Exhibit 10.9 Employment Agreement between Quintek Technologies, Inc. and
Xxxxxx Xxxxxx dated January 31, 2003
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made on __January_30__, 2003, by and between Quintek
Technologies, Inc. ("QUINTEK"), and XXXXXX XXXXXX ("Executive"), with reference
to the following facts:
A. QUINTEK is in the business of providing hardware, software and
services for the production of Aperture Cards.;
B. QUINTEK desires to retain EXECUTIVE for his experience and
ability on a formalized basis in the position of President and
Chief Executive Officer (CEO);
C. Executive desires to accept such employment upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. Employment and Duties.
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1.1 Executive shall serve as President and Chief Executive Officer of
QUINTEK. Executive shall do and perform all services and actions necessary or
advisable to promote the continued success of QUINTEK'S business, subject to the
instructions, policies and limitations which may be set from time to time by its
Board of Directors (the "Board").
1.2 Executive shall devote his entire productive time, ability and
attention to the business of QUINTEK during his employment with the exceptions
noted in 1.3 below. Executive shall not directly or indirectly render any
services of a business, commercial or professional nature to any other person or
organization, whether for compensation or otherwise, without the prior written
consent of the Board.
1.3 QUINTEK hereby provides consent for Executive to continue working
in an advisory capacity within his pre-existing relationships with iBrite, Inc.,
Centerline Entertainment, LLC, Inline Corporation, CADD Microsystems, Inc. none
of which are in competition with QUINTEK, as long such involvement does not
detract from his responsibilities at QUINTEK.
1.4 Executive acknowledges and agrees that his services to QUINTEK are
of a special, unique and extraordinary character and further acknowledges and
agrees that a breach of any of the covenants or agreements contained in this
Agreement (including but not limited to Sections 2.2 and 7 hereof) is likely to
result in irreparable and continuing damage to QUINTEK for which there will be
no adequate remedy at law. Accordingly, in the event of such breach QUINTEK
shall be entitled to injunctive relief and/or a decree for specific performance,
and such other and further relief as may be proper (including monetary damages,
if appropriate).
2. Term.
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2.1 The term of employment shall be for five (5) years.
2.2 Executive agrees to provide QUINTEK with ninety (90) days written
notice prior to terminating this Agreement.
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2.3 If Executive is terminated prior to the fifth anniversary of this
Agreement for reasons other than "for cause" or if he becomes "Disabled" (as
defined herein), QUINTEK will provide Executive with twelve (12) months' notice
prior to terminating this Agreement. If, however, QUINTEK does not provide
Executive with twelve (12) months' notice or provides less than twelve (12)
months' notice, it shall provide Executive with an equivalent amount of pay in
lieu of notice for all or any portion of the twelve (12) months' notice not
provided. Such pay in lieu of notice is in addition to any other sums which may
be owed to Executive pursuant to this Agreement. Any pay in lieu of notice shall
constitute severance pay ("Severance") and shall be paid over the course of the
pay in lieu of notice period in accordance with QUINTEK's regular payroll
practices at the rate of his then-current base salary, less standard payroll tax
withholdings. In no event shall QUINTEK be required to pay Severance if
Executive resigns, is terminated after the fifth anniversary of this Agreement
for any or no reason, if he is terminated because he has become "Disabled" or if
he is terminated at any time "for cause", other than as set forth in Paragraph
2.6. In the event that QUINTEK's Recast Profits (as defined in Paragraph 3.3)
for the twelve (12) month period prior to termination amount to less than Two
Million Dollars ($2,000,000), QUINTEK shall pay a separation benefit equivalent
to three month's base salary at his then-current rate, less standard payroll tax
withholdings.
