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Exhibit 10(aa)
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
AIM Solutions, Inc., a Delaware corporation (the "Employer"), and Xxxxxx
Roswell, Sr., an individual residing at 0000 Xx. Xxxxxxx Xxxx, Xxxx Xxxxx,
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 Business
Development of AIM Group, Inc.; and a Vice President of Business Development of
AIM Solutions, 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 AIM
Solutions, 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 substantially all of his business time, attention, and
energies to the business of the Employer.
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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 one year to
commence on the date hereof and end on the first anniversary of the date hereof,
unless terminated earlier for Cause, as defined below. The 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 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 (i), (ii) and
(iii) of this section, written notice with specificity as to the conduct or
activities complained of and a reasonable opportunity is given to Employee to
cure the same.
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 Ninety-Six Thousand Dollars ($96,000) per annum, payable semi-monthly.
If this Agreement is renewed for a subsequent term or terms, base salary shall
be increased pursuant to; a) a
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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 combined businesses of the Employee's former
Employer, Enterprise Solutions Group, Inc., and of Client Server Solutions, Inc.
and CSS Financial Software Sales, Inc., collectively another acquiree of the
Employer, show a net profit for that year, then Employee shall receive a bonus
equal to one month's salary.
(k) 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 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
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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
(m) 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.
(n) 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
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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
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; or (v) 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.
(c) 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) 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; (ii) solicit, or contact with a view to the engagement
or employment of, any person who is an employee of Employer; (iii) 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 (iv) 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. 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.
(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.
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(d) Employer shall have ten (10) business days following receipt of
Employee's written notification (and any requested supplement) to advise
Employee 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 Employee's 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)
Employee's 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
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.
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(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 Florida.
(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
severance benefits, but in lieu of similar severance under any other
non-competition agreement, if any, with Employer, one month of Employee's 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
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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 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
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such party.
This Agreement shall be construed and governed by the laws of the State of
Florida.
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 _____, _____, 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
AIM SOLUTIONS, INC.
By:/s/ Xxxx X. Arena
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XXXX X. ARENA, Director
/s/ Xxxxxx Roswell, Sr.
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XXXXXX ROSWELL, SR.
Employee
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