EMPLOYMENT AGREEMENT
Exhibit
10.92
This
Employment
Agreement (the "Agreement")
is made and
entered into as of this day of February 19, 2008, by and between Xxxxxxx X.
Xxxxxx ("Executive"),
and Building
Materials Holding Corporation, a Delaware corporation (the "Company").
WITNESSETH
WHEREAS,
Executive
is currently employed by the Company as Senior Vice President; and President
and
Chief Executive Officer of BMC West Corporation;
WHEREAS,
Executive
and the Company are parties to an Amended and Restated Senior Management and
Key
Employee Severance Agreement (the "Severance
Agreement");
and
WHEREAS,
the
Company wishes to extend the duration of Executive's services, promote the
Executive to the position of President and Chief Operating Officer of the
Company and clarify the terms and conditions of his employment by entering
into
this Agreement with Executive and Executive is willing to commit his services
to
the Company, on the terms and conditions set forth below.
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants herein contained,
Executive and the Company hereto agree as follows:
| 1. |
Term
|
This
Agreement
shall commence on the date hereof, and shall continue in effect for a period
ending December 31, 2010, or, if this Agreement is extended, such later date
as
mutually agreed upon (the "Employment Term").
| 2. |
Employment
|
2.1 Engagement.
The Company
hereby employs Executive and Executive hereby agrees to be employed by the
Company, subject to the terms and conditions herein set forth. During the
Employment Term, Executive shall be employed as President and Chief Operating
Officer of the Company, and shall be responsible for the duties normally and
customarily attendant to such offices. Executive shall report to the Chairman
and Chief Executive Officer of the Company. Executive shall render such other
services and duties of an executive nature consistent with the duties of a
senior executive officer of the Company as may from time to time be designated
by the Chairman and Chief Executive Officer of the Company.
2.2 Exclusive
Employment.
During the
Employment Term, Executive shall devote his full business time to his duties
and
responsibilities set forth in Section 2.1. Without limiting the generality
of
the foregoing, Executive shall not, without the prior written approval of the
Board, during the Employment Term, render services of a business, professional
or commercial nature to any other person, firm or corporation, whether for
compensation or otherwise, except that Executive may engage in civic,
philanthropic and community service activities so long as such activities do
not
materially interfere with Executive’s ability to comply with this Agreement and
are not otherwise in conflict with the policies or interest of the Company,
and
Executive may serve on the board of directors of two companies without Company
approval.
1
| 3. |
Compensation
and General Benefits
|
3.1 Base
Salary.
During the term
of this Agreement, the Company shall pay Executive a base salary in an
annualized amount equal to Six Hundred Thousand Dollars ($600,000)
("Base
Salary")
payable pro rata
on the Company's regular payday, and subject to adjustment as hereinafter
provided.
3.2 Salary
Reviews.
Executive's Base
Salary shall be reviewed annually by the Chairman and Chief Executive Officer
of
the Company and the Compensation Committee of the Company for the purpose of
considering increases thereof. In conducting this review, the following factors
shall be considered: Executive's performance, the Company's financial condition
and compensation afforded to senior executives of comparable corporations and
such other factors that the Chairman and Chief Executive Officer of the Company
deems appropriate. The Base Salary shall not be decreased without the written
consent of Executive.
3.3 Bonus. During
the
Employment Term, in addition to the Base Salary provided by Section 3.1,
Executive will participate in the Company's Annual Incentive Plan (the
"Annual
Bonus
Plan"),
pursuant to
which Executive shall be eligible to receive additional incentive compensation
on an annual basis based upon meeting targeted objectives as determined annually
by the Compensation Committee of the Company.
3.4 Vacation.
Executive shall
be entitled to four weeks paid vacation in any fiscal year during the Employment
Term in accordance with Company vacation and leave policies. Vacation time
shall
be planned and taken consistent with Executive's duties and obligations
hereunder.
