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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into
effective as of May 27, 1997, by and between LONG BEACH FINANCIAL CORPORATION, a
Delaware corporation ("LBFC"), and LONG BEACH MORTGAGE COMPANY, a Delaware
corporation ("LBMC") (collectively, the "COMPANY"), and XXXXXXX X. XXXXXXXX
("EXECUTIVE").
I.
EMPLOYMENT
1.1 POSITION AND DUTIES. The Company hereby engages and employs
Executive in the following capacities at LBFC and LBMC:
LBFC: Senior Vice President, Managing Director of
Capital Markets and Strategic Planning
LBMC: Senior Vice President, Managing Director of
Capital Markets and Strategic Planning
The Company's Boards of Directors (collectively, the "BOARDS") may
provide such additional designations of title to Executive as the Boards, in
their discretion, may deem appropriate. Executive shall perform the executive
duties and functions related to the above positions, subject to the limitations
of authority reasonably set forth from time to time in any resolution of the
Boards or applicable law.
1.2 BEST EFFORTS. Executive agrees to devote his full time and
attention to the Company, to use his best efforts to advance the business and
welfare of the Company, to render his services under this Agreement fully,
faithfully, diligently, competently and to the best of his ability, and not to
engage in any other employment activities. Notwithstanding anything herein to
the contrary, Executive shall not be precluded from (i) engaging in charitable
activities and community affairs and managing his personal investments and
affairs, provided that such activities do not materially interfere with the
proper performance of his duties and responsibilities under this Agreement; or
(ii)
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owning up to 1% of a publicly-held company engaged in the same or similar
business as the Company.
II.
COMPENSATION AND BENEFITS
2.1 BASE SALARY. For all services to be rendered by Executive under
this Agreement, the Company agrees to pay Executive an annual base salary ("BASE
SALARY") of $200,000 (subject to adjustment upward as recommended by the
Compensation Committees of the Board), less deductions required by law, payable
in accordance with the normal payroll practices of the Company.
2.2 ANNUAL PERFORMANCE BONUS. On or before April 15 each year beginning
April 15, 1998, the Company shall pay to Executive a cash bonus ("BONUS") of up
to 100% of Executive's Base Salary, as determined by the Boards, or the
respective Compensation Committees thereof, based on Executive's performance and
the performance of the Company during the prior calendar year. All Bonus
calculations shall be based upon the Company's audited financial statements
through the end of the applicable calendar year.
2.3 OTHER BENEFITS. The Company shall further provide to Executive, at
the Company's expense, the following other benefits ("OTHER BENEFITS"):
(a) An automobile (to be owned or leased by the Company at
its option and expense) of Executive's choice with a negotiated purchase price
of no more than $60,000, and reimbursement of all reasonable operating costs,
insurance and repairs;
(b) An annual vacation leave of a minimum of three (3) weeks
per calendar year at full pay;
(c) Full participation, on a basis commensurate with his
position with the Company, in all plans of life, accident, disability and health
insurance that generally are made available to senior executives of the Company;
(d) A complete annual physical examination by the doctor of
Executive's choice;
(e) Stock options ("OPTIONS") for 475,000 shares of LBFC
Common Stock which have been granted as of the date hereof by the Compensation
Committee of the LBFC Board
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pursuant to the terms of the LBFC 1997 Stock Incentive Plan dated February 18,
1997 (the "INCENTIVE PLAN"). The Options shall have an exercise price equal to
$7.94 and shall vest 20% on the first anniversary of this Agreement and 20% on
each anniversary thereafter until May 27, 2002, unless the vesting of such
Options is accelerated in accordance with Sections 3.2(b) or 3.3(a) hereof or
such Options expire or accelerate pursuant to the Incentive Plan. The Options
shall be "Stock Options" as defined in the Incentive Plan and shall be
exercisable in accordance with the terms thereof; provided, however, that to the
extent any terms of the Incentive Plan are inconsistent with the terms of this
Agreement (including, but not limited to, the provisions regarding the vesting
or exercise of any Options), the terms of this Agreement shall govern; and
(f) Reimbursement of expenses and other benefits related to
the relocation of Executive as mutually agreed upon by the Company and
Executive.
