed limited to the extent, and only
to the extent, necessary to make such provisions enforceable to the fullest
extent permissible under the laws and public policies applied in such
jurisdiction, and in such limited form shall be fully enforceable. The parties
further agree to modify, re-execute and resubmit this Agreement to an
appropriate court if necessary to effect the purpose of this Agreement. This
Agreement shall be construed and enforced in accordance with the laws of the
State of Georgia.
(i) The Employee acknowledges and agrees that a breach of the
provisions of this Agreement by the Employee will cause serious and
irreparable damage to Employer that may be difficult to quantify and for which
monetary damages alone will not be adequate. Accordingly, the Employee agrees
that if Employer should bring an action to enforce its rights under this
Agreement and if Employer establishes that Employee has breached any of the
Employee's obligations under this Agreement, Employer shall be entitled to (i)
temporary and/or permanent injunctive relief without the need for posting a
bond, and (ii) reasonable attorneys' fees incurred by Employer in bringing and
prosecuting any action for breach. Nothing in this Agreement shall be
construed to prohibit Employer from pursuing any other legal or equitable
remedy. Employee agrees that in no event will Employer be liable to Employee
for damages in connection with Employer's enforcement of this Agreement in
excess of the amounts specifically provided herein. Employee agrees that
Employer, or its assignee, may assign this Agreement upon written notice to
Employee.
(j) In consideration for Employees obligations under this Agreement,
Employer shall pay Employee upon termination of Employee's employment with
Employer, as supplemental severance pay in addition to all other normal
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severance benefits, but in lieu of similar severance under any other
non-competition agreement, if any, with Employer, three months of my latest
Base Salary as an Employee of Employer.
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.
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
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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.
Except as provided in Section 10, 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.
IN WITNESS WHEREOF the parties have set their hands and seals this 15th day of
February, 1999.
On Behalf of Employer:
AIM GROUP, INC. and
AMERICAN INTERNET MEDIA, INC.
By: /s/XXXX X. ARENA
----------------
XXXX X. ARENA, Director
/s/XXXXXXXX X. XXXX
-------------------
XXXXXXXX X. XXXX, Employee
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