QT 5, INC.
Employment Agreement
This Employment Agreement ("Agreement") is made and entered into this
24th day of September 2004 by and between QT 5, Inc., a Delaware corporation
(the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III ("Executive").
RECITALS
WHEREAS, Executive has the experience to provide services to the
Company of an extraordinary character which gives such services a unique value;
and
WHEREAS, the Company desires to retain the services of Executive, and
Executive desires to be employed by the Company for the term of this Agreement.
NOW AND THEREFORE, the Company and Executive, intending to be legally
bound, hereby agree as follows:
1. Employment. The Company hereby employs Executive as the CHIEF
EXECUTIVE OFFICER of the Company. For the term of Executive's employment, and
upon the other conditions set forth in this Agreement, Executive accepts such
employment and agrees to perform services for the Company, subject always to
such resolutions as are established from time to time by the Board of Directors
of the Company.
2. Term. The term of Executive's employment hereunder shall become
effective on September 27, 2004 and continue through October 1, 2007 subject to
the termination provisions contained herein. The Agreement may be terminated by
the Company only for cause as set forth below, and shall not constitute "at
will" employment.
3. Position and Duties.
3.1. Services with the Company. During the term of this
Agreement, Executive agrees to perform such duties and exercise such powers
related thereto as may from time to time be assigned to him by the Company's
Board of Directors (the "Board"). Executive shall duly and diligently perform
all duties assigned to him while in the employ of the Company. He shall be bound
by and faithfully observe and abide by all rules and regulations of the Company
which are brought to his notice or of which he should be reasonably aware.
Executive hereby accepts such employment, agrees to serve the Company in the
capacities indicated, and agrees to use Executive's best efforts in, and shall
devote sufficient working time, attention, skill and energies to, the
advancement of the interests of the Company and the performance of Executive's
duties and responsibilities hereunder.
3.2. No Conflicting Duties. Executive shall devote sufficient
productive time, ability, and attention to the business of the Company during
the term of this Agreement in a manner that will serve the best interests of the
Company. This Agreement shall not be interpreted to prohibit Executive from
making passive personal investments or conduct other business affairs if those
activities do not materially interfere with the services required under this
Agreement.
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4. Compensation.
4.1 Annual Salary. As compensation for all services to be
rendered by Executive under this Agreement, the Company shall pay to Executive
an annual salary of One Hundred Ninety Eight Thousand Dollars ($198,000.00) (the
"Annual Salary"). Executive's Annual Salary shall be paid on a regular basis in
accordance with the Company's normal payroll procedures and policies. On or
before the yearly anniversary date of this Agreement, the Board of Directors
shall determine the increase to the Annual Salary, if any, but in no event shall
it exceed ten (10%) . The adjusted Annual Salary shall become effective on
September 24th of each year.
4.2 Signing Bonus. Upon the execution of this Agreement,
Executive shall earn a signing bonus of (a) Seventy Five Thousand Dollars
($75,000) payable by the Company in four quarterly payments of Eighteen Thousand
Seven Hundred Fifty Dollars ($18,750) each on January 1, 2005, April 1, 2005,
July 1, 2005 and October 1, 2005 and (b) in addition upon the execution of this
Agreement, Executive shall be issued One Hundred Fifty Million (150,000,000)
shares of company's common stock, collectively (the "Signing Bonus").
