EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made as of July 1, 2005 by
AccuPoll Holding Corp., a Nevada corporation, (the "Employer"), and Xxxxxxx X.
Xxxxx, an individual (the "Executive").
RECITALS
The Employer desires Executive's employment with Employer and its wholly-owned
subsidiary AccuPoll, Inc. ("AccuPoll") 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 1.
"AGREEMENT"--this Employment Agreement, as amended from time to time.
"BASIC COMPENSATION"--Salary and Benefits.
"BENEFITS"--as defined in Section 3.1(b).
"BOARD OF DIRECTORS"--the board of directors of Employer.
"CHANGE IN CONTROL"--with respect to Employer or AccuPoll shall mean, shall mean
(A) the direct or indirect sale, lease, exchange or other transfer of more than
fifty per cent (50%) of the assets of Employer or AccuPoll to any other Person
or Persons, (B) the sale or issuance of any class or series of capital stock or
securities exchangeable, convertible or exercisable for shares of capital stock
of Employer or AccuPoll in a transaction or series of transactions in which the
purchaser or purchasers own in the aggregate at least fifty percent (50%) of the
capital stock (on a fully converted, exchanged or exercised basis) of Employer
or AccuPoll after such transaction or series of transactions, (C) the merger or
consolidation of Employer or AccuPoll with another entity or entities, or (D)
the reorganization of Employer or AccuPoll.
"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
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(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
(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" - means any 12 month period during the Employment Period
commencing on the Effective Date, or any anniversary of the Effective Date.
"DISABILITY"--as defined in Section 6.2.
"EFFECTIVE DATE"--the date stated in the first paragraph of the Agreement.
"EMPLOYMENT PERIOD"--as set forth in 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"--as defined in Section 6.3.
"FOR GOOD REASON"--as defined in 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"--as defined in Section 8.2.
"PROPRIETARY ITEMS"--as defined in Section 7.2(a)(iv).
"SALARY"--as defined in Section 3.1(a).
"SIGNIFICANT EVENT" - for the purposes of this Employment Agreement a
Significant Event is defined as the date at which AccuPoll executes contracts in
the aggregate, for the sale or lease of the Company's voting systems exceeding a
contract value of $10,000,000.
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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 two (2) years (the "Employment Period"), beginning on the
Effective Date and ending on the second (2nd) anniversary of the Effective Date,
thereafter, this agreement shall be extended on a year to year basis unless
notice of non-renewal is given by either party 60 days prior to the scheduled
expiration date; provided in the event the Employer elects to give notice of
non-renewal, Employer shall pay Executive severance equal to twelve months
salary, bonus and benefits.
2.3. DUTIES
Executive will have such duties as are assigned or delegated to Executive by the
Board of Directors of Employer, and will serve as President & CEO of Employer
and of AccuPoll. Executive will devote his entire business time, attention,
skill, and energy exclusively to the business of Employer and AccuPoll, will use
his best efforts to promote the success of Employer's and AccuPoll's business,
and will cooperate fully with the Board of Directors in the advancement of the
best interests of Employer and AccuPoll. Executive shall be elected as a
director of Employer and AccuPoll and will fulfill his duties as such director
or officer without additional compensation.
3. COMPENSATION
3.1. BASIC COMPENSATION
(a) SALARY. Executive will be paid a minimum annual base salary of $155,000
until a Significant Event occurs, 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. Effective immediately after a Significant Event
Executive's minimum annual base salary will increase to $225,000. The
Salary will be reviewed by the Board of Directors for potential increases
not less frequently than annually thereafter.
(b) BENEFITS. Executive will, during the Employment Period, be permitted to
participate in such pension, profit sharing, bonus, life insurance,
hospitalization, major medical, and
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other employee benefit plans of Employer or AccuPoll that may be in effect
from time to time, to the extent Executive is eligible under the terms of
those plans (collectively, the "Benefits")
(c) STOCK OPTIONS. Executive shall be entitled to participate in Employer's
2004 Management Stock Incentive Plan (or an equivalent plan granting
incentive stock options to employees of Employer) (the "Stock Option
Plan"). Executive shall be granted 20,000,000 incentive stock options from
the Stock Option Plan simultaneously with the execution of this Agreement.
Executive shall also be entitled to receive annual option grants at least
equal to the average number of options granted to all other members of
management. All of Executive's options granted under the Stock Option Plan
shall vest immediately upon a Change in Control of Employer or AccuPoll.
