EXHIBIT 10.7
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement"), dated as of the 1st day of
January 2003, is made by and between XXXXX X. XXXXX ("Employee") and Q-NET
TECHNOLOGIES, INC., (the "Company") a Delaware corporation.
W I T N E S S E T H:
WHEREAS, the Company and Employee mutually desire to enter into this
Agreement with respect to Employee's full-time employment with the Company on
the terms set forth herein.
A. WHEREAS The Company is engaged in the business ("Company Business")
of developing and operating a China based business involved in:
(a) The development and marketing of the Q-Reader electronic
book reading device for the Chinese market;
(b) The development and marketing of Thin Client Server
applications and services to the Chinese market;
(c) The provision of various Internet services to the Chinese
markets;
(d) The development of Chinese business solution software for
the Chinese market.
B. WHEREAS The Company desires to retain the Employee to act as
President and Chief Executive Officer of the Company and to provide
full time services to the Company on the terms and subject to the
conditions of this Agreement.
C. WHEREAS The Employee has agreed to act as President and Chief
Executive Officer of the Company and to provide full time services to
the Company on the terms and subject to the conditions of this
Agreement.
THIS AGREEMENT WITNESSES THAT in consideration of the premises and
mutual covenants contained in this Agreement and 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:
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and agreements herein contained, and intending to be legally bound,
Employee and the Company hereby agree as follows:
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Q-Net Technologies, Inc. 1 CONFIDENTIAL
1. Position. The Company agrees to employ Employee and Employee hereby
agrees to serve the Company during the Term (as hereinafter defined) as
PRESIDENT AND CHIEF EXECUTIVE OFFICER, and to perform the following services and
undertake the following responsibilities and duties to the Company:
(a) Exercising general direction and supervision over the business
and financial affairs of the Company, including managing and
overseeing the business operations of the Company's operating
subsidiaries and China operations;
(b) Providing overall direction to the management of the Company;
(c) Reporting directly to board of directors of Company;
(d) Performing such other duties and observing such instructions as
may be reasonably assigned from time to time by or on behalf of
the board of directors of the Company in the Employee's capacity
as President and Chief Executive Officer, provided such duties
are within the scope of the Company's business and implementation
of the Company's business plan;
(e) Discharging all obligations under all applicable laws and
complying with all applicable laws as the chief executive officer
and president of the Company imposed as a consequence of the
Company being a reporting company under the Securities Exchange
Act of 1934
2. Term. The Term of this Agreement shall commence as of the date
hereof (the "Commencement Date") and shall, unless sooner terminated in
accordance with the provisions hereof, continue uninterrupted for an initial 3
year term and thereafter shall be automatically renewed for successive one-year
periods unless terminated by either party upon THREE (3) MONTHS written notice
prior to the end of any Term. As used herein, the term "TERM" shall refer to
such initial term and any renewal term then in effect.
3. Board of Directors. Throughout the Term of this Agreement, the
Company shall also nominate the Employee to serve as a member of the Board and
upon such nomination Employee shall agree to so serve.
4. Devotion of Time; Duties. During the Term and in compliance with
lawful requirements of his employment, Employee agrees to devote his FULL time,
energy and skill during regular business hours to such employment; to perform
such duties related to his position which may from time to time be assigned to
him by the Company; and to use his efforts, skills and ability to promote its
interests, provided, however, the Employee may engage in reasonable investment
and other personal activities that do not interfere with the Employee's
obligations hereunder.
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Q-Net Technologies, Inc. 2 CONFIDENTIAL
5. Compensation
During the term of this Agreement, the Company shall pay the Employee
various cash compensations according to the following schedules:
(a) Signing Bonus. In consideration for acceptance of position,
Employee will be paid a signing bonus of $30,000.
(b) Initial Salary. Commencing on February 1, 2003 and monthly on the
first of each month thereafter for eleven (12) months, Company
will pay Employee a monthly salary of $12,000. Of this amount,
$2,000 will be paid in stock.