4.3 Bonus. The Company shall pay to Executive an annual cash
bonus (the "Bonus") equal to the amount computed herein below (the "Performance
Share Amount") for Fiscal Year Ended June 30, for the years 2005, 2006 and 2007,
(each, a "Bonus Year") as the case may be, subject to meeting the Company's
"Sales Goal" (as that term is defined below) for the applicable Bonus Year. The
Performance Share Amount shall equal 100,000 times the difference between: (i)
the "Average Bid Price" (as defined below) for the applicable Bonus Year, and
(ii) at the closing price of the Company's stock on the day of the closing of
the 1 to 150 reverse stock split; provided, however, in any Bonus Year, the
maximum Bonus payable to Executive shall not exceed ten percent (10%) of net
sales of the Company for such Bonus year. The Bonus shall be payable as follows:
On July 31 of each Bonus year, an amount equal to eighty percent (80%) of the
Bonus shall be paid to Executive based upon the internal unaudited financial
statements of the Company for the prior year. The balance of the Bonus for such
Bonus Year (as adjusted for the actual amount of Bonus computed based the final
year end audited financial statements of the Company) shall be paid when such
financial statements are available, but without interest, provided, however, if
the audited financial statements are not available by October 15 of the next
year, Company shall pay the balance of the Bonus computed on the basis of the
unaudited internal financial statements, and the parties shall adjust any
amounts due to or from Executive therefore when the audited financial statements
become available.
The "Average Bid Price" shall mean for any fiscal (calendar)
year the average of the Bid Price of the Company's Common Stock as quoted on
NASDAQ, the OTC Bulletin Board or on the "pink sheets" published by the national
Daily Quotation Bureau, as the case may be, on the trading day nearest the 15th
and 30th day of each month (each, a "Quote Date") for the months of January
through June for such Bonus Year. Assuming the Sales Goal is met for Fiscal Year
Ended June 30, 2005, the following is an example of the calculation of the Bonus
for Bonus Year Ended June 30, 2005:
The Bid Prices on each Quote Date are summed and the sum is
divided by 12. If the Average Bid Price for the months of January through June
2005 was $0.115, then the Performance Share Amount for Fiscal Year Ending June
30, 2005 shall be $8,500 [($0.115 - $0.03) x 100,000].
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The Sales Goal for Fiscal Year Ending June 30, 2005 shall be
$250,000. The Sales Goal Fiscal Year Ending June 30, 2006 shall be $1,000,000.
The Sales Goal for Fiscal Year Ending June 30, 2007 shall be $3,000,000. "Sales
Goal" is defined as net sales as that term is defined by generally accepted
accounting standards, (i.e. gross sales, less returns and allowances) of
medical, diagnostic, cosmetic or therapeutic products or devices and related
services, whether sold by the Company as an OEM for other manufacturers or
distributors or manufactured and distributed directly by the Company.
The Bonus payable to Executive shall be due and payable only
if Executive is employed on the last day of each fiscal year; provided, however,
if Executive is terminated by date of termination, assuming the Sales Goal is
met for such Bonus Year.
4.4 Incentive Stock Options. The Company shall issue incentive
stock options to Executive pursuant to the Company's qualified Incentive Stock
Option Plan. At the discretion of, and in an amount to be determined by, the
Board of Directors, no later than seventy five (75) days following the end of
each of the Company's fiscal years, Executive will receive incentive stock
options at an exercise price equal to the fair market value at the end of each
fiscal year. However, if the Executive owns at least 10% of the Company's common
stock, then the purchase price that will be paid to the Company when the option
is exercised and the stock purchase must equal 110% of the fair market value of
the common stock as of the date of grant. The Incentive Stock Options shall vest
immediately and shall terminate ten years from the date of grant. Executive may
exercise the incentive stock options, at his sole and absolute discretion, by
providing the Company with written notice accompanied by (1) cash or a cashier's
check an amount equal to the product of the incentive stock option exercise
price and the number of shares Executive desires to purchase pursuant to this
provision; or (2) by a cashless exercise whereby Executive receives the net
amount of shares after deducting the value of the exercise price.
4.5 Stock and Option Registration Rights. In the event the
Company with or without the assistance of an investment banking firm, conducts a
registered offering of the Company's shares, the Company shall provide Executive
with registration rights to all shares, warrants and/or options which Executive
then holds or otherwise directly or constructively owns.
4.6 Expenses. During the term of this Agreement, to the extent
that such expenditures satisfy the criteria under the Internal Revenue Code for
deductibility for federal income tax purposes as ordinary and necessary business
expenses, the Company shall reimburse Executive promptly for reasonable business
expenditures, including but not limited to: airfare, automobile rental, parking,
entertainment, lodging, meals, entertainment, telephone, copy costs, and
supplies and all other expenses incurred by Executive in the performance of his
duties made and substantiated in accordance with policies, practices and
procedures established from time to time by the Company and, incurred in the
pursuit and furtherance of the Company's business goodwill.
