EXHIBIT 1
REORGANIZATION AGREEMENT
This Reorganization Agreement ("Agreement") between AccuPoll Holding
Corp., a Nevada corporation ("AccuPoll"), Z prompt inc., a California
corporation ("ZPI"), and the persons listed in Exhibit A hereof (collectively
the "Shareholders"), being the owners of record of all of the issued and
outstanding stock of ZPI, and Xxxxx Xxxxx, the holder of a promissory note of
ZPI, is entered effective as of 12:00 a.m. on April 9, 2003.
RECITALS
A. ZPI, a corporation in existence since May 18, 2000, manages
technology support services for mid-range to fortune 1000 companies.
B. The Shareholders own 100% of the issued and outstanding shares of
Common Stock of ZPI (the "ZPI Shares").
C. This Agreement contemplates a tax-free reorganization of AccuPoll
and ZPI pursuant to Internal Revenue Code section 368(a)(1)(b). The Shareholders
will receive 8,000,000 shares of restricted Common Stock of AccuPoll in exchange
for all of their capital stock in ZPI, pursuant to the terms and conditions set
forth in this Agreement.
D. ZPI will become a wholly-owned subsidiary of AccuPoll.
E. Xxxxx Xxxxx holds a promissory note due from ZPI in the unpaid
principal amount of $404,774.27, plus accrued interest and desires to exchange
such promissory note and all accrued interest thereon for 533,000 restricted
shares of Common Stock of AccuPoll.
F. AccuPoll has also agreed to purchase the promissory note and accrued
interest held by Xxxxx Xxxxx in exchange for 533,000 shares of restricted Common
Stock of AccuPoll, pursuant to the terms and conditions set forth in this
Agreement.
In consideration of these premises and the mutual representations,
warranties, covenants and agreements contained in this Agreement, the parties
agree as follows:
1. EXCHANGE OF STOCK AND NOTE.
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(a) The Shareholders agree to transfer to AccuPoll, and AccuPoll
agrees to acquire from the Shareholders, all of the
Shareholders' right, title and interest in their ZPI Shares,
representing 100% of the issued and outstanding stock of ZPI,
free and clear of all liens, pledges, security interests,
restrictions, encumbrances, or adverse claims of any nature.
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(b) At the Closing (as defined in Section 2 below), upon surrender
by the Shareholders of the certificates evidencing all of the
ZPI Shares owned by them duly endorsed for transfer to
AccuPoll or accompanied by stock powers executed in blank by
the Shareholders, AccuPoll will cause 8,000,000 shares
(subject to adjustment for fractionalized shares as set forth
below) of the restricted voting Common Stock, par value $.001
of AccuPoll (the "AccuPoll Stock") to be issued to the
Shareholders, in full satisfaction of any right or interest
which each Shareholder held in the ZPI Stock.
(c) The shares of Common Stock of AccuPoll will be issued to the
Shareholders on a pro rata basis, in the same proportion as
the percentage of their ownership interest in the ZPI Stock,
as set forth on Exhibit A. Any fractional shares that will
result due to such pro rata distribution will be rounded up to
the next highest whole number. As a result of the exchange for
all of the ZPI Stock in exchange for AccuPoll Stock, ZPI will
become a wholly-owned subsidiary of AccuPoll.
(d) Xxxxx Xxxxx agrees to exchange and transfer his promissory
note and all interest accrued thereon payable to him by ZPI to
AccuPoll in the total principal amount of $404,774.27, free
and clear or all liens, pledges, security interests,
restrictions, encumbrances, or adverse claims of any nature,
in exchange for 533,000 shares of restricted Common Stock of
AccuPoll.
2. CLOSING.
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(a) The parties to this Agreement will hold a closing (the
"Closing") for the purpose of executing and exchanging all of
the documents contemplated by this Agreement and otherwise
effecting the transactions contemplated by this Agreement. The
Closing will be held as soon as possible at the offices
AccuPoll in Irvine, California, unless another place or time
is mutually agreed upon in writing by the parties. All
proceedings to be taken and all documents to be executed and
exchanged at the Closing will be deemed to have been taken,
delivered and executed simultaneously, and no proceeding will
be deemed taken nor documents deemed executed or delivered
until all have been taken, delivered and executed. If agreed
to by the parties, the Closing may take place through the
exchange of documents by fax and/or express courier.
(b) With the exception of any stock certificates which must be in
their original form, any copy, fax, e-mail or other reliable
reproduction of the writing or transmission required by this
Agreement or any signature required thereon may be used in
lieu of an original writing or transmission or signature for
any and all purposes for which the original could be used,
provided that such copy, fax, e-mail or other reproduction is
a complete reproduction of the entire original writing or
transmission or original signature, and the originals are
promptly delivered thereafter.
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3. REPRESENTATIONS AND WARRANTIES OF ACCUPOLL.
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AccuPoll represents and warrants as follows:
(a) AccuPoll is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Nevada and
is licensed or qualified as a foreign corporation in all
states in which the nature of its business or the character or
ownership of its properties makes such licensing or
qualification necessary.
(b) The authorized capital stock of AccuPoll consists of
600,000,000 shares of Common Stock, $.001 par value per share,
of which, based on the records of AccuPoll's stock transfer
agent, 110,203,715 shares are issued and outstanding as of the
close of business on March 27, 2003. To the knowledge of
AccuPoll, all issued and outstanding shares of AccuPoll's
Common Stock are fully paid and nonassessable. When issued,
the AccuPoll Stock will be duly authorized, validly and newly
issued, fully paid and nonassessable and free and clear of all
liens.
(c) AccuPoll has one subsidiary, AccuPoll Inc..
(d) Execution of this Agreement and performance by AccuPoll
hereunder has been duly authorized by all requisite corporate
action on the part of AccuPoll, and this Agreement constitutes
a valid and binding obligation of AccuPoll, and AccuPoll's
performance hereunder will not violate any provision of any
charter, bylaw, indenture, mortgage, lease, or agreement, or
any order, judgment, decree, or, to AccuPoll's knowledge any
law or regulation, to which any property of AccuPoll is
subject or by which AccuPoll is bound.
(e) AccuPoll has full corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder, and
will deliver at the Closing a copy of resolutions of its board
of directors authorizing execution of this Agreement by its
officers and performance hereunder.
(f) AccuPoll has provided all financial statements and financial
information in its possession as has been requested by the
Shareholders and Xx. Xxxxx.
(g) There is no litigation or similar proceeding pending, or to
AccuPoll's knowledge threatened, against or relating to
AccuPoll, its properties or business.
(h) AccuPoll is acquiring the ZPI shares to be transferred to it
under this Agreement for investment and not with a view to the
sale or distribution thereof.
(i) AccuPoll has filed in correct form all tax returns of every
nature required to be filed by it and has paid all taxes as
shown on such returns and all assessments, fees and charges
received by it to the extent that such taxes, assessments,
fees and charges have become due. AccuPoll has also paid all
taxes which do not require the filing of returns and which are
required to be paid by it. To the extent that tax liabilities
have accrued, but have not become payable, they have been
adequately reflected as liabilities on the books of AccuPoll.
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(j) AccuPoll and its representatives have had the opportunity to
perform all due diligence investigations of ZPI and its
business as they have deemed necessary or appropriate and to
ask questions of ZPI's officers and directors and have
received satisfactory answers to all of their questions.
AccuPoll and its representatives have had access to all
documents and information about ZPI and have reviewed
sufficient information to allow them to evaluate the merits
and risks of AccuPoll's acquisition of the ZPI capital stock.
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS AND XXXXX XXXXX.
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The Shareholders and Xxxxx Xxxxx, jointly and severally, represent and
warrant as follows:
(a) ZPI is a corporation duly organized, validly existing, and in
good standing under the laws of the State of California and is
licensed or qualified as a foreign corporation in all places
in which the nature of its business or the character or
ownership of its properties makes such licensing or
qualification necessary.
(b) Other than a Shareholder Agreement among the Shareholders
which will be cancelled concurrent with the Closing, there are
no agreements purporting to restrict the transfer of the ZPI
Shares, nor any voting agreements, voting trusts or other
arrangements restricting or affecting the voting of the ZPI
Shares. The ZPI Shares held by the Shareholders are duly and
validly issued, fully paid and non-assessable, and issued in
full compliance with all federal, state, and local laws, rules
and regulations. There are no subscription rights, options,
warrants, convertible securities, or other rights (contingent
or otherwise) presently outstanding, for the purchase,
acquisition, or sale of the capital stock of ZPI, or any
securities convertible into or exchangeable for capital stock
of ZPI or other securities of ZPI, from or by ZPI.
