Protocol Systems, Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
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PARTIES: Protocol Systems, Inc. ("Company")
0000 XX Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
XXXXX X. XXXX ("Executive")
00000 XX Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxx 00000
DATE: July 1, 1998
RECITALS:
A. The Company wishes to obtain the services of the Executive for at least
the duration of this Agreement, and the Executive wishes to provide his
services for such period, all upon the terms and conditions set out in
this Agreement.
B. It is expressly recognized by the parties that the Executive's
continuance in the Executive's position with the Company and agreement to be
bound by the terms of this Agreement represents a substantial commitment to
the Company in terms of the Executive's personal and professional career
and a foregoing of present and future career options by the Executive,
for all of which the Company receives substantial value.
C. The parties recognize that a Change of Control (as defined below) may
result in material alteration or diminishment of the Executive's
position and responsibilities and substantially frustrate the purpose of
the Executive's commitment to the Company and forbearance of career
options.
D. The parties recognize that in light of the above-described commitment
and forbearance of career options, it is essential that, for the benefit
of the Company and its stockholders, provision be made for a Change of
Control Termination (as defined below) in order to enable the Executive
to accept and effectively continue in the Executive's position in the
face of inherently disruptive circumstances arising from the possibility
of a Change of Control, although no such change is now contemplated or
foreseen.
NOW, THEREFORE, for valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 "Base Salary" shall mean regular cash compensation paid on a periodic
basis exclusive of benefits, bonuses or incentive payments.
1.2 "Board" shall mean the Board of Directors of Protocol Systems, Inc.
1.3 "Disability" shall mean the inability of the Executive to perform the
essential functions of his position under this Agreement with or without
reasonable accommodation because of physical or mental incapacity for a
continuous period of five (5) months, as reasonably determined by the Company
after consultation with a qualified physician selected by the Company.
1.4 "Company" shall mean Protocol Systems, Inc. and, any successor in
interest by way of consolidation, operation of law, merger or otherwise.
1.5 "Confidentiality Agreement" shall mean that certain Non-competition and
Confidentiality Agreement dated 28 July 1987 by and between the Company and
Executive.
ARTICLE 2
EMPLOYMENT, DUTIES AND TERM
2.1 EMPLOYMENT. Upon the terms and conditions set forth in this Agreement,
the Company hereby employs the Executive in the position of Senior Vice
President and Chief Technology Officer, and the Executive accepts such
employment.
2.2 DUTIES. The Executive shall devote his full-time and best efforts to
the Company and to fulfilling the duties of his position which shall include
such duties as may from time to time be assigned him by the Chief Executive
Officer, provided that such duties are reasonably consistent with the
Executive's position. The Executive shall comply with the Company's policies
and procedures to the extent they are not inconsistent with this Agreement, in
which case the provisions of this Agreement prevail.
2.3 TERM. This Agreement shall remain in effect until the earlier of (i)
termination pursuant to Article 4 or Article 6 of this Agreement or (ii) two
(2) years from the date of this Agreement, provided however that if a Change
in Control occurs within two (2) years from the date of this Agreement, then
this Agreement shall remain in effect for two (2) years from the date of the
first Change in Control event described in Section 6.1.1.
ARTICLE 3
COMPENSATION AND EXPENSES
3.1 BASE SALARY. For all services rendered under this Agreement, the Company
shall pay Executive a Base Salary that is not less than Executive's Base Salary
as of the date of this Agreement. If the Executive's salary is increased from
time to time during the term of this Agreement, the increased amount shall be
the Base Salary for the remainder of the term and any extensions. All amounts
payable to the Executive under this Agreement shall be reduced by such amounts
as are required to be withheld by law.
3.2 BONUS AND INCENTIVE. Bonus or incentive compensation shall be in the
sole discretion of the Board. Except as otherwise provided in Article 6, the
Company shall have the right in accordance with the terms of any bonus or
incentive plan to alter, amend or eliminate all or any part of such plan, or
the Executive's participation therein, without compensation to the Executive.
3.3 BUSINESS EXPENSES. The Company shall, in accordance with, and to the
extent of, its policies in effect from time to time, reimburse all ordinary and
necessary business expenses reasonably incurred by the Executive in performing
his duties as an employee of the Company, provided that the Executive accounts
promptly for such expenses to the Company in the manner prescribed from time to
time by the Company.
