SETTLEMENT AND RELEASE AGREEMENT
|
SETTLEMENT
AND RELEASE
AGREEMENT
|
XXXXXX
XXXXXXXXX
and
EFFECTIVE
DATE:
16
MAY 2006
SETTLEMENT
AND RELEASE AGREEMENT
I
PARTIES
THIS
SETTLEMENT AND RELEASE AGREEMENT
(the
“Agreement”) is entered into effective as of the 16th
day of
May, 2006 (the “Effective Date”), by and between XXXXXX XXXXXXXXX, an individual
residing in the State of California (“Xxxxxxxxx”); and,
OXFORD
MEDIA, INC., a Nevada corporation (“OXMI”). Xxxxxxxxx and OXMI are sometimes
referred to collectively herein as the “Parties”, and each individually as a
“Party”.
II
RECITALS
X. Xxxxxxxxx
was employed by OXMI pursuant the terms and conditions of an employment
agreement with an effective date of 01 October 2005 (the “Employment
Agreement”).
B. In
addition to rendering services pursuant to the Employment Agreement, Xxxxxxxxx
also serves as Chairman of the Board of OXMI as of the Effective Date.
C. The
Parties mutually desire to terminate Xxxxxxxxx’x employment relationship with
OXMI and have Xxxxxxxxx resign his position as Chairman of OXMI, without
dispute, effective as of the Effective Date of this Agreement. The Parties
agree
to do so based upon the terms and conditions of this Agreement, including but
not limited to the mutual promises and assurances of each Party that neither
will assert any claims of any kind against each other, whether arising out
of
(i) Xxxxxxxxx’x employment with OXMI; or, (ii) any other relationship or claim
of right whatsoever arising out of or any manner or form related to the
relationship between the Parties, in exchange for the valid consideration to
be
transferred between each other.
D. This
Agreement is to specifically encompass all of the claims and related factual
and
legal circumstances noted above (collectively referred to as the “Disputes”). 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 supercedes, amends,
and restates any other agreements of any kind between the Parties.
E. All
Parties are desirous of settling the Disputes and releasing each other from
all
future liability.
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:
/
/ / / /
/
/ / / /
1
III
RELEASE
3.1 Exchange.
In
consideration of the execution of this Agreement, the stock issuance described
below to be made by OXMI to Xxxxxxxxx, the satisfaction of the obligations
of
each of the respective Parties hereunder, and other good and valuable
consideration, the receipt and value of which is hereby confirmed, Xxxxxxxxx
and
his successors and assigns and any and all controlled or affiliated entities
(including but not limited to Redwood Investment Group, LLC) on the one hand
(the “Xxxxxxxxx Parties”), and OXMI and its controlled entities on the other
hand (the “OXMI Parties”), 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, from all relationships between
the
Parties, specifically including, but not limited to, the Disputes (cumulatively
referred to as the “Released Claims”).
3.2 Complete
Release and Hold Harmless.
Each of
the Xxxxxxxxx Parties and the OXMI Parties, for himself, itself, their heirs,
executors, administrators, successors, and assigns, hereby agree to release,
discharge and hold harmless each other and their managers, officers, members,
directors, affiliates, 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 Disputes,
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 are hereto expressly, fully,
knowingly and intentionally forever waived and relinquished by the Parties.
All
Parties hereby acknowledge that each understands the significance and
consequences of such specific waiver under §1542 of the California Civil Code,
and that each has had the opportunity to seek the advice of legal counsel of
their choosing.
3.3 Scope
of Xxxxxxxxx’x Release.
Xxxxxxxxx
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; all claims of
discrimination or harassment on account of race, sex, sexual orientation,
national origin, religion, disability, age, 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; 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 Xxxxxxxxx
ever had, now has, or may claim to have as of the date of this Agreement.
2
3.4 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.
3.5 No
Prior 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 indemnify
the Party against whom such claim is asserted for any and all damages, costs,
and fees.
3.6 Specific
Exclusion.
It is
expressly understood that the release contained in this Agreement does not
encompass the promises and obligations of the Parties under this Agreement,
specifically including but not limited to the provisions of Article V, below.
This Agreement also does not contemplate or include within the release hereunder
post-Effective Date intentionally willful, tortious, or criminal acts of either
Party, such acts being expressly excluded from this Agreement.
3.7 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 Disputes.
