EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This AGREEMENT is made on the 8th day of December, 2005 by and between Quest
Minerals & Mining Corporation, a corporation incorporated under the laws of the
State of Nevada (hereinafter referred to as the "Corporation" or "Quest"), OF
THE FIRST PART,
and
Xxxxxx Xxxxxxxxxxx, Xx., of the Borough of Frankford, in the State of New
Jersey, (hereinafter referred to as the "Vice President"), OF THE SECOND PART,
WHEREAS the Corporation wishes to retain the services of the Vice President to
provide the services hereinafter described during the term hereinafter set out;
NOW THEREFOR THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the parties agree as follows:
1. TERM
1.1 The Corporation shall employ the Vice President for a term of five years
commencing June 1, 2005 unless such employment shall be terminated earlier as
hereinafter provided. Renewal of this Agreement may be made on such terms as the
parties may agree no later than sixty days prior to the fifth anniversary of
this Agreement and in the event there is no mutually acceptable agreement to
renew reduced to writing no later than sixty days prior to the expiry of this
Agreement this Agreement shall be deemed to not have been renewed.
2 DUTIES
2.1 The duties of the Vice President shall be in accordance with the provisions
of Schedule A attached hereto and forming an essential and integral part of this
Agreement.
3 REPORTING PROCEDURES
3.1 The Vice President shall report to the Board of Directors of the Corporation
at the regular meetings of the Board of Directors. The Vice President shall
report fully on the management, operations and business affairs of the
Corporation delegated by the Board to his positions, that include Executive Vice
President, and advise to the best of his ability and in accordance with
reasonable business standards on business matters that may arise from time to
time during the term of this agreement.
4 REMUNERATION
4.1 Cash
During the initial term of this Agreement the remuneration of the Vice President
shall be as follows:
A) For first year of this Agreement the Vice President shall be paid the sum of
ten thousand dollars of lawful currency of the United States of America
(US$10,000) per month.
B) For each of the remaining years of the initial term of this Agreement the
Vice President shall receive An increase of five thousand dollars per month per
year, so that in the second year he shall receive the sum of fifteen thousand
dollars of lawful currency of the United States of America (US$15,000) per
month, in the third year (US$20,000), in the fourth year (US$25,000) and in the
fifth year (US$30,000) per month.
4.2 Equity
In addition to the cash consideration described above the Vice President shall
be entitled to receive an option to purchase five million (5,000,000) common
shares of the Corporation registered upon Form S-8 promulgated under the
Securities Act of 1933, as amended. These shares be issued to the Vice President
in accordance with the aforementioned regulations upon the following events
having occurred;
A) Upon the execution of this Agreement, two million (2,000,000) shares;
B) Upon the Corporation receiving into its accounts not less than one million
dollars of lawful currency of the United States of America (US $ 1,000,000)
there shall be caused to be issued a further two million (2,000,000) shares;
and,
C) Upon the successful completion of six months service to the Corporation as
determined by resolution of the Board of Directors there shall be caused to be
issued an additional one million (1,000,000) shares.
5 PERFORMANCE BONUS
5.1 In addition to the Vice President's annual base salary, the Vice President
shall participate in the Corporation's Executive Bonus Plan on the same basis as
the other senior executive officers of the Corporation.
6 NO FURTHER SALARY OR BONUS ADJUSTMENTS
6.1 Other than as herein provided, there shall be no cost-of-living increase or
merit increase in the annual base salary or the Vice President's bonus unless
agreed to in writing by the Corporation.
7 EXPENSES
7.1 The Vice President shall be reimbursed for all reasonable travel and other
out-of-pocket expenses actually and properly incurred and required by management
by the Vice President from time to time in connection with carrying out his
duties hereunder including but not limited to transportation, lodging and meals.
For all such expenses the Vice President shall furnish to the Corporation
originals of all invoices or statements in respect of which the Vice President
seeks reimbursement.
7.2 If the Vice President shall belong to any professional organization or
licensing body for which he must pay an annual fee, the Corporation shall
reimburse the Vice President for such annual fee provided the Vice President has
provided the Corporation with all invoices or statements in respect of which the
Vice President seeks reimbursement.
7.3 The Vice President will be provided with a cellular phone and/or email
pager, at the discretion of the Corporation, to be used exclusively for
conducting the Corporation's business and to assist him in performing his duties
as Vice President and that all charges and levies associated with said
communication device will be paid by the Corporation, including reasonable
personal usage not to exceed $200 per month.
