Employment Agreement - Quest Net Corp. and Charles Wainer
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated March 1, 2000 between Quest Net Corp.
(the "Company"), and Charles Wainer (the "Executive").
WHEREAS, the Company desires to employ Executive and to ensure the
continued availability to the Company of the Executive's services, and the
Executive is willing to accept such employment and render such services, all
upon and subject to the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in this Agreement, and intending to be legally bound, the
Company and the Executive agree as follows:
1. TERM OF EMPLOYMENT.
(a) TERM. The Company hereby employs the Executive, and the
Executive hereby accepts employment with the Company, for a period
commencing on April 1, 2000 and ending five (5) years from that date
(the "Term").
(b) CONTINUING EFFECT. Notwithstanding any termination of this
Agreement at the end of the Term or otherwise, the provisions of
Sections 6 and 7 shall remain in full force and effect and the
provisions of Sections 6(b) and 7 shall be binding upon the legal
representatives, successors and assigns of the Executive, except as
otherwise provided in Section 5(d).
2. DUTIES.
(a) GENERAL DUTIES. The executive shall serve as
President/Chief Operating Officer of the Company, with duties and
responsibilities that are customary for such executives. The Executive
will use his best efforts to performs his duties and discharge his
responsibilities pursuant to this Agreement competently, carefully and
faithfully.
(b) DEVOTION OF TIME. The Executive will devote all of his
time, attention, and energies during normal business hours (exclusive
of periods of sickness and disability and of such normal holiday and
vacation periods as have been established by the Company) to the
affairs of the Company. The Executive will not enter the employ of or
serve as a consultant to, or in any way perform any services with or
without compensation to, any other persons, business or organization,
except as previously disclosed, without the prior consent of the board
of directors of the Company; provided, that the Executive shall be
permitted to devote a limited amount of his time, without compensation,
to charitable or similar organizations.
3. COMPENSATION AND EXPENSES.
(a) SALARY. For the services of the Executive to be rendered
under this Agreement, the Company will pay the Executive an annual base
salary of $100,000 during the Term, with a 20% cost of living increase
per annum. The annual salary under this Section 3(a) will be reduced,
however, to the extent that the Executive elects to defer any portion
thereof under the terms of any deferred compensation or savings plan
maintained by the Company. The Company will pay the Executive his
annual salary in equal installments no less frequently than bi-monthly.
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(b) EXPENSES. In addition to any compensation received
pursuant to Section 3(a), and 3(b), the Company will reimburse or
advance funds to the Executive for all reasonable travel, entertainment
and miscellaneous expenses incurred in connection with the performance
of his duties under this Agreement, provided that the Executive
properly accounts for such expenses to the Company in accordance with
the Company's practices. Such reimbursement or advances will be made in
accordance with policies and procedures of the Company in effect from
time to time relating to reimbursement of or advances to executive
officers.
4. BENEFITS.
(a) VACATION. For each 12-month period during the Term, the
Executive will be entitled to three (3) weeks of vacation without loss
of compensation or other benefits to which he is entitled under this
Agreement, to be taken at such times as the Executive may select and
the affairs of the Company may permit.
(b) EMPLOYEE BENEFIT PROGRAMS. Without limiting the
compensation to which the Executive is entitled pursuant to the
provisions of Section 3 or this Section 4, during the Term, the
Executive will be entitled to immediately participate in any pension,
insurance or other employee benefit plan that is maintained at that
time by the Company for its executive officers, including programs of
life and medical insurance and reimbursement of membership fees in
civic, social and professional organizations.
(c) OPTIONS. The Executive shall receive incentive options to
purchase up to an aggregate of 1,000,000 shares of the Company's common
stock at an exercise price equal to 110% of the fair market value of
the Company's common stock on the date of this Employment Agreement.
The options may be exercised as follows:
(i) Options to purchase 50,000 shares may be
exercised every six months during the term of this Agreement,
beginning 6 months from the date hereof.
(ii) Options for an additional 50,000 shares can be
exercised every time the Company has increased its revenue by
one million dollars and has retained that revenue for a period
of not less than two months.
Once vested, the options will remain exercisable for one year from the
date of vesting. After one year from the vesting date, the options will
become null and void. All unvested options shall become null and void
upon termination of Executive's Employment. All vested options that
have not been terminated will become null and void 3 months after the
termination of Executive's employment with the Company.
