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EXHIBIT 10.42
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
______________________, _____, by and between Xxxxx Instruments Corp., a
Delaware corporation (the "Company"), and _________________________________
("Employee").
WITNESSETH:
WHEREAS, the Company and Employee desire to enter into this Agreement to
assure the Company of the continuing and exclusive service of Employee and to
set forth the terms and conditions of Employee's employment with the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties agree as follows:
1. TERM. The Company agrees to employ Employee and Employee hereby accepts
such employment, in accordance with the terms of this Agreement, commencing
March 1, ______; provided, however, that unless the Company or Employee gives
written notice to the other party to the contrary at least 90 days prior to any
anniversary of the date hereof, the term of this Agreement shall automatically
be extended for an additional term of one year on such anniversary date. The
term of this Agreement shall include any automatic extensions pursuant to the
preceding sentence.
2. SERVICES AND EXCLUSIVITY OF SERVICES. So long as this Agreement shall
continue in effect, Employee shall devote Employee's full business time, energy
and ability exclusively to the business, affairs and interests of the Company
and matters related thereto, shall use Employee's best efforts and abilities to
promote the Company's interests and shall perform the services contemplated by
this Agreement in accordance with policies established by and under the
direction of [the Board of Directors of the Company (the "Board")] [or] [the
chief executive officer or president of the Company (collectively, the "Senior
Officers")].
Without the prior express written authorization of the [Board of
Directors (the "Board")], Employee shall not, directly or indirectly, during the
term of this Agreement render services to any other person or firm for
compensation or engage in any activity competitive with or adverse to the
Company's business. Employee may serve as a director or in any other capacity of
any business enterprise or any nonprofit or governmental entity or trade
association, provided in each case that such service is approved by the Board or
the Senior Officers. Notwithstanding the foregoing, Employee may make and manage
personal business investments of Employee's choice and serve in any capacity
with any civic, educational or charitable organization without seeking the
approval of the Board, provided that such activities and services do not
substantially interfere or conflict with the performance of the duties hereunder
or create any conflict of interest with such duties.
3. DUTIES AND RESPONSIBILITIES. Employee shall serve as
____________________________________________________________ of the Company for
the duration of this Agreement. In the performance of Employee's duties,
Employee shall report directly to the [Board] [Senior Officers] of the Company
and shall be subject to the direction of the [Board] [Senior Officers] and to
such limits on Employee's authority as the [Board] [Senior Officers] may from
time to time impose. During the term of this Agreement, Employee shall be based
at the Company's principal executive offices in Orange County, California.
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Employee agrees to observe and comply with the rules and regulations of
the Company and agrees to carry out and perform orders, directions and policies
of the Company and its Board as they may be, from time to time, stated either
orally or in writing. The Company agrees that the duties which may be assigned
to Employee shall be usual and customary duties of the office(s) or position(s)
to which Employee may from time to time be appointed or elected and shall not be
inconsistent with the provisions of the charter documents of the Company or
applicable law. Employee shall have such corporate power and authority as shall
reasonably be required to enable Employee to perform the duties required in any
office that may be held.
4. COMPENSATION.
(a) Base Compensation. During the term of this Agreement, the Company
agrees to pay Employee a base salary at the rate of $_______________ per year,
payable in accordance with the Company practices in effect from time to time
(the "Base Salary").
(b) Additional Benefits. Employee shall also be entitled to all rights and
benefits for which Employee is otherwise eligible under any bonus plan
(including any Performance Share Award under the Company's 1997 Stock Incentive
Plan), incentive agreement, participation or extra compensation plan, pension
plan, profit-sharing plan, life, medical, dental, disability, or insurance plan
(including, except as otherwise prohibited therein, the Company's Employee Stock
Ownership Plan) or policy or other plan or benefit that the Company may provide
for Employee or (provided Employee is eligible to participate therein) for peer
employees or for employees of the Company generally, as from time to time in
effect, during the term of this Agreement (collectively, all of the above shall
be referred to as the "Additional Benefits").
