EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 6.4
EXECUTIVE
EMPLOYMENT AGREEMENT
a Nevada Corporation
as “Employer”
and
XXXXX XXXXX,
as “Executive”
Effective Date:
01 November 2019
EXECUTIVE EMPLOYMENT AGREEMENT
I
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is entered into effective as of the 1st day of November, 2019 (the “Effective Date”), by and between BIOQUEST CORP., a Nevada corporation (the “Employer”); and, XXXXX XXXXX, an individual currently residing in the State of California (the “Executive”). Employer and Executive are sometimes referred to collectively herein as the “Parties”, and each individually as a “Party”.
II
A. Employer is engaged in the business of, among other things, through its subsidiary businesses, (i) developing CBD and similar industries which allows for the delivery of CDB based products; and, (ii) acting as a CBD provider specializing in products based in the CBD industries.
B. Employer’s principal place of business is located at 0000 Xxxxxx Xxxxx, #000, Xxxxxxx Xxxxx, XX 00000 (the “Premises”).
C. Executive is acknowledged as having domain expertise and significant contacts in the fields of technology to be pursued by Employer, and Executive represents to possess certain other skills and contacts which would enable Executive to benefit Employer.
D. The Parties acknowledge that the Executive’s abilities and services are unique and essential to the prospects of Employer, and Employer has relied upon Executive agreeing to serve Employer pursuant to this Agreement.
E. Employer desires to retain the services of Executive, and Executive desires to be retained by Employer, all pursuant to the terms and conditions contained herein.
F. NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
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III
(a) purchasing securities in any corporation whose securities are regularly traded provided that such purchase shall not result in his collectively owning beneficially at any time five percent (5%) or more of the equity securities of any corporation engaged in a business competitive to that of Employer; or
(b) participating in conferences, preparing or publishing papers or books or teaching, so long as Executive provides reasonable written notice to the Board of such activities prior to Executive engaging in them; or
(c) continuing to participate in business activities and pursuits in which Executive is involved as of the Start Date.
3.4.1. Initial Term. Executive’s employment with Employer and the Term of this Agreement shall commence on the 1st day of November 2019 (the “Start Date”), and shall continue for an initial period of five (5) years, unless sooner terminated as provided for herein (the “Initial Term”).
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3.4.2. Extended Term. This Agreement shall remain in full force and effect and shall renew for an additional three years (36) months (the “Extended Term”), provided that neither Party at least sixty days (60) prior to the end of Initial Term gives written notice to the other of its decision to not have the Agreement remain in full force and effect for the Extended Term, thereby terminating the Agreement as of and at the end of the Initial Term.
3.4.3. Term Defined. For purposes of this Agreement, the word “Term” shall specifically include the Initial Term and all Extended Term hereunder.
3.5 Location. Except for routine travel incident to the business of Employer, Executive’s services hereunder shall be principally performed at the Premises, or such other location within the surrounding area of the Premises.
IV
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V
(a) Each such expenditure is reasonable and is made to support the execution of Employer’s business or strategic plan;
(b) Executive furnishes to Employer adequate records and other documentary evidence required to substantiate such expenditures as a proper deduction for federal income tax purposes.
5.3 Vacation Time. Executive shall be granted three (3) weeks paid vacation for each calendar year during the Term, with said time being immediately available for Executive’s benefit, but prorated for the 2020 calendar year, in accordance with Employer’s policy generally applicable to all employees. Vacation shall only be taken at such times as not to interfere with the necessary performance of Executive’s duties and obligations under this Agreement unless otherwise agreed upon by the Board. However, if at the end of any calendar year there is any accrued and unused vacation time for Executive, additional vacation time for Executive will not accrue until Executive takes all of his vacation time accrued from prior calendar years. Upon using said accrued vacation time, Executive shall once again be entitled to three (3) paid vacation time for that calendar year, prorated for the month in which the remaining accrued vacation time was taken.
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5.5 Change in Control Payments.
(a) All accrued and unpaid salary and other compensation payable to Executive by Employer for services rendered by Executive to Employer through the Termination Date;
(b) All accrued and unused vacation and sick pay payable to Executive by Employer with respect to services rendered by Executive to Employer through the Termination Date; and
(c) Severance pay in an amount equal to twelve (12) months salary based upon the then existing salary of Executive, with the total amount to be paid in one installment on the due date noted above, calculated at a net present value.