(c) The Shareholders have full right, power and authority to sell,
transfer and deliver the ZPI Shares, and upon delivery of the
certificates therefor as contemplated in this Agreement, the
Shareholders will transfer to AccuPoll valid and marketable
title to the ZPI Shares, including all voting and other rights
to the ZPI Shares, free and clear of all pledges, liens,
security interests, adverse claims, options, rights of any
third party, or other encumbrances. Each of the Shareholders
owns and holds that the number or percentage of ZPI Shares
which are listed opposite their names on Exhibit A attached
hereto.
(d) The financial statements of ZPI presented to AccuPoll are
accurate consistent with U.S. generally accepted accounting
principles.
(e) There is no litigation or proceeding pending, or to any
Shareholder's knowledge, threatened, against or relating to
ZPI or to the ZPI Shares.
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(f) ZPI has filed in correct form all tax returns of every nature
required to be filed by it and has paid all taxes as shown on
such returns and all assessments, fees and charges received by
it to the extent that such taxes, assessments, fees and
charges have become due. ZPI has also paid all taxes which do
not require the filing of returns and which are required to be
paid by it. To the extent that tax liabilities have accrued,
but have not become payable, they have been adequately
reflected as liabilities on the books of ZPI.
(g) The current residence address or principal place of business
of the ZPI Shareholders and Xx. Xxxxx is as listed on Exhibit
A attached hereto.
(h) The ZPI Shareholders and their representatives have had the
opportunity to perform all due diligence investigations of
AccuPoll and its business as they have deemed necessary or
appropriate and to ask questions of AccuPoll's officers and
directors and have received satisfactory answers to all of
their questions. The Shareholders have had access to all
documents and information about AccuPoll and have reviewed
sufficient information to allow them to evaluate the merits
and risks of their acquisition of the AccuPoll Stock.
(i) The Shareholders are acquiring the AccuPoll Stock for their
own account (and not for the account of others) for investment
and not with a view to the distribution therefor. The
Shareholders will not sell or otherwise dispose of the
AccuPoll Stock without registration under the Securities Act
of 1933, as amended (the "Act"), or an exemption therefrom,
and the certificate or certificates representing the AccuPoll
Stock will contain a legend to the foregoing effect.
(j) It is understood that the AccuPoll Stock to be issued to the
Shareholders of ZPI will bear the following restrictive legend
or similar legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
APPLICABLE STATE SECURITIES ACTS. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED FOR
VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND/OR ANY
APPLICABLE STATE SECURITIES ACT OR AN OPINION OF COUNSEL
ACCEPTABLE TO ACCUPOLL HOLDING CORP. THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT OR ACTS.
(k) The Common Stock of AccuPoll to be acquired constitutes an
investment which is suitable and consistent with each
Shareholder's investment program and that the undersigned's
financial situation enables the him to bear the risks of this
investment. Each Shareholder has such knowledge and experience
in financial and business affairs that he is capable of
evaluating the merits and risks of an investment in the Common
Stock of AccuPoll.
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(l) Each Shareholder is aware that the AccuPoll stock cannot be
sold or otherwise transferred for an indefinite period unless
subsequently registered or qualified under the Act and
applicable state securities laws (which AccuPoll is not
obligated to do), or an opinion of counsel acceptable to
AccuPoll and its legal counsel is received stating that
exemptions from such registration or qualification
requirements are available.
(m) The undersigned further understands that the exemption under
Rule 144 promulgated under the Act may not be available
because of the conditions and limitations of Rule 144, and
that, in the absence of the availability of Rule 144, any
disposition of the undersigned's investment may require
compliance with some other exemption under the Act, and that
AccuPoll is under no obligation to take any action in
furtherance of making an exemption under Rule 144 or any other
exemption so available.
(n) The undersigned is aware that AccuPoll has been and is relying
upon the representations and warranties set forth herein, in
part, in determining whether the exchange of its Common Stock
meets the conditions of Section 4(2) under the Act and under
the exemptions available from the registration or
qualification requirements under applicable state securities
laws.
(o) Each Shareholder confirms that, in making his decision to
acquire the Common Stock of AccuPoll, such Shareholder has
relied upon independent investigations made by him, or his
representatives, including his own professional tax and other
advisers, and that he and such representatives have been given
the opportunity to examine all documents and to ask questions
of, and to receive answers from AccuPoll or any person(s)
acting on its behalf concerning the terms and conditions of
this Agreement, and to obtain any additional information or
documents, to the extent AccuPoll possesses such information
or can acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information provided
by AccuPoll, and that no representations have been made to the
Shareholders concerning the Common Stock of AccuPoll, its
business or prospects or other matters.
(p) Each Shareholder understands that the Common Stock is being
offered and sold under an exemption from registration provided
by Section 4(2) of the Act, and warrants and represents that
any Common Stock subscribed for is being acquired by each
Shareholder solely for their own account for investment
purposes only; that he has no present agreement or other
arrangement, formal or informal, with any person to sell,
transfer or pledge any part of any Common Stock subscribed for
or which would guarantee the undersigned any profit or protect
the undersigned against any loss with respect to such Common
Stock; that the undersigned has no present plans to enter into
any such agreement or arrangement; and that the undersigned is
able to bear the economic risk of the investment for an
indefinite period of time.
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(q) The undersigned recognizes the speculative nature and risks of
loss associated with investments in development stage
companies and that the undersigned may suffer a substantial
loss of the undersigned's investment in the Common Stock of
AccuPoll. In connection therewith, the Shareholders confirm
that each understand, and has fully considered for purposes of
this investment, the risks involved in this investment; and is
aware that: (i) AccuPoll has a very limited financial and
operating history in connection with its current business;
(ii) this is a speculative investment which involves a high
degree of risk of loss by the undersigned of the undersigned's
investment therein; and (iii) at the present, there is a
limited public market for the Common Stock and, accordingly,
it may be difficult if not impossible for him to liquidate an
investment therein for an indefinite period, even in case of
emergency.
(r) The undersigned agrees that the foregoing representations and
warranties shall survive the undersigned's acquisition of the
Common Stock of AccuPoll. All of the information which the
undersigned has furnished AccuPoll herein, or previously with
respect to the undersigned's financial position is current and
complete as of the date of this Agreement and, if there should
be any material change in such information, the undersigned
will immediately furnish such revised or corrected information
to AccuPoll.
5. CONDUCT PRIOR TO THE CLOSING.
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AccuPoll, the Shareholders and Xxxxx Xxxxx covenant that between the
date of this Agreement and the Closing as to each of them:
(a) No change will be made in the charter documents, by-laws, or
other corporate documents of AccuPoll or ZPI.
(b) AccuPoll and ZPI will each use their best efforts to maintain
and preserve their business organization, employee
relationships, and goodwill intact, and ZPI will not enter
into any material commitment except in the ordinary course of
business.
(C) The Shareholders will not sell, transfer, assign, hypothecate,
lien, or otherwise dispose or encumber the ZPI Shares owned by
them.
(d) Xxxxx Xxxxx will not sell, transfer, assign, hypothecate,
lien, or otherwise dispose or encumber the ZPI note owned by
him.
6. CONDITIONS TO OBLIGATIONS OF SHAREHOLDERS.
------------------------------------------
The Shareholders' and Xx. Xxxxx'x obligations to complete the
transactions contemplated herein is subject to fulfillment on or before the
Closing of each of the following conditions, unless waived in writing by them as
appropriate:
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(a) The representations and warranties of AccuPoll set forth
herein will be true and correct at the Closing as though made
at and as of that date, except as affected by transactions
contemplated hereby.
(b) AccuPoll will have performed all covenants required by this
Agreement to be performed by it on or before the Closing.
(c) This Agreement will have been approved by the Board of
Directors of AccuPoll.
(d) AccuPoll will have delivered to the Shareholders the documents
set forth below upon request in form and substance reasonably
satisfactory to counsel for the Shareholders, to the effect
that:
(i) AccuPoll is a corporation duly organized, validly
existing, and in good standing in the State of
Nevada;
(ii) AccuPoll's authorized capital stock is as set forth
herein;
(iii) Any further document as may be reasonably requested
by counsel to the Shareholders and Xxxxx Xxxxx in
order to substantiate any of the representations or
warranties of AccuPoll set forth herein.
(e) There will have occurred no material adverse change in the
business, operations or prospects of AccuPoll.
7. CONDITIONS TO OBLIGATIONS OF ACCUPOLL.
--------------------------------------
AccuPoll's obligation to complete the transaction contemplated herein
will be subject to fulfillment on or before the Closing of each of the following
conditions, unless waived in writing by AccuPoll, as appropriate:
(a) The representations and warranties of the Shareholders and Xx.
Xxxxx Xxxxx set forth herein will be true and correct at the
Closing as though made at and as of that date, except as
affected by transactions contemplated hereby.
(b) The Shareholders and Xxxxx Xxxxx will have performed all
covenants required by this Agreement to be performed by them
on or before the Closing.