2.4 As used herein, the term "for cause" shall be limited to
the following:
2.4.1 Executive's continued failure or habitual neglect to
perform his duties as set forth in Section 1 of this Agreement after receiving
written notice of the alleged deficiencies and having had an opportunity to
improve; or
2.4.2 Executive's engaging in any activity or conduct which is
specifically precluded by this Agreement, including any activity competitive
with or intentionally injurious to QUINTEK; or
2.4.3 Intentional malfeasance or misfeasance or gross neglect
of duty engaged in by Executive while carrying out his duties owing to QUINTEK
under this Agreement; or
2.4.4 Executive's impairment due to alcohol or other substance
abuse which in the reasonable judgment of QUINTEK affects or interferes with, or
may affect or interfere with, Executive's performance or capacity to properly
discharge Executive's duties, such impairment not to include an isolated
incident occurring off the premises during non-working hours; or
2.4.5 The commission by Executive of a felony or a crime
involving moral turpitude (whether or not prosecuted), the charge or indictment
of Executive by a governmental or prosecutorial authority of the same or the
pleading by Executive of no contest (or similar plea) to the same, whether or
not committed in the course of his employment; or
2.4.6 Executive's committing any act of dishonesty against
QUINTEK or using or appropriating for his personal use or benefit any funds or
properties of QUINTEK, unless such use or appropriation was specifically
authorized by the Board or the Chief Financial Officer in writing.
2.5 This Agreement shall not be terminated by any merger or
consolidation where QUINTEK is not the consolidated or surviving corporation or
by any transfer of all or substantially all of the assets of QUINTEK. In the
event of any such merger or consolidation or transfer of assets, the surviving
or resulting corporation or the transferee of the assets of QUINTEK shall be
bound by and shall have the benefit of the provisions of this Agreement, and
QUINTEK shall take all steps necessary to ensure that such corporation or
transferee is bound by the provisions of this Agreement.
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2.6 If Executive is terminated prior to the fifth anniversary of this
Agreement "for cause" as defined by Paragraphs 2.4.1 and 2.4.4, QUINTEK shall
pay Executive a separation benefit equivalent to one month's base salary at his
then-current rate, less standard payroll tax withholdings ("Separation
Benefit").
2.7 QUINTEK may terminate Executive if he becomes Disabled, such
termination to be made in QUINTEK's sole discretion. For the purposes of this
Agreement, "Disabled" shall mean that Executive is unable to perform his duties
hereunder, either with or without a reasonable accommodation, as the result of
his incapacity due to physical or mental illness or condition, and such
inability continues for at least thirty (30) consecutive calendar days or equals
or exceeds sixty (60) calendar days during any consecutive twelve (12)-month
period. If Executive is terminated prior to the fifth anniversary of this
Agreement due to his becoming Disabled, QUINTEK shall pay Executive a separation
benefit equivalent to three month's base salary at his then-current rate, less
standard payroll tax withholdings ("Disability Benefit").
2.8 As a precondition to paying the foregoing Severance, Separation
Benefit or Disability Benefit, QUINTEK may require that Executive re-confirm his
obligations under Paragraph 7 and execute a general release of any and all
claims he might have against QUINTEK, whether arising out of his employment or
termination of employment, other than QUINTEK's obligation to pay the Severance,
Separation Benefit or Disability Benefit, as the case may be. Furthermore, any
salary, severance, separation benefit or disability benefit or other amounts due
to Executive following termination may be offset against any amounts due to
QUINTEK from Executive.
3. Compensation.
3.1 As compensation for services hereunder, Executive shall receive a
salary of $6,000 per month, less standard payroll tax withholdings (the
"Salary"), during the term of this Agreement, subject to adjustment as set forth
in Paragraph 3.2 below.
3.2 Executive's Salary shall remain unchanged until such time as
QUINTEK's quarterly Gross Revenue shall exceed or equal the sum of $300,000.
Should this occur, Executive's Salary for the following quarter shall be
increased to the sum of $9,000 per month, less standard payroll tax
withholdings. If QUINTEK's quarterly Gross Revenue shall exceed or equal the sum
of $600,000, Executive's Salary for the following quarter shall be increased to
the sum of $12,000 per month, less standard payroll tax withholdings. If
QUINTEK's quarterly Gross Revenue shall exceed or equal the sum of $900,000,
Executive's Salary for the following quarter shall be increased to the sum of
15,000 per month, less standard payroll tax withholdings. If QUINTEK's quarterly
Gross Revenue decreases at any time, Executive's Salary shall be decreased to
the corresponding monthly salary described in this Paragraph, subject to a final
reduction to the base Salary amount set forth in Paragraph 3.1 above. For the
purposes of this Agreement, "Gross Revenue" shall be defined as QUINTEK's gross
revenue for the applicable quarter as calculated by QUINTEK's regular
accountant(s).
