EXHIBIT 10.37
AGREEMENT TO ARBITRATE DISPUTES AND CLAIMS
This Agreement is entered into between Asyst Technologies, Inc., on behalf
of itself and its subsidiary and affiliated entities ("Asyst"), and the
employee, advisor or consultant named below ("Employee"), and is intended to and
shall supercede and replace any prior agreements or understandings with respect
to the resolution of disputes, claims, causes or controversies between the
parties, as provided hereinafter.
Scope of Disputes and Claims to Be Arbitrated
We agree that any existing or future dispute, claim, cause or controversy
arising from or relating to the recruitment or employment or advisory or
consulting relationship of Employee with or by Asyst, conduct occurring by
either party during such employment or advisory or consulting relationship
between Employee and Asyst, or any termination, adjustment or interruption
thereof, shall be submitted to and resolved solely by final and binding
arbitration. Any such arbitration will be conducted in accordance with the
American Arbitration Association and the National Rules for the Resolution of
Employment Disputes then in effect.
We understand and agree that this Agreement shall apply to any and all
disputes, claims, causes or controversies between Asyst and Employee whether the
dispute, cause, claim or controversy arises in tort or contract, or pursuant to
statute, governmental regulation, administrative directive or otherwise, now in
existence or which may in the future be enacted, amended or judicially
recognized, including the following:
- claims for fraudulent inducement of contract, breach of contract or
contractual obligation, whether such alleged contract or obligation
be oral or written or express or implied by fact or law;
- claims of fraud or wrongful termination, including violation of
public policy and constructive discharge;
- claims of discrimination or harassment under any and all state and
federal statutes, as well as claims for violation of any other state
or federal statute (except as set forth below);
- claims of non-payment, incorrect or late payment, or the impaired,
reduced or claimed or deemed untimely benefit or forfeiture of,
wages, commissions, bonuses, severance, employee fringe benefits,
stock grants or options, whether such claims be pursuant to alleged
express or implied contract or obligation, equity, the California
Labor Code, the Fair Labor Standards Act, the Employee Retirement
Income Securities Act, and any other local, state or federal law,
order or regulation applicable to Asyst concerning wages,
compensation or employee benefits;
- claims for infliction of emotional distress, misrepresentation,
interference with contract or prospective economic advantage,
violation of public policy, defamation, unfair business practices,
and any other tort or tort-like causes of
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action relating to or arising from the employment relationship or
the formation or termination thereof;
- defense, hold harmless, indemnity or other benefit or protection
claimed or asserted by Employee as a result of or arising from an
employee, advisory or consulting relationship; and/or
- claims arising from or related to Asyst's or Employee's conduct
during such employment, advisory or consulting relationship.
(hereafter, collectively, referred to as the "Claims").
We understand and agree that binding arbitration of any such Claims, as
provided herein, shall be the sole and exclusive means for resolving any and all
existing and future dispute, cause, claim or controversy between us, with the
following exceptions (which will be resolved to the extent and in the manner
otherwise required by law then in effect):
- claims for benefits under applicable workers' compensation,
unemployment insurance and state disability insurance laws;
- claims concerning the validity, infringement or enforceability of
any trade secret, patent right, copyright, trademark, or any other
intellectual or confidential property held or sought by Asyst or
Employee, or obligation of either party therefor; and
- any other claim that has been expressly excluded from arbitration by
local, state or federal law, order or regulation applicable to
Asyst.
Waiver of Trial Before Court, Jury or Government Agency
We understand and agree that arbitration as provided herein shall be
instead of a trial before a court, jury or administrative body, or other hearing
before a government agency. We understand and agree that the decision of the
arbitrator shall be final and binding on both Asyst and Employee, it shall
provide the exclusive remedy(ies) for resolving any and all Claims between Asyst
and Employee arising from our employment, advisory or consulting relationship,
and it shall be final, binding, non-appealable and fully enforceable (unless and
except to the specific extent required by local, state or federal law, order or
regulation applicable to Asyst to be reviewed and confirmed by a court having
proper jurisdiction thereof).
Accordingly, we understand and agree that by signing this Agreement, Asyst
and Employee are, to the greatest extent allowed by law, each expressly waiving
any and all rights to a trial before a court or jury, or before a government or
administrative agency, regarding any Claim which we now have or which we may in
the future have between or against each other.
