SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
Exhibit 10.1 (i)
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This
Settlement Agreement and Mutual General Release (the
“Agreement”), effective as of December 24, 2020
(“Effective Date”), is made and entered into by and
between AMARILLO BIOSCIENCES, INC. (“ABI”), on the one
hand, and XXXXXXX XXXXX (“XXXXX”), on the other hand,
each of which shall be referred to as a “Party” hereto
and collectively as the “Parties hereto” or “the
Parties to this Agreement.”
RECITALS
WHEREAS, the Parties entered into that
certain Employment Agreement dated and executed on March 28, 2018
(“Employment Agreement”);
WHEREAS, the term of the Employment
Agreement commenced on January 1, 2018 and terminates on December
31, 2020;
WHEREAS, ABI provided written notice to
XXXXX on December 10, 2020 stating that the Employment Agreement
shall be terminated as of December 31, 2020 pursuant thereto
(“Termination Notice”);
WHEREAS, ABI received a notice of breach
of contract dated November 23, 2019 from XXXXX’x legal
counsel, Xxxxxx X. Xxxxx of Young & Xxxxxx, P.C. alleging the
following breaches of the Employment Agreement: (a) unilateral
reduction in salary from early September 2019 by 67% from a gross
monthly pay of $5,800 to $1,950 (“Salary Reduction”),
(b) violation of the Federal Fair Labor Standards Act for
classifying Xxxxx as exempt from overtime (“FLSA
Claim”), compensation due for accrued and unused paid time
off (“Paid Time Off Claim”), and (c) ABI’s
non-payment of Medicare supplemental insurance premiums
(“Insurance Claim”) (collectively herein referred to as
“XXXXX Claims”;
ABI
– XXXXXXX XXXXX Settlement Agreement and Mutual General
Release
Effective
January 1 2021
Initials:
EMPLOYER _________; EMPLOYEE __________
WHEREAS, all of the XXXXX Claims have
been cured or addressed by ABI and XXXXX has accepted ABI’s
actions to cure or address the XXXXX Claims, and in any event, to
avoid any instance of doubt the Parties enter into this Agreement;
and
WHEREAS, excepting the matters under
Articles VII and VIII of the Employment Agreement (which is
stipulated to survive termination of the Employment Agreement) and
any fraudulent or criminal actions by either Party during the term
of the Employment Agreement, the Parties to this Agreement wish to
forever discharge all claims, demands, liabilities, and causes of
action which have or could have been asserted among them relating
to the XXXXX Claims and any and all claims arising out of any
agreement, relationships, acts or occurrences between the Parties
to date.
AGREEMENT
NOW, THEREFORE, and in consideration of
the mutual terms, obligations, covenants agreements, releases and
conditions herein contained, receipt and sufficiency of which are
hereby acknowledged, the Parties to this Agreement hereby agree as
follows:
1.
Incorporation of
Recitals. The above
Recitals are hereby incorporated herein by reference.
2.
Consideration.
Contemporaneously with the execution of this Agreement the Parties
shall enter into a separate employment agreement which shall
provide for (a) an employment term commencing January 1, 2021 and
terminating on Xxxxx 00, 0000, (x) a monthly salary payable to
XXXXX in the amount of $5,833.33, payable bi-monthly, (c) $1,000
per month payable in shares of ABI’s unregistered, voting
common stock, such shares being priced at the average of all
trading day closing quotes on the OTC-BB for the month preceding
date of issuance and such shares to be issued on February 1, 2021,
March 1, 2021 and April 1, 2021 (or as soon as thereafter
practicable), and employee benefits pursuant to the ABI employee
benefits plan or policy which may include hospital, surgical,
medical, dental, group life insurance or other benefits on terms at
least as favorable as those accorded to other employees of ABI,
subject to insurability. In addition, pursuant to Section 7.03 of
the Employment Agreement, XXXXX shall execute and deliver an
Intellectual Property Right Assignment Agreement conveying and
assigning to ABI all right, title and interest in the matters
stipulated therein.
ABI
– XXXXXXX XXXXX Settlement Agreement and Mutual General
Release
Effective
January 1 2021
Initials:
EMPLOYER _________; EMPLOYEE __________
3.
Specific Releases
of XXXXX Claims. XXXXX hereby acknowledges and agrees that
he has received all compensation and/or wages due to him from the
ABI and that he is not entitled to any other payments or employee
benefits of any kind including, but not limited to, regular wages,
overtime wages, waiting time penalties, meal period or rest period
penalties, bonuses, commissions, vacation pay, equity, expense
reimbursements or any other compensation or benefits of any
kind.
4.
