SEVERANCE AND RELEASE AGREEMENT
|
SEVERANCE
AND RELEASE
AGREEMENT
|
J.
XXXXXXX XXXXXX
and
OXFORD
MEDIA INC.
a
Nevada Corporation
October
30, 2006
SEVERANCE
AND RELEASE AGREEMENT
I
PARTIES
THIS
SEVERANCE AND RELEASE AGREEMENT
(the
“Agreement”) is entered into this 30th
day of
October, 2006 (“Effective Date”), by and between J. XXXXXXX XXXXXX, an
individual residing in the State of California (“Xxxxxx”); and,
OXFORD
MEDIA, INC., a Nevada corporation (“OXMI”). Xxxxxx and OXMI are sometimes
referred to collectively herein as the “Parties”, and each individually as a
“Party”.
II
RECITALS
X. Xxxxxx
was employed by OXMI in order to render services generally described as
Executive Vice President of Sales.
X. Xxxxxx’x
employment with OXMI was subject to a written Executive Employment Agreement
dated 20 March 2006 (the “Employment Agreement”), providing terms for
termination of Xxxxxx’x employment with OXMI for both cause and without cause. A
true and correct copy of the Employment Agreement is attached hereto as Exhibit
“A”.
C. The
Parties mutually desire to terminate Xxxxxx’x employment relationship without
dispute, effective as of the Effective Date of this Agreement. OXMI
conditionally offers to do so, provided Xxxxxx enters into and complies with
all
of the terms and conditions of this Agreement, including but not limited
to the
provision of assurances to OXMI that he will not assert any claims of any
kind
against OXMI and specifically identified related parties, whether arising
out of
(i) Xxxxxx’x employment with OXMI, (ii) Xxxxxx’x status as a shareholder of
OXMI, or any other relationship or claim of right whatsoever arising out
of or
any manner or form related to the relationship between the Parties, and that
Xxxxxx will continue to abide by and honor his obligations to maintain and
protect OXMI’s, and OXMI’s affiliates, subsidiaries, predecessors, parents,
related businesses and entities’ Trade Secret and Confidential Information, in
exchange for the valid consideration to be transferred by OXMI
hereunder.
D. The
Parties recognize and acknowledge the existence, validity, and application
of
(i) that certain convertible note (the “Convertible Note”) of OXMI dated 30
September 2004 in favor of Xxxxxx in the original principal amount of Four
Hundred Twenty Thousand Dollars ($420,000); and, (ii) the Supplemental Agreement
dated 30 March 2005 between the Parties (the “Supplemental
Agreement”).
E. This
Agreement shall specifically encompass all claims and related factual and
legal
circumstances noted above (collectively, the “Claims”). As such, it is the
intent of the Parties that their respective rights and obligations to each
other
from this day forward shall be determined exclusively under the terms of
this
Agreement, and that this Agreement supersedes, amends and restates any other
employment agreements between the Parties.
INITIALS:
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F.
All
Parties are desirous of settling the Claims and releasing each other from
all
future liability.
G. NOW,
THEREFORE,
in
consideration of the promises and the mutual covenants contained herein,
and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Parties, intending to be legally bound, hereby agree
as
follows:
III
RELEASE
3.1 Exchange.
In
consideration of the execution of this Agreement, the payments and obligations
described below to be made by OXMI, the satisfaction of the obligations of
each
of the respective Parties hereunder, the actions of the Parties provided
below
with regard to the Supplemental Agreement, and other good and valuable
consideration, the receipt and value of which is hereby confirmed, Xxxxxx
on the
one hand, and OXMI on the other hand, shall hereby fully, finally and forever
settle and release each other from any and all claims, losses, fines, penalties,
damages, demands, judgments, debts, obligations, interests, liabilities,
causes
of action, breaches of duty, costs, expenses, judgments and injunctions of
any
nature whatsoever, whether known or unknown, arising out of or related to
the
relationships between the Parties prior to the Effective Date, specifically
including, but not limited to, the Claims (cumulatively referred to as the
“Released Claims”).
3.2 Payments
by OXMI.
As
full, complete, and final payment in settlement of all Released Claims under
this Agreement, OXMI shall pay Xxxxxx as follows:
3.2.1. Convertible
Note Accrued Interest.
Upon
execution of this Agreement, OXMI shall pay to Xxxxxx the sum of Sixteen
Thousand Eight Hundred Dollars ($16,800) as full and final payment of all
any
and all accrued and owing interest under the Convertible Note.