(c) Salary for Balance of Term. For the second year commencing on
February 1, 2004, and for the balance of the term, Company will
pay Employee a monthly salary to be determined by the
Compensation Committee of the Board of Directors.
(d) Bonuses. An annual bonus will be paid within 60 days of the end
of each calendar year commencing the first annual bonus on
December 31, 2003, in an amount determined by the Compensation
Committee of the Board of Directors based upon the performance of
the Company.
(e) Fringe Benefits. The Employee shall be entitled to participate in
all health and dental insurance, disability, sick leave, paid
holidays, and other fringe benefit programs of the Employer to
the extent and on the same terms and conditions as are accorded
to other officers and key employees of the Employer which shall
be disclosed to Employee. Employee shall be entitled to four (4)
weeks vacation each year during the Term of this agreement.
(f) Shares. During the term of this Agreement, the Company will issue
the following shares of the Company's common stock to the
Employee pursuant to Section 4(2) of the Securities Act of 1933
(the "1933 Act") as restricted shares within the meaning of the
1933 Act:
1. 250,000 shares upon execution of this Agreement;
2. 250,000 shares upon the Company achieving either (i)
consolidated EBITDA of $ 100,000; or (ii) consolidated
revenues in excess of $ 3,000,000 in fiscal year 2003, each as
determined from the Company's audited financial statements;
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Q-Net Technologies, Inc. 3 CONFIDENTIAL
3. An additional 250,000 shares upon the Company
achieving either (i) consolidated EBITDA of $ 1,000,000; or
(ii) consolidated revenues in excess of $10,000,000 in fiscal
year 2003, each as determined from the Company's audited
financial statements;
4. For the fiscal years ending 2004 and 2005 the Compensation
Committee of the Board of Directors will determine these
amounts and criteria by September 30th, 2003 and September
30th, 2004.
(g) Options
Upon acceptance of employment and at the conclusion of the next Board
meeting thereafter, the Employee will be granted incentive stock
options to purchase shares of the Company's common stock in the
following amounts and with the following vesting dates (the "Stock
Options"):
1. Options, granted at market price, to purchase 100,000
shares of the Company's common stock vesting upon execution of
this Agreement,
2. Options, granted at market price, to purchase 100,000
shares of the Company's common stock vesting on March 31st,
June 30, and September 30th, 2003,
3. Options, granted at market price, for fiscal years 2004 and
2005 will be determined by the Compensation Committee of the
Board of Directors by September 30th 2003 and September 30th
2004.
All Stock Options will be subject to the terms and conditions of the
Company's 2001 Stock Option Plan, a copy of which has been delivered to
the Employee, or a new Stock Option Plan that contains similar terms
and conditions. The Employee acknowledges and agrees that (i) the
Employee will only sell any shares issued by the Company on exercise of
any Stock Options in accordance with all applicable securities laws,
including the Securities Act of 1933; and (ii) the shares issued upon
exercise of any Stock Options may be subject to restrictions on resale
imposed by applicable securities law; and (iii) the Company may legend
all stock certificates representing the shares issued upon exercise of
any Stock Options with applicable resale restrictions, as reasonably
advised by the Company's legal counsel; (iv) the Employee has received
and reviewed a copy of the Stock Option Plan.
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Q-Net Technologies, Inc. 4 CONFIDENTIAL
6. Reimbursement of Expenses
(a) Business Related Expenses Employee shall be entitled to
reimbursement of reasonable and documented airfare, hotel,
travel, transportation, entertainment, meals and other out-of
pocket expenses related to the performance of Employee's duties,
all subject to the policies established by the Company.
(b) Auto Allowance. The Company will provide the Employee with an
auto allowance of one thousand ($1,000) per month.
(c) Office and Services. The Company shall furnish the Employee with
an office and such other facilities and services suitable to the
Executive's position and adequate for the performance of the
Employee's duties hereunder.
