1
EXHIBIT 10.1
RETIREMENT AGREEMENT
This Retirement Agreement is entered into by and between The Xxxxxxxx
Group, Inc. ("Xxxxxxxx" or "the Company"), and Xxxxx Xxxxxx ("Xx. Xxxxxx") to
set forth the terms and conditions of Xx. Xxxxxx'x retirement as an employee and
as an officer of The Xxxxxxxx Group, Inc. and its affiliated entities.
RECITALS
Xx. Xxxxxx has been employed by the Company for a number of years, most
recently as Co-President.
Xx. Xxxxxx is also an officer, director or member of the management board
of other entities that are affiliated with the Company, which collectively are
referred to herein as "the Affiliates". (Except where otherwise specified, for
purposes of this Agreement, "Xxxxxxxx" or "the Company" shall mean Xxxxxxxx and
the Affiliates).
Xx. Xxxxxx has determined that he wishes to retire from his employment
with the Company.
AGREEMENT
In order to provide Xx. Xxxxxx with additional retirement benefits, and
to fully and finally resolve any and all issues regarding Xx. Xxxxxx'x
employment with Xxxxxxxx and the Affiliates, and his retirement from that
employment, Xx. Xxxxxx and Xxxxxxxx agree as follows:
1. RETIREMENT. Effective as of August 13, 2001, Xx. Xxxxxx will, subject
to section 7 of this Agreement, retire from his positions as an employee and as
Co-President of The Xxxxxxxx Group, Inc., and from any all positions he holds
with any of the Affiliates. Xx. Xxxxxx agrees to execute such corporate
documents and take such other actions as may be reasonably necessary to
implement this retirement and change in status.
2. PAYMENT OF SALARY. On or about August 24, 2001, Xx. Xxxxxx will be
paid for his salary at his current rate of compensation through August 13, 2001,
less required withholding and deductions.
3. SUPPLEMENTAL RETIREMENT BONUS. The Company agrees to pay Xx. Xxxxxx a
supplemental retirement bonus in the gross amount of Two Hundred Fifty-Five
Thousand Dollars ($255,000.00), less required withholding and deductions, on or
about August 13, 2001.
4. STOCK OPTIONS. Xx. Xxxxxx has been granted a total of 80,000 options
under The Xxxxxxxx Group, Inc. Fourth Amended and Restated Stock Option Plan as
of May 11, 1999 ("the
1
2
Option Plan"), as follows: (i) 20,000 shares with an exercise price of $3.4375,
(ii) 10,000 shares with an exercise price of $7.625, (iii) 25,000 shares with an
exercise price of $19.50, and (iv) 25,000 shares with an exercise price of
$16.69. The Company agrees that as of August 13, 2001, all such options which
have been previously granted to Xx. Xxxxxx will be fully vested. Xx. Xxxxxx will
not be eligible to receive any additional stock options after August 13, 2001.
Xx. Xxxxxx will be treated the same as the other senior executives of the
Company without discrimination with respect to any additional compensation which
may, in the Company's discretion, be paid to such executives arising out of or
relating to tax savings resulting from deductions, credits or other tax benefits
realized by the Company related to the exercise of stock options by such
executives, including as contemplated by the board of directors at its meetings
in September 2000 and February 2001.
5. STOCK PURCHASE INDEBTEDNESS. The Company previously advanced Xx.
Xxxxxx the amount of Three Hundred Sixty Thousand Dollars ($360,000.00) to
purchase as an accommodation to the Xxxxxxxx Foundation approximately 19,736
shares of the Company's common stock, which he now owns or previously owned. The
indebtedness is repayable in nine equal annual installments of $40,000 beginning
in 2002. The Company agrees to forgive each installment of that indebtedness in
equal annual amounts of $40,000 as each installment comes due such that the full
amount of such indebtedness is forgiven by 2010. Xx. Xxxxxx will be responsible
for any personal tax obligations which may result to him as a result of the
forgiveness of this indebtedness.
6. MEDICAL INSURANCE. The Company will maintain Xx. Xxxxxx'x current
group medical insurance through August 31, 2001. Beginning September 1, 2001,
Xx. Xxxxxx and his eligible dependents may continue to participate in the
Company group medical insurance plan, entirely at his expense, for a period of
ten (10) years, provided that such eligibility for coverage shall be subject to
the terms and conditions of the medical plan, and provided further that the
Company shall have no further obligation to Xx. Xxxxxx regarding medical
insurance if for any reason the company, in its sole discretion, should
discontinue the availability of such group medical insurance for its employees
generally, and provided further that the Company shall make a good faith effort
to transfer Xx. Xxxxxx and his eligible dependents to another plan with
comparable benefits (such as a plan operated by an Affiliate) in the event the
Company so discontinues its insurance plan.
