EXHIBIT 10.80
EXECUTIVE EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is entered into by and
between INTELLISYS GROUP, INC. a Delaware Corporation (the "Company") and
XXXXXXX XXXXXXXX (the "Executive"), a resident of the state of California. This
Agreement is made and shall be effective as of January 4, 1999. The Company and
the Executive are sometimes referred to individually as a "party" and
collectively as the "parties."
RECITALS
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A. The Company is in the business of designing, engineering,
sourcing, maintaining, servicing and integrating custom audio, video and data
display, conferencing and networking systems (the "Business") for customers.
B. The Executive has substantial expertise in the Business.
C. The Company desires to employ the Executive as its President and
Chief Operating Officer and the Executive desires to work for the Company in
this capacity.
D. The Company and the Executive desire to set forth the terms and
conditions of the Executive's employment with the Company in writing.
AGREEMENT
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NOW, THEREFORE, in consideration of the above recitals and the mutual
promises and conditions contained below, the parties hereby agree as follows:
ARTICLE 1
TITLE, DUTIES AND REPORTING RESPONSIBILITY
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1.1 Title
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During the Term of this Agreement, the Executive shall be employed as
the President and Chief Operating Officer of the Company.
1.2 Duties and Reporting Responsibility
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1.2.1 During the Term, the Executive shall report to the Chief
Executive Officer or his designee. The Executive shall perform those duties
consistent with the position of President and Chief Operating Officer and such
other duties as may be assigned to the Executive from time-to-time. The
Executive's duties shall include, among others, full profit and loss
responsibility for the Company; directing the Company's sales efforts and
operations activity; enhancing productivity, profitability and customer
satisfaction; recruiting and training personnel; understanding the Company's
competition and developing
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strategies to differentiate the Company; and attaining operating targets as
established by the Company (the "Executive's Duties").
1.2.2 The Executive agrees that during his employment with the
Company he shall to devote his full time, attention, efforts, energies,
abilities and interests to the Business and affairs of the Company. The
Executive further agrees that he will not accept outside employment of any kind
during the Term or engage in any other activities during the Term which would be
detrimental to the Company, inconsistent with the provisions of this Agreement
or would otherwise impair his ability to perform his duties hereunder without
the express written consent of the Company.
1.3 Place of Performance and Travel
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The Executive understands and agrees that his duties shall be rendered
at the Company's offices and at such other place or places as the interests,
needs, Business, or opportunity of the Company shall require. The Executive
further understands and agrees that his duties and responsibilities will require
frequent travel and the performance outside of regular business hours. The
Company's principle administrative office shall be established within reasonable
commuting distance of the Westlake Village, California area.
ARTICLE 2
BASE SALARY AND BONUS ELIGIBILITY
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2.1 Salary
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2.1.1 During the first six months of the Term of this Agreement,
the Company shall pay the Executive a base salary (the "Base Salary") at the
annual rate of Two Hundred Thousand Dollars ($200,000.00). Provided that the
Company is on track to meet its performance targets for the fiscal year ending
December 31, 1999 as determined by the Company's Chief Executive Officer,
commencing on July 1, 1999 the Executive shall be paid a Base Salary at the
annual rate of Two Hundred Fifty Thousand Dollars ($250,000.00).
2.1.2 The Executive's Base Salary shall be payable in accordance
with the Company's normal payroll practices.
2.1.3 Commencing as of January 1, 2000, the Executive's Base
Salary shall be subject to review and revision on an annual basis by the Board
of Directors of the Company based on, among other things, the overall
performance of the Company.
2.2 Bonus
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2.2.1 The Executive shall also be eligible to receive a
performance bonus on an annual basis at the conclusion of each fiscal year (the
"Annual Bonus") in an amount to be determined by the Company's Board of
Directors. The Annual Bonus shall be paid to the Executive to reward him for
his performance during the preceding fiscal year and to motivate the Executive
to satisfactorily perform his duties in the future.
