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EXHIBIT 10.36
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into, at Irvine,
California, as of November 7, 2000, by and between xxxxxxxxx.xxx inc., a
corporation duly organized under the laws of the State of Delaware, with its
principal offices at 00000 XxxXxxxxx Xxxx., Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx,
00000-0000, a Delaware corporation, (hereinafter, collectively referred to as
the "Company"), and Xxxxxx Xxxxxx, domiciled at 000 X. Xxxxx, #0000, Xxxxx, XX,
00000.
WHEREAS: Company desires to employ Xxxxxx Xxxxxx (hereinafter,
sometimes referred to herein as "Employee"), as Director of
Special Projects for the Company.
WHEREAS: Employee desires to be so employed by the Company, subject
to the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with reference to the above recitals, the parties hereby
agree as follows:
ARTICLE 1. TERM OF EMPLOYMENT
Section 1.1 The Company hereby employs Xxxxxx Xxxxxx as Director of
Special Projects, of the Company, on an "at-will" basis and Employee
hereby accepts such employment by the Company, on such basis, commencing
on TBD.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE
Section 2.1 Employee shall be employed as a full time employee of the
Company. In such capacity, Employee shall do and perform all services,
acts, or things necessary or advisable as Director of Special Projects
of the Company, subject at all times to all present and future policies
and requirements of the Company in connection with Company's business.
Employee shall perform all services required hereunder to the best of
his/her ability.
ARTICLE 3. OBLIGATIONS OF THE COMPANY
Section 3.1 The Company shall provide Employee with the compensation,
incentives, benefits, and business expense reimbursement specified
elsewhere in this Agreement. Employee and the Company acknowledge that
such compensation, incentives, benefits, and business expense
reimbursement are commensurate with the duties and obligations required
of Employee hereunder.
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ARTICLE 4. COMPENSATION OF EMPLOYEE
Section 4.1 As compensation for services to be rendered by Employee
pursuant to this Agreement, the Company hereby agrees to pay Employee a
semi-monthly (twenty-four (24) pay periods per year) salary of ($175,000
annually) payable at such times or on such dates that employees of the
Company are regularly and customarily paid during a subsequent 12 month
period.
Section 4.2 Additionally, Employee will be granted stock options under
ABT's 1999 Stock Option Plan to purchase 75,000 shares of ABT common
stock at an exercise price equal to the trading price on the close of
business on the date of hire. So long as you are employed by ABT or any
subsidiary thereof, one-fourth of the option grant will vest on the
first anniversary of the date of grant and the remainder of the option
grant will vest at a rate of 1/48th of the entire grant per month, with
the entire grant also vesting as otherwise provided in such plan.
Section 4.3 The Company shall have the right to deduct or withhold from
the compensation due to Employee hereunder any and all sums required for
federal income and social security taxes and all state or local taxes
now applicable or that may be enacted and become applicable during the
term of your employment.
Section 4.4 Employee will be eligible to receive an annual performance
bonus of up to a maximum of 30% for fiscal year 2001. Bonus payment will
be based on attainment of performance objectives, unless terminated for
Cause as defined below. Employee will receive a signing bonus of $20,00
for moving expenses and performance expectations for fiscal year 2000.
As used herein, the term "for Cause" shall refer to the termination of
your employment as a result of any one or more of the following: (i)
your conviction for a felony; (ii) your gross willful misconduct which
has a direct and material injurious effect on the business or reputation
of ABT; or (iii) your gross dishonesty which is directly and materially
injurious to the business and reputation of ABT.
ARTICLE 5. EMPLOYEE BENEFITS
Section 5.1 The Company agrees that Employee shall be eligible to
participate in the company's group benefits package. The Company will
pay for all or part of the premium costs based upon plan selection and
dependents' covered. Medical, dental and life insurance benefits are
effective on the 1st of the month following 30 days of employment.
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Section 5.2 Employee shall be eligible to participate in the Company's
401(k) retirement savings plan on the first enrollment period following
90 days of employment. Enrollment in the Plan takes place on January 1st
and July 1st of each year.