3.5 Other
Benefits.
During the
Employment Term, Executive (and his spouse and dependents) shall be entitled
to
participate in the Company's executive perquisite plan, supplemental retirement
plan, liability insurance, life insurance, disability insurance, dental
insurance, hospitalization insurance, medical, accident, and other employee
benefit plans from time to time adopted by the Company and made available to
other senior executives. The Company shall have the right to change insurance
carriers and benefit plans as may be appropriate in light of future market
conditions and shall have the right to purchase individual policies covering
Executive if necessary.
3.6 Stock
Incentive
Plans.
Executive shall
also be eligible to receive additional incentive compensation in the form of
stock option or restricted stock grants. Review for any such grant shall be
concurrent with Executive's annual salary review and shall be in the sole
discretion of the Compensation Committee of the Company.
3.7 Reimbursement
of
Expenses.
Upon submission
of appropriate documentation in accordance with Company policy, the Company
will
promptly reimburse Executive for all reasonable business expenses incurred
by
Executive in pursuing the business of the Company, including, without
limitation, expenditures for entertainment and travel.
2
| 4. |
Confidential
Information
|
During
the term of
this Agreement and forever thereafter, Executive agrees to keep confidential
all
information provided by the Company, excepting any such information as is
already known to the public, and including any such information and material
relating to any customer, vendor, licensor, licensee, or other party transacting
business with the Company, and not to release, use, or disclose the same, except
with the prior written permission of the Company (collectively, “Confidential
Information”). Executive further covenants and agrees that every document,
computer disk, computer software program, notation, record, diary, memorandum,
development, investigation, or the like, and any method or manner of doing
business, of the Company (or containing any Confidential Information) made
or
acquired by Executive during his employment, is and shall be the sole and
exclusive property of the Company.
| 5. |
Covenants
of Executive.
|
5.1 Non-Compete.
Executive agrees
that, during the Employment Term, he will not, directly or indirectly, engage
in
any business or activity competitive with the business activities of the
Company. The foregoing shall not apply to passive investments by Executive
of up
to 5% of the outstanding stock of any publicly traded company or to service
by
Executive on boards of directors of companies as permitted under this Agreement,
regardless of whether such company competes with the Company.
5.2 Solicitation
of
Employees.
During the
Employment Term and for a period of one year following a termination of
employment for any reason (i) he shall not, directly or indirectly,
individually, or together through any other person, firm, corporation or entity,
solicit, recruit or encourage any employee of the Company to leave his or her
employment with the Company and/or accept a position with another Company,
provided, however, that general solicitations not targeted to Company employees
shall not be deemed to violate this Section 5.2.
5.3 Solicitation
of
Customers and Suppliers.
Executive agrees
that, during the Employment Term and for a period of one year following a
termination of employment for any reason, he shall not, directly or indirectly,
individually, or together through any other person, firm, corporation or entity,
(i) use the Company's Confidential Information to solicit the business of any
customers of or suppliers to the Company, or (ii) discourage any person or
entity which is a customer of the Company from continuing its existing business
or contractual relationship with the Company.
5.4 Compliance
with
Company Policies.
Executive agrees
that, during the Employment Term, he shall comply with the Company's employee
manual and other policies and procedures reasonably established by the Company
from time to time concerning matters such as management, supervision,
recruiting, diversity, and sexual harassment.
5.5 Cooperation.
For a period of
one year following his termination of employment for any reason under this
Agreement, Executive shall, upon Company’s reasonable request and in good faith
and with his best efforts, subject to his reasonable availability, cooperate
and
assist Company in any dispute, controversy, or litigation in which Company
may
be involved and with respect to which Executive obtained knowledge while
employed by the Company or any of its affiliates, successors, or assigns,
including, but not limited to, his participation in any court or arbitration
proceedings, giving of testimony, signing of affidavits, or such other personal
cooperation as counsel for the Company shall request. Any such activities shall
be scheduled, to the extent reasonably possible, to accommodate Executive’s
business and personal obligations at the time. The Company shall pay Executive’s
reasonable travel and incidental out-of-pocket expenses incurred in connection
with any such cooperation, as well as the reasonable costs of an attorney
Executive engages to advise him in connection with the foregoing.