3.3 In addition, Executive will be eligible to receive an annual bonus
based upon the Recast Profits of QUINTEK over the prior twelve (12) month
calendar/fiscal year period. If QUINTEK's Recast Profit Margin for the prior
twelve (12) month calendar/fiscal year period is less than six (6%) percent then
Executive will not receive any bonus. If QUINTEK's Recast Profit Margin for the
prior twelve (12) month calendar/fiscal year period equal or exceed six (6%)
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percent, then Executive will be paid a bonus of three (3%) percent of Recast
Profits, less standard payroll tax withholdings, within thirty (30) days of such
year end. For each additional one (1%) percent of Recast Profits over and above
six (6%) percent of Recast Profits for the prior twelve (12) month
calendar/fiscal year period, Executive will receive an additional bonus of one
(1%) percent of Recast Profits less standard payroll tax withholdings, within
thirty (30) days of such year end, such additional bonus to be prorated for each
additional one (1%) percent in Recast Profit Margin over and above the sum of
six (6%) percent of Recast Profit Margin for the prior twelve (12) month
calendar/fiscal year period. For example, if at the end of calendar/fiscal year
2004, QUINTEK's Recast Profits for the prior year amount to $994,200 then
Executive would be paid the sum of $99,552 within thirty (30) days. For the
purposes of this agreement, "Executive's Compensation" is defined as Executive's
salary, car allowance (not to exceed Five Hundred Dollars ($500) per month and
interest paid on Executive's loans (if any) to QUINTEK, as calculated by
QUINTEK's regular accountant(s). For the purposes of this Agreement, "Recast
Profits" shall be defined as net profits before interest, taxes, depreciation
and amortization (EBITDA), less Executive's Compensation. For the purposes of
this Agreement, "Recast Profit Margin" shall be defined as the quotient of
Recast Profits divided by Gross Revenue. See Exhibit A for example.
3.4 Executive will be paid a car allowance of Five Dollars ($500) per
month during the term of this Agreement. This automobile allowance will be
QUINTEK's sole obligation with respect to Executive's leased or owned
automobile; Executive will maintain the costs of license, insurance and
maintenance during this period. In addition, Executive accepts such automobile
allowance on such terms and conditions as QUINTEK may establish from time to
time regarding the payment of an automobile allowance to its employees.
3.5 Executive shall be entitled to all other employment benefits
provided by QUINTEK to its full-time employees as set forth in QUINTEK's
Employee Handbook, which is subject to revision from time to time at QUINTEK's
discretion.
3.6 All compensation and other payments to Executive hereunder shall be
subject to withholding for federal, state and local income taxes, social
security, disability and the like.
3.7 Other Benefits. Executive shall be entitled to continue to
participate in or receive benefits under all of the Employee Benefit Plans of
QUINTEK under which Employee may participate in accordance with applicable laws
and the terms of such plans in effect on the date hereof, or under plans or
arrangements that provide Executive with at least substantially equivalent
benefits to those provided under such Employee Benefit Plans. As used herein,
"Employee Benefit Plans" include, without limitation, each pension, and
retirement plan; supplemental pension, retirement, and deferred compensation
plan; savings and profit-sharing plan; stock ownership plan; stock purchase
plan; stock option plan; life insurance plan; medical insurance plan; disability
plan; and health and accident plan or arrangement established and maintained by
QUINTEK on the date hereof. Executive shall be entitled to participate in or
receive benefits under any employee benefit plan or arrangement which may, in
the future, be made available to QUINTEK's executives and key management
employees, subject to and on a basis consistent with the terms, conditions, and
overall administration of such plan or arrangement. Nothing paid to Executive
under the Employee Benefit Plans presently in effect or any employee benefit
plan or arrangement which may be made available in the future shall be deemed to
be in lieu of compensation payable to Executive. Any payments or benefits
payable to Executive under a plan or arrangement in respect of any calendar year
during which Executive is employed by QUINTEK for less than the whole of such
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year shall, unless otherwise provided in the applicable plan or arrangement, be
prorated in accordance with the number of days in such calendar year during
which he is so employed. Should any such payments or benefits accrue on a fiscal
(rather than calendar) year, then the proration in the preceding sentence shall
be on the basis of a fiscal year rather than calendar year.