7.4 In the event that the Corporation shall require the Vice President to
travel, the Corporation agrees to reimburse the Vice President for all travel
costs, accommodation, food and per diem expenses in accordance with the
Corporation's travel fee schedule.
8 VACATION
8.1 The Vice President shall be entitled to four (4) weeks' paid vacation per
fiscal year of the Corporation at a time approved in advance by the Board of
Directors, which approval shall not be unreasonably withheld but shall take into
account the staffing requirements of the Corporation and the need for the timely
performance of the Vice President's responsibilities. In the event that the Vice
President decides not to take all the vacation to which he is entitled in any
fiscal year, the Vice President shall be entitled to accumulate such vacation
entitlement from year to year and, in the event the Vice President shall have
any accumulated vacation entitlement as of the termination of his employment he
may elect to be paid for such vacation time at a rate equal to the weekly value
of the base compensation, as adjusted, times three (3).
9 BENEFITS
9.1 The Vice President shall be entitled to receive the same level of medical
and dental benefits as those provided to the other senior executive officers of
the Corporation. In the event that the medical plan of the Corporation cannot or
will not extend coverage to the Vice President, the Corporation shall determine
the costs of coverage for a similar individual in accordance with the
Corporation's benefit plan and thereafter shall contribute that amount on a
monthly basis to the Vice President's private health plan. In the event the
Corporation or its insurer shall require the Vice President to submit to a
medical or similar examination the Vice President shall cooperate fully with
such request.
9.2 In the event that this Agreement is terminated by the Corporation with
notice, the Vice President shall be entitled to receive his medical benefits
during the notice period.
10 TERMINATION
10.1 Cause: The Corporation may terminate the employment of the Vice President
without notice or any payment in lieu of notice for cause which, without
limiting the generality of the foregoing, shall include:
(1) if there is a repeated and demonstrated failure on the part of the Vice
President to perform the material duties of the Vice President's position in a
competent manner and where the Vice President fails to substantially remedy the
failure within a reasonable period of time after receiving written notice of
such failure from the Corporation;
(2) if the Vice President is convicted of a criminal offence involving fraud or
dishonesty;
(3) if the Vice President or any member of his family makes any personal profit
arising out of or in connection with a transaction to which the Corporation is a
party or with which it is associated without making disclosure to and obtaining
the prior written consent of the Corporation;
(4) if the Vice President breaches his fiduciary duties to the Corporation,
including the duty to act in the best interests of the Corporation; or business
and to assist him in performing his duties as Vice President and that all
charges and levies associated with said communication device will be paid by the
Corporation, including reasonable personal usage not to exceed $1,000 per month.
(5) if the Vice President disregards reasonable instructions of the Board of
Directors of the Corporation that are not inconsistent with the Vice President's
position and those duties defined herein, and which refusal is not remedied by
the Vice President within a reasonable period of time after receiving written
notice of such disobedience.
10.2 Disability/Death: This agreement may be immediately terminated by the
Corporation by notice to the Vice President if the Vice President becomes
permanently disabled.
(1) The Vice President shall be deemed to have become permanently disabled if in
any year during the employment period, because of ill health, physical or mental
disability, or for other causes beyond the control of the Vice President; the
Vice President has been continuously unable or unwilling or has failed to
perform the Vice President's duties for 120 consecutive days, or if, during any
year of the employment period, the Vice President has been unable or unwilling
or has failed to perform his duties for a total of 180 days, consecutive or not.
The term "any year of the employment period" means any period of 12 consecutive
months during the employment period.
(2) This agreement shall terminate without notice upon the death of the Vice
President.
11 SEVERANCE PAYMENTS
11.1 Upon termination of the Vice President's employment:
(1) for cause;
(2) by the voluntary termination of employment of the Vice President, or
(3) by the non-renewal of this Agreement, the Vice President shall not be
entitled to any severance payment other than compensation earned by the Vice
President before the date of termination calculated pro rata up to and including
the date of termination.
11.2 If the Vice President's employment is terminated for any other reason other
than the reasons set forth in subsection 11.1, the Vice President shall be
entitled to receive six (6) months' salary at the then applicable base salary
rate.
11.3 The payment described in this subsection 11.2 is the only severance payment
the Vice President will receive in the event of the termination of this
agreement for reasons contemplated in this subsection .