3
5.6 Return
of
Business Records and Equipment.
Upon termination
of Executive's employment hereunder, Executive shall promptly return to the
Company: (i) all documents, records, procedures, books, notebooks, and any
other
documentation in any form whatsoever, including but not limited to written,
audio, video or electronic, containing any information pertaining to the Company
which includes confidential information, including any and all copies of such
documentation then in Executive's possession or control regardless of whether
such documentation was prepared or compiled by Executive, Company, other
employees of the Company, representatives, agents, or independent contractors,
and (ii) all equipment or tangible personal property entrusted to Executive
by
the Company. Executive acknowledges that all such documentation, copies of
such
documentation, equipment, and tangible personal property are and shall at all
times remain the sole and exclusive property of the Company.
| 6. |
Covenants
of the Company
|
6.1 Indemnification.
In the event
Executive is made, or threatened to be made, a party to any legal action or
proceeding, by reason of the fact that Executive is or was an employee, director
or officer of the Company or serves or served any other entity in any capacity
at the Company's request, Executive shall be indemnified by the Company, and
the
Company shall pay Executive's related expenses when and as incurred, including
but not limited to attorney fees, all to the fullest extent permitted by
law.
6.2 Change
in
Control.
During the
Employment Term, the Company shall continue in full force and effect with
respect to Executive, the Severance Agreement, as amended from time to time
in
accordance with the terms thereof. The Severance Agreement shall control the
compensation and benefits to be received by Executive in the event of a Change
in Control (as defined in the Severance Agreement).
| 7. |
Compensation
and Benefits Upon Termination Other than in Connection with a Change
in
Control.
|
7.1 Termination
Upon
Death.
If Executive dies
prior to the expiration of the Employment Term, the Company shall pay to
Executive's estate, or other designated beneficiary(s) as shown in the records
of the Company, any earned but unpaid Base Salary, a pro-rata amount of the
annual bonus that Executive would be eligible to receive under the Company's
Annual Bonus Plan for the year in which Executive's death occurs, LTIP benefits
in accordance with the terms of the LTIP, accrued benefits under the SERP and
any other benefits that Executive is entitled to receive as of the Date of
Termination under applicable benefit plans of the Company,
less standard withholdings for tax and social security purposes. Except as
required by law, after the Date of Termination, the Company shall have no
obligation to make any other payment, including severance or other compensation,
of any kind to Executive’s estate upon a termination of employment by death.
7.2 Termination
Upon
Disability.
The Company may
terminate Executive's employment in the event Executive suffers a Disability.
In
the event that Executive's employment is terminated pursuant to this
Section 7.2, Executive shall receive payment for any earned and unpaid Base
Salary, a pro-rata amount of the annual bonus that Executive would be eligible
to receive under the Company's Annual Bonus Plan for the year in which such
termination occurs, LTIP benefits in accordance with the terms of the LTIP,
accrued benefits under the SERP, and any other benefits that Executive is then
entitled to receive under applicable benefit plans of the Company, less standard
withholdings for tax and social security purposes.
Except
as required by law,
after
the Date of Termination, no other compensation of any kind or severance or
other
payment of any kind or payment in lieu of notice shall be payable by the Company
to Executive upon a termination of employment for Disability.
4
7.3 Voluntary
Termination.
Executive
may
voluntarily terminate his employment with the Company at any time upon 90 days'
prior written notice. The Company may accelerate the termination of Executive's
employment and the right to any further compensation to a date prior to the
90th
day upon written notice thereof being delivered to Executive by the Company.