Section 5.3 Paid vacation is provided to all regular full-time Company
personnel. Vacation is accrued monthly at a rate equal to two (2) weeks
(80 hours) per year during the first five years of employment. After
completing five (5) years of employment, employees will begin to accrue
at a rate equal to three (3) weeks (120 hours) per year. Employees begin
accruing vacation in the first month in which they have completed 120
hours of service. However, paid vacation may not be taken until an
employee has completed six (6) months of service. Vacation taken prior
to six (6) months will be unpaid, and may only be taken with supervisor
approval. Only accrued, but unused vacation will be paid out to
employees in the event of termination.
Section 5.4 Regular full-time employees are eligible for up to six (6)
days of paid sick time off per year. Employees who have been employed
since January 1st will be eligible for the full six (6) days of paid
sick time off. Employees hired after the first of the year will receive
a pro-rated amount of time based upon their date of hire. Because sick
time does not accrue, balances are not paid out to an employee in the
event of termination.
ARTICLE 6. BUSINESS EXPENSES
Section 6.1 The Company shall pay or reimburse Employee for all
reasonable and authorized business expenses incurred by Employee during
the term of employment; such payment or reimbursement shall not be
unreasonably withheld so long as said business expenses have been
incurred for and promote the business of the Company and are normally
and customarily incurred by employees in comparable positions at other
comparable businesses in the same or similar market. Notwithstanding the
above, the Company shall not pay or reimburse Employee for the costs of
any membership fees or dues for private clubs, civic organizations, and
similar organizations or entities, unless and until such organizations
and the fees and costs associated therewith have been approved in
writing by the Board of Directors of the Company.
Section 6.2 The Company shall reimburse Employee for business-related
mileage at the reimbursement rate approved by the United States Internal
Revenue Service, as such rate may change from time to time.
Notwithstanding the foregoing, the Company shall not reimburse Employee
for mileage traveled to the Company's office from Employee's residence,
or from the Company's office to Employee's residence. Nothing contained
in this Section 6.2 shall be construed as requiring the Company to
reimburse Employee for the cost of gasoline for his/her motor vehicle.
Section 6.3 As a condition to reimbursement, Employee shall furnish to
the Company adequate records and other documentary evidence required by
federal and state
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statutes and regulations for the substantiation of each expenditure as
an income tax deduction. Employee acknowledges and agrees that failure
to furnish the required documentation may result in the Company denying
all or part of the expense for which reimbursement is sought.
ARTICLE 7. TERMINATION OF EMPLOYMENT
The Company is an "At-Will" employer. You are free to terminate your
employment with the Company at any time, with or without reason, and the
Company has the right to terminate your employment at any time with or
without reason. Although the Company may choose to terminate employment
for cause, cause is not required.
ARTICLE 8. RESTRICTIVE COVENANTS
Section 8.1 Employee shall devote all or substantially all of his/her
entire productive time, ability and attention to the business of the
Company during the term of employment. Employee shall not engage in any
other business duties or pursuits whatsoever, or directly or indirectly
render any services of a business, commercial, or professional nature to
any other person or organization, including, but not limited to,
providing services to any business that is in competition with or
similar in nature to the Company, whether for compensation or otherwise,
without the prior written consent of the Company's Board of Directors.
However, the expenditure of reasonable amounts of time for educational,
charitable, or professional activities shall not be deemed a breach of
this Agreement, if those activities do not materially interfere with the
services required under this Agreement, and shall not require the prior
written consent of the Company's Board of Directors. Notwithstanding
anything herein contained to the contrary, this Agreement shall not be
construed to prohibit Employee from making passive personal investments
or conducting private business affairs if those activities do not
materially interfere with the services required hereunder.
Section 8.2 During the term of employment and following termination of
this Agreement, Employee agrees that, without the Company's prior
written consent, he will not disclose to any person, firm, association,
partnership, corporation or other entity, any information concerning:
(a) the business operations or internal structure of the Company; (b)
the customers of the Company; (c) the financial condition of the
Company; and (d) other confidential information pertaining to the
Company, including without limitation, trade secrets, technical data,
marketing analyses and studies, operating procedures, customer and/or
inventor lists, or the existence or nature of any of the Company's
agreements; provided, however, that Employee shall be entitled to
disclose such information: (i) to the extent the same shall have
otherwise become publicly available (unless made publicly available by
Employee); or (ii) during the course of or in connection with any
litigation, arbitration, or other proceeding based upon or in connection
with the subject matter of this Agreement.