2.4 EXPENSE REIMBURSEMENT. The Company shall promptly reimburse
Executive for all reasonable business expenses incurred by Executive in
promoting the business of the Company, including expenditures for entertainment,
travel, or other expenses, provided that (a) such expenditures are of a nature
qualifying them as legitimate business expenses and (b) Executive furnishes to
the Company adequate records and other documentary evidence reasonably required
by the Company to substantiate such expenditures in accordance with the
Company's policies and procedures.
III.
TERMINATION AND SEVERANCE PAY
3.1 AT WILL. Executive and the Company acknowledge and agree that
Executive's employment with the Company is expressly "at will." This means that
either party may terminate Executive's employment for any reason with or without
cause. Any termination of Executive's employment is, however, subject to the
terms and provisions of this Agreement as to Severance Pay (as defined below)
and Option vesting in accordance with Sections 3.2(a), 3.2(b) and 3.3(a). In
addition, the Company agrees to inform Executive in writing three business days
before terminating his employment for Cause (as defined below) and to inform
Executive in writing 30 calendar days before terminating his employment other
than for Cause.
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3.2 INVOLUNTARY TERMINATION.
(a) SEVERANCE PAYMENTS. In the event that Executive's
employment with the Company is terminated by the Company for Cause, Executive
shall not be entitled to any Severance Pay or employee benefits (including Other
Benefits). In the event that Executive's employment with the Company is
terminated by the Company other than for Cause and Executive has not elected to
waive his right to Severance Pay pursuant to the second paragraph of Article V,
then in consideration of Executive's compliance with his obligations under
Article IV and Article V and Executive's execution of a general release in favor
of the Company and its affiliates, Executive shall be entitled to severance pay
("SEVERANCE PAY") in the form of (i) monthly payments to Executive in the amount
of Executive's monthly Base Salary as in effect on the date of termination,
payable in accordance with customary payroll practices, for twelve (12) months
following such termination; plus (ii) for each full calendar month Executive was
employed during the calendar year of termination of employment, 1/12th of the
Bonus to which Executive would have been entitled pursuant to Section 2.2 had he
been employed the entire year, payable at the time specified in Section 2.2
hereof. Executive acknowledges and agrees that in the event Executive breaches
any provision of Article IV or Article V or the general release, his right to
receive Severance Pay under this Section 3.2(a) shall automatically terminate
and Executive shall repay all Severance Pay received.
(b) BENEFITS. Following the effective date of termination,
Executive shall cease to be a Company employee and shall not be entitled to any
employee benefits (including Other Benefits), except as set forth in the
following two sentences. Notwithstanding anything herein to the contrary,
Executive's termination shall not preclude Executive from exercising his rights
under COBRA to pay for the continuation of benefits previously provided by the
Company. In the event that the Company terminates Executive's employment other
than for Cause (or, as provided in Section 3.3(a), Executive voluntarily
terminates his employment for Good Reason (as defined below)), all Options
granted pursuant to Section 2.3(e) shall vest as of the effective date of
termination, provided that Executive has not elected previously to waive this
right pursuant to the second paragraph of Article V.
(c) CAUSE. For purposes of this Agreement, "CAUSE" shall mean
(i) an act or acts of personal dishonesty by Executive that were intended to
result in substantial personal enrichment of Executive at the expense of the
Company; (ii) Executive's conviction of any felony; or (iii)
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Executive's gross negligence, gross incompetence, willful insubordination or
misconduct, intentional or persistent failure to perform stated duties or abide
by the Company's policies, or material breach of any provision of this
Agreement, including without limitation any representation or covenant contained
in Article IV or Article V of this Agreement; provided, however, that "Cause"
shall not include any material breach of this Agreement if Executive has cured
such breach within a three business day period following Company's notification
thereof.