11.4 If the Vice President's employment is terminated as a result of a permanent
disability' or death, the Vice President or his estate, as applicable, shall be
entitled to receive, within 30 days of the date of such termination, the balance
of the base salary that would otherwise be paid to the Vice President during the
remainder of the term of this agreement, The Vice President agrees to reasonably
comply with all requirements necessary' for the Corporation to obtain life
insurance for the term of this agreement.
11.5 For the purposes of this section 11, whenever a payment is to be determined
with reference to the remaining term of this agreement, if less than six months
remain in the term of this agreement and no party has given notice of its
intention not to renew this agreement as contemplated by section I, the
"remaining term of this agreement" shall include the remainder of the then
existing term of this agreement plus the renewal period.
11.6 In the unlikely event that the Board of Directors of Quest elects to
terminate your employment for anything other than cause, including failure to
renew this agreement, (defined as commission of a crime (other than minor
traffic offenses), acts of dishonesty, fraud of malfeasance in connection with
your service on behalf of the Company, gross dereliction of duty, willful
failure to carry out any lawful directive of the Board of Directors, or material
violations of Company policies) you will receive severance pay equal to one (1)
month of your then current base salary for each year or part of a year of
service with a minimum of 6 months and a maximum of 12 months, with continuation
of all medical benefits during the twelve-month period. The severance payment
will be made under the current pay cycle, each pay period, during the 12 months.
All unvested options will vest immediately upon your separation from the Company
and remain vested for the duration of their pre-established term, 10 years.
Further, Quest will indemnify, or continue to indemnify, you to the full extent
permitted by Nevada law if you are, or become, a party to a matter by reason of
being or having been a director or officer of QUEST. The obligations of QUEST in
this paragraph shall be binding upon and become the obligations of any
successors or assigns of QUEST.
11.7 Additionally, in the event of a change in control, you shall receive five
million shares of the common stock to be registered upon execution hereof, for
delivery upon a change in control.
Additionally, you may elect to exercise this severance provision at your option
under the following circumstances:
- If you are required to relocate by the Board of Directors of QUEST as a
condition of continued employment, defined as moving your primary office more
than 25 miles from its current location in Paterson, New York and/or Pikeville,
Kentucky.
- A substantial change in responsibilities at the direction of the Board
of Directors of the responsibilities normally assumed by your position
(i.e., demotion); or
- Change in control of the Company, (i.e., if the Company is acquired
wholly or if another corporate entity becomes the controlling
shareholder)
12 CONFIDENTIALITY:
12.1 The Vice President acknowledges and agrees that:
(1) in the course of performing his duties and responsibilities as an officer of
the Corporation, he has had and will continue in the future to have access to
and has been and will be entrusted with detailed confidential information and
trade secrets (printed or otherwise) concerning past, present, future and
contemplated products, services, operations and marketing techniques and
procedures of the Corporation and its subsidiaries, including, without
limitation, information relating to addresses, preferences, needs and
requirements of past, present and prospective clients, customers, suppliers
(which, for all purposes of this agreement shall be referred to as the
"Information")
14 DISCLOSURE
14.1 This agreement, shall be deemed to include, without limitation, suppliers,
employees and any critical information of the Corporation and its subsidiaries
not presently available to the public (collectively, "Trade Secrets"), the
disclosure of any of which to competitors of the Corporation or to the general
public, or the use of same by the Vice President or any competitor of the
Corporation or any of its subsidiaries, would be highly detrimental to the
interests of the Corporation;
(2) in the course of performing his duties and responsibilities for the
Corporation, the Vice President has been and will continue in the future to be a
representative of the Corporation to its customers, clients and suppliers and as
such has had and will continue in the future to have significant responsibility
for maintaining and enhancing the goodwill of the Corporation with such
customers, clients and suppliers and would not have, except by virtue of his
employment with the Corporation, developed a close and direct relationship with
the customers, clients and suppliers of the Corporation;
(3) the Vice President, as an officer of the Corporation, owes fiduciary duties
to the Corporation, including the duty to act in the best interests of the
Corporation and its shareholders; and,
(4) the right to maintain the confidentiality of the Trade Secrets, the right to
preserve the goodwill of the Corporation and the right to the benefit of any
relationships that have developed between the Vice President and the customers,
clients and suppliers of the Corporation by virtue of the Vice President's
employment with the Corporation constitute proprietary rights of the
Corporation, which the Corporation is entitled to protect.