7. BOARD OF DIRECTORS POSITION/CONSULTING AGREEMENT. In order to retain
access to Xx. Xxxxxx'x experience and expertise, Xx. Xxxxxx will be elected to
the Company's 's Board of Directors as soon as reasonably possible after the
effective date of his retirement, and Xx. Xxxxxx will receive the compensation
and benefits provided to other outside directors during such term. In addition,
the Company will enter into a ten-year consulting agreement with him
contemporaneously with this Agreement (the "Consulting Agreement").
8. RETURN OF PROPERTY. Xx. Xxxxxx represents and warrants that no later
than August 13,
2
3
2001, he will return to the Company all Xxxxxxxx property except as set forth in
this Agreement, including all copies of materials and documents in his
possession or under his control relating to the Company, its business,
employees, clients or projects, and that he has not retained copies of any such
materials or documents. Notwithstanding anything to the contrary set forth
herein, the Company hereby acknowledges and agrees that Xx. Xxxxxx may retain,
as his own property, his copies of his individual personnel documents, such as
his payroll and tax records, and similar personal records, as well as other
documents or records which would normally be possessed by other outside members
of the company's Board of Directors, as well as any documents provided to Xx.
Xxxxxx by the Company to assist him in connection with any consulting
assignments he may be given. Xx. Xxxxxx may elect to remove and take ownership
of any furnishings in his office at the Company (other than the desk and
credenza and rugs). A list of such removed furnishings, and the parties'
agreement as to the value for all purposes of such furnishings, shall be
appended to this Agreement no later than August 13, 2001.
9. AUTOMOBILE/LAPTOP COMPUTER. Ownership of the 1998 Lexus automobile
which was leased for his use by the Company will be transferred to Xx. Xxxxxx
and the Company shall pay any amounts (such as lease payments and residual
value) required to transfer unencumbered title to Xx. Xxxxxx, provided that
after August 13, 2001, he shall be responsible for any and all expenses
connected with its ownership (other than as provided above) and operation,
including but not limited to taxes, gas, oil, insurance, licensing, and
maintenance. The Company represents and warrants that it has paid or will pay
all amounts due and owing with respect to the automobile through August 13,
2001. Xx. Xxxxxx will also be given one of the laptop computers assigned for his
use by the Company, provided that any confidential company information is
removed. Xx. Xxxxxx will no longer have access to the Company's computer network
after August 13, 2001. Xx. Xxxxxx shall be responsible for any personal tax
obligations which he may incur as the result of such transfers. Xx. Xxxxxx has
had use and possession of the automobile and laptop for the last several years
and represents that the fair market value of the automobile is $16,284 and of
the laptop is $300, which the parties agree to use for all purposes.
10. SAHALEE GOLF CLUB MEMBERSHIP. The Company asserts no interest in the
membership in the Sahalee Golf Club purchased by the Company for Xx. Xxxxxx'x
benefit. After August 13, 2001, Xx. Xxxxxx will be responsible for all dues,
assessments, or any other costs associated with such membership. The Company
represents and warrants that it has paid or will pay all amounts due and owing
with respect to the membership through August 13, 2001. Xx. Xxxxxx shall be
responsible for any personal tax obligations relating to the ownership of the
membership.
11. COVENANT NOT TO XXX. Xx. Xxxxxx represents that he has not filed any
complaints, charges, or lawsuits against the Company and agrees that he will not
do so at any time hereafter other than to enforce the terms of this Agreement.
12. COMPLETE RELEASE OF CLAIMS BY XX. XXXXXX AGAINST THE COMPANY AND THE
AFFILIATES. In consideration of the additional retirement benefits set forth
above, which are given to him
3
4
specifically in exchange for this release as a result of negotiations between
himself and the Company, Xxxxx Xxxxxx, on behalf of himself, his marital
community, and their heirs, successors and assigns, release and discharge the
Company, Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, and the Affiliates, and their
predecessor organizations, their employee benefit plans and/or their current or
former directors, officers, agents, employees and attorneys, any and each of
their successors and assigns and predecessors ("Released Parties"), from any and
all claims, charges, causes of action and damages (including attorneys' fees and
costs actually incurred), known and unknown ("Claims"), including those Claims
related in any way to Xx. Xxxxxx'x employment with the Company and the
Affiliates, or his retirement from the Company and the Affiliates, arising prior
to the effective date of this Agreement. It is understood and agreed that the
waivers in this Agreement are not intended to waive Xx. Xxxxxx'x rights: (a) to
indemnification pursuant to any applicable provision of the Company or any
Affiliate's Bylaws or Certificate of Incorporation, or pursuant to applicable
law; (b) under ERISA to receive the benefits specifically reserved for him in
this Agreement; (c) respecting the Company's obligations under this Agreement;
(d) respecting any conduct (not presently known to Xx. Xxxxxx) by the Company
while employed by the Company that constituted a violation of any statute
imposing criminal penalties; (e) respecting any fraud or embezzlement (not
presently known to Xx. Xxxxxx) committed by the Company while Xx. Xxxxxx was
employed by the Company; or (f) respecting any of the Company's obligations
under any employee benefit plans.