ARTICLE 4
EARLY TERMINATION
4.1 EARLY TERMINATION. This Article 4 governs termination of this Agreement
at any time during the term of the Agreement; provided, however, that this
Article shall not govern a "Change of Control Termination" as defined in
Article 6. A Change in Control Termination is governed solely by the
provisions of Article 6.
4.2 TERMINATION FOR CAUSE. The Company may terminate this Agreement and
Executive's employment immediately for "Cause" as that term is defined herein,
upon written notice to the Executive.
4.2.1 "Cause" means any one of the following: (a) fraud,
(b) misrepresentation, (c) theft or embezzlement of the Company assets,
(d) intentional violations of law involving moral turpitude, (e) the
continued failure by the Executive to satisfactorily perform his duties
as reasonably assigned to the Executive pursuant to Section 2.2 of this
Agreement for a period of sixty (60) days after a written demand for such
satisfactory performance which specifically and with reasonable detail
identifies the manner in which it is alleged the Executive has not
satisfactorily performed such duties, and (f) any material breach of the
Confidentiality Agreement.
4.2.2 In the event of termination for Cause pursuant to this Section 4.2,
the Executive shall be paid his Base Salary through the date of
termination specified in any notice of termination. The Executive will
not be entitled to any bonuses or incentives which are not earned and
payable at the time of the termination.
4.3 TERMINATION WITHOUT CAUSE. Either the Executive or the Company may
terminate this Agreement and the Executive's employment without Cause by
providing at least seventy-five (75) days' written notice; provided, however,
that the Company shall have the option of making termination of the Agreement
and termination of the Executive's employment effective immediately upon
notice, in which case Executive shall be paid his Base Salary through a notice
period of seventy-five (75) days. This Section 4.3 shall not be applicable
where Cause for termination exists.
4.3.1 If the notice of termination is given by the Company, in addition
to any other amounts payable to Executive, under this Section 4.3, the
Company shall pay Executive within fifteen (15) days following
termination, a lump sum amount equal to one (1) year's Base Salary.
4.3.2 In the event that termination occurs pursuant to Section 4.3.1
then, in addition to the payments specified in said Section, the Company
shall pay to the Executive bonuses, if any, as follows:
4.3.2.1 Company shall pay Executive an amount equal to the
annual bonus or annual incentive, if any, to which the Executive
would otherwise have become entitled under any Company bonus or
incentive plan in effect at the time of termination of this
Agreement had the Executive remained continuously employed for the
full fiscal year in which termination occurred and continued to
perform his duties in the same manner as they were performed
immediately prior to termination; provided, however, that such
bonus or incentive amount shall be pro-rated to the date of
termination. The amount payable pursuant to this Section 4.3.2.1
shall be earned and payable as of the date that is fifteen (15)
days after the date such bonus would have been paid had the
Executive remained employed for the full fiscal year.
4.3.2.2 In the event Executive would have been entitled to a
quarterly bonus or quarterly incentive payment had he remained
employed for the entire quarter in which Executive was terminated,
the Company shall pay Executive such quarterly bonus or incentive
amount pro-rated to the date of termination, payable as of the date
that is fifteen (15) days after the date such bonus would have been
paid had the Executive remained employed for the full quarter.
4.4 Termination in the Event of Death or Disability. This Agreement and
Executive's employment shall terminate in the event of death or Disability of
the Executive.
4.4.1 In the event of the Executive's death, the Company shall pay an
amount equal to six (6) month's Base Salary to the executor,
administrator or other personal representative of the Executive's estate.
The amount shall be paid as a lump sum as soon as practicable following
Company's receipt of notice of the Executive's death. All such payments
shall be in addition to any payments due pursuant to Section 4.4.3 below.
4.4.2 In the event of termination due to Executive's Disability, Base
Salary shall be terminated as of the final day of the fifth month
referenced in the definition of "Disability." Unless otherwise
disqualified by the disability benefit program provider, this Section is
not intended to limit the Executive from qualifying for and claiming
disability benefits from any other disability program in which the
Executive may be enrolled or otherwise for which he is qualified at the
time of disability.
4.4.3 In the event of termination by reason of the Executive's death or
Disability, the Company shall pay to the Executive an amount equal to the
amount the Executive would have received in incentive plan bonus for the
year in which termination occurred had "target" goals been achieved,
provided, however, that such amount shall be pro-rated to the date of
termination. This amount shall be earned and payable as of the date that
is fifteen (15) days after the date such bonus would have been paid had
the Executive remained employed for the full fiscal year in which
termination occurred.
