Exhibit 10.3
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This Separation Agreement and Release of Claims ("Agreement") is entered
into by and between XXXXXXX XXXXXX ("XXXXXX") and XXXXXX.XXX, INC. ("YOUBET")
(collectively the "Parties").
RECITALS
X. XXXXXX has been employed by YOUBET in Woodland Hills, Los Angeles
County, California.
B. YOUBET and XXXXXX wish to change XXXXXX'x duties, responsibilities,
term, and place of employment.
X. XXXXXX wishes to compromise and settle any and all claims and issues,
if any, against YOUBET and its affiliated entities, arising from or related to,
his employment with YOUBET and/or its affiliates, on the terms and conditions
expressed in this Agreement.
NOW, THEREFORE, based upon the following, in consideration of the mutual
terms, covenants and conditions hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged by
each party, XXXXXX and YOUBET agree as follows:
SECTION 1 PAYMENTS TO XXXXXX
1.1 In consideration for XXXXXX'x covenants and promises pursuant to the
terms of this Agreement, including without limitation XXXXXX'x General Release
contained in Section 3, below, YOUBET shall cause the following sums to be paid
to XXXXXX which shall include payments to which XXXXXX is not otherwise
entitled:
a) Salary continuation in an amount equal to XXXXXX'x current
base salary compensation from the effective date of this Agreement as defined in
Section 15, below (the "Effective Date") through December 31, 2004 (the
"Separation Date") (collectively, the "Separation Period"). Such payments shall
be made in accordance with YOUBET's standard pay schedule and payroll practices;
b) In addition to salary continuation, a first lump sum payment
of Fifty Thousand Dollars ($50,000) payable on June 8, 2004; and
c) A second lump sum payment of Thirty-Five Thousand Dollars
($35,000) payable on January 3, 2005, but not before that date.
All payments pursuant to this Section 1.1 shall commence on the first
regular business day following YOUBET's receipt of this Agreement duly executed
by XXXXXX and the expiration of the seven (7) day revocation period set forth in
Section 15 below. All payments made pursuant to this Section 1.1 shall be
subject to standard withholdings for income taxes, social security and other
applicable state and federal employment taxes.
SECTION 2 ANCILLARY OBLIGATIONS
2.1 YOUBET further agrees that employment references and all other
inquiries and statements regarding XXXXXX'x employment with YOUBET will be
limited to the following:
a) In the event an inquiry is made by a prospective employer or
other person following the Effective Date of this Agreement, whether or not
accompanied by a written waiver, release or other authorization signed and dated
by XXXXXX, YOUBET will provide information regarding XXXXXX'x dates of
employment and position held and YOUBET will, if requested, provide the attached
reference letter signed by the CEO. XXXXXX agrees that all such inquiries shall
be directed to YOUBET'S CEO for response and said response shall be consistent
with said reference letter.
b) In the event YOUBET is requested to make XXXXXX'x personnel
file available as part of a judicial or administrative case or investigation,
YOUBET will comply with any court or administrative order to the same extent
that it would comply in the case of other former employees.
2.2 Transition Period. XXXXXX agrees that, during the first ninety (90)
days of the Separation Period, XXXXXX shall be available to educate and assist
YOUBET employees in YOUBET's Woodland Hills office or in any other location the
company, at its sole discretion shall determine, in order to transition XXXXXX'x
current workload and projects to others in accordance with the CEO of YOUBET's
directives (the "Transition Period"). This Transition Period may be shortened at
the discretion of the CEO. Thereafter, the Parties agree that XXXXXX shall
perform such services as directed by the CEO via telecommunication from XXXXXX'x
home in Tennessee until the expiration of the Separation Period. Effective with
the expiration of the Transition Period, XXXXXX'x job title shall be Director of
Business Development and he will no longer hold any officer titles with the
company. XXXXXX further acknowledges and agrees that upon conclusion of the
Separation Period, he shall resign his position from YOUBET without further
obligation or liability by YOUBET.
