EXECUTIVE EMPLOYEE AGREEMENT
Exhibit 10.10
This EXECUTIVE EMPLOYEE AGREEMENT (the “Agreement”) is made and entered into as of July 1, 2006, by
and between Energy Recovery Inc., a Delaware corporation, with its principal offices at 0000
Xxxxxxxxx Xxxxx, Xxx Xxxxxxx, XX 00000 (the “Company”), and Xxxxxxx Xxxxxxx, an individual (the
“Executive”).
RECITALS
A. WHEREAS, the Company is in the business of designing and manufacturing energy recovery devices.
B. WHEREAS,
Executive has been serving as VP of Manufacturing (VP of Manufacturing) of the Company, and
the Company desires to continue its relationship with Executive as its VP of Manufacturing, and
Executive desires to provide his services to the Company on all of the terms and conditions herein
set forth.
C. WHEREAS, The Company desires to provide Executive with a compensation plan in recognition of
Executive’s valuable skills and services.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, the
parties hereto agree as follows:
ARTICLE I. EMPLOYMENT
1.1 Employment. The Company hereby employs Executive as its VP of Manufacturing, and
Executive hereby accepts such engagements with the Company, in accordance with and subject to all
of the terms, conditions, and covenants set forth in this Agreement.
1.2 Term. The terms of this Agreement shall commence on the date that this Agreement is
fully executed (the “Effective Date”) and, unless terminated earlier in accordance with the terms
of Article IV hereof, shall continue for a period of two years ending 24 calendar months from the
Effective Date (the “Term of Agreement). The Agreement, thereafter, shall automatically terminate
and Executive’s employment with the Company will become “at will.” “At will” employment means that
either the Company or Executive may terminate Executive’s employment with or without cause and with
or without notice.
1.3 Scope of Executive’s Duties. Executive shall be the VP of Manufacturing of the Company,
reporting to the President and CEO of the Company (CEO). Executive shall have such duties,
responsibilities and authority as shall be consistent with that position and will operate within
such established guidelines, plans, or policies as may be established or approved by the CEO and
the company Board of Directors from time to time.
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ARTICLE II. COMPENSATION AND BENEFITS
2.1 Compensation.
(a) Base Salary. Executive shall be paid a base salary of $10,833 per month ($130,000 per
annum), less any deductions required by law, which shall be paid in accordance with the Company’s
normal and customary payroll practices, but no less frequently than monthly. The Executive’s base
salary shall be reviewed annually and may be reasonably adjusted in the sole discretion of the
Company.
(b) Annual Bonus. The Executive shall be eligible to participate in the Company’s annual
bonus program and shall be eligible to earn an annual bonus in an amount not to exceed (1) times
his base salary. The exact amount of the Executive’s annual bonus, if any, shall be determined by
the Company pursuant to the attainment of performance goals as set forth in the matrix.
(c) Equity Compensation. Contingent on the Executive’s continued employment on the date of
grant, Company intends to grant the Executive stock options to purchase an additional thirty
thousand (30,000) shares of the Company’s Common Stock, to be arranged under, and subject to the
terms of, Company’s 2006 Equity Compensation Plan or, at the discretion of the Company, any such
subsequent equity compensation plan that may be adopted, as well as the terms and conditions of the
stock option agreement (which will be provided to the Executive as soon as practicable after the
grant date). Any additional terms governing the options (i.e., vesting, conditions to exercise,
etc.) shall be set forth in the applicable option agreement. The
foregoing is not intended to preclude the
Company, in its discretion, from making any additional awards of stock options or other types of
equity compensation to the Executive.
2.2 Reimbursable Expenses. Upon submission of expense reports to the extent necessary to
substantiate the Company’s federal income tax deductions for such expenses under the Internal
Revenue Code of 1986 (as amended) and the Regulations thereunder (the “Code”) and subject to such
expense report approval procedures as may be established by the Board, the Company shall reimburse
Executive for all reasonable business expenses incurred and submitted in the performance of his duties
hereunder on behalf of the Company.
