EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (hereinafter referred to as "this Agreement") is
made as of the 13th day of December, 2001, by and between Occidental Petroleum
Corporation, a Delaware corporation (hereinafter referred to as "Employer"), and
J. Xxxxx Xxxx (hereinafter referred to as "Employee").
WITNESSETH:
WHEREAS, Employee has been serving as President and Chief Executive Officer
of Occidental Chemical Corporation ("OxyChem") pursuant to a written agreement
dated as of May 14, 1997 (the "1997 Employment Agreement"), which expires on May
13, 2002; and
WHEREAS, Employee has informed Employer that Employee wishes to commence a
phased retirement from his current position as President and Chief Executive
Officer of OxyChem, and Employer wishes to ensure an orderly management
transition and also retain access to Employee's background and expertise; and
WHEREAS, therefore, the parties now desire to terminate, supersede and
replace the 1997 Employment Agreement, as provided herein, with a phased
retirement arrangement designed to satisfy the foregoing criteria; and
WHEREAS, Employer and Employee have agreed to such arrangement, on the
terms and conditions specified in this Agreement; and
WHEREAS, in order to formalize and conclude the foregoing arrangement, the
parties now desire to enter into this Agreement which specifies the rights and
obligations of the parties with respect to such arrangement;
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, Employer and Employee hereby agree as follows:
1. The Phased Retirement Arrangement: Timeframe, Duties and Services.
(a) Phase I. Effective as of the date hereof, Employee shall be
employed under the terms and conditions of this Agreement for a period of time,
hereinafter referred to as "Phase I", commencing on the date hereof and
continuing through December 31, 2001, subject to the early termination
provisions of Section 5 below. During Phase I, Employee shall, subject to clause
1(e) below, serve as President and Chief Executive Officer of OxyChem. At the
end of Phase I, on December 31, 2001, Employee will cease to be President and
Chief Executive Officer of OxyChem.
(b) Phase II. Effective January 1, 2002, unless prior thereto this
Agreement has been terminated pursuant to Section 5 below, Employee shall
commence the final phase of his employment hereunder, hereinafter referred to as
"Phase II," which shall continue through June 30, 2003, unless earlier
terminated pursuant to Section 5 below. During Phase II, Employee shall be an
Executive Vice President of Employer and, subject to clause 1(e) below, devote
such time and perform such duties and services as shall be specified at any time
and from time-to-time by the Chief Executive Officer of Employer. On June 30,
2003, Employee shall retire from Employer and resign from each office or
directorship (if any) in which he then serves Employer or any of its subsidiary
or affiliated companies and will terminate all company paid or sponsored
memberships (such as industry and professional associations, committees and
dinner clubs).
(c) Phase III. Unless prior thereto this Agreement has been
terminated pursuant to clauses 5(a) or 5(b) below, at the earlier of (i) the
date as of which Phase I or Phase II is terminated pursuant to clause 5(d)
below, or (ii) July 1, 2003, Employee shall commence the final phase of his
relationship hereunder, hereinafter referred to as "Phase III," as a consultant
for the period of time specified in the Consulting Agreement (the "Consulting
Agreement") attached hereto as Annex I. Notwithstanding the foregoing, Phase III
and the Consulting Agreement shall be and become null and void ab initio if
Employee fails to deliver a signed copy of the Consulting Agreement, in
conformity with the form attached hereto in all material respects, to Employer
within ten (10) days after the Phase III commencement date, in which event
Employer shall have no obligation whatsoever to Employee under this Agreement or
the Consulting Agreement.
(d) Compliance with Company Policies. In performing all duties and
services hereunder, Employee shall comply with Employer's Code of Business
Conduct and Corporate Policies, as the same may be amended from time to time.
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(e) Change of Duties and Services. Employer may change or alter the
duties and services of Employee at any time as it may from time-to-time elect in
its sole discretion, and in such event Employee shall serve in such other
capacity and perform such other duties and services for Employer or any of the
subsidiaries of Employer or any corporation affiliated with Employer as Employer
may direct.
2. Compensation. For the services performed hereunder during Phase I and
Phase II, Employee shall be compensated by Employer at the rate of six hundred
sixty thousand dollars ($660,000) per annum, payable semimonthly. Annual bonus
awards, if any, during Phases I and II shall be at Employer's sole discretion.
Compensation during Phase III shall be only such compensation as may be
specified in the Consulting Agreement.