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2.2.2 Seventy Five percent (75%) of the Executive's Annual Bonus
shall be based upon the overall pre-tax earnings of the Company and the
Executive's attainment of the established "Operating Plan" for the year (the
"Performance Component"), and Twenty Five percent (25%) of the Executive's
Annual Bonus shall be based upon the subjective assessment of the Executive's
overall performance by the Company's Board of Directors (the "Subjective
Component").
2.2.3 The Board of Directors shall establish a target for the
Executive's anticipated Annual Bonus (the "Targeted Bonus") and an Operating
Plan for the fiscal year no later than the end of the first quarter of each
fiscal year. The Executive's Targeted Bonus for the fiscal year ending December
31, 1999 is set at One Hundred Thousand Dollars ($100,000).
2.2.4 The Executive shall not be entitled to any portion of the
Performance Component of the Annual Bonus unless the Company shall attain at
least eighty percent (80%) of the Operating Plan for the fiscal year. Assuming
the Company attains at least eighty percent (80%) of the Operating Plan, the
Executive shall be entitled to receive the Performance Component of his Annual
Bonus calculated as follows: [75% of the Targeted Bonus] multiplied by [the
percentage of the Operating Plan attained up to a maximum of One Hundred Twenty
Five Percent (125%)].
2.2.5 Except as provided in this section 2.2.5, the Annual Bonus
shall be paid to the Executive only if the Executive was employed by the Company
on the last day of the fiscal year for which the bonus is being calculated. The
foregoing notwithstanding, if the Executive's employment with the Company is
terminated due to his death or disability (as defined in section 5.2), the
Executive and/or his personal representative shall be entitled to a pro rata
portion of the Annual Bonus based on the number of days he was employed during
the fiscal year for which the bonus is being calculated. The Annual Bonus, if
any, shall be paid within thirty (30) days after the Company's audited annual
financial statements have been delivered by the auditors.
ARTICLE 3
STOCK OPTIONS AND OTHER BENEFITS
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3.1 Non-Qualified Stock Options
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3.1.1 As additional compensation to the Executive, the Company
hereby grants to the Executive options to purchase up to One Hundred Twenty
Thousand (120,000) shares of the Company's common stock (the "Options"), subject
to the provisions set forth in this Section 3.1.
3.1.2 The grant of the Options to the Executive is subject to
(i) the approval of the Company's board of directors; (ii) compliance with the
Amended and Restated 1998 Equity Participation Plan of Intellisys Group, Inc.
(the "Plan"); and (iii) the Executive's agreement to be bound by and his
execution of the standard form of Non-Qualified Stock Option Agreement (the
"Option Agreement").
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3.1.3 Subject to the provisions set forth in section 3.1.2
above, the Options shall vest in five (5) equal annual installments with the
first installment vesting on January 4, 2000.
3.1.4 The Options shall have an exercise price equal to the
lesser of (i) Nine Dollars and Fifty Cents per share ($9.50) or (ii) the "Public
Offering Price" per share in an initial underwritten public offering of the
Company's common stock that occurs on or prior to October 16, 1999 (the "Initial
Public Offering").
3.2 Purchase of "IPO Shares"
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3.2.1 Subject to (i) the approval of the Company's board of
directors; (ii) the approval of the Company's investment banker; (iii) and
compliance with all applicable laws, all of which are to be determined prior to
the Initial Public Offering, the Company shall endeavor to make Twenty Five
Thousand (25,000) shares of Company stock available to the Executive for
purchase in the Initial Public Offering (the "IPO Shares") at the Public
Offering Price and to provide a loan to the Executive to acquire the IPO Shares
(the "IPO Share Loan") bearing interest at the Company's borrowing rate and
payable in the number of installments as set forth more particularly in the "IPO
Promissory Note."
3.2.2 The Company shall provide the IPO Share Loan to the
Executive subject to (i) the Executive's execution of a promissory note
evidencing the IPO Share Loan (the "IPO Promissory Note") in a form satisfactory
to the Company, (ii) the Executive's execution of a Stock Pledge Agreement in a
form satisfactory to the Company pledging the IPO Shares as collateral for
repayment of the IPO Loan and (iii) the Company's obtaining the consent of its
lender, Sanwa Business Credit Corporation, to make the IPO Loan.