3.3 VOLUNTARY TERMINATION.
(a) SEVERANCE PAY. In the event Executive voluntarily
terminates his employment with the Company without Good Reason, Executive shall
not be entitled to any Severance Pay or employee benefits (including Other
Benefits). In the event Executive voluntarily terminates his employment with the
Company for Good Reason, Executive shall be entitled to Severance Pay and all
Options granted pursuant to Section 2.3(e) shall vest as of the effective date
of such termination to the same extent as if Executive's employment with the
Company had been terminated other than for Cause as provided by Sections 3.2(a)
and 3.2(b), provided that (i) Executive gives written notice of his resignation
within ninety (90) days of the occurrence of such Good Reason and advises, as
part of such resignation, that he is resigning because of the Good Reason, and
(ii) the Good Reason was other than for Cause.
For purposes of this Agreement, a resignation tendered by
Executive pursuant to a direct request of the Boards (or either of them) or
another officer with higher executive status shall, for purposes of this
Agreement, be treated as an involuntary termination, entitling Executive to
Severance Pay and Option vesting in accordance with the provisions of Sections
3.2(a) and 3.2(b) so long as the request was not based on Cause.
(b) GOOD REASON. For purposes of this Agreement, "GOOD REASON"
shall include (i) the material reduction or material adverse modification of
Executive's authority or duties (i.e., the substantial diminution or adverse
modification in Executive's title, status, overall position, responsibilities,
reporting relationship or general working environment); (ii) any reduction in
Executive's Base Salary or Bonus calculation or any material reduction in
employee benefits; or (iii) any requirement to move Executive's principal place
of employment from Orange County, California, in each case without Executive's
prior written consent.
3.4 DEATH. In the event of Executive's death, this Agreement shall
automatically terminate and shall be of no further force and effect. Termination
of Executive's employment as a result of his
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death shall not accelerate the vesting of Executive's Options or result in any
obligation by the Company to pay to Executive's estate or heirs any Severance
Pay or employee benefits (including Other Benefits), but Executive's estate or
heirs shall be entitled to a pro-rata Bonus through the date of termination at
the time specified in Section 2.2.
3.5 DISABILITY. In the event of Executive's Disability (as defined
below) during Executive's employment by the Company for any period of at least
three (3) consecutive months, the Company shall have the right, which may be
exercised in its sole discretion, to terminate this Agreement. In the event the
Company elects to terminate this Agreement due to Executive's Disability, the
vesting of Executive's Options shall not accelerate and Executive shall not be
entitled to any Severance Pay or employee benefits (including Other Benefits) at
any time, but Executive shall be entitled to normal disability benefits in
accordance with the policies established from time to time by the Company. For
purposes of this Agreement, "EXECUTIVE'S DISABILITY" shall mean the inability of
Executive to perform his employment services hereunder by reason of physical or
mental illness or incapacity as determined by a physician chosen by the Company
and reasonably satisfactory to Executive or his legal representative.
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IV.
NONDISCLOSURE OF INFORMATION
AND NON-SOLICITATION OF EMPLOYEES
4.1 NONDISCLOSURE OF PROPRIETARY INFORMATION. At all times during and
after Executive's employment with the Company (whether or not such termination
is voluntary or involuntary, with or without Cause or Good Reason or by
disability), Executive agrees to keep in strict confidence and trust all
Proprietary Information (as defined below) and not to use or disclose (or induce
or assist in the use or disclosure of) any Proprietary Information without the
prior express written consent of the Company, except as may be necessary in the
ordinary course of performing Executive's duties as an officer of the Company.
