EXHIBIT 10.1
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
Xxxxxxx X. Xxxxxxx, of 000 Xxxxxxxxx Xxxx, in the municipality of Xxxxxxxxxx, in
the Commonwealth of Kentucky, (hereinafter referred to as the "President"), OF
THE SECOND PART,
WHEREAS the Corporation wishes to retain the services of the 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 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 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 President shall report to the Board of Directors of the Corporation at
the regular meetings of the Board of Directors. The President shall report fully
on the management, operations and business affairs of the Corporation delegated
by the Board to his positions, that include Executive 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 President
shall be as follows:
A) For first year of this Agreement the 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
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 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 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 President's annual base salary, the 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 President's bonus unless agreed
to in writing by the Corporation.
7 EXPENSES
7.1 The President shall be reimbursed for all reasonable travel and other
out-of-pocket expenses actually and properly incurred and required by management
by the 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 President shall furnish to the Corporation originals of
all invoices or statements in respect of which the President seeks
reimbursement.
7.2 If the President shall belong to any professional organization or licensing
body for which he must pay an annual fee, the Corporation shall reimburse the
President for such annual fee provided the President has provided the
Corporation with all invoices or statements in respect of which the President
seeks reimbursement.
7.3 The 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 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 President to travel, the
Corporation agrees to reimburse the 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 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 President's responsibilities. In the event that the President
decides not to take all the vacation to which he is entitled in any fiscal year,
the President shall be entitled to accumulate such vacation entitlement from
year to year and, in the event the 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 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 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 President's private health plan. In the event the Corporation or its insurer
shall require the President to submit to a medical or similar examination the
President shall cooperate fully with such request.
9.2 In the event that this Agreement is terminated by the Corporation with
notice, the 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 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 President
to perform the material duties of the President's position in a competent manner
and where the 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 President is convicted of a criminal offence involving fraud or
dishonesty;
(3) if the 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 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 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 President disregards reasonable instructions of the Board of
Directors of the Corporation that are not inconsistent with the President's
position and those duties defined herein, and which refusal is not remedied by
the 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 President if the President becomes permanently
disabled.
(1) The 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 President; the
President has been continuously unable or unwilling or has failed to perform the
President's duties for 120 consecutive days, or if, during any year of the
employment period, the 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
President.
11 SEVERANCE PAYMENTS
11.1 Upon termination of the President's employment:
(1) for cause;
(2) by the voluntary termination of employment of the President, or
(3) by the non-renewal of this Agreement, the President shall not be entitled to
any severance payment other than compensation earned by the President before the
date of termination calculated pro rata up to and including the date of
termination.
11.2 If the President's employment is terminated for any other reason other than
the reasons set forth in subsection 11.1, the 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 President will receive in the event of the termination of this agreement for
reasons contemplated in this subsection .
11.4 If the President's employment is terminated as a result of a permanent
disability' or death, the 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 President during the
remainder of the term of this agreement, The 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 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 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 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 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 President and the customers,
clients and suppliers of the Corporation by virtue of the 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 President pursuant to this agreement, the
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 President.
14. NON-SOLICITATION
14.1 The 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 President will promptly disclose to the Board of Directors full
information concerning any interest, direct or indirect, of the 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 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 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 President shall provide his home address for no
additional compensation. Finally the Corporation shall not require the 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 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 President under
this agreement.
15.3 In the even that the Corporation should require the 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 President for
the following:
(1) costs of the 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 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 President's principle residence. If the
President obtains written estimates of the fair market value of his principal
residence and thereafter the President sells his house for less than the average
fair market price the Corporation shall reimburse the President for the
difference.
(3) costs of packing, moving and unpacking the contents of the President's
principal residence;
(4) costs of relocating electronic services into the President's destination
(5) the costs of one return airfare per year for the President, the President's
spouse and dependent children to the city from which the President has moved.
(6) The above provisions shall apply in every instance where the 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 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 President's employment for any reason, the President agrees
to deliver promptly to the Corporation all such property of the Corporation in
the possession of the President or directly or indirectly under the control of
the President. The 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 President hereby confirms and agrees that the covenants and
restrictions pertaining to the 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
President of his obligations under any such covenant or restriction.
Accordingly, the 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
President from any such breach.
20 NO ASSIGNMENT
20.1 The President may not assign, pledge or encumber his interest in this
agreement nor assign any of the rights or duties of the 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 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 President:
00X Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
23 LEGAL ADVICE
23.1 The 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/ XXXXXX XXXXXXXXXXX, XX.
-------------------------------
Xxxxxx Xxxxxxxxxxx, Xx.
Vice President
/s/ XXXXXXX X. XXXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxxx
Schedule "A" - Duties of the President
The 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 President. Without limitation of the
foregoing, the President shall occupy the office of President of the
Corporation. The 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 President
diligently and faithfully to the best of the 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 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.