3. Participation in Benefit Programs. During Phases I and II only, (a)
Employee shall be eligible to participate in all benefits programs under the
same terms and conditions as are generally applicable to salaried employees and
senior executives of Employer during the term of this Agreement. At the earlier
of, (x) the date of Employee's death, or (y) June 30, 2003, all unvested award
incentives held by Employee shall become vested and exercisable pursuant to
their terms, provided, however, that the specific amounts of each of Employee's
performance stock awards shall be determined according to the terms and on the
dates specified in each such award.
4. Exclusivity of Services. During Phases I, II and III, Employee shall
not render paid or unpaid services on a self-employed basis or to any other
employer without Employer's prior written consent.
5. Termination.
(a) Employer Termination for Cause. During Phases I and II,
notwithstanding the term of this Agreement, Employer may discharge Employee and
terminate this Agreement, without severance or other pay, upon one week's
written notice (or pay in lieu of such notice) for cause, including without
limitation, (i) failure to satisfactorily perform his duties or responsibilities
hereunder or gross negligence in complying with Employer's legal obligations,
(ii) refusal to carry out any lawful order of Employer, (iii) breach of any
legal duty to Employer, (iv) breach of Section 4 of this Agreement, or (v)
conduct constituting moral turpitude or conviction of a crime which may diminish
Employee's ability to effectively act on the Employer's behalf or with or on
behalf of others. In the event of termination hereunder, Employer would not be
obligated or expected to enter into the next phase under this Agreement or the
Consulting Agreement.
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(b) Employer Termination for Incapacity. If, during Phase I or Phase
II, Employee is incapacitated from performing the essential functions of his job
pursuant to this Agreement by reason of illness, injury or disability, Employer
may terminate this Agreement by at least one (1) week's written notice to
Employee, but only in the event that such conditions shall aggregate not less
than one hundred eighty (l80) days during any twelve (12) month period. In the
event Employee shall (i) continue to be incapacitated subsequent to termination
for incapacity pursuant to this clause 5(b), and (ii) be a participant in and
shall qualify for benefits under Employer's Long Term Disability Plan ("LTD"),
then Employer will continue to compensate Employee, for so long as Employee
remains eligible to receive LTD benefits, in an amount equal to the difference
between sixty percent (60%) of Employee's annual base salary as set forth in
Section 2 hereof and the maximum annual benefit under the LTD, payable monthly
on a prorated basis. In the event of termination hereunder, Employer would not
be obligated or expected to enter into the next phase under this Agreement or
the Consulting Agreement.
(c) Employer Termination Without Cause. At any time during Phase I or
Phase II, Employer may in its sole discretion terminate the employment of
Employee without cause (or designate a termination for cause as a termination
without cause), and in such event Employer shall, in lieu of continued
employment, compensate Employee at the rate and in the manner provided in
Paragraph 2 hereof through June 30, 2003 (the "Compensation Period"). During the
Compensation Period, Employee shall continue to be eligible to (i) participate
in all employee benefit plans of Employer, in which he is participating at the
time of the notice and so long as such plans are available to salaried employees
and senior executives, and (ii) exercise all stock options previously granted to
Employee under Employer's Stock Option and Incentive Stock Plans, which options
are or become exercisable under the provisions of such Plans. Phase III under
the Consulting Agreement shall commence effective on July 1, 2003.
Notwithstanding the foregoing, Phase III and the Consulting Agreement shall be
and become null and void ab initio if Employee fails to deliver a signed copy of
the Consulting Agreement, in conformity with the form attached hereto in all
material respects, to Employer within ten (10) days after the Phase III
commencement date, in which event Employer shall have no obligation whatsoever
to Employee under this Agreement or the Consulting Agreement.
(d) Employee Termination. During Phase I or Phase II, Employee may
resign at any time upon thirty (30) days' written notice, which notice period
Employer may shorten in its sole discretion. In the event that Employee gives
such notice, Employee shall not be entitled to any compensation or severance
benefits, but Phase III shall commence in accordance with clause 1(c) above.
Notwithstanding the foregoing, Phase III and the Consulting Agreement shall be
and become null and void ab initio if Employee fails to deliver a signed copy of
the Consulting Agreement, in conformity with the form attached hereto in all
material respects, to Employer within ten (10) days after the Phase III
commencement date, in which event Employer shall have no obligation whatsoever
to Employee under this Agreement or the Consulting Agreement.
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6. Confidential Information.
(a) Non-Disclosure of Information. Employee agrees that he will not
divulge to any person, nor use to the detriment of Employer or any of its
affiliates or subsidiaries, nor use in any business or process of manufacture
competitive with or similar to any business or process of manufacture of
Employer or any of its affiliates or subsidiaries, at any time during employment
by Employer or thereafter, any trade secrets or confidential information
obtained during the course of his employment with Employer, without first
obtaining the written consent of Employer (which consent shall not be
unreasonably withheld to the extent any disclosure by Employee is required by
applicable law or regulation or applicable order of any court or governmental
agency).