(c) The Shareholders will have delivered to AccuPoll the documents
set forth below in form and substance reasonably satisfactory
to counsel for AccuPoll, to the effect that:
(i) ZPI is a corporation duly organized, validly
existing, and in good standing in the State of
California;
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(ii) ZPI's authorized capital stock is owned as set forth
herein and Exhibit A hereto; and
(iii) Any further documents as may be reasonably requested
by counsel to AccuPoll in order to substantiate any
of the representations or warranties of the
Shareholders and Xxxxx Xxxxx set forth herein.
(d) There will have occurred no material adverse change in the
business, operations or prospects of ZPI.
8. ADDITIONAL COVENANTS.
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(a) Between the date of this Agreement and the Closing, the
Shareholders, with respect to ZPI, and AccuPoll, with respect
to itself, will, and will cause their respective
representatives to, (i) afford the other party and its
representatives continued access to their personnel,
properties, contracts, books and records, and other documents
and data, as reasonably requested by the other party; (ii)
furnish the other party and its representatives with copies of
all such contracts, books and records, and other existing
documents and data as the other may reasonably request in
connection with the transaction contemplated by this
Agreement; and (iii) furnish the other party and its
representatives with such additional financial, operating, and
other data and information as the other may reasonably
request. The Shareholders will cause ZPI to provide, and
AccuPoll will provide the Shareholders with, complete copies
of all material contracts and other relevant information on a
timely basis in order to keep the other party fully informed
of the status of their respective business and operations.
(b) AccuPoll and the ZPI Shareholders and Xxxxx Xxxxx will
cooperate with each other in the preparation of a Form 8-K
current report to be filed with the SEC describing the
transaction contemplated by this Agreement and such other
items as are required by the SEC rules and regulations.
(c) The Shareholders will deliver all of the corporate books and
records of ZPI, including all records relating to its
financial statements, to AccuPoll at Closing.
(d) The parties agree that they will not make, and the
Shareholders will not permit ZPI to make, any public
announcements relating to this Agreement or the transactions
contemplated herein without the prior written consent of the
other party, except as may be required upon the written advice
of counsel to comply with applicable laws or regulatory
requirements after consulting with the other party hereto and
seeking their consent to such announcement.
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(e) AccuPoll after the Closing, will continue to operate ZPI's
business in a manner substantially similar to its operation
prior to the Closing, and AccuPoll will provide adequate
financing to ZPI to support its continued growth.
(f) So long as this agreement has not been rescinded under the
provisions of Section 9 of this Agreement, AccuPoll shall
indemnify, defend and hold each of the Shareholders harmless
from and against any loss, cost, damage, claim or expense
(including without limitation reasonable attorney fees) which
a Shareholder may incur or sustain resulting from or arising
out of any personal guarantee signed by the Shareholder at the
request of any lender to, creditor of, or lessor to ZPI.
(g) AccuPoll agrees that in the event of a registration or public
offering of shares of AccuPoll stock, where officers and/or
directors are registering their shares or are selling
shareholders, Ehret, Musco, and Xxxxxxx (and any transferee
from Xxxxx, Musco or Xxxxxxx) will be permitted to include
their shares of AccuPoll stock in such registration (and
offering, if there is one) on the same terms and conditions
that apply to the officers and directors of AccuPoll.
(h) Concurrent with the Closing, ZPI and Xxxxxxx Xxxxxxx will
enter into an Employment Agreement in the form of Exhibit C
attached to this Agreement.
(i) Concurrent with the Closing, ZPI and Xxxx Xxxxx will enter
into an Employment Agreement in the form of Exhibit D attached
to this Agreement.
(j) Concurrent with the Closing, AccuPoll will execute and deliver
to Xxxx Xxxxx a promissory note in the form of Exhibit E
attached to this Agreement to replace the balance due on the
$200,000 promissory note dated March 29, 2002 made by ZPI in
favor of Xxxx Xxxxx.
(k) If, on or before April 7, 2005, AccuPoll decides to sell the
ZPI capital stock, or substantially all of the ZPI assets, it
may not do so without first offering ZPI or its assets to the
Shareholders on the same terms and conditions as it can obtain
from a third party purchaser.
9. CONDITION SUBSEQUENT.
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This Agreement may be rescinded by the Shareholders if AccuPoll's
electronic voting system has not received its certification from Wyle Labs by
September 30, 2003.
10. TERMINATION.
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This Agreement may be terminated (1) by mutual consent in writing; (2)
by either the Shareholders, Xxxxx Xxxxx, or AccuPoll if there has been a
material misrepresentation or material breach of any warranty or covenant by any
other party that is not cured by the time of Closing; or (3) by any of the
Shareholders, Xxxxx Xxxxx, or AccuPoll if the Closing has not taken place or on
before April 22, 2003, unless adjourned to a later date by mutual consent in
writing.
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11. EXPENSES
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Whether or not the Closing is consummated, each of the parties will pay
all of his or its own legal and accounting fees and other expenses incurred in
the preparation of this Agreement and the performance of the terms and
provisions of this Agreement.
12. WAIVER.
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Any failure on the part of either party hereto to comply with any of
its obligations, agreements, or conditions hereunder may be waived in writing by
the party to whom such compliance is owed. No waiver by any party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to be
or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion.
13. BROKERS.
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Each party agrees to indemnify and hold harmless the other party
against any fee, loss, or expense arising out of claims by brokers or finders
employed or alleged to have been employed by the indemnifying party.
14. NOTICES.
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All notices and other communications under this Agreement must be in
writing and will be deemed to have been given if delivered in person or sent by
prepaid first-class certified mail, return receipt requested, or recognized
commercial courier service, as follows:
If to AccuPoll, to: AccuPoll Holding Corp.
00 Xxxxxxxxx Xxxx # 000
Xxxxxx, Xx 00000
Phone: 000.000.0000
If to the Shareholders, to: All notices to the Shareholders shall
be sent to them at their addresses listed
on Exhibit A to this Agreement.
15. GENERAL PROVISIONS.
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(a) This Agreement will be governed by and under the laws of the
State of Nevada without giving effect to conflicts of law
principles. If any provision hereof is found invalid or
unenforceable, that part will be amended to achieve as nearly
as possible the same effect as the original provision and the
remainder of this Agreement will remain in full force and
effect.
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(b) Any dispute arising under or in any way related to this
Agreement will be submitted to binding arbitration before a
single arbitrator by the American Arbitration Association in
accordance with the Association's commercial rules then in
effect. The arbitration will be conducted in Irvine,
California. The decision of the arbitrator will set forth in
reasonable detail the basis for the decision and will be
binding on the parties. The arbitration award may be confirmed
by any court of competent jurisdiction.
(c) In any adverse action, the parties will restrict themselves to
claims for compensatory damages and/or securities issued or to
be issued and no claims will be made by any party or affiliate
for lost profits, punitive or multiple damages.
(d) This Agreement constitutes the entire agreement and final
understanding of the parties with respect to the subject
matter hereof and supersedes and terminates all prior and/or
contemporaneous understandings and/or discussions between the
parties, whether written or verbal, express or implied,
relating in any way to the subject matter hereof. This
Agreement may not be altered, amended, modified or otherwise
changed in any way except by a written agreement, signed by
both parties.
(e) This Agreement will inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns;
provided, however, that any assignment by either party of its
rights under this Agreement without the written consent of the
other party will be void.
(f) The parties agree to take any further actions and to execute
any further documents which may from time to time be necessary
or appropriate to carry out the purposes of this Agreement.
(g) The headings of the Sections, paragraphs and subparagraphs of
this Agreement are solely for convenience of reference and
will not limit or otherwise affect the meaning of any of the
terms or provisions of this Agreement. The references in this
Agreement to Sections, unless otherwise indicated, are
references to sections of this Agreement.
(h) This Agreement may be executed in counterparts, each one of
which will constitute an original and all of which taken
together will constitute one document. This Agreement may be
executed by delivery of a signed signature page by fax to the
other parties hereto and such fax execution and delivery will
be valid in all respects.
(i) All remedies, either under this Agreement or by law or
otherwise afforded, will be cumulative and not alternative.
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EXECUTED BY:
AccuPoll Holding Corp.
By: /S/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx, CEO
Z prompt inc.
