EXHIBIT 10.35 EMPLOYMENT AGREEMENT WITH J. BRUCE GLEASON
Executive's Employment Agreement
This Executive's Employment Agreement (the "Agreement") is entered into by
and among J. Bruce Gleason, an individual residing in the State of Florida (the
"President"); American Internet Technical Centers, Inc., a Nevada corporation
(the "Parent Company"); and, American Internet Technical Center, Inc., a Florida
corporation (the " Company"), the Parent Company and the Company being
collectively hereinafter referred to as the "Consolidated Corporation," and the
Consolidated Corporation and the President being sometimes hereinafter
collectively to as the "Parties" or generically as a "Party".
Preamble:
WHEREAS, The Consolidated Corporation, and the Consolidated
Corporation's boards of directors are of the opinion that in conjunction with
effectuation of the Consolidated Corporation's future plans, the Consolidated
Corporation must continue the services of the Company's co-founder, who
currently serves as the president, director and chief executive officer of the
Consolidated Corporation, on a long term basis; and
WHEREAS, the President is thoroughly knowledgeable with all aspects of the
Consolidated Corporation's operations and plans; and
WHEREAS, the President is agreeable to serving as the Consolidated
Corporation's president and chief executive officer, on the terms and conditions
hereinafter set forth:
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 President's
employment hereunder shall be deemed to commence on June 15, 1999 and continue
until June 14, 2004.
1.2 Renewals.
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.
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1.3 Earlier Termination.
The Parent Company and the Company shall each have the right to
terminate this Agreement prior to the expiration of its Term, as it applies to
them (without affecting the Agreement as it applies to the other, except in
conjunction with the compensation aspects thereof), or of any renewals thereof,
subject to the provisions of Section 1.4, for the following reasons:
(a) For Cause:
(1) The Parent Company and the Company may each terminate the
President's employment under this Agreement at any time for
cause.
(2) Such termination shall be evidenced by written notice thereof
to the President, which notice shall specify the cause for
termination.
(3) For purposes hereof, the term "cause" shall mean:
(3) The inability of the President, through sickness or
other incapacity, to discharge his duties under this
Agreement for ninety or more consecutive days or for
a total of 120 or more days in a period of twelve
consecutive months;
(4) The refusal of the President to follow the directions
of the Consolidated Corporation's boards of
directors;
(5) Dishonesty; theft; or conviction of a crime involvin
moral turpitude;
(6) Material default in the performance by the President
of his obligations, services or duties required under
this Agreement (other than for illness or incapacity)
or materially breach of any provision of this
Agreement, which default or breach has continued for
twenty days after written notice of such default or
breach and such material default or breach has
resulted in material damage to the Consolidated
Corporation.
(2) In the event of a dispute concerning termination due to breach
or default, the President's compensation shall be continued
until resolution of such dispute by a tribunal of competent
jurisdiction, it being understood that the President must
repay any amounts so paid upon final determination that he was
not entitled to such compensation.
(b) Discontinuance of Business:
In the event that the Parent Company or the Company discontinues
operating its business, this Agreement shall terminate as to that
entity as of the last day of the month on which it ceases
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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 the Parent Company, the Company or
the Consolidated Corporation shall not be deemed a termination of their
respective business.
(c) Death:
This Agreement shall terminate immediately on the death of the
President; however, all accrued compensation at such time shall be promptly paid
to the President's estate.
1.4 Final Settlement.
Upon termination of this Agreement and payment to the President of all
amounts due him hereunder, the President or his representative shall execute and
deliver to the terminating entity on a form prepared by the terminating entity,
a receipt for such sums and a release of all claims, except such claims as may
have been submitted pursuant to the terms of this Agreement and which remain
unpaid, and, shall forthwith tender to the terminating entity all records,
manuals and written procedures, as may be desired by it for the continued
conduct of its business.
Article Two
Scope of Employment
2.1 Retention.
The Parent Company and the Company each hereby hires the President and
the President hereby accepts such employment, in accordance with the terms,
provisions and conditions of this Agreement.
2.2 General Description of Duties.
(a) The President shall be employed as the president of the Company and the
Parent Company and perform the duties generally associated with the
position of president and chief executive officer of thereof.
(b) Without limiting the generality of the foregoing, the President shall
have exclusive control of all aspects of the Consolidated Corporation's
day to day operations, subject only to compliance with the directions
of the Consolidated Corporation's boards of directors, applicable laws
and fiduciary obligations.