(b) Return of Documents. Employee agrees that, at the time of leaving
the employ of Employer, he will deliver to Employer, and not keep or deliver to
anyone else, any and all credit cards, notes, notebooks, memoranda, documents
and, in general, any and all material relating to Employer's business, including
copies thereof, whether in paper or electronic format.
7. Modification. This Agreement and its attachments contain all the terms
and conditions agreed upon by the parties hereto, and no other agreements, oral
or otherwise, regarding the subject matter of this Agreement shall be deemed to
exist or bind either of the parties hereto. This Agreement cannot be modified
except by a subsequent writing signed by both parties.
8. Prior Agreement. This Agreement supersedes and replaces any and all
previous agreements and understandings between the parties, including without
limitation the May 14, 1997 Employment Agreement.
9. Severability. If any provision of this Agreement is illegal and
unenforceable in whole or in part, the remainder of this Agreement shall remain
enforceable to the extent permitted by law.
10. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California. In the event that any
ambiguity or questions of intent or interpretation arise, no presumption or
binder of proof shall arise favoring or disfavoring the Employer by virtue of
authorship of this Agreement and the terms and provisions of this Agreement
shall be given their meaning under law.
11. Assignment. This Agreement shall be binding upon Employee, his heirs,
executors and assigns and upon Employer, its successors and assigns.
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12. Arbitration. In consideration for entering into this Agreement and for
the position, compensation, benefits and other promises provided hereunder, the
Employee and Employer agree to be bound by the arbitration provisions attached
hereto as Annex II and incorporated herein by this reference.
No Change of Control of Employer (as defined below) shall be deemed to
amend the terms and conditions of this Agreement. For purposes of this Agreement
a "Change of Control of Employer" shall be deemed to have occurred if, after the
date of this Agreement, any person, corporation or other entity becomes the
beneficial owner, directly or indirectly, of 25% or more of the combined voting
power of Employer's then outstanding voting securities.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
OCCIDENTAL PETROLEUM CORPORATION
By /s/ XXX X. XXXXX
-----------------------------
Xx. Xxx X. Xxxxx
/s/ J. XXXXX XXXX
--------------------------------
J. Xxxxx Xxxx
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ANNEX I
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of this 1st
day of July, 2003, by and between Occidental Petroleum Corporation, a Delaware
corporation ("OPC"), and J. Xxxxx Xxxx ("Consultant").
WITNESSETH:
WHEREAS, Consultant has been employed as an employee of OPC since July,
1983; and
WHEREAS, the parties now desire to end the employment relationship and
provide for the availability of Xx. Xxxx solely on a consulting basis;
NOW, THEREFORE, in consideration of the mutual covenants and. agreements
herein set forth, the parties agree as follows:
1. Services. Effective as of the date hereof, Consultant shall be
available to render services to OPC as a consultant for up to thirty (30) days
during each twelve (12) month period from July 1, 2003 through June 30, 2005
(the "Consultant Term"). Consultant's consultation services shall be limited to
those services which OPC requests from time to time. Consultant shall make
himself available for such consultation services in OPC's offices and elsewhere
as determined by OPC. OPC shall reimburse Consultant for all of his reasonable
and actual business expenses incurred in connection with providing services
specified hereunder.
2. Compensation. During the Consultant Term OPC shall compensate
Consultant at the monthly rate of sixteen thousand six hundred sixty-seven
dollars ($16,667) (the "Monthly Retainer"), payable semimonthly, less
appropriate deductions for taxes, etc.
3. Restriction on Other Services. During the Consultant Term, Consultant
shall not engage in full or part-time employment or work; accept employment
with, or act as a Consultant for, or perform services for any person, firm or
corporation without the prior written consent of OPC.
4. Non-Disclosure of Information. Without the prior written consent of
OPC (which consent shall not be unreasonably withheld to the extent any
disclosure by Employee is required by applicable law or regulation or applicable
order of any court or governmental agency), Consultant shall not divulge to any
person, business, firm, corporation or government entity, nor use to the
detriment of OPC, or any of its subsidiaries, nor use in any business, venture,
or any organization of any kind, or in any process of manufacture, production or
mining, at any time, except as necessary in performing services for OPC:
(a) Any OPC trade secrets in any form, including without limitation,
all graphic material, forms, documents, data and information; and
(b) Any OPC confidential information in any form, including without
limitation, concerning inventions, discoveries, improvements. methods,
technology, business plans, environmental plans, audits, reviews or other
investigatory processes, procedures and practices, enterprises, exploration,
mining or drilling information, manufacturing information, plant design,
location or operation, financial results, reports or similar information, or any
other OPC confidential information affecting or concerning the business or
operation of OPC or any of its directors, officers or employees developed,
acquired, used by or disclosed to Consultant in the performance of his services
at any time in any capacity for OPC.