4.5 CONTINUATION OF BENEFITS. In the event of termination of Executive's
employment by the Company pursuant to Section 4.3.1 or termination due to
Disability, the Company shall pay the applicable premiums for such group health
plan continuation as Executive is entitled to under the Consolidated Omnibus
Reconciliation Act of 1985 ("COBRA") and shall continue such payment for the
period of time the Executive is entitled to continue such coverage under COBRA.
4.6 ENTIRE TERMINATION PAYMENT. The compensation provided for in this
Article 4 shall constitute the Executive's sole remedy for termination pursuant
to this Article. The Executive shall not be entitled to any other termination
or severance payment which may be payable to the Executive under any other
agreement between the Executive and the Company preceding or following the date
of termination.
ARTICLE 5
CONFIDENTIALITY; CONFLICT OF INTEREST
5.1 PROPRIETARY INFORMATION. Executive shall keep confidential, except as
the Company may otherwise consent in writing, and not disclose or make any use
of except for the benefit of the Company, at any time either during or
subsequent to his employment by the Company, any Proprietary Information which
he may produce, obtain or otherwise acquire during the course of his
employment. As used herein, "Proprietary Information" shall include any trade
secrets, confidential information, knowledge, data, or other information of the
Company relating to products, processes, know-how, designs, formulae, test
procedures and results, customer lists, business plans, marketing plans and
strategies, and pricing strategies, or other subject matter pertaining to any
business of the Company for any of its clients, customers, consultants,
licensees of affiliates, which information is not in the public domain at the
time of the alleged breach. In the event of the termination of the Executive's
employment for any reason whatsoever, Executive shall promptly return all
records, materials, equipment, drawings and the like pertaining to any
Proprietary Information.
5.2 COVENANT NOT TO COMPETE. Executive acknowledges that he will provide
special skills, and acquire special information, regarding the activities of
the Company. Executive agrees, therefore, that he will not, for a period of
twelve (12) months from and after the date he ceases to be employed by the
Company, join, control or participate in the ownership, management, operation
or control of or be connected with, any business located in the United States
of America whose commercial products are in direct competition with the Company
or which is developing products which will be in direct competition with the
Company, in such a manner and position that he would likely use Proprietary
Information, unless released from such obligation by the Board of Directors of
the Company. Executive agrees that he shall be deemed to be connected with a
business if such a business is carried on by a partnership in which he is a
general or limited partner or employee of a corporation or association of which
he is a shareholder, officer, director, employee, member, consultant or agent;
provided, that nothing herein shall prohibit the purchase or ownership by him
of shares of less than five percent (5%) in a publicly or privately held
corporation. Executive agrees to submit a list of such business interests in
Exhibit A attached hereto and incorporated by reference herein.
Notwithstanding the foregoing, this Section 5.2 shall not apply to the
Executive if the Executive's employment was terminated pursuant to Section 4.3
or Section 6.1.2.1 of this agreement.
5.3 CONSENT TO INJUNCTION. Executive agrees that the Company will or would
suffer an irreparable injury if Executive were to compete with the business of
the Company or any of its subsidiaries in violation of this Agreement and that
the Company would by reason of such competition be entitled to injunctive
relief in a court of appropriate jurisdiction and Executive stipulates to the
entering of such injunctive relief prohibiting him from competing with the
Company or any present affiliate of the Company in connection with the business
of the Company, in violation of this Agreement.
5.4 SEVERABILITY. The parties intend that the covenants contained in Section
5.2 be deemed to be separate covenants as to each county and state, and that if
in any judicial proceeding a court shall refuse to enforce all of the separate
covenants included herein because, taken together, they cover too extensive a
geographic area or because any one includes too large an area or because they
cover too large a period of time, the parties intend that such covenants shall
be reduced in scope to the extent required by law or, if necessary, eliminated
from the provisions hereof, and that all of the remaining covenants hereof not
so affected shall remain fully effective and enforceable.
5.5 ASSIGNMENT OF INVENTIONS. As used in this Agreement, "inventions" shall
include, but not be limited to, ideas, improvements, designs, and discoveries.
Executive hereby assigns and transfers to the Company entire right, title and
interest in and to all inventions whether or not conceived by Executive
(whether made solely by Executive or jointly with others) during the period of
his employment with the Company which relate in any manner to the actual or
demonstrably anticipated business, work, or research an development of the
Company or its subsidiaries, or result from or are suggested by any tasks
assigned to Executive or any work performed by Executive for or on behalf of
the Company or its subsidiaries. Executive agrees that all such inventions are
sole property of the Company, provided, however, that this Agreement does not
require assignment of any invention if such assignment would contravene
applicable state law.