In acknowledgment of the matters described above and in consideration of the
payments to be received by the Vice President pursuant to this agreement, the
Vice President hereby agrees that he will not, for two years from his last day
of employment with the Corporation. directly or indirectly disclose to any
person or in any way make use of (other than for the benefit of the
Corporation), in any manner, any of the Trade Secrets, provided that such Trade
Secrets shall be deemed not to include information that is or becomes generally
available to the public other than as a result of disclosure by the Vice
President.
14. NON-SOLICITATION
14.1 The Vice President hereby agrees that he will not, during the period
commencing on the date hereof and ending two (2) years following the expiration
of the term of this agreement, be a party to or abet any solicitation of
customers, clients or suppliers of the Corporation or any of its subsidiaries,
to transfer business from the Corporation or any of its subsidiaries to any
other person, or seek in any way to persuade or entice any employee of the
Corporation or any of its subsidiaries to leave that employment or to be a party
to or abet any such action.
14.2 The Vice President will promptly disclose to the Board of Directors full
information concerning any interest, direct or indirect, of the Vice President
(as owner, shareholder, partner, lender or other investor, director, officer,
employee, consultant or otherwise) or any member of his family in any business
that is reasonably known to the Vice President to purchase or otherwise obtain
services or products from, or to sell or otherwise provide services or products
to the Corporation or to any of its suppliers or customers.
15. PLACE OF EMPLOYMENT
15.1 The current place of business of the Corporation is Paterson, New Jersey
and Pikeville, Kentucky. The Vice President resides and shall carry out his
duties principally from the Paterson office and shall not be required to
relocate to elsewhere on a permanent basis. It is understood and agreed that
should the Corporation require the use of an address in the State of New Jersey
for postage and/or deliveries, the Vice President shall provide his home address
for no additional compensation. Finally the Corporation shall not require the
Vice President to permanently relocate away from Paterson, New Jersey.
15.2 In the event that the Corporation shall determine that it is in its best
interests: to move its place of business more than two hundred and fifty
kilometers from its current location the Corporation shall provide at least nine
months advance notice of this requirement and effect the move in a manner that
minimizes disruption to the Vice President and his family. It is acknowledged
and agreed that such a decision to move shall not be deemed or construed as a
termination, constructive or otherwise, of the employment of the Vice President
under this agreement.
15.3 In the even that the Corporation should require the Vice President to
relocate more than two hundred and fifty (250) kilometers from his current
principal residence, the Corporation shall either pay for or reimburse the Vice
President for the following:
(1) costs of the Vice President, his spouse and his children, if any, traveling
to the proposed new location for up to two week to examine prospective homes
including transportation, hotel accommodation, food and incidentals;
(2) should the Vice President be required to sell his house in order to move for
the purposes of his employment the Corporation will pay all real estate
commissions, tax penalties (other than income tax penalties) and/or mortgage
termination penalties incurred in selling the Vice President's principle
residence. If the Vice President obtains written estimates of the fair market
value of his principal residence and thereafter the Vice President sells his
house for less than the average fair market price the Corporation shall
reimburse the Vice President for the difference.
(3) costs of packing, moving and unpacking the contents of the Vice President's
principal residence;
(4) costs of relocating electronic services into the Vice President's
destination
(5) the costs of one return airfare per year for the Vice President, the Vice
President's spouse and dependent children to the city from which the Vice
President has moved.
(6) The above provisions shall apply in every instance where the Vice President
required to move his principal residence at the request of the Employer.
16 RETURN OF MATERIALS
16.1 All files, brochures, books, materials, written correspondence, memoranda,
documents, manuals, computer disks, software products and lists (including lists
of customers, suppliers, products and prices) pertaining to the business of the
Corporation or any of its subsidiaries and associates that may come into the
possession or control of the Vice President shall at all times remain the
property of the Corporation or such subsidiary or associate, as the case may be.
On termination of the Vice President's employment for any reason, the Vice
President agrees to deliver promptly to the Corporation all such property of the
Corporation in the possession of the Vice President or directly or indirectly
under the control of the Vice President. The Vice President agrees not to make
for his personal or business use or that of any other party, reproductions or
copies of any such property or other properly of the Corporation.