3.3 Purchase of "Additional IPO Shares"
-----------------------------------
3.3.1 Subject to the approval of the Company's investment banker
and compliance with all applicable laws, the Company shall endeavor to make
additional shares of Company stock available to the Executive for purchase in
the Initial Public Offering (the "Additional IPO Shares") in an amount to be
determined. If the Executive is eligible to purchase Additional IPO Shares, the
Company shall attempt to assist the Executive in obtaining financing for his
purchase of the Additional IPO Shares.
3.4 Other Benefits.
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3.4.1 During the Term of this Agreement, the Executive shall be
entitled to be entitled to four (4) weeks of paid vacation per year. The
Executive shall consult with the Chief Executive Officer of the Company in
establishing the timing of his vacation.
3.4.2 So long as the Executive remains employed by the Company,
the Company shall also provide to the Executive those benefits including medical
insurance, dental insurance, term life insurance, disability insurance, sick
leave, holidays, participation
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in a 401(k) retirement plan etc. as are provided to other executive employees of
the Company. The specific details of the coverage and applicability of each of
these benefits to the Executive and his dependents shall be governed by and be
subject to the conditions set forth in the Company's Employee Manual and/or the
documents governing a particular benefit plan, as the manual or plan may be
amended or modified from time-to-time.
3.4.3 The Company shall also provide the Executive with an
automobile allowance in an amount not to exceed Five Hundred Dollars ($500.00)
per month for the purchase or lease of an automobile. The Company shall also
reimburse the Executive for those costs and expenses associated with the
insurance, maintenance and repair of the automobile and for fuel expense
incurred while on business for the Company. The Executive understands that the
automobile allowance and other payments to be provided by the Company under this
section 3.4.3 may be considered taxable income by the Internal Revenue Service
and other taxing authorities and shall be treated as such by the Company.
ARTICLE 4
BUSINESS EXPENSES
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4.1 Expenses Reimbursement
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4.1.1 The Company shall reimburse the Executive for all
reasonable and necessary expenses incurred by the Executive in performing his
duties and responsibilities in connection with the services to be rendered by
the Executive to the Company hereunder provided that the Executive submits to
the Company an accounting and appropriate verification of all such expenses.
ARTICLE 5
TERM AND TERMINATION OF AGREEMENT
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5.1 Term of Agreement
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5.1.1 This Agreement shall be effective commencing on January 1,
1999 and shall be terminable at the will of either the Executive or the Company
at any time, for any or no reason, with or without cause, subject only to the
provisions of this Agreement.
5.2 Death or Disability
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5.2.1 Except as specifically set forth in this Agreement, the
Company may terminate this Agreement without any further obligation to the
Executive on the death or disability of the Executive. For the purposes of this
section "disability" shall mean the Executive's inability to perform his
assigned duties for the Company on a full-time basis for ninety (90) consecutive
calendar days in any fiscal year as a result of incapacity due to medically
documented physical or mental illness and which, in the opinion of a physician
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mutually agreed upon by the Company and the Executive, makes it impossible for
the Executive to perform his duties and responsibilities under this Agreement.
5.3 Termination for Cause
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5.3.1 Subject to the provisions of this Section 5.3., the
Company may terminate this Agreement and the Executive's employment at any time
without any further obligation to the Executive for "Cause" as defined herein
except that the Executive shall be entitled to his Base Salary through the date
of termination. For the purposes of this Agreement, "Cause" shall mean (i) the
Executive's conviction of a felony or misdemeanor involving moral turpitude,
(ii) dishonest or illegal conduct by the Executive, (iii) the Executive's breach
or neglect of the Executive's Duties under this Agreement or (iv) the
Executive's unsatisfactory performance of the Executive's Duties as determined
by the Company; provided, however, that in the event of (iii) or (iv) the
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Company shall first have given the Executive written notice of the alleged
breach or areas of neglect or unsatisfactory performance and a reasonable
opportunity to cure.
5.4 Termination Without Cause
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5.4.1 The Company may also terminate this Agreement at any time
without Cause, for any or no reason, on written notice to the Executive.