For the purposes of implementing a full and complete release and discharge of
the Company, the Affiliates, and the other Released Parties, and each of them,
Xx. Xxxxxx expressly acknowledges that this Retirement Agreement is intended to
include in its effect, without limitation, all Claims which he does not know or
suspect to exist in his favor at the time he signs this Agreement, and that this
Agreement is intended to fully and finally resolve any such Claim or Claims,
except as otherwise provided in this Agreement.
This Release specifically includes, but is not limited to, rights and claims
under the local, state or federal laws prohibiting discrimination in employment,
including the Civil Rights Acts, The Americans with Disabilities Act, The
Washington Law Against Discrimination, The Age Discrimination in Employment Act,
the Family and Medical Leave Act, the Employee Retirement Income Security Act,
as well as any other state or federal laws or common law theories relating to
discrimination in employment, the termination of employment, or personal injury,
including without limitation all claims for breach of contract, fraud,
defamation, loss of consortium, infliction of emotional distress, additional
compensation, back pay or benefits (other than as provided for in this
Agreement).
13. RELEASE OF CLAIMS AGAINST XX. XXXXXX. In consideration of the
foregoing release and Xx. Xxxxxx'x obligations under this Agreement, the Company
and the Affiliates agree to forever release and discharge Xx. Xxxxxx, his
marital community, heirs, successors and assigns from all claims, charges,
causes of action and damages, including attorneys' fees and costs, known or
unknown ("Xxxxxxxx Claims"), that they may have up to the date of Xx. Xxxxxx'x
retirement;
4
5
provided, however, that the foregoing release and discharge shall not be
applicable to (a) Xx. Xxxxxx'x obligations under this Agreement or the
Consulting Agreement; (b) any of Xx. Xxxxxx'x obligations under any employee
benefit plans; (c) any conduct (not presently known to the Company) by Xx.
Xxxxxx while employed by the Company that constituted a violation of any statute
imposing criminal penalties; or (d) any fraud or embezzlement (not currently
known to the Company) committed by Xx. Xxxxxx while employed by the Company. For
the purposes of implementing a full and complete release and discharge of Xx.
Xxxxxx, his marital community, heirs, successors and assigns, the Company
expressly acknowledges that this Retirement Agreement is intended to include in
its effect, without limitation, all Xxxxxxxx Claims which Xxxxxxxx does not know
or suspect to exist in its or their favor at the time it signs this Agreement,
and that this Agreement is intended to fully and finally resolve any such
Xxxxxxxx Claim or Claims, except as otherwise provided in this Agreement. Xx.
Xxxxxx shall indemnify the Company against any damage, loss or other liability
incurred by the Company to the extent directly attributable to the inaccuracy of
Xx. Xxxxxx'x representation in Section 9.
14. ANNOUNCEMENT OF RESIGNATION AND REFERENCES. The Company will develop
the form of the internal and external announcements of Xx. Xxxxxx'x retirement
and will obtain Xx. Xxxxxx'x approval, which shall not be unreasonably withheld,
before issuing them. The directors and senior officers of the Company and Xx.
Xxxxxx agree that they shall not make any derogatory or disparaging statements
about one another including, without limitation, in any discussion with third
parties, in a press release, or in any other similar forum or manner. This shall
not prohibit the parties from making whatever statements are necessary in order
to defend themselves in any third-party litigation, or as otherwise required by
law or legal process. Any references given by the Company concerning Xx. Xxxxxx
will be consistent with the tone and content of the announcements.
15. ATTORNEYS' FEES. The Company will pay Xx. Xxxxxx'x reasonable
attorneys' fees incurred in connection with the negotiation of this Agreement
and the Consulting Agreement.