Executive acknowledges that irreparable injury will result to the Company from
Executive's violation or continued violation of the terms of this Article IV,
and Executive expressly agrees that the Company shall be entitled, in addition
to damages and any other remedies provided by law, to an injunction or other
equitable remedy respecting such violation or continued violation. For purposes
of this Agreement, "PROPRIETARY INFORMATION" shall mean information generally
unavailable to the public that has been created, discovered, developed, or
otherwise become known to the Company or in which property rights have been
assigned or otherwise conveyed to the Company, including any modifications or
enhancements thereto, which information has material economic value or potential
material economic value to the Company or the business in which the Company is
or will be engaged. Proprietary Information shall include, but not be limited
to, financial, sales and distribution information; business plans, strategies
and forecasts; lists of employees, contractors, customers, agents and
independent brokers; trade secrets; processes; formulas; data; know-how;
negative know-how; improvements; discoveries; developments; designs; inventions;
techniques; proposals; reports; client information; and software programs and
information (whether or not expressed in written form). Such restrictions on the
use or disclosure of Proprietary Information do not extend to any item of
information which (i) is publicly known immediately prior to the time of its
disclosure, (ii) is lawfully received from a third party not bound in a
confidential relationship to the Company, (iii) is published or otherwise made
known to the public by the Company or (iv) was already known to Executive prior
to the date hereof.
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4.2 RETURN OF PROPRIETARY INFORMATION AND PROPERTY. Upon termination of
Executive's employment, Executive will deliver to the Company all Proprietary
Information and any equipment, supplies, facilities and other tangible property
owned, leased or contracted for by the Company which property is in Executive's
possession as of the date of such termination.
4.3 NON-SOLICITATION. Executive agrees that, so long as he is employed
by the Company and for a period of one (1) year after termination of his
employment for any reason, he shall not (i) directly or indirectly solicit,
induce or attempt to solicit or induce any Company employee to discontinue his
or her employment with the Company, (ii) usurp any opportunity of the Company
that Executive became aware of during his tenure at the Company or which is made
available to him on the basis of the belief that Executive is still employed by
the Company, or (iii) directly or indirectly solicit or induce or attempt to
influence any person or business that is an account, customer or client of the
Company to restrict or cancel the business of any such account, customer or
client with the Company.
V.
NON-COMPETITION
Except as set forth in the following paragraph, so long as Executive is
employed by the Company and for a period of one (1) year after termination of
his employment for any reason, Executive shall not, without the prior written
consent of the Company, either directly or indirectly, including without
limitation through a partnership, joint venture, corporation or other entity or
as a consultant, director or employee, engage in any activity which the Company
shall determine in good faith to be in competition with the Company, including,
without limitation, any business activities conducted by the Company as of the
date hereof within those geographical areas in which the Company currently
conducts active business operations. The parties hereto agree that both the
scope and nature of the covenant and the duration and area for which the
covenant not to compete set forth in this Article V is to be effective are
reasonable in light of all facts and circumstances.
Notwithstanding the foregoing, the restrictions on competition set
forth in the previous paragraph shall not apply to Executive on and after the
effective date of (i) his involuntary termination by the Company other than for
Cause or (ii) his voluntary termination
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for Good Reason if, in either case, prior to such effective date, Executive has
agreed in writing to waive all of his rights to Severance Pay and Option vesting
under Sections 3.2(a), 3.2(b) and 3.3(a) (but excluding the vesting of Options
that has occurred prior to such effective date other than pursuant to Sections
3.2(b) or 3.3(a)). In addition, the restrictions on competition set forth in the
previous paragraph shall not apply to Executive on and after the effective date
of his voluntary termination if such termination is other than for Good Reason.
VI.
MISCELLANEOUS
6.1 SUCCESSORS AND ASSIGNS; BINDING AGREEMENT. This Agreement shall
inure to the benefit of and shall be binding upon the Company, its successors
and assigns. The obligations and duties of the Executive hereunder are personal
and otherwise not assignable. This Agreement shall inure to the benefit of and
be enforceable by the Executive's legal representatives. This Agreement shall
not be terminated by the voluntary or involuntary dissolution of the Company or
by any merger or consolidation, whether or not the Company is the surviving or
resulting corporation, or upon any transfer of all or substantially all of the
assets of the Company. In the event of any such dissolution, merger,
consolidation or transfer of assets, the provisions of this Agreement shall bind
and inure to the benefit of the surviving or resulting corporation, or the
corporation to which such assets shall have been transferred, as the case may
be; provided, however, that the Company will require any successor to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to Executive, to expressly assume and agree to
perform under this Agreement in the same manner and to the same extent that the
Company would be required to perform under it if no such succession had taken
place.