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VI
6.1 Termination in Case of Death.
6.2 Termination in Case of Disability.
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(a) The willful breach of any of the material obligations of Employer owed to Executive under this Agreement;
(b) The Employer’s primary chief executive offices are moved to a location outside of Orange County, California, unless approved by the Board; or
(c) The material breach of this Agreement by Employer.
6.4 Termination by Executive Without Cause.
6.4.1. Termination Event. This Agreement shall terminate immediately upon delivery to Employer of thirty (30) days written notice of termination by Executive without cause.
6.4.2. Result of Termination. Upon termination of this Agreement pursuant to this Section 6.4, Employer shall pay to Executive, on the Termination Date, a lump sum payment of an amount equal to all accrued and unpaid salary and other compensation payable to Executive by Employer and all accrued and unused vacation and sick pay payable to Executive by Employer with respect to services rendered by Executive to Employer through the Termination Date.
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6.5 Termination by Employer With Cause.
(a) Any action by Executive resulting in the conviction or plea of nolo contendre of any criminal statute constituting a felony;
(b) Gross misconduct in the performance of Executive’s duties hereunder;
(c) The failure by Executive to follow or comply with the policies and procedures of Employer, or the written directives of the Board of Directors of Employer, provided that such policies, procedures or directives are consistent with Executive’s duties hereunder;
(d) The violation by Executive of any material provision of this Agreement.
6.6 Termination By Employer Without Cause.
6.6.1. Termination Event. The employment of Executive shall terminate immediately upon delivery to Executive of written notice of termination by Employer, which shall be deemed to be “without cause” unless termination is expressly stated to be pursuant to Sections 6.1 or 6.2.
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6.8 Disputes as to Termination. If either party disputes any aspect of Executive’s termination hereunder, the disputing party shall demand arbitration of the dispute by written notice to the other no later than thirty (30) days after the applicable termination date. The costs of arbitration, including the fees and expenses of the arbitrator, shall be paid by Employer. Each Party shall bear the cost of preparing and presenting its case including the use of any expert witness. Such arbitration shall be commenced not later than thirty (30) days following the date of delivery of the notice of arbitration by a panel of three qualified arbitrators, one who shall be designated by Executive, one by the Employer and one (who shall act as chairman of the arbitration panel) by the first two arbitrators so appointed. The arbitration shall be conducted in Orange County, California in accordance with the rules promulgated and adopted by the American Arbitration Association (with the right of discovery as provided in the California Code of Civil Procedure by all Parties), and each Party shall retain the right to cross-examine the opposing Party’s witnesses, either through legal counsel, expert witnesses or both. The majority decision of the arbitration panel shall be made in writing, and shall be final, binding and conclusive on all Parties (without any right of appeal therefrom) and shall not be subject to judicial review.
VII
The Parties believe that the payments pursuant to Section 5.5 and Article VI, above, do not constitute “Excess Parachute Payments” under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”). Notwithstanding such belief and intent, if any benefit under these provisions constitutes an “Excess Parachute Payment”, Employer shall pay to Executive an additional amount (the “Tax Payment”) such that (i) the excess of all Excess Parachute Payments (including payments under this sentence) over the sum of excise tax thereon under Section 4999 of the Code and income tax thereon under Subtitle A of the Code and under applicable state law is equal to (ii) the excess of all Excess Parachute Payments (excluding payments under this sentence) over income tax thereon under Subtitle A of the Code and under applicable state law is equal to (iii) the excess of all Excess Parachute Payments (excluding payments under this sentence) over income tax thereon under Subtitle A of the Code and under applicable state law. Such Tax Payment shall be paid to Executive concurrently with the severance payment referred to in Section 5.5.2., above.
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VIII
The payments required to be paid to Executive by Employer pursuant to Section 5.5.2. and Article VI, above, shall not be reduced by or mitigated by amounts which Executive earns or is capable of earning during any period following his Termination Date, and shall not be subject to any offsets, deductions, or charges, other than as may be required under applicable Federal and State tax withholding and similar requirements.