2.3 Fringe Benefits.
(a) Executive and Executive’s dependents shall be permitted to participate in all group health,
medical, hospital, dental, prescription, vision, long-term disability
and other insurance plans which the Company may establish for its executive employees and such other employee benefits or
plans as the Company may establish for its employees generally, and which may be modified from time
to time. Upon implementation of the Company’s new executive life insurance program, the Executive
shall receive, if insurable under usual underwriting standards, term life insurance coverage on the
Executive’s life, payable to whomever the Executive directs, in an amount equal to one (1) time the
Executive’s base salary, subject to any cap imposed by the insurer, provided that Executive
completes the required statement and application and that Executive’s physical condition does not
prevent Executive from qualifying for such insurance
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under reasonable terms and conditions. In the interim, the Company shall reimburse the
Executive’s monthly premium for such coverage during the term of this agreement. Executive shall
be eligible to participate in any tax-qualified retirement plan sponsored by the Company, equity
compensation plan, or deferred compensation plan, if any, pursuant to the terms of such plans, as
the same may be modified from time to time, to the extent such plans are offered to other officers
of employees of the Company.
2.4 Vacations. Executive shall earn annual vacations in accordance with the Company’s
standard policy. Once the Executive has accrued the maximum of two (2) times the accrual rate cap
applicable to the Executive as set forth in the standard policy, Executive shall be ineligible to
earn further vacation until Executive has used vacation, at which
time Executive may begin to
accrue vacation again.
2.5 Taxes. The Executive acknowledges that he is responsible for all taxes relating to his
Compensation and except for those taxes for which the Company is obligated to pay under applicable
law or regulation, Executive agrees that the Company may withhold from Executive’s cash
compensations any amounts that the Company is required to withhold by law or regulation.
ARTICLE III. TERMINATION AND COMPENSATION UPON TERMINATION
3.1 Termination will be deemed to occur as follows:
(a)
Termination for Good Cause by the Company. The Company may terminate this Agreement immediately for “Good Cause” upon written notice to Executive, the date of
which shall specify the effective date of the termination. For purposes of this Agreement,
“Good Cause” shall mean:
(i) Executive’s performance of any act for which, if Executive were prosecuted, would
constitute a felony or misdemeanor;
(ii) Executive’s failure to carry out Executive’s material duties;
(iii) Executive’s dishonesty towards or fraud upon the Company which is injurious to the
Company;
(iv) Executive’s violation of confidentiality obligations to the Company or misappropriation of
Company assets; or
(v) Executive’s death or inability to carry out Executive’s duties with reasonable accommodation,
if any, unless prohibited by law.
(b)
Voluntary Termination by the Executive. The Executive may terminate this Agreement at any time by providing the Company with thirty (30) days written notice. The
effective date of the termination shall be the date specified in the notice. In the event of such a
termination, the parties agree to act in good faith towards one another during any notice period.
(c) Notice of Termination. Any termination by the Company for Good Cause or by
Executive shall be communicated by Notice of Termination to the other party hereto. For
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purposes of this Agreement, a “Notice of Termination” shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis of termination of
Executive’s employment under the provision so indicated.
3.2 Compensation Upon Termination. Upon termination of this Agreement by either party,
Executive shall be entitled to receive the following payments:
(a) Termination By the Company for Good Cause. Upon termination of this Agreement for “Good
Cause” as defined under the provisions of Section 3.1 (a) above, Executive shall be paid, in a lump
sum, any and all base salary due and owing through the date of termination, plus an amount equal to
earned but unused vacation through the date of termination and reimbursement of all reasonable
expenses, plus any earned but unpaid and undeferred bonus attributable to the year that ends
immediately before the year in which the Executive’s termination occurs. No pay continuance or other
benefits will be provided.