6.2 ARBITRATION. Other than with respect to Article IV and Article V
hereof, any and all disputes arising out of the interpretation, application or
breach of this Agreement shall be subject to arbitration pursuant to the
Company's Mutual Agreement to Arbitrate Claims, a copy of which is attached
hereto as Exhibit A and incorporated herein by this reference.
6.3 NO WAIVER. The waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed as a waiver of any other
breach thereof.
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6.4 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws and decisions of the State of California.
6.5 AMENDMENTS. No amendment or modification of the terms of this
Agreement shall be valid unless made by written agreement executed by the
parties hereto or their respective successors or legal representatives.
6.6 SEVERABILITY. In the event that any provision of this Agreement,
including without limitation any provision of Article V, shall to any extent be
held invalid, unreasonable or unenforceable, in any circumstances, the parties
hereto agree that the remainder of this Agreement and the application of such
provision of this Agreement to other circumstances shall be valid and
enforceable to the fullest extent permitted by law. If any provision, or any
part thereof, is held to be unenforceable because of the scope or duration of,
or the area covered by such provision, the parties hereto agree that the court
making such determination shall have the power, and is hereby asked by the
parties, to reduce the scope, duration and/or area of such provisions (and to
substitute appropriate provisions for any such unenforceable provisions) in
order to make such provisions enforceable to the fullest extent permitted by
law, and/or to delete specific words and phrases, and such modified provisions
shall then be enforceable and shall be enforced.
6.7 ENTIRE AGREEMENT; NO OTHER CLAIMS. This Agreement constitutes the
entire agreement between the parties regarding the subject matter hereof, and
supersedes all prior or contemporaneous negotiations, understandings or
agreements of the parties, whether written or oral, with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
The Company:
LONG BEACH FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ M. Xxxx Xxxxxx
---------------------------------
Its: Chief Executive Officer
---------------------------------
LONG BEACH MORTGAGE COMPANY,
a Delaware corporation
By: /s/ M. Xxxx Xxxxxx
---------------------------------
Its: Chief Exective Officer
---------------------------------
Executive: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
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EXHIBIT A
MUTUAL AGREEMENT TO ARBITRATE CLAIMS
Executive recognizes that differences may arise between the Company and him
during or following his employment with the Company, and that those differences
may or may not be related to his employment. Executive understands and agrees
that by entering into the Employment Agreement (the "EMPLOYMENT AGREEMENT") with
the Company dated as of May 27, 1997 into which this Mutual Agreement to
Arbitrate Claims ("ARBITRATION AGREEMENT") is incorporated by reference, he
anticipates gaining the benefits of a speedy, impartial dispute-resolution
procedure.
Executive understands that any capitalized terms used but not defined in this
Arbitration Agreement shall have the meanings ascribed thereto in the Employment
Agreement, provided that any reference in this Arbitration Agreement to the
Company shall also be deemed to be a reference to all subsidiary and affiliated
entities; all benefit plans; the benefit plans' sponsors, fiduciaries,
administrators, and affiliates; and all successors and assigns of any of them.
1. Claims Covered by the Arbitration Agreement
-------------------------------------------
The Company and Executive mutually consent to the resolution by arbitration of
all claims (collectively, "CLAIMS"), whether or not arising out of Executive's
employment (or its termination), that the Company may have against Executive or
that Executive may have against the Company or against its officers, directors,
employees or agents in their capacity as such or otherwise. Claims covered by
this Arbitration Agreement include, but are not limited to, claims for wages or
other compensation due; claims for breach of any contract or covenant (express
or implied); tort claims; claims for discrimination (including, but not limited
to, race, sex, religion, national origin, age, marital status, medical
condition, or disability); claims for benefits (except where an employee benefit
or pension plan specifies that its claims procedure shall culminate in an
arbitration procedure different from this one); and claims for violation of any
federal, state, or other governmental law, statute, regulation, or ordinance,
except claims excluded in the Claims Not Covered by the Arbitration Agreement
section below.