IV
EMPLOYMENT
RELATIONSHIP
4.1 Voluntary
Termination.
The
Parties hereby agree that Xxxxxxxxx has voluntarily terminated his employment
with OXMI, and that his last day of employment by and with OXMI shall be deemed
to be the Effective Date. The Employment Agreement shall be deemed to be
terminated as of the Effective Date.
4.2 Resignation
of Positions.
As of
the Effective Date and as additional consideration hereunder, Xxxxxxxxx shall
voluntarily resign any and all positions as an officer, director, and employee
he may hold in and with OXMI and in and with any and all of the OXMI Parties.
4.3 Medical
Insurance.
Group
medical plan coverage of Xxxxxxxxx, if applicable, will cease unless Xxxxxxxxx
makes a proper election to continue such coverage under COBRA. All such coverage
will be solely at the expense of Xxxxxxxxx and subject to the terms and
conditions of the documents governing the medical plan. It is the sole
responsibility of Xxxxxxxxx to comply with said terms and conditions, and OXMI
will have no liability for the failure of Xxxxxxxxx to acquire COBRA coverage.
3
4.4 Offsets
and Express Waiver of All Other Amounts.
The
Parties hereby disagree over the amount, if any, (i) which the OXMI Parties
may
owe to Xxxxxxxxx for accrued vacation, accrued wages, and similar items; and
(ii) which Xxxxxxxxx may owe to the OXMI Parties for advances and other amounts.
The Parties hereby agree to cancel and eliminate all such amounts. As such,
(i)
Xxxxxxxxx hereby acknowledges that he is not entitled to receive, and will
not
claim, any further
consideration, compensation, payments, reimbursements, damages,
rights, benefits,
or
distributions of any kind (specifically including but not limited to wages,
sick
leave, and vacation time) from the OXMI Parties, other
than as expressly set forth in this Agreement; and, (ii) OXMI hereby
acknowledges that it the OXMI Parties are not entitled to receive, and will
not
claim, any further
payment of any kind from Xxxxxxxxx, other
than as expressly set forth in this Agreement.
V
STOCK
ISSUANCE PROVISIONS
5.1 Issuance
of Settlement Shares.
As soon
as practicable after the Effective Date and upon the filing of the Form S-8,
as
required below, OXMI shall issue to Xxxxxxxxx three hundred ninety three
thousand three hundred three (393,333) shares of the common stock of OXMI (the
“Settlement Shares”), subject to the following additional terms and
conditions:
(a) Three
hundred thirty three thousand three hundred thirty three (333,333) shares of
the
Settlement Shares (the “Free Trading Shares”) shall be registered on a duly
prepared Form S-8, to be filed by OXMI with the Securities and Exchange
Commission no later than three (3) days after the Effective Date.
(b) Upon
filing of the Form S-8, the Free Trading Shares shall be “free trading, as that
term is commonly defined.
(c) The
Free
Trading Shares shall be subject to “lock up”, as that term in commonly defined
in a securities context, with Xxxxxxxxx not being able to sell the Free Trading
Shares during the first thirty (30) days after the Effective Date. Thereafter,
during the next one hundred fifty (150) days, Xxxxxxxxx shall not sell during
any thirty (30) day period a total of Free Trading Shares in excess of the
lesser of (i) the maximum amount permitted under applicable rules and
regulations of the Securities and Exchange Commission; or, (ii) sixty six
thousand six hundred sixty six (66,666) shares of the Free Trading
Shares.
5.2 Issuance
of Employment Shares .
As soon
as practicable after the Effective Date, OXMI shall issue to Xxxxxxxxx the
one
hundred thousand (100,000) shares of the common stock of OXMI (the “Employment
Shares”) to which Xxxxxxxxx was entitled to receive as of 01 March 2006 under
the Employment Agreement, subject to the following additional terms and
conditions:
(a) The
Employment Shares shall be issued as“restricted
shares” under Rule 144 of the Securities Act of 1933.
(b) The
Employment Shares are the only shares of stock of OXMI which Xxxxxxxxx shall
receive the Employment Agreement
and he
is not entitled to any other or additional stock of any kind under the
Employment Agreement.