IX
CONFIDENTIAL INFORMATION AND RELATED COVENANTS
9.1 Trade Secrets Covenants. Executive shall not at any time, whether during or subsequent to the term of Executive’s employment, unless specifically consented to in writing by Employer, either directly or indirectly use, divulge, disclose or communicate to any person, firm, or corporation, in any manner whatsoever, any confidential information concerning any matters affecting or relating to the business of Employer, including, but not limited to, the names, buying habits, or practices of any of its customers, its’ marketing methods and related data, the names of any of its vendors or suppliers, costs of materials, the prices it obtains or has obtained or at which it sells or has sold its products or services, manufacturing and sales, costs, lists or other written records used in Employer’s business, compensation paid to employees and other terms of employment, or any other confidential information of, about or concerning the business of Employer, its manner of operation, or other confidential data of any kind, nature, or description. The Parties hereby stipulate that as between them, the foregoing matters are important, material, and confidential trade secrets and affect the successful conduct of Employer’s business and its goodwill, and that any breach of any term of this Section 9.1 is a material breach of this Agreement.
9.4 Books and Records. All equipment, notebooks, documents, memoranda, reports, files, samples, books, correspondence, lists, computer disks and data bases, computer programs and reports, computer software, and all other written, graphic and computer generated or stored records affecting or relating to the business of Employer which Executive shall prepare, use, construct, observe, possess, or control shall be and remain the sole and exclusive property of Employer, and shall constitute trade secret information of Employer. Within five (5) days of the Termination Date, Executive shall promptly deliver to Employer all such equipment, notebooks, documents, memoranda, reports, files, samples, books, correspondence, lists, computer disks and data bases, computer programs and reports, computer software, and all other written, graphic and computer generated or stored records relating to the business of Employer which are or have been in the possession or under the control of Executive.
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X
10.2 Specific Exclusion. Specifically excluded from this Article XI are any inventions which qualify fully under California Labor Code §2870, which provides as follows:
(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:
(1) Related at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
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XI
REPRESENTATIONS AND WARRANTIES OF EXECUTIVE
Executive hereby represents and warrants to Employer the following as of and on the day this Agreement is executed:
(a) The execution, delivery, and consummation of this Agreement will comply with all applicable law and will not:
(i) Violate any judgment, order, writ or decree of any court or administrative body applicable to Executive;
(ii) Result in the breach of, constitute a default under, constitute an event which with notice or lapse of time, or both, would become a default under, or result in the creation of any right to proceed against Employer under any agreement, commitment, contract (written or oral) or other instrument to which Executive is a party.
(b) Executive is not subject to any non-compete, non-disclosure or similar agreement (whether oral or written) with any third party.
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/ / / / /
/ / / / /
XII
EXTENT OF RELATIONSHIP
EXECUTIVE HEREBY ACKNOWLEDGES THAT THIS AGREEMENT (AND ALL OTHER REFERENCES HEREIN) THE SOLE AGREEMENT BETWEEN EMPLOYER AND EXECUTIVE REGARDING THE EXTENT OF THE EMPLOYMENT RELATIONSHIP BETWEEN EMPLOYER AND EXECUTIVE. THERE IS NO OTHER AGREEMENT, EXPRESS OR IMPLIED, BETWEEN EMPLOYER AND EXECUTIVE FOR EMPLOYMENT BEYOND THE TERM SPECIFIED HEREIN OR UNDER ANY CONDITIONS OTHER THAN THOSE STATED HEREIN. EMPLOYER AND EXECUTIVE BOTH HAVE THE RIGHT TO TERMINATE THIS AGREEMENT ONLY IN STRICT COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
_______________ | _______________ |
Employer Initials | Executive’s Initials |
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XIII
All notices, requests, demands and other communications required or permitted to be given hereunder shall be effected pursuant to Section 14.13, below, as follows:
If to Employer : | With a copy to: |
If to Executive: | |
Xx. XXXXX XXXXX | |
0000 Xxxxxx Xxxxx #000 | |
Xxxxxxx Xxxxx, XX 00000 |
XIV
14.1 Executed Counterparts. This Agreement may be executed in any number of original, fax, electronic, or copied counterparts, and all counterparts shall be considered together as one agreement. A faxed, electronic, or copied counterpart shall have the same force and effect as an original signed counterpart. Each of the Parties hereby expressly forever waives any and all rights to raise the use of a fax machine or E-Mail to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine E-Mail, as a defense to the formation of a contract.