2.3 Benefits. YOUBET shall extend to XXXXXX the right to remain insured
under YOUBET's group health care plan, as required by the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA"). Until the expiration of
the Separation Period, XXXXXX shall continue to receive the following benefits
as they exist upon the execution of this Agreement: vacation, sick pay, car
allowance, 401(k) plan, health insurance, and life insurance, except as it
relates to XXXXXX'x living expense reimbursement for living in Los Angeles,
California, said living expenses shall cease 30 days after the expiration of the
Transition Period. Nothing in this Agreement shall affect XXXXXX'x existing
stock option rights, Director's and Officers insurance coverage, or any matters
related to duplicative living expenses as previously agreed to between the
parties. XXXXXX understands and agrees that, except as specifically set out in
this Agreement, no other compensation or benefits are due. Any benefits not
specifically stated in this Agreement to continue shall cease as of the date of
the expiration of the Separation Period.
SECTION 3 GENERAL RELEASE
3.1 XXXXXX forever releases and discharges YOUBET and its past and present
subsidiary corporations, parent corporations, affiliates, partners, joint
venturers, successors, assigns, contractors and subcontractors, and the
officers, directors, shareholders, employees, agents and attorneys (in their
individual and representative capacities, including without
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limitation YOUBET's outside legal counsel, YOUBET's inside legal counsel, and
legal counsel of each related or affiliated entity of YOUBET) of each of the
foregoing ("Releasees"), from any and all claims, demands, losses, damages,
actions, causes of action, suits, debts, promises, liabilities, obligations,
liens, costs, expenses, attorney's fees, indemnities, subrogations (contractual
or equitable) or duties, of any nature, character or description whatsoever,
whether known or unknown, fixed or contingent, accrued or not yet accrued,
matured or not yet matured, anticipated or unanticipated, asserted or
unasserted, arising from, or relating to, directly or indirectly, XXXXXX'x
hiring, employment or separation from employment with YOUBET. Nothing in this
release shall affect XXXXXX'x rights as a shareholder unless related to his
employment.
3.2 The release of claims in Subsection 3.1 includes, but is not limited
to, claims at law or equity or sounding in contract (express or implied) or
torts arising under federal, State of California, other state or local laws or
the common law prohibiting age, sex, race, national origin, disability, veteran
status or any other forms of discrimination, including, but not limited to, the
Equal Pay Act, the Fair Labor Standards Act, as amended, the National Labor
Relations Act, as amended, Title VII of the Civil Rights Act of 1964, as
amended, the Post-Civil War Reconstruction Acts, as amended (42 U.S.C.
"1981-1988), the Civil Rights Act of 1991, the Older Workers Benefit Protection
Act, the Age Discrimination in Employment Act of 1967, as amended, the Americans
with Disabilities Act of 1990, the Rehabilitation Act of 1973, as amended, the
Employee Retirement Income Security Act of 1974, as amended, the Civil Rights
Act of 1991, the Family and Medical Leave Act of 1993, Occupational Safety and
Health Act, California's Fair Employment and Housing Act, California's Family
Rights Act, California's Labor Code (including without limitation any claims
under Labor Code Section 132a), the California Constitution, any other federal
statute, any state civil rights act, any state statutory wage claim, or claims
arising out of any legal restrictions on XXXXXX'x employment by or separation
from YOUBET, any other statutory claim, any claim of wrongful discharge, any
claim in tort or contract (including without limitation, any claims under
XXXXXX'x Employment Agreement or any Supplement or Amendment thereto), covenant
of good faith and fair dealing, fraud, negligent or intentional infliction of
emotional distress, defamation, negligence, wrongful termination in violation of
public policy, retaliation, any claim seeking declaratory, injunctive, or
equitable relief, or any other claim of any type whatsoever, arising out of the
common law of any state ("Released Claims"). XXXXXX likewise releases YOUBET
from any and all obligations for attorneys' fees incurred in regard to the above
claims. XXXXXX further acknowledges that XXXXXX does not believe he suffered any
injuries in connection with his employment at YOUBET that might be covered by
workers' compensation laws. Notwithstanding the foregoing, the Released Claims
shall not include any claims based on obligations created by or reaffirmed in
this Agreement.