3.8 Vacations. Executive shall be entitled to the number of paid
vacation days in each calendar year determined by QUINTEK from time to time for
its senior executive officers. Executive shall also be entitled to all paid
holidays given by QUINTEK to its senior executive officers.
3.9 Offices. Executive agrees to serve as a director of QUINTEK, if
elected or appointed thereto, provided he is indemnified for serving in such
capacity on a basis no less favorable than is currently provided by QUINTEK's
By-laws and any indemnification agreement with any other director.
4. Business Expenses. Executive is authorized to incur reasonable expenses for
promoting and conducting the business of QUINTEK, including reasonable
expenditures for entertainment and travel. QUINTEK shall reimburse Executive
monthly for all such business expenses upon presentation of documentation
establishing the amount, date, place and essential character of the
expenditures, in such form as QUINTEK may require and sufficient to satisfy any
Internal Revenue Code requirements for such expenses to be deductible to
QUINTEK. Any expenditures in excess of an aggregate of One Thousand Dollars
($1,000) per month shall require the prior written approval of the Board or the
Chief Financial Officer.
5. Health Insurance. Executive shall be entitled to receive such medical and
dental insurance benefits as are designated and made available by QUINTEK for
its employees generally, which benefits are subject to change or revocation at
QUINTEK' sole discretion.
6. Issuance of Equity.
6.1 Executive shall receive a grant of 1,000,000 shares of Series A
Preferred Stock upon execution of this agreement. Terms and Conditions of Series
A preferred Stock are to be established, determined and set forth in a
Stockholders Agreement to be finalized within them next 14 days. QUINTEK
acknowledges that it has committed to sell to Executive additional shares of
common stock (or grant to Executive rights to purchase additional shares of
common stock) in QUINTEK so that, including all options or shares previously
issued to or purchased by Executive, Executive would own, in the aggregate,
shares of common stock or rights to purchase shares of common stock representing
ten percent (10%) of the current outstanding common stock in QUINTEK on a
fully-diluted basis after taking into account the issuance of such additional
shares to Executive and assuming the issuance of all other shares subject to
currently outstanding options or warrants. QUINTEK and Executive acknowledge and
agree that the purchase price for such shares (or the exercise price for such
options) will be $.03 per share, but they have otherwise not as yet determined
how such additional shares and/or options will be issued to Executive. It is
contemplated that QUINTEK and Executive will enter into a separate agreement or
agreements on these additional shares and/or options within 90 days of the date
of this Agreement (or upon the authorization of additional shares by the
Shareholders of Quintek). Specifically, it is presently anticipated that the new
stock agreements(s) will have , at minimum, new termination and repurchase
provisions, with the termination provisions to be consistent with new
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termination and repurchase provisions, with the termination provisions to be
consistent with the termination provisions set forth in this Agreement. The
agreement(s) also will contain provisions providing Executive with pre-emptive
rights to purchase additional shares of common stock of QUINTEK under certain
circumstances. Options shall vest according to the following schedule: Right to
purchase two and a half percent (2.5%) of outstanding common stock, upon the
authorization of additional shares by the Shareholders of Quintek, assuming that
authorization of more shares is approved by the shareholders of the Company,
options giving Executive the right to purchase an additional two and a half
percent (2.5%) of outstanding common stock at the time of grant, will be granted
to executive upon the one (1) year anniversary of this agreement for the
following three (3) years. In the event of a sale of Quintek, termination of
this agreement by the Company, or any other event that may impede Quintek's
ability to fulfill its obligations under this Agreement, all options will be
immediately vest.