(c) The President covenants to perform in good faith his employment duties,
devoting substantially all of his business time, energies and abilities
to the proper and efficient management of the business of the
Consolidated Corporation, and for its benefit.
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2.3 Status.
(a) Throughout the term of this Agreement, the President shall serve as a
member of the boards of directors of the Consolidated Corporation and
as their president and chief executive officer.
(b) In the event that he is not elected to such positions, then, at the
option of the President, this Agreement may be deemed terminated as to
the non-complying entity and, at the President's election, the other
entity constituting the Consolidated Corporation, effective as of the
earliest time that it can be reasonably determined that such election
will not take place, provided that written notice of such election is
provided to the entity involved within 30 days after the date that the
subject entity failed to elect the President.
2.4 Exclusivity.
The President shall, unless specifically otherwise authorized by
Consolidated Corporation's board of directors, on a case by case basis, devote
his business time exclusively to the affairs of the Consolidated Corporation.
Article Three
Compensation
3.1 Compensation.
1. As consideration for the President's services to the Consolidated
Corporation the President shall be entitled to a salary in an aggregate
gross sum equal to $75,000.00 per annum payable in bi-monthly
installments (the "Base Salary").
2. The Base Salary shall be increased by $5,000.00 per year starting on
the third anniversary date of this Agreement.
3.2 Benefits.
During the term of this Agreement, the President shall also be entitled
to the following benefits:
(a) Three weeks paid vacation per year during the first three years of this
Agreement and four weeks per year thereafter.
(b) During the period of his employment, the President shall be reimbursed
for reasonable traveling and other expenses reasonably required in
connection with the performance of his duties hereunder, subject to
verification required by the Consolidated Corporation for audit
purposes, for tax deduction purposes and in order to assure compliance
with applicable laws and regulations.
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(c) The President shall be entitled to receive health and life insurance
(provided that in the aggregate, they cost not more than $500 per month
to the Consolidated Corporation, any excess being deducted from the
Base salary) and all other benefits of employment generally available
to management of the Consolidated Corporation or its subsidiaries.
3.3 Indemnification.
The Consolidated Corporation will defend, indemnify and hold the
President 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 the Consolidated
Corporation, their affiliates or for other persons or entities at the request of
the board of director of the Parent Company or the Company, 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
President to incur any out of pocket expenses; provided, however, that the
President permits the majority stockholders of the Parent Company to select and
supervise all personnel involved in such defense and that the President waive
any conflicts of interest that such personnel may have as a result of also
representing the Consolidated Corporation, their stockholders or other personnel
and agrees to hold them harmless from any matters involving such representation,
ex cept such as involve fraud or bad faith.
Article Four
Special Covenants
4.1 Confidentiality.
(a) The President acknowledges that, in and as a result of his employment
hereunder, he will be developing for the Consolidated Corporation, making
use of, acquiring and/or adding to, confidential information of special and
unique nature and value relating to such matters as the Consolidated
Corporation's trade secrets, systems, procedures, manuals, confidential
reports, personnel resources, strategic and tactical plans, advisors,
clients, investors and funders; consequently, as material inducement to the
entry into this Agreement by the Consolidated Corporation, the President
hereby covenants and agrees that he shall not, at anytime during or
following the terms of his employment hereunder, directly or indirectly,
personally use, divulge or disclose, for any purpose whatsoever, any of
such confidential information which has been obtained by or disclosed to
him as a result of his employment by the Consolidated Corporation, or the
Consolidated Corporation's affiliates.
(b) In the event of a breach or threatened breach by the President of any of
the provisions of this Section 4.1, the Consolidated Corporation, in
addition to and not in limitation of any other rights, remedies or damages
available to the Consolidated Corporation, whether at law or in equity,
shall be entitled to a permanent injunction in order to prevent or to
restrain any such breach by the President, or by the President's partners,
agents, representatives, servants, employers, employees, affiliates and/or
any and all persons directly or indirectly acting for or with him.