3.3 It is understood and agreed by all parties hereto that the sums paid
to XXXXXX constitute (a) full, complete and final payment of any and all sums
owing for compensation as an employee of YOUBET; and (b) the sole consideration
for and settlement in full accord and satisfaction of any and all claims by
XXXXXX or any person acting by, through or under XXXXXX, jointly and/or
severally, against the Releasees.
3.4 The parties are not aware of any material facts relative to the
negotiation of this contract that have not been made available to the other
party. XXXXXX acknowledges that he may later discover material facts in addition
to, or different from, those which he now knows or believes to be true with
respect to negotiation, execution or performance of this Agreement. XXXXXX
further acknowledges that there may be future events, circumstances, or
occurrences
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materially different from those he knows or believes likely to occur. It is
XXXXXX'x intention to fully, finally, and forever settle and release all claims,
disputes and differences between XXXXXX and YOUBET. The releases provided in
this Agreement shall remain in full effect notwithstanding the discovery or
existence of any additional different facts or circumstances or any such future
events, circumstances or conditions. In furtherance of XXXXXX'x intent and
understanding, XXXXXX hereby expressly waives any and all benefits conferred
upon him by Section 1542 of the California Civil Code which provides:
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, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
3.5 XXXXXX forever agrees to defend, indemnify, and hold harmless YOUBET
and Releasees from any and all claims asserted against any of them as a result
of, or in connection with, any action or proceeding brought, directly or
indirectly, by: a) on behalf of, in the name of, or by anyone claiming standing
through XXXXXX contrary to the releases provided in this Agreement; or b) anyone
who seeks compensation from a Releasee based upon damage allegedly done to
XXXXXX during or as a result of employment with, or termination from, YOUBET.
SECTION 4 COVENANTS
4.1 Non-Disclosure. The terms and conditions of this Agreement and the
existence of this Agreement shall be kept completely confidential and shall not
be disclosed by XXXXXX or any of XXXXXX'x agents, except XXXXXX may disclose the
substance of this Agreement to the extent necessary as follows: a) to XXXXXX'
professional advisors, attorneys, accountants, who have a reasonable need to
know; b) regulatory or taxing authorities; c) pursuant to court order issued by
a court or administrative agency of competent jurisdiction; d) if previously
made public by the Company in its SEC or other filings to establish
employability or e) to enforce this Agreement.
4.2 Non-Disparagement. XXXXXX will not take any action that disparages
YOUBET, any of its subsidiaries, parents or affiliates, or their respective
officers, directors, shareholders, partners or employees. Further, XXXXXX will
not make any verbal or written statement that disparages YOUBET, any of its
subsidiaries, parents or affiliates, or their respective officers, directors,
shareholders, partners or employees.
4.3 Confidentiality. XXXXXX agrees that he will not, directly or
indirectly, disclose, divulge, discuss, copy or otherwise use or suffer to be
used in any manner, contrary to the interests of YOUBET, any confidential,
proprietary information or trade secrets of YOUBET, it being acknowledged by
XXXXXX that all such information regarding the business or operation of YOUBET
compiled or obtained by, or furnished to, XXXXXX while he shall have been
employed by or associated with YOUBET is confidential information and the
exclusive property of YOUBET. XXXXXX, upon the expiration of the Separation
Period, shall return to YOUBET (if he has not already done so), all "YOUBET
Property," defined as including, but not limited to, keys, access cards, files,
memoranda, reports, computer software and hardware, credit cards, computer
disks, instructional and management manuals, books, cellular phones and computer
equipment, and all tangible and intangible YOUBET property, in whatever media,
not purchased from YOUBET, all documents containing YOUBET Information, and all
copies thereof. YOUBET Information does not include: (a) information or
knowledge that may now be in or subsequently may come into the public domain
other than by way of unauthorized disclosure by
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XXXXXX; or (b) information or knowledge which XXXXXX is required to disclose by
order of a governmental agency or court after timely notice has been provided to
YOUBET of such order. XXXXXX agrees that he will not retain copies, duplicates,
reproductions or excerpts of YOUBET Information, except to the extent the YOUBET
Information relates to his salary, benefits and/or compensation from YOUBET.