Except as otherwise provided in this Arbitration Agreement, both the Company and
Executive agree that neither shall initiate or prosecute any lawsuit or
administrative action (other than an
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administrative charge of discrimination) in any way related to any Claim covered
by this Arbitration Agreement.
2. Claims Not Covered by the Arbitration Agreement
-----------------------------------------------
Claims Executive may have for workers' compensation or unemployment compensation
benefits are not covered by this Arbitration Agreement.
Also not covered are Claims by the Company for injunctive and/or other equitable
relief for unfair competition and/or the use and/or unauthorized disclosure of
trade secrets or confidential information (including, without limitation, Claims
by the Company that Executive breached his obligations under Article IV and
Article V of the Employment Agreement), as to which Executive understands and
agrees that the Company may seek and obtain relief from a court of competent
jurisdiction.
3. Required Notice of All Claims and Statute of Limitations
--------------------------------------------------------
The Company and Executive agree that the aggrieved party must give written
notice of any Claim to the other party within one (1) year of the date the
aggrieved party first has knowledge of the event giving rise to the Claim;
otherwise the Claim shall be void and deemed waived even if there is a federal
or state statute of limitations which would have given more time to pursue the
Claim.
Written notice to the Company, or its officers, directors, employees or agents,
shall be sent to its Chief Executive Officer at the Company's then-current
address. Executive will be given written notice at the last address recorded in
Executive's personnel file.
The written notice shall identify and describe the nature of all Claims asserted
and the facts upon which such Claims are based. The notice shall be sent to the
other party by certified or registered mail, return receipt requested.
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4. Discovery
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Each party shall have the right to take the deposition of one individual and any
expert witness designated by another party. Each party also shall have the right
to propound requests for production of documents to any party. The subpoena
right specified below shall be applicable to discovery pursuant to this
paragraph. Additional discovery may be had only where the Arbitrator selected
pursuant to this Arbitration Agreement so orders, upon a showing of substantial
need.
5. Designation of Witnesses
------------------------
At least 30 days before the arbitration, the parties must exchange lists of
witnesses, including any expert, and copies of all exhibits intended to be used
at the arbitration.
6. Subpoenas
---------
Each party shall have the right to subpoena witnesses and documents for the
arbitration.
7. Arbitration Procedures
----------------------
The Company and Executive agree that, except as provided in this Arbitration
Agreement, any arbitration shall be in accordance with the then-current Model
Employment Arbitration Procedures of the American Arbitration Association
("AAA") before an Arbitrator who is licensed to practice law in the State of
California ("Arbitrator"). The arbitration shall take place in or near the city
in which Executive is or was last employed by the Company, if Executive is or
was employed in the State of California.
The Arbitrator shall be selected as follows: The AAA shall give each party a
list of 11 arbitrators drawn from its panel of labor-management dispute
arbitrators. Each party may strike all names on the list it deems unacceptable.
If only one common name remains on the lists of all parties, that individual
shall be designated as the Arbitrator. If more than one common name remains on
the lists of all parties, the parties shall strike names alternately until only
one remains. The party who did not initiate the Claim shall strike first. If no
common name remains on the lists of all parties, the AAA shall furnish an
additional list or lists until the Arbitrator is selected.
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The Arbitrator shall apply the substantive law (and the law of remedies, if
applicable) of the state in which the Claim arose, or federal law, or both, as
applicable to the Claim(s) asserted. The Federal Rules of Evidence shall apply.
The Arbitrator, and not any federal, state, or local court or agency, shall have
exclusive authority to resolve any dispute relating to the interpretation,
applicability, enforceability or formation of this Arbitration Agreement,
including but not limited to any Claim that all or any part of this Arbitration
Agreement is void or voidable. The arbitration shall be final and binding upon
the parties.