3.2.2.
Severance
Payment.
OXMI
shall pay to Xxxxxx the sums and benefits identified in, and in accordance
with,
Section 6.6 of the Employment Agreement, entitled “Termination by Employer
without Cause” which states,
“6.6
Termination
By Employer Without Cause.”
6.6.1.
Termination
Event. The
employment of executive shall terminate immediately upon delivery to Executive
of written notice of termination by Employer, which shall be deemed to be
‘without cause’ unless termination is expressly stated to be pursuant to
Sections 6.1 or 6.2.
6.6.2.
Result
of
Termination. Upon termination of this Agreement pursuant to this Section
6.6,
Employer shall pay to Executive, on the Termination Date, an amount equal
to (i)
all accrued and unpaid salary and other compensation payable to Executive
by
Employer with respect to services rendered by Executive to Employer through
the
Termination Date; and, (ii) an amount equal to twelve (12) months salary
based
upon the then existing salary of Executive, payable in the same manner as
salary
would have been paid to Executive had he continued to work for Employer
hereunder. In addition to the foregoing, and notwithstanding the provisions
of
any other agreement to the contrary, Employer shall continue to provide to
Executive all other benefits that would otherwise be payable to Executive
pursuant to Section 5.1 hereof for the twelve (12) months following the
Termination Date.”
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The
severance payment under said Section 6.6 will be paid to Xxxxxx in equal
installments in accordance with the normal payroll practices of OXMI and
consistent with the manner in which Xxxxxx was paid while employed with OXMI.
OXMI will
withhold required deductions from the payments hereunder, including deductions
for applicable state and federal taxes, social security, all other standard
deductions, and/or any specific deductions applicable to Xxxxxx.
3.3 Conversion
of Convertible Note.
Immediately upon execution of this Agreement, and with no further action
required of Xxxxxx, the Convertible Note shall be deemed converted in accordance
with the terms and conditions of the Supplemental Agreement. OXMI shall issue
to
Xxxxxx a share certificate for two hundred ten thousand (210,000) shares
of OXMI
common stock, free and clear of any Rule 144 restrictions, with the Convertible
Note thereafter being deemed converted and of no further force and effect.
3.4 Complete
Release and Hold Harmless.
All
Parties, for themselves, itself, their heirs, executors, administrators,
successors, and assigns, hereby agree to release, discharge and hold harmless
each other and the other’s directors, employees, shareholders, managers,
officers, members, affiliates, subsidiaries, predecessors, parents, related
businesses and entities, attorneys and each of their successors and assigns
from
any and all known and unknown claims of every nature and kind whatsoever
which
they now or hereafter may have with respect to each other and/or the Claims,
notwithstanding Section 1542 of the California Civil Code, which provides
that:
"A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND WHICH
IF
KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
All
rights under §1542 of the California Civil Code, as well as under any other
statutes or common law principles of similar effect, are hereby expressly,
fully, knowingly, intentionally and forever waived and relinquished by the
Parties. Each Party hereby acknowledges that each understands the significance
and consequences of such waiver under §1542 of the California Civil Code, and
that each had the opportunity to seek the advice of legal counsel of its
choice.
3.5 Scope
of Xxxxxx’x Release.
Xxxxxx
further expressly understands that the rights being waived hereunder
specifically include, but are not limited to, any and all claims under (as
any
of the same may be amended from time to time) Title VII of the Civil Rights
Act
of 1964; Sections 1981 and 1983 of the Civil Rights Act of 1866; Equal Pay
Act;
Americans with Disabilities Act; Age Discrimination in Employment Act; Employee
Retirement Income Security Act; Fair Labor Standards Act; Family and Medical
Leave Act; WARN Act; the United States and California Constitutions; California
Fair Employment and Housing Act; California Family Rights Act; California
Labor
Code; any applicable California Industrial Welfare Commission Wage Order;
with
respect to the foregoing constitutional and statutory references, any comparable
constitution, statute or regulation of any other state; all claims of
discrimination or harassment on account of race, sex, sexual orientation,
national origin, religion, disability, age, pregnancy, veteran’s status, or any
other protected status under any federal or state statute; any federal, state
or
local law enforcing express or implied employment contracts or covenants
of good
faith and fair dealing; any federal, state or local laws providing recourse
for
alleged wrongful discharge or constructive discharge, termination in violation
of public policy, tort, physical or personal injury, emotional distress,
fraud,
negligent misrepresentation, defamation, and any similar or related claim;
together with any claim under any other local, state or federal law or
constitution governing employment, discrimination or harassment in employment,
or the payment of wages or benefits, whether or not now known, suspected
or
claimed, which Xxxxxx ever had, now has, or may claim to have in the future
as
of the date of this Agreement. This
Agreement and the scope of the release by Xxxxxx hereunder expressly includes
any statutory claims, including, but not limited to, claims under the Age
Discrimination in Employment Act (the “ADEA”) and the Older Workers’ Benefit
Protection Act (“OWBPA”), except that this Agreement does not waive rights or
claims under the ADEA which may arise after the Effective Date of this
Agreement.