(b) Termination By the Company Without Good Cause. Upon termination of this Agreement by
the Company without “Good Cause” as defined under the provisions of
Section 3.1(a) above, Executive shall be entitled to the following severance benefits:
(i) payment, in a lump sum, of any all base salary due and owing to him through the date of
termination, plus an amount equal to his earned but unused vacation through the date of
termination, reimbursement for all reasonable expenses and any earned but unpaid and undeferred
bonus attributable to the year that ends immediately before the year in which the Executive’s
termination occurs; and
(ii) subject to the provisions of Section 5.1 below, payment, in a lump sum of an amount
equal to fifty percent (50%) of Executive’s current annual base salary, less deductions required by
law.
(iii) immediate vesting of all unvested equity compensation held by the Executive as of the
date of termination.
(iv) if
the Executive (including, if applicable, the Executive’s spouse and dependents) timely
elects to continue Executive’s medical, dental, and vision benefits under COBRA then, contingent
upon the Executive paying his portion of the monthly COBRA premium, the Company shall pay its share
of the monthly premium (if any) under COBRA to the same extent it pays for coverage for an active
employee until the earliest of (a) the end of the twelve (12) month period that commences with the
Executive’s termination of employment or (b) the Executive becomes eligible for group medical,
dental, and vision coverage through another employer. As a condition of the Company paying a pro
rata portion of the monthly premium for a portion of the Executive’s continuation coverage period
the Executive will be required to notify the Company upon becoming eligible for group medical,
dental and vision benefits from another employer during such twelve
(12) month period. At the end of any Company-paid period of COBRA coverage, the Executive may, at his own expense, continue COBRA
coverage for the remainder of the period for which the Executive is eligible.
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The payments provided for in Section 3.2(a) or 3.2(b)(i) and (ii) or 3.2(d), as applicable,
shall be paid on the date immediately following the Executive’s termination. All such payments
will be subject to applicable payroll or other taxes required to be withheld by the Company.
However, in the event it is determined that the Executive is a “Specified Employee” as defined in
Section 409A(a)(2)(B)(i) of the Code any payment to be made under this Agreement that is
“nonqualified deferred compensation” subject to Section 409A of the Code shall be delayed for six
months following the Executive’s termination of employment.
(c) Payments to Executive hereunder shall be considered severance pay in consideration of past
service and continued service after the date of this Agreement and Executive shall not be required
to mitigate the amount of any payment provided for in this Section 3.2 by seeking alternative
employment or otherwise, and, with the exception of COBRA payments, the amount of any payment
provided for in this Section 3.2 shall not be reduced by any compensation earned by Executive as
the result of employment by another employer after the date of
termination, or otherwise.
(d) Voluntary Termination by Executive. If Executive Voluntarily resigns or
terminates this Agreement, Executive shall be paid, in a lump sum , any and all base salary
due and owing to him through the date of termination and an
amount equal to his earned but unused vacation through the date of termination, plus
any earned but unpaid and undeferred bonus
attributable to the year that ends immediately before the year in which the Executive’s
termination occurs. Executive, his family, or his estate shall be entitled to other benefits
to the
extent permitted by law, contract, or the terms of any benefit plan or program.
(e) Termination Pursuant to a Change of Control. If upon or at any time during the
Term of Agreement there is a “Termination Event”, as defined below, that occurs within one (1) year
following a “Change in Control”, as defined below, Executive shall be
treated as if Executive had been terminated by the Company Without Good Cause pursuant to
Section 3.2(b) and in addition to the severance benefits described therein shall be entitled
to receive an additional Change in Control amount equal to fifty percent (50%) of the
Executive’s current annual base salary. The Change in Control amount shall be paid at the
same time and in the same manner as the Executive’s severance payments pursuant to Section
3.2(b)(ii).