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4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly
occur to the Consolidated Corporation as a result of a breach by the President
of the covenants or agreements contained in this Article Four, and in view of
the lack of an adequate remedy at law to protect the Consolidated Corporation's
interests, the President hereby covenants and agrees that the Consolidated
Corporation shall have the following additional rights and remedies in the event
of a breach hereof:
(a) The President hereby consents to the issuance of a permanent injunction
enjoining him from any violations of the covenants set forth in Section
4.1 hereof; and
(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which the Consolidated Corporation may sustain
prior to the effective enforcement of such injunction, the President
hereby covenants and agrees to pay over to the Consolidated
Corporation, in the event he violates the covenants and agreements
contained in Section 4.2 hereof, the greater of:
(i) Any payment or compensation of any kind received by him because of
such violation before the issuance of such injunction, or
(ii) 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 the Consolidated Corporation as a result of such
violation, the Parties hereto agreeing that such liquidated damages
are not intended as the exclusive remedy available to the Consolidated
Corporation 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 the
Consolidated Corporation from the injury caused by such breaches would
be injunctive relief.
4.3 Cumulative Remedies.
The President hereby irrevocably agrees that the remedies described in
Section 4.3 hereof shall be in addition to, and not in limitation of, any of the
rights or remedies to which the Consolidated Corporation is or may be entitled
to, whether at law or in equity, under or pursuant to this Agreement.
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4.4 Acknowledgment of Reasonableness.
The President hereby represents, warrants and acknowledges that he has
carefully read and considered the provisions of this Article Four and, having
done so, agrees that the restrictions set forth herein are fair and reasonable
and are reasonably required for the protection of the interests of the
Consolidated Corporation, 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 President hereby
covenants, agrees and directs such court to substitute a reasonable judicially
enforceable limitation in place of any limitation deemed unenforceable and, the
President 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. In determining the nature of this
limitation, the President 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 this covenant not to compete be imposed
and maintained to the greatest extent possible.
4.5 Unauthorized Acts.
The President hereby covenants and agrees that he will not do any act
or incur any obligation on behalf of the Parent Company or the Company of any
kind whatsoever, except as authorized by the board of directors of the subject
entity or by its stockholders pursuant to duly adopted stockholder action.
Article Five
Miscellaneous
5.1 Notices.
(a) 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 President: J. Bruce Gleason: 46 Havenwood Drive;
Pompano Beach, Florida 33064;
To the Parent Company: American Internet Technical Centers, Inc.
440 East Sample Road, Suite 204; Pompano Beach, Florida 33064
Attention: Michael D. Umile, Senior Vice President;
To the Company: American Internet Technical Center, Inc.
440 East Sample Road, Suite 204; Pompano Beach, Florida 33064
Attention: Michael D. Umile, Senior Vice President.
or 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.
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(2) Because of the inherent conflict of interests involved, Yankees
has advised all of the Parties to retain independent legal and
accounting counsel to review this Agreement and its exhibits and
incorporated materials on their behalf.
5.2 Amendment.
(1) 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.
(2) This Agreement may not be modified without the consent of a majority in
interest of the Parent Company'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.
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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 Broward County,
Florida, to be selected by lot from six alternatives
to be provided, one by the majority stockholder of
the Parent Company, one by the Parent Company, one by
the Company and three by the President.
(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 Broward County, Florida to be
selected by lot, from six alternatives to be provided, one by
the majority stockholder of the Parent Company, one by the
Parent Company, one by the Company and three by the President.
(3) (1) Expenses of mediation shall be borne by the Company,
if successful.
(2) Expenses of mediation, if unsuccessful and of
arbitration shall be borne by the Party or Parties
against whom the arbitration decision is rendered.
(3) 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.
(1) This Agreement may not be assigned by the President without the prior
written consent of the Consolidated Corporation.
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(2) 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 the
Consolidated Corporation.
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.
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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
President
- - --------------------------
- - -------------------------- ------------------------
J. Bruce Gleason
Dated: June ___, 1999
American Internet Technical Centers, Inc.
a Nevada corporation.
- - --------------------------
__________________________ By: ___________________________
J. Bruce Gleason, President
(CORPORATE SEAL)
Attest: __________________________
Michael D. Umile
Senior Vice President & Secretary
Dated: June ___, 1999
American Internet Technical Center, Inc.
a Florida corporation.
- - --------------------------
__________________________ By: ___________________________
J. Bruce Gleason, President
(CORPORATE SEAL)
Attest: _________________________
Michael D. Umile
Senior Vice President & Secretary
Dated: June ___, 1999
276
EXHIBIT 10.35 EMPLOYMENT AGREEMENT WITH MICHAEL D. UMILE
Executive's Employment Agreement
This Executive's Employment Agreement (the "Agreement") is entered into
by and among Michael D. Umile, an individual residing in the State of Florida
(the "Senior Vice President"); American Internet Technical Centers, Inc., a
Nevada corporation (the "Parent Company"); and, American Internet Technical
Center, Inc., a Florida corporation (the " Company"), the Parent Company and the
Company being collec tively hereinafter referred to as the "Consolidated
Corporation," and the Consolidated Corporation and the Senior Vice President
being sometimes hereinafter collectively to as the "Parties" or generically as a
"Party".