4.4 Non-Competition. Without the prior written consent of YOUBET, XXXXXX
shall not be employed by Internet gaming divisions of Magna Entertainment, TVG,
or AmericaTAB during, and for a period of one year after the expiration of the
Separation Period unless such restrictive covenant is otherwise prohibited by
applicable law. XXXXXX acknowledges that such covenant is reasonable in light of
his knowledge of YOUBET's trade secrets and confidential information and is
narrowly drawn so as not to prohibit XXXXXX from engaging in his chosen
profession.
4.5 Covenant Not to Xxx. XXXXXX shall not xxx or initiate against YOUBET
any compliance review, action, or proceeding, or participate in the same,
individually or as a member of a class, under any contract (express or implied),
or any federal, state, or local law, statute, or regulation pertaining in any
manner to the Released Claims unless compelled to do so by applicable law.
Nothing contained in this Section 4.5 shall prevent XXXXXX from providing
information to any state or federal administrative agency. Nothing in this
release shall affect XXXXXX'x rights as a shareholder unless related to his
employment.
4.6 Non-Encouragement of Claims. XXXXXX agrees that he will not induce or
encourage any other person or entity to pursue a claim against any Releasee.
XXXXXX further agrees that he will not assist or cooperate with any individual
who has filed, or is pursuing any actions, claim or litigation against any
Releasee, except as required by applicable law. XXXXXX also agrees that he will
not voluntarily provide documents, materials or any information to any person
who has or may hereafter have such a claim, or appear voluntarily as a witness
in a deposition, arbitration, or civil or administrative action involving a
Releasee or a Released Claim, unless compelled by subpoena or by order of the
applicable tribunal. Nothing in this release shall affect XXXXXX'x rights as a
shareholder unless related to his employment.
4.7 Covenant of Cooperation.
a) XXXXXX agrees to fully cooperate with YOUBET and its
affiliates during the entire scope and duration of any litigation or
administrative proceedings involving any matters with which XXXXXX was involved
during XXXXXX `s employment with YOUBET and applying for, obtaining or enforcing
any patent, copyright, or other right or protection relating to any invention.
b) In the event XXXXXX is contacted by parties or their legal
counsel involved in litigation adverse to YOUBET or its affiliates, XXXXXX (i)
agrees to provide notice of such contact as soon as practicable; and (ii)
acknowledges that any communication with or in the presence of legal counsel for
YOUBET (including without limitation YOUBET's outside legal counsel, YOUBET's
inside legal counsel, and legal counsel of each related or affiliated entity of
YOUBET) shall be privileged to the extent recognized by law and, further, will
not do anything to waive such privilege unless and until a court of competent
jurisdiction decides that the communication is not privileged. In the event the
existence or scope of the privileged communication is subject to legal
challenge, then YOUBET must either waive the privilege or pursue litigation to
protect the privilege at YOUBET's sole expense.
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c) Upon YOUBET's receipt of expense statements or vouchers or
such other supporting information as YOUBET may reasonably require, in
accordance with such reasonable practices, policies and procedures as YOUBET may
adopt from time to time, YOUBET shall reimburse XXXXXX for reasonable expenses
incurred in providing such assistance. XXXXXX acknowledges that such
reimbursement is limited to costs and expenses incurred in complying with the
obligations hereunder and do not include fees for services provided.
4.8 Covenant of Nonsolicitation. XXXXXX acknowledges that YOUBET has spent
considerable time and expense in training its workforce. From the Execution of
this Agreement and for the six months following the expiration of the Separation
Period, XXXXXX shall not, directly or indirectly, (a) encourage any employee of
YOUBET to leave his or her employment with YOUBET, its affiliated entities or
successors in interest; (b) employ, hire, solicit or cause to be employed, hired
or solicited (other than by YOUBET or any successor in interest thereto), any
person who is employed by YOUBET or successor(s) in interest: or (c) establish a
business with, or encourage others to establish a business with, any person who
is an employee of YOUBET or successor(s) in interest thereto.