In
the event that Executive's employment is terminated under this Section 7.3,
Executive shall receive payment for any earned and unpaid Base Salary, and
benefits the Executive is entitled to receive under the employee benefit plans
of the Company, but excluding bonuses otherwise payable under the Company's
Annual Bonus Plan, less standard withholdings for tax and social security
purposes, through the Date of Termination. Except
as required
by law,
after
the Date of Termination the Company shall have no further obligation to pay
any
compensation of any kind or severance payment of any kind nor to make any
further payment in lieu of notice to Executive.
7.4 Termination
for
Cause.
The Board may
terminate Executive's employment with the Company at any time for Cause. In
the
event that Executive's employment is terminated under this Section 7.4,
Executive shall receive payment for all earned but unpaid Base Salary, and
benefits the Executive is then entitled to receive under the employee benefit
plans of the Company, but excluding bonuses otherwise payable under the
Company's Annual Bonus Plan, less standard withholdings for tax and social
security purposes, through the Date of Termination. Except
as required
by law,
after
the Date of Termination the Company shall have no further obligation to pay
any
severance or compensation of any kind nor to make any payment in lieu of notice
to Executive. Except as required by law, all benefits provided by the Company
to
Executive under this Agreement or otherwise shall cease as of the Date of
Termination.
7.5 Termination
Without Cause.
The Company may,
at any time and without prior written notice, terminate Executive without Cause.
In the event that Executive's employment with the Company is terminated without
Cause, Executive shall receive payment for all earned but unpaid Base Salary,
and benefits the Executive is then entitled to receive under benefit plans
of
the Company, if any, less standard withholdings for tax and social security
purposes, through the Date of Termination. In addition, provided that Executive
executes a release of claims against the Company in a form reasonably
satisfactory to the Company and such release becomes effective, Executive shall
receive (i) within 75 days payment in a lump sum of an amount equal to the
then current Base Salary for the period commencing on the Date of Termination
and ending on the last day of the Employment Term, subject to tax withholding
requirements; (ii) payment of the amount of the Annual Bonus that Executive
would be eligible to receive under the Company's Bonus Plan for the year in
which the termination occurs; (iii) payment of amounts accrued under the LTIP
in
accordance with the terms of the LTIP; (iv) payment on Executive's behalf of
monthly continuation premiums for health insurance under Federal or State COBRA
for a period of 18 months following the Date of Termination; (v) acceleration
of
the vesting of a portion of any unvested stock options in the amount
that would
have become
vested at the end of the calendar year in which the termination occurred; and
(vi) payment to Executive’s account under the SERP of the annual contribution to
the SERP for the calendar year in which the termination occurs. No other
compensation of any kind or severance or other payment of any kind shall be
payable by the Company to Executive after such Date of Termination. Except
as
specifically provided in this Section 7.5 and except as required by law, all
benefits provided by the Company to Executive under this Agreement or otherwise
shall cease as of the Date of Termination.
5
7.6 Termination
for
Good Reason.
Notwithstanding
anything in this Section 7 to the contrary, Executive may voluntarily terminate
his employment with the Company and receive the benefits detailed in Section
7.5
upon or within 180 days following the occurrence of an event constituting Good
Reason, subject to, as applicable, Executive’s execution of the effective
release of claims described in Section 7.5.
7.7 Termination
Following a Change in Control.
If the employment
of Executive is terminated within the period commencing 3 months prior to a
Change in Control and ending 3 years following a Change in Control, the
provisions of this Section 7 shall not apply and all payments shall be made
in
accordance with the provisions of the Severance Agreement.
7.8 Certain
Definitions.
For purposes of
this Agreement, the following term shall have the meanings set forth
below.