Preamble:
WHEREAS, The Consolidated Corporation, and the Consolidated
Corporation's boards of directors are of the opinion that in conjunction with
effectuation of the Consolidated Corporation's future plans, the Consolidated
Corporation must continue the services of the Company's co-founder, who
currently serves as the senior vice president, director and chief operating
officer of the Consolidated Corporation, on a long term basis; and
WHEREAS, the Senior Vice President is thoroughly knowledgeable with all
aspects of the Consolidated Corporation's operations and plans; and
WHEREAS, the Senior Vice President is agreeable to serving as the
Consolidated Corporation's senior vice president and chief operating officer, on
the terms and conditions hereinafter set forth:
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 Senior Vice
President's employment hereunder shall be deemed to commence on June 15, 1999
and continue until June 14, 2004.
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1.2 Renewals.
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.
1.3 Earlier Termination.
The Parent Company and the Company shall each have the right to
terminate this Agreement prior to the expiration of its Term, as it applies to
them (without affecting the Agreement as it applies to the other, except in
conjunction with the compensation aspects thereof), or of any renewals thereof,
subject to the provisions of Section 1.4, for the following reasons:
(a) For Cause:
(1) The Parent Company and the Company may each terminate the
Senior Vice President's employment under this Agreement at any
time for cause.
(2) Such termination shall be evidenced by written notice thereof
to the Senior Vice President, which notice shall specify the
cause for termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Senior Vice President, through
sickness or other incapacity, to discharge his duties
under this Agreement for ninety or more consecutive
days or for a total of 120 or more days in a period
of twelve consecutive months;
(B) The refusal of the Senior Vice President to follow
the directions of the Consolidated Corporation's
boards of directors;
(C) Dishonesty; theft; or conviction of a crime involving
moral turpitude;
(D) Material default in the performance by the Senior
Vice President of his obligations, services or duties
required under this Agreement (other than for illness
or incapacity) or materially breach of any provision
of this Agreement, which default or breach has
continued for twenty days after written notice of
such default or breach and such material default or
breach has resulted in material damage to the
Consolidated Corporation.
(4) In the event of a dispute concerning termination due to breach
or default, the Senior Vice President's compensation shall be
continued until resolution of such dispute by a tribunal
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of competent jurisdiction, it being understood that the Senior
Vice President must repay any amounts so paid upon final
determination that he was not entitled to such compensation.
(b) Discontinuance of Business:
In the event that the Parent Company or the Company discontinues
operating its business, this Agreement shall terminate as to that
entity 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 the Parent Company, the Company or the Consolidated
Corporation shall not be deemed a termination of their respective
business.
(c) Death:
This Agreement shall terminate immediately on the death of the Senior
Vice President; however, all accrued compensation at such time shall be promptly
paid to the Senior Vice President's estate.
1.4 Final Settlement.
Upon termination of this Agreement and payment to the Senior Vice
President of all amounts due him hereunder, the Senior Vice President or his
representative shall execute and deliver to the terminating entity on a form
prepared by the terminating entity, a receipt for such sums and a release of all
claims, except such claims as may have been submitted pursuant to the terms of
this Agreement and which remain unpaid, and, shall forthwith tender to the
terminating entity all records, manuals and written procedures, as may be
desired by it for the continued conduct of its business.
Article Two
Scope of Employment
2.1 Retention.
The Parent Company and the Company each hereby hires the Senior Vice
President and the Senior Vice President hereby accepts such employment, in
accordance with the terms, provisions and conditions of this Agreement.
2.2 General Description of Duties.
(a) The Senior Vice President shall be employed as the senior vice
president of the Company and the Parent Company and perform the duties
generally associated with the position of senior vice president and
chief operating officer of thereof.
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(b) Without limiting the generality of the foregoing, the Senior Vice
President shall serve as the president's principal deputy and shall
perform such duties as are assigned to him by the Consolidated
Corporation's president and boards of directors, subject to compliance
with all applicable laws and fiduciary obligations.
(c) The Senior Vice President covenants to perform in good faith his
employment duties, devoting substantially all of his business time,
energies and abilities to the proper and efficient management of the
business of the Consolidated Corporation, and for its benefit.