8. Termination
(a) The Company may terminate this Agreement at any time upon the
occurrence of any of the following events of default (each an
"Event of Default"):
1. The Employee's commission of an act of fraud, theft or
embezzlement or other similar willful illegal conduct;
2. The material breach by the Employee of his material
obligations or agreements under this Agreement; or
3. The knowing breach or failure by the Employee to comply
with any laws applicable to the Company
Provided that notice of the Event of Default has been delivered to the
Employee and provided the Employee has failed to remedy the default
within thirty days of the date of delivery of notice of the Event of
Default, unless the default is of a nature that cannot be remedied.
(b) The Company may at its option terminate this Agreement in the
absence of an Event of Default, by delivering at least one months'
prior notice of termination to the Employee and, on the effective date
of termination, paying to the Employee an amount equal to twelve times
the Employee's average monthly salary for the six months prior to the
effective date of termination, in a lump sum as severance under this
Agreement.
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Q-Net Technologies, Inc. 5 CONFIDENTIAL
In addition, the Company may at its option terminate this
Agreement in the case of the Employee's refusal to follow
lawful directives of the Board which is not an Event of
Default, by delivering at least one months' prior notice of
termination to the Employee and, on the effective date of
termination, paying to the Employee an amount equal to six
times the Employee's average monthly salary for the first
year, nine times the Employee's average monthly salary for the
second year, and twelve times the Employee's average monthly
salary for the third year for the six months prior to the
effective date of termination, in a lump sum as severance
under this Agreement. .
(c) The Employee may terminate this Agreement at any time in
the event of any breach of any material term of this Agreement
by the Company, provided that written notice of default has
been delivered to the Company and the Company has failed to
remedy the default within thirty days of the date of delivery
of notice of default.
(d) On termination of this Agreement for any reason, all
rights and obligations of each party that are expressly stated
to survive termination or continue after termination will
survive termination and continue in full force and effect as
contemplated in this Agreement.
9. PROPRIETARY INFORMATION AND DEVELOPMENTS
(a) The Employee will not at any time, whether during or after the
termination of this Agreement for any reason, reveal to any person or
entity any of the trade secrets or confidential information concerning
the organization, business or finances of the Company or of any third
party which the Company is under an obligation to keep confidential,
except as may be required in the ordinary course of performing the
Employee Services to the Company, and the Employee shall keep secret
such trade secrets and confidential information and shall not use or
attempt to use any such secrets or information in any manner which is
designed to injure or cause loss to the Company. Trade secrets or
confidential information shall include, but not be limited to, the
Company's financial statements and projections, expansion proposals,
customer lists, technologies, business plans, and business
relationships with banks, lenders and other parties not otherwise
publicly available.
(b) If at any time or times during the term of this Agreement, the
Employee shall (either alone or with others) make, conceive, create,
discover, invent or reduce to practice any invention, modification,
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Q-Net Technologies, Inc. 6 CONFIDENTIAL
discovery, design, development, improvement, process, software program,
work of authorship, documentation, formula, data technique, know-how,
trade secret or intellectual property right whatsoever or any interest
therein (whether or not patentable or registrable under copyright,
trademark or similar statutes or subject to analogous protection)
(herein called "Developments") that (i) relates to the business of the
Company or any of the products or services being developed,
manufactured or sold by the Company or which may be used in relation
therewith, (ii) results from tasks assigned the Employee by the Company
or (iii) results from the use of premises or personal property (whether
tangible or intangible) owned, leased or contracted for by the Company,
such Developments and the benefits thereof are and shall immediately
become the sole and absolute property of the Company and its assigns,
as works made for hire or otherwise, and the Employee shall promptly
disclose to the Company (or any persons designated by it) each such
Development and, as may be necessary to ensure the Company's ownership
of such Developments. The Employee hereby assigns any rights
(including, but not limited to, any copyrights and trademarks) the
Employee may have or acquire in the Developments and benefits or rights
resulting there from to the Company and its assigns without further
compensation and shall communicate, without cost or delay, and without
disclosing to others the same, all available information relating
thereto (with all necessary plans and models) to the Company.