(a) "Cause"
shall mean that
Executive shall: (i) commit an act of fraud, embezzlement or misappropriation
involving the Company; (ii) be convicted by a court of competent jurisdiction
of, or enter a plea of guilty of no contest to, any felony involving moral
turpitude or dishonesty; (iii) commit an act, or fail to commit an act,
involving the Company which amounts to, or with the passage of time would amount
to, willful misconduct, gross negligence or a breach of this Agreement and
which
results or will result in material harm to the Company, if such act is not
corrected within 30 days following receipt written notice thereof from the
Company; or (iv) willfully fail to perform the responsibilities and duties
specified herein for a period of 30 days following receipt of written notice
from the Company which specifically describes past instances of willful failure
of performance; provided that in the case of (iv) above, during the 30-day
period following receipt of such notice, Executive shall be given the
opportunity to take reasonable steps to cure any such claimed past failure
of
performance;
(b) "Date
of
Termination"
shall mean
(i) if Executive is terminated by the Company for Disability, 30 days after
written notice of termination is given to Executive (provided that Executive
shall not have returned to the performance of his duties on a full-time basis
during such 30-day period) or (ii) if Executive's employment is terminated
by the Company for any other reason or by Executive, the date on which a written
notice of termination, specifying in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment is given; provided that, in the case of a termination for Cause,
Executive shall not have cured the matter or matters stated in the notice of
termination within the 10-day notice period provided in Section 7.8(a)
above.
(c) "Disability"
shall mean a
physical or mental disability that renders Executive unable, as determined
in
good faith by a licensed physician, to perform the essential functions of his
position, even with reasonable accommodation, for 180 days within any 12-month
period. The Company and Executive or his legal representative shall use their
best efforts to agree on the physician to determine disability. If they cannot
agree within ten days after the first party makes a written proposal stating
the
name of a physician, then the other party shall select a physician within ten
days and within ten days thereafter the two physicians shall select a third
physician. All such physicians must be board certified in the medical area
giving rise to the alleged disability. The determination of the third physician
shall be final and binding. If one party fails to select a physician within
the
ten-day period, the physician named by the other party shall make the
determination of disability.
6
(d) "Good
Reason"
shall mean
Executive's resignation from employment within 180 days after the occurrence
of
one of the following events without Executive’s express written consent,
provided, however, that Executive must provide written notice to the Company
within ninety days after the occurrence of the event allegedly constituting
Good
Reason, and the Company shall have thirty days after such notice is given to
cure;
(i)
a material
reduction in Executive's responsibilities or the assignment to Executive by
the
Company of duties materially inconsistent with his position as President and
Chief Operating Officer;
(ii)
a material
reduction in his Base Salary or target bonus opportunity for reasons not related
to the economic performance of the Company under the Annual Bonus Plan or a
material reduction in the benefits provided under other employee benefit plans
described in this Agreement;
(iii)
a relocation
to any place more than 25 miles from the office regularly occupied by Executive,
except for reasonably required travel by Executive on the Company's business;
(iv)
any material
breach by the Company of any provision of this Agreement or any other material
agreement between the Company or any subsidiary and Executive; or
(v)
the failure by
the Company or by any successor or assign of the Company (whether by operation
of law or otherwise, including any surviving company in a merger or similar
transaction involving the Company), within ten business days following a Change
in Control, to deliver to Executive an agreement expressly reaffirming its
obligations under or agreeing to assume and comply with the obligations of
the
Company under this Agreement.
7.9 Section
409A.
Notwithstanding
anything herein to the contrary, to the extent that the Board determines, in
its
sole discretion, that (a) at the time of the Executive’s termination of
employment with the Company, he is a “specified employee” as defined in Section
409A of the Internal Revenue Code of 1986, as amended (the "Code")
and (b) any
payment or benefit to be provided under Section 7 to or for the benefit of
Executive would be subject to the additional tax imposed under Section
409A(a)(1)(B) of the Internal Revenue Code or a successor or comparable
provision if paid at the time such payments and benefits are otherwise required
under this Agreement, the commencement of such payments and/or benefits shall
be
delayed until the earlier of (i) the date that is six months following the
Date of Termination or (ii) the date of Executive's death; provided,
however, that an amount equal to the lesser of two times (x) annual compensation
or (y) the limit under Internal Revenue Code Section 401(a)(17) shall not be
subject to the delay described in the previous clause and instead shall be
paid
out as otherwise scheduled.