14.2 Successors and Assigns. Except as expressly provided in this Agreement, each and all of the covenants, terms, provisions, conditions and agreements herein contained shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties hereto.
14.3 Article and Section Headings. The article and section headings used in this Agreement are inserted for convenience and identification only and are not to be used in any manner to interpret this Agreement.
14.4 Severability. Each and every provision of this Agreement is severable and independent of any other term or provision of this Agreement. If any term or provision hereof is held void or invalid for any reason by a court of competent jurisdiction, such invalidity shall not affect the remainder of this Agreement.
14.5 Governing Law. This Agreement shall be governed by the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California. If any court action is necessary to enforce the terms and conditions of this Agreement, the Parties hereby agree that the Superior Court of California, County of Orange, shall be the sole jurisdiction and venue for the bringing of such action.
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14.6 Entire Agreement. This Agreement, and all references, documents, or instruments referred to herein, contains the entire agreement and understanding of the Parties hereto in respect to the subject matter contained herein. The Parties have expressly not relied upon any promises, representations, warranties, agreements, covenants, or undertakings, other than those expressly set forth or referred to herein. This Agreement supersedes any and all prior written or oral agreements, understandings, and negotiations between the Parties with respect to the subject matter contained herein.
14.7 Additional Documentation. The Parties hereto agree to execute, acknowledge and cause to be filed and recorded, if necessary, any and all documents, amendments, notices and certificates which may be necessary or convenient under the laws of the State of California.
14.8 Attorney’s Fees. If any legal action (including arbitration) is necessary to enforce the terms and conditions of this Agreement, the prevailing Party shall be entitled to costs and reasonable attorney’s fees pursuant Section 6.8.
14.9 Amendment. This Agreement may be amended or modified only by a writing signed by all Parties.
14.10 DELETED.
14.11 Waiver. No failure by any Party to insist on the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy on a breach shall constitute a waiver of any such breach or of any other covenant, duty, agreement, or condition.
14.12 Assignability. This Agreement is not assignable by either Party without the expressed written consent of all Parties.
14.13 Notices. All notices, requests and demands hereunder shall be in writing and delivered by hand, by facsimile transmission, by mail, by telegram or by recognized commercial over-night delivery service (such as Federal Express, UPS or DHL), and shall be deemed given (a) if by hand delivery, upon such delivery; (b) if by facsimile transmission, upon telephone confirmation of receipt of same; (c) if by mail, forty-eight (48) hours after deposit in the United States mail, first class, registered or certified mail, postage prepaid; (d) if by telegram, upon telephone confirmation of receipt of same; or, (e) if by recognized commercial over-night delivery service, upon such delivery.
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14.14 Time. All Parties agree that time is of the essence as to this Agreement.
14.15 Disputes. The Parties agree to cooperate and meet in order to resolve any disputes or controversies arising under this Agreement. Should they be unable to do so, then either may elect arbitration under the rules of the American Arbitration Association, and both Parties are obligated to proceed thereunder, to resolve all disputes, other than those arising under Section 6.8, above. Arbitration shall proceed in Orange County, and the Parties agree to be bound by the arbitrator’s award, which may be filed in the Superior Court of California, County of Orange. The Parties consent to the jurisdiction of California Courts for enforcement of this determination by arbitration. The prevailing Party shall be entitled to reimbursement for his attorney’s fees and all costs associated with arbitration. In any arbitration proceeding conducted pursuant to the provisions of this Section, both Parties shall have the right to conduct discovery, to call witnesses and to cross-examine the opposing Party’s witnesses, either through legal counsel, expert witnesses or both, and the provisions of the California Code of Civil Procedure (Right to Discovery; Procedure and Enforcement) are hereby incorporated into this Agreement by this reference and made a part hereof.
14.16 Provision Not Construed Against Party Drafting Agreement. This Agreement is the result of negotiations by and between the Parties, and each Party has had the opportunity to be represented by independent legal counsel of its choice. This Agreement is the product of the work and efforts of all Parties and shall be deemed to have been drafted by all Parties. In the event of a dispute, no Party hereto shall be entitled to claim that any provision should be construed against any other Party by reason of the fact that it was drafted by one particular Party.