INITIALS:
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3.6 After
Acquired Information.
The
Parties acknowledge that they may hereafter discover information, facts,
or
circumstances different from or in addition to those which they now know
or
believe to be true. Except as otherwise provided herein to the contrary,
this
Agreement shall remain in full force and effect in all respects notwithstanding
such discovery, and the Parties expressly accept and assume the risk of such
possible additions to or differences from those facts now known or believed
to
be true.
3.7 Enforceability.
The
enforceability of this Agreement is conditioned upon each respective Party
satisfying its respective obligations hereunder.
3.8 Assignment
of Released Claims.
The
Parties hereby covenant that none of the Released Claims has been assigned
to
any other person, and that no other person has any interest in any of the
Released Claims. In the event any other person asserts any interest with
respect
to the Released Claims, then the Party breaching this covenant shall fully
defend and indemnify the Party against whom such claim is asserted for any
and
all damages, costs, and fees of any kind.
3.9 Specific
Exclusion.
It is
expressly understood that the release contained in this Agreement does not
encompass or include any of the following:
(a) The
promises and obligations of the Parties under this Agreement, specifically
including but not limited to the provisions of Article V, below.
(b) The
promises and obligations of Xxxxxx under the Employment Agreement intended
to
survive termination, as further reflected in Section 5.5, below.
(c) The
intentionally willful, tortious, or criminal acts of either Party after the
execution of this Agreement.
INITIALS:
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3.10
No
Admission of Liability.
Notwithstanding the terms and conditions of this Agreement, execution hereof
shall in no manner or form constitute the admission of liability or
responsibility of either Party in respect to the Claims.
IV
EMPLOYMENT
RELATIONSHIP
4.1 Voluntary
Termination.
The
Parties agree that Xxxxxx voluntarily accepted termination of his employment
with OXMI, and that his last day of employment by and with OXMI shall be
deemed
to be the 26th
day of
October, 2006 (the “Termination Date”). As of the Termination Date and as
additional consideration hereunder, Xxxxxx voluntarily resigned any and all
positions he held in and with OXMI, and the Employment Agreement shall be
deemed
to be terminated, except for those provisions contained therein which
specifically are to survive termination.
4.2 Payment
of Amounts Owed.
The
payments to be made by OXMI pursuant to Section 3.2.2. hereunder shall represent
all amounts due Xxxxxx for unpaid and accrued wages and benefits, if applicable,
including but not limited to sick leave, vacation time, severance, and all
other
amounts which may be due to Xxxxxx from OXMI hereafter, and Xxxxxx shall
neither
make, nor be entitled to any other amounts. Group
medical plan coverage of Xxxxxx, if applicable, will be maintained by OXMI
and
terminate pursuant to the terms of this Agreement,
unless
Xxxxxx makes a proper election to continue such coverage under COBRA, in
which
case all such benefits shall be at his sole cost and expense. Any and all
other
coverage of any kind extending beyond the terms and conditions of this Agreement
will be solely at the expense of Xxxxxx and subject to the terms and conditions
of the documents governing the medical plan. It is the sole responsibility
of
Xxxxxx to comply with said terms and conditions, and OXMI will have no liability
for the future failure of Xxxxxx to acquire COBRA coverage.
4.3 Express
Waiver of Any Other Amounts.
Xxxxxx
hereby acknowledges that he is not entitled to receive, and will not claim,
any
damages, rights, benefits, or compensation other than as expressly set forth
in
this Agreement. Specifically, no vacation, benefits, earned or paid time
off, or
other accrual-based benefits of any kind (“Post Termination Benefits) will
accrue, vest or otherwise be credited to Xxxxxx after the Effective Date.