5.6 DISCLOSURE OF INVENTIONS, PATENTS. Executive agrees that in connection
with any invention as defined in Section 5.5, above:
5.6.1 Executive will disclose such invention promptly in writing to the
Board of Directors of the Company, with a copy to the President,
regardless of whether he believes the invention is protected by
applicable state law, in order to permit the Company to claim rights to
which it may be entitled under this Agreement. Such disclosure shall be
received in confidence by the Company.
5.6.2 Executive will, at the Company's request, promptly execute a
written assignment of title to the Company for any invention required to
be assigned by Section 5.5 ("assignable invention") and Executive will
preserve any such assignable invention as confidential information of the
Company; and
5.6.3 Upon request, Executive agrees to assist the Company or its nominee
(at its expense) during and at any time subsequent to his employment in
every reasonable way to obtain for its own benefit patents and copyrights
for such assignable inventions in any and all countries, which inventions
shall be and remain the sole and exclusive property of the Company or its
nominee, whether or not patented or copyrighted. Executive agrees to
execute such papers and perform such lawful acts as the Company deems to
be necessary to allow it to exercise all right, title, and interest in
such patents and copyrights.
5.6.4 Executive agrees to submit a list of inventions made prior to his
employment by the Company on Exhibit B attached hereto and incorporated
by reference herein.
5.7 EXECUTION OF DOCUMENTATION. In connection with Section 5.5 and Section
5.6, Executive further agrees to execute, acknowledge and deliver to the
Company or its nominee upon request and at its expense all such assignments of
inventions, patents, and copyrights to be issued therefor, as the Company may
determine necessary or desirable for which to apply. Executive agrees to
obtain letters, patents, and copyrights on such assignable inventions in any
and all countries and/or protect the interest of the Company or its nominee in
such inventions, patents and copyrights and to vest title thereto in the
Company or its nominee.
5.8 OTHER OBLIGATIONS. Executive acknowledges that the Company from time to
time may have agreements with other persons or with the U.S. Government, or
agencies thereof, which impose obligations or restrictions on the Company
regarding inventions made during the course of work thereunder or regarding the
confidential nature of such work. Executive agrees to be bound by all such
obligations and restrictions and to take all action necessary to discharge the
obligations of the Company thereunder.
5.9 TRADE SECRETS OF OTHERS. Executive represents that his performance of
all the terms of this Agreement and as an employee of the Company such
employment does not and will not breach any agreement to keep in confidence
proprietary information, knowledge, or data acquired by Executive in confidence
or in trust prior to his employment with the Company. Executive will not
disclose to the Company, or induce the Company to use, any confidential or
proprietary information or material belonging to any previous employer or
others. Executive agrees not to enter into any agreement either written or
oral in conflict herewith.
5.10 CONFLICT OF INTEREST. During Executive's employment with the Company,
Executive will engage in no activity or employment which may conflict with the
interest of the Company and will comply with the Company's policies and
guidelines pertaining to business conduct and ethics.
5.11 PREVIOUS AGREEMENTS. Executive represents and warrants to the Company
that as of the date of this Agreement, he has fully complied with the terms of
the Confidentiality Agreement. Executive's obligations under this Agreement
are in addition to, do not limit, and are not limited by, Executive's
Confidentiality Agreement. To the extent any provision of the Confidentiality
Agreement conflicts with the provisions of this Agreement, the provisions of
this Agreement control.
5.12 SURVIVAL OF OBLIGATIONS. The provisions of this Article 5 shall survive
termination of this Agreement.
ARTICLE 6
CHANGE OF CONTROL
6.1 Definitions. For purposes of this Article 6, the following definitions
shall be applied:
6.1.1 "Change of Control" shall mean any of the following events:
6.1.1.1 a merger or consolidation to which the Company is a
party if the individuals and entities who were stockholders of the
Company immediately prior to the effective date of such merger or
consolidation have beneficial ownership (as defined in Rule 13d-3
under the Securities Exchange Act of 1934) of less than fifty
percent (50%) of the total combined voting power for election of
directors of the surviving corporation immediately following the
effective date of such merger or consolidation; or
6.1.1.2 the direct or indirect beneficial ownership (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934), in the
aggregate, of securities of the Company, representing twenty
percent (20%) or more of the total combined voting power of the
Company's then issued and outstanding securities, by any person or
entity, or group of associated persons or entities acting in
concert; or
6.1.1.3 the sale of all or substantially all of the assets of
the Company to any person or entity which is not a subsidiary of
the Company; or
6.1.1.4 the stockholders of the Company approve any plan or
proposal for the liquidation of the Company; or
6.1.1.5 a change in the composition of the Board at any time
during any consecutive 24-month period such that the Continuity
Directors cease for any reason to constitute at least a seventy
percent (70%) majority of the Board. For purposes of this clause,
"Continuity Directors" means those members of the Board who either:
6.1.1.5.1 were directors at the beginning of such consecutive
24-month period; or
6.1.1.5.2 were elected by, or on the nomination or
recommendation of, at least a two-thirds (2/3)
majority of the then-existing Board.
