EXECUTIVE EMPLOYMENT AGREEMENT
|
EXECUTIVE
EMPLOYMENT
AGREEMENT
|
a
Nevada corporation,
as
"Employer"
and
J.
XXXXXXX XXXXXX,
as
"Executive"
Effective
Date:
20
MARCH 2006
I
PARTIES
THIS
EXECUTIVE EMPLOYMENT AGREEMENT
(the
"Agreement") is entered into effective as of the 20th
day of
March, 2006 (the "Effective Date"), by and between OXFORD MEDIA,
INC., a Nevada corporation (the “Employer”); and,
J.
XXXXXXX XXXXXX, an individual
currently residing in the State of California (the "Executive"). Employer
and
Executive are sometimes referred to collectively herein as the "Parties",
and
each individually as a "Party".
II
RECITALS
A. Employer
is engaged in the business of, among other things, among other things,
acting as
a wireless and business systems provider specializing in WiFi/WiMAX, IT
Security
and IT Integration, and Telecom (which includes as part of these offering
of
services, the design and installation of specialty communication systems
for
data, voice, video, and telecom, and the deployment of fixed wireless networks),
in addition to providing support to affiliated entities of Employer in
developing private broadband networks and proprietary software and hardware
which allows for the delivery of low-cost broadband Internet access as
well as
video and audio content on demand on a Pay-Per-View basis.
B. Employer's
principal place of business is located at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx
X,
Xxxxxx, Xxxxxxxxxx, 00000 (the "Premises").
C. Executive
is acknowledged as having domain expertise and significant contacts in
the
fields of technology to be pursued by Employer, and Executive represents
to
possess certain other skills and contacts which would enable Executive
to
benefit Employer.
D. The
Parties acknowledge that the Executive's abilities and services are unique
and
essential to the prospects of Employer, and Employer has relied upon Executive
agreeing to serve Employer pursuant to this Agreement.
E. Employer
desires to retain the services of Executive, and Executive desires
to be
retained by Employer, all pursuant to the terms and conditions contained
herein.
F. 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
EMPLOYMENT
3.1
Position. Employer
hereby hires Executive to serve in the position as executive vice president
of
sales. Executive shall do and perform all services, duties, responsibilities,
and acts typically and customarily undertaken by the executive vice president
of
sales of a corporation of size and scope substantially similar to Employer,
which shall include but not be limited to those items prescribed by the
Bylaws
of Employer, as amended from time-to-time, subject always to the final
determination of the Board of Directors of Employer (the "Board"). Said
services
may also include, but not be limited to, those listed on Exhibit 3.1, attached
hereto and incorporated herein by reference.
3.2
Reasonable
Additional or Changed Responsibilities. Nothing
herein shall preclude the Board from changing Executive's title or materially
changing the duties of Executive if such Board has concluded in its reasonable
judgment that such change is in Employer's best interests. At all times
during
the term of this Agreement, Executive shall be employed as a senior executive
of
Employer, with appropriate and commensurate compensation, title, rank and,
status. If Executive is elected or appointed a director or officer of any
of
Employer's subsidiaries during the Term of this Agreement, Executive, if
he
accepts such position, will serve in such capacity without further
compensation.
3.3
Time
and Effort.
3.3.1.
Entire
Productive Time. Executive
shall devote Executive's entire business time, attention, knowledge, and
skill
to the business and interests of Employer. Employer shall be entitled to
all the
benefits and profits arising from or incident to any and all services performed
by Executive pursuant to this Agreement.
3.3.2.
Exceptions. Nothing
contained in Section 3.3.1., above, shall be construed to prevent Executive
from, during the Term of this Agreement:
(a) purchasing
securities in any corporation whose securities are regularly traded provided
that such purchase shall not result in his collectively owning beneficially
at
any time five percent (5%) or more of the equity securities of any corporation
engaged in a business competitive to that of Employer;
(b) participating
in conferences, preparing or publishing papers or books or teaching, so
long as
Executive provides reasonable written notice to the Board of such activities
prior to Executive engaging in them; or
(c) Continuing
to participate in business activities and pursuits in which Executive is
involved as of the Start Date.