(c) The
certificate representing the Employment Shares shall have endorsed thereon
the
following legend, in addition to any other legend(s) required under applicable
law:
4
The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended (the “Act”) and are “restricted securities”
as defined in Rule 144 under the Act. These shares may not be offered, sold,
pledged, hypothecated or otherwise disposed of or transferred in any manner
absent either (i) registration under the act and under applicable state
securities laws, or (ii) an exemption from registration under the act and
applicable state securities laws is available in connection with such offer,
sale or disposition, or (iii) an opinion of counsel satisfactory to the issuer
and its counsel (such satisfaction being in the form and substance of the
opinion as well as the counsel rendering the opinion) that registration
thereunder is not required.
5.3 General
Stock Provisions.
The
following provisions shall apply to the Settlement Shares and the Employment
Shares (collectively, the “Issued Shares”):
(a) The
Issued Shares will
be
free and clear of all liens and encumbrances, and OXMI confirms that it has
full
and unrestricted power to issue and deliver the Issued Shares pursuant to the
provisions of this Agreement.
(b) The
Issued Shares are being acquired by Xxxxxxxxx for Xxxxxxxxx’x own personal
account, for investment purposes only, and not with a view to the distribution,
resale, or other disposition thereof.
(c) Xxxxxxxxx
is an “accredited investor”, as that term is defined under Rule 501(a) of
Regulation D under the Securities Act of 1933, and Xxxxxxxxx shall execute
and
deliver all documentation prepared and reasonably requested by OXMI in order
to
confirm Xxxxxxxxx’x status as an accredited investor.
(d) Each
time
Xxxxxxxxx seeks to sell a block of at least twenty five thousand (25,000) of
the
Issued Shares, Xxxxxxxxx shall provide OXMI with a written notice and a right
of
first refusal to acquire the subject shares. The right of first refusal may
exercised by OXMI within one (1) business day of Xxxxxxxxx’x notice by providing
written notice to Xxxxxxxxx.
5.4 Agreement
Not to Short.
Xxxxxxxxx hereby agrees that at no time after the Effective Date shall he
“short” any stock of OXMI, as that term is commonly defined in a securities
context.
5.5 Tax
Reporting.
The
Parties agree that the Issued Shares shall be treated as additional income
to
Xxxxxxxxx and OXMI shall report said issuance to all applicable taxing agencies
on the appropriate forms. The Parties further agree that for all purposes the
Settlement Shares shall be valued at Five Hundred Ninety Thousand Dollars
($590,000) as of the Effective Date and at the time of the issuance of the
Free
Trading Shares.
VI
CONFIDENTIALITY
AND BUSINESS RELATED PROVISIONS
5
6.1 Agreement
as Confidential.
The
Parties shall keep the existence and terms and conditions of this Agreement
completely and strictly confidential and shall not disclose same to any other
person, except as follows:
(a) To
comply
with the applicable rules and regulations of the Securities and Exchange
Commission;
(b) As
part
of the press release issued pursuant to Section 6.7, below;
(c) To
comply
with applicable law or legal process, or upon order of any court of competent
jurisdiction, in any action in which either of the Parties is a party, or either
Party is subpoenaed as a witness, to agencies, individuals, or entities to
whom
the subpoena requires disclosure, including, but not limited to, state or
federal employment or taxing entities, provided that in the event of any such
required disclosure the Party subject to such requirement will advise the other
Party in advance of any such disclosure to allow such other Party to seek
appropriate relief.
(d) To
such
Party’s tax or financial advisors, attorneys and, in the case of Xxxxxxxxx, to
his spouse, on the further condition that the disclosing Party advise such
individuals in advance of disclosure that the existence and terms and conditions
of the Agreement are strictly confidential and any such party expressly agrees
for the benefit of the other Party to keep the terms and conditions strictly
confidential;
(e) To
remedy
a breach of any term or condition herein.
6.2 Non-Disclosure
of Business Information.
Xxxxxxxxx
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.
6.3 Non-Solicitation
of Employees.
During
and continuing for a period of three (3) years after the Effective Date of
this
Agreement, Xxxxxxxxx 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.
6.4 Non-Solicitation
of Business.
During
and continuing for a period of three (3) years after the Effective Date of
this Agreement, Xxxxxxxxx shall not (i) solicit business from any customer
of OXMI, to the extent such business relates to a product or service competitive
with an OXMI product or service, or (ii) otherwise attempt to induce any
such customer of OXMI to cease doing business with, or to decrease the amount
of
business such customer does with, OXMI.
6
6.5 Return
of Materials.