4.7 Annual Vacation. Executive shall be entitled to Ten (10)
business days' vacation time for the first year, Fifteen (15) business days for
the second year and Twenty (20) business days for the third year without loss of
compensation. In the event that Executive is unable for any reason to take the
total amount of vacation time authorized herein during any year, any unused
vacation time shall carry over from year to year. Any earned but unused vacation
time will be paid to Executive based upon his annual rate of all compensation
paid in the previous twelve months upon termination or expiration of this
Agreement.
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4.8 Sick Leave. Executive shall be entitled to seven (7) days
sick leave each year without loss of compensation. In the event that Executive
does not take the total amount of sick leave authorized herein during any year,
any unused sick leave shall carry over from year to year. Any entitled but
unused sick leave will be paid to Executive based upon his annual rate of all
compensation paid in the previous twelve months upon termination or expiration
of this Agreement.
4.9 Health Insurance. The Company, at its sole cost and
expense, shall provide Executive and his immediate family members with
comprehensive PPO or HMO health insurance including but not limited to medical,
dental, vision and disability coverage.
4.10 Payment Upon Sale or Merger of Company. In the event the
Company shall merge, sell a controlling interest, or sell a majority of its
assets, the Company shall provide for Executive to vested any but unexercised
options to purchases shares in the Company which are held by Executive at the
earlier of (1) the Company's execution of a Letter of Intent to (a) merge, (b)
sell a controlling interest, or (c) sell a majority of its assets, or (2) the
date of any such merger or sale is consummated, the Company shall pay Executive
cash in the amount equal to the difference between the consideration paid to the
Company on a per share basis less the exercise price of the option, the value of
which is multiplied by the number of options which Executive holds.
4.11 Automobile Allowance. The Company shall provide Executive
a monthly automobile allowance in the amount of $700.00 (the "Automobile
Allowance"). In the event this Agreement is terminated prior to its expiration
for any reason, all payments of the Automobile Allowance shall cease immediately
and Executive shall be responsible for any and all payments remaining on any
lease, loan or rental agreement in connection with said Automobile Allowance.
Payment of the aforesaid allowance shall be subject to any applicable
withholdings tax. The Executive shall be responsible for all income taxes
imposed on the Executive by reason of the automobile allowance.
5. Termination and Termination Benefits. Notwithstanding the provisions
of Section 2, Executive's employment under this Agreement shall terminate under
the following circumstances set forth in this Section 5.
5.1 Termination by the Company for Cause. Executive's
employment under this Agreement may be terminated for Cause without further
liability on the part of the Company other than for accrued but unpaid Annual
Salary through the date of termination effective immediately upon written notice
to Executive. No termination for Cause may be invoked by the Company without
first providing Executive with at least thirty (30) days written notice to
correct any breach, default or causation. Such written notice shall set forth
with reasonable specificity the Company's basis for such notice of termination
and Executive shall have thirty (30) days to correct the condition set forth in
the notice. "Cause" shall mean the following:
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(i) Commission of a criminal act involving fraud,
embezzlement or breach of trust or other act which
would prohibit Executive from holding his position
under the rules of the Securities and Exchange
Commission.
(ii) Willful, knowing and malicious violation of
written corporate policy or rules of the Company.
(iii) Willful, knowing and malicious misuse,
misappropriation, or disclosure of any of the
Proprietary Matters.
(iv) Misappropriation, concealment, or conversion of
any money or property of the Company.
(v) Being under the habitual influence of
intoxicating liquors or controlled substances while
in the course of employment.
(vi) Reckless and wanton conduct which endangers the
safety of other persons or property during the course
of employment or while on premises leased or owned by
the Company.
(vii) The performance of duties in a habitually
unsatisfactory manner after being repeatedly advised
in writing by the Company of such unsatisfactory
performance.