(c) Periodic Review. The [Board] [Senior Officers] shall review Employee's
Base Salary and Additional Benefits then being paid to Employee not less
frequently than every twelve months. Following such review, the Company may in
its discretion increase (but shall not be required to increase) the Base Salary
or any other benefits, but may not decrease the Base Salary during the time
Employee serves as ____________________________________.
(d) Perquisites. Employee shall be entitled to three weeks paid vacation
each twelve-month period, which shall accrue on a pro rata basis from the date
employment commences under this Agreement. Vacation time will continue to accrue
so long as Employee's total accrued vacation does not exceed six weeks. Should
Employee's accrued vacation time reach six weeks, Employee will cease to accrue
additional vacation until Employee's accrued vacation time falls below this
level. All vacation time shall be subject to the plans, policies, programs and
practices as in effect generally with respect to other peer employees of the
Company.
5. TERMINATION. This Agreement and all obligations hereunder (except the
obligations contained in Sections 8, 9, 10, 11, 12 and 13 (Confidential
Information, Inventions and Patents, Non-Competition, No Solicitation of
Customers, Noninterference with Employees and Assistance in Patent Applications)
which shall survive any termination hereunder) shall terminate upon the earliest
to occur of any of the following:
(a) Voluntary Termination. Subject to Section 5(e) below, the voluntary
termination by Employee or retirement from the Company in accordance with the
normal retirement policies of the Company.
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(b) Death or Disability of Employee. Employee's employment shall be
terminated upon the death or Disability (as defined below) of Employee. In such
instance, except as set forth below, all obligations hereunder to Employee (or
Employee's heirs or legal representatives) shall cease, other than for (i)
payment of the sum of (A) Employee's annual Base Salary through the date of
termination to the extent not theretofore paid, (B) any bonus or other cash
compensation agreement for the pro rata amount earned through the date of
termination, (C) compensation previously deferred by Employee (together with any
accrued interest or earnings thereon), and (D) any accrued vacation pay, in each
case to the extent not theretofore paid (the sum of the amounts described in
clauses (A), (B), (C) and (D) shall be hereinafter referred to as the "Accrued
Obligations"), which shall be paid to Employee or Employee's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days after the date
of termination or any earlier time required by applicable law; and (ii) payment
to Employee or Employee's estate or beneficiary, as applicable, of any amount
due pursuant to the terms of any applicable benefit plan. Notwithstanding the
above, if Employee is terminated for disability, the Company shall continue,
until Employee dies, Employee recovers from such disability and returns to
full-time service, or 24 months after the date of such notice, whichever first
occurs, to pay Employee 100% of the Base Salary payable to Employee immediately
prior to the termination, minus the amount of any cash payments to Employee
under the terms of the Company's disability insurance or other disability
benefits provided by the Company. If Employee's death occurs while receiving
payments under this Section 5(b), such payments shall cease upon the death of
Employee. For the purposes of this Agreement, disability shall mean the absence
of Employee performing Employee's duties with the Company on a full-time basis
for a period of six months, as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to Employee or Employee's legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
(c) Cause. The Company may terminate Employee's employment and all of
Employee's rights to receive Base Salary and any Additional Benefits hereunder
for Cause. For purposes of this Agreement, the term "Cause" shall be defined as
any of the following; provided, however, that the Company must determine the
presence of such Cause in good faith:
(i) Willful misconduct by Employee which materially and demonstrably
injures the Company, including (1) Employee's material breach of any material
duties and responsibilities under this Agreement (other than as a result of
incapacity due to Employee's disability), (2) Employee's commission of a
material act of fraud upon the Company or (3) Employee's immoderate use of
alcoholic beverages or narcotics or other substance abuse. For purposes of this
paragraph, no act or failure to act on the part of Employee shall be considered
"willful" unless done, or omitted to be done, by Employee in bad faith and
without reasonable belief that Employee's action or omission was in the best
interest of the Company;
(ii) Employee's conviction by, or entry of a plea of guilty or nolo
contendere in, a court of competent and final jurisdiction for a felony or any
crime which materially adversely affects the Company and/or its reputation in
the community and which involves moral turpitude or is punishable by
imprisonment in the jurisdiction involved.