By /S/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx, President
THE SHAREHOLDERS OF Z PROMPT INC:
/S/ XXXXX XXXXX
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Xxxxx Xxxxx
/S/ XXXX XXXXX
--------------------------
Xxxx Xxxxx
/S/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
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EXHIBIT A
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TO
REORGANIZATION AGREEMENT
NUMBER OF SHARES NUMBER OF ACCUPOLL SHARES TO
AND % OF OWNERSHIP BE ISSUED TO THE SHAREHOLDERS
ZPI STOCKHOLDER OF ZPI SHARES OR THEIR DESIGNEES AT CLOSING
--------------- ------------- -----------------------------
Xxxxx Xxxxx 11,547,740 shares 6,365,000 shares
c/o Q & E Products
000 Xxxxxxxx Xxx 00.0%
Xxx Xxxxxx, Xxxxxxxxxx 00000
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Xxxx Xxxxx 3,250,000 shares 1,640,000 shares
00000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 20.5%
----------------------------------- ------------------------ ----------------------------
Xxxxxxx Xxxxxxx 1,035,000 shares 528,000 shares
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000 6.6%
----------------------------------- ------------------------ ----------------------------
Total 100% 8,533,000 shares
----------------------------------- ------------------------ ----------------------------
EXHIBIT C
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EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of April 9,
2003 by Z prompt inc., a California corporation (the "Employer"), and Xxxxxxx
Xxxxxxx, an individual (the "Executive").
RECITALS
The Employer desires Executive's employment with Employer and Executive
desires to accept such employment, upon the terms and conditions set forth in
this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section.
AGREEMENT. This Employment Agreement, as amended from time to time.
BASIC COMPENSATION. Salary and benefits.
BENEFITS. See section 3.1(b)
BOARD OF DIRECTORS. The board of directors of Employer.
CONFIDENTIAL INFORMATION. Any and all:
(a) trade secrets concerning the business and affairs of Employer,
data, know-how, graphs, drawings, samples, inventions and
ideas, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans,
computer software and programs (including object code and
source code), computer software and database technologies,
systems, structures, and architectures (and related concepts,
ideas, designs, methods and information), and any other
information, however documented, that is a trade secret within
the meaning of California law; and
(b) information concerning the business and affairs of Employer
(which includes historical financial statements, financial
projections and budgets, historical and projected sales,
capital spending budgets and plans, the names and backgrounds
of key personnel and personnel training and techniques and
materials), however documented; and
1
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for Employer containing or based, in
whole or in part, on any information included in the
foregoing.
CONTRACT YEAR. Any 12 month period during the Employment Period
commencing on the Effective Date, or any anniversary of the Effective Date.
DISABILITY. See Section 6.2.
EFFECTIVE DATE. The date stated in the first paragraph of the
Agreement.
EMPLOYMENT PERIOD. See Section 2.2.
FISCAL YEAR. Employer's fiscal year, as it exists on the Effective Date
or as changed from time to time.
FOR CAUSE. See Section 6.3
FOR GOOD REASON. See Section 6.4.
PERSON. Any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
POST-EMPLOYMENT PERIOD. See Section 8.2.
PROPRIETARY ITEMS. See Section 7.2(a)(iv).
SALARY. See Section 3.1(a)
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
Employer hereby employs Executive, and Executive hereby accepts
employment by Employer upon the terms and conditions set forth in this
Agreement.
2.2 TERM
Subject to the provisions of Section 6, the term of Executive's
employment under this Agreement will be three years (the "Employment Period"),
beginning on the Effective Date and ending on the third anniversary of the
Effective Date, unless extended in accordance with the terms hereof.
2
2.3 DUTIES
Executive will have such duties as are assigned or delegated to
Executive by the Board of Directors of Employer, and will initially serve as the
Chief Executive Officer of Employer. Executive will devote his entire business
time, attention, skill, and energy exclusively to the business of Employer, will
use his best efforts to promote the success of Employer's business, and will
cooperate fully with the Board of Directors in the advancement of the best
interests of Employer. If Executive is elected as a director of Employer or as a
director or officer of any of its affiliates, Executive will fulfill his duties
as such director or officer without additional compensation.
3. COMPENSATION
3.1 BASIS COMPENSATION
(a) SALARY. Executive will be paid an annual base salary of
$120,000, subject to adjustment as provided below (the
"Salary"), which will be payable in equal periodic
installments according to Employer's customary payroll
practices, but no less frequently than monthly. The salary
will be reviewed by the Board of Directors not less frequently
than annually, and shall be increased on each anniversary of
the Effective Date during the term hereof by an amount equal
to not less than ten percent (10%) of the prior year's base
salary.
(b) BENEFITS. Executive will, during the Employment Period, be
permitted to participate in such pension, profit sharing,
bonus, life insurance, hospitalization, major medical, and
other employee benefit plans of Employer that may be in effect
from time to time, to the extent Executive is eligible under
the terms of those plans (collectively, the "Benefits").
3.2 BONUS COMPENSATION
In addition to Executive's Salary, Executive shall be eligible to
receive an annual bonus to be determined solely in the discretion of the
Employer's compensation committee (the "Compensation Committee"), in an amount
not in excess of 100% of the then-applicable Salary for each year in which
Executive is employed hereunder.
4. FACILITIES AND EXPENSES
4.1 GENERAL
Employer will pay on behalf of Executive (or reimburse Executive for)
reasonable expenses (including business-class travel) incurred by Executive at
the request of, or on behalf of, Employer in the performance of Executive's
duties pursuant to this Agreement, and in accordance with Employer's employment
3
policies, including reasonable expenses incurred by Executive in attending
conventions, seminars, and other business meetings, in appropriate business
entertainment activities, and for promotional expenses. Executive must file
expense reports with respect to such expenses in accordance with Employer's
policies.
5. VACATIONS AND HOLIDAYS
Executive will be entitled to paid vacation each Fiscal Year in
accordance with the vacation policies of Employer in effect for its executive
officers from time to time, but in no event less than three (3) weeks per year.
Vacation must be taken by Executive at such time or times as reasonably approved
by the Chairman of the Board or Chief Executive Officer. Executive will also be
entitled to the paid holidays set forth in Employer's policies. Vacation days
(but not holidays) during any Fiscal Year that are not used by Executive during
such Fiscal Year may be carried over to the following Fiscal Year, provided,
however, that no additional vacation days shall accrue so long as Executive is
then entitled to four weeks accrued vacation.
6. TERMINATION
6.1 EVENTS OF TERMINATION
The Employment Period and Executive's Basic Compensation, and any and
all other rights of Executive under this Agreement or otherwise as an employee
of Employer will terminate (except as otherwise provided in this Section):
(a) upon the death of Executive;
(b) upon the Disability of Executive (as defined in Section 6.2)
upon thirty (30) days notice from either party to the other;
(c) for Cause (as defined in Section 6.3), immediately upon notice
from Employer to Executive, as or at such later time as such
notice may specify; or
(d) for Good Reason (as defined in Section 6.4) upon not less than
thirty (30) days' prior notice from Executive to Employer.
6.2 DEFINITION OF DISABILITY
For purposes of Section 6.1, Executive will be deemed to have a
"disability" if, for physical or mental reasons, Executive is unable to perform
Executive's duties under this Agreement for 45 consecutive days, or 90 days
during any twelve month period, as determined in accordance with Section 6.2.
The disability of Executive will be determined by a medical doctor mutually
4
agreed upon by Employer and Executive (or Executive's legal guardian or duly
authorized attorney-in-fact will act in Executive's stead, in the event
Executive is not legally competent) upon the request of Employer. The
determination of such medical doctor will be binding upon both parties.
Executive must submit to a reasonable number of examinations by the medical
doctor making the determination of disability under this Section 6.2, and
Executive hereby authorizes the disclosure and release to Employer of such
determination and all supporting medical records. If Executive is not legally
competent, Executive's legal guardian or duly authorized attorney-in-fact will
act in Executive's stead, under this Section 6.2, for the purposes of submitting
Executive to the examinations, and providing the authorization of disclosure,
required under this Section 6.2.
6.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 6.1, the phrase "for cause" means: (a) the
conviction of, or the entering of a guilty plea or plea of no contest with
respect to a felony or the equivalent thereof involving moral turpitude; or (b)
willful and material wrongful or grossly negligent actions that result in
material damage to Employer; or the annual revenues of the Employer for any
fiscal year is less than $1,500,000 as determined by the annual audited
financial statements of the Employer.
6.4 DEFINITION OF "FOR GOOD REASON"
For purposes of Section 6.1 and 6.5(a), the phrase "for good reason"
means any of the following: (a) Employer's material breach of this Agreement or
any other agreement entered between Employer and Executive concurrent herewith;
(b) the assignment of Executive without his consent to a position,
responsibilities, or duties of a materially lesser status or degree of
responsibility than his position, responsibilities, or duties at the Effective
Date; (c) the relocation of Executive's place of employment more than 30 miles
from its current location without Executive's consent; (d) a reduction in
Executive's base salary or material reduction in his benefits; or (e) the
material breach by AccuPoll Holding Corp. ("AccuPoll") of any agreement entered
into between AccuPoll and Executive concurrent herewith.