5. Return of Documents. Consultant agrees to return to OPC no later than
ten (10) calendar days after the effective date hereof, all OPC property and all
originals and copies of OPC's property in his possession or under his control,
including without limitation, keys, security passes, directories, policies,
procedures. manuals. reports, organization charts, files, and computer discs
containing any information concerning his job or any other information
concerning OPC which he acquired during his employment with OPC. Consultant
agrees that he will forever keep in strictest confidence (and will not deliver
to anyone else) any and all notes, notebooks, memoranda, documents computer
discs, manuals, files, and phone lists and, in general, any and all information
and material in his possession or control affecting or concerning OPC's business
or operations without the prior written consent of OPC (which consent shall not
be unreasonably withheld to the extent any disclosure by Employee is required by
applicable law or regulation or applicable order of any court or governmental
agency).
6. Non-Disclosure of Terms, etc. Consultant shall not, unless directed by
lawful court order, disclose the terms and conditions of this Agreement to
anyone other than his immediate family and any person deemed to be necessary to
effectuate the terms and conditions of this Agreement, such as his attorney or
accountant.
7. Termination. OPC may terminate this Agreement for cause (as defined in
the Employment Agreement, between OPC and Consultant, dated December 13, 2001),
and Consultant may terminate this Agreement at any time upon thirty (30) days'
notice to OPC.
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8. Release and Discharge. Except for obligations created by this
Agreement, and obligations to indemnify and defend Consultant for his acts or
omissions as an employee, officer or director of either OPC or its subsidiaries
pursuant to either OPC's by-laws, its Directors and Officers Liability Insurance
or any other of its insurance applicable thereto, Consultant absolutely and
forever releases and discharges Occidental Petroleum Corporation and its past
and present subsidiaries, affiliated corporations and each of their
shareholders, officers, directors, employees, insurance carriers, predecessors
and successors, assigns, agents, attorneys, representatives, heirs,
administrators (collectively "OPC Releasees") from any and all claims, demands,
damages, losses, liabilities, debts, liens, judgments, obligations, accounts,
actions, and causes of action, whether past, present, or future, known or
unknown, at law, in arbitration or in equity, arising out of or in connection
with any act or omission occurring at any time heretofore, including without
limitation any act or omission related to or arising out of Consultant's
employment, or the termination of benefits or other terms of employment by OPC
or any California or other state, municipal, or Federal constitution, statute,
regulation, ordinance, order, or common law, including without limitation, Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et
seq.; the Civil Rights Act of 1991; the Civil Rights Act of 1866, as amended, 42
U.S.C. Section 1981 et seq.; the Equal Pay Act, as amended, 29 U.S.C. Section
206(d) et seq.; Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. Section 1001 et seq.; The Americans With Disabilities Act, 42 U.S.C.
Section 12101 et seq.; the Family and Medical Leave Act of 1993, 29 U.S.C.
Section 2601 et seq.; United States Executive Orders 11246 and 11375; the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Section 621 et
seq.; California Government Code Section 12900 et seq.; the XXXXX Civil Rights
Act, as amended, California Civil Code Section 51 et seq.; the Regulations of
the Office of Federal Contract Compliance Programs, as amended, 41 C.F.R.
Section 60 et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C.
Section 701 et seq.; or any claims based on misrepresentation, fraud, contract,
an accounting, wrongful or constructive discharge, breach of privacy,
retaliation, breach of covenant of good faith and fair dealing, violation of
public policy, defamation, negligent or intentional infliction of emotional
distress, discrimination on any basis prohibited by statute, common law,
ordinance or public policy, loss of consortium, negligence, interference with
business opportunity or with contracts, breach of fiduciary duty, or unfair
insurance practices arising out of or related to any act or omission occurring
before this Agreement is executed by Consultant, except that Consultant does not
waive any claim for vested pension benefits or other welfare benefits to which
Consultant is entitled per the terms of the plans, e.g. medical benefits.
Consultant represents that he is unaware of any workers' compensation claims
brought on his behalf or of any facts on which such a claim could be brought.
9. Waiver. Consultant understands and acknowledges that there are laws
which may invalidate releases of claims which are unknown to the releasing
party. Consultant hereby waives any protection to which he may otherwise be
entitled against OPC Releasees by virtue of any such law. In particular, and not
by way of limitation, Consultant represents and acknowledges that he is familiar
with Section 1542 of the California Civil Code, which provides as follows:
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"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.