5.4.2 If the Executive is terminated without Cause prior to
April 1, 1999, he shall not be entitled to any payments other than his Base
Salary through the date of termination. If the Executive is terminated without
Cause on or after April 1, 1999, he shall be entitled to receive his Base Salary
(payable at the rate the Executive was being paid on the date of termination)
(i) for a period of three (3) months plus one additional month for each month he
is employed by the Company after April 1, 1999 up to a maximum period of twelve
(12) months or (ii) until such time as the Executive shall obtain alternative
employment, whichever is sooner.
5.4.3 Notwithstanding the provisions of section 5.4.2 above, if
the Executive is terminated without Cause on or after April 1, 1999 and within
twelve (12) months after a "Change of Control," the Executive shall be entitled
to receive his Base Salary (payable at the rate the Executive was being paid on
the date of termination) for a period of twenty four (24) months.
5.4.3.1 If the Executive is terminated without Cause within
twelve (12) months of a Change of Control, in addition to the
separation payments provided in section 5.4.3, he shall be entitled to
a pro rata portion of the Annual Bonus based on the number of days he
was employed during the fiscal year for which the bonus is being
calculated.
5.4.4 For the purposes of this Agreement, a "Change of Control"
shall mean (i) the removal of Xxxxxx X. Xxxxxx as Chief Executive Officer of the
Company for any reason including, but not limited to his, death or disability;
(ii) the approval by the shareholders of the Company and the consummation of a
sale, merger or consolidation of the
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Company with any other corporation or entity regardless of which entity is the
survivor, other than a sale, merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or being converted into
voting securities of the surviving entity) at least 50% of the combined voting
power of the voting securities of the Company or such surviving entity
outstanding immediately after such sale, merger or consolidation; or (iii) the
shareholders of the Company approve a plan of complete liquidation or winding-up
of the Company or an agreement for the sale or disposition by the Company of a
significant portion of the Company's assets.
5.5 Resignation for Good Reason
---------------------------
5.5.1 The Executive shall be entitled to resign his employment
with the Company for "Good Reason" at any time during his employment with the
Company. If the Executive resigns for Good Reason, prior to April 1, 1999, he
shall not be entitled to any payments other than his Base Salary through the
date of termination. If the Executive resigns for Good Reason on or after April
1, 1999, he shall be entitled to receive his Base Salary (payable at the rate
the Executive was being paid on the date of termination) (i) for a period of
three (3) months plus one additional month for each month he is employed by the
Company after April 1, 1999 up to a maximum period of twelve (12) months or (ii)
until such time as the Executive shall obtain alternative employment, whichever
is sooner.
5.5.2 Notwithstanding the provisions of section 5.5.1 above, if
the Executive resigns his employment, on or after April 1, 1999 and within
twelve (12) months after a "Change of Control," for the reasons provided by
section 5.5.3 (ii) or 5.5.3(iv), the Executive shall be entitled to receive his
Base Salary (payable at the rate the Executive was being paid on the date of his
resignation) for a period of twenty four (24) months.
5.5.2.1 If the Executive resigns his employment pursuant to
section 5.5.2, in addition to the separation payments provided in that
section, he shall be entitled to a pro rata portion of the Annual
Bonus based on the number of days he was employed during the fiscal
year for which the bonus is being calculated.
5.5.3 For the purposes of this Section 5.5, "Good Reason" shall
mean (i) the assignment to the Executive of duties inconsistent with the
position, status and decision making authority of Chief Operating Officer and
President; (ii) a substantial diminution in the nature, status or prestige of
the Executive's responsibilities (other than any such alteration primarily
attributable to a medical or physical infirmity of the Executive which the
Company has attempted to accommodate); (iii) a Change of Control; or (iv) a
relocation of the Company's principle administrative offices (where the
Executive maintained his primary office during the six (6) months immediately
prior to the Change of Control) by more than fifty (50) miles.
5.5.4 To be considered an effective Resignation for Good Reason,
the Executive must provide the Company with a written notice that he is
resigning for Good Reason within sixty (60) days of the event giving rise to the
resignation.