6.2 Manner of Exercise of Options. The options or rights to purchase
common stock described in Paragraph 6.1 above (collectively, the "Option") may
be exercised in whole at any time, or in part from time to time, during the
period commencing on the date of issuance ("Base Date") and expiring on the date
of expiration ("Expiration Date") or, if any such day is a day on which banking
institutions in the City of New York, New York are authorized by law to close,
then on the next succeeding day that shall not be such a day, by presentation
and surrender of Options to QUINTEK at its principal office, or at the office of
its stock transfer agent, if any, with QUINTEK's Option Exercise Form duly
executed and accompanied by payment (either in cash or by certified or official
bank check, payable to the order of QUINTEK) of the Exercise Price for the
number of shares specified in such Form and instruments of transfer, if
appropriate, duly executed by the Holder or its duly authorized attorney.
6.3 Alternative Manner of Exercise. In lieu of exercising the Option in
the manner set forth in Paragraph 6.2, Options may be exercised in whole at any
time, or in part from time to time, during the period commencing on the Base
Date and expiring on the Expiration Date or, if any such day is a day on which
banking institutions in the City of New York, New York are authorized by law to
close, then on the next succeeding day that shall not be such a day, by
presentation and surrender of Options to QUINTEK at its principal office, or at
the office of its stock transfer agent, if any, with QUINTEK's Option Exercise
Form duly executed and accompanied by payment (either in cash or by certified or
official bank check, payable to the order of QUINTEK) of $.001 for each share
issuable upon exercise of Option, the number of such shares (collectively, the
"Alternative Option Shares") to be determined as hereinafter set forth, and
instruments of transfer, if appropriate, duly executed by the Holder or its duly
authorized attorney. Alternative Option Shares shall be determined according to
the following formula:
Z = A x (MP - EP)
MP
For the purpose of this Section 1.2, the following definitions
shall apply:
(a) "Z" shall mean the number of Alternative Option Shares;
(b) "A" shall mean that number of shares of Common Stock issuable upon
exercise of Option or the part thereof being exercised had such Option or part
been exercised pursuant to Section 1.1;
(c) "MP" shall mean the average of the closing prices per share of the
Common Stock on the securities exchange or automated quotation system on which
the Common Stock is primarily traded for the ten (10) trading days ending on the
trading day prior to the date Option is presented and surrendered to QUINTEK;
and
(d) "EP" shall mean the Exercise Price (as hereinabove defined).
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6.4 Partial Exercise; Taxes. If Option should be exercised in part
only, QUINTEK shall, upon surrender of Option for cancellation, execute and
deliver a new Option evidencing the rights of Executive thereof to purchase the
balance of the shares purchasable hereunder. Upon receipt by QUINTEK of Option,
together with the Exercise Price, at its office, or by the stock transfer agent
of QUINTEK at its office, in proper form for exercise, Executive shall be deemed
to be the holder of record of the shares of common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of QUINTEK shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to Executive. QUINTEK shall pay any and all
documentary stamp or similar issuer taxes
7. Property Rights, Confidential Information, and Trade Secrets of QUINTEK.
7.1 As used in this Agreement, the terms "Confidential Information" and
"Trade Secrets", collectively or individually, shall mean the following:
7.1.1 QUINTEK's contracts, marketing plans, purchases and
sales, whether realized or in development, including, without limitation, any
source of ideas or projects;
7.1.2 Information relating to QUINTEK's business, whether or
not such information is in writing;
7.1.3 Information relating to QUINTEK's clients and
candidates, including such persons' resumes, job descriptions, hiring needs and
preferences, computer systems, expertise, business endeavors, purchasing habits,
and other information concerning QUINTEK's business relations with its clients
and candidates;
7.1.4 Information of a personal nature relating to QUINTEK's
employees, officers and managers, including such persons' salaries, benefits,
special skills and knowledge, identities and performance; and
7.15 QUINTEK' records, including, but not limited to,
electronic, written, typed, or printed, including without limitation client and
candidates lists and charts, other lists and charts, memoranda, notebooks,
correspondence, notes, letters, plans, proposals, contracts, files, resumes, job
descriptions, employee files, manuals, blank forms, materials and supplies, and
all information therein contained, and similar items affecting or relating to
the business of QUINTEK, whether prepared by QUINTEK, Executive, or otherwise,
and any other tangible source of information (whether or not written) relating
to QUINTEK.