14.18 Recitals. The facts recited in Article II, above, are hereby conclusively presumed to be true as between and affecting the Parties.
14.19 Consents, Approvals, and Discretion. Except as herein expressly provided to the contrary, whenever this Agreement requires consent or approval to be given by a Party, or a Party must or may exercise discretion, the Parties agree that such consent or approval shall not be unreasonably withheld, conditioned, or delayed, and such discretion shall be reasonably exercised. Except as otherwise provided herein, if no response to a consent or request for approval is provided within ten (10) days from the receipt of the request, then the consent or approval shall be presumed to have been given.
14.20 No Third Party Beneficiaries. This Agreement has been entered into solely by and between Employer and Executive, solely for their benefit. There is no intent by either Party to create or establish a third party beneficiary to this Agreement, and no such third party shall have any right to enforce any right, claim, or cause of action created or established under this Agreement.
14.21 Best Efforts. The Parties shall use and exercise their best efforts, taking all reasonable, ordinary and necessary measures to ensure an orderly and smooth relationship under this Agreement, and further agree to work together and negotiate in good faith to resolve any differences or problems which may arise in the future.
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14.22 Definitional Provisions. For purposes of this Agreement, (i) those words, names, or terms which are specifically defined herein shall have the meaning specifically ascribed to them; (ii) wherever from the context it appears appropriate, each term stated either in the singular or plural shall include the singular and plural; (iii) wherever from the context it appears appropriate, the masculine, feminine, or neuter gender, shall each include the others; (iv) the words “hereof”, “herein”, “hereunder”, and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, and not to any particular provision of this Agreement; (v) all references to designated “Articles”, “Sections”, and to other subdivisions are to the designated Articles, Sections, and other subdivisions of this Agreement as originally executed; (vi) all references to “Dollars” or “$” shall be construed as being United States dollars; (vii) the term “including” is not limiting and means “including without limitation”; and, (viii) all references to all statutes, statutory provisions, regulations, or similar administrative provisions shall be construed as a reference to such statute, statutory provision, regulation, or similar administrative provision as in force at the date of this Agreement and as may be subsequently amended.
XV
IN WITNESS WHEREOF, this EXECUTIVE EMPLOYMENT AGREEMENT has been duly executed by the Parties in Orange County, California, and shall be effective as of and on the Effective Date set forth in Article I of this Agreement. Each of the undersigned Parties hereby represents and warrants that it (i) has the requisite power and authority to enter into and carry out the terms and conditions of this Agreement, as well as all transactions contemplated hereunder; and, (ii) it is duly authorized and empowered to execute and deliver this Agreement.
EMPLOYER: | EXECUTIVE: |
BIOQUEST CORP., | |
a Nevada corporation | |
_______________________ | |
XXXXX XXXXX | |
BY: __________________________ | DATED: _______________________ |
NAME: _______________________ | |
TITLE: _______________________ | |
DATED: ______________________ |
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EXHIBIT 3.1
The Chief Financial Officer, will report the CEO and Board of Directors, serving as director of financial operations and as the main link between the different divisions within the company that has primary responsibility for managing the company’s finances, including financial planning, management of financial risks, record-keeping, and financial reporting.
● | Oversee budgets, staff and other executives in the organization. |
● | Work with board members to plan and implement a short, mid and long-term strategy for the company. |
● | Meet with board members and other executives to assess the direction of the company and ensure it is in line with the company’s stated mission. |
● | Assist with high-level decisions about policy and strategy. |
● | Help with recruiting new staff members when necessary. |
● | Oversee the company’s fiscal activity, including budgeting, reporting, and auditing. |
● | Assure legal and regulatory documents are filed and monitor compliance with laws and regulations. |
● | Identify and address financial risks and opportunities for the company. |
● | Supervise financial reporting and budgeting team. |
● | Review financial reports for ways to reduce costs. |
● | Work well with CEO, COO and Chief Marketing Officer, to develop the strategic plan. |
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EXHIBIT 4.1
Compensation. In consideration of the services rendered by the Executive, the Company agrees to compensate the Executive as follows: |
F. | Renewal Bonus. The Company will issue Five Hundred Thousand (500,000) shares of the Company’s Common Stock upon renewal of this agreement as defined in Section 3.4. |
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