3.4
Term.
3.4.1
. Initial
Term. Executive's
employment with Employer and the Term of this Agreement shall commence
on the
20th
day of
March, 2005 (the "Start Date"), and shall continue for an initial period
of
three (3) years, unless sooner terminated as provided for herein (the
"Initial
Term").
3.4.2.
Extended
Term. This
Agreement shall remain in full force and effect and shall renew for an
additional twenty-four (24) months (the "Extended Term"), provided that
neither
Party at least sixty days (60) prior to the end of Initial Term gives written
notice to the other of its decision to not have the Agreement remain in
full
force and effect for the Extended Term, thereby terminating the Agreement
as of
and at the end of the Initial Term.
3.4.3.
Term
Defined. For
purposes of this Agreement, the word "Term" shall specifically include
the
Initial Term and all Extended Term hereunder.
3.5
Location. Except
for routine travel incident to the business of Employer, Executive's services
hereunder shall be principally performed at the Premises, or such other
location
within the surrounding area of the Premises.
IV
COMPENSATION
4.1
Base
Salary. Employer
agrees to pay Executive and Executive agrees to accept as compensation
for the
services and obligations set forth herein, as Base Salary, the sums referenced
on Exhibit 4.1, attached hereto and incorporated herein by reference, per
annum,
which sum shall be paid to Executive by Employer in equal semi-monthly
installments to be tendered to Executive on the first and fifteenth day
of each
month, or at such other intervals as may be mutually agreed upon by Employer
and
Executive.
4.1.1.
Necessary
Deductions. Employer
shall deduct from the Base Salary amounts sufficient to cover applicable
federal, state, and/or local income tax withholdings, and any other amounts
which Employer is required to withhold by applicable law.
4.1.2.
Yearly
Review. Upon
each
yearly anniversary of the Start Date, Executive's Base Salary shall be
reviewed
by the Board or the Compensation Committee of the Board (the "Compensation
Committee"). Base Salary may be increased above those amounts referenced
in
Exhibit 4.1, but may never be decreased, in the sole discretion of the
Board or
the Compensation Committee.
4.2
Discretionary
Annual Bonuses. Employer
may, but is not obligated to, pay Executive, as additional annual compensation,
during each calendar year ending during the Term of this Agreement, such
sums as
may annually be determined by the Board, or the Compensation Committee,
including bonus, regular and cost of living increases, and
adjustments.
V
EXECUTIVE
BENEFITS
5.1 Employer
Policy. During
the Term of this Agreement, Executive shall be entitled to participate
in
employee benefit plans or programs of Employer, if any, to the extent that
his
position, tenure, salary, age, health and other qualifications make him
eligible
to participate, subject to the rules and regulations applicable thereto.
Such
additional benefits shall include, subject to the approval of the Board,
full
medical, dental and disability income insurance, and participation in qualified
pension and profit sharing plans, as well as a car allowance of Seven Hundred
Fifty Dollars ($750.00) per month and a One Hundred Fifty Dollar ($150.00)
monthly cell phone allowance.
5.2
Business
Expenses. Employer
will reimburse Executive for all reasonable business
expenses
incurred by Executive in the performance of Executive's duties provided
that:
(a)
Each
such
expenditure is reasonable and is made to support the execution of Employer's
business or strategic plan;
(b)
Executive
furnishes to Employer adequate records and other documentary evidence required
to substantiate such expenditures as a proper deduction for federal income
tax
purposes.
5.3
Vacation
Time. Executive
shall be granted three (3) weeks paid vacation for each calendar
year during the Term, with said time being immediately available for Executive's
benefit.
Vacation
shall only be taken at such times as not to interfere with the necessary
performance of Executive's duties and obligations under this Agreement
unless
otherwise agreed upon by the Board. However, if at the end of any calendar
year
there is any accrued and unused vacation time for
Executive, additional vacation time for Executive will not accrue until
Executive takes all of his vacation
time accrued from prior calendar years. Upon using said accrued vacation
time,
Executive shall
once again be entitled to three (3) weeks paid vacation time for that calendar
year, prorated for
the
month in which the remaining accrued vacation time was taken.
