EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this 4th day of
May, 1999, by and between The Quantum Group, Inc., a Nevada corporation
(the Company), and Xxxxxx X. Xxxxxxxx an individual ("Executive").
RECITALS
A. The Company desires to be assured of the association and
services of Executive for the Company.
B. Executive is willing and desires to be employed by the Company,
and the Company is willing to employ Executive, upon the terms,
covenants and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Employment. The Company hereby employs Executive as Vice
President of operations, subject to the supervision and direction of the
President and the Company's Board of Directors.
2. Term. The term of this Agreement shall be deemed to be (at
will) as determined solely in the discretion of the Board of Directors
provided, however, that Executive's obligations in Section 7 below shall
continue in effect after such termination.
3. Compensation; Reimbursement.
3.1 Base Salary. For all services rendered by Executive under
this Agreement, the Company shall pay Executive a base salary of Eight
Thousand Dollars ($8,000) per month through July, 1999 and Ten Thousand
Dollars ($10,000) per month beginning August 1, 1999, payable in
arrears(the Base Salary). The amount of the Base Salary way be increased
at any time and from time to time by the Board of Directors of the
Company. No such change shall in any way abrogate, alter, terminate or
otherwise affect the other terms of this Agreement.
3.2 Incentive Bonus. In addition to the Base Salary, Executive
shall be eligible for an incentive bonus (Incentive Bonus) for equipment
sales originated and completed by the Executive in amount of equal to
two percent (20/o)of the equipment sales price but, not including costs
of training, travel, shipping, insurance and taxes. The Incentive Bonus
shall be paid, if earned, within three (3) days after receipt by the
Company of sales proceeds, as such proceeds are received by the Company
during the course of commencing and completing the sales agreement. It
is agreed that the Executive will be required, without additional
compensation of any kind, to show potential clients of the Company the
equipment in operation at prison and other projects as directed by the
President of the Company.
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3.3 Reimbursement. Executive shall be reimbursed for all
reasonable "out-of-pocket" business expenses for business travel and
business entertainment incurred in connection with the performance of
his duties under this Agreement (1) so long as such expenses constitute
business deductions from taxable income for the Company and are
excludable from taxable income to the Executive under the governing laws
and regulations of the Internal Revenue Code (provided, however, that
Executive shall be entitled to full reimbursement in any case where the
Internal Revenue Service may, under Section 274(n) of the Internal
Revenue Code, disallow to the Company 20% of meals and entertainment
expenses); and (2) to the extent such expenses do not exceed the amounts
allocable for such expenses in budgets that are approved from time to
time by the Company. The reimbursement of Executive's business expenses
shall be upon monthly presentation to and approval by the Company of
valid receipts and other appropriate documentation for such expenses.
4. Scope of Duties.
4.1 Assignment of Duties. Executive shall have such duties as
may be assigned to him from time to time by the Company's Chief
Executive Officer or the Company's Board of Directors commensurate with
his experience and responses in the position for which he is employed
pursuant to Section I above. Such duties shall be exercised subject to
the control and supervision of the Chief Executive Officer and the Board
of Directors of the Company.
4.2 General Specification of Duties. Executive's duties shall
include, but not be limited to, the, duties and performance goals as
follows:
(1) act as head of marketing, sales and operations of the Company's
prison project and perform all duties, functions and responsibilities
generally associated with the head of an operating division or
subsidiary;
(2) execute on behalf of the Company, in his capacity as Vice
President of operations of the prison project division or subsidiary,
all documents as requested by the Company;
(3) employ, pay, supervise and discharge all employees of the
prison project division or subsidiary, and determine all matters with
regard to such personnel, including, without limitation, compensation,
bonuses and fringe benefits, all in accordance with the Annual Plan (as
defined in
Section 4.3);
(4) establish procedures for implementing the policies established
by the Company;
(5) insure cooperation by the prison project division or subsidiary
with other divisions or subsidiaries of the Company;
(6) cause the prison project division or subsidiary to be operated
in compliance with all legal requirements;
(7) operate the prison project division or subsidiary in
conformance with the Annual Plan approved by the Company, as such may be
amended from time to time with the concurrence of the Company.
The foregoing specifications are not intended as a complete itemization
of the duties which Executive shall perform and undertake on behalf of
the Company in satisfaction of his employment obligations under this
agreement.