7
8.
Warranties
and Representations.
Executive hereby
represents and warrants to the Company that he is not now under any obligation
of a contractual or quasi-contractual nature known to him that is inconsistent
or in conflict with this Agreement or that would prevent, limit or impair the
performance by Executive of his obligations hereunder; and has been or has
had
the opportunity to be represented by legal counsel in the preparation,
negotiation, execution and delivery of this Agreement and understands fully
the
terms and provisions hereof.
| 9. |
Notices
|
All
notices
required or permitted to be given by either party hereunder shall be in writing
and shall be deemed sufficiently given if mailed by registered or certified
mail, or personally delivered to the party entitled thereto at the address
stated below, or to such changed address as the addressee may have given by
a
similar notice:
|
To
the
Company:
|
Xxxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn:
Chairman of the Compensation Committee
Fax:
(000)
000-0000
|
|
With
a Copy
to:
|
000
Xxxx
Xxxx., Xxxxx 000
X.X.
Xxx
0000
Xxxxx,
Xxxxx,
00000
Fax:
(000)
000-0000
Attention:
Xxxx Street, Esq.
|
|
To
Executive:
|
Xxxxxxx
X.
Xxxxxx
BMC
West
Corporation
0000
X. Xxxx
Xxxxxxxxx Xxxxxxx XX
Xxxxxxxx,
Xxxxxxxxxx 00000
|
| 10. |
General
Provisions
|
10.1 Waiver.
No waiver by any
party hereto of any failure of any other party to keep or perform any covenant
or condition of this Agreement shall be deemed to be a waiver of any preceding
or succeeding breach of the same, or any other covenant or
condition.
10.2 Amendments.
No provision of
this Agreement may be amended, modified or waived unless such amendment,
modification or waiver shall be agreed to in writing and signed by Executive
and
a duly authorized officer of the Company.
8
10.3 Severability.
The provisions of
this Agreement are severable and in the event that a court of competent
jurisdiction determines that any provision of this Agreement is in violation
of
any law or public policy, in whole or in part, only the portions of this
Agreement that violate such law or public policy shall be stricken. All portions
of this Agreement that do not violate any statute or public policy shall not
be
affected thereby and shall continue in full force and effect. Further, any
court
order striking any portion of this Agreement shall modify the stricken terms
as
narrowly as possible to give as much effect as possible to the intentions of
the
parties under this Agreement.
10.4 Assignment.
No right to or
interest in any payments shall be assignable by either party; provided; however,
that this provision shall not preclude Executive from designating one or more
beneficiaries to receive any amount that may be payable after his death and
shall not preclude his executor or administrator from assigning any right
hereunder to the person or persons entitled hereto. Further, the Company may
assign this Agreement: (a) to an affiliate so long as such affiliate assumes
the
Company's obligations hereunder, or (b) in connection with a merger or
consolidation involving the Company or a sale of substantially all its assets
or
shares to the surviving corporation or purchaser as the case may be so long
as
such assignee assumes the Company's obligations hereunder.
10.5 Successors
and
Assigns.
This Agreement
and the obligations of the Company and Executive hereunder shall be binding
upon
and shall be assumed by their respective successors including, without
limitation, any corporation or corporations acquiring the Company, whether
by
merger, consolidation, sale or otherwise.
10.6 Governing
Law.
The validity,
interpretation, performance, and enforcement of this Agreement shall be governed
by the laws of the State of California without regard to the principles of
conflict of laws thereof.
10.7 Attorney's
Fees
and Costs.
If any action at
law or in equity is necessary 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
that
party may be entitled. This provision shall be construed as applicable to the
entire contract.