5.4
Indemnification. Employer
and Executive shall execute an Indemnification Agreement in the form of
Exhibit
5.4, attached hereto and incorporated herein by reference, which shall
provide,
among other things, that Employer shall indemnify Executive against certain
claims arising by reason of the fact that he is or was an officer or director
of
Employer. In addition to all rights under the Indemnification Agreement,
the
Parties further agree that all liabilities incurred by Executive in his
capacity
as an officer hereunder shall be incurred for the account of Employer,
and
Executive shall not be personally liable therefore. Executive shall not
be
liable to Employer, or
any
of
its respective subsidiaries, affiliates, employees, officers, directors,
agents,
representatives, successors, assigns, stockholders, and their respective
subsidiaries and affiliates, and Employer shall, and hereby agrees to,
indemnify, defend and hold Executive harmless from and against any and
all
damages and/or loss or liability (including, without limitation, all cost
of
defense thereof), for any acts or omissions in the performance of service
under
and within the scope of this Agreement on the part of Executive.
5.5.1.
Change
in Control. For
purposes of this Agreement, a "Change in Control" of Employer shall be
deemed to
have occurred if (a) there shall be consummated (i) any consolidation or
merger
of Employer into or with another person, as such term in used in Sections
13(d)(3) and 14(d)(2) of the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"), in which Employer is not the continuing or surviving
corporation or pursuant to which shares of Employer's common stock immediately
prior to the merger have the same proportionate ownership of common stock
of the
surviving corporation immediately after the merger, or (ii) any sale, lease
or
other transfer (in one transaction or a series of related transactions)
of all
or substantially all of the assets of Employer; or, (b) the shareholders
of
Employer approve any plan or proposal for the liquidation or dissolution
of
Employer; or, (c) any person who is not now the owner of twenty percent
(20%) or
more of Employer's outstanding equity securities shall become the beneficial
owner (within the meaning of Rule 13d-3 under the Exchange Act) of twenty
percent (20%) or more of Employer's outstanding equity securities; or,
(d)
individuals
who are the members of the Board (once the Board consists of at least
seven
members)
cease to constitute a majority of the members of the Board, provided that
any
person becoming a member of the Board subsequent to such date whose election
or
nomination for election was supported by two-thirds of the directors who
then
comprised the Board shall be considered to be part of the original
majority.
5.5.2.
Severance
Payment. Upon
the
occurrence of a Change in Control of Employer, the employment of Executive
hereunder shall terminate and Employer shall pay (or, if applicable, Employer
shall ensure that it's successor or assign shall pay) to Executive in cash,
on
the day on which the Change of Control occurs (which for the purposes of
this
Agreement, shall be the Termination Date for this Article V), the
following:
(a) All
accrued and unpaid salary and other compensation payable to Executive by
Employer for services rendered by Executive to Employer through the Termination
Date;
(b) All
accrued and unused vacation and sick pay payable to Executive by Employer
with
respect to services rendered by Executive to Employer through the Termination
Date; and
(c) Severance
pay in an amount equal to twenty-four (24) months salary based upon the
then
existing salary of Executive, with the total amount to be paid in one
installment on the due date noted above, calculated at a net present
value.
5.5.3.
Provision
of Services Following Change in Control. At
the
request of Employer, Executive shall continue to serve hereunder for a
period of
time not to exceed one hundred eighty (180) days following the Termination
Date.
If Employer requests Executive to perform such services, Executive shall
be
compensated from and after the Termination Date for the period that Executive
actually remains employed by Employer at his then current salary, and with
the
provisions of Section 5.2, above, continuing to apply as well. All such
amounts
payable to Executive shall be in addition to and not in lieu of the amounts
payable to Executive under Section 5.5.2, above. Upon the later to occur
of an
occurrence of a Change of Control or the termination
of any period during which Executive continues to provide services as aforesaid,
Executive's employment hereunder shall terminate.