7.2 Executive, for the duration of his employment has had and will have
access to and become acquainted with Trade Secrets and/or Confidential
Information of QUINTEK which are owned by QUINTEK and which are regularly used
in the operation of the business of QUINTEK. Executive shall not disclose any of
the aforesaid Trade Secrets and/or Confidential Information, directly or
indirectly, or use Trade Secrets and/or Confidential Information in any way,
either during the term of this Agreement or at any time thereafter, except
actions undertaken for the benefit of QUINTEK as required in the course of his
employment. All Trade Secrets and/or Confidential Information coming into his
possession shall remain the exclusive property of QUINTEK and shall not be
copied and/or removed from the premises of QUINTEK under any circumstances
whatsoever without the prior written consent of QUINTEK, except in the normal
course of Executive's employment. Under no circumstance can such Trade Secrets
and/or Confidential Information be allowed to fall directly or indirectly into
the hands of or be used by any competitor or potential competitor of QUINTEK's.
To the extent that Executive originates, develops, or reduces to writing Trade
Secrets and/or Confidential Information, Executive does so within the scope of
his employment. QUINTEK possesses all right, title, and interest in all
Confidential Information and/or Trade Secrets, whether created by QUINTEK or
Executive.
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7.3 In the event of any termination of employment with QUINTEK,
Executive agrees to deliver promptly to QUINTEK all files, records, documents,
drawings, client or candidate lists, resumes, job descriptions, plans,
proposals, contracts, charts, other lists and charts, equipment, books,
notebooks, memoranda, reports, correspondence, or other written, electronic or
graphic records and the like, and all other Trade Secrets and/or Confidential
Information relating to QUINTEK's business, which are or have been in his
possession or under his control, in good condition, ordinary wear and tear and
damage by any cause beyond the control of Executive excepted.
7.4 Executive shall not, following the termination of his employment
with QUINTEK, either directly or indirectly, or by action in concert with
others, either for Executive's own benefit or for the benefit of any other
person or entity:
7.4.1 Make known to any person the names, addresses or
telephone numbers or any of the candidates, clients or projects of QUINTEK or
any other Trade Secrets and/or Confidential Information pertaining to them;
7.4.2 For a period of twelve (12) months following the
termination of Executive's employment with QUINTEK, call on, solicit, divert,
interfere with or take away, or attempt to call on, solicit, divert, interfere
with or take away, any of the projects, clients or candidates of QUINTEK,
including without limitation all those clients, candidates and projects with
whom Executive became acquainted during his employment with QUINTEK, either for
Executive's own benefit or for any other person or entity;
7.4.3 Induce in any way, directly or indirectly, QUINTEK's
employees, and/or persons working with and/or contracting with QUINTEK, to
disclose QUINTEK's Trade Secrets and/or Confidential Information to any person;
7.4.4 For a period of twelve (12) months following the
termination of Executive's employment with QUINTEK, hire or take away, or
attempt to hire or take away, any of QUINTEK's employees, and/or independent
contractors, and/or persons working with and/or contracting with QUINTEK; and
7.4.5 For a period of twelve (12) months following the
termination of Executive's employment with QUINTEK, induce or influence (or seek
to induce or influence) any person who is engaged (as an employee, agent,
independent contractor, or otherwise) by QUINTEK to terminate his or her
employment or engagement or breach their duties of obligations owed to QUINTEK.