(viii) Continued incapacity on the part of Executive
to perform his duties, unless waived by the Company.
5.2 Termination Without Cause.
5.2.1 Disability. Executive's employment shall terminate upon
Executive becoming totally or permanently disabled for a period of six (6)
months or more. For purposes of this Agreement, the term "totally or permanently
disabled" or "total or permanent disability" means Executive's inability on
account of sickness or accident, whether or not job related, to engage in
regularly or to perform adequately his assigned duties under this Agreement as
determined reasonably and in good faith by the Company. Prior to terminating the
Agreement pursuant to this provision, the Company shall engage and consult one
or more physicians as may be reasonable. In the event of termination pursuant to
this paragraph, Executive shall be entitled to receive any accrued and unpaid
base salary and any and all accrued, earned but unpaid bonuses or benefits
described in Section 4 to which Executive is entitled on the date of such
termination. All other rights Executive has under any benefit or stock option
plans and programs shall be determined in accordance with the terms of such
plans and programs.
5.2.2 Death. Executive's employment shall terminate
immediately upon the death of Executive. Upon such termination, the obligations
of Executive and Company under this Agreement shall immediately cease. If
Executive's employment is terminated pursuant to this paragraph, Company shall
pay Executive's beneficiary or beneficiary designated by Executive in writing to
the Company, or in the absence of such beneficiary, Executive's estate, shall be
entitled to receive (i) any accrued but unpaid base salary and any and all
accrued, earned but unpaid bonuses or benefits described in Section 4 to which
Executive is entitled on the date of such termination, and (ii) Executive's then
current base salary through ninety (90) days after the date of death in
accordance with Company's payroll procedures as if Executive's employment by
Company had continued for such period. All other rights Executive has under any
benefit or stock option plans and programs shall be determined in accordance
with the terms and conditions of such plans and programs.
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5.2.3 Election By Executive. Executive's employment may be
terminated at any time by Executive upon not less than ninety (90) days written
notice by Executive to the Board of Directors. Upon such termination, the
obligations of the Executive and Company under this Agreement shall immediately
cease. In the event of termination pursuant to this paragraph, Executive shall
be entitled to receive any accrued and unpaid base salary and any and all
accrued, earned but unpaid bonuses or benefits described in Section 4 to which
Executive is entitled on the date of such termination. All other rights
Executive has under any benefit or stock option plans and programs shall be
determined in accordance with the terms of such plans and programs.
5.2.4 Election By Company. Executive's employment may be
terminated at any time by the Company upon not less than ninety (90) days
written notice by the Company to Executive. Upon such termination, the
obligations of the Executive and Company under this Agreement shall immediately
cease. In the event of termination pursuant to this paragraph, Executive shall
be entitled to receive (i) any accrued and unpaid base salary and (ii) any and
all accrued, earned but unpaid bonuses or benefits described in Section 4 to
which Executive is entitled on the date of such termination. Additionally, in
the event of termination of Executive's employment with the Company pursuant to
this Section 5.2.4, the Company shall pay to Executive (i) In the event of
Executive's termination within the first year of the Term, One Hundred Fifty
percent (150%) of Executive's Annual Salary for the remainder of the Term,
payable on the date of termination; (ii) In the event of Executive's termination
within the second year of the Term, One Hundred Twenty-Five percent (125%) of
Executive's annual salary for the remainder of the Term, payable on the date of
termination; and (iii) In the event of Executive's termination within the third
year of the Term, One Hundred percent (100%) of Executive's annual salary for
the remainder of the Term, payable on the date of termination.. All other rights
Executive has under any benefit or stock option plans and programs shall be
determined in accordance with the terms of such plans and programs.
5.3 Surrender of Records and Property. Upon termination of his
employment with the Company, Executive shall deliver promptly to the Company all
records, electronic media, manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, data, tables, and calculations or copies
thereof, which are the property of the Company and which relate in any way to
the business, products, practices or techniques of the Company, and all other
property (keys, office equipment, computers, mobile phones, credit cards, etc.)
of the Company and Proprietary Matter, including but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession or
under his control.