5.6
Life
Insurance. Upon
the
completion of the first six (6) months under the Term, Employer shall purchase,
at its sole cost and expense, a term life insurance policy with a death
benefit
of One Million Dollars ($1,000,000), with Executive as the owner and
insured,
if
such coverage
is available. Executive, as the owner of the policy, shall designate the
beneficiary of the
policy,
as he may change same from time-to-time. Employer shall keep and maintain
the
policy in full force and effect throughout the entire Term. Executive agrees
to
permit Employer to purchase "key man" term life insurance
coverage (as that term is commonly defined) on Executive for the benefit
of
Employer, in the sole discretion and sole cost and expense of
Employer.
5.7
Board
Participation. Executive
shall serve as an ex-officio/invitee of the Board of Directors of Oxford
Media,
Inc. ("Oxford's Board"), the corporate parent of Employer. Executive shall
have
full right of participation in all meetings of Oxford's Board. Executive
shall
have no voting rights. Oxford's Board reserves the right to excuse Executive
from any meeting in the event Oxford's Board reasonably determines that
confidentiality dictates that Executive not participate in any such meeting,
or
portion thereof.
VI
TERMINATION
6.1
Termination
in Case of Death.
6.1.1.
Termination
Event. Executive's
employment hereunder shall terminate immediately upon the death of Executive,
which shall be the Termination Date for this Section 6.1.
6.1.2.
Result
of Termination. Upon
termination of Executive's employment pursuant to this Section 6.1, Employer
shall pay to Executive's estate, on the Termination Date, a lump sum payment
of
an amount equal to (i) all accrued and unused vacation and sick pay payable
to
Executive by Employer with respect to serviced rendered by Executive to
Employer
through the Termination Date; and, (ii) if the Termination Date occurs
during
the
Extended Term, 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 for the benefit
of
Executive's family the medical benefits referred to in Section 5.1 hereof
for
twelve (12) months following the Termination Date.
6.2
Termination
in Case of Disability.
6.2.1.
Termination
Event. If
Executive suffers a physical or mental disability which results in Executive
being unable to perform his duties hereunder for a three (3) consecutive
month
period, then the Parties shall proceed as follows: (i) the Board shall
select a
qualified
physician; (ii) Executive or his legal representative, if applicable, shall
select a qualified physician; (iii) those two (2) physicians shall select
a
third qualified physician; (iv) the three physicians shall examine Executive
and
review his physical and mental capacity. If a majority of the three physicians
determine in good faith that such physical or mental disability renders
Executive incapable of performing his duties hereunder for a period of
at least
three (3) consecutive months following the date of such physician's written
opinion, then Executive's employment shall terminate effective three (3)
weeks
following the date of such physician's written opinion, which shall be
the
Termination Date for this Section 6.2.
6.2.2.
Result
of Termination. Upon
termination of Executive's employment pursuant to this Section 6.2, Employer
shall pay to Executive, on the Termination Date, a lump sum payment of
an amount
equal to (i) all accrued and unpaid salary and other compensation payable
to
Executive by Employer and all accrued and unused vacation and sick pay
payable
to Executive by Employer with respect to services rendered by Executive
to
Employer through the Termination Date; and, (ii) if the Termination Date
occurs
during the Extended Term, an amount equal to nine (9) 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. However, such amount shall be reduced by the amount of any payments
to be paid to Executive under any long-term disability insurance policy
maintained by Employer for the benefit of Executive. 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
referred to in Section 5.1 hereof for nine (9) months following the Termination
Date.
6.3
Termination
By Executive for Cause.
6.3.1.
Termination
Event. This
Agreement shall terminate upon ten (10) days prior written notice from
Executive
to Employer of Executive's decision to terminate "for cause" (as defined
below),
provided that the notice specifies the conduct constituting "for cause"
hereunder,
and Employer does not remediate or cease, as appropriate, the conduct
constituting "for cause"
prior to the expiration of such ten (10) day period. For purposes of this
Section 6.3, the term
"for
cause" shall include the following:
(a) The
willful breach of any of the material obligations of Employer owed to Executive
under this Agreement;
(b) The
Employer's primary chief executive offices are moved to a location outside
of
Orange County, California, unless approved by the Board; or
(c) The
material breach of this Agreement by Employer.