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4.3 Annual Plan
(1) Executive shall submit to the Company for its approval, not
later than 60 days before the beginning of each calendar year, an annual
business plan for the prison project division or subsidiary or such
other division or subsidiary assigned to the Executive by the Board of
Directors (the "Annual Plan"). The Annual Plan shall be revised by
Executive and submitted to the Company for its review (and approval in
the case of material changes from the approved Annual Plan) from time to
time during each year to reflect changes in the Annual Plan because of
operations or otherwise. Each Annual Plan shall include the following
information.
(a) an annual forecast of income and expenses for the
operation of the division or subsidiary;
(b) a cash flow budget, estimate of profit, and source and use
of cash statements for the operation of the division or subsidiary;
(c) a payroll and staffing plan and budget for the operation
of the division or subsidiary; and
(2) During each year, Executive in the performance of his duties
under this Agreement shall comply or cause compliance with the
applicable Annual Plan and shall not (except for emergency expenditures
or special circumstances requiring an unanticipated expenditure) deviate
materially form any budget category set forth in the Annual Plan, incur
any material additional expense or change materially the manner of
operation of the division or subsidiary, without the approval of the
Company.
4.4 Executive's Devotion of Time. Executive hereby agrees to
devote his full time, abilities and energy to the faithful performance
of the duties assigned to him and to the promotion and forwarding of the
business affairs of the Company, and not to divert any business
opportunities from the Company to himself or to any other person or
business entity.
4.5 Conflicting Activities.
(1) Executive shall not, during the term of this Agreement, be
engaged in any other business activity without the prior consent of the
Board of Directors of the Company; provided, however, that this
restriction shall not be construed as preventing Executive from
investing his personal assets in passive investments in business
entities which are not in competition with the Company or its
affiliates, or from pursuing business opportunities as permitted by
paragraph 4.5(b).
(2) Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or
anticipated future business of the Company, in a manner consistent with
the best interest of the Company and with his duties under this
Agreement. Should Executive discover a business opportunity that does
not relate to the current or anticipated future business of the Company,
he shall first offer such opportunity to the Company. Should the Board
of Directors of the Company not exercise its right to pursue this
business opportunity within a reasonable period of time, not to exceed
sixty (60) days, then Executive may develop the business opportunity for
himself, provided, however, that such development may in no way conflict
or interfere with the duties owed by Executive to the Company under this
Agreement. Further, Executive may develop such business opportunities
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only on his own time, and may not use any service, personnel,
equipment, supplies, facility, or trade secrets of the Company in their
development. As used herein, the term "business opportunity" shall not
include business opportunities involving investment in publicly traded
stocks, bonds or other securities, or other investments of a personal
nature.
5. Stock of Company. The Company will issue stock options, as of
the date of this Agreement, to the Executive to permit the Executive to
purchase shares in the Company. The exercise price of the options shall
be at ten percent (10%) above the market price of the shares and on such
terms as set forth in the Incentive Stock Option Plan of the Company.
The option shall grant the Executive the right to purchase of the number
of shares determined by dividing $30,000 by the strike price of the
option. So long as this Agreement is in effect, Executive shall be
entitled to participate in the Incentive Stock Option Plans adopted by
the Company from time to time on such terms and conditions as determined
by the Company's Board of Directors or Compensation Committee. The
manner of acquisition of stock shall be structured so as to minimize
adverse tax consequences to Executive.
6. Severance. So long as this Agreement is in effect, Executive
shall at all times be entitled to severance payment in the amount of his
monthly base salary, in the amount of one month per completed year of
employment with the Company up to a maximum of five months total
severance.
7. Confidentiality of Trade Secrets and Other Materials.
7.1 Trade Secrets. Other than in the performance of his duties
hereunder, Executive agrees not to disclose, either during the term of
his employment by the Company or at any time thereafter, to any person,
firm or corporation any information concerning the business affairs, the
trade secrets or the customer list or similar information of the
Company. Any technique, method, process or technology used by the
Company shall be considered a "trade secret" for the purposes of this
Agreement.
7.2 Ownership of Trade Secrets; Assignment of Rights. Executive
hereby agrees that all know-how, documents, reports plans, proposals,
marketing and sales plans, client lists, client files
and materials made by him or by the Company are the property of the
Company and shall not be used by him in any way adverse to the Company's
interests. Executive shall not deliver, reproduce or in any way allow
such documents or things to be delivered or used by any third party
without direction or consent of the Board of Directors of the Company.
Executive hereby assigns to the Company any rights which he may have in
any such trade secret or proprietary information; provided, however,
that such assignment does not apply to any right which qualifies fully
under e.g., Cal Labor Code Sec. 2870.
