EMPLOYMENT AGREEMENT
Exhibit
10.2
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A.
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QUINTEK
is in the business of providing hardware, software and services for
the
Document Imaging and Business Process
market;
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B.
|
QUINTEK
desires to retain EXECUTIVE for his experience and ability on a formalized
basis in the position of
Chief Financial Officer.
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C.
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Executive
desires to accept such employment upon the terms and conditions set
forth
herein.
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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.
1.1 Executive
shall serve as Chief Financial 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 time, ability and attention to the business of QUINTEK during
his employment with the exceptions noted in 1.3 below. Executive shall maintain
regular business hours at Quintek’s Huntington Beach facility a minimum of two
days a week unless other Quintek business requires his presence elsewhere.
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 and
consulting capacity which is not 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).
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2. Term.
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.
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
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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 Executive
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.
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 $10,000
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.
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3.2 Executive’s
Salary shall remain unchanged until such time as QUINTEK’s quarterly Gross
Revenue shall exceed or equal the sum of $600,000. 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 shall exceed or
equal the sum of $1,200,000, Executive’s Salary for the following quarter shall
be increased to the sum of $18,000 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%) 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 2007, QUINTEK’s
Recast Profits for the prior year amount to $994,200 then Executive would be
paid the sum of $59,552 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
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.
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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 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..
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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 QUINTEK
agrees that is will issue to executive 2,000,000 options to purchase common
stock under the Company’s stock purchase plan. Stock options granted under the
Company's stock purchase plan will have the following criteria: they will expire
5 years from the date of vesting or upon termination of employment status with
the Company; they will give the Executive the right to purchase stock in the
Company at and exercise price equal to the prior day closing bid price as quoted
on the OTCBB, vesting to occur immediately. 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 prior to taking into account the
issuance of such additional shares to Executive. QUINTEK and Executive
acknowledge and agree that the purchase price for such shares (or the exercise
price for such options) will be the lesser of $.0662 per share or the “Fixed
Conversion Price” of the Secured Convertible Debentures issued by the Company
and held by Cornell Capital Partners. These options shall expire five years
from
the date of vesting. 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. Specifically, it is
presently anticipated that the new stock agreement(s) will have, at minimum,
new
termination and repurchase provisions, with the termination provisions to be
consistent with the termination provisions set forth in this Agreement. Options
shall vest according to the following schedule: Options giving Executive the
right to 2.5% of outstanding common stock at the time of execution of this
agreement, options giving Executive the right to purchase an additional 2.5%
of
outstanding common stock will be granted to Executive upon the 1 year
anniversary of this agreement for the following three 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 immediately vest.
6.1.1 Executive
shall receive grant(s) of Preferred Stock upon achieving certain milestone
to be
determined within 30 days of the execution of this agreement.
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.
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6.3
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
7.1.5 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
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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 Executive 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.
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.
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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.
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.
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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 ________________________________________ (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.
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EMPLOYER:
QUINTEK
TECHNOLOGIES, INC.
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| By: | /s/ Xxxxxx Xxxxxx | |
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Its: Chairman & CEO |
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EMPLOYEE:
Xxxxxx
Xxxx
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[address] |
| By: |
/s/
XXXXXX
XXXX
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XXXXXX XXXX |
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