6.3.2.
Result
of Termination. Upon
termination of Executive's employment pursuant to this Section 6.3. Employer
shall pay to Executive, on the termination date designated by Executive,
an
amount equal to (i) all accrued and unpaid salary and other compensation
payable
to Executive by Employer and all accrued and unused vacation and sick pay
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.
6.4
Termination
by Executive Without Cause.
6.4.1.
Termination
Event. This
Agreement shall terminate immediately upon delivery to Employer of thirty
(30)
days written notice of termination by Executive without cause.
6.4.2.
Result
of Termination. Upon
termination of this Agreement pursuant to this
Section 6.4, Employer shall pay to Executive, on the Termination
Date, a
lump
sum
payment
of an
amount equal to all accrued and unpaid salary and other compensation payable
to
Executive by Employer and all accrued and unused vacation and sick pay
payable
to Executive by Employer with respect to services rendered by Executive
to
Employer through the Termination Date.
6.5
Termination
by Employer With Cause.
6.5.1.
Termination
Event. This
Agreement shall terminate upon ten (10) days prior
written notice from Employer to Executive of the termination of Executive's
employment "for
cause"
(as defined below), provided that the notice specifies the conduct constituting
"for cause" hereunder,
and Executive does not cease the conduct constituting "for cause" prior
to the
expiration of
such
ten (10) day cure period. For purposes of this Section 6.5, the term "for
cause"
shall include
the
following:
(a) Any
action by Executive resulting in the conviction or plea of nolo contendre of any
criminal statute constituting a felony;
(b) Gross
misconduct in the performance of Executive's duties hereunder;
(c) The
failure by Executive to follow or comply with the policies and procedures
of Employer, or the written directives of the Board of Directors of Employer,
provided
that
such policies, procedures or directives are consistent with Executive's
duties
hereunder;
(d) The
violation by Executive of any material provision of this Agreement.
6.5.2.
Result
of Termination. Upon
termination of this Agreement pursuant to this Section 6.5, Employer shall
pay
to Executive, on the Termination Date, a lump sum payment of an amount
equal to
all accrued and unpaid salary and other compensation payable to Executive
by
Employer and all accrued and unused vacation and sick pay payable to Executive
by Employer with respect to services rendered by Executive to Employer
through
the Termination Date.
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 and
all
accrued and unused vacation and sick pay 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.
6.7 Termination
upon the Expiration of the Term. Upon
termination of this Agreement upon the scheduled expiration of the Term
pursuant
to Section 3.4, above, 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 and all accrued and unused vacation and
sick
pay 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.
6.8 Disputes
as to Termination. If
either
party disputes any aspect of Executive's termination
hereunder, the disputing party shall demand arbitration of the dispute
by
written notice
to the
other no later than thirty (30) days after the applicable termination date.
The
costs of arbitration,
including the fees and expenses of the arbitrator, shall be paid by Employer.
Each Party shall
bear the cost of preparing and presenting its case including the use of
any
expert witness. Such arbitration
shall be commenced not later than thirty (30) days following the date of
delivery of the
notice
of arbitration by a panel of three qualified arbitrators, one who
shall,
be
designated by Executive,
one by the Employer and one (who shall act as chairman of the arbitration
panel)
by the first
two
arbitrators so appointed. The arbitration shall be conducted in Orange
County,
California in accordance
with the rules promulgated and adopted by the American Arbitration
Association (with the
right
of discovery as provided in the California Code of Civil Procedure by all
Parties), and each
Party
shall retain the right to cross-examine the opposing Parry's witnesses,
either
through legal counsel, expert witnesses or both. The majority decision
of the
arbitration panel shall be made in writing, and shall be final, binding
and
conclusive on all Parties (without any right of appeal therefrom) and shall
not
be subject to judicial review.
6.9 Termination
Date. For
purposes of this Agreement, the term "Termination Date" shall mean that
date on
which Executive's employment is terminated pursuant to this Article
VI.