4.9 Assignment of Inventions/Work for Hire.
(a) Following resignation from employment, XXXXXX agrees to
promptly disclose in writing to YOUBET all discoveries, copyrightable materials,
developments, designs, ideas, improvements, inventions, formulas, processes,
techniques, know-how, negative know-how, manuals, software, written or recorded
materials or information and data (whether or not patentable or registerable
under patent, copyright or similar statutes) made, conceived, reduced to
practice, or learned by XXXXXX, either alone or jointly with others, during his
employment with YOUBET, that (a) relate to or are useful in the business of
YOUBET or in YOUBET's actual or demonstrably anticipated research and
development; or (b) result from tasks assigned to XXXXXX by YOUBET or from use
of premises owned, leased, or otherwise acquired or used by YOUBET. Pursuant to
Labor Code Section 2872, this covenant shall not apply to discoveries,
developments or designs that qualify under Labor Code Section 2870 which is
attached hereto as Exhibit "1." Except as expressly excluded, all of the
foregoing described discoveries, developments, designs, etc., are referred to as
"Inventions."
(b) XXXXXX agrees that all Inventions belong to and are the sole
property of YOUBET and will be Inventions of YOUBET. XXXXXX irrevocably assigns
to YOUBET all right, title and interest XXXXXX may have or may acquire in and to
all Inventions. XXXXXX further agrees that YOUBET is under no further
obligation, monetary or otherwise, for such assignment. XXXXXX shall sign and
deliver to YOUBET (during and after employment) any other documents that YOUBET
considers desirable to provide evidence of (i) the assignment of all rights of
XXXXXX, if any, in any Inventions and (ii) YOUBET's ownership of such
Inventions.
(c) XXXXXX will assist YOUBET in applying for, prosecuting,
obtaining, or enforcing any patent, copyright, or other right or protection
relating to any Invention, all at YOUBET's expense, provided, however, that
reimbursement will be limited to actual costs and expenses incurred and not for
fees for services provided, unless otherwise agreed to in writing between the
parties.
(d) If unable to secure XXXXXX'x signature on any document
necessary to apply for, prosecute, obtain, or enforce any patent, copyright, or
other right or protection relating to any Invention, whether due to XXXXXX'x
mental or physical incapacity or YOUBET's inability to obtain XXXXXX'x signature
for any reason or cause, XXXXXX hereby irrevocably
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designates and appoints YOUBET and each of its duly authorized officers and
agents as XXXXXX'x agent and attorney-in-fact, to act for and in XXXXXX'x behalf
to execute and file any such document and to do all other lawfully permitted
acts to further the prosecution, issuance, and enforcement of patents,
copyrights, or other rights or protections, with the same force and effect as if
executed and delivered by XXXXXX.
4.10 XXXXXX expressly agrees and understands that the remedy at law for
any breach by him of this Section 4 will be inadequate and that the damages
flowing from such breach are not readily susceptible to being measured in
monetary terms. Accordingly, it is acknowledged that YOUBET shall be entitled to
immediate injunctive relief and if the court so permits, may obtain a temporary
order restraining any threatened or further breach on the posting of a minimal
bond. Nothing contained in this Section 4 shall be deemed to limit YOUBET's
remedies at law or in equity for any breach by XXXXXX of the provisions of this
Section 4 that may be pursued or availed of by YOUBET. Any covenant on XXXXXX `s
part contained herein, which may not be specifically enforceable, shall
nevertheless, if breached, give rise to a cause of action for monetary damages.
SECTION 5 BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon the
Parties and their respective heirs, successors and assigns. Except as
specifically provided in Section 3 of this Agreement, this Agreement is not
intended to create, and shall not create, any rights in any person who is not a
party to this Agreement.
SECTION 6 WAIVER
Neither the failure nor any delay on the part of any party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver
of that right, remedy, power or privilege. No waiver of any right, remedy, power
or privilege with respect to any particular occurrence shall be construed as a
waiver of such right, remedy, power or privilege with respect to any other
occurrence.
SECTION 7 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Parties and
supercedes any and all prior agreements including without limitation XXXXXX'x
Employment Agreement and any supplement or amendment thereto. This Agreement may
not be changed or terminated orally, but only by a written instrument executed
by the parties after the date of this Agreement. YOUBET and XXXXXX further
acknowledge and agree that neither party will make any claim, at any time or
place, that this Agreement has been orally altered or modified in any respect
whatsoever. Moreover, neither of the parties to this Agreement will hereafter
claim that this Agreement has been altered, modified or otherwise changed by
oral communication of any kind or character. It is expressly acknowledged and
recognized by all parties that there are no oral or written collateral
agreements between XXXXXX and YOUBET other than such agreements as may be
contained herein.