Upon
execution of this Agreement Xxxxxxxxx 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
Xxxxxxxxx.
6.6 No
Disparaging Remarks.
6.6.1. By
Xxxxxxxxx.
Xxxxxxxxx
agrees that he shall not make, or cause to be made, any statement or communicate
any information (whether oral or written) that disparages or reflects negatively
on OXMI or any of its executive management team. Nothing
herein shall preclude Employee from complying with a subpoena or other lawful
process.
6.6.2. By
OXMI.
OXMI
agrees that it shall not make, or cause to be made, any statement or communicate
any information (whether oral or written) that disparages or reflects negatively
on Xxxxxxxxx. OXMI shall further exercise its best efforts to ensure that none
of its executive management team makes, or causes to be made, any statement
or
communicates any information (whether oral or written) that disparages or
reflects negatively on Xxxxxxxxx. It shall not be a violation of this Section
6.6 if an employee or independent contractor of OXMI disparages Xxxxxxxxx or
interferes with the efforts of Xxxxxxxxx to obtain subsequent employment outside
the scope of his or her employment or without the authority of OXMI, and OXMI
shall have no liability for such unauthorized acts. Nothing herein shall
preclude OXMI from complying with a subpoena or other lawful
process.
6.7 Press
Release.
The
Parties hereby agree that OXMI may issue the press release attached hereto
as
Exhibit 6.7 as soon as practicable after the Effective Date. The press release
shall contain an affirmation by Xxxxxxxxx of his continued support for the
business of OXMI and its management team.
6.8 Forwarding
of E-Mail.
For a
period of one hundred eighty (180) days from the Effective Date OXMI shall
ensure that all E-Mails coming to Xxxxxxxxx or to Xxxxx Xxxxxxxxx on either
of
their respective xxxxxxxxxxxxxxx.xxx or xxxxxxxxxxxxxx.xxx E-Mail accounts
shall
be forwarded to that E-Mail account designated by Xxxxxxxxx, as changed from
time-to-time in the sole discretion of Xxxxxxxxx.
6.9 Retention
of Computer Equipment.
Subject
to the requirements of Section 6.5, above, Xxxxxxxxx shall retain ownership
of
the OXMI computer equipment currently in his possession.
6.10 Personal
Items.
As soon
as practicable after the Effective Date and at a time and date reasonably
acceptable to all Parties, Xxxxxxxxx shall be allowed to retrieve all of his
personal possession from his office.
6.11
Financing
Transactions.
At the
Effective Date Xxxxxxxxx shall disclose to OXMI the names and pertinent contact
information for all funding sources with whom he has contacted or been speaking
in regard to a potential investment in or financing transaction with OXMI.
Upon
reasonable request, Xxxxxxxxx shall render reasonable support and assistance,
at
no further cost, to enable OXMI to obtain an investment or financing
transaction.
7
VII
ADDITIONAL
REPRESENTATIONS AND OBLIGATIONS
7.1 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, duress, or undue influence.
7.2 Disclosure
and Waiver of Conflicts.
In
connection with the preparation of this Agreement, each of the Parties hereby
acknowledge and agree that: (i) SPECTRUM LAW GROUP, LLP, the law firm that
prepared this Agreement (“Spectrum”) acted as legal counsel to OXMI; (ii)
Xxxxxxxxx has advised by Spectrum that the interests of Xxxxxxxxx may be opposed
to the interests of OXMI, and, accordingly, Spectrum’s representation of OXMI
may not be in the best interests of Xxxxxxxxx; and, (iii) Xxxxxxxxx has been
advised by Spectrum to retain separate legal counsel. Notwithstanding the
foregoing, Xxxxxxxxx expressly (i) desires that Spectrum represent OXMI; (ii)
acknowledges that he has been advised to retain separate counsel, and as to
any
issues as to which he has not done so, has waived his right to do so; and,
(iii)
forever waives any claim that Spectrum’s representation and continued
representation of OXMI constitutes a conflict of interest.
7.3 Execution
and Effect of Agreement.
7.3.1. By
OXMI.
OXMI
hereby warrants and represents to Xxxxxxxxx the following:
(a) It
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. All proceedings have been taken and all authorizations have been
secured which are necessary to authorize the execution, delivery, and
performance by OXMI of this Agreement. This Agreement has been duly and validly
executed and delivered by OXMI and constitutes the valid and binding obligations
of OXMI, enforceable in accordance with the respective terms.