VII
INTENDED
TAX RESULTS
The
Parties believe that the payments pursuant to Section 5.5 and Article VI,
above,
do not constitute "Excess Parachute Payments" under Section 280G of the
Internal
Revenue Code of 1986, as amended (the "Code"). Notwithstanding such belief
and
intent, if any benefit under these provisions constitutes an "Excess Parachute
Payment", Employer shall pay to Executive an additional amount (the "Tax
Payment") such that (i) the excess of all Excess Parachute Payments (including
payments under this sentence) over the sum of excise tax thereon under
Section
4999 of the Code and income tax thereon under Subtitle A of the Code and
under
applicable state law is equal to (ii) the excess of all Excess Parachute
Payments (excluding payments under this sentence) over income tax thereon
under
Subtitle A of the Code and under applicable state law is equal to (iii)
the
excess of all Excess Parachute Payments (excluding payments under this
sentence)
over income tax thereon under Subtitle A of the Code and under applicable
state
law. Such Tax Payment shall be paid to Executive concurrently with the
severance
payment referred to in Section 5.5.2., above.
VIII
NO
MITIGATION
The
payments required to be paid to Executive by Employer pursuant to Section
5.5.2.
and Article VI, above, shall not be reduced by or mitigated by amounts
which
Executive earns or is capable of earning during any period following his
Termination Date, and shall not be subject to any offsets, deductions,
or
charges, other than as may be required under applicable Federal and State
tax
withholding and similar requirements.
IX
CONFIDENTIAL
INFORMATION AND RELATED COVENANTS
9.1
Trade
Secrets Covenants. Executive
shall not at any time, whether during or subsequent to the term of Executive's
employment, unless specifically consented to in writing by Employer,
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 Employer, 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
Employer's business, compensation paid to employees and other terms of
employment, or any
other
confidential information of, about or concerning the business of Employer,
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 Employer's business
and its
goodwill, and that any breach of any term of this Section 9.1 is a material
breach of this Agreement.
9.2 Customer
Accounts Covenants. As
used
herein, the term "Customer Accounts" shall mean all accounts, clients,
customers, and the like of Employer and its affiliates, 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 Executive. During and through the Term of this Agreement and
continuing for a period of twenty four (24) months immediately following
the
termination of Executive's employment with Employer, Executive shall not
directly or indirectly make known to any person, firm, corporation or entity
the
names or addresses of any of the Customer Accounts or any other information
pertaining to them. During this same
time
period, Executive shall not, directly or indirectly, for Executive or any
other
person, firm,
corporation or entity, divert, take away, call on or solicit, or attempt
to
divert, take away, call on or solicit, any of the Customer Accounts, including
but not limited to those Customer Accounts which Executive called or with
whom
Executive became acquainted during Executive's employment with
Employer.
9.3
Employees
Covenant. During
and through the Term of this Agreement and continuing for a period of twenty
four (24) months immediately following the termination of Executive's employment
with Employer, Executive shall not, directly or indirectly, cause or induce,
or
attempt to cause or induce, any employee of Employer to terminate his or
her
employment with Employer, as such employment exists at any time following
the
execution of this Agreement.
9.4 Books
and Records. 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 affecting or relating to the business of Employer
which Executive shall prepare, use, construct, observe, possess, or control
shall be and remain the sole and exclusive property of Employer, and shall
constitute trade secret information of Employer. Within five (5) day so
of the
Termination Date, Executive shall promptly deliver to Employer all such
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 Employer which
are or
have been in the possession or under the control of Executive.
9.5
Injunctive
Relief. Executive
acknowledges that if Executive violates any of the provisions of this Article
IX, it will be difficult to determine the amount of damages resulting to
Employer. In addition to any other remedies which it may have, Employer
shall
also be entitled to seek temporary and permanent injunctive relief without
the
necessity of proving actual damages.
9.6
Enforcement
of Covenants. It
is the
desire and intent of the Parties that the provisions of this Article IX
shall be
enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly,
if any
particular portion of this Article IX shall be adjudicated to be invalid
or
unenforceable, this Article IX shall be deemed amended to delete therefrom
the
portion thus adjudicated to be invalid or unenforceable, such deletion
to apply
only with respect to the operation of this Article in the particular
jurisdiction in which such adjudication is made.