Notwithstanding the foregoing, Employee shall not be terminated for
Cause pursuant to clauses (i) and (ii) of this Section 5(c) unless and until
Employee has received notice of a proposed termination for cause and Employee
has had an opportunity to be heard before at least a majority of members of the
Board.
(d) Without Cause. Notwithstanding any other provision of this Section 5,
the Company shall have the right to terminate Employee's employment with the
Company without
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cause at any time, but in the event of such termination without cause, Employee
shall be entitled to receive a lump sum payment equal to the value of Employee's
Base Salary and all Additional Benefits (including the value of any bonus,
benefit or other cash incentive which would have been paid to or received by
Employee had Employee not been terminated during the term of this Agreement)
provided under this Agreement for a one year period from the date of such
termination. Such lump sum payment to Employee representing the value of all
such Base Salary and Additional Benefits shall be paid to Employee within 30
days of the date of such termination; provided, however, that if the Company is
unable (in good faith) to determine the full value of any Additional Benefits
until the end of the fiscal year in which the termination takes place (or any
other future time period), then the Company shall pay to Employee that amount of
the Additional Benefits that the Company and Employee are able to reasonably
determine is due to Employee and any additional amount to be paid to Employee
pursuant to the final determination of such Additional Benefits shall be paid to
Employee with 10 days after the determination of the amount thereof.
Notwithstanding the above, the Company shall determine and pay to Employee the
final amount due to Employee under any Additional Benefit not later than 90 days
after the term of this Agreement.
(e) Good Reason. Employee's employment may be terminated at any time by
Employee for Good Reason. Regardless of whether a resignation occurs prior to,
coincident with or after a "Change in Control," Good Reason" shall mean:
(i) The material failure by the Company to fulfil its obligations under
this Agreement, to the extent not remedied in a reasonable period of time after
the receipt of written notice by the Employee specifying the material failure by
the Company. Any reduction or attempted reduction by the Company (to the extent
such reduction is not made equally to all employees of a substantially equal
level or position) in Employee's Base Salary as in effect on the date hereof or
as the same may be increased from time-to-time or the taking of any action by
the Company that would substantially diminish the aggregate value of Employee's
compensation, including any bonus, incentive or other compensation awards,
retirement benefits and other fringe benefits from the levels in effect prior to
the date hereof is deemed material.
(ii) The Company's requiring Employee to be based at any office or
location which increases the distance from Employee's home to the office or
location by more than 30 miles from the distance in effect at the beginning of
the term of this Agreement.
If Employee terminates his or her employment with the Company for Good
Reason, then Employee shall be entitled to receive a lump sum payment equal to
that paid to Employee under Section 5(d) hereof.
6. BUSINESS EXPENSES.
During the term of this Agreement, to the extent that such expenditures
satisfy the criteria under the Internal Revenue Code for deductibility by the
Company (whether or not fully deductible by the Company) for federal income tax
purposes as ordinary and necessary business expenses, the Company shall
reimburse Employee promptly for reasonable business expenditures, including
travel, entertainment, parking, business meetings, and professional dues, made
and substantiated in accordance with the reasonable policies, practices and
procedures established from time to time by the Company generally with respect
to other peer employees and incurred in the pursuit and furtherance of the
Company's business and good will.
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7. CHANGE IN CONTROL.
If there should occur a "Change in Control" of the Company (or any
successor), as defined below, then Employee, without limitation on any other
rights hereunder, may, within 12 months after first receiving notice (which may
be oral) of such event, elect to retire from full-time service to the Company
and to render, on a non-exclusive basis, only such consulting and advisory
services to the Company as Employee may in his or her sole discretion accept.
Any such consulting and advisory services and the conditions under which they
shall be performed shall be fully in keeping with the position or positions
Employee held under this Agreement. In the event of such election by Employee,
Employee shall receive a lump sum payment equal to the greater of (i) in the
amount of 2.99 times Employee's highest annual amount of compensation (including
Base Salary and Additional Benefits) during the preceding three fiscal years, or
(ii) 2.99 times the Employee's Base Salary and Additional Benefits, including
the full targeted amount of any bonus or incentive agreement for the year in
which the Employee's resignation or discharge occurs.