(b) The
consummation by OXMI of the transactions herein contemplated, including the
execution, delivery and consummation of this Agreement, will not violate (i)
any
judgment, statute, law,
code,
act, order,
writ, rule, ordinance, regulation, governmental
consent or governmental requirement, or
determination or decree of any arbitrator, court, or other governmental agency
or administrative body, which
now
or at any time hereafter may be applicable to and enforceable against the
relevant party, work, or activity in question or any part thereof (collectively,
“Requirement of Law”) applicable to or binding upon OXMI; (ii) the
terms
of the Certificate of Incorporation or Bylaws of OXMI; or, (iii) any material
agreement, contract, mortgage, indenture, xxxx, xxxx, note, or other material
instrument or writing binding upon OXMI or to which OXMI is
subject.
7.3.2. By
Xxxxxxxxx.
Xxxxxxxxx hereby warrants and represents to OXMI the following:
8
(a) He
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. All proceedings have been taken and all authorizations have been
secured which are necessary to authorize the execution, delivery, and
performance by Xxxxxxxxx of this Agreement. This Agreement has been duly and
validly executed and delivered by Xxxxxxxxx and constitutes the valid and
binding obligations of Xxxxxxxxx, enforceable in accordance with the respective
terms.
(b) The
consummation by Xxxxxxxxx of the transactions herein contemplated, including
the
execution, delivery, and consummation of this Agreement, will not violate any
Requirement
of Law applicable to or binding upon Xxxxxxxxx.
VIII
NOTICES
All
notices, requests, demands and other communications required or permitted to
be
given hereunder shall be effected pursuant to Section 9.13, below, as
follows:
|
If
to OXMI:
|
With
a copy to:
|
|
Xx.
Xxxxx X. Xxxxxx
|
Xxxxx
X. Xxxxxxxxx, Esq.
|
|
SPECTRUM
LAW GROUP, LLP
|
|
|
One
Technology Drive
|
0000
Xxxx Xxxxxx
|
|
Xxxxxxxx
X
|
Xxxxx
000
|
|
Xxxxxx,
Xxxxxxxxxx 00000
|
Xxxxxx,
Xxxxxxxxxx 00000
|
|
If
to Xxxxxxxxx:
|
|
|
Xx.
Xxxxxx Xxxxxxxxx
|
IX
ADDITIONAL
PROVISIONS
9.1 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.
9.2 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.
9.3 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.
9
9.4 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.
9.5 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.
9.6 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.
9.7
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.
9.8 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.
9.9 Amendment.
This
Agreement may be amended or modified only by a writing signed by all
Parties.
9.10
Remedies.
9.10.1. 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.
9.10.2. 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.
9.11
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.
9.12
Assignability.
This
Agreement is not assignable by either Party without the expressed written
consent of all Parties.
10
9.13
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.
9.14 Time.
All
Parties agree that time is of the essence as to this Agreement.
9.15
Agreement
to Arbitrate.
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. Arbitration
shall proceed in Orange County, and the Parties agree to be bound by the
arbitrator’s award, which shall be a final judgment and 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
Agreement, and in particular this Section 9.16 and the determination and award
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.
9.16
Waiver
of Trial.
IN
ACCORDANCE WITH THE AGREEMENT OF THE PARTIES TO ARBITRATE ALL DISPUTES PURSUANT
TO SECTION 9.15, 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 9.16 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 9.16 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
9.17
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.
9.18
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.
11
9.19
Recitals.
The
facts recited in Article II, above, are hereby conclusively presumed to be
true
as between and affecting the Parties.
9.20
No
Third Party Beneficiaries.
This
Agreement has been entered into solely by and between Xxxxxxxxx and OXMI. Other
than the OXMI Parties and the Xxxxxxxxx Parties, 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.
9.21
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.
9.22
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.
X
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 Article I, 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.
12
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XXXXXXXXX:
|
OXMI:
|
|
a
California corporation
|
|
|
/s/
Xxxxxx
Xxxxxxxxx
|
|
|
XXXXXX
XXXXXXXXX
|
|
|
DATED:
05-16-2006
|
BY:
/s/ Xxxxx X.
Xxxxxx
|
|
NAME:
XXXXX X. XXXXXX
|
|
|
TITLE:
Vice Chairman
|
|
|
DATED:
05-16-2006
|
13