2.3 Status.
(a) Throughout the term of this Agreement, the Senior Vice President shall
serve as a member of the boards of directors of the Consolidated
Corporation and as their senior vice president and chief operating
officer.
(b) In the event that he is not elected to such positions, then, at the
option of the Senior Vice President, this Agreement may be deemed
terminated as to the non-complying entity and, at the Senior Vice
President's election, the other entity constituting the Consolidated
Corporation, effective as of the earliest time that it can be
reasonably determined that such election will not take place, provided
that written notice of such election is provided to the entity involved
within 30 days after the date that the subject entity failed to elect
the Senior Vice President.
2.4 Exclusivity.
The Senior Vice President shall, unless specifically otherwise
authorized by Consolidated Corporation's board of directors, on a case by case
basis, devote his business time exclusively to the affairs of the Consolidated
Corporation.
Article Three
Compensation
3.1 Compensation.
1. As consideration for the Senior Vice President's services to the
Consolidated Corporation the Senior Vice President shall be entitled to
a salary in an aggregate gross sum equal to $75,000.00 per annum
payable in bi-monthly installments (the "Base Salary").
2. The Base Salary shall be increased by $5,000.00 per year starting on
the third anniversary date of this Agreement.
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3.2 Benefits.
During the term of this Agreement, the Senior Vice President shall also
be entitled to the following benefits:
(a) Three weeks paid vacation per year during the first three years of this
Agreement and four weeks per year thereafter.
(b) During the period of his employment, the Senior Vice President shall be
reimbursed for reasonable traveling and other expenses reasonably
required in connection with the performance of his duties hereunder,
subject to verification required by the Consolidated Corporation for
audit purposes, for tax deduction purposes and in order to assure
compliance with applicable laws and regulations.
(c) The Senior Vice President shall be entitled to receive health and life
insurance (provided that in the aggregate, they cost not more than $500
per month to the Consolidated Corporation, any excess being deducted
from the Base salary) and all other benefits of employment generally
available to management of the Consolidated Corporation or its
subsidiaries.
3.3 Indemnification.
The Consolidated Corporation will defend, indemnify and hold the Senior
Vice President 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 the Consolidated
Corporation, their affiliates or for other persons or entities at the request of
the board of director of the Parent Company or the Company, 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 Senior
Vice President to incur any out of pocket expenses; provided, however, that the
Senior Vice President permits the majority stockholders of the Parent Company to
select and supervise all personnel involved in such defense and that the Senior
Vice President waive any conflicts of interest that such personnel may have as a
result of also representing the Consolidated Corporation, their stockholders or
other personnel and agrees to hold them harmless from any matters involving such
representation, except such as involve fraud or bad faith.
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Article Four
Special Covenants
4.1 Confidentiality.
(a) The Senior Vice President acknowledges that, in and as a result
of his employment hereunder, he will be developing for the
Consolidated Corporation, making use of, acquiring and/or adding
to, confidential information of special and unique nature and
value relating to such matters as the Consolidated Corporation's
trade secrets, systems, procedures, manuals, confidential
reports, personnel resources, strategic and tactical plans,
advisors, clients, investors and funders; consequently, as
material inducement to the entry into this Agreement by the
Consolidated Corporation, the Senior Vice President hereby
covenants and agrees that he shall not, at anytime during or
following the terms of his employment hereunder, directly or
indirectly, personally use, divulge or disclose, for any purpose
whatsoever, any of such confidential information which has been
obtained by or disclosed to him as a result of his employment by
the Consolidated Corporation, or the Consolidated Corporation's
affiliates.
(b) In the event of a breach or threatened breach by the Senior Vice
President of any of the provisions of this Section 4.1, the
Consolidated Corporation, in addition to and not in limitation of
any other rights, remedies or damages available to the
Consolidated Corporation, whether at law or in equity, shall be
entitled to a permanent injunction in order to prevent or to
restrain any such breach by the Senior Vice President, or by the
Senior Vice President's partners, agents, representatives,
servants, employers, employees, affiliates and/or any and all
persons directly or indirectly acting for or with him.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly
occur to the Consolidated Corporation as a result of a breach by the Senior Vice
President of the covenants or agreements contained in this Article Four, and in
view of the lack of an adequate remedy at law to protect the Consolidated
Corporation's interests, the Senior Vice President hereby covenants and agrees
that the Consolidated Corporation shall have the following additional rights and
remedies in the event of a breach hereof:
(a) The Senior Vice President hereby consents to the issuance of a
permanent injunction enjoining him from any violations of the covenants
set forth in Section 4.1 hereof; and
(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which the Consolidated Corporation may sustain
prior to the effective enforcement of such injunction, the Senior Vice
President hereby covenants and agrees to pay over to the Consolidated
Corporation, in the event he violates the covenants and agreements
contained in Section 4.2 hereof, the greater of:
(i) Any payment or compensation of any kind received by him because
of such violation before the issuance of such injunction, or
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(ii) 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 the Consolidated Corporation as a result of
such violation, the Parties hereto agreeing that such liquidated
damages are not intended as the exclusive remedy available to the
Consolidated Corporation 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 the Consolidated Corporation from the
injury caused by such breaches would be injunctive relief.