Mutual General
Releases. Except for
the promises, warranties, representations or obligations made or
expressly undertaken or reaffirmed in this Agreement, upon the
Parties to this Agreement executing this Agreement, the Parties to
this Agreement on behalf of themselves, and on behalf of their own
predecessors, successors, and assigns hereby release and discharge
the other Party hereto and that Party’s predecessors,
successors, assigns, current and former officers, directors,
agents, employees, shareholders, partners, joint venturers,
insurers, and attorneys from any and all claims, suits, demands,
obligations, liabilities, attorneys fees, costs, and causes of
action of any kind whatsoever, whether known or unknown, suspected
or unsuspected, claimed or unclaimed, asserted or unasserted or
which could have been claimed or asserted by either Party as of the
Effective Date, irrespective of the theory of recovery that could
be asserted. This release applies to all claims in contract, tort,
or otherwise, and under any statute or common law, in law or in
equity, based on any act from the beginning of time until the
Effective Date hereof. XXXXX expressly acknowledges that this
release applies to, without limitation:
a.
any and all claims
relating to or arising from his employment relationship (including
but not limited to claims for wages with ABI and the termination of
that relationship;
b.
any and all claims
relating to, or arising from, his right to receive, purchase, or
actual purchase of shares of stock of the ABI, including, without
limitation, any claims for fraud, misrepresentation, breach of
fiduciary duty, breach of duty under applicable state corporate
law, and securities fraud under any state or federal
law;
ABI
– XXXXXXX XXXXX Settlement Agreement and Mutual General
Release
Effective
January 1 2021
Initials:
EMPLOYER _________; EMPLOYEE __________
c.
any and all claims
for wrongful discharge of employment; termination in violation of
public policy; discrimination; breach of contract, both express and
implied; breach of a covenant of good faith and fair dealing, both
express and implied; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective
economic advantage; unfair business practices; defamation; libel;
slander; negligence; personal injury; assault; battery; invasion of
privacy; false imprisonment; and conversion;
d.
any and all claims
for violation of any federal, state or municipal statute,
including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination
in Employment Act of 1967, the Americans with Disabilities Act of
1990, the Fair Labor Standards Act, the Employee Retirement Income
Security Act of 1974, The Worker Adjustment and Retraining
Notification Act, Older Workers Benefit Protection Act; and Texas
labor laws including, but not limited to, the Texas Payday Act,
Texas Minimum Wage Law, Texas statutes pertaining to employment
discrimination, fair employment, and workers
compensation.
e.
any and all claims
for violation of the federal, or any state, constitution;
and
f.
any and all claims
arising out of any other laws and regulations relating to
employment or employment discrimination.
ABI
– XXXXXXX XXXXX Settlement Agreement and Mutual General
Release
Effective
January 1 2021
Initials:
EMPLOYER _________; EMPLOYEE __________
5.
Waiver by the
Parties to this Agreement. Except as otherwise provided under the
Agreement, each of the Parties to this Agreement elects to and
hereby does release each other from all claims, whether known or
unknown, general or specific, and each of the Parties to this
Agreement fully understands that if the facts with respect to the
Agreement are found hereafter to be other than or different from
the facts now believed by it to be true, each of the Parties
expressly accepts and assumes the risk of such possible differences
in fact and agrees that this Agreement shall be and remain
effective, notwithstanding any such differences. Each of the
Parties hereto states that this Agreement is executed voluntarily
with full knowledge of its significance and legal
effect.
6.
Older Workers
Benefits Protection Act: It is intention of the Parties that
the releases contained in this agreement apply to all claims of any
kind against ABI. In order to comply with the Older Workers
Benefits Protection Act [29 U.S.C. Section 626(f)] and effectuate
the release by XXXXX of any potential claims under the federal Age
Discrimination in Employment Act, XXXXX agrees as
follows:
a.
He has carefully
reviewed the foregoing Agreement, and understands the terms and
conditions it contains;
b.
He has been advised
of his right to consult any attorney to review this Agreement, and
has had the benefit of an attorney throughout the settlement
process and has had an attorney review this Agreement;
c.
He does not waive
any rights or claims that may arise after the date this Agreement
is executed;
d.
He is receiving
consideration beyond anything of value to which he is already
entitled;
e.
By entering into
this Agreement, he is giving up potential valuable legal rights,
and he intends to be bound by all the terms and conditions set
forth above;
ABI
– XXXXXXX XXXXX Settlement Agreement and Mutual General
Release
Effective
January 1 2021
Initials:
EMPLOYER _________; EMPLOYEE __________
f.
He is entering into
this Agreement freely, knowingly, and voluntarily;
g.
He has been given
twenty-one (21) days to consider whether to agree to the terms and
conditions set forth in this Agreement and expressly waives this
provision if he chooses to execute it prior to the expiration of
twenty-one (21) days.
h.
For a seven (7) day
period following his execution of this Agreement, XXXXX may revoke
this Agreement by delivering a written revocation to counsel for
the ABI, and this Agreement shall not become effective nor
enforceable until the revocation period has expired.
7.