(i) A Termination Event shall mean the occurrence of any one or
more of the following, but shall not include the Executive’s
termination due to death or
disability:
A. the termination or material breach of this Agreement by the
Company;
B. the failure by the Company to obtain the assumption
of this
Agreement by any successor to the Company or any assignee of all or substantially all of the
Company’s assets;
C. any material diminishment in the title,
position, duties,
responsibility or status that the Executive had with the Company immediately prior to the Change in
Control;
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D. any reduction, limitation or failure to pay or provide
any of
the compensation provided to the Executive under Section 2.1 of this Agreement or any other
agreement or understanding between the Executive and the Company, or pursuant to the
Company’s policies and past practices, as of the date immediately prior to the Change in Control;
or
E. any requirement that the Executive relocate more than 30
miles from his place of employment as of the date immediately prior
to the Change in Control.
(ii) Change
in Control shall mean any of the following, occurring during the term
of the Executive’s employment or employment relationship with
the Company:
A. an acquisition by an individual, an entity or a group
(excluding the Company, an employee benefit plan of the Company, or a corporation controlled
by the Company’s shareholders) of fifty percent (50%) or more of
the Company’s then-
outstanding common stock or voting securities;
B. a change in composition of the Board occurring within a
rolling twelve-month period, as a result of which fewer than a majority of the directors are
Incumbent Directors (“Incumbent Directors” shall mean directors who either (x) are members of the
Board as of the Executive Date or (y) are elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of the Incumbent Directors at the time of such election or
nomination, but shall not include an individual not otherwise an Incumbent Director
whose election or nomination is in connection with an actual or threatened proxy contest
(relating to the election of directors to the Board));
C. consummation of a complete liquidation or dissolution of the Company, or a merger,
consolidation or sale of all or substantially all of the Company’s then- existing assets
(collectively, a “Business Combination”), other than a Business Combination (x)
in which the stockholders of the Company immediately prior to the Business Combination
receive fifty percent (50%) or more of the voting stock resulting from the Business
Combination, (y) at least a majority of the board of directors of the corporation resulting from the
Business Combination were Incumbent Directors and (z) after
which no individual, entity or group (excluding any corporation resulting from the Business Combination or any employee benefit
plan of such corporation or if the Company owns fifty percent (50%) or more of the stock of
the
corporation resulting from the Business Combination who did not own
such stock immediately before the Business Combination; or
D. change in the ownership of a substantial portion of a
Company’s assets. A change in the ownership of a substantial portion of the Company’s assets occurs
on the date that any individual or group of individuals acquires (or has acquired during
the 12-month period ending on the date of the most recent acquisition by such individual or
group of individuals assets from the Company that have a total gross fair market value equal to
or more than forty percent (40%) of the total gross fair market value of all of the assets of the
Company immediately prior to such acquisition or acquisitions. For this purpose, gross fair
market value means the value of the assets of the Company, or the value of the assets being
disposed of, determined without regard to
any liabilities associated with such assets.
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(iii) To the extent that any or all of the payments and benefits provided for in this
Agreement, either alone or in conjunction with other compensatory payments, would give rise
to a “parachute payment” under Sections 280G and 4999 of the Code (collectively, the “Parachute
Rules”):
A. If the Company so requests at a time when the Company’s
securities are not “readily tradable” (as defined in the Parachute Rules), the Company shall
be permitted to solicit a shareholder vote or written consent to approve the parachute payment
in order to avoid characterization as a parachute payment under the Parachute Rules. In that
event, the Executive agrees, to the extent required by the Parachute Rules then in effect and
without further consent or documentation, to waive and cancel all
rights or parachute payments in
connection with the Change of Control to the extent that shareholder approval is not
obtained in accordance with the Parachute Rules.
B. Unless shareholder approval has avoided application of the
Parachute Rules, the Company shall reduce and cancel, and the
Executive hereby waives, the parachute payment to the minimum extent necessary to equal one dollar less than the amount
which would result in any compensatory payments being subject to the excise tax imposed by
Section 4999 of the Code and such that the Executive receives only the amount of such
payment which would not constitute an “excess parachute
payment” under the Parachute Rules.