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5.5.5 Except as specifically set forth in this Section 5.5, the
Company shall have no liability to the Executive under this Agreement if he
resigns his employment for Good Reason.
5.6 Resignation For Other Than Good Reason
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5.6.1 If the Executive resigns his employment with the Company
for other than Good Reason, this Agreement shall be deemed terminated without
any further obligation of the Company to the Executive except as specifically
provided by this Agreement.
5.6.2 The Executive agrees to give the Company thirty (30) days
notice of his intention to resign for other than Good Reason during the first
twelve (12) months of his employment and thereafter to give sixty (60) days
notice of his intention to resign for other than Good Reason, specifically
stating the date on which his resignation will be effective (a "Notice of
Resignation"). If the Executive resigns for other than Good Reason but fails to
give the required minimum notice, the Executive agrees (i) to repay to the
Company all bonuses paid or awarded to him within the twelve (12) months
immediately preceding the date on which the Executive provides the Company with
a Notice of Resignation and (ii) that all unvested and vested but unexercised
Options shall automatically be deemed cancelled.
5.6.3 At any time after the Executive provides a Notice of
Resignation, the Company shall have the right to terminate the Executive's
employment without Cause (the "Resignation/Termination Option") by providing the
Executive with a written Notice of Termination and acknowledging its obligation
to pay the Executive the Resignation/Termination Payments for the applicable
period set forth in Section in 5.6.4 below.
5.6.4 If the Company exercises the Resignation/Termination
Option, the Executive shall be entitled to receive his Base Salary through the
effective date of his resignation contained in the Notice of Resignation. Except
as set forth in this Section 5.6.4, the Executive shall not be entitled to any
other amounts, benefits or payments if the Company exercises the
Resignation/Termination Option.
5.7 Separation and Resignation/Termination Payments
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5.7.1 Any "Separation Payments" or Resignation/Termination
Payments due to the Executive under Sections 5.4, 5.5 or 5.6 shall be paid to
the Executive in accordance with the Company's normal payroll practices.
5.7.2 Except as provided herein, the Executive agrees that so
long as he is receiving any Separation Payments or Resignation/Termination
Payments, he shall not become employed by or consult with any company whose
primary business is the Business of the Company or any other business in which
the Company is either engaged or is contemplating becoming engaged in pursuant
to a written business plan at the time the Executive's employment is terminated.
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ARTICLE 6
CONFIDENTIALITY AND UNFAIR COMPETITION
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6.1 Confidential Information
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6.1.1 At all times during the term of this Agreement, the
Executive shall hold in strictest confidence and not disclose, directly or
indirectly, to any person, firm or corporation, without the express written
prior authorization of the Company, any trade secrets or any confidential
business information, including but not limited to, corporate planning,
production, distribution or marketing processes; manufacturing techniques;
customer lists or customer leads; marketing information or procedures;
development or environmental work; work in process; financial statements or
notes, schedules or supporting financial data; or any other secret or
confidential matter relating to the products, sales or business of the Company,
including plans for expansion to new products, areas and markets; new product
development budgets and forecasts, together with all written and graphic
materials relating thereto.
6.2 Inventions and Improvements
---------------------------
6.2.1 If during the term of the Executive's employment, the
Executive conceives or makes any improvement, discovery or invention relating to
any article, machine, process, or composition of matter, made, used, sold or
under development by the Company, or pertaining to the business of the Company,
the Executive agrees to fully and promptly disclose the same to the Company.
Each such improvement, discovery and invention shall be the exclusive property
of the Company. The Executive further agrees that he will promptly make full
disclosure to the Company, and will hold in trust for the sole right and benefit
of the Company, any inventions, discoveries, developments, improvements or trade
secrets which the Executive solely or jointly conceives or develops, or reduces
to practice, or causes to be conceived, or developed, or reduced to practice,
during the period of the Executive's employment with the Company and for six (6)
months thereafter, which relate to or are connected with the Executive's
employment, or the work, processes, techniques, formulas, products, experiments,
or developments or any of the work or business of the Company. The Executive
assigns to the Company all of his right, title and interest in and to all such
inventions, discoveries, developments, improvements, and trade secrets and
agrees that he will, at the request of the Company, whether made by the Company
during or after the termination of the Executive's employment, and without
expense to the Executive, make, execute and deliver all applications,
assignments or instruments, and perform or cause to be performed, such other
lawful acts as the Company may deem necessary or desirable in making or
prosecuting applications, domestic or foreign, for patents, trademarks, or
copyrights, or which may be procured with respect to any of the foregoing.
