EXECUTIVE EMPLOYMENT AGREEMENT
|
EXECUTIVE
EMPLOYMENT
AGREEMENT
|
OXFORD
MEDIA CORP.,
a
Delaware Corporation
as
"Employer"
and
XXXXXXX
XXXXXXX,
as
"Executive"
Effective
Date:
01
October 2005
I
PARTIES
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (the
"Agreement") is entered into effective
as of the 1st
day
of
October, 2005 (the "Effective Date"), by and between OXFORD MEDIA
CORP., a
Delaware corporation (the "Employer"); and,
XXXXXXX
XXXXXXX, 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, 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 president and chief executive
officer of Employer. Executive shall do and perform all services, duties,
responsibilities,
and acts typically and customarily undertaken by the president and chief
executive officer
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, including but not limited to interest and
involvement in Diligence Technology Consulting LLC; PDHK LLC; and, Wireless
Rich
Media Conferencing Patent Application.
3.4.1.
Initial
Term. Executive's
employment with Employer and the Term of this Agreement shall commence on the
1st
day
of
October 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, but prorated
for the 2005 calendar year, in accordance with Employer's policy generally
applicable to all
employees. 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 four (4) 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 Change
in Control Payments.
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.
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 Termination
By Employer Without Cause.
6.6.1.
Termination
Event.
The
employment of Executive shall terminate immediately
upon delivery to Executive of written notice of termination by Employer, which
shall
be
deemed to be "without cause" unless termination is expressly stated to be
pursuant to Sections 6.1 or 6.2.
6.6.2.
Result
of Termination.
Upon
termination of this Agreement pursuant to this Section 6.6, Employer shall
pay
to Executive, on the Termination Date, an amount equal to (i) all accrued and
unpaid salary and other compensation payable to Executive by Employer 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 Party'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
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.
 |
|
|
Employer
Initials
|
Executive's
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:
Xx.
Xxxxxxx Xxxxxxx
Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx X
Xxxxxx,
Xxxxxxxxxx, 00000
|
XIV
ADDITIONAL
PROVISIONS
14.1 Executed
Counterparts.
This
Agreement maybe 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
E-Mail,
as a
defense to the formation of a contract.
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 impori, 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 CORP.,
|
|
|
a
Delaware corporation
|
|
 |
 |
SERVICES
EXHIBIT
4.1
BASE
ANNUAL SALARY
First
Twelve Months $250,000.00
annually
Salary
shall increase on each 12-month anniversary of the Start Date in an amount
equal
to ten percent (10%) of the salary for the 12 months then ended.
INDEMNIFICATION
AGREEMENT