Notwithstanding anything contained in this Agreement to the contrary, to
the extent that any payment or distribution of any type to or for Employee by
the Company or any of its affiliates, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (including,
without limitation, any accelerated vesting of stock options or restricted stock
granted by the Company pursuant to this Agreement or otherwise) (collectively,
the "Total Payments") is or will be subject to the excise tax imposed under
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then
the Total Payments shall be reduced (but not below zero) so that the maximum
amount of the Total Payments (after reduction) shall be one dollar ($1.00) less
than the amount which would cause the Total Payments to be subject to the excise
tax imposed by Section 4999 of the Code; provided, however, that such reduction
to the Total Payments shall be made only if the total after-tax benefit to
Employee is greater after giving effect to such reduction than if no such
reduction had been made. Unless Employee shall have given prior written notice
to the Company to effectuate a reduction in the Total Payments in a manner other
than as set forth below, if such a reduction is required, the Company shall
reduce or eliminate the Total Payments by first reducing or eliminating any cash
severance benefits, then by reducing or eliminating any accelerated vesting of
stock options, then by reducing or eliminating any accelerated vesting of
restricted stock, then by reducing or eliminating any other remaining Total
Payments. The preceding provisions of this Section 7 shall take precedence over
the provisions of any other plan, arrangement or agreement governing Employee's
rights and entitlements to any benefits or compensation.
As a result of the uncertainty in the application of Section 4999 of the
Code at the time of the determination of whether a reduction to the Total
Payments is required, it is possible that Total Payments to Employee which will
not have been made by the Company (if a reduction to the Total Payments is made
in accordance with the preceding paragraph) should have been made
("Underpayment"). Any such Underpayment shall be promptly paid by the Company to
or for the benefit of Employee. In the event that a reduction to the Total
Payments is required in accordance with the preceding paragraph and all or a
portion of the Total Payments actually made to Employee (after reduction) shall
be determined to result on the imposition of any tax under Section 4999 of the
Code, the amount of the excess Total Payments shall be a loan from the Company
to Employee, and Employee shall promptly reimburse the Company for the amount of
such excess together with interest on such amount (at the same rate as is
applied to determine the present value of payments under Section 280G or any
successor thereto), from the date the reimbursable payment was received by
Employee to the date the same is repaid to the Company.
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For purposes of the foregoing provisions, a "Change in Control" means, and
shall be deemed to have taken place, if (1) any person or entity or group of
affiliated persons or entities, including a group which is deemed a "person" by
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date hereof is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined voting power
of the Company's then outstanding securities; or (2) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board cease for any reason to constitute at least a majority thereof, unless
the election, or the nomination for election by the Company's stockholders, of
each new Board member was approved by a vote of at least three-fourths (3/4) of
the Board members then still in office who were Board members at the beginning
of such period.
8. CONFIDENTIAL INFORMATION.
Employee acknowledges that the nature of Employee's engagement by the
Company is such that Employee shall have access to information of a confidential
and/or trade secret nature which has great value to the Company and which
constitutes a substantial basis and foundation upon which the business of the
Company is based. Such information includes financial, manufacturing and
marketing data, techniques, processes, formulas, developmental or experimental
work, work in process, methods, trade secrets (including, without limitation,
customer lists and lists of customer sources), or any other secret or
confidential information relating to the products, services, customers, sales or
business affairs of the Company (the "Confidential Information"). Employee shall
keep all such Confidential Information in confidence during the term of this
Agreement and at any time thereafter and shall not disclose any of such
Confidential Information to any other person, except to the extent such
disclosure is (i) necessary to the performance of this Agreement and in
furtherance of the Company's best interests, (ii) required by applicable law,
(iii) lawfully obtainable from other sources, or (iv) authorized by the Company.