6.2.2 The parties agree that the provisions contained in this
Section 6.2 shall not be construed as a waiver by the Company of its shop rights
and any other improvement, discovery or invention developed during the working
hours or times for which the Executive shall be compensated by the Company or
developed by the use of materials, facilities or information furnished by the
Company.
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6.3 Return of Confidential Information
----------------------------------
The Executive further agrees that within five (5) calendar days after
the termination or resignation of the Executive's employment, he will deliver to
the Company and will not keep in his possession, or deliver to anyone else, any
and all drawings, blueprints, notes, memoranda, specifications, financial
statements, customer lists, product surveys, data, documents, or other material
contained or disclosing any of the matters referred to herein together with all
photocopies of the above.
6.4 No Solicitation
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The Executive shall not, either during the term of this Agreement or
for a period of two (2) years following the termination of the Executive's
employment, solicit or attempt to solicit any employees, officers, personnel or
other representatives of the Company to work for, render services or provide
advice to, or supply confidential business information or trade secrets of the
Company to any third person, firm or corporation.
6.5 Remedy for Breach of Article 6
------------------------------
The Executive acknowledges that any breach of any of the provisions of
this Article 6 by him will cause irreparable damage to the Company and its
affiliates, for which the available remedies at law will not be adequate.
Accordingly, in the event of any such breach or threatened breach of any of the
provisions of this Article 6, in and addition to any other remedy provided
herein or by law or in equity, the Company shall be entitled to appropriate
injunctive relief, in any court of competent jurisdiction, restraining the
Executive or any of the Executive's associates or affiliates from any threatened
or actual violation of the provisions of this Article 6. The Executive
stipulates to the entry against the Executive of any such temporary, preliminary
or permanent injunction, and agrees not to resist the Company's application for
such equitable relief, except on the grounds that the acts or omissions alleged
by the Company did not violate any of the provisions of this Article 6. The
Executive shall, in the event that any injunctive relief or damages shall be
granted to the Company, pay all of the Company's cost and expenses incurred in
obtaining such injunctive relief, including but not limited to, the Company's
reasonable attorney's fees.
ARTICLE 7
ARBITRATION
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7.1 Exclusive Dispute Resolution Mechanism
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7.1.1 The Executive and the Company agree that except with
respect to any action for an injunction pursuant to the provisions of Article 6
above, any and all disputes relating to, or arising out of this Agreement or the
Executive's employment with the Company, or any amounts claimed due hereunder
shall be submitted to the American Arbitration Association ("AAA") for
arbitration before a single arbitrator, who shall be a retired state or federal
court judge, in accordance with the rules of AAA then in force and effect as the
sole and exclusive remedy for resolving such controversies.
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7.1.2 Without limiting the generality of the foregoing, the
disputes required to be submitted to arbitration include any disputes arising
out of, based upon or in any way related to (i) the termination of this
Agreement, the Executive's employment with the Company, the termination of the
Executive's employment, or the payments due the Executive hereunder; (ii) any
property, contract or tort claims, including wrongful discharge, breach of
employment contract, breach of the covenant of good faith and fair dealing,
retaliation, intentional or negligent infliction of emotional distress, tortious
interference with existing or prospective economic advantage, negligence,
misrepresentation, breach of privacy, defamation, loss of consortium, breach of
fiduciary duty, violation of public policy or any other common law claim of any
kind; (iii) any violation or alleged violation of Title VII of the Civil Rights
Act of 1964, as amended, the Age Discrimination in Employment Act, as amended,
the Older Workers Benefit Protection Act of 1990, the Equal Pay Act, as amended,
the Fair Labor Standards Act, the Employee Retirement Income Security Act, the
Americans With Disabilities Act, the Family and Medical Leave Act, the
California Family Rights Act, the California Fair Employment and Housing Act,
the California Labor Code, the California Unemployment Insurance Act, the
California Workers' Compensation Act, the Civil Rights Act of 1866, the
Consolidated Omnibus Budget Reconciliation Act, California Labor Code (S)
1102.5; (iv) any laws of the State of California relating to discrimination in
employment or workers' compensation; (v) any claims for severance pay, bonus,
sick leave, vacation or holiday pay, life insurance, health, disability or
medical insurance or any other fringe benefit; and (vi) any claim relating to or
arising under any other local, state or federal statute or principle of common
law (whether in contract or in tort) governing the employment of individuals,
discrimination in employment and/or the payment of wages or benefits.