C. Notwithstanding clauses A and B above, the Executive may
elect not to subject a payment or benefit to stockholder approval and to instead receive
either (i)
the full amount of any parachute payment or (ii) 2.99 times the Executive’s “base amount”
(as such term is defined under the Parachute Rules), whichever of the foregoing
amounts (after taking into account any applicable federal, state and local income taxes and the excise tax
imposed by Section 4999 of the Code) results in the receipt by the Executive, on an
after-tax
basis, of the greater payment provided that (a) the acquiring person in the Change of
Control, in
its sole discretion, does not object thereto and does not impose on the
Company or its
shareholder any added cost, price reduction, or other detriment therefrom (economic or
otherwise
as determined in the Company’s sole discretion), and (b) the Executive deposits at least
three (3)
business days prior to consummation of the Change of Control with a party designated by the
Company a cash sum sufficient in the discretion of the Company to fund all withholding
payments that may arise in connection with the Executive’s parachute payments from any
source.
D.
In no event shall the Company be required to gross up any payment or benefit to the
Executive to avoid the effects of the Parachute Rules or to pay any regular or excise taxes
arising therefrom. Unless the Company and the Executive otherwise
agree in writing, any parachute
payment calculation shall be made in writing by independent pubic accounts agreed to by the
Company and the Executive, whose calculations shall be conclusive and binding upon the Company
and the Executive for all purposes. The Company and the Executive shall furnish to the
accountants such information and documents as the accountants may reasonably request in order to
make a parachute payment determination.
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ARTICLE IV. NONCOMPETITION AND NONSOLICITATION
4.1 Noncompetition During Employment. Executive agrees that, during the term
hereof, Executive will devote his full productive time and best efforts to the performance
of his duties hereunder pursuant to the supervision and direction of the Company’s Board of
Directors
or its designee. Executive further agrees, as a condition to the performance by the Company of
each and all of its obligations hereunder, that so long as Executive is employed by the
Company, Executive will not directly or indirectly render services of any nature to otherwise
become employed by or otherwise participate or engage in any other business without the
Company’s prior written consent. Nothing herein contained shall be deemed to preclude Executive
from having outside personal investments and involvement with appropriate community and
charitable activities, or from devoting a reasonable amount of time
to such matters, provided
that this shall in no manner interfere with or derogate from Executive’s work for the Company.
4.2 Non-solicitation.
(a) Executive agrees that during Executive’s employment and for a period of
two (2) years after the termination of this Agreement for any
reason, in the United States or any
other equivalent geographical subdivision in foreign jurisdictions in
which the Company
does business, Executive shall not, in competition with the Company or any subsidiary or
affiliates:
(i) directly call upon or solicit any of the customers of the Company or any
subsidiary that were or became customers during the term of Executive’s employment (as
used herein “customer” shall mean any person or company as listed as such on the books of
the Company or any affiliates); or
(ii) induce or attempt to induce any employee, agent, or consultant of the
Company or any subsidiary or affiliates to terminate his or her association with the
Company
or any subsidiary or affiliates.
(b) The Company and Executive agree that the provisions of this Section 4.2
contain restrictions that are not greater than necessary to protect the interests of the
Company. In
the event of the breach or threatened breach by Executive of this Section 4.2, the
Company, in
addition to all other remedies available to it at law or in equity, will
be entitled to seek injunctive
relief and/or specific performance to enforce this Section 4.2.
ARTICLE
V. MISCELLANEOUS PROVISIONS
5.1 General Release. Any other provision of this Agreement notwithstanding,
Section 3.2(b)(ii)-(iv) above shall not apply unless Executive has executed a general release
of all known and unknown claims that Executive may then have against the Company or persons
affiliated with the Company and has expressly agreed in writing not to prosecute any legal
action or other proceeding based on any of such claims.