10.8 No
Representation.
No officer,
employee or representative of the Company has any authority to make any
representation or promise in connection with this Agreement or the subject
matter hereto which is not contained herein, and Executive agrees that he has
not executed this Agreement in reliance upon any such representation or
promise.
10.9 Interpretation
of Agreement.
Each of the
parties has been represented by counsel in the negotiation and preparation
of
this Agreement. The parties agree that this Agreement is to be construed as
jointly drafted. Accordingly, this Agreement will be construed according to
the
fair meaning of its language, and the rule of construction that ambiguities
are
to be resolved against the drafting party will not be employed in the
interpretation of this Agreement.
10.10 Headings.
The headings of
sections and subsections are included solely for convenience of reference and
shall not control the meaning or interpretation of any of the provisions of
this
Agreement.
9
10.11 Entire
Agreement.
This document
constitutes the entire understanding and Agreement of the parties with respect
to the subject matter of this Agreement, and any and all prior agreements,
understandings and representations are hereby terminated and cancelled in their
entirety and are of no further force or effect.
10.12 Counterparts.
This Agreement
may be executed in two or more counterparts with the same effect as if the
signatures to all such counterparts were upon the same instrument, and all
such
counterparts shall constitute but one instrument.
10.13 No
Mitigation of
Damages.
Executive shall
not be required to mitigate damages or the amount of any payment provided for
under this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment provided for under this Agreement be reduced by any
compensation earned by Executive as a result of employment by another employer
or by retirement benefits after the Date of Termination, except as specifically
provided hereunder. The provisions of this Agreement, and any payment provided
for hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish the Executive's then existing rights, or rights which would accrue
solely as a result of the passage of time, under any Company benefit plan or
other contract, plan or arrangement.
10
10.14 Dispute
Resolution and Binding Arbitration.
Executive and the
Company agree that in the event a dispute arises concerning or relating to
Executive's employment with the Company, or any termination therefrom, such
dispute shall be submitted to binding arbitration in accordance with the
employment arbitration rules of Judicial Arbitration and Mediation Services
("JAMS")
by a single
impartial arbitrator experienced in employment law selected as follows: if
the
Company and Executive are unable to agree upon an impartial arbitrator within
ten days of a request for arbitration, the parties shall request a panel of
employment arbitrators from JAMS and alternatively strike names until a single
arbitrator remains. The arbitration shall take place in San Francisco,
California, and both Executive and the Company agree to submit to the
jurisdiction of the arbitrator selected in accordance with JAMS' rules and
procedures. Executive and the Company further agree that arbitration as provided
for in this section will be the exclusive and
binding remedy for any such dispute and will be used instead of any court
action, which is hereby expressly waived, except for any request by either
party
hereto for temporary or preliminary injunctive relief pending arbitration in
accordance with applicable law, or an administrative claim with an
administrative agency. The parties further agree that
the award of
the arbitrator shall be final and binding on both parties. The arbitrator shall
have discretion to award monetary and other damages, or no damages, and to
fashion such other relief as the arbitrator deems appropriate. The Company
will
be responsible for paying any filing fees and costs of the arbitration
proceeding itself (for example, arbitrators' fees, conference room,
transcripts), but each party shall be responsible for its own attorneys' fees.
THE COMPANY AND EXECUTIVE ACKNOWLEDGE AND AGREE THAT BY AGREEING TO ARBITRATE,
THEY ARE WAIVING ANY RIGHT TO BRING AN ACTION AGAINST THE OTHER IN A COURT
OF
LAW, EITHER STATE OR FEDERAL, AND ARE WAIVING THE RIGHT TO HAVE CLAIMS AND
DAMAGES, IF ANY, DETERMINED BY A JURY.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
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Xxxxxxx
X.
Xxxxxx
|
By:
Xxxxxx X.
Xxxxxx
|
|
|
Chairman
and
Chief Executive Officer
|
11