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Section 8.3 Employee acknowledges that a breach or violation of the
covenants contained in Section 8.2 will cause severe and irreparable
harm to the Company and that recovery by the Company of monetary damages
will not constitute an adequate remedy. Accordingly, in the event of any
breach or violation of such covenants by Employee, and with the Company
not having an adequate remedy at law, the Company will have the right to
have Section 8.2 of this Agreement specifically enforced by any court
having equity jurisdiction, without requirement of bond or showing of
actual damages, provided that nothing contained herein shall limit or
restrict any other rights or remedies that the Company may have. Each of
the rights and remedies of the Company enumerated in this Section shall
be independent of the other, and shall be in addition to, and not in
lieu of, any other rights and remedies available to the Company under
law or in equity. Section 8.4 As used in this Article 8, the term
Company shall include all affiliated entities of the Company, including
without limitation, corporations, partnerships and limited liability
companies.
ARTICLE 9. GENERAL PROVISIONS
Section 9.1 This document contains the entire agreement between the
parties with respect to the subject matter hereof.
Section 9.2 No waiver, by conduct or otherwise, by any party of any
term, provision, or condition of this Agreement, shall be deemed or
construed as a further or continuing waiver of any such term, provision,
or condition.
Section 9.3 No modification, waiver, amendment, discharge or change of
this Agreement, shall be valid unless the same is in writing and signed
by the party against whom enforcement of such modification, waiver,
amendment, discharge, or change is sought.
Section 9.4 Except as hereinafter provided, all claims, disputes and
other matters in question between the parties hereto arising out of, or
relating to this Agreement or the breach thereof, shall be resolved
solely by mediation and arbitration in accordance with the provisions of
this Section 9.4.
9.4.1 With respect to any dispute between the parties, the
parties shall attempt in good faith first to mediate
such dispute and use their best efforts to reach
agreement on the matters in dispute. After a written
request for non-binding mediation, which shall specify
in detail the facts of this dispute, and within ten (10)
business days from the date of delivery of the demand,
the matter shall be submitted to a mediator mutually
agreeable to the parties (the "Mediator") in Irvine,
California. The party who did not initiate the mediation
may submit a statement of
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facts to the Mediator, and provide a copy to the other
party within five (5) business days of the mediation
hearing. The mediator shall hear the matter and provide
an informal opinion and advice, none of which shall be
binding upon the parties, but is expected by the parties
to help resolve the dispute. Pursuant to Evidence Code
Section 1152.5(c) the parties agree: (i) Evidence of
anything said or of any admission made in the course of
the mediation is not admissible in evidence, and
disclosure of any such evidence shall not be compelled,
in any arbitration proceeding or civil action in which,
pursuant to law, testimony can be compelled to be given;
(ii) Unless the document otherwise provides, no document
prepared for the purpose of, or in the course of, or
pursuant to, the mediation, or copy thereof, is
admissible in evidence, and disclosure of any such
document shall not be compelled, in any arbitration
proceeding or civil action in which, pursuant to law,
testimony can be compelled to be given; and (iii) The
Mediator's fee shall be shared equally by the parties.
If the dispute has not been resolved, the matter shall
then be submitted to arbitration in accordance with
section 9.4.2
9.4.2 Any dispute between the parties that is to be resolved
by arbitration as provided in Section 9.4.1 shall be
conducted pursuant to the provisions of California Code
of Civil Procedure Sections 1280 through 1287.6, except
as provided below. Any such arbitration shall be held
and conducted in Irvine, California, and shall be
conducted by a sole arbitrator mutually selected by the
parties. If the parties cannot agree on a sole
arbitrator within ten (10) business days from the first
request for arbitration, each party shall each select
one arbitrator and the two (2) selected arbitrators
shall select the third arbitrator. The parties further
agree: (i) Any request for arbitration shall be in
writing and must be made within a reasonable time after
the claim, dispute or other matter in question has
arisen; provided, however, that in no event shall the
demand for arbitration be made after the date that
institution of legal or equitable proceedings based on
such claim, dispute, or other matter would be barred by
the applicable statute of limitations; (ii) The
arbitrator or arbitrators appointed must be former or
retired judges or attorneys at law with at least ten
(10) years experience in employment, financing, and
other matters; (iii) All proceedings involving the
parties shall be reported by a certified shorthand court
reporter and written transcripts of the proceedings
shall be prepared and made available to the parties;
(iv) The arbitrator or arbitrators shall prepare in
writing and provide to the parties an award together
with the reasons upon which
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the award of the arbitrators is based; (v) The final
award by the arbitrator or arbitrators must be made
within ninety (90) days from the date the arbitration
proceedings are initiated; (vi) The prevailing parties
shall be awarded reasonable attorney's fees, expert and
non-expert witness costs and expenses, and other costs
and expenses incurred in connection with the
arbitration, unless the arbitrator or arbitrators for
good cause determine otherwise; (vii) Costs and fees of
the arbitrator or arbitrators shall be borne by the
non-prevailing parties, unless the arbitrator or
arbitrators for good cause determine otherwise; and
(viii) The award or decision of the arbitrator or
arbitrators, which may include equitable relief, shall
be final and judgment may be entered on it in accordance
with applicable law in any court having jurisdiction
over the matter.