5.2 Confidential Proprietary Information and Inventions Assignment
Agreement. Concurrent with execution of this Agreement, Executive acknowledges receipt
of an executed copy of the Company’s standard Confidential Information and Inventions
Assignment Agreement, signed by Executive on May 28, 2005, which shall be incorporated
herein.
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5.3 Fees and Expenses. The Company shall pay all legal fees and related
expenses for counsel incurred by Executive as a result of preparation of and negotiation of the
terms of Executive’s employment.
5.4 Irrevocable Arbitration of Disputes.
(a) You and the Company agree that any dispute, controversy or claim arising
hereunder or in any way related to your employment or termination of employment with the Company or
this Agreement, its interpretation, enforceability, or applicability, that cannot be resolved by
mutual agreement of the parties (the “arbitrable claims”) shall be submitted to binding
arbitration. The parties agree that arbitration is the parties’ only recourse for such
claims and hereby waive the right to pursue such claims in any other forum, unless otherwise
provided by law. Any court action involving a dispute which is not subject to arbitration shall be
stayed pending arbitration of arbitrable disputes.
(b) You
and the Company agree that the arbitrator shall have the authority to
issue provisional relief. You
and the Company further agree that each has the right, pursuant to California Code of Civil
Procedure section 1281.8, to apply to a court for a provisional
remedy in connection with an arbitrable dispute
so as to prevent the arbitration from being rendered ineffective.
(c) Any demand for arbitration shall be in writing and must be communicated
to the other party prior to the expiration of the applicable statute of
limitations.
(d) The arbitration shall be administered by JAMS pursuant to its Employment
Arbitration Rules and Procedures. The arbitration shall be conducted in San
Diego by a former or retired judge or attorney with at least 10 years
experience in employment-related disputes, or a non-attorney with like
experience in the area of dispute, who shall have the power to hear motions,
control discovery, conduct hearings and otherwise do all that is necessary to
resolve the matter. The parties must mutually agree on the arbitrator. If the
parties cannot agree on the arbitrator after their best efforts, an
arbitrator will be selected from JAMS pursuant to its Employment Arbitration
Rules and Procedures. The Company shall pay the costs of the arbitrator’s
fees.
(e) The arbitration will be decided upon a written decision of the
arbitrator stating the essential findings and conclusions upon which
the award is based. The arbitrator shall have the authority to award
damages, if any, to the extent that they are available under
applicable law(s). The arbitration award shall be final and binding,
and may be entered as a judgment in any court having competent
jurisdiction. Either party may seek review pursuant to California
Code of Civil Procedure section 1286, et seq.
(f) It is expressly understood that the parties have chosen
arbitration to avoid the burdens, costs and publicity of a court
proceeding, and the arbitrator is expected to handle all aspects of
the matter, including discovery and any hearings, in such a way as
to minimize the expense, time, burden and publicity of the process,
while assuring a fair and just result. In
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particular, the parties
expect that the arbitrator will limit discovery by controlling the
amount of discovery that may be taken (e.g., the number of
depositions or interrogatories) and by restricting the scope of
discovery only to those matters clearly relevant to the dispute.
However, at a minimum, each party will be entitled to at least one
(1) deposition and shall have access to essential documents and
witnesses as determined by the arbitrator.
(g) The provisions of this Section shall survive the expiration or termination of the
Agreement, and shall be binding upon the parties.
THE PARTIES HAVE READ SECTION 5.4 AND IRREVOCABLY AGREE TO ARBITRATE ANY DISPUTE IDENTIFIED
ABOVE.
| /s/ | TS | (Executive) | /s/ | GGP | (Company)] | |||||
5.5
Settlement of Claims. The Company’s obligation to make the payments
provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive or others.
5.6
Legal Representatives. Upon the death or disability of Executive, any payments
due under this Agreement shall be paid to Executive’s legal representatives.