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5.4 Full Satisfaction of Claims. The parties hereto agree that
the benefits upon termination described in this Section 5 are to be in full
satisfaction, compromise and release of any claims arising out of any
termination of the Executive's employment pursuant to Section 6(c), and such
amounts shall be contingent upon the Executive's delivery of a general release
of such claims upon termination of employment in a form reasonably satisfactory
to the Company, it being understood that none of the benefits shall be provided
unless and until the Executive determines to execute and deliver such release.
5.5 Survival of Terms. Notwithstanding termination of this
Agreement as provided in this Section 5 or any other termination of Executive's
employment with the Company, Executive's obligations under Sections 6, 8, 9 and
10 hereof shall survive any termination of Executive's employment with the
Company at any time and for any reason.
6. Proprietary Matter. Except as permitted or directed by the Company,
Executive shall not during the term of his employment or at any time thereafter
divulge, furnish, disclose, or make accessible (other than in the ordinary
course of the business of the Company) to anyone for use in any way any
confidential, secret, or proprietary knowledge or information of the Company
("Proprietary Matter") which Executive has acquired or become acquainted with or
will acquire or become acquainted with, whether developed by himself or by
others, including, but not limited to, any trade secrets, confidential or secret
designs, processes, formulae, software or computer programs, plans, devices or
material (whether or not patented or patentable, copyrighted or copyrightable)
directly or indirectly useful in any aspect of the business of the Company, any
confidential customer, distributor or supplier lists of the Company, any
confidential or secret development or research work of the Company, or any other
confidential, secret or non-public aspects of the business of the Company.
Executive acknowledges that the Proprietary Matter constitutes a unique and
valuable asset of the Company acquired at great time and expense by the Company,
and that any disclosure or other use of the Proprietary Matter other than for
the sole benefit of the Company would be wrongful and would cause irreparable
harm to the Company. Both during and after the term of this Agreement, Executive
will refrain from any acts or omissions that would reduce the value of
Proprietary Matter to the Company. The foregoing obligations of confidentiality,
however, shall not apply to any knowledge or information which is now published
or which subsequently becomes generally publicly known, other than as a direct
or indirect result of the breach of this Agreement by Executive nor shall it
apply to any knowledge or information Executive had prior to the execution of
this Agreement.
7. Ventures. If, during the term of this Agreement, Executive is
engaged in or associated with the planning or implementing of any project,
program, or venture involving the Company and a third party or parties, all
rights in the project, program, or venture shall belong to the Company and shall
constitute a corporate opportunity belonging exclusively to the Company. Except
as expressly approved in writing by the Company, Executive shall not be entitled
to any interest in such project, program, or venture or to any commission,
finder's fee or other compensation in connection therewith, other than the
compensation to be paid to Executive as provided in this Agreement.
8. Non-Solicitation of Executives. During Executive's employment by the
Company hereunder and for the one (1) year period following the termination of
such employment for any reason, Executive shall not, either directly or
indirectly, on his own behalf or in the service or on behalf of others solicit,
divert or hire away, or attempt to solicit, divert or hire away any person then
employed full time by the Company.
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9. Non-Competition. Executive agrees that he shall not, during the term
of this Agreement, and for a period of one (1) year thereafter:
(i) directly or indirectly own, engage in, manage,
operate, join, control, or participate in the
ownership, management, operation, or control of, or
be connected as a stockholder, partner, member, joint
venturer, director, officer, Executive, consultant,
agent, beneficiary, or otherwise with, any
corporation, limited liability company, partnership,
sole proprietorship, association, business, trust, or
other organization, entity or individual which
develops, manufactures or markets products or
performs services which are competitive with or
similar to the products or services of the Company or
its subsidiaries; provided, that Executive may own,
directly or indirectly, securities of any entity
traded on any national securities exchange or listed
on the National Association of Securities Dealers
Automated Quotation System if Executive does not,
directly or indirectly, own 1% or more of any class
of equity securities, or securities convertible into
or exercisable or exchangeable for 1% or more of any
class of equity securities, of such entity;
(ii) call upon, solicit, direct, take away, provide
products or services to, or attempt to call upon,
solicit, direct, take away or provide products or
services to, or accept any orders of business from
any customers or clients of the Company for products
or services which are competitive with or similar to
the products or services of the Company or its
subsidiaries.