Consultant waives and relinquishes any rights and/or benefits which he has or
may have against OPC Releasees under Section 1542 of the California Civil Code,
or any similar applicable statute of any jurisdiction to the fullest extent
permitted by law.
10. No Other Severance Benefits. Notwithstanding anything in this
Agreement to the contrary, Consultant hereby acknowledges and agrees that this
Agreement is in lieu of, and because he has entered into this Agreement he is
automatically ineligible for and disqualified from participating in, any and all
plans, programs or arrangements of severance, separation, termination or pay
continuation announced or maintained heretofore or hereafter by OPC or any of
its subsidiary or affiliated companies.
11. Nature of Relationship. Consultant's relationship with OPC shall be as
an independent consultant, and not as an employee.
12. No Other Employment Agreements. As of the date of this Agreement any
other existing employment or consulting agreement, or any plan, program or
arrangement of severance, separation, termination, or pay continuation, oral,
written or implied, between Consultant and OPC shall be deemed to be terminated
and of no further force or effect. Further, the parties agree and acknowledge
that this Agreement constitutes and contains the entire agreement and
understanding of the parties concerning the subject matters hereof, and
supersedes and replaces all prior negotiations, proposed agreements, or
agreements, written or oral or implied. The parties each acknowledge, one to the
other, that no other party, nor any agent or attorney of any other party, has
made any promise, representation, or warranty whatsoever (express, implied or
statutory) not contained herein concerning the subject matters hereof to induce
them to execute this Agreement and that they have not executed this Agreement in
reliance upon any such promise, representation, or warranty not contained
herein. The parties further agree that any oral representations or modifications
concerning this instrument shall be of no force or effect, and that this
Agreement can only be modified by a writing, signed by all of the parties
hereto.
13. Arbitration. In the event of any dispute rising out of this Agreement,
Consultant's prior employment or the Consultant Term or any other matter between
the parties, Consultant and OPC agree that any such dispute shall be decided
exclusively by neutral binding arbitration conducted in Los Angeles, California
in accordance with the then current rules of the American Arbitration
Association in effect in Los Angeles, California applicable to employment
disputes. In the event the parties are unable to agree upon an arbitrator, they
shall select from a list of seven (7) arbitrators designated by the American
Arbitration Association. This Agreement to resolve any disputes by binding
arbitration shall extend to claims by Consultant against any OPC Releasees and
shall apply as well, to the full extent permitted by law to claims arising out
of local, state and federal common law, statutes and ordinances. However,
Consultant and OPC shall retain whatever rights to injunctive relief may be
available under applicable laws concerning any claims and any dispute or claim
in connection with the receipt of benefits under any benefit plans shall be
governed by the claims procedures under the applicable plan.
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14. Release Acknowledgment. Consultant expressly acknowledges and agrees
that the releases given above include a waiver and release of all claims which
Consultant has or may have under the Age Discrimination in Employment Act Of
1967, as amended, 29 U.S.C. Section 621 et seq. The releases given above are
given only in exchange for consideration (something of value) in addition to
anything of value to which Consultant is otherwise already entitled. All
releases set forth above do not waive rights or claims which may arise after the
date of execution of this Agreement. Consultant acknowledges that (i) this
entire Agreement is written in a manner calculated to be and is understood by
Consultant, (ii) he has been advised in writing to consult with an attorney
before executing this Agreement, and (iii) he has up to forty-five (45) days
from the date he is presented with this Agreement to consider whether or not to
sign the Agreement, and (iv) to the extent he executes this Agreement before the
expiration of the forty-five (45)-day period, he does so knowingly and
voluntarily. If Consultant signs this Agreement he shall have the right to
cancel and revoke this Agreement during a period of seven (7) calendar days
following his execution of the Agreement and this Agreement shall not become
effective, and no money shall be paid hereunder until the expiration of such
seven (7)-day period. In order to revoke this Agreement, Consultant shall
deliver to OPC, prior to the expiration of said seven (7)-day period, a written
notice of cancellation. This Agreement shall become effective on the eighth
(8th) day after Consultant's execution, provided there has been no revocation
pursuant to this paragraph.
15. Severability. Should any part of this Agreement, with the exception of
Paragraphs 1 and 2, the releases and related provisions embodied in Paragraphs
8, 9 and 14, be declared or determined by any Court or other tribunal of
appropriate jurisdiction to be invalid or unenforceable, any such invalid or
unenforceable part, term or provision shall be stricken and severed from this
Agreement and all other terms of the Agreement shall remain in full force and
effect to the fullest extent permitted by law. The releases and related
provisions embodied in Paragraphs 8, 9, and 14 and Paragraphs 1 and 2 are
material to this Agreement and should any of these paragraphs be deemed invalid
or unenforceable, this Agreement shall be null and void and any consideration
received under this Agreement shall be returned to OPC.