Upon termination of Employee's employment with the Company, Employee shall
deliver to the Company, or certify to the Company of the destruction of ,all
documents, records, notebooks, work papers, and all similar material containing
any of the foregoing information, whether prepared by Employee, the Company or
anyone else.
9. INVENTIONS AND PATENTS.
Except as may be limited by Section 2870 of the California Labor Code, all
inventions, designs, improvements, patents, copyrights and discoveries conceived
by Employee during the term of this Agreement which are useful in or directly or
indirectly related to the business of the Company or to any experimental work
carried on by the Company, shall be the property of the Company. Employee will
promptly and fully disclose to the Company all such inventions, designs,
improvements, patents, copyrights and discoveries (whether developed
individually or with other persons) and shall take all steps necessary and
reasonably required to assure the Company's ownership thereof and to assist the
Company in protecting or defending the Company's proprietary rights therein.
Employee acknowledges hereby receipt of written notice from the Company
pursuant to California Labor Code Section 2872 that this Agreement (to the
extent it requires an assignment or offer to assign rights to any invention of
Employee) does not apply fully to an invention which qualifies fully under
California Labor Code Section 2870.
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10. NON-COMPETITION.
In order to protect the Confidential Information, Employee agrees that
during the term of Employee's employment, and for a period of one year
thereafter, Employee shall not, directly or indirectly, whether as an owner,
partner, shareholder, agent, employee, creditor, or otherwise, promote,
participate or engage in any activity or other business competitive with the
Company's business in any jurisdiction in which the Company operates at the time
of such termination if such activity or other business involves any use by the
Employee of any of the Confidential Information.
11. NON-SOLICITATION OF CUSTOMERS.
Employee agrees that for a period of one year after the termination of
employment with the Company, Employee will not, on behalf of Employee or on
behalf of any other individual, association or entity, call on any of the
customers of the Company for the purpose of soliciting or inducing any of such
customers to acquire (or providing to any of such customers) any product or
service provided by the Company, nor will Employee in any way, directly or
indirectly, as agent or otherwise, in any other manner solicit, influence or
encourage such customers to take away or to divert or direct their business to
Employee or any other person or entity by or with which Employee is employed,
associated, affiliated or otherwise related.
12. NONINTERFERENCE WITH EMPLOYEES.
In order to protect the Confidential Information, Employee agrees that
during the term hereof and for a period of one year thereafter, Employee will
not, directly or indirectly, solicit any employee of the Company to leave such
employment.
13. ASSISTANCE IN PATENT APPLICATIONS.
Employee agrees to assist the Company in obtaining United States or foreign
letters patent and copyright registrations covering inventions assigned
hereunder to the Company and that Employee's obligation to assist the Company
shall continue beyond the termination of Employee's employment but the Company
shall compensate Employee at a reasonable rate for time actually spent by
Employee at the Company's request with respect to such assistance. If the
Company is unable because of Employee's mental or physical incapacity or for any
other reason to secure Employee's signature to apply for or to pursue any
application for any United States or foreign letters patent or copyright
registrations covering inventions assigned to the Company, then Employee hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as Employee's agent and attorney-in-fact to act for and in Employee's
behalf and stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and effect
as if executed by Employee. Employee hereby waives and quitclaims to the Company
any and all claims, of any nature whatsoever, which Employee now or hereafter
may have for infringement of any patent or copyright resulting from any such
application for letters patent or copyright registrations assigned hereunder to
the Company. Employee will further assist the Company in every way to enforce
any copyrights or patents obtained including, without limitation, testifying in
any suit or proceeding involving any of the copyrights or patents or executing
any documents deemed necessary by the Company, all without further consideration
but at the expense of the Company. If Employee is called upon to render such
assistance after the termination of Employee's employment, then Employee shall
be entitled to a fair and reasonable per diem fee in addition to reimbursement
of any expenses incurred at the request of the Company.
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14. INDEMNITY.