6.5 TERMINATION OF PAY
Effective upon the termination of this Agreement, Employer will be
obligated to pay Executive (or in the event of his death, his designated
beneficiary as defined below) only such compensation as is provided in this
Section 6.5, and in lieu of all other amounts and in settlement and complete
release of all claims Executive may have against Employer for any amounts due
and owing to Executive, as an employee, under this Agreement. For purposes of
this Section 6.5, Executive's designated beneficiary will be such individual
beneficiary or trust, located at such address as Executive may designate by
notice to Employer from time to time or, if Executive fails to give notice to
Employer of such beneficiary, Executive's estate. Notwithstanding the preceding
sentence, Employer will have no duty, in any circumstances, to attempt to open
an estate on behalf of Executive, to determine whether any beneficiary
designated by Executive is alive or to ascertain the address of any such
beneficiary, to determine the existence of any trust, to determine whether any
person or entity purporting to act as Executive's personal representative (or
the trustee of a trust established by Executive) is duly authorized to act in
that capacity, or to locate or attempt to locate any beneficiary, personal
representative, or trustee.
5
(a) TERMINATION BY EXECUTIVE FOR GOOD REASON OR BY EMPLOYER
WITHOUT CAUSE. If Executive terminates this Agreement for good
reason, or if Employer terminates Executive without Cause
(other than by reason of Executive's death or disability),
Employer will pay Executive a lump sum severance payment in an
amount equal to the greater of (i) the salary payable to
Executive for the remainder of the term of this Agreement, or
(ii) Executive's then current annual salary. Employer shall
also provide all benefits to which Executive is entitled
immediately prior to such termination for a period equal to
the greater of (i) the number of months remaining in the term
of this Agreement, or (ii) 12 months following the date of
termination (or reimburse Executive for all costs incurred by
Executive in obtaining comparable benefits).
(b) TERMINATION BY EMPLOYER FOR CAUSE. If Employer terminates this
Agreement for cause, Executive will be entitled to receive (i)
his Salary only through the date such termination is
effective, (ii) the payment of earned and accrued bonus and
incentive plan payments due Executive, if any, under any bonus
or incentive plan in which Executive participated prior to
termination; (iii) the payment of any unused accrued vacation
through the date of termination; and (iv) the payment of any
reimbursable business expenses that were documented by
Executive in accordance with the Employer's policies prior to
the termination of this Agreement, and will not be entitled to
any other compensation for the Fiscal Year during which such
termination occurs or any subsequent Fiscal Year.
(c) TERMINATION UPON DISABILITY. If this Agreement is terminated
by either party as a result of Executive's disability, as
determined under Section 6.2, Executive will be entitled to
receive (i) the prorated payment of Executive's salary through
the date of termination to the extent not paid by then; (ii)
the payment of earned and accrued bonus and incentive plan
payments due Executive, if any, under any bonus or incentive
plan in which Executive participated prior to termination;
(iii) the payment of any unused accrued vacation through the
date of termination; and (iv) the payment of any reimbursable
business expenses that were documented by Executive in
accordance with the Employer's policies prior to the
termination of this Agreement, (v) all benefits to which
Executive is entitled immediately prior to such termination,
through the remainder of the calendar month during which such
termination is effective and for the three consecutive months
thereafter.
6
(d) TERMINATION UPON DEATH. If this Agreement is terminated
because of Executive's death, Executive's named beneficiary
will be entitled to receive (i) the prorated payment of
Executive's salary through the end of the calendar month in
which the death occurs; (ii) the payment of earned and accrued
bonus and incentive plan payments due Executive, if any, under
any bonus or incentive plan in which Executive participated
prior to termination; (iii) the payment of any unused accrued
vacation through the date of termination; and (iv) the payment
of any reimbursable business expenses that were documented by
Executive in accordance with the Employer's policies prior to
the termination of this Agreement.
(e) BENEFITS. Except as provided in paragraphs (a) and (c) above,
Executive's accrual of, or participation in plans providing
for, the Benefits will cease at the effective date of the
termination of this Agreement, and Executive will be entitled
to accrued Benefits pursuant to such plans only as provided in
such plans. Executive will not receive, as part of his
termination pay pursuant to this Section 6, any payment or
other compensation for any holiday, sick leave, or other leave
unused on the date the notice of termination is given under
this Agreement, but will be entitled to be paid for accrued
but unused vacation days, up to a maximum of twenty (20)
accrued vacation days.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
Executive acknowledges that (a) during the Employment Period and as a
part of his employment, Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on Employer and its business; (c) the Employer has required
that Executive make the covenants in this Section 7; and (d) the provisions of
this Section 7 are reasonable and necessary to prevent the improper use or
disclosure of Confidential Information.
7.2 AGREEMENT OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid or
provided to Executive by Employer under this Agreement, Executive covenants as
follows:
(a) CONFIDENTIALITY:
1. During and following the Employment Period, Executive
will hold in confidence the Confidential Information
and will not disclose it to any person except with
the specific prior written consent of Employer or
except as otherwise expressly permitted by the terms
of this Agreement.
2. Any trade secrets of Employer will be entitled to all
of the protections and benefits under California law
and any other applicable law. If any information that
Employer deems to be a trade secret is found by a
court of competent jurisdiction not to be a trade
secret for purposes of this Agreement, such
information will, nevertheless, be considered
7
Confidential Information for purposes of this
Agreement. Executive hereby waives any requirement
that Employer submit proof of the economic value of
any trade secret or post a bond or other security.
3. None of the foregoing obligations and restrictions
applies to any part of the Confidential Information
that Executive demonstrates was or became generally
available to the public other than as a result of a
disclosure by Executive.
4. Executive will not remove from Employer's premises
(except to the extent such removal is for purposes of
the performance of Executive's duties at home or
while traveling, or except as otherwise specifically
authorized by the Employer) any document, record,
notebook, plan, model, component, device, or computer
software or code, whether embodied in a disk or in
any other form (collectively, the "Proprietary
Items"). Executive recognizes that, as between
Employer and Executive, all of the Proprietary Items,
whether or not developed by Executive, are the
exclusive property of Employer. Upon termination of
this Agreement by either party, or upon the request
of Employer during the Employment Period, Executive
will return to Employer all of the Proprietary Items
in Executive's possession or subject to Executive's
control (except to the extent any such return during
the Employment Period shall materially interfere with
Executive's ability to perform his obligations under
this Agreement), and Executive shall not retain any
copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items.
7.3 DISPUTES OF CONTROVERSIES
Executive recognizes that should a dispute or controversy arising from
or relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by Employer, Executive, and their
respective attorneys and experts, who will agree, in advance and in writing, to
receive and maintain all such information in secrecy, except as may be limited
by them in writing.
8. NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
Executive acknowledges that: (a) the services to be performed by him
under this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; (b) Employer's business is international in scope and
its services are marketed throughout the United States and internationally; (c)
Employer competes with other businesses that are or could be located in any part
of the United States of internationally; (d) the Employer has required that
8
Executive make the covenants set forth in this Section 8 as a condition to the
Employer's acquisition of Executive's stock in Employer; and (e) the provisions
of this Section 8 are reasonable and necessary to protect Employer's business.
8.2 COVENANTS OF THE EXECUTIVE
In consideration of the acknowledgments by Executive, and in
consideration of the compensation and benefits to be paid or provided to
Executive by Employer, Executive covenants that he will not, directly or
indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during a oneyear Post-Employment
Period, engage or invest in, own, manage, operate, finance,
control, or participate in the ownership, management,
operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend
Executive's name or any similar name to, lend Executive's
credit to or render services or advice to, any business whose
products, services or activities compete in whole or in part
with the products, services or activities of Employer anywhere
within the United States or any other jurisdiction in which
Employer then conducts business; provided, however, that
Executive may purchase or otherwise acquire up to (but not
more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed
in any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act
of 1934;
(b) whether for Executive's own account or for the account of any
other person, at any time during the Employment Period and the
one-year Post-Employment Period, solicit business of the same
or similar type being carried on by Employer, from any person
known by Executive to be a customer of Employer, whether or
not Executive had personal contact with such person during and
by reason of Executive's employment with Employer;
(c) whether for Executive's own account or the account of any
other person (i) at any time during the Employment Period and
the Post-Employment Period, solicit, employ, or otherwise
engage as an employee, independent contractor, or otherwise,
any person who is or was an employee of Employer at any time
during the Employment Period or in any manner induce or
attempt to induce any employee of Employer to terminate his
employment with Employer; or (ii) at any time during the
Employment Period and for three years thereafter, interfere
with Employer's relationship with any person, including any
person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of Employer; or
9
(d) at any time during or after the Employment Period, disparage
Employer or any of its shareholders, directors, officers,
employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means the one year period beginning on the date of termination of Executive's
employment with Employer for any reason, voluntary or involuntary.