(d) STOCK GRANT. The executive shall also receive as a stock
grant, 50,000 shares of the Company's common stock upon execution of
this Agreement.
5. TERMINATION.
(a) TERMINATION WITHOUT CAUSE. The Company may terminate the
Executive's employment pursuant to the terms of this Agreement without
cause. Such termination will take effect at least 30 days from the date
of such notice. Upon any such termination without cause for such 30 day
period and for 30 days thereafter the following shall be applicable (i)
the Company will continue to pay the Executive his annual salary
pursuant to Section 3(a) and (ii) the Company will continue to maintain
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for such period, for the benefit of the Executive, the employee benefit
programs referred to in Section 4(b) that were in effect on the date of
such termination.
(b) TERMINATION FOR CAUSE. The Company may terminate the
Executive's employment pursuant to the terms of this Agreement at any
time for cause by given written notice of termination. Such termination
will become effective upon the giving of such notice, except that
termination based upon clause (v) below shall not become effective
unless the Executive shall fail to correct such breach within 10 days
of receipt of written notice thereof provided pursuant to the preceding
sentence. Upon any such termination for cause, the Executive shall have
no right to compensation, commission, bonus, or reimbursement under
Section 3, or to participate in any employee benefit programs under
Section 4 for any period subsequent to the effective date of
termination. For purposes of this Section 5(c), "cause" shall mean: (i)
the Executive is convicted of a felony which is related to the
Executive's employment or the business of the Company; (ii) the
Executive, in carrying out his duties hereunder, has been found in a
civil action to have committed willful gross negligence or willful
gross misconduct resulting, in either case, in material harm to the
Company; (iii) the Executive misappropriates Company funds or otherwise
defrauds the Company; (iv) the Executive materially breaches any
provision of Section 6 or Section 7; and (v) the Executive materially
fails to perform his duties under Section 2.
(c) DEATH OR DISABILITY. Except for the conditions and
obligations contained in this Section 5(d), this Agreement, and the
obligations of the Company hereunder will terminate upon the death or
disability of the Executive. For purposes of this Section 5(d),
"disability" shall mean that for a period of one (1) months in any
twelve (12) month period the Executive is incapable of substantially
fulfilling the duties set forth in Section 2 because of physical,
mental or emotional incapacity resulting from injury, sickness or
disease.
Upon termination by death or disability, the Company will pay the
Executive or his legal representative, as the case may be: (i) his
annual salary at such time pursuant to Section 3(a) through the date of
such termination of employment.
(d) SPECIAL TERMINATION. In the event that (i) the Executive,
with or without change in title or formal corporate action, shall no
longer exercise all of the duties and responsibilities and shall no
longer possess substantially all the authority set forth in Section 2;
or (ii) the Company materially breaches this Agreement or the
performance of its duties and obligations hereunder; or (iii) any
entity or person not now an executive officer or majority shareholder
of the Company becomes either individually or as part of a group the
beneficial owner of 51% or more of the Company's common stock, the
Executive, by written notice to the Company, may elect to deem the
Executive's employment hereunder to have been terminated by the Company
without cause under Section 5(a) hereof, in which event the Executive
shall be entitled to the compensation payable pursuant to clauses (i)
and (ii) of Section 5(a).
(e) VOLUNTARY TERMINATION. The Executive, on 30 days prior
written notice to the Company, may terminate his employment voluntarily
(i) at any time following termination of the initial Term or (ii) at
any time following the death or disabling illness of a member of the
Executive's immediate family or similar personal, non-business related
occurrence as a result of which the Executive concludes he must devote
a substantial amount of his time and energies to his family or other
personal matter and not to his business activities so as to preclude
his fulfilling his obligations under this Agreement. Upon any such
termination, the Company will pay the Executive (i) his annual salary
at such time pursuant to Section 3(a) through the date of such
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termination of employment; and (ii) any bonus which would have been
payable through the date of termination pursuant to Section 3(c). Such
sums shall be paid upon the same terms and conditions as if this
Agreement were in fully force and effect.