16. NO ADDITIONAL COMPENSATION. Xx. Xxxxxx and the Company agree that,
except as expressly set forth in this Agreement and in the Consulting Agreement,
and subject to Xx. Xxxxxx'x vested rights in any existing retirement benefits,
Xx. Xxxxxx shall not be entitled to receive any additional compensation,
bonuses, incentive compensation, employee benefits or other consideration from
the Company other than what he will receive as a member of the Board of
Directors.
17. VOLUNTARY AGREEMENT; FULL UNDERSTANDING; ADVICE OF COUNSEL. Xx.
Xxxxxx understands and acknowledges the significance of this Agreement and
acknowledges that this Agreement is voluntary and has not been given as a result
of any coercion. Xx. Xxxxxx acknowledges that he was given at least twenty-one
(21) days after receipt of this document
5
6
during which to consider whether he wanted to sign it (but that he need not wait
21 days if he so desires). Xx. Xxxxxx also acknowledges that he has been given
full opportunity to review and negotiate this Agreement, that he has been
specifically advised to consult with legal counsel prior to signing it, that he
has in fact carefully reviewed this Agreement with his legal counsel, Xxxxxx
Xxxxxx, and that he executes this Agreement only after full reflection and
analysis. Xx. Xxxxxx agrees this Agreement shall not be deemed to constitute
evidence of any noncompliance with or violation of any statute or law, or any
wrongdoing or liability on the part of the Company or its agents.
18. NO REPRESENTATIONS. Xx. Xxxxxx acknowledges that, except as expressly
set forth herein, no representations of any kind or character have been made to
him by the Company or by any of the Company's agents, representatives or
attorneys to induce the execution of this Agreement.
19. REVOCATION PERIOD. Xx. Xxxxxx understands and acknowledges that he
has seven (7) days after signing this Agreement to revoke it. This Agreement
shall not be effective until that period has expired.
20. NONADMISSION. This Retirement Agreement shall not be construed as an
admission of wrongdoing by the Company or Xx. Xxxxxx.
21. RESTRICTIVE COVENANT.
(a) ACKNOWLEDGEMENTS. Xx. Xxxxxx agrees and acknowledges that (a)
he has occupied a position of the highest trust and confidence with the Company;
(b) during Xx. Xxxxxx'x employment with the Company, he has become familiar with
the Company's trade secrets, business plans and strategies, and with other
proprietary and confidential information concerning the Company and its
business; (c) that the agreements and covenants contained in this paragraph 21
are essential to protect the Company and the goodwill of the Company; (d) the
Company would be irreparably damaged by the disclosure of confidential and
proprietary information and (e) the retirement benefits provided him under this
Agreement are given to him in part in exchange for his agreement to the
restrictions set forth below. For the purposes of this paragraph 21, "the
Company" shall include The Xxxxxxxx Group, Inc, and its Affiliates, and their
subsidiaries, affiliates and assignees and any successors in interest of their
subsidiaries and/or affiliates.
(b) CONFIDENTIAL INFORMATION. Xx. Xxxxxx agrees that he shall keep
secret and retain in strictest confidence, and shall not, without the prior
written consent of the Company, furnish, make available or disclose to any third
party (except in furtherance of the Company's business activities and for the
benefit of the Company) or use for the benefit of himself or any third party,
any Confidential Information. As used in this Agreement, "Confidential
Information" shall mean any information relating to the business or affairs of
the Company or its business, including but not limited to information relating
to financial statements, customer identities, potential
6
7
customers, employees, suppliers, manufacturing and servicing methods, equipment,
programs, strategies and information, analyses, profit margins, or other
proprietary information used by the Company in connection with the Business;
provided, however, that Confidential Information shall not include any
information which is in the public domain or becomes known in the industry
through no wrongful act on the part of Xx. Xxxxxx. Xx. Xxxxxx acknowledges that
the Confidential Information is vital, sensitive, confidential and proprietary
to the Company. Nothing in this Agreement shall be construed to preclude Xx.
Xxxxxx or his counsel from complying with a lawful court order or other legal
process requiring disclosure, written, oral or otherwise, of any Confidential
Information; provided, however, that Xx. Xxxxxx shall immediately notify the
Company in writing of any court order or other legal process which may require
disclosure of any Confidential Information, and shall fully cooperate with the
Company, consistent with his legal obligations, in the event the Company should
decide to intervene in such proceeding or process to attempt to prohibit or
limit any disclosure of the Company's Confidential Information.