(c) The Employee will, during the term of this Agreement and at any
time thereafter, at the request and cost (including the Employee's
reasonable attorney's fees) of the Company, promptly sign, execute,
make and do all such deeds, documents, acts and things as the Company
and, its duly authorized agents may reasonably require:
1. To apply for, obtain, register and vest in the name of the
Company alone (unless the Company otherwise directs) letters
patent, copyrights, trademarks or other analogous protection
for any Developments in any country throughout the world and
when so obtained or vested to renew and restore the same; and
0.xx defend any judicial, opposition or other proceedings in
respect of such applications and any judicial, opposition or
other proceedings or petitions or applications for revocation
of such letters patent, copyright, trademark or other
analogous propose.
In the event the Company is unable, after reasonable effort, to secure
the Employee's signature on any application for letters patent,
copyright or trademark registration or other documents regarding any
legal protection relating to a Development, whether because of the
Employee's physical or mental incapacity or for any other reason
whatsoever, the Employee hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as his respective
agent and attorney-in-fact, to act for and in his behalf and stead to
execute and file any such application or applications or other
documents and to do all other lawfully permitted acts to further the
prosecution, and issuance of letters patent, copyright or trademark
registrations or any other legal protection thereon with the same legal
force and effect as if executed by the Employee as applicable.
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Q-Net Technologies, Inc. 7 CONFIDENTIAL
(d) The obligations of the Employee set forth in Sections 9.1 and 9.2
will survive termination of this Agreement.
10. NON-COMPETE; NON-HIRE
(a) The Employee agrees that, in the event of termination of this
Agreement, for a period of one (1) year following the termination of
this Agreement, the Employee will not, without the Company's consent,
directly, alone or as a partner, joint venturer, officer, director,
employee, agent, independent contractor or stockholder or other owner
of any entity or business, engage in any business which is directly
competitive with the Company Business (as defined in Preamble A.) ;
provided, however, that the ownership by the Employee of not more than
five percent (5%) of the shares of any publicly traded class of stock
of any corporation shall not be deemed, in and of itself, to violate
the prohibitions of this Section 10.1.
(b) The Employee agrees that, in the event of any termination of this
Agreement, for a period of one (1) year following such termination of
this Agreement, the Employee will not hire or otherwise employ or
retain any person who was employed or engaged as a Employee or employee
by the Company as of the date of the termination of this Agreement.
(c) The restrictions in this Section 10, to the extent applicable,
shall be in addition to any restrictions imposed upon the Employee by
statute or at common law.
(d) The parties hereby acknowledge that the restrictions in this
Section 10 have been specifically negotiated and agreed to by the
parties hereto and are limited only to those restrictions reasonably
necessary to protect the Company from unfair competition. The parties
hereby agree that if the scope or enforceability of any provision,
paragraph or subparagraph of this Section 10 is in any way disputed at
any time, and should a court find that such restrictions are overly
broad, the court may modify and enforce the covenant to the extent that
it believes to be reasonable under the circumstances. Each provision,
paragraph and subparagraph of this Section 10 is separable from every
other provision, paragraph and subparagraph and constitutes a separate
and distinct covenant.
(d) The obligations and agreements of the Employee set forth in
Sections 10(a) - (d) will survive termination of this Agreement for the
periods specified in such sections.
11. RELIEF
The Employee hereby expressly acknowledges that any breach or
threatened breach by the Employee of any of the terms set forth in Section 9 or
10 of this Agreement may result in significant and continuing injury to the
Company, the monetary value of which would be impossible to establish, and any
such breach or threatened breach will provide the Company with any and all
rights and remedies to which it may be entitled under the law, including but not
limited to injunctive relief or other equitable remedies.