In addition to any other separate agreement with the Company concerning
indemnification, to the fullest extent permitted by applicable law and the
bylaws of the Company, as from time to time in effect, the Company shall
indemnify Employee and hold Employee harmless for any acts or decisions made in
good faith while performing services for the Company, and the Company shall use
its best efforts to obtain coverage for Employee (provided the same may be
obtained at reasonable cost) under any liability insurance policy or policies
now in force or hereafter obtained during the term of this Agreement that cover
other officers of the Company having comparable or lesser status and
responsibility. To the same extent, the Company will pay and, subject to any
legal limitations, advance all expenses, including reasonable attorneys' fees
and costs of court approved settlements, actually and necessarily incurred by
Employee in connection with the defense of any action, suit or proceeding and in
connection with any appeal thereon, which has been brought against Employee by
reason of Employee's service as an officer or agent of the Company.
15. REMEDIES.
The parties hereto agree that the services to be rendered by Employee
pursuant to this Agreement, and the rights and privileges granted to the Company
pursuant to this Agreement, are of a special, unique, extraordinary and
intellectual character, which gives them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in any action at law,
and that a breach by Employee of any of the terms of this Agreement will cause
the Company great and irreparable injury and damage. Employee hereby expressly
agrees that the Company shall be entitled to the remedies of injunction,
specific performance and other equitable relief to prevent a breach of this
Agreement by Employee. This Section 15 shall not be construed as a waiver of any
other rights or remedies which the Company may have for damages or otherwise.
16. SEVERABILITY.
If any provision of this Agreement is held to be unenforceable for any
reason, it shall be adjusted rather than voided, if possible, to achieve the
intent of the parties to the extent possible. In any event, all other provisions
of this Agreement shall be deemed valid and enforceable to the extent possible.
17. SUCCESSION.
This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns and any such successor or assignee shall
be deemed substituted for the Company under the terms of this Agreement for all
purposes. As used herein, "successor" and "assignee" shall include any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires the stock of the
Company or to which the Company assigns this Agreement by operation of law or
otherwise. The obligations and duties of Employee hereunder are personal and
otherwise not assignable. Employee's obligations and representations under this
Agreement will survive the termination of Employee's employment, regardless of
the manner of such termination.
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18. NOTICES.
Any notice or other communication provided for in this Agreement shall be
in writing and sent if to the Company to its principal executive office at:
Xxxxx Instruments Corp.
0000 Xxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000; Facsimile: (000) 000-0000
Attention: General Counsel
or at such other address as the Company may from time to time in writing
designate, and if to Employee at such address as Employee may from time to time
in writing designate. Each such notice or other communication shall be effective
(i) if given by telecommunication, when transmitted to the applicable number so
specified in (or pursuant to) this Section 18 and a verification of receipt is
received, (ii) if given by mail, three days after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid
or (iii) if given by any other means, when actually delivered at such address.
19. ENTIRE AGREEMENT.
This Agreement contains the entire agreement of the parties relating to the
subject matter hereof and supersedes any prior agreements, undertakings,
commitments and practices relating to Employee's employment by the Company.
20. AMENDMENTS.
No amendment or modification of the terms of this Agreement shall be valid
unless made in writing and duly executed by both parties.
21. WAIVER.
No failure on the part of any party to exercise or delay in exercising any
right hereunder shall be deemed a waiver thereof or of any other right, nor
shall any single or partial exercise preclude any further or other exercise of
such right or any other right.
22. GOVERNING LAW.
This Agreement, and the legal relations between the parties, shall be
governed by and construed in accordance with the laws of the State of California
without regard to conflicts of law doctrines and any court action arising out of
this Agreement shall be brought in any court of competent jurisdiction within
the State of California, County of Orange.
23. WAIVER OF JURY TRIAL.
THE COMPANY AND EMPLOYEE HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED
TO THIS AGREEMENT, THE EMPLOYMENT RELATIONSHIP BETWEEN THEM OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR SUCH
RELATIONSHIP. The scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court or that relate to the subject
matter of this Agreement, including without limitation, contract claims, tort
claims, breach of duty claims, wrongful termination claims, claims for discharge
in
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violation of public policy, claims of discrimination and all other common law
and statutory claims, to the maximum extent permitted by law. The Company and
Employee each acknowledge that this waiver is a material inducement to enter
into this Agreement, that each has already relied on the waiver in entering into
this Agreement, and that each will continue to rely on the waiver in their
related future dealings. THE COMPANY AND EMPLOYEE FURTHER WARRANT AND REPRESENT
THAT EACH HAS HAD AN OPPORTUNITY TO REVIEW THIS WAIVER WITH ITS LEGAL COUNSEL,
AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
SUCH OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT MODIFICATIONS TO OR EXTENSIONS OF THIS AGREEMENT.