6.1.2 "Change of Control Termination" shall mean, with respect to the
Executive, any of the following events occurring within two (2) years
after a Change of Control:
6.1.2.1 Termination of the Executive's employment by the
Company for any reason other than for Cause, as Cause is defined in
Section 4.2 of this Agreement.
6.1.2.2.Termination of employment with the Company by the
Executive pursuant to Section 6.2 of this Article 6. A Change of
Control Termination shall not, however, include termination by
reason of death or Disability.
6.1.3 "Good Reason" shall mean a good faith determination by the
Executive, in the Executive's reasonable judgment, that any one or more
of the following events has occurred without the Executive's express
written consent, after a Change of Control, and the Company's failure to
correct such occurrence for a period of thirty (30) days following
Executive's written notice to Company identifying the event alleged to
provide Good Reason and stating Executive's intent to invoke Section 6.2
of this Article 6.
6.1.3.1 A change in the Executive's reporting responsibilities,
titles or offices as in effect immediately prior to the Change of
Control, or any removal of the Executive from, or any failure to
re-elect the Executive to, any of such positions, which has the
effect of materially diminishing the Executive's responsibility or
authority;
6.1.3.2 A reduction by the Company in the Executive's Base
Salary as in effect immediately prior to the Change of Control;
6.1.3.3 A requirement by the Company that the Executive be
based anywhere other than within twenty-five (25) miles of the
Executive's job location at the time of the Change of Control;
6.1.3.4 A material diminishment of Executive's pension, bonus,
incentive, stock ownership, purchase, option, life insurance,
health, accident, disability, or any other employee compensation or
benefit plan, program or arrangement and/or any membership
(collectively, "Benefit Plans"), in which the Executive is
participating immediately prior to a Change of Control; or the
taking of any action by the Company that would materially adversely
affect the Executive's participation or materially reduce the
Executive's benefits under any Benefit Plans or Benefit Plan;
6.1.3.5 Any material breach of this Agreement by the Company.
6.1.4 "Internal Revenue Code" -- Any references to a section of the
Internal Revenue Code shall mean that section of the Internal Revenue
Code of 1986, or to the corresponding section of such Code, as from time
to time amended.
6.2 CHANGE OF CONTROL TERMINATION RIGHT. For a period of two (2) years
following a Change of Control, the Executive shall have the right, at any
time, to terminate employment with the Company for Good Reason. Such
termination shall be accomplished by, and effective upon, the Executive giving
written notice to the Company of the Executive's decision to terminate.
Except as otherwise expressly provided in this Agreement, upon the exercise of
said right, all obligations and duties of the Executive under this Agreement
shall be of no further force and effect.
6.2.1 Change of Control Termination Payment. In the event of a
termination pursuant to Section 6.2, without further action by the
Board, the Company shall, within thirty (30) days of such termination,
make a lump sum payment to the Executive, equal to two (2) years' Base
Salary.
6.2.2 In addition to the amounts paid pursuant to Section 6.2.1 the
Company shall pay to the Executive an amount equal to (a) two (2) times
what the Executive would have received in incentive plan bonus for the
year in which termination occurs as if the "target" goals had been
achieved for that fiscal year, or (b) the actual amount of the incentive
bonus to which the Executive would have been entitled had he remained
with the Company based on the Company's actual performance, for the
fiscal year in which termination occurs, whichever is greater. The
amount provided by this Section 6.2.2 shall be earned and payable on the
date that is fifteen (15) days after the date Executive would have been
paid an annual incentive bonus had he remained with the Company for the
fiscal year in which termination occurs.