16. Assignment. This Agreement shall be binding upon Consultant, his
heirs, executors and assigns and upon OPC, its successors and assigns.
17. Governing Law. This Agreement is made and entered into in the State of
California and shall be governed by, and construed in accordance with, the laws
of the State of California, without regard to principles of conflict of laws.
18. No Change of Control of Employer (as defined below) shall be deemed to
amend the terms and conditions of this Agreement. For purposes of this Agreement
a "Change of Control of Employer" shall be deemed to have occurred if, after the
date of this Agreement, any person, corporation or other entity becomes the
beneficial owner, directly or indirectly, of 25% or more of the combined voting
power of Employer's then outstanding voting securities.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the
day and year first hereinabove written.
OCCIDENTAL PETROLEUM CORPORATION
By
------------------------------
Xx. Xxx X. Xxxxx
Consultant
By
------------------------------
J. Xxxxx Xxxx
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ANNEX II
ARBITRATION PROVISIONS ("Provisions")
Incorporated by Reference into and Made a Part of the
Employment Agreement dated December 13, 2001,
and the Consulting Agreement dated July 1, 2003
(collectively, the "Agreements"),
between Occidental Petroleum Corporation (the "Employer")
and J. Xxxxx Xxxx (the "Employee")
In recognition of the fact that differences may arise between the Employer
and the Employee arising out of or relating to certain aspects of the Employee's
employment with the Employer or the termination of that employment, and in
recognition of the fact that resolution of any differences in the courts is
rarely timely; or cost-effective for either party, the Employer and Employee
have agreed to the incorporation of the Provisions into the Agreement in order
to establish and gain the benefits of a speedy, impartial and cost-effective
dispute resolution procedure. By so doing, the Employer and the Employee
mutually agree to arbitrate Claims (as defined below) and each knowingly and
voluntarily waive their rights before a jury. Each party's promise to resolve
Claims (as defined below) by arbitration in accordance with these Provisions 3.4
consideration for the other party's like promise, in addition to any other
consideration.
I. Claims
1.1 Except as provided in Paragraph 1.2 below, "Claims" (collectively
called "Claim" or "Claims" in these Provisions) means all claims or
controversies between the Employer and Employee or between the Employee and
others arising out of, or relating to or concerning the Employee's employment
with the Employer or termination thereof for which a state or federal court
otherwise would be authorized to grant relief, including, but not limited to,
claims based on any purported breach of contract, tort, state or federal statute
or ordinance, common law, constitution or public policy, claims for wages or
other compensation, or of discrimination, or violation of public policy of any
type. Claims expressly include the Employee's Claims against the Employer, and
any subsidiary and related or affiliated entity, successor or assign and any of
their officers, directors, employees, managers, representatives, attorneys or
agents, and Claims against others arising out of, relating to or concerning the
Employee's employment with the Employer or termination thereof.
1.2 These Provisions do not apply to or cover claims for workers'
compensation benefits, claims for unemployment compensation benefits, or claims
for which the National Labor Relations Board has exclusive jurisdiction; claims
by the Employer for injunctive and/or other equitable relief for intellectual
property, unfair competition and/or the use and/or unauthorized disclosure of
trade secrets or confidential information; and claims based upon an employee
pension or benefit plan the terms of which contain an arbitration or other
non-judicial resolution procedure, in which case the provisions of such plan
shall apply. Employee shall further retain the right to seek injunctive and/or
other equitable relief expressly made available by a statute which forms the
basis of a Claim which is subject to arbitration under these Provisions. Where
one or more of the included Claims in a dispute are covered under these
Provisions and one or more of the included Claims in the dispute are not covered
under these Provisions, such covered and non-covered claims shall be separated
and shall be heard separately in the appropriate forum for each claim.
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2. Agreement to Arbitrate All Claims
2.1 Except for claims excluded from these Provisions by Paragraph 1.2
above and as otherwise provided in Paragraphs 1.2 and 4.1, the Employer and the
Employee hereby agree to the resolution by exclusive, final and binding
arbitration of all Claims.
2.2 The parties further agree that any issue or dispute concerning the
formation, applicability, interpretation, or enforceability of these Provisions,
including any claim or contention that all or any part of these Provisions is
void or voidable, shall be subject to arbitration as provided herein. The
arbitrator, and not any federal, state or local court or agency, shall have
authority to decide any such issue or dispute.