7.5 For the duration of this Agreement, Executive shall not, directly
or indirectly, either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director or in any other individual or
representative capacity, engage or participate in any business that is in
competition in any manner whatsoever with the business of QUINTEK, without the
prior written consent of the Board or the Chief Financial Officer. "Directly or
indirectly" means that Executive will not benefit in any way, shape or form from
any affiliation or consultation with any business that is engaged in film based
imaging, custom application development, staffing and permanent placements,
whether or not he is an owner, director, officer, shareholder, employee or
consultant for such firm or entity.
8. Entire Agreement, Etc. This Agreement contains the entire and exclusive
agreement of the parties hereto. No prior written or oral representations
between them originating before the date of the Agreement not embodied herein
shall be of any force or effect. The parties have mutually participated in the
negotiation and preparation of this Agreement and no rule of construction that
the Agreement shall be construed against the drafting party shall apply hereto.
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9. Modification. This Agreement may not be superseded and none of the terms of
this Agreement can be waived or modified except by an express written agreement
signed by all parties hereto. Any oral representations or modifications
concerning this Agreement (including any fully executed oral agreements or
modifications) shall be of no force or effect unless contained in a subsequent
written modification signed by all parties.
10. Release of Any Prior Bonus Claims. As further consideration for this
Agreement, Executive, on his own behalf and on behalf of his heirs, spouse,
executors, administrators, employees and agents, hereby releases and discharges
QUINTEK and its parents, subsidiaries and affiliates, and each of their
respective officers, managers, directors, partners, employees, predecessors,
successors, assigns, stockholders, representatives and agents, individually and
collectively, of and from any and all known or unknown liabilities, claims,
demands or any other thing for which he or any of them have or may have a known
or unknown cause of action, claim, or demand for damages, whether certain or
speculative, which may have at any time prior hereto come into existence or
which may be brought in the future in connection with obligations by QUINTEK to
pay any bonus of any kind to Executive which have arisen at any time prior to
the date of this Agreement.
11. Severability. If any term, provision, covenant, or condition of this
Agreement (the "Provision") is held by an arbitrator or a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions of
this Agreement shall remain in full force and effect and in no way shall be
affected, impaired, or invalidated. If possible, the Provision shall remain in
effect but shall be modified by the court only to the extent necessary to make
it reasonable.
12. Arbitration. If a dispute should arise between QUINTEK and Executive, or in
the event of any claim arising under or involving any provision of this
Agreement, Executive and QUINTEK agree to make all efforts to resolve these
disputes through (1) voluntary and non-binding mediation; and (2) final and
binding arbitration.
This policy applies to, but is not limited to, all disputes relating to
termination of employment, termination or breach of this Agreement, or alleged
unlawful discrimination and/or unlawful harassment. Disputes covered include,
but are not limited to, the following: (a) alleged violations of federal, state
and/or local constitutions, statutes or regulations (including but not limited
to anti-discrimination and anti-harassment laws); (b) claims based on any
purported breach of contractual obligation (including but not limited to breach
of the covenant of good faith and fair dealing and wrongful termination or
constructive termination); (c) claims based on any purported breach of duty in
tort, including but not limited to violations of public policy; and (d) claims
arising under or involving any provision of this Agreement.
Notwithstanding the above, the following types of disputes are
expressly excluded and not covered by this Agreement or policy: (a) disputes
related to worker's compensation and unemployment insurance; (b) wage and hour
disputes within the jurisdiction of the California Labor Commissioner; (c)
disputes which relate to or arise out of confidentiality or noncompetition
conditions of employment, trade secrets, intellectual property or unfair
competition; and (d) disputes or claims that are expressly excluded by statute
or are expressly required to be arbitrated under a different procedure pursuant
to the terms of an employee benefit plan.
IN CONSIDERATION FOR AND AS A MATERIAL CONDITION OF EMPLOYMENT AND
CONTINUATION OF EMPLOYMENT WITH QUINTEK, EXECUTIVE AND QUINTEK AGREE THAT
ALTERNATIVE DISPUTE RESOLUTION, INCLUDING FINAL AND BINDING ARBITRATION, SHALL
BE THE EXCLUSIVE MEANS FOR RESOLVING COVERED DISPUTES; NO OTHER ACTION MAY BE
BROUGHT IN COURT OR IN ANY OTHER FORUM. THE PARTIES ACKNOWLEDGE AND AGREE THAT
BY SIGNING THIS AGREEMENT THEY ARE WAIVING THEIR RIGHTS TO COURT ACTION AND TO
TRIAL BY JUDGE OR JURY.