5.7 Notices. Any notice or other communication given hereunder or in connection herewith
shall be sufficiently given if in writing and (a) sent by certified mail or overnight
courier, postage or delivery costs prepaid and return receipt requested, (b) sent by facsimile transmission, or
(c) delivered personally, to the parties hereto at the following addresses or to such addresses as the parties
may from time to time provide in accordance herewith:
| If to the Company: | Energy Recovery Inc. | |||||
| x000 Xxxxxxxxx Xxxxx | ||||||
| Xxx Xxxxxxx, XX 00000 | ||||||
| Fax: (5l0) 000-0000 | ||||||
| Attention: XxxxxXxxxx Xxxx | ||||||
| If to Executive: | Xxxxxxx Xxxxxxx | |||||
| 0000 Xxx Xxxxxx XX | ||||||
Such
notice shall be deemed given on the date on which personally served or, if by mail, on the
fifth (5th) day after being being posted or on the date of actual receipt, whichever is earlier, or
if by facsimile transaction with confirmation of receipt, one (1) business day after the time sent or the time
of actual receipt, whichever is earlier.
5.8 Compliance with Section 409A of the Code. It is the
intent of this Agreement that no payment to the Executive shall result in nonqualified deferred compensation within the
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meaning of Section 409A of the Code. However, in the event that all, or a portion, of the payments
set forth in this Agreement meet the definition of nonqualified deferred compensation, the Company
intends that such payments be made in a manner that complies with Section 409A of the Code. The
Company reserves the right, to the extent the Company deems necessary
or advisable in its sole
discretion, to unilaterally amend or modify this Agreement as may be
necessary to ensure all benefits provided under this Agreement are
made in a manner that qualifies for
exemption from or complies with Section 409A of the Code,
provided, however, that the Company makes no
representations that the benefits provided under this Agreement will be exempt from Section 409A of
the Code and makes no undertakings to preclude Section 409A
of the Code from applying to the benefits provided under this Agreement.
5.9
Severability. If any term, provision, covenant, or condition of this
Agreement is held to be invalid, void, or unenforceable, the remainder of the provisions of
this Agreement shall remain in full force and effect and shall in no
way be affected, impaired or
invalidated thereby.
5.10 Survival. Sections 4.2, 5.2, and 5.4 shall
survive the termination of this Agreement.
5.11
Entire Agreement; Employment Amendments; Waiver. This Agreement, together with
all stock option agreements and/or stock repurchase agreements and any other equity grants, and the
Confidential Proprietary Information and Inventions Assignment Agreement is the entire agreement
between the parties hereto concerning the subject matter hereof and supersedes and replaces all
prior or contemporaneous agreements or understandings between the parties. This Agreement may not
be amended or modified in any manner, except by an instrument in writing signed by the
Executive and the Company or as otherwise provided in Section 5.8. Failure of either party to
enforce any of the provisions of this Agreement or any rights with respect thereto or failure to
exercise any election provided for herein shall in no way be considered to be a waiver of such
provisions, rights, or in any way effect the validity of this Agreement. The
failure of either party to exercise any of said provisions, rights, or elections shall not preclude
or prejudice such party from later enforcing or exercising the same or other provisions, rights, or
elections which it may have under this Agreement.
5.12
Governing Law. This Agreement shall be governed by and construed in all respects in
accordance with the laws of the State of California. With the exception of “arbitrable claims” as
defined in 5.4, the federal courts and/or state courts of the State of California,
County of Alameda shall have exclusive jurisdiction to adjudicate any dispute arising out of
this Agreement and/or employment relationship or termination thereof and Executive consents to such
jurisdiction and venue.
5.13 Attorneys’ Fees. In the event of any action for the breach of this
Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees, costs, and expenses incurred in
connection with such action.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
| “Executive” | “Company” | |||||||||||||||
By:
|
/s/ Xxxxxxx Xxxxxxx
|
By: | /s/ G.G. Pique
|
|||||||||||||
Title:
|
VP of Manufacturing | Title: | President | |||||||||||||
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