17 GOVERNING LAW.
17.1 This agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey.
18 SEVERABILITY
18.1 If any provision of this agreement, including the breadth or scope of such
provision, shall be held by any court of competent jurisdiction to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the validity or enforceability of the remaining provisions, or part
thereof, of this agreement and such remaining provisions or part thereof, shall
remain enforceable and binding.
19 ENFORCEABILITY
19.1 The Vice President hereby confirms and agrees that the covenants and
restrictions pertaining to the Vice President contained in this agreement
including, without limitation, those contained in. sections 12 and 13 hereof,
are reasonable and valid and hereby further acknowledges and agrees that the
Corporation would suffer irreparable injury in the event of any breach by the
Vice President of his obligations under any such covenant or restriction.
Accordingly, the Vice President hereby acknowledges and agrees that damages
would be an inadequate remedy at law in connection with any such breach and that
the Corporation shall therefore be entitled in lieu of any action for damages,
temporary and permanent injunctive relief enjoining and restraining the Vice
President from any such breach.
20 NO ASSIGNMENT
20.1 The Vice President may not assign, pledge or encumber his interest in this
agreement nor assign any of the rights or duties of the Vice President under
this agreement without the prior written consent of the Corporation.
21 SUCCESSORS
21.1 This agreement shall be binding on and enure to the benefit of the
successors and assign of the Corporation and the heirs, executors, personal
legal representatives and permitted assigns of the Vice President.
22 NOTICES
22.1 Any notice or other communication required or permitted to be given
hereunder shall be in writing and either delivered by hand or mailed by prepaid
registered mail. At any time other than during a general discontinuance of
postal service due to strike, lock-out or otherwise; a notice so mailed shall be
deemed to have been received three business day: after the postmarked date
thereof or, if delivered by hand; shall be deemed to have been received at the
time it is delivered. If there is a general discontinuance of postal service due
to strike, lock -out or otherwise, a notice sent by prepaid registered mail
shall be deemed to have been received three business days after the resumption
of postal service Notices shall be addressed as follows:
(1) If to the Corporation:
Xxxxx 0, 0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX
Attention: The President
(2) If to the Vice President:
00X Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
23 LEGAL ADVICE
23.1 The Vice President hereby represents and warrants to the Corporation and
acknowledges and agrees that he had the opportunity to seek and was not
prevented nor discouraged by the Corporation from seeking independent legal
advice prior to the execution and delivery this agreement and that, in the event
that he did not avail himself of that opportunity prior to signing this
agreement, he did so voluntarily without any undue pressure and agrees that his
failure to obtain independent legal advice shall not be used by him as a defense
to the enforcement of his obligations under this agreement.
24 ARBITRATION
24.1 This Agreement shall be subject to binding arbitration before a panel of
three arbitrators sitting at Hackensack, New Jersey, under the then existing
Rules of the American Arbitration Association or such other alternative dispute
resolution mechanism as may be mutually agreed by the parties.
25 RATIFICATION
25.1 This Agreement was ratified by the Board of Directors of the Corporation on
December 8, 2005, becoming fully effective and binding.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the
date first above written.
QUEST MINERALS & MINING CORP.
BY: /s/ XXXXXXX X. XXXXXXX
----------------------
Xxxxxxx X. Xxxxxxx
President
/s/ XXXXXX XXXXXXXXXXX, XX.
---------------------------
Xxxxxx Xxxxxxxxxxx, Xx.
Schedule "A" - Duties of the Vice President
The Vice President shall serve the Corporation and any subsidiaries of the
Corporation in such capacity or capacities and shall perform such duties and
exercise such powers pertaining to the executive management and operation of the
Corporation and any subsidiaries and associates of the Corporation as may be
determined from time to time by the board of directors of the Corporation
consistent with the office of the Vice President. Without limitation of the
foregoing, the Vice President shall occupy the office of Vice President of the
Corporation. The Vice President shall:
(1) devote his full time and attention and his best efforts during normal
business hours to the business and affairs of the Corporation;
(2) perform those duties that may reasonably be assigned to the Vice President
diligently and faithfully to the best of the Vice President's abilities and in
the best interests of the Corporation, and
(3) use his best efforts to promote the interests, and goodwill of the
Corporation.
However, notwithstanding the above the Vice President will be allowed to devote
up to ten (10) hours per week, during normal business hours, to other matters
which do not conflict with the business of the Corporation.