X
PROPRIETARY
INTEREST
10.1
Inventions. All
inventions, improvements, ideas and disclosures (whether or not patentable)
conceived or reduced to practice (actually or constructively) by Executive
during the Term of this Agreement which are directly or indirectly related
to
Employer's business shall be the property of Employer. Executive shall
execute
and deliver to Employer, at Employer's expense, all instruments of assignment
necessary to vest title to such intangible rights in Employer, and, if
requested, to execute all applications for issuance of Letters Patent in
the
United States or abroad and assignments thereof.
10.2
Specific
Exclusion. Specifically
excluded from this Article XI are any inventions which qualify fully under
California Labor Code §2870, which provides as follows:
(a)
Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to
his or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
(1) Related
at the time of conception or reduction to practice of the invention to
the
employer's business, or actual or demonstrably anticipated research or
development of the employer; or
(2) Result
from any work performed by the employee for the employer.
(b)
To the extent a provision in an employment agreement purports to require
an employee to assign an invention otherwise excluded from being required
to be
assigned under subdivision (a), the provision is against the public policy
of
this state and is unenforceable.
XI
REPRESENTATIONS
AND WARRANTIES OF EXECUTIVE
Executive
hereby represents and warrants to Employer the following as of and on the
day
this Agreement is executed:
(a)
The
execution, delivery, and consummation of this Agreement will comply with
all
applicable law and will not:
(i) Violate
any judgment, order, writ or decree of any court or administrative body
applicable to Executive;
(ii) Result
in
the breach of, constitute a default under, constitute an event which with
notice
or lapse of time, or both, would become a default under, or result in the
creation of any right to proceed against Employer under any agreement,
commitment, contract (written or oral) or other instrument to which Executive
is
a party.
(b)
Executive
is not subject to any non-compete, non-disclosure or similar agreement
(whether
oral or written) with any third party.
XII
EXTENT
OF RELATIONSHIP
|
EXECUTIVE
HEREBY ACKNOWLEDGES THAT THIS AGREEMENT (AND ALL OTHER REFERENCES
HEREIN)
THE SOLE AGREEMENT BETWEEN EMPLOYER AND EXECUTIVE REGARDING
THE EXTENT OF
THE EMPLOYMENT RELATIONSHIP BETWEEN EMPLOYER AND EXECUTIVE.
THERE IS NO
OTHER AGREEMENT, EXPRESS OR IMPLIED, BETWEEN EMPLOYER AND EXECUTIVE
FOR
EMPLOYMENT BEYOND THE TERM SPECIFIED HEREIN OR UNDER ANY CONDITIONS
OTHER
THAN THOSE STATED HEREIN. EMPLOYER AND EXECUTIVE BOTH HAVE
THE RIGHT TO
TERMINATE THIS AGREEMENT ONLY IN STRICT COMPLIANCE WITH
THE TERMS AND CONDITIONS OF THIS AGREEMENT.
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|
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_______________
Employer Initials
|
 |
XIII
NOTICES
All
notices, requests, demands and other communications required or permitted
to be
given hereunder shall be effected pursuant to Section 14.13, below, as
follows:
|
If
to Employer:
Mr.
Xxxxx Xxxxxx
Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx X
Xxxxxx,
Xxxxxxxxxx, 00000
|
With
a copy to:
Xxxxx
X. Xxxxxxxxx, Esq.
SPECTRUM
LAW GROUP, LLP
0000
Xxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
|
If
to
Executive:
Mr.
J.
Xxxxxxx Xxxxxx
Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx X
Xxxxxx,
Xxxxxxxxxx, 00000
/
/ / / /
/
/ / / /
/
/ / / /
XIV
ADDITIONAL
PROVISIONS
14.1
Executed
Counterparts. This
Agreement may be executed in any number of original, fax, electronic, or
copied
counterparts, and all counterparts shall be considered together as one
agreement. A faxed, electronic, or copied counterpart shall have the same
force
and effect as an original
signed counterpart. 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.