Xxxxxx
expressly waives, foregoes and denies any right or claim to such Post
Termination Benefits and acknowledges that no compensation, remuneration
or
other form of payment or benefit is forthcoming based thereon.
V
CONFIDENTIALITY
AND BUSINESS RELATED PROVISIONS
5.1 Non-Disclosure
of Business Information.
Xxxxxx
shall not at any time, either directly or indirectly use, divulge, disclose
or
communicate to any person, firm, or corporation, in any manner whatsoever,
any
confidential information concerning any matters affecting or relating to
the
business of OXMI, including, but not limited to, the names, buying habits,
or
practices of any of its customers, its marketing methods and related data,
the
names of any of its vendors or suppliers, costs of materials, the prices
it
obtains or has obtained or at which it sells or has sold its products or
services, manufacturing and sales, costs, lists or other written records
used in
OXMI's business, compensation paid to employees and other terms of employment,
or any other confidential information of, about or concerning the business of
OXMI, its manner of operation, or other confidential data of any kind, nature,
or description. The Parties hereby stipulate that as between them, the foregoing
matters are important, material, and confidential trade secrets and affect
the
successful conduct of the OXMI's business and its goodwill, and that any
breach
of any term of this paragraph is a material breach of this
Agreement.
INITIALS:
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5.2 Non-Solicitation
of Employees.
During
and continuing for a period of three (3) years after the Effective Date of
this
Agreement, Xxxxxx shall not, directly or indirectly, cause or induce, or
attempt
to cause or induce, any employee of OXMI to terminate his or her employment
with
OXMI, as such employment exists at any time following the Effective
Date.
5.3 Return
of Materials.
Upon
execution of this Agreement Xxxxxx shall
promptly deliver to OXMI all equipment, notebooks, documents, memoranda,
reports, files, samples, books, correspondence, lists, computer disks and
data
bases, computer programs and reports, computer software, and all other written,
graphic and computer generated or stored records relating to the business
of
OXMI which are or have been in the possession or under the control of
Xxxxxx.
5.4 No
Disparaging Remarks.
Neither
Party shall make, or
cause
to be made, any statement or communicate any information (whether oral or
written) that disparages or reflects negatively on the other or any of the
parties released hereunder. Nothing
herein shall preclude either Party from complying with a subpoena or other
lawful process.
5.5 Nondisclosure
of Trade Secret/Confidential Information.
Xxxxxx
shall not at any time, whether during or subsequent to the execution of this
Agreement, unless specifically consented to in writing by OXMI , either directly
or indirectly use, divulge, disclose or communicate to any person, firm,
or
corporation, in any manner whatsoever, any Confidential Information concerning
any matters affecting or relating to the business of OXMI, including, but
not
limited to, the names, buying habits, or practices or Confidential Information
of any of its customers, Customer Accounts, its marketing methods and related
data, the names of any of its vendors or suppliers, costs of materials, the
prices it obtains or has obtained or at which it sells or has sold its products
or services, manufacturing and sales, costs, lists or other written records
used
in OXMI’s business, operations, production, facilities, equipment, machinery,
processes, formulas, engineering, programs, methods, intellectual property,
patents, trademarks, licensed marks, trade names, service marks (collectively,
“Intellectual Property”), compensation paid to employees and other terms of
employment, or any other Confidential Information of, about or concerning
the
business of OXMI , its manner of operation, or other confidential data of
any
kind, nature, or description. The Parties hereby stipulate that as between
them,
all of the foregoing matters shall be referred to as “Confidential Information”,
and are important, material, and confidential business “Trade Secrets” and
affect the successful conduct of the OXMI’s business and its goodwill, and that
any breach of any term of this Section 5 is a material breach of this Agreement
giving rise to immediate termination thereof.
5.5.1.
“Customer
Accounts”.
As used
herein, the term “Customer Accounts” shall mean all accounts of OXMI and its
affiliates, related businesses, predecessors, successors, subsidiaries,
licensees, and business associations, whether now existing or hereafter
developed or acquired, including any and all accounts developed or acquired
by
or through the efforts of Xxxxxx. Without regard to whether any of the matters
in this Agreement would otherwise be deemed confidential, material, or
important, the Parties hereto stipulate that as between them the matters
stated
as Confidential Information in this Agreement are confidential, material,
and
important and gravely affect the effective and successful conduct of the
business of OXMI or its goodwill and that any breach of the terms of this
Section 5 will be a material breach of this Agreement and shall constitute
grounds for immediate termination thereof.