3. Governing Law
3.1 Except as modified by these Provisions, the arbitration shall be
conducted pursuant to the rules set forth in the California Arbitration Act,
California Code of Civil Procedure Section 1981 et seq.
3.2 The Arbitrator shall apply the substantive law (and the law of
remedies, if applicable) of the State of California, or federal law, or both, as
applicable to the Claims asserted.
4. Binding Effect
4.1 The arbitration Award (see Section 10, herein) shall be final and
binding on the parties except that both parties shall have the right to appeal
to the appropriate court any errors of law in the decision rendered by the
Arbitrator.
4.2 The Award may be entered as a judgment in any court of competent
jurisdiction and shall serve as a bar to any court action for any Claim or
allegation which was or could have been, raised in Arbitration.
4.3 For Claims covered by these Provisions, Arbitration is the exclusive
remedy, except as provided by Paragraph 1.2. The parties shall be precluded from
bringing or raising in court or before any other forum any dispute which could
have been brought or raised pursuant to Arbitration.
4.4 Nothing in these Provisions shall prevent a party from pursuing any
legal right to bring an action to vacate or enforce an Award or to compel
arbitration pursuant to applicable California law.
5. Initiating Arbitration
To initiate the arbitration process, the aggrieved party must provide the
other party or parties with: a written request to arbitrate any covered Claims
which states the Claim or Claims for which arbitration is sought. The written
request to arbitrate must be received within the limitations periods applicable
under the law to such Claims.
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6. Selection of the Arbitrator
6.1 All Claims shall be decided by a single neutral decision-maker, called
the "Arbitrator."
6.2 To be qualified to serve, the Arbitrator must be an attorney in good
standing with at least seven years experience in employment law or a retired
judge and be available to hear the matter within sixty (60) days of selection
and on consecutive days.
6.3 Within fifteen (15) calendar days after receipt of the written request
to arbitrate, the parties will attempt to agree on the selection of a
qualified Arbitrator pursuant to Paragraph 6.2 above. If the parties
fail to agree on the selection of an Arbitrator within that fifteen
calendar day period, the Employer will designate an alternate dispute
resolution service (by way of example, American Arbitration
Association, National Arbitration Forum, Judicial. Arbitration and
Mediation Services/Endispute) which has the capacity of providing the
parties with a list of potential qualified arbitrators. The parties
shall request that designated alternate dispute resolution service to
provide them with a list of nine (9) persons who meet the requirements
of Paragraph 6.2 above. Each party shall rate the nine (9) names by
giving the most preferred arbitrator the number nine (9) and using
descending successive numbers to rate the remaining choices in
descending order of that party's preference and returning the list to
the alternate dispute resolution service for calculation. The
arbitrator candidate with the highest combined rating will be the
Arbitrator. The functions of the alternate dispute resolution service
shall be strictly limited to providing the list of arbitrator
candidates and tallying the respective parties' ratings of the
candidates in accordance with this Section 6 and no rules of that
service shall otherwise apply.
7. Arbitration Procedures:
7.1 All parties may be represented by counsel throughout the arbitration
process, including without limitation, at the arbitration hearing.
7.2 The Arbitrator shall afford each party a full and fair opportunity to
present relevant and material proof, to call and cross-examine witnesses, and to
present its argument.
7.3 The Arbitrator shall not be bound by any formal rules of evidence with
the exception of applicable law regarding the attorney-client privilege and work
product doctrine, and any applicable state or federal law regarding
confidentiality of documents and other information (including, without
limitation, pursuant to rights of privacy).
7.4 The Arbitrator shall decide the relevance of any evidence offered, and
the Arbitrator's decision on any question of evidence or argument shall be final
and binding.
7.5 The Arbitrator may receive and consider the evidence of witnesses by
affidavit and shall give it such weight as the Arbitrator deems appropriate
after consideration of any objection made to its admission.
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7.6 Either party, at its expense, may arrange and pay for the cost of a
court reporter to provide a stenographic record of the proceedings.. The other
party may obtain a copy of the recording by paying the reporter's normal fee for
such copy. If both parties agree to utilize the services of a court reporter,
the parties shall share the expense equally and shall be billed and responsible
for payment individually.
7.7 Either party shall have the right to file a pre- or post-hearing
brief. The time for filing such briefs shall be set by the Arbitrator.
7.8 The Arbitrator has authority to entertain a written or oral motion to
dismiss and motion for summary judgment, dispositive of all or part of any
Claim, to which the Arbitrator shall apply the standards governing such motions
under the Federal Rules of Civil Procedure.