7.1.3 The Executive and the Company agree that the decision of
the arbitrator shall be final and binding and that a judgment may be entered on
such arbitration award in any court of competent jurisdiction. The parties agree
that any such arbitration shall take place in the County of Santa Xxxxx, State
of California.
7.2 Waiver of Right to Jury Trial
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THE EXECUTIVE AND THE COMPANY EACH ACKNOWLEDGE AND AGREE THAT BY
SELECTING ARBITRATION AS THE SOLE AND EXCLUSIVE REMEDY FOR RESOLVING ALL
DISPUTES AMONG THEM (OTHER THAN THOSE SET FORTH IN ARTICLE 6), THEY ARE WAIVING
THEIR RIGHT TO A JURY TRIAL TO WHICH THEY MAY OTHERWISE BE ENTITLED.
7.3 Attorneys' Fees and Costs
-------------------------
If any party to this Agreement brings an arbitration to enforce or
determine his or its rights hereunder or brings any action under the terms of
Article 6 above, the prevailing party shall be entitled to recover his or its
costs and expenses, including reasonable attorneys' fees, incurred in connection
with such arbitration or action.
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ARTICLE 8
MISCELLANEOUS
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8.1 Reasonable Terms
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The parties agree that the covenants and other terms contained in this
Agreement are reasonable in all respects.
8.2 Invalid Provision
-----------------
The parties agree that each and every paragraph, sentence, term and
provision of this Agreement shall be considered severable and that, in the event
a court or other tribunal finds any paragraph, sentence, term or provision to be
invalid or unenforceable, the validity, enforceability, operation or effect of
the remaining paragraphs, sentences, terms or provisions shall not be affected.
8.3 No Waiver
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The failure of either party to insist in any one or more instances
upon performance of any of the provisions of the Agreement or to pursue their
rights hereunder, shall not be construed as a waiver of any such provisions or
the relinquishment of any rights.
8.4 Governing Law
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This Agreement has been consummated in the State of California and
shall be construed and enforced in accordance with and governed by the laws of
that state. The parties agree that the language of this Agreement shall not be
construed for or against any particular party.
8.5 Notices
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Any notices, requests or other communications required hereunder shall
be in writing and shall be personally delivered or, if mailed, by first class
mail, (i) to the Company at its headquarters and (ii) to the Executive at his
place of residence.
8.6 Entire Agreement
----------------
This Agreement represents the sole and entire agreement among the
Executive and the Company relating to the Executive's employment and supersedes
all prior promises, contracts and agreements of any kind, whether written or
oral, express or implied, as well as any negotiations and/or discussions between
the parties hereto. The Executive also agrees that no promises or commitments
have been made by the Company to the Executive regarding any other term or
condition of his employment, except as specifically provided herein and the
Executive understands that no representative of the Company other than the Chief
Executive Officer or the Chairman of the Board is authorized to enter into any
agreement or make any commitment with Executive which is in any way inconsistent
with
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the terms of this Agreement. Any amendment to this Agreement must be in writing
and signed by duly authorized representatives of each of the parties hereto and
must expressly state that it is the intention of each of the parties hereto to
amend this Agreement.
8.7 Successors; Binding Agreement
-----------------------------
This Agreement shall be binding on any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company.
Dated: January 13, 1999. THE "EXECUTIVE"
By /s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx
Dated: January 13, 1999. THE "COMPANY"
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
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