Place of Arbitration
We understand and agree that arbitration of Claims as provided herein
shall take place in Alameda County, California, and Employee and Asyst agree to
such venue as the exclusive and
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proper arbitration or other dispute resolution venue. However, if, at the time
the Claim in question arises, Employee resides more than fifty (50) miles from
Alameda County, California, then Employee may, at Employee's option, direct that
the arbitration take place in the county in which Employee resides at the time
the Claim in question arises.
Issuance of Written Arbitration Opinion
The arbitrator shall issue a written decision identifying the essential
findings and conclusions on which the arbitration decision and award are based.
The arbitrator's award shall be subject to confirmation or vacation, as and to
the extent required under California law governing judicial review of
arbitration awards.
Costs of Arbitration
We understand and agree that Asyst will solely bear the arbitrator's fee
and costs imposed directly by the American Arbitration Association; however,
Asyst and Employee shall each bear their own attorneys' fees and any other costs
that party incurs in connection with the arbitration. The arbitrator will not
have authority to award attorneys' fees or costs to either party, unless a
statute at issue which is the basis for the Claim expressly authorizes the award
of attorneys' fees or costs to the prevailing party. In this instance, the
arbitrator shall have the authority to make an award of reasonable attorneys'
fees and costs to the prevailing party, to the extent and in the manner
permitted by the applicable statute. However, any award of fees and costs will
be limited to the amount of reasonable fees and costs actually incurred and
which bear a reasonable relation to the prevailing party's actual recovery.
Governing Law
We understand and agree that this Agreement, and its validity,
construction, performance and enforceability, as well as any and all Claims
between Asyst and Employee, shall be governed and enforced by and construed
under the laws of the State of California, or the specific statutory law under
which the Claim arises, regardless of the actual venue of the arbitration and
regardless of the rules of conflict or choice of laws which may otherwise apply.
Both parties hereby expressly waive any right or claim to assert the law of
another state, country or jurisdiction.
Waiver of Certain Damages
We understand and agree that neither Asyst nor Employee shall or may be
liable to the other, as a result of any Claim asserted between them, for any
incidental, special, consequential or exemplary damages of any nature, including
but not limited to punitive damages, unless and to the extent any such award of
damages is specifically provided and available to the party as a remedy under
the statute asserted as a basis for the Claim and, unless and to the extent so
specifically provided, the arbitration shall be without authority or
jurisdiction to award such damages.
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Availability of Limited Discovery
We understand and agree that discovery, to the extent and in the manner
provided by the California Arbitration Act, Code of Civil Procedure section
1283.05, as amended, shall be allowed during arbitration, to the extent and in
the manner deemed by the arbitrator to be reasonable, necessary and relevant to
arbitrate the Claims asserted.
Severability
We understand and agree that if any term or portion of this Agreement
shall, for any reason, be held to be invalid or unenforceable or to be contrary
to public policy or any law, then the remainder of this Agreement shall not be
affected by such invalidity or unenforceability but shall remain in full force
and effect, as if the invalid or unenforceable term or portion thereof had not
existed within this Agreement.
Complete Agreement
We understand and agree that this Agreement contains the complete
agreement between Asyst and Employee regarding the subjects covered in it; that
it supersedes any and all prior or contemporaneous representations and
agreements between us, if any, concerning the subjects; and that it may be
modified or amended only in a writing, expressly referencing this Agreement and
Employee by full name, and signed by Employee and Asyst (through either its
Chief Executive Officer or General Counsel). Accordingly, both Employee and
Asyst hereby agree, as a material inducement to the other party's agreement to
enter this Agreement, to forebear from asserting any claim against the other
arising from or relating to a modification or amendment of the terms, conditions
and obligations of this Agreement, except when such modification or amendment is
confirmed in writing signed by both parties (as provided herein).
Employee acknowledges that it has been advised to consult with an attorney
of its own choosing before signing this Agreement, and that Employee has had an
opportunity to do so.
Acknowledged, Understood and Agreed
Date:
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(Name)
Asyst Technologies, Inc.
Date: By:
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Xxxxxxx Xxxxx
Its: Sr. Director, Human Relations
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