8. Discovery
8.1 Discovery shall be governed by this Paragraph 8, notwithstanding Code
of Civil Procedure Section 1283.05 to the contrary.
8.2 Discovery shall be conducted in the most expeditious and
cost~effective manner possible, and shall be limited to that which is relevant
and for which the party seeking it has substantial, demonstrable need.
8.3 All parties shall be entitled to receive reasonably prior to the
hearing, copies of relevant documents which are requested in writing, clearly
described and governed by Paragraph 8.2 above, and sought with reasonable
advance notice given the nature of the requests. Upon request, Employee shall
also be entitled to a true copy of his or her personnel file kept in the
ordinary course of business and pursuant to the Employer policy. Any other
requests for documents shall be made subpoena as provided for in Section 9
herein.
8.4 Except as mutually agreed by the parties or as determined by the
Arbitrator, all parties shall be entitled to submit no more than twenty (20)
interrogatories (including subparts) and twenty (20) requests for admission
including subparts), on each of the other parties, which are requested in
writing, clearly described and governed by Paragraph 8.2 above, and sought with
reasonable advance notice given the nature of the requests.
8.5 Upon reasonable request and scheduling, each party shall be entitled
to take three (3) depositions in total of relevant parties, representative of
the opposing party, or third parties, of up to two (2) days' duration each.
8.6 Physical and/or mental examinations may be conducted in accordance
with the standards established by the Federal Rules of Civil Procedure.
8.7 At a mutually agreeable date, the parties will exchange lists of
experts who will testify at the arbitration. Each party may depose the other
party's experts and obtain documents they reviewed and relied upon and these
depositions will not be charged against the party's limit of three depositions.
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8.8 Any disputes relative to discovery or requests for discovery other
than specifically provided for herein, shall be presented to the Arbitrator who
shall make final and binding decisions in accordance with Paragraphs 8.1 and 8.2
herein..
9. Subpoenas
9.1 Subject to formal request and a determination of both need and
relevance by the Arbitrator in accordance with Paragraphs 8.1 and 8.2 above,
each party may issue a subpoena for production of documents or persons (other
than those provided for in Paragraphs 8.3, 8.5 and 8.7) relevant to the
procedure. The Arbitrator's decision regarding relevance and the need for
subpoenas shall be final and binding.
9.2 The Arbitrator is empowered to subpoena witnesses or documents to the
extent permitted in a judicial proceeding, upon his or her own initiative or at
the request of a party.
9.3 The party requesting the production of any witness or proof shall bear
the costs of such production.
10. The Award
10.1 The Arbitrator shall render his or her decision and award
(collectively the "Award") based solely on the evidence and authorities
presented, the applicable policies of the Employer, any applicable written
employment agreement, the applicable law argued by the parties, and these
Provisions as interpreted by the Arbitrator.
10.2 The Award shall be made promptly by the Arbitrator, and unless
otherwise agreed by the parties, not later than sixty (60) days from the closing
of the hearing, or the date post-hearing briefs are filed, whichever is later.
10.3 The Award shall be in writing and signed and dated by the Arbitrator.
The Award shall decide all issues submitted, shall contain express findings of
fact and law (including findings on each issue of fact and law raised by a
party), and provide the reasons supporting the decision including applicable
law. The Arbitrator shall give signed and duplicate original copies of the Award
to all parties at the same time.
11. Damages and Relief
11.1 The Arbitrator shall have the same authority to award remedies and
damages as provided to a judge and/or jury under applicable state or federal
laws where the aggrieved party has met his or her burden of proof;
11.2 Both parties have a duty to mitigate their damages by all reasonable
means. The Arbitrator shall take a party's failure to mitigate into account in
granting relief in accordance with applicable state and federal law.
11.3 Arbitration of damages or other remedies may be conducted in a
bifurcated proceeding.
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12 Fees and Expenses
12.1 All parties shall share equally the fees of the Arbitrator. Each party
will deposit funds or post other appropriate security for its share of the
Arbitrator's fee, in an amount and manner determined by the Arbitrator, at least
ten (10) days before the first day of hearing. Additionally, each party shall
pay for its own expenses associated with the arbitration process and attorneys
fees, if any. If any party prevails on a statutory claim which entitles the
prevailing party to attorneys' fees, or if there is a written agreement
providing for fees, the Arbitrator may award reasonable fees to the prevailing
party in accordance with such statute or agreement.
12.2 The Arbitrator may additionally award either party its reasonable
attorneys fees and costs, including reasonable expenses associated with
production of witnesses or proof, upon a finding that the other party (a)
engaged in unreasonable delay, or (b) failed to comply with the Arbitrator's
discovery order.
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