Entire
Agreement. This
Agreement and any provisions reaffirmed herein constitutes the
entire agreement and understanding between the Parties to this
Agreement with respect to the subject matters herein, and
supersedes and replaces any prior agreements and understandings,
whether oral or written, between and among them with respect to
such matters. Each Party expressly represents that it has not
relied upon any representation of any other Party or its attorney,
outside of the express provisions of this Agreement, and that it
has relied solely on counsel of its choice to advise it with
respect to the terms here. The provisions of this Agreement may be
waived, altered, amended or repealed in whole or in part only upon
the written consent of all Parties to this Agreement.
8.
Governing Law;
Venue. This Agreement
shall be governed by and construed in accordance with the internal
laws of the State of Texas. Any court action arising out of or
relating to this Agreement shall be sited in a court of competent
jurisdiction in Dallas, Texas, and the Parties expressly consent to
jurisdiction in such courts.
ABI
– XXXXXXX XXXXX Settlement Agreement and Mutual General
Release
Effective
January 1 2021
Initials:
EMPLOYER _________; EMPLOYEE __________
9.
No
Assignment/Authority of Signatory. The Parties to this Agreement
represent that each has not previously assigned or conveyed to any
third person (including by operation of law) any right, claim or
cause of action that is the subject of this Agreement (including
the releases contained in this Agreement), and that each has the
full and complete authority to enter into this Agreement. To the
extent that any third person’s consent is necessary for any
of the Parties hereto to enter into this Agreement and to make it
binding on all Parties hereto, the Parties to this Agreement
represent that they have acquired such third person’s consent
to the same.
10.
No Admission of
Liability. The
Parties to this Agreement agree that nothing in this Agreement is
intended or shall be construed as an admission of
liability.
11.
No Construction
against Drafter. For
purposes of any action arising out of the application,
interpretation, or alleged breach of this Agreement brought by any
Party, each Party waives any statutory or common law principle, and
any judicial interpretation of this Agreement which would create a
presumption against the other Party as a result of its having
drafted any provision of this Agreement. Counsel for the respective
Parties have reviewed and revised this Agreement, and there shall
not be applied any rule construing ambiguities against the drafting
Party.
12.
Additional
Documents. Each of
the Parties to this Agreement agrees that it will execute and
provide, at the request of any other Party, any and all such other
documents or other written instruments as may be reasonably
necessary to effectuate the purposes of this
Agreement.
13.
Descriptive
Headings. The
headings used herein are descriptive only and for the convenience
of identifying provisions, and are not determinative of the meaning
or effect of any such provisions.
ABI
– XXXXXXX XXXXX Settlement Agreement and Mutual General
Release
Effective
January 1 2021
Initials:
EMPLOYER _________; EMPLOYEE __________
14.
Successors and
Assigns. All
covenants, promises, obligations, warranties, representations and
agreements herein shall bind and inure to the benefit of the
respective successors and assigns of the Parties to this
Agreement.
15.
Litigation
Expense. If any Party
brings an action against any other Party hereto by reason of the
breach of any covenant, promise, warranty, representation,
obligation or condition hereof, or otherwise arising out of or
relating to this Agreement, whether for declaratory or other
relief, the prevailing Party in such suit shall be entitled to its
costs of suit and reasonable attorneys’ fees.
16.
Signature in
Counterparts; Facsimile. This Agreement may be signed in
counterparts, and facsimile signatures shall have the same binding
effect as originals.
17.
Severability.
Should any portion of this Agreement be held to be void or
unenforceable, the remaining provisions shall remain in full force
and effect, to be read and construed as if the void and
unenforceable provisions were originally deleted.
18.
Voluntary Execution
of Agreement. This Agreement is executed voluntarily and
without any duress or undue influence on the part or behalf of the
Parties hereto, with the full intent of releasing all claims. The
Parties acknowledge that they have read this Agreement and they
have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or
that they have voluntarily declined to seek such
counsel.
BY
SIGNING BELOW, THE UNDERSIGNED AGREE AND ACKNOWLEDGE THEY HAVE READ
AND UNDERSTAND THE BINDING NATURE OF THIS SETTLEMENT AGREEMENT,
THAT IT REPRESENTS A FINAL AND BINDING SETTLEMENT ACCORDING TO ITS
TERMS AND THAT THEY ARE ENTERING INTO THE SETTLEMENT AGREEMENT
VOLUNTARILY.
ABI
– XXXXXXX XXXXX Settlement Agreement and Mutual General
Release
Effective
January 1 2021
Initials:
EMPLOYER _________; EMPLOYEE __________
IN WITNESS WHEREOF, the undersigned Parties execute this
Agreement:
PARTIES
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By:
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/s/
Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx |
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AMARILLO
BIOSCIENCES, INC.
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By:
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/s/ Xxxx Junyong Xxx
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Xxxx Xxxxxxx Xxx |
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Secretary |
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ABI
– XXXXXXX XXXXX Settlement Agreement and Mutual General
Release
Effective
January 1 2021
Initials:
EMPLOYER _________; EMPLOYEE __________