SECTION 8 CONSTRUCTION
The terms and conditions of this Agreement shall be construed as a whole
according to their fair meaning and not strictly for or against any party. The
parties acknowledge that any rule
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of construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in the interpretation of this Agreement.
SECTION 9 PARTIAL INVALIDITY
While the provisions contained in this Agreement are considered by the
Parties to be reasonable in all circumstances, it is recognized that provisions
of the nature in question may fail for technical reasons and, accordingly, it is
hereby agreed and declared that if any one or more of such provisions shall,
either by itself or themselves or taken with others, be adjudged to be invalid
as exceeding what is reasonable in all circumstances for the protection of the
interests of the Parties, but would be valid if any particular restriction or
provisions were deleted or restricted or limited in a particular manner, then
the said provisions shall apply with such deletion, restriction, limitation,
reduction, curtailment, or modification as may be necessary to make them valid
and effective. The remaining terms, provisions and covenants of this Agreement
shall remain in full force and shall not be affected in any way.
SECTION 10 ATTORNEYS' FEES
In any action or proceeding to enforce the terms of this Agreement or to
redress any violation of this Agreement, the prevailing party shall be entitled
to recover as damages its attorney's fees and costs incurred, whether or not the
action is reduced to judgment. For the purposes of this provision, the
"prevailing party" shall be that party who has been successful with regard to
the main issue, even if that party did not prevail on all the issues.
SECTION 11 GOVERNING LAW AND FORUM
With the sole exception of Section 4.4 of this Agreement and, except to
the extent governed by federal law, the laws of the State of California
applicable to contracts made or to be wholly performed there (without giving
effect to choice of law or conflict of law principles) shall govern the
validity, construction, performance and effect of this Agreement, irrespective
of the fact that one or more of the parties now is, or may become, a resident or
citizen of a different state or country. The terms and covenants contained in
Section 4.4 shall be governed by the laws of the State of Tennessee. Any lawsuit
to interpret or enforce the terms of this Agreement shall be brought in a court
of competent jurisdiction in the County of Los Angeles, State of California.
SECTION 12 NECESSARY ACTION
Each of the parties shall do any act or thing and execute any or all
documents or instruments necessary or proper to effectuate the provisions and
intent of this Agreement. Each of the parties represents and warrants that they
have all requisite authority to execute and perform this Agreement. XXXXXX
represents, covenants and warrants that he has not assigned, conveyed or
transferred any of the matters released by this Agreement.
SECTION 13 MISCELLANEOUS
13.1 The captions appearing at the commencement of the sections of this
Agreement are descriptive only and for convenience in reference to this
Agreement and shall not define, limit or describe the scope or intent of this
Agreement, nor in any way affect this Agreement.
13.2 XXXXXX agrees and understands that the execution of this Agreement
shall not constitute or be construed as an admission by YOUBET or its affiliates
of any liability to, or of
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the validity of, any claim whatsoever by XXXXXX, and that it cannot be used as
evidence nor referred to, and YOUBET and its affiliates specifically disclaims
any liability or wrongful acts against XXXXXX or any other person on the part of
YOUBET or its affiliates.
13.3 The Recitals are true and correct.
13.4 Arbitration. Save and except for (a) claims, suits or actions in
equity by either Party to enforce rights hereunder by an injunction or other
equitable order issued by any court having jurisdiction (which right shall
prevail over and supersede the provisions of this Section 13.4), (b) workers'
compensation and unemployment insurance claims, and (c) administrative claims
before the California Department of Fair Employment and Housing or the United
States Equal Employment Opportunity Commission, the Parties agree that any
controversy or dispute arising out of or relating to this Agreement or any
alleged breach thereof, including the arbitrability of any disputes, the
enforceability of the arbitration clause, and disputes relating to services or
the termination of services (including without limitation, any allegation of
wrongful discharge, discrimination, harassment, retaliation, statutory claims
based on the California Fair Employment and Housing Act, Title VII of the Civil
Rights Act, as amended, the American's with Disabilities Act or any other state
or federal statute or regulation) or any other injury to either Party's
physical, mental or economic interests, arising between the Parties at any time
in the future shall be settled exclusively by final and binding arbitration
through a neutral arbitrator, rather than a court or jury.