4.3 Cumulative Remedies.
The Senior Vice President hereby irrevocably agrees that the remedies
described in Section 4.3 hereof shall be in addition to, and not in limitation
of, any of the rights or remedies to which the Consolidated Corporation is or
may be entitled to, whether at law or in equity, under or pursuant to this
Agreement.
4.4 Acknowledgment of Reasonableness.
The Senior Vice President hereby represents, warrants and acknowledges
that he has carefully read and considered the provisions of this Article Four
and, having done so, agrees that the restrictions set forth herein are fair and
reasonable and are reasonably required for the protection of the interests of
the Consolidated Corporation, 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 Senior Vice
President hereby covenants, agrees and directs such court to substitute a
reasonable judicially enforceable limitation in place of any limitation deemed
unenforceable and, the Senior Vice President 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. In
determining the nature of this limitation, the Senior Vice President 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 this covenant not to compete be imposed and maintained to the greatest
extent possible.
4.5 Unauthorized Acts.
The Senior Vice President hereby covenants and agrees that he will not
do any act or incur any obligation on behalf of the Parent Company or the
Company of any kind whatsoever, except as authorized by the board of directors
of the subject entity or by its stockholders pursuant to duly adopted
stockholder action.
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Article Five
Miscellaneous
5.1 Notices.
(a) 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 Senior Vice President:
Michael D. Umile: 210 Oregon Lane; Boca Raton, Florida 33487;
To the Parent Company: American Internet Technical Centers, Inc.
440 East Sample Road, Suite 204; Pompano Beach, Florida 33064
Attention: J. Bruce Gleason, President;
To the Company: American Internet Technical Center, Inc.
440 East Sample Road, Suite 204; Pompano Beach, Florida 33064
Attention: J. Bruce Gleason, President.
or 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) Because of the inherent conflict of interests involved,
Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement and its
exhibits and incorporated materials on their behalf.
5.2 Amendment.
(1) 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.
(2) This Agreement may not be modified without the consent of a majority in
interest of the Parent Company's stockholders.
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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 Broward County,
Florida, to be selected by lot from six alternatives
to be
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provided, one by the majority stockholder of the
Parent Company, one by the Parent Company, one by the
Company and three by the Senior Vice President.
(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 Broward County, Florida to be
selected by lot, from six alternatives to be provided, one by
the majority stockholder of the Parent Company, one by the
Parent Company, one by the Company and three by the Senior
Vice President.
(3) (A) Expenses of mediation shall be borne by the Company,
if successful.
(2) Expenses of mediation, if unsuccessful and of
arbitration shall be borne by the Party or Parties
against whom the arbitration decision is rendered.
(3) 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.
(1) This Agreement may not be assigned by the Senior Vice President without
the prior written consent of the Consolidated Corporation.
(2) 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.
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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 the
Consolidated Corporation.
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.
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In Witness Whereof, the Parties have executed this Agreement, effective
as of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
Senior Vice President
- - --------------------------
- - -------------------------- -------------------
Michael D. Umile
Dated: June ___, 1999
American Internet Technical Centers, Inc.
a Nevada corporation.
- - --------------------------
__________________________ By:
---------------------------
J. Bruce Gleason, President
(CORPORATE SEAL)
Attest:________________________
Michael D. Umile
Senior Vice President & Secretary
Dated: June ___, 1999
American Internet Technical Center, Inc.
a Florida corporation.
- - --------------------------
__________________________ By:
---------------------------
J. Bruce Gleason, President
(CORPORATE SEAL)
Attest:_________________________
Michael D. Umile
Senior Vice President & Secretary
Dated: June ___, 1999
288