If any covenant of this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the duration of any violation by Executive of such covenant.
Executive will, while the covenant under this Section 8.2 is in effect,
give notice to Employer, within ten days after accepting any other employment,
of the identity of Executive's employer. Employer may notify such employer that
Executive is bound by this Agreement, and at Employer's election, furnish such
employer with a copy of this Agreement or relevant portions thereof.
9. GENERAL PROVISIONS
9.1. INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
Executive acknowledges that the injury that would be suffered by
Employer as a result of a breach of the provisions of this Agreement (including
any provision of Section 7 and 8) would be irreparable and that an award of
monetary damages to Employer for such breach may or would be an inadequate
remedy and that failure to comply with the provisions of this Section 8 will
result in irreparable and continuing damage to the Employer for which there will
be no adequate remedy at law. The Employer shall be entitled to all of its
remedies at law or in equity for damages and injunctive relief in the event of
any violation of this section by the Executive. Consequently, Employer also will
have the right, in addition to any other rights it may have, to obtain
injunctive relief to restrain any breach or threatened breach or otherwise to
specifically enforce any provision of this Agreement, and Employer will not be
obligated to post bond or other security in seeking such relief. Without
limiting Employer's rights under this Section 9 or any other remedies of
Employer, if Executive breaches any of the provisions of Section 7 or 8,
Employer will have the right to cease making any payments otherwise due to
Executive under this Agreement.
9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT
COVENANTS
10
The covenants by Executive in Section 7 and 8 are essential elements of
this Agreement and without Executive's agreement to comply with such covenants,
the Employer would not have acquired Executive's stock under the Reorganization
Agreement with him and Employer would not have entered into this Agreement or
employed or continued the employment of Executive. Employer and Executive have
independently consulted their respective counsel and have been advised in all
respects concerning the reasonableness and propriety of such covenants, with
specific regard to the nature of the business conducted by Employer.
Executive's covenants in Section 7 and 8 are independent covenants and
the existence of any claim by Executive against Employer under this Agreement or
otherwise, or against the Employer, will not excuse Executive's breach of any
covenant in Section 7 and 8.
If Executive's employment hereunder expires or is terminated for Cause,
this Agreement will continue in full force and effect as is necessary or
appropriate to enforce the covenants and agreements of Executive in Sections 7
and 8.
9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
Executive represents and warrants to Employer that the execution and
delivery by Executive of this Agreement do not, and the performance by Executive
of Executive's obligations hereunder will not, with or without the giving of
notice or the passage of time, or both: (a) violate any judgment, writ,
injunction, or order of any court, arbitrator, or governmental agency applicable
to Executive; or (b) conflict with, result in the breach of any provisions of or
the termination of, or constitute a default under, any agreement to which
Executive is a party or by which Executive is or may be bound.
9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE
The obligations of Employer hereunder, including its obligation to pay
the compensation provided for herein, are contingent upon Executive's
performance of Executive's obligations hereunder, in the reasonable
determination of the Board of Directors of Employer.
9.5 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party in
exercising any right, power or privilege under this Agreement will operate as a
waiver of such right, power or privilege and no single or partial exercise of
any such right, power or privilege will preclude any other or further exercise
of such right, power or privilege or the exercise of any other right, power or
privilege. To the maximum extent permitted by applicable law: (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand of one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
11
9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of Executive under this Agreement, being
personal, may not be delegated.
9.7 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when:
(a) delivered by hand (with written confirmation of receipt); (b) sent by
facsimile (with written confirmation of receipt), provided that a copy is mailed
by certified mail, return receipt requested; or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Employer: 00 Xxxxxxxxx Xxxx #000
Xxxxxx, Xx 00000
Telephone: 000.000.0000
Facsimile: 949.200.4005
If to Executive: Xx. Xxxxxxx Xxxxxxx
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone:
Facsimile:
9.8 ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
9.9 GOVERNING LAW
This Agreement will be governed by the laws of the State of California
without regard to conflicts of laws principles.
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9.10 JURISDICTION
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against either of the
parties in the courts of the State of California, County of Orange, or, if it
has or can acquire jurisdiction, in the United States District Court for the
Central District of California, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein and
hereby waive their rights to a jury trial. Process in any action or proceeding
referred to in the preceding sentence may be served on either party anywhere in
the world.
9.11 SECTION HEADINGS, CONSTRUCTION
The heading of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
works or terms.
9.12 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
9.13 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same Agreement.
9.14 WAIVER OF JURY TRIAL
THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED
TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY
OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY
AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLE TO WAIVE TRIAL BY JURY
AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR
ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
EMPLOYER EXECUTIVE
Z prompt inc.
a California corporation
BY: /S/XXXX XXXXX /S/ XXXXXXX XXXXXXX
-------------------------- -----------------------------
Xxxx Xxxxx, President Xxxxxxx Xxxxxxx
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EXHIBIT D
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EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of April 9,
2003 by Z prompt inc., a California corporation (the "Employer"), and Xxxx
Xxxxx, an individual (the "Executive").
RECITALS
The Employer desires Executive's employment with Employer and Executive
desires to accept such employment, upon the terms and conditions set forth in
this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section.
AGREEMENT. This Employment Agreement, as amended from time to time.
BASIC COMPENSATION. Salary and benefits.
BENEFITS. See section 3.1(b)
BOARD OF DIRECTORS. The board of directors of Employer.
CONFIDENTIAL INFORMATION. Any and all:
(a) trade secrets concerning the business and affairs of Employer,
data, know-how, graphs, drawings, samples, inventions and
ideas, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans,
computer software and programs (including object code and
source code), computer software and database technologies,
systems, structures, and architectures (and related concepts,
ideas, designs, methods and information), and any other
information, however documented, that is a trade secret within
the meaning of California law; and
(b) information concerning the business and affairs of Employer
(which includes historical financial statements, financial
projections and budgets, historical and projected sales,
capital spending budgets and plans, the names and backgrounds
of key personnel and personnel training and techniques and
materials), however documented; and
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(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for Employer containing or based, in
whole or in part, on any information included in the
foregoing.
CONTRACT YEAR. Any 12 month period during the Employment Period
commencing on the Effective Date, or any anniversary of the Effective Date.
DISABILITY. See Section 6.2.
EFFECTIVE DATE. The date stated in the first paragraph of the
Agreement.
EMPLOYMENT PERIOD. See Section 2.2.
FISCAL YEAR. Employer's fiscal year, as it exists on the Effective Date
or as changed from time to time.
FOR CAUSE. See Section 6.3
FOR GOOD REASON. See Section 6.4.
PERSON. Any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
POST-EMPLOYMENT PERIOD. See Section 8.2.
PROPRIETARY ITEMS. See Section 7.2(a)(iv).
SALARY. See Section 3.1(a)
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
Employer hereby employs Executive, and Executive hereby accepts
employment by Employer upon the terms and conditions set forth in this
Agreement.
2.2 TERM
Subject to the provisions of Section 6, the term of Executive's
employment under this Agreement will be three years (the "Employment Period"),
beginning on the Effective Date and ending on the third anniversary of the
Effective Date, unless extended in accordance with the terms hereof.
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2.3 DUTIES
Executive will have such duties as are assigned or delegated to
Executive by the Board of Directors of Employer, and will initially serve as
President of Employer. Executive will devote his entire business time,
attention, skill, and energy exclusively to the business of Employer, will use
his best efforts to promote the success of Employer's business, and will
cooperate fully with the Board of Directors in the advancement of the best
interests of Employer. If Executive is elected as a director of Employer or as a
director or officer of any of its affiliates, Executive will fulfill his duties
as such director or officer without additional compensation.
3. COMPENSATION
3.1 BASIS COMPENSATION
(a) SALARY. Executive will be paid an annual base salary of
$120,000, subject to adjustment as provided below (the
"Salary"), which will be payable in equal periodic
installments according to Employer's customary payroll
practices, but no less frequently than monthly. The salary
will be reviewed by the Board of Directors not less frequently
than annually, and shall be increased on each anniversary of
the Effective Date during the term hereof by an amount equal
to not less than ten percent (10%) of the prior year's base
salary.
(b) BENEFITS. Executive will, during the Employment Period, be
permitted to participate in such pension, profit sharing,
bonus, life insurance, hospitalization, major medical, and
other employee benefit plans of Employer that may be in effect
from time to time, to the extent Executive is eligible under
the terms of those plans (collectively, the "Benefits").
3.2 BONUS COMPENSATION
In addition to Executive's Salary, Executive shall be eligible to
receive an annual bonus to be determined solely in the discretion of the
Employer's compensation committee (the "Compensation Committee"), in an amount
not in excess of 100% of the then-applicable Salary for each year in which
Executive is employed hereunder.