The Parties agree to settle all such arbitrable disputes and controversies
according to the provisions of the Federal Arbitration Act and the California
Code of Civil Procedure, starting at Section 1280 (and including Section 1283.05
and its mandatory and permissive rights to discovery) or any successor or
replacement statutes. The arbitration proceeding will be held in Los Angeles,
California pursuant to the Code of Civil Procedures statutes and under the
auspices of the Judicial Arbitration and Mediation Services, Inc. ("JAMS")
then-current Model Employment Arbitration Rules.
To start the arbitration process, either Provider or Agency must submit a
written arbitration request to the other, within the applicable statute of
limitations period. The arbitration demand shall set forth the basis and nature
of all claims being asserted. The fees of the arbitrator and all other court
costs that are unique to arbitration shall be paid by YOUBET. Each party shall
bear its own further costs and expenses for the arbitration, including without
limitation, its own attorneys' fees and/or its own witnesses' fees. However, if
either party prevails on a statutory claim which affords the prevailing party
attorneys' fees, or where there is a written agreement providing for fees, the
arbitrator may award reasonable attorneys' fees and costs to the prevailing
party. The arbitrator shall have the authority to award any damages authorized
by law. The award of the arbitrator shall be in writing and shall contain the
Arbitrator's factual findings, legal conclusions and reasons for the award,
shall be final and binding and may be entered as a judgment in any court with
jurisdiction over either YOUBET or XXXXXX. By their signatures below, the
Parties each agree that the provisions of this Section 13.4 constitute a waiver
of each party's right to a trial by jury for any matter subject to this Section.
SECTION 14 TIME TO REVIEW AGREEMENT
14.1 XXXXXX acknowledges that he received a copy of this Agreement on the
5th day of May, 2004, and was given at least twenty-one (21) days to review and
consider the provisions of this Agreement. Any modification of this Agreement,
whether material or otherwise, shall not restart the twenty-one (21) day period.
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SECTION 15 REVOCATION PERIOD
15.1 Pursuant to 29 C.F.R. Section 1625.22, effective July 6, 1998, XXXXXX
understands and acknowledges that he has seven (7) calendar days following his
execution of this Agreement to revoke his acceptance of this Agreement (the
"Revocation Period") and that this Agreement shall not become effective or
enforceable until the Revocation Period has expired.
15.2 For revocation of the Agreement to be effective, notice must be
received by Xxxxxx Xxxxx, General Counsel, at YOUBET, 0000 Xx Xxxx Xxxxxx,
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000 on the seventh (7th) calendar day after XXXXXX
signs the Agreement. If XXXXXX revokes this Agreement, it shall not be effective
or enforceable and XXXXXX will not receive the benefits described in this
Agreement.
SECTION 16 VOLUNTARY NATURE OF AGREEMENT
XXXXXX states he has carefully read and understood this Agreement and that
he is fully aware of its legal effect, that he has had an opportunity to consult
with his counsel with regard to this Agreement, and that the only promises made
to him are those stated in this Agreement. XXXXXX and YOUBET acknowledge that
they are signing this Agreement freely, voluntarily and with full knowledge of
its terms and consequences.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN
OR UNKNOWN CLAIMS. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO
EXECUTING THIS AGREEMENT.
WHEREFORE, the parties hereto have duly executed this Agreement as of the
date(s) written below:
XXXXXXX XXXXXX XXXXXX.XXX, INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------- -------------------------------------
Its: President & Chief Executive Officer
Date: May 28, 2004 Date: May 28, 2004
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EXHIBIT "1"
INVENTION ASSIGNMENT NOTICE
In accordance with Section 2872 of the California Labor Code, you are
hereby notified that the Invention Assignment provisions of the Separation
Agreement and Release of Claims do not apply to an invention which qualifies
fully under the provisions of Section 2870 of the California Labor Code, which
provides in pertinent part:
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 which was 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) Relate 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.
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