14.2
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.
14.3
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.
14.4
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.
14.5
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.
14.6
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.
14.7
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.
14.8
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.
14.9
Amendment. This
Agreement may be amended or modified only by a writing signed by all
Parties.
14.10 Remedies.
14.10.1.
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.
14.10.2.
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.
14.11
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.
14.12
Assignability. This
Agreement is not assignable by either Party without the expressed written
consent of all Parties.
14.13
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.
14.14
Time. All
Parties agree that time is of the essence as to this Agreement.
14.15
Disputes. The
Parties agree to cooperate and meet in order to resolve any disputes or
controversies arising under this Agreement. Should they be unable to do
so, then
either may elect arbitration under the rules of the American Arbitration
Association, and both Parties are obligated to proceed thereunder, to resolve
all disputes, other than those arising under Section 6.8, above.
Arbitration
shall proceed in Orange County, and the Parties agree to be bound by the
arbitrator's award, which may be filed in the Superior Court of California,
County of Orange. The Parties consent to the jurisdiction of California
Courts
for enforcement of this determination by arbitration. The prevailing Party
shall
be entitled to reimbursement for his attorney's fees and all costs associated
with arbitration. In any arbitration proceeding conducted pursuant to the
provisions of this Section, both Parties shall have the right to conduct
discovery, to call witnesses and to cross-examine the opposing Party's
witnesses, either through legal counsel, expert witnesses or both, and
the
provisions of the California Code of Civil Procedure (Right to Discovery;
Procedure and Enforcement) are hereby incorporated into this Agreement
by this
reference and made a part hereof.
14.16
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.
14.17
Incorporation
of Exhibits and Schedules. The
Exhibits and Schedules identified in this Agreement are incorporated herein
by
reference and made a part hereof as if set out in full herein.
14.18
Recitals. The
facts
recited in Article II, above, are hereby conclusively presumed to be true
as
between and affecting the Parties.
14.19
Consents,
Approvals, and Discretion. Except
as
herein expressly provided to the contrary, whenever this Agreement requires
consent or approval to be given by a Party, or a Party must or may exercise
discretion, the Parties agree that such consent or approval shall not be
unreasonably withheld, conditioned, or delayed, and such discretion shall
be
reasonably exercised. Except as otherwise provided herein, if no response
to a
consent or request for approval is provided within ten (10) days from the
receipt of the request, then the consent or approval shall be presumed
to have
been given.
14.20
No
Third Party Beneficiaries. This
Agreement has been entered into solely by and between Employer and Executive,
solely for their benefit. There is no intent by either Party to create
or
establish a third party beneficiary to this Agreement, and no such third
party
shall have any right to enforce any right, claim, or cause of action created
or
established under this Agreement.
14.21
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.
14.22
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.
14.23
Survival. Notwithstanding
anything herein to the contrary, the provisions of Section 5.6 and Articles
VI,
VII, VIII, and IX, inclusive, shall expressly survive the termination of
this
Agreement.
XV
EXECUTION
IN
WITNESS WHEREOF, this
EXECUTIVE EMPLOYMENT AGREEMENT has been duly executed by the Parties in
Orange
County, California, and shall be effective as of and on the Effective Date
set
forth in Article I of this Agreement. Each of the undersigned Parties hereby
represents and warrants that it (i) has the requisite power and authority
to
enter into and carry out the terms and conditions of this Agreement, as
well as
all transactions contemplated hereunder; and, (ii) it is duly authorized
and
empowered to execute and deliver this Agreement.
|
EMPLOYER:
|
EXECUTIVE:
|
|
OXFORD
MEDIA, INC., a California
corporation
|
|
|
BY:
 |
 |
|
NAME
J '3``t
`°
TITLE:
C
C - 0
DATED:
|
SERVICES
EXHIBIT
4.1
BASE
ANNUAL SALARY
First
Twelve Months $320,000.00
annually
Thereafter,
no less than $320,000 and increased in accordance with performance based
incentives to be determined by Employer.
INDEMNIFICATION
AGREEMENT