8. Injunctive Relief. The Company and Executive hereby acknowledge
and agree that any default under Section 7 above will cause damage to
the Company in an amount difficult to ascertain. Accordingly, in
addition to any other relief to which the Company may be entitled, the
Company shall be entitled to such injunctive relief as may be ordered by
any court of competent jurisdiction including, but not limited to, an
injunction restraining any violation of Section 7 above without the
proof of actual damages.
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9. Miscellaneous
9.1 Transfer and Assignment. This Agreement is personal as to
Executive and shall not be assigned or transferred by Executive without
the prior written consent of the Company. This Agreement shall be
binding upon and inure to the benefit of all of the parties hereto and
their respective permitted heirs, personal representatives, successors
and assigns.
9.2 Severability. Nothing contained herein shall be construed to
require the commission of any act contrary to law. Should there be any
conflict between any provisions hereof and any present or future
statute, law, ordinance, regulation, or other pronouncement having the
force of law, the latter shall prevail, but the provision of this
Agreement affected thereby shall be curtailed and limited only to the
extent necessary to bring it within the requirements of the law, and the
remaining provisions of this Agreement shall remain in full force and
effect.
9.3 Governing Law. This Agreement is made under and shall be
construed pursuant to the laws of the State of California.
9.4 Counterparts. This Agreement may be executed in several
counter parts and all documents so executed shall constitute one
agreement, binding on all of the parties hereto, notwithstanding that
all of the parties did not sign the original or the same counterparts.
9.5 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject
matter hereof and supersedes all prior oral or written agreements,
arrangements, and understandings with respect thereto. No
representation, promise, inducement, statement or intention has been
made by any party hereto that is not embodied herein, and no party shall
be bound by or liable for any alleged representation, promise,
inducement, or statement not so set forth herein.
9.6 Modification. This Agreement may be modified, amended,
superseded, or canceled, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, only by
a written instrument executed by the party or parties to be bound by any
such modification, amendment, supersession, cancellation or waiver.
9.7 Attorneys' Fees and Costs. In the event of any dispute arising
out of the subject matter of this Agreement, the prevailing party shall
recover, in addition to any other damages assessed, its attorneys' fees
and court costs incurred in litigating or otherwise settling or
resolving such dispute whether or not an action is brought or
prosecuted to judgment. In construing this Agreement, none of the
parties hereto shall have any term or provision construed against such
party solely by reason of such party having drafted the same.
9.8 Waiver. The waiver by either of the parties, express or implied
of any right under this Agreement or any failure to perform under this
Agreement by the other party, shall not constitute or be deemed as a
waiver of any other right under this Agreement or of any other failure
to perform under this Agreement by the other party, whether of a similar
or dissimilar nature.
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9.9 Cumulative Remedies. Each and all of the several rights and
remedies provided in this Agreement, or by law or in equity, shall be
cumulative, and no one of them shall be exclusive of any other right or
remedy, and the exercise of any one of such rights or remedies shall not
be deemed a waiver of, or an election to exercise, any other such right
or remedy.
9.10 Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not in any way
affect the meaning and interpretation of this Agreement.
9.11 Notices. Any notice under this Agreement must be in writing,
may be telecopied, sent by express 24-hour guaranteed courier, or hand-delivered
, or may be served by depositing the same in the United
States mail, addressed to the party to be notified, postage-prepaid and
registered or certified with a return receipt requested. The addresses
of the parties for the receipt of notice shall be as follows:
If to the Company: The Quantum Group, Inc.
00000 Xxxxxx Xxxx, Xxxxxxxx X
Xxxxxx, Xxxxxxxxx 00000
If to Executive: Xx. Xxxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Each notice given by registered or certified mail shall be deemed
delivered and effective on the date of delivery as shown on the return
receipt, and each notice delivered in any other manner shall be deemed
to be effective as of the time of actual delivery thereof. Each party
may change its address for notice by giving notice thereof in the manner
provided above.
9.12 Survival. Any provision of this Agreement which imposes an
obligation after termination or expiration of this Agreement shall
survive the termination or expiration of this Agreement and be binding
on Executive and the Company.
9.13 Right of Set-Off. Upon termination or expiration of this
Agreement, the Company shall have the right to set-off against the
amounts due Executive hereunder the amount of any outstanding loan or
advance from the Company to Executive.
9.14 Effective Date. This Agreement shall become effective as of
the date set forth on page 1 when signed by Executive and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forty above.
(Executive)
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
(Company)
The Quantum Group, Inc.
By: /s/ Xxxxxxxxxx Xxxxxxx
--------------------------------
Xxxxxxxxxx Xxxxxxx, President
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