INITIALS:
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5.5.2. Misuse
of Confidential Information.
In the
event that Xxxxxx breaches this Agreement and releases OXMI Confidential
Information or Trade Secrets, Xxxxxx shall fully indemnify, defend, pay,
save,
and hold OXMI harmless from any and all claims, costs, judgments, and damages,
including reasonable attorney's fees and expenses of council, which are incurred
as a direct or indirect consequence thereof.
5.5.3. Proprietary
Rights.
Xxxxxx
acknowledges OXMI’s exclusive right, title and interest in and to its
Intellectual Property, Confidential Information, Trade Secrets and registrations
and the goodwill of the business symbolized thereby (collectively, “Proprietary
Rights”) and will not, at any time, do or cause to be done any act or thing
contesting or in any way impairing or tending to impair any part of OXMI’s
right, title, ownership and interest therein.
VI
ADDITIONAL
REPRESENTATIONS AND OBLIGATIONS
6.1 Consideration
Period.
This
Agreement has been delivered to Xxxxxx
on
the 30th
day of
October, 2006. Xxxxxx shall have twenty-one (21) days to consider and sign
this
Agreement. Pursuant to Section 6.3, below, Xxxxxx has been encouraged to
seek
legal counsel to consider and review this Agreement. To the extent Xxxxxx
does
not use the full 21-days within which to consider signing this Agreement,
Xxxxxx’x signature hereto shall serve as Xxxxxx’x express written waiver of this
period and of any and all claims, rights, or causes of action of any kind
against OXMI of any kind arising out of Xxxxxx’x voluntary decision to execute
this Agreement and waive this consideration period.
6.2 Revocation
Period.
Upon
execution of this Agreement, Xxxxxx shall have seven (7) days to revoke the
Agreement. Any such revocation by Xxxxxx must be in writing and delivered
to
OXMI pursuant to the notice requirements under Article VII, below. If timely
revoked by Xxxxxx, this Agreement will not be effective or enforceable, and
all
Parties shall be immediately released of all obligations hereunder, with
no
affect on any of the claims each Party may otherwise possess.
6.3 Independent
Legal Counsel.
The
Parties to this Agreement warrant, represent, and agree that in executing
this
Agreement, they do so with full knowledge of the rights each may have with
respect to the other Party, and that each has received, or has had the
opportunity to receive, independent legal advice as to these rights. Each
of the
Parties has executed this Agreement with full knowledge of these rights,
and
under no fraud, coercion, duress, or undue influence.
INITIALS:
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6.4 Waiver
of Age Discrimination Claim.
Xxxxxx
understands that the release contained in this Agreement had to meet certain
requirements to constitute a valid release of any claims under the Age
Discrimination in Employment Act (“ADEA”), and Xxxxxx hereby represents that all
such requirements were in fact satisfied. These requirements required the
following, each of which has in fact been satisfied: (i) execution of this
Agreement by Xxxxxx has been knowing and voluntary, and free from duress,
coercion and mistake of fact; (ii) this Agreement is in writing and is
understandable; (iii) this Agreement has waived current ADEA claims explicitly;
(iv) this Agreement has not waived future ADEA claims; (v) the release by
Xxxxxx
hereunder of ADEA claims has been paid for with something to which Xxxxxx
was
not already entitled; (vi) this Agreement has advised Xxxxxx to consult an
attorney; (vii) this Agreement has given Xxxxxx twenty-one (21) days to consider
the ADEA release contained in this Agreement; and, (viii) this Agreement
has
given Xxxxxx seven (7) days within which to revoke the ADEA release contained
in
this Agreement after execution.
VII
ADDITIONAL
PROVISIONS
7.1 Executed
Counterparts.
This
Agreement may be executed in any number of counterparts, all of which when
taken
together shall be considered one and the same agreement, it being understood
that all Parties need not sign the same counterpart. In the event that any
signature is delivered by fax or by e-mail delivery of a “.pdf” format data
file, such signature shall create a valid and binding obligation of the Party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or “.pdf” signature page were an original
thereof. Each of the Parties hereby expressly forever waives any and all
rights
to raise the use of a fax machine or E-Mail to deliver a signature, or the
fact
that any signature or agreement or instrument was transmitted or communicated
through the use of a fax machine or E-Mail, as a defense to the formation
of a
contract.