(f) CONTINUING EFFECT. Notwithstanding any termination of the
Executive's employment as provided in this Section 5 or otherwise, the
provisions of Sections 6 and 7 shall remain in full force and effect,
6. NON-COMPETITION AGREEMENT.
(a) COMPETITION WITH THE COMPANY. Until termination of his
employment and for a period of twenty four (24) months commencing on
the date of termination, the Executive, directly or indirectly, in
association with or as a stockholder, director, officer, consultant,
employee, partner, joint venturer, member or otherwise of or through
any person, firm, corporation, partnership, association or other
entity, will not compete with the Company or any of its affiliates in
the offer, sale or marketing of products or services that are
competitive with the products or services offered by the Company,
within any metropolitan area in the United States or elsewhere in which
the Company is then engaged in the offer and sale of competitive
products or services; provided, however, the foregoing shall not
prevent Executive from accepting employment with an enterprise engaged
in two or more lines of business, one of which is the same or similar
to the Company's business (the "Prohibited Business") if Executive's
employment is totally unrelated to the Prohibited Business; provided,
further, the foregoing shall not prohibit Executive from owning up to
5% of the securities of any publicly-traded enterprise provided
Executive is not an employee, director, officer, consultant to such
enterprise or otherwise reimbursed for services rendered to such
enterprise. Provided, however, that should the Company be declared
insolvent, file for bankruptcy, become unable to continue operations
for any reason or, be found to be in violation of any provisions
contained herein, the Executive shall be released from the provisions
of this Section 6.
(b) SOLICITATION OF CUSTOMERS. During the twenty four (24)
month period in which the provisions of Section 6(a) shall be in
effect, the Executive, directly or indirectly, will not seek Prohibited
Business from any Customer (as defined below) on behalf of any
enterprise or business other than the Company, refer Prohibited
Business from any Customer to any enterprise or business other than the
Company or receive commissions based on sales or otherwise relating to
the Prohibited Business from any Customer, or any enterprise or
business other than the Company. For purposes of this Section 6(b), the
term "Customer" means any person, firm, corporation, partnership,
association or other entity to which the Company or any of its
affiliates has transacted business with, sold, purchased or provided
goods or services to during the 24-month period prior to the time at
which any action of the Executive requires that a determination is
required to be made as to whether any such person, firm, corporation,
partnership, association or other entity is a Customer.
(c) NO PAYMENT. The Executive acknowledges and agrees that no
separate or additional payment will be required to be made to him in
consideration of his undertakings in this Section 6.
7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive
acknowledges that during his employment he will learn and will have access to
confidential information regarding the Company and its affiliates, including
without limitation (i) confidential or secret plans, programs, documents,
agreements or other material relating to the business, services or activities of
the Company and its affiliates and (ii) trade secrets, market reports, customer
investigations, customer lists and other similar information that is proprietary
information of the Company or its affiliates (collectively referred to as
"Confidential Information"). Provided, however, that Confidential Information
shall not include information, knowledge or training obtained by the Executive
in the normal course of business, which is not specific to the Company, its
business operations or practices. The Executive acknowledges that such
confidential
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information as is acquired and used by the Company or its affiliates is a
special, valuable, and unique asset. All records, files, materials, and
confidential information obtained by the Executive in the course of his
employment with the Company are confidential and proprietary and shall remain
the exclusive property of the Company or its affiliates, as the case may be. The
Executive will not, except in connection with and as required by his performance
of his duties under this Agreement, for any reason use for his own benefit or
the benefit of any person or entity with which he may be associated or disclose
any such confidential information to any person, firm, corporation, association
or other entity for any reason or purpose whatsoever without the prior written
consent of the board of directors of the Company, unless such confidential
information previously shall have become public knowledge through no action by
or omission of the Executive.
8. EQUITABLE RELIEF.
(a) The Company and the Executive recognize that the services
to be rendered under this Agreement by the Executive are special,
unique and of extraordinary character, and that in the event of the
breach by the Executive of the terms and conditions of this Agreement
or if the Executive, without the prior consent of the board of
directors of the Company, shall (i) leave his employment for any
reason; and (ii) take any action in violation of Section 6 or Section
7, the Company will be entitled to institute and prosecute proceedings
in any court of competent jurisdiction referred to in Section 8(b)
below, to enjoin the Executive from breaching the provisions of Section
6 or Section 7. Nothing contained in this Section 8 shall be construed
to prevent the Company from seeking such other remedy in arbitration in
case of any breach of this Agreement by the Executive, as the Company
may elect.