In the event of arbitration or litigation, this Agreement may be filed as a
written consent to arbitration or to a trial by the court.
24. ARBITRATION.
As a material inducement to enter into this Agreement, Employee and the
Company each hereby agree that any "Claims" or "Controversies" (as defined
below) arising out of or in respect to this Agreement (or its validity,
interpretation or enforcement), or Employee's employment or termination, that
Employee may have against the Company or it officers, directors, employees, or
agents, in their capacity as such, or that the Company may have against
Employee, shall be resolved solely through binding arbitration. EMPLOYEE AND THE
COMPANY EACH HEREBY ACKNOWLEDGE THAT THIS AGREEMENT TO ARBITRATE MEANS THAT
EMPLOYEE AND THE COMPANY ARE RELINQUISHING HIS/HER/ITS RIGHTS TO EITHER A JURY
TRIAL OR COURT TRIAL FOR THE RESOLUTION OF ANY CLAIMS THAT EMPLOYEE AND THE
COMPANY MAY HAVE AGAINST THE OTHER.
"Claims" or "Controversies" arising out of this Agreement or Employee's
employment or termination means and includes all claims for breach of this
Agreement, harassment and/or discrimination (including sexual harassment and
harassment or discrimination based on race, color, religion, age, sex, sexual
orientation, ancestry, national origin, marital status, military service,
pregnancy, physical or mental disability, medical condition or any other
protected class or condition), breach of any contract or covenant (express or
implied), tort claims, wrongful termination, whistle-blowing and all other
claims relating to this Agreement or Employee's employment or termination,
except that claims covered by the Workers' Compensation Act and claims for
unemployment benefits are not covered by this agreement to arbitrate.
All Claims or Controversies shall be submitted to a single neutral
arbitrator. The arbitration shall take place in Orange County, California,
unless otherwise mutually agreed. The arbitrator shall be mutually agreed-upon
by Employee and the Company. If Employee and the Company cannot agree upon an
arbitrator, the selection process shall be governed by the employment
arbitration rules and procedures of the American Arbitration Association
("AAA"). Regardless of the arbitrator chosen, the arbitration proceedings shall
be governed by the then current AAA procedural rules, except that if a contrary
rule exists: (1) all monetary or provisional remedies available under applicable
state or federal statutory law or common law will remain available to both
parties, (2) except as mutually agreed upon by the parties, there will be no
limitation on discovery beyond that which exists in cases litigated in Orange
County Superior Court and (3) the California Rules of Evidence shall apply to
the arbitration hearing.
In connection with any arbitration proceeding commenced hereby, the
prevailing party shall be entitled to reimbursement of its reasonable attorney's
fees and costs, including arbitrator fees. This agreement to arbitrate and
arbitration procedure is intended to be the exclusive method of resolving all
Claims or Controversies as described above between
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Employee and the Company and judgment upon the award rendered by the arbitrator
hereunder may be entered in any court having jurisdiction thereof.
25. WITHHOLDING.
All compensation payable hereunder, including salary and other benefits,
shall be subject to applicable taxes, withholding and other required, normal or
elected employee deductions.
26. COUNTERPARTS.
This Agreement and any amendment hereto may be executed in one or more
counterparts. All of such counterparts shall constitute one and the same
agreement and shall become effective when a copy signed by each party has been
delivered to the other party.
27. HEADINGS.
Section and other headings contained in this Agreement are for convenience
of reference only and shall not affect in any way the meaning or interpretation
of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXX INSTRUMENTS CORP.
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By
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Its
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EMPLOYEE
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[name]
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[address]
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