The Arbitrator shall have jurisdiction to hear and rule on pre-hearing disputes
and is authorized to hold pre-hearing conferences by telephone or in person as
the Arbitrator deems necessary. The Arbitrator shall have the authority to
entertain a motion to dismiss and/or a motion for summary judgment by any party
and shall apply the standards governing such motions under the Federal Rules of
Civil Procedure.
Either party, at its expense, may arrange for and pay the cost of a court
reporter to provide a stenographic record of proceedings.
Either party, upon request at the close of hearing, shall be given leave to file
a post-hearing brief. The time for filing such a brief shall be set by the
Arbitrator.
The Arbitrator shall render an award and opinion in the form typically rendered
in labor arbitrations.
8. Arbitration Fees and Costs
--------------------------
The Company and Executive shall equally share the fees and costs of the
Arbitrator. Each party will deposit funds or post other appropriate security for
its share of the Arbitrator's fee, in an amount and manner determined by the
Arbitrator, 10 days before the first day of hearing. Each party shall pay for
its own costs and attorneys' fees, if any. Notwithstanding the foregoing,
however, the Arbitrator may award to the party prevailing in the arbitration its
share of the Arbitrator's fees and costs and its reasonable attorneys' fees and
costs.
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9. Judicial Review
---------------
Either party may bring an action in any court of competent jurisdiction to
compel arbitration under this Arbitration Agreement and to enforce an
arbitration award. A party opposing enforcement of an award may not do so in an
enforcement proceeding, but must bring a separate action in any court of
competent jurisdiction to set aside the award, where the standard of review will
be the same as that applied by an appellate court reviewing a decision of a
trial court sitting without a jury.
10. Interstate Commerce
-------------------
Executive understands and agrees that the Company is engaged in transactions
involving interstate commerce and that his employment involves such commerce.
11. Requirements for Modification or Revocation
-------------------------------------------
This Arbitration Agreement to arbitrate shall survive the termination of the
Employment Agreement and Executive's employment with the Company. It can only be
revoked or modified by a writing signed by the parties which specifically states
an intent to revoke or modify this Arbitration Agreement.
12. Sole and Entire Arbitration Agreement
-------------------------------------
This Arbitration Agreement is the complete agreement of the parties on the
subject of arbitration of disputes, except for any arbitration agreement in
connection with any pension or benefit plan. This Arbitration Agreement
supersedes any prior or contemporaneous oral or written understanding on the
subject. No party is relying on any representations, oral or written, on the
subject of the effect, enforceability or meaning of this Arbitration Agreement,
except as specifically set forth in this Arbitration Agreement.
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13. Construction
------------
If any provision of this Arbitration Agreement is adjudged to be void or
otherwise unenforceable, in whole or in part, such adjudication shall not affect
the validity of the remainder of the Arbitration Agreement.
14. Consideration
-------------
The promises by the Company and Executive to arbitrate differences, rather than
litigate them before courts or other bodies, provide consideration for each
other.
15. No Employment Agreement
-----------------------
This Arbitration Agreement is not, and shall not be construed to create, any
contract of employment, express or implied. Nor does this Arbitration Agreement
in any way alter the "at-will" status of Executive's employment.
16. Voluntary Agreement
-------------------
EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS ARBITRATION AGREEMENT,
THAT HE UNDERSTANDS ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN
THE COMPANY AND EXECUTIVE RELATING TO THE SUBJECTS COVERED IN THE ARBITRATION
AGREEMENT ARE CONTAINED IN IT, AND THAT HE HAS ENTERED INTO THE ARBITRATION
AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY
THE COMPANY OTHER THAN THOSE CONTAINED IN THIS ARBITRATION AGREEMENT ITSELF.
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS
THIS ARBITRATION AGREEMENT WITH HIS PRIVATE LEGAL COUNSEL AND HAS AVAILED
HIMSELF OF THAT OPPORTUNITY TO THE EXTENT HE WISHES TO DO SO.
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