7.2 Successors
and Assigns.
Except
as expressly provided in this Agreement, each and all of the covenants, terms,
provisions, conditions and agreements herein contained shall be binding upon
and
shall inure to the benefit of the successors and assigns of the Parties
hereto.
7.3 Article
and Section Headings.
The
article and section headings used in this Agreement are inserted for convenience
and identification only and are not to be used in any manner to interpret
this
Agreement.
7.4 Severability.
Each
and every provision of this Agreement is severable and independent of any
other
term or provision of this Agreement. If any term or provision hereof is held
void or invalid for any reason by a court of competent jurisdiction, such
invalidity shall not affect the remainder of this Agreement.
7.5 Governing
Law.
This
Agreement shall be governed by the laws of the State of California, without
giving effect to any choice or conflict of law provision or rule (whether
of the
State of California or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of California. If any
court
action is necessary to enforce the terms and conditions of this Agreement,
the
Parties hereby agree that the Superior Court of California, County of Orange,
shall be the sole jurisdiction and venue for the bringing of such action.
INITIALS:
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7.6 Entire
Agreement.
This
Agreement, and all references, documents, or instruments referred to herein,
contains the entire agreement and understanding of the Parties hereto in
respect
to the subject matter contained herein. The Parties have expressly not relied
upon any promises, representations, warranties, agreements, covenants, or
undertakings, other than those expressly set forth or referred to herein.
This
Agreement supersedes any and all prior written or oral agreements,
understandings, and negotiations between the Parties with respect to the
subject
matter contained herein.
7.7 Additional
Documentation.
The
Parties hereto agree to execute, acknowledge, and cause to be filed and
recorded, if necessary, any and all documents, amendments, notices, and
certificates which may be necessary or convenient under the laws of the State
of
California.
7.8 Attorney’s
Fees.
If any
legal action (including arbitration) is necessary to enforce the terms and
conditions of this Agreement, the prevailing Party shall be entitled to costs
and reasonable attorney’s fees.
7.9 Amendment.
This
Agreement may be amended or modified only by a writing signed by all
Parties.
7.10
Remedies.
7.10.1.
Specific
Performance.
The
Parties hereby declare that it is impossible to measure in money the damages
which will result from a failure to perform any of the obligations under
this
Agreement. Therefore, each Party waives the claim or defense that an adequate
remedy at law exists in any action or proceeding brought to enforce the
provisions hereof.
7.10.2.
Cumulative.
The
remedies of the Parties under this Agreement are cumulative and shall not
exclude any other remedies to which any person may be lawfully entitled.
7.11
Waiver.
No
failure by any Party to insist on the strict performance of any covenant,
duty,
agreement, or condition of this Agreement or to exercise any right or remedy
on
a breach shall constitute a waiver of any such breach or of any other covenant,
duty, agreement, or condition.
7.12
Assignability.
This
Agreement is not assignable by either Party without the expressed written
consent of all Parties.
7.13
Notices.
All
notices, requests and demands hereunder shall be in writing and delivered
by
hand, by facsimile transmission, by mail, by telegram or by recognized
commercial over-night delivery service (such as Federal Express, UPS or DHL),
and shall be deemed given (a) if by hand delivery, upon such delivery; (b)
if by
facsimile transmission, upon telephone confirmation of receipt of same; (c)
if
by mail, forty-eight (48) hours after deposit in the United States mail,
first
class, registered or certified mail, postage prepaid; (d) if by telegram,
upon
telephone confirmation of receipt of same; or, (e) if by recognized commercial
over-night delivery service, upon such delivery.
7.14
Time.
All
Parties agree that time is of the essence as to this Agreement.
INITIALS:
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7.15
Agreement
to Arbitrate.
THE
PARTIES HEREBY AGREE TO WAIVE UNCONDITIONALLY AND IRREVOCABLY THE RIGHT TO
TRIAL
BY JURY IN CONNECTION WITH ANY LITIGATION THAT MAY AT ANY TIME, DIRECTLY
OR
INDIRECTLY, ARISE OUT OF OR IN CONNECTION WITH ANY ASPECT OF THE RELATIONSHIP
BETWEEN XXXXXX AND OXMI, ITS OFFICERS, AGENTS AND EMPLOYEES, INCLUDING BUT
NOT
LIMITED TO THE TERMINATION OF XXXXXX’X EMPLOYMENT, RIGHTS AND DUTIES AS A
SHAREHOLDER, OR YOUR EMPLOYMENT WITH OXMI, TO THE EXTENT LEGALLY ALLOWABLE.