(iii) directly or indirectly request or advise any
present or future supplier, service provider or
financial resource of the Company to withdraw,
curtail or cancel the furnishing of such service or
resource to the Company.
10. Confidentiality.
10.1 Confidentiality. In the course of performing services
hereunder on behalf of the Company and its affiliates, Executive has had and
from time to time will have access to Confidential Information. Executive agrees
(i) to hold the Confidential Information in strict confidence, (ii) not to
disclose the Confidential Information to any person (other than in the regular
business of the Company or its affiliates), and (iii) not to use, directly or
indirectly, any of the Confidential Information for any purpose other than on
behalf of the Company and its affiliates. All documents, records, data,
apparatus, equipment and other physical property, whether or not pertaining to
Confidential Information, that are furnished to Executive by the Company or are
produced by Executive in connection with Executive's employment will be and
remain the sole property of the Company. Upon the termination of Executive's
employment with the Company for any reason and as and when otherwise requested
by the Company, all Confidential Information (including, without limitation, all
data, memoranda, customer lists, notes, programs and other papers and items, and
reproductions thereof relating to the foregoing matters) in Executive's
possession or control, shall be immediately returned to the Company.
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10.2 Confidential Information. As used in this Agreement, the
term "Confidential Information" shall mean information belonging to the Company
of value to the Company or with respect to which Company has right in the course
of conducting its business and the disclosure of which could result in a
competitive or other disadvantage to the Company. Confidential Information
includes information, whether or not patentable or copyrightable, in written,
oral, electronic or other tangible or intangible forms, stored in any medium,
including, by way of example and without limitation, trade secrets, ideas,
concepts, designs, configurations, specifications, drawings, blueprints,
diagrams, models, prototypes, samples, flow charts processes, techniques,
formulas, software, improvements, inventions, domain names, data, know-how,
discoveries, copyrightable materials, marketing plans and strategies, sales and
financial reports and forecasts, customer lists, studies, reports, records,
books, contracts, instruments, surveys, computer disks, diskettes, tapes,
computer programs and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or facilities) which have
been discussed or considered by the management of the Company. Confidential
Information includes information developed by Executive in the course of
Executive's employment by the Company, as well as other information to which
Executive may have access in connection with Executive's employment.
Confidential Information also includes the confidential information of others
with which the Company has a business relationship. Notwithstanding the
foregoing, Confidential Information does not include information in the public
domain, unless due to breach of Executive's duties under Section 10.1. 11.
Assignment. This Agreement shall not be assignable, in whole or in part, by
either party without the written consent of the other party, except that the
Company may, without the consent of Executive, assign its rights and obligations
under this Agreement to any corporation, firm or other business entity (i) with
or into which the Company may merge or consolidate, or (ii) to which the Company
may sell or transfer all or substantially all of its assets or of which fifty
percent (50%) or more of the equity investment and of the voting control is
owned, directly or indirectly, by, or is under common ownership with, the
Company. Upon such assignment by the Company, the Company shall obtain the
assignees' written agreement enforceable by Executive to assume and perform, and
after the date of such assignment, the terms, conditions, and provisions imposed
by this Agreement upon the Company. After any such assignment by the Company and
such written agreement by the assignee, the Company shall be discharged from all
further liability hereunder and such assignee shall thereafter be deemed to be
the Company for the purposes of all provisions of this Agreement including this
section.