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Q-Net Technologies, Inc. 8 CONFIDENTIAL
12. PARTIES BENEFITED; ASSIGNMENTS
(a)This Agreement shall be binding upon, and inure to the benefit of,
the Employee, his heirs and his personal representative or
representatives, and upon the Company and its successors and assigns.
Neither this Agreement nor any rights or obligations hereunder may be
assigned by the either party and any such assignment shall be void.
13. NOTICES
Any notice required or permitted by this Agreement shall be in writing,
sent by registered or certified mail, return receipt requested, or by overnight
courier, addressed to the Board and the Company at its then principal office, or
to the Employee at the address set forth below, as the case may be, or to such
other address or addresses as any party hereto may from time to time specify in
writing for the purpose in a notice given to the other parties in compliance
with this Section 13. Notices shall be deemed given when delivered. Addresses
are as follows:
If to the Employee:
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X.X. Xxx 000000
Xxxx Xxxxx, XX 00000
If to the Company:
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Q-Net Technologies, Inc.
00000 Xxxxxxx Xxxxxx, #000
Xxxxxx Xxx Xxx, XX 00000
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada and each party hereto adjourns to the
jurisdiction of the courts of the State of Nevada.
15. REPRESENTATIONS AND WARRANTIES
The Employee represent and warrant to the Company that (a) the Employee
is under no contractual or other restriction which is inconsistent with the
execution of this Agreement, the performance of his duties hereunder or other
rights of Company hereunder, and (b) the Employee is under no physical or mental
disability that would hinder the performance of his duties under this Agreement.
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Q-Net Technologies, Inc. 9 CONFIDENTIAL
16. MISCELLANEOUS
(a) This Agreement contains the entire agreement of the parties
relating to the subject matter hereof.
(b) This Agreement supersedes any prior written or oral agreements or
understandings between the parties relating to the subject matter
hereof.
(c) No modification or amendment of this Agreement shall be valid
unless in writing and signed by or on behalf of the parties hereto.
(d) A waiver of the breach of any term or condition of this Agreement
shall not be deemed to constitute a waiver of any subsequent breach of
the same or any other term or condition.
(e) This Agreement is intended to be performed in accordance with, and
only to the extent permitted by, all applicable laws, ordinances, rules
and regulations. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason and to any
extent, be held invalid or unenforceable, such invalidity and
unenforceability shall not affect the remaining provisions hereof and
the application of such provisions to other persons or circumstances,
all of which shall be enforced to the greatest extent permitted by law.
(f) The headings in this Agreement are inserted for convenience of
reference only and shall not be a part of or control or affect the
meaning of any provision hereof.
(g) The Employee may assign the benefit of this Agreement to a private
corporation controlled by the Employee, provided that such assignment
will not relieve the Employee from his obligations to the Company
arising under this Agreement.
(h) This Agreement replaces and supercedes all other Employee and
employment agreements between the Company and the Employee and any
amendments hereto.
(i) The Employee acknowledges and agrees that Cane O'Xxxxx Xxxxxx LLC
has acted solely as legal counsel for the Company and that the Employee
has been recommended to obtain independent legal advice prior to
execution of this Agreement.
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Q-Net Technologies, Inc. 10 CONFIDENTIAL
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date first written above.
Q-NET TECHNOLOGIES, INC.
By its authorized signatory:
/s/ Xxxxxx Xxxx
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Signature of Authorized Signatory
Xxxxxx Xxxx
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Name of Authorized Signatory
CEO/President/Director
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Position of Authorized Signatory
SIGNED, SEALED AND DELIVERED
BY XXXXX X. XXXXX
In the presence of:
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Signature of Witness
/s/ Xxxxx X. Xxxxx
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Address of Witness
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Q-Net Technologies, Inc. CONFIDENTIAL