This
means that both Parties irrevocably, unconditionally, and exclusively agree
that
any controversy or claim arising out of or relating to Xxxxxx’x employment which
cannot be otherwise resolved pursuant to the terms hereof, or any dispute
between the Parties, shall be resolved by binding arbitration in Orange County,
California. The arbitration shall be administered by Judicial Arbitration
and
Mediation Services, the Company (“JAMS”), or another mutually agreed upon
neutral service, in its Orange County office. The arbitrator shall be a retired
Superior Court Judge of the State of California affiliated with JAMS. Judgment
upon the award rendered by the arbitrator may be entered and enforced in
any
court having jurisdiction thereof. THE AWARD OF THE ARBITRATOR SHALL BE BINDING,
FINAL, AND NON-APPEALABLE. The arbitrator shall not have any power to alter,
amend, modify, or change any of the terms of this Agreement, the Employment
Agreement, the Convertible Note, or the Supplemental Agreement, or to grant
any
remedy which is either prohibited by the terms of this Agreement or not
available in a court of law. Any action brought to enforce the provisions
of
this section shall be brought in the Orange County Superior Court. All other
questions regarding Xxxxxx’x employment, including but not limited to the
interpretation, enforcement of this Agreement (other than the right to
arbitrate), and the rights, duties and liabilities of the parties to Xxxxxx’x
employment shall be governed by California law. The costs of the arbitration,
including any JAMS administration fee, and arbitrator’s fee, and costs of the
use of facilities during the hearings, shall be borne by OXMI; however, the
Parties shall be solely responsible for their own attorney’s fees and costs.
Attorney’s fees and costs may be awarded to the prevailing party at the
discretion of the arbitrator as part of the award. In any arbitration proceeding
conducted pursuant to the provisions of this Agreement, both parties shall
have
the right to conduct all discovery, to call witnesses and to cross-examine
the
opposing party’s witnesses, either through legal counsel, expert witnesses or
both, to the fullest extent allowed by California law, as though before any
Court or tribunal of the State. Both Parties expressly understand and agree
on
behalf of their heirs, executors, administrators, successors, and assigns,
that
the rights being waived hereunder specifically include, but are not limited
to,
any and all civil claims in State or Federal Courts under (as any of the
same
may be amended from time to time) Title VII of the Civil Rights Act of 1964;
Sections 1981 and 1983 of the Civil Rights Act of 1866; Equal Pay Act; Americans
with Disabilities Act; Age Discrimination in Employment Act; Federal or State
Retirement Income Security Acts; Fair Labor Standards Act; Family and Medical
Leave Act; WARN Act; the United States and California Constitutions; California
Fair Employment and Housing Act; California Family Rights Act; California
Labor
Code; any applicable California Industrial Welfare Commission Wage Order;
with
respect to the foregoing constitutional and statutory references, any comparable
constitution, statute or regulation of any other state; all claims of
discrimination or harassment on account of race, sex, sexual orientation,
national origin, religion, disability, age, pregnancy, veteran’s status, or any
other protected status under any federal or state statute; any federal, state
or
local law enforcing express or implied employment contracts or covenants
of good
faith and fair dealing; any federal, state or local laws providing recourse
for
alleged wrongful discharge or constructive discharge, termination in violation
of public policy, tort, physical or personal injury, emotional distress,
fraud,
negligent misrepresentation, defamation, and any similar or related claim;
together with any claim under any other local, state or federal law or
constitution governing employment, discrimination or harassment in employment,
or the payment of wages or benefits, which each Party may have in any way
related to Xxxxxx’x employment, to the extent legally allowable. This
Agreement and the scope of the release hereunder expressly includes any
statutory claims, including, but not limited to, claims under the Age
Discrimination in Employment Act (the “ADEA”) and the Older Workers’ Benefit
Protection Act (“OWBPA”), to the extent legally allowable. Although
the intent of this Agreement is to benefit both Parties by mutually agreeing
upon a single forum for the resolution of any and all disputes or grievances
between them, notwithstanding the foregoing limitations, this Agreement shall
not be interpreted to preclude or waive any Party’s available remedies under, or
rights to, filing, submitting or hearing of matters before any of the above
regulatory or administrative entities, commissions or boards to the extent
such
rights cannot by law be waived.