12. Indemnification. The Company shall indemnify Executive as provided
in the Delaware General Corporations Code, Company's Charter or Bylaws in effect
at the commencement of this Agreement. The scope of indemnification to which
Executive is entitled shall not be diminished, but may be expanded by the
Company, by amendment of the Company's Bylaws, Articles of Incorporation or
otherwise. Executive shall indemnify and hold the Company harmless from all
liability for loss, damages or injury resulting from the negligence or
misconduct of Executive.
13. Liability Insurance. The Company shall provide, at its sole cost
and expense, under which Executive shall be covered, Directors and Officers
Liability Insurance and Errors and Omissions Liability Insurance in coverage
amounts not less than $10 million, respectively.
14. Miscellaneous.
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14.1 Preparation of Agreement. This Agreement was prepared by
the Company solely on behalf of such party. Each party acknowledges that: (i) he
or it had the advice of, or sufficient opportunity to obtain the advice of,
legal counsel separate and independent of legal counsel for any other party
hereto; (ii) the terms of the transactions contemplated by this Agreement are
fair and reasonable to such party; and (iii) such party has voluntarily entered
into the transactions contemplated by this Agreement without duress or coercion.
Each party further acknowledges that such party was not represented by the legal
counsel of any other party hereto in connection with the transactions
contemplated by this Agreement, nor was he or it under any belief or
understanding that such legal counsel was representing his or its interests.
Except as expressly set forth in this Agreement, each party shall pay all legal
and other costs and expenses incurred or to be incurred by such party in
negotiating and preparing this Agreement; in performing due diligence or
retaining professional advisors; in performing any transactions contemplated by
this Agreement; or in complying with such party's covenants, agreements and
conditions contained herein. Each party agrees that no conflict, omission or
ambiguity in this Agreement, or the interpretation thereof, shall be presumed,
implied or otherwise construed against any other party to this Agreement on the
basis that such party was responsible for drafting this Agreement.
14.2 Cooperation. Each party agrees, without further
consideration, to cooperate and diligently perform any further acts, deeds and
things, and to execute and deliver any documents that may be reasonably
necessary or otherwise reasonably required to consummate, evidence, confirm
and/or carry out the intent and provisions of this Agreement, all without undue
delay or expense.
14.3 Governing Law. This Agreement is made under
and shall be government by and construed in accordance with the laws of the
State of California.
14.4 Entire Agreement.This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understandings with respect to such subject matter, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
14.5 Legal Proceedings. Should any party institute or should
the parties otherwise become a party to any action or proceeding to enforce or
interpret this Agreement, the prevailing party in any such action or proceeding
shall be entitled to receive from the non-prevailing party all costs and
expenses of prosecuting or defending the action or proceeding. This Agreement
and the rights of each party under this Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the laws of the
State of California.
14.6 Withholding Taxes. The Company shall undertake to make
deductions, withholdings and tax reports with respect to payments and benefits
under this Agreement to the extent that it reasonably and in good faith believes
that it is required to make such deductions, withholdings and tax reports.
Payments under this Agreement shall be in amounts net of any such deductions or
withholdings. Nothing in this Agreement shall be construed to require the
Company to make any payments to compensate the Executive for any adverse tax
effect associated with any payments or benefits or for any deduction or
withholding from any payment or benefit.
14.7 Amendments. No amendment or modification of this
Agreement shall be deemed effective unless made in writing signed by the parties
hereto.
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14.8 No Wavier. No term or condition of this Agreement shall
be deemed to have been waived nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
14.9 Severability. To the extent any provision of this
Agreement shall be invalid or unenforceable, it shall be considered deleted here
from and the remainder of such provision and of this Agreement shall be
unaffected and shall continue in full force and effect.
14.10 Notices. Any and all notices, requests or other
communications required or permitted in or by any provision of this Agreement
shall be in writing and may be delivered personally or by certified mail
directed to the addressee at such person's or entity's last known post office
address, and if given by certified mail, shall be deemed to have been delivered
when deposited in such, mail postage prepaid.
This Agreement is executed on the date first written above at Westlake,
California.
Company: Executive:
QT 5, Inc.
By: _________________________ ___________________________
▇▇▇▇ ▇▇ ▇▇▇▇, Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
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