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IF A DISPUTE IS SUBMITTED TO ARBITRATION, THE DISPUTE SHALL BE SETTLED BY
ARBITRATION IN ORANGE COUNTY, CALIFORNIA, AND JUDGMENT UPON THE AWARD RENDERED
MAY BE ENTERED IN ANY COURT OF COMPENTENT JURISDICTION. THE ARBITRATION SHALL
TAKE PLACE UNDER THE AUSPICES OF THE JAMS/ENDISPUTE ("JAMS") IN ACCORDANCE WITH
JAMS' EMPLOYMENT DISPUTE RESOLUTION PROGRAM. THE PARTY REQUESTING ARBITRATION
SHALL GIVE A WRITTEN DEMAND FOR ARBITRATION TO THE OTHER PARTY SETTING FORTH A
STATEMENT OF THE NATURE OF THE DISPUTE, THE AMOUNT INVOLVED AND THE REMEDIES
SOUGHT. QUINTEK SHALL PAY ALL THE UP-FRONT COSTS OF THE ARBITRATION, INCLUDING
FILING AND HEARING FEES, BUT EACH PARTY SHALL PAY ITS OWN ATTORNEY'S FEES.
Nothing in this Agreement to engage in alternative dispute resolution
shall be construed as precluding Employee from filing a charge with the Equal
Employment Opportunity Commission ("EEOC"), the National Labor Relations Board
("NLRB") or other federal, state or local agency, seeking administrative
assistance in resolving claims. However, any claim that is not resolved
administratively through such an agency shall be subject to this Agreement and
the ADR Policy.
This agreement to engage in alternative dispute resolution does not alter or
otherwise affect Employee's employment under this Agreement. This section and
the ADR Policy shall survive and continue in effect after the termination of
employee's employment and/or the expiration of this Agreement.
13. Choice of Law. This Agreement shall be governed by and interpreted with
the laws of the State of California.
14. Employment Policies. Executive shall be subject to QUINTEK's Employee
Handbook and such other employee policies as QUINTEK may establish from
time to time, which Handbook and policies are subject to revision. To
the extent the Agreement differs from or contradicts QUINTEK's other
employment policies, whether oral or written, this Agreement shall
control.
15. Waiver. The failure of either party to insist on strict compliance with
any of the terms of this Agreement shall not be deemed a waiver of that
term or of that party's right to subsequently enforce that term.
16. Attorneys' Fees. The parties hereto agree to bear their own costs and
attorneys' fees incurred in the negotiation and drafting of this
Agreement or otherwise incurred prior to the date of execution hereof.
17. Notice. Any notices, requests, demands, or other communications with
respect to this Agreement shall be in writing and shall be (i)
personally delivered, (ii) sent by facsimile transmission, (iii) sent
by the United States Postal Service, registered or certified mail,
return receipt requested, or (iv) delivered by a nationally recognized
express overnight courier service, charges prepaid, to the addresses
set forth below except that any communications from Executive to
QUINTEK shall also be sent to 000 Xxxx Xxxx, Xxxxxxxxx, XX 00000 (such
addresses to be changed by parties as they may specify from time to
time in accordance with this Section). Any such notice shall, when sent
in accordance with the preceding sentence, be deemed to have been given
and received on the earliest of (i) the day delivered to such address,
(ii) the day sent by facsimile transmission, (iii) the third business
day following the date deposited with the United States Postal Service,
or (iv) 24 hours after shipment by such courier service.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
EMPLOYER:
QUINTEK TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------
Its: President and CEO
EMPLOYEE:
000 Xxxx Xxxx [xxxxxxx]
-------------------------
Xxxxxxxxx, XX 00000
-------------------------
-------------------------
Xxxxxx X. Xxxxxx
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