3.2 BONUS COMPENSATION
In addition to Executive's Salary, Executive shall be entitled to receive an
annual bonus to be determined by 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
and meets the performance criteria established by the Compensation Committee.
Such bonus, if any, shall be payable within thirty (30) days after Employer's
independent accountants have made a determination of Executive's entitlement to
such bonus, applying generally accepted accounting principles consistently
applied. Such determination shall be made not later than ninety (90) days after
the end of each Contract Year during the term hereof. In the event that
Executive shall, in good faith, disagree with such determination, Executive may
retain separate independent accountants at his own cost to make a separate
determination of Executive's entitlement to such bonus. In the event that, as a
result of such separate determination, Employer and Executive are unable to
agree on the amount of such bonus, then such controversy shall be arbitrated, in
front of a single arbitrator, according to the rules of the American Arbitration
Association, as such rules are then in effect in Los Angeles, California. The
decision of the arbitrator shall be final, and each party's costs relating to
the arbitration (including legal and accounting fees and the cost of the
arbitration, but not including the accounting costs to each party incurred in
making each initial determination of bonus entitlement) shall be paid by the
party whose initial bonus determination is the most divergent from the
arbitrator's bonus determination. In the event that the amount of the
arbitrator's determination shall be halfway between the disputed initial
determinations, then Executive and Employer shall each pay their own costs in
connection with the arbitration and shall share equally the costs of the
arbitration itself.
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,
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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 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 four (4) weeks per year. . 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 6):
(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 written notice
from Employer to Executive stating with specificity the Cause for
termination, 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
days' prior notice from Executive to Employer.
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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 this 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 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 on 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
materially wrongful or grossly negligent actions that result in material damage
to Employer or AccuPoll.
6.4. DEFINITION OF "FOR GOOD REASON"
For purposes of Section 6.1, the phrase "for good reason" means any of the
following: (a) Employer's material breach of this Agreement; (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, or (d) a reduction in Executive's base salary or
material reduction in his benefits.
6.5. TERMINATION 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
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address, as Executive may designate by notice to Employer from time to time or,
if Executive fails to give notice to Employer of such a 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.
(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 Executive's then current annual Salary, and
shall provide all benefits to which Executive is entitled immediately
prior to such termination for a period of 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 his Salary only through
the date such termination is effective, 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, Employer will pay Executive his Salary, and shall provide Executive
with 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 will be entitled to receive his Salary
through the end of the calendar month in which his death occurs.
(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 any accrued but unused vacation days, up to a
maximum of twenty (20) accrued vacation days.
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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. AGREEMENTS 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 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
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
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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 OR 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 products
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 or internationally; and (d) 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:
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(a) during the Employment Period, except in the course of his employment
hereunder, and during the 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 or activities compete in whole or
in part with the products 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 on 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 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
(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
period after the date of termination of Executive's employment with Employer
equal to the period in which Executive's severance payments were calculated.
If any covenant in 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.
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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 Sections 7 and 8) would be irreparable and that an award of monetary damages
to Employer for such a breach would be an inadequate remedy. 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
The covenants by Executive in Sections 7 and 8 are essential elements of this
Agreement, and without Executive's agreement to comply with such covenants, 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 Sections 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 or 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.
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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. 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 on 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.
9.5. 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.
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9.6. 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 registered
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:
AccuPoll, Inc.
Attention: Chairman of the Board
Tel: 000 000 0000
Fax: 000 000 0000
If to Executive:
Xxxxxxx X. Xxxxx
00000 Xxx Xxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
With a copy to:
9.7. ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the parties with respect to
the subject matter hereof and supersede 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.
9.8. 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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9.9. 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.
Process in any action or proceeding referred to in the preceding sentence may be
served on either party anywhere in the world.
9.10. SECTION HEADINGS, CONSTRUCTION
The headings 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 words or
terms.
9.11. 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.
9.12. 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.
9.15 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 IRREVOCABLY TO WAIVE TRIAL BY JURY AND
THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF
THE CONTEMPLATED
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TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date above first written above.
AccuPoll Holding Corp. EXECUTIVE
a Nevada corporation
By:____________________________ ____________________________
Name:
Title:
AccuPoll Inc.,
a Deleware corporation
By:____________________________
Name:
Title:
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