4. FACILITIES AND EXPENSES
4.1 GENERAL
Employer will pay on behalf of Executive (or reimburse Executive for)
reasonable expenses (including business-class travel) incurred by Executive at
the request of, or on behalf of, Employer in the performance of Executive's
duties pursuant to this Agreement, and in accordance with Employer's employment
policies, including reasonable expenses incurred by Executive in attending
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conventions, seminars, and other business meetings, in appropriate business
entertainment activities, and for promotional expenses. Executive must file
expense reports with respect to such expenses in accordance with Employer's
policies.
5. VACATIONS AND HOLIDAYS
Executive will be entitled to paid vacation each Fiscal Year in
accordance with the vacation policies of Employer in effect for its executive
officers from time to time, but in no event less than three (3) weeks per year.
Vacation must be taken by Executive at such time or times as reasonably approved
by the Chairman of the Board or Chief Executive Officer. Executive will also be
entitled to the paid holidays set forth in Employer's policies. Vacation days
(but not holidays) during any Fiscal Year that are not used by Executive during
such Fiscal Year may be carried over to the following Fiscal Year, provided,
however, that no additional vacation days shall accrue so long as Executive is
then entitled to four weeks accrued vacation.
6. TERMINATION
6.1 EVENTS OF TERMINATION
The Employment Period and Executive's Basic Compensation, and any and
all other rights of Executive under this Agreement or otherwise as an employee
of Employer will terminate (except as otherwise provided in this Section):
(a) upon the death of Executive;
(b) upon the Disability of Executive (as defined in Section 6.2)
upon thirty (30) days notice from either party to the other;
(c) for Cause (as defined in Section 6.3), immediately upon notice
from Employer to Executive, as or at such later time as such
notice may specify; or
(d) for Good Reason (as defined in Section 6.4) upon not less than
thirty (30) days' prior notice from Executive to Employer.
6.2 DEFINITION OF DISABILITY
For purposes of Section 6.1, Executive will be deemed to have a
"disability" if, for physical or mental reasons, Executive is unable to perform
Executive's duties under this Agreement for 45 consecutive days, or 90 days
during any twelve month period, as determined in accordance with Section 6.2.
The disability of Executive will be determined by a medical doctor mutually
agreed upon by Employer and Executive (or Executive's legal guardian or duly
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authorized attorney-in-fact will act in Executive's stead, in the event
Executive is not legally competent) upon the request of Employer. The
determination of such medical doctor will be binding upon both parties.
Executive must submit to a reasonable number of examinations by the medical
doctor making the determination of disability under this Section 6.2, and
Executive hereby authorizes the disclosure and release to Employer of such
determination and all supporting medical records. If Executive is not legally
competent, Executive's legal guardian or duly authorized attorney-in-fact will
act in Executive's stead, under this Section 6.2, for the purposes of submitting
Executive to the examinations, and providing the authorization of disclosure,
required under this Section 6.2.
6.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 6.1, the phrase "for cause" means: (a) the
conviction of, or the entering of a guilty plea or plea of no contest with
respect to a felony or the equivalent thereof involving moral turpitude; or (b)
willful and material wrongful or grossly negligent actions that result in
material damage to Employer.
6.4 DEFINITION OF "FOR GOOD REASON"
For purposes of Section 6.1 and 6.5(a), the phrase "for good reason"
means any of the following: (a) Employer's material breach of this Agreement or
any other agreement entered between Employer and Executive concurrent herewith;
(b) the assignment of Executive without his consent to a position,
responsibilities, or duties of a materially lesser status or degree of
responsibility than his position, responsibilities, or duties at the Effective
Date; (c) the relocation of Executive's place of employment more than 30 miles
from its current location without Executive's consent; (d) a reduction in
Executive's base salary or material reduction in his benefits; or (e) the
material breach by AccuPoll Holding Corp. ("AccuPoll") of any agreement entered
into between AccuPoll and Executive or Z prompt inc. and Executive concurrent
herewith.
6.5 TERMINATION OF PAY
Effective upon the termination of this Agreement, Employer will be
obligated to pay Executive (or in the event of his death, his designated
beneficiary as defined below) only such compensation as is provided in this
Section 6.5, and in lieu of all other amounts and in settlement and complete
release of all claims Executive may have against Employer for any amounts due
and owing to Executive, as an employee, under this Agreement. For purposes of
this Section 6.5, Executive's designated beneficiary will be such individual
beneficiary or trust, located at such address as Executive may designate by
notice to Employer from time to time or, if Executive fails to give notice to
Employer of such beneficiary, Executive's estate. Notwithstanding the preceding
sentence, Employer will have no duty, in any circumstances, to attempt to open
an estate on behalf of Executive, to determine whether any beneficiary
designated by Executive is alive or to ascertain the address of any such
beneficiary, to determine the existence of any trust, to determine whether any
person or entity purporting to act as Executive's personal representative (or
the trustee of a trust established by Executive) is duly authorized to act in
that capacity, or to locate or attempt to locate any beneficiary, personal
representative, or trustee.
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(a) TERMINATION BY EXECUTIVE FOR GOOD REASON OR BY EMPLOYER
WITHOUT CAUSE. If Executive terminates this Agreement for good
reason, or if Employer terminates Executive without Cause
(other than by reason of Executive's death or disability),
Employer will pay Executive a lump sum severance payment in an
amount equal to the greater of (i) the salary payable to
Executive for the remainder of the term of this Agreement, or
(ii) Executive's then current annual salary. Employer shall
also provide all benefits to which Executive is entitled
immediately prior to such termination for a period equal to
the greater of (i) the number of months remaining in the term
of this Agreement, or (ii) 12 months following the date of
termination (or reimburse Executive for all costs incurred by
Executive in obtaining comparable benefits).
(b) TERMINATION BY EMPLOYER FOR CAUSE. If Employer terminates this
Agreement for cause, Executive will be entitled to receive (i)
his Salary only through the date such termination is
effective, (ii) the payment of earned and accrued bonus and
incentive plan payments due Executive, if any, under any bonus
or incentive plan in which Executive participated prior to
termination; (iii) the payment of any unused accrued vacation
through the date of termination; and (iv) the payment of any
reimbursable business expenses that were documented by
Executive in accordance with the Employer's policies prior to
the termination of this Agreement, and will not be entitled to
any other compensation for the Fiscal Year during which such
termination occurs or any subsequent Fiscal Year.
(c) TERMINATION UPON DISABILITY. If this Agreement is terminated
by either party as a result of Executive's disability, as
determined under Section 6.2, Executive will be entitled to
receive (i) the prorated payment of Executive's salary through
the date of termination to the extent not paid by then; (ii)
the payment of earned and accrued bonus and incentive plan
payments due Executive, if any, under any bonus or incentive
plan in which Executive participated prior to termination;
(iii) the payment of any unused accrued vacation through the
date of termination; and (iv) the payment of any reimbursable
business expenses that were documented by Executive in
accordance with the Employer's policies prior to the
termination of this Agreement, (v) all benefits to which
Executive is entitled immediately prior to such termination,
through the remainder of the calendar month during which such
termination is effective and for the three consecutive months
thereafter.
(d) TERMINATION UPON DEATH. If this Agreement is terminated
because of Executive's death, Executive's named beneficiary
will be entitled to receive (i) the prorated payment of
Executive's salary through the end of the calendar month in
which the death occurs; (ii) the payment of earned and accrued
bonus and incentive plan payments due Executive, if any, under
any bonus or incentive plan in which Executive participated
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prior to termination; (iii) the payment of any unused accrued
vacation through the date of termination; and (iv) the payment
of any reimbursable business expenses that were documented by
Executive in accordance with the Employer's policies prior to
the termination of this Agreement.
(e) BENEFITS. Except as provided in paragraphs (a) and (c) above,
Executive's accrual of, or participation in plans providing
for, the Benefits will cease at the effective date of the
termination of this Agreement, and Executive will be entitled
to accrued Benefits pursuant to such plans only as provided in
such plans. Executive will not receive, as part of his
termination pay pursuant to this Section 6, any payment or
other compensation for any holiday, sick leave, or other leave
unused on the date the notice of termination is given under
this Agreement, but will be entitled to be paid for accrued
but unused vacation days, up to a maximum of twenty (20)
accrued vacation days.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
Executive acknowledges that (a) during the Employment Period and as a
part of his employment, Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on Employer and its business; (c) the Employer has required
that Executive make the covenants in this Section 7; and (d) the provisions of
this Section 7 are reasonable and necessary to prevent the improper use or
disclosure of Confidential Information.
7.2 AGREEMENT OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid or
provided to Executive by Employer under this Agreement, Executive covenants as
follows:
(a) CONFIDENTIALITY:
1. During and following the Employment Period, Executive
will hold in confidence the Confidential Information
and will not disclose it to any person except with
the specific prior written consent of Employer or
except as otherwise expressly permitted by the terms
of this Agreement.