NOTICE: BY INITIALING IN THE SPACE BELOW THE PARTIES ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS SECTION DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND THE PARTIES ARE GIVING UP ANY
RIGHTS THE PARTIES MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN COURT OR JURY
TRIAL. BY INITIALING IN THE SPACE BELOW THE PARTIES ARE GIVING UP THEIR JUDICIAL
RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN
THE PROVISIONS OF THIS SECTION. IF THE PARTIES REFUSE TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, THE PARTIES MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. THEIR AGREEMENT
TO THE ARBITRATION PROVISION IS VOLUNTARY.
THE PARTIES HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THIS SECTION TO NEUTRAL ARBITRATION.
Company Initials /s/ DWB Employee's Initials /s/ HL
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Section 9.5 The rights under this Agreement, or by law or equity, shall
be cumulative and may be exercised at any time and from time to time. No
failure by any party to exercise, and no delay in exercising, any rights
shall be construed or deemed to be a waiver thereof, nor shall any
single or partial exercise by any party preclude any other or future
exercise thereof or the exercise of any other right.
Section 9.6 Except as otherwise provided in this Agreement, any notice,
approval, consent, waiver or other communication required or permitted
to be given or to be served
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upon any person in connection with this Agreement shall be in writing.
Such notice shall be personally served, sent by facsimile, reputable
courier or sent prepaid by registered or certified mail with return
receipt requested and shall be deemed given (i) if personally served,
when delivered to the person to whom such notice is addressed, (ii) if
given by facsimile, confirmed in accordance with the records of the
facsimile machine through which the notice is sent, (iii) if sent by
reputable courier, when received by the party to which it is sent as
reflected on the courier's receipt and records, or (iv) if given by
mail, two (2) business days following deposit in the United States mail.
Such notices shall be addressed to the party to whom such notice is to
be given at the party's address set forth below or as such party shall
otherwise direct.
IF TO THE COMPANY, TO: IF TO EMPLOYEE:
xxxxxxxxx.xxx inc. Xxxxxx Xxxxxx
00000 XxxXxxxxx Xxxx., Second Floor 000 X. Xxxxx, #0000
Xxxxxx, Xxxxxxxxxx 00000-0000 Xxxxx, XX 00000
Attn.: General Counsel
Section 9.7 The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the successors and assigns of the
parties hereto.
Section 9.8 This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
Section 9.9 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which shall constitute one instrument.
Section 9.10 The provisions of this Agreement are agreed to be
severable, and if any provision, or application thereof, is held invalid
or unenforceable, then such holding shall not affect any other provision
or application.
Section 9.11 As used herein, and as the circumstances require, the
plural term shall include the singular, the singular shall include the
plural, the neuter term shall include the masculine and feminine
genders, and the feminine term shall include the neuter and the
masculine genders.
Section 9.12 Each party hereto shall pay its or their own expenses
incident to the negotiation, preparation and consummation of this
Agreement, including all fees and expenses of its or their respective
counsel.
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ARTICLE 10. EMPLOYEE CONFIDENTIALITY AGREEMENT
As a further condition of his/her employment by Company, Employee agrees
to execute an "Employee Confidentiality Agreement".
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
xxxxxxxxx.xxx inc. EMPLOYEE:
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx Xxxxxx Xxxxxx
Executive V.P.,
Corporate Development
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