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7.16
Waiver
of Trial.
IN
ACCORDANCE WITH THE AGREEMENT OF THE PARTIES TO ARBITRATE ALL DISPUTES PURSUANT
TO SECTION 7.15, ABOVE, EACH
PARTY HEREBY WAIVES TRIAL IN ANY ACTION, PROCEEDING OR COUNTER CLAIM BROUGHT
BY
ANY OF THEM AGAINST THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS
AGREEMENT, OR ANY OTHER AGREEMENTS EXECUTED IN CONNECTION HEREWITH OR THE
ADMINISTRATION THEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN. THE
PROVISIONS OF THIS SECTION 7.16 HAVE BEEN FULLY DISCUSSED BY THE PARTIES
HERETO,
AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY
WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
SECTION 7.16 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
7.17 Provision
Not Construed Against Party Drafting Agreement.
This
Agreement is the result of negotiations by and between the Parties, and each
Party has had the opportunity to be represented by independent legal counsel
of
its choice. This Agreement is the product of the work and efforts of all
Parties, and shall be
deemed
to have been drafted by all Parties. In the event of a dispute, no Party
hereto
shall be entitled to claim that any provision should be construed against
any
other Party by reason of the fact that it was drafted by one particular
Party.
7.18 Recitals.
The
facts recited in Article II, above, are hereby conclusively presumed to be
true
as between and affecting the Parties.
7.19 Best
Efforts.
The
Parties shall use and exercise their best efforts, taking all reasonable,
ordinary and necessary measures to ensure an orderly and smooth relationship
under this Agreement, and further agree to work together and negotiate in
good
faith to resolve any differences or problems which may arise in the
future.
7.20 Definitional
Provisions.
For
purposes of this Agreement, (i) those words, names, or terms which are
specifically defined herein shall have the meaning specifically ascribed
to
them; (ii) wherever from the context it appears appropriate, each term stated
either in the singular or plural shall include the singular and plural; (iii)
wherever from the context it appears appropriate, the masculine, feminine,
or
neuter gender, shall each include the others; (iv) the words “hereof”, “herein”,
“hereunder”, and words of similar import, when used in this Agreement, shall
refer to this Agreement as a whole, and not to any particular provision of
this
Agreement; (v) all references to designated “Articles”, “Sections”, and to other
subdivisions are to the designated Articles, Sections, and other subdivisions
of
this Agreement as originally executed; (vi) all references to “Dollars” or “$”
shall be construed as being United States dollars; (vii) the
term
“including” is not limiting and means “including without limitation”;
and,
(viii) all references to all statutes, statutory provisions, regulations,
or
similar administrative provisions shall be construed as a reference to such
statute, statutory provision, regulation, or similar administrative provision
as
in force at the date of this Agreement and as may be subsequently amended.
INITIALS:
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of 12
VIII
EXECUTION
IN
WITNESS WHEREOF,
this
Agreement has been duly executed by the Parties, and shall be effective as
of
and on the Effective Date set forth in Section 1, above.
THE
PARTIES HAVE CAREFULLY READ THIS ENTIRE AGREEMENT. ITS CONTENTS AND THE RELEASE
CONTAINED HEREIN HAVE BEEN FULLY EXPLAINED TO THEM BY THEIR ATTORNEYS, OR
THEY
HAVE VOLUNTARILY ELECTED NOT TO SEEK THE ADVICE OF AN ATTORNEY. THE PARTIES
FULLY UNDERSTAND THE FINAL AND BINDING EFFECT OF THIS AGREEMENT. THE ONLY
PROMISES OR REPRESENTATIONS MADE TO EACH OF THE PARTIES ABOUT THIS AGREEMENT,
OR
TO INDUCE THEM TO SIGN THIS AGREEMENT, ARE CONTAINED IN THIS AGREEMENT. THE
PARTIES ARE SIGNING THIS AGREEMENT KNOWINGLY AND VOLUNTARILY, WITHOUT
COMPULSION, COERCION, FRAUD, OR DURESS.
|
XXXXXX:
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OXMI:
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___________________________
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a
Nevada corporation
|
|
J.
XXXXXXX XXXXXX
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DATED:
___________________
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BY:
___________________________
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NAME:
________________________
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TITLE:
________________________
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DATED:
_______________________
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INITIALS:
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