6.2.3 Notwithstanding anything in this Agreement to the contrary, in the
event any of the payments to the Executive under this Agreement would
constitute an excess parachute payment pursuant to Section 280 G of the
Internal Revenue Code, the amount payable pursuant to Section 6.2.2
shall be reduced by the minimum amount necessary such that none of the
compensation payable to Executive as a result of a Change in Control
shall constitute an excess parachute payment.
6.3 INTEREST. In the event the Company does not make timely payment in full
of the Change of Control Termination payment described in Section 6.2, the
Executive shall be entitled to receive interest on any unpaid amount at the
lower of: (a) prime rate of interest (or such comparable index as may be
adopted) established from time to time by the Company's principal banking
institution or (b) the maximum rate permitted under Section 280G(d)(4) of the
Internal Revenue Code.
6.4 CONTINUATION OF BENEFITS. In the event of termination of Executive's
employment pursuant to Section 6.2 herein, the Company shall pay the
applicable premiums for such group health plan continuation as Executive is
entitled to under COBRA and such payment shall continue for the period of time
the Executive is entitled to continue such coverage under COBRA.
6.5 VESTING OF STOCK OPTIONS. All unvested stock options held by Executive,
if any, shall vest immediately upon a Change in Control Termination as defined
in paragraph 6.1.2.1. Executive may exercise such options in accordance with
the terms and conditions of the stock option plan and the agreement pursuant
to which such options were granted.
ARTICLE 7
GENERAL PROVISIONS
7.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the Company and each
subsidiary, whether by way of merger, consolidation, operation of law,
assignment, purchase or other acquisition of substantially all of the assets or
business of the Company, and any such successor or assign shall absolutely and
unconditionally assume all of the Company's obligations hereunder.
7.2 NOTICES. All notices, requests and demands given to or made pursuant
hereto shall, except as otherwise specified herein, be in writing and be
delivered or mailed to any such party at its address as set forth at the
beginning of this Agreement. Either party may change its address, by notice to
the other party given in the manner set forth in this Section. Any notice, if
mailed properly addressed, postage prepaid, registered or certified mail, shall
be deemed dispatched on the registered date or that stamped on the certified
mail receipt, and shall be deemed received within the third business day
thereafter or when it is actually received, whichever is sooner.
7.3 CAPTION. The various headings or captions in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
7.4 GOVERNING LAW. The validity, construction and performance of this
Agreement shall be governed by the laws of the State of Oregon
7.5 MEDIATION. In case of any dispute arising under this Agreement which
cannot be settled by reasonable discussion, the parties agree that, prior to
commencing any arbitration proceeding as contemplated by Section 7.6 they will
first engage the services of a professional mediator agreed upon by the parties
and attempt in good faith to resolve the dispute through confidential non-
binding mediation. Each party shall bear one-half (1/2) of the mediator's fees
and expenses and shall pay all of its own attorneys' fees and expenses related
to the mediation.
7.6 ARBITRATION. Any dispute concerning the interpretation, construction,
breach or enforcement of this Agreement or arising in any way from Executive's
employment with Company or termination of employment shall be submitted to
final and binding arbitration. Such arbitration is to be before a single
arbitrator in Portland, Oregon. In the event the parties are unable to agree
upon an arbitrator, an arbitrator shall be appointed by the court pursuant to
ORS 36.320. The arbitration shall be conducted pursuant to the rules of the
American Arbitration Association ("AAA") Employment Dispute Resolution Rules.
Executive and the Company agree that the procedures outlined in Section 7.5 and
7.6 are the exclusive method of dispute resolution.
7.7 ATTORNEY FEES. If any action at law, in equity or by arbitration is
taken to enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled, including fees and expenses on appeal.
7.8 CONSTRUCTION. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
7.9 WAIVERS. No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of
any other right or remedy granted hereby or by any related document or by law.
7.10 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns, and shall be binding
upon the Executive, his administrators, executors, legatees, and heirs. In
that this Agreement is a personal services contract, it shall not be assigned
by the Executive.
7.11 MODIFICATION. This Agreement may not be and shall not be modified or
amended except by written instrument signed by the parties hereto.
7.12 ENTIRE AGREEMENT. This Agreement together with the Confidentiality
Agreement constitutes the entire agreement and understanding between the
parties hereto in reference to all the matters herein agreed upon. This
Agreement replaces and supersedes all prior employment agreements or
understandings of the parties hereto; provided, however, that the
Confidentiality Agreement continues in full force and effect according to its
terms.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
EXECUTIVE PROTOCOL SYSTEMS, INC.
By
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Xxxxx X. Xxxx Xxxxx Xxxxxxxx, Chairman & CEO