(b) Any proceeding or action must be commenced in federal
court in Broward or Dade County, Florida, or in the absence of federal
jurisdiction in state court in Broward County Florida. The Executive
and the Company irrevocably and unconditionally submit to the
jurisdiction of such courts and agree to take any and all future action
necessary to submit to the jurisdiction of such courts. The Executive
and the Company irrevocably waive any objection that they now have or
hereafter irrevocably waive any objection that they now have or
hereafter may have to the laying of venue of any suit, action or
proceeding brought in any such court and further irrevocably waive any
claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Final judgment against
the Executive or the Company in any such suit shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment, a
certified or true copy or which shall be conclusive evidence of the
fact and the amount of any liability of the Executive or the Company
therein described, or by appropriate proceedings under any applicable
treaty or otherwise.
9. ASSIGNABILITY. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, provided that such successor or assign shall acquire all
or substantially all of the assets and business of the Company. The Executive's
obligations hereunder may not be assigned or alienated and any attempt to do so
by the Executive will be void.
10. SEVERABILITY.
(a) The Executive expressly agrees that the character,
duration, and geographical scope of the provisions set forth in this
Agreement are reasonable in light of the circumstances, as they exist
on the date hereof. Should a decision, however, be made at a later date
by a court of competent jurisdiction that the character, duration or
geographical scope of such provisions is unreasonable, then it is the
intention and the agreement of the Executive and the Company that this
Agreement shall be construed by the court in such a manner as to impose
only those restrictions on the Executive's conduct that are reasonable
in the light of the circumstances and as are necessary to assure to the
Company the benefits of this Agreement. If, in any judicial proceeding,
a court shall refuse to enforce all of the separate covenants deemed
included herein because taken together they are more extensive than
necessary to
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assure to the Company the intended benefits of this Agreement, it is
expressly understood and agreed by the parties hereto that if any
provisions of this Agreement, are eliminated, the remaining separate
provisions may be enforced in such proceeding.
(b) If any provision of this Agreement otherwise is deemed to
be invalid or unenforceable or is prohibited by the laws of the state
or jurisdiction where it is to be performed, this Agreement shall be
considered divisible as to such provision and such provision shall be
inoperative in such state or jurisdiction and shall not be part of the
consideration moving from either of the parties to the other. The
remaining provisions of this Agreement shall be valid and binding and
of like effect as though such provision were not included.
11. NOTICES AND ADDRESSES. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery during normal business
hours, with such delivery acknowledged in writing or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
Executive Charles Wainer
c/o CWTEL. Inc
1250 East Hallandale Beach Blvd. #502
Hallandale, Florida 33000
Company Quest Net Corp.
2740 E Oakland Park Boulevard
Suite 206
Fort Lauderdale, Florida 33306
With Copy to: Rebecca J. Del Medico, Esq.
6281 Floridian Circle
Lake Worth, Florida 33463
or to such other address as either of them, by notice to the other may designate
from time to time.
12. COUNTERPART. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
13. ARBITRATION. Upon the parties mutual agreement, except for any
controversy or claim seeking equitable relief as provided in Section 8 of this
Agreement, any controversy or claim arising out of or relating to this
Agreement, or to the interpretation, breach or enforcement thereof or any other
dispute between the parties, may, upon the parties mutual agreement, be
submitted to one arbitrator, mutually agreed upon by the parties, and settled by
arbitration in Fort Lauderdale, Florida, in accordance with the rules, then
obtaining, of the American Arbitration Association. In the event that an
arbitrator cannot be mutually agreed upon, each party will pick an arbitrator
who in turn will pick a third arbitrator who will hear the controversy claim.
Any award made by such arbitrator shall be final, binding, and conclusive on all
parties hereto for all purposes, and judgment may be entered thereon in any
court having jurisdiction thereof.
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14. ATTORNEY'S FEES. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to a
reasonable attorney's fee, costs, including the costs of arbitration, and
expenses.
15. GOVERNING LAW. This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
17. ADDITIONAL DOCUMENTS. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
18. SECTION AND PARAGRAPH HEADINGS. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date and year first above written.
WITNESS: Quest Net Corp.
/s/ Paul K. Zeller By: /s/ Camilo Pereira, Chief Executive
Officer
AGREED AND ACCEPTED:
WITNESS:
/s/ Donald Braxtin /s/ Charles Wainer, Executive
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