2. Any trade secrets of Employer will be entitled to all
of the protections and benefits under California law
and any other applicable law. If any information that
Employer deems to be a trade secret is found by a
court of competent jurisdiction not to be a trade
secret for purposes of this Agreement, such
information will, nevertheless, be considered
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Confidential Information for purposes of this
Agreement. Executive hereby waives any requirement
that Employer submit proof of the economic value of
any trade secret or post a bond or other security.
3. None of the foregoing obligations and restrictions
applies to any part of the Confidential Information
that Executive demonstrates was or became generally
available to the public other than as a result of a
disclosure by Executive.
4. Executive will not remove from Employer's premises
(except to the extent such removal is for purposes of
the performance of Executive's duties at home or
while traveling, or except as otherwise specifically
authorized by the Employer) any document, record,
notebook, plan, model, component, device, or computer
software or code, whether embodied in a disk or in
any other form (collectively, the "Proprietary
Items"). Executive recognizes that, as between
Employer and Executive, all of the Proprietary Items,
whether or not developed by Executive, are the
exclusive property of Employer. Upon termination of
this Agreement by either party, or upon the request
of Employer during the Employment Period, Executive
will return to Employer all of the Proprietary Items
in Executive's possession or subject to Executive's
control (except to the extent any such return during
the Employment Period shall materially interfere with
Executive's ability to perform his obligations under
this Agreement), and Executive shall not retain any
copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items.
7.3 DISPUTES OF CONTROVERSIES
Executive recognizes that should a dispute or controversy arising from
or relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by Employer, Executive, and their
respective attorneys and experts, who will agree, in advance and in writing, to
receive and maintain all such information in secrecy, except as may be limited
by them in writing.
8. NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
Executive acknowledges that: (a) the services to be performed by him
under this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; (b) Employer's business is international in scope and
its services are marketed throughout the United States and internationally; (c)
Employer competes with other businesses that are or could be located in any part
of the United States of internationally; (d) the Employer has required that
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Executive make the covenants set forth in this Section 8 as a condition to the
Employer's acquisition of Executive's stock in Employer; and (e) the provisions
of this Section 8 are reasonable and necessary to protect Employer's business.
8.2 COVENANTS OF THE EXECUTIVE
In consideration of the acknowledgments by Executive, and in
consideration of the compensation and benefits to be paid or provided to
Executive by Employer, Executive covenants that he will not, directly or
indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during a one-year Post-Employment
Period, engage or invest in, own, manage, operate, finance,
control, or participate in the ownership, management,
operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend
Executive's name or any similar name to, lend Executive's
credit to or render services or advice to, any business whose
products, services or activities compete in whole or in part
with the products, services or activities of Employer anywhere
within the United States or any other jurisdiction in which
Employer then conducts business; provided, however, that
Executive may purchase or otherwise acquire up to (but not
more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed
in any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act
of 1934;
(b) whether for Executive's own account or for the account of any
other person, at any time during the Employment Period and the
one-year Post-Employment Period, solicit business of the same
or similar type being carried on by Employer, from any person
known by Executive to be a customer of Employer, whether or
not Executive had personal contact with such person during and
by reason of Executive's employment with Employer;
(c) whether for Executive's own account or the account of any
other person (i) at any time during the Employment Period and
the Post-Employment Period, solicit, employ, or otherwise
engage as an employee, independent contractor, or otherwise,
any person who is or was an employee of Employer at any time
during the Employment Period or in any manner induce or
attempt to induce any employee of Employer to terminate his
employment with Employer; or (ii) at any time during the
Employment Period and for three years thereafter, interfere
with Employer's relationship with any person, including any
person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of Employer; or
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(d) at any time during or after the Employment Period, disparage
Employer or any of its shareholders, directors, officers,
employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means the one year period beginning on the date of termination of Executive's
employment with Employer for any reason, voluntary or involuntary.
If any covenant of this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the uration of any violation by Executive of such covenant.
Executive will, while the covenant under this Section 8.2 is in effect,
give notice to Employer, within ten days after accepting any other employment,
of the identity of Executive's employer. Employer may notify such employer that
Executive is bound by this Agreement, and at Employer's election, furnish such
employer with a copy of this Agreement or relevant portions thereof.
9. GENERAL PROVISIONS
9.1. INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
Executive acknowledges that the injury that would be suffered by
Employer as a result of a breach of the provisions of this Agreement (including
any provision of Section 7 and 8) would be irreparable and that an award of
monetary damages to Employer for such breach may or would be an inadequate
remedy and that failure to comply with the provisions of this Section 8 will
result in irreparable and continuing damage to the Employer for which there will
be no adequate remedy at law. The Employer shall be entitled to all of its
remedies at law or in equity for damages and injunctive relief in the event of
any violation of this section by the Executive. Consequently, Employer will have
the right, in addition to any other rights it may have, to obtain injunctive
relief to restrain any breach or threatened breach or otherwise to specifically
enforce any provision of this Agreement, and Employer will not be obligated to
post bond or other security in seeking such relief. Without limiting Employer's
rights under this Section 9 or any other remedies of Employer, if Executive
breaches any of the provisions of Section 7 or 8, Employer will have the right
to cease making any payments otherwise due to Executive under this Agreement.
9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT
COVENANTS
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The covenants by Executive in Section 7 and 8 are essential elements of
this Agreement and without Executive's agreement to comply with such covenants,
the Employer would not have acquired Executive's stock under the Reorganization
Agreement with him and Employer would not have entered into this Agreement or
employed or continued the employment of Executive. Employer and Executive have
independently consulted their respective counsel and have been advised in all
respects concerning the reasonableness and propriety of such covenants, with
specific regard to the nature of the business conducted by Employer.
Executive's covenants in Section 7 and 8 are independent covenants and
the existence of any claim by Executive against Employer under this Agreement or
otherwise, or against the Employer, will not excuse Executive's breach of any
covenant in Section 7 and 8.
If Executive's employment hereunder expires or is terminated for Cause,
this Agreement will continue in full force and effect as is necessary or
appropriate to enforce the covenants and agreements of Executive in Sections 7
and 8.
9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
Executive represents and warrants to Employer that the execution and
delivery by Executive of this Agreement do not, and the performance by Executive
of Executive's obligations hereunder will not, with or without the giving of
notice or the passage of time, or both: (a) violate any judgment, writ,
injunction, or order of any court, arbitrator, or governmental agency applicable
to Executive; or (b) conflict with, result in the breach of any provisions of or
the termination of, or constitute a default under, any agreement to which
Executive is a party or by which Executive is or may be bound.
9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE
The obligations of Employer hereunder, including its obligation to pay
the compensation provided for herein, are contingent upon Executive's
performance of Executive's obligations hereunder, in the reasonable
determination of the Board of Directors of Employer.
9.5 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party in
exercising any right, power or privilege under this Agreement will operate as a
waiver of such right, power or privilege and no single or partial exercise of
any such right, power or privilege will preclude any other or further exercise
of such right, power or privilege or the exercise of any other right, power or
privilege. To the maximum extent permitted by applicable law: (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand of one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
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9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of Executive under this Agreement, being
personal, may not be delegated.
9.7 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when:
(a) delivered by hand (with written confirmation of receipt); (b) sent by
facsimile (with written confirmation of receipt), provided that a copy is mailed
by certified mail, return receipt requested; or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Employer: 00 Xxxxxxxxx Xxxx # 000
Xxxxxx, Xx 00000
Telephone: 000.000.0000
Facsimile: 949.200.4005
If to Executive: Xx. Xxxx Xxxxx
00000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone:
Facsimile:
9.8 ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
9.9 GOVERNING LAW
This Agreement will be governed by the laws of the State of California
without regard to conflicts of laws principles.
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9.10 JURISDICTION
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against either of the
parties in the courts of the State of California, County of Orange, or, if it
has or can acquire jurisdiction, in the United States District Court for the
Central District of California, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein and
hereby waive their rights to a jury trial. Process in any action or proceeding
referred to in the preceding sentence may be served on either party anywhere in
the world.
9.11 SECTION HEADINGS, CONSTRUCTION
The heading of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
works or terms.
9.12 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
9.13 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same Agreement.
9.14 WAIVER OF JURY TRIAL
THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED
TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY
OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY
AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLE TO WAIVE TRIAL BY JURY
AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR
ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
EMPLOYER EXECUTIVE
Z prompt inc.
a California corporation
BY: /S/ Xxxxxxx Xxxxxxx /S/ Xxxx Xxxxx
----------------------------------- ------------------------------
Xxxxxxx Xxxxxxx Xxxx Xxxxx
Chief Executive Officer
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