(c) REMEDIES. Xx. Xxxxxx acknowledges and agrees that the
covenants set forth in this paragraph 21 (the "Restrictive Covenants") are
reasonable and necessary for the protection of Xxxxxxxx' business interests,
that irreparable injury will result to the Company if Xx. Xxxxxx breaches of any
of the terms of said Restrictive Covenants, and that in the event of Xx.
Xxxxxx'x actual or threatened breach of any such Restrictive Covenants, the
Company will have no adequate remedy at law. Xx. Xxxxxx accordingly agrees that
in the event of any actual or threatened breach by him of any of the Restrictive
Covenants, the Company shall be entitled to immediate temporary injunctive and
other equitable relief, without bond and without the necessity of showing actual
monetary damages, subject to hearing as soon thereafter as possible. Nothing
contained herein shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened breach, including
the recovery of any damages which it is able to prove.
22. MUTUAL CONFIDENTIALITY. Xx. Xxxxxx agrees that he will keep the fact,
terms, conditions, and contents of this Agreement completely confidential and
will not publicize or disclose the fact, terms, conditions, or contents of this
Agreement in any manner, in writing or orally, to any persons, directly or
indirectly, or by or through an agent, representative, attorney, or any other
person unless required by law, regulation, or court order and except as
appropriate to interpret and enforce Xx. Xxxxxx'x rights under this Agreement.
Xx. Xxxxxx may, however, disclose the terms of this Agreement to his family, his
present attorney, or to his tax and financial advisors and accountants, as
necessary, provided that they likewise agree to keep it confidential. The
Company likewise agrees to keep the fact, terms, conditions, and contents of
this Agreement completely confidential and will not publicize or disclose the
fact, terms, conditions, or contents of this Agreement in any manner, in writing
or orally, to any persons, directly or indirectly, or by or through an agent,
representative, attorney, or any other person unless required by law,
regulation, or court order. The Company may, however, disclose the fact, terms
and conditions of this Agreement to its president, chief financial officer,
Board of Directors, attorneys, and accountants, and those officers or employees
of the Company who have a need to know all or portions of this Agreement in
order to implement its terms, or if required by law, regulation or
7
8
court order.
23. APPLICABLE LAW; INTERPRETATION. This Agreement shall be interpreted
in accordance with the laws of the State of Washington, without regard to its
conflict of laws. The language of this Agreement shall be construed as a whole
according to its fair meaning and not strictly for or against either party.
24. DISPUTE RESOLUTION. Xx. Xxxxxx and the Company shall initially seek
to resolve any claim, controversy or dispute arising out of or in connection
with this Agreement, or relating to or arising out of any other relationship or
incident between Xx. Xxxxxx and the Company, or alleging the violation of either
a statutory or common law duty, or both, through good faith mediation using a
mediator from Judicial Dispute Resolution in Seattle. If such mediation is
unsuccessful, then any such claim, controversy or dispute shall be resolved by
compulsory arbitration. Notwithstanding the provisions of this Section, the
Company may seek and obtain appropriate restraining orders and temporary or
permanent injunctions in a court proceeding without engaging in arbitration with
respect to any alleged violation of the covenants contained in Article 21. The
rules and procedures for compulsory arbitration pursuant to this Agreement are
attached to this Agreement.
25. COMPLETE AGREEMENT. This Agreement, together with the Consulting
Agreement executed contemporaneously herewith, represents and contains the
entire understanding between the parties in connection with the subject matter
of this Agreement. This Agreement shall not be modified or varied except by a
written instrument signed by Xx. Xxxxxx and the President of the Company. It is
expressly acknowledged and recognized by all parties that all prior written or
oral agreements, understandings or representations between the parties are
merged into this Agreement and the Consulting Agreement. The Xxxxxxxx Group,
Inc., shall cause the Affiliates to comply with the terms of this Agreement and
guaranties their performance in accordance with the terms of this Agreement.
26. INVALIDITY. It is understood and agreed that if any provisions of
this Agreement are held to be invalid or unenforceable, the remaining provisions
of the Agreement shall nevertheless continue to be fully valid and enforceable.
27. ASSIGNMENT. Neither party shall have the right to assign this
Agreement without the express written consent of the other party. In the event
of Xx. Xxxxxx'x death, the Company shall continue to perform its covenants under
this Agreement for the benefit of Xx. Xxxxxx'x estate and heirs, including
without limitation conferring on Xx. Xxxxxx'x estate and heirs all rights of Xx.
Xxxxxx under Section 4 and the Option Plans described therein as if Xx. Xxxxxx
were not deceased. In the event of (i) the sale in one or more related
transactions of all or substantially all of The Xxxxxxxx Group, Inc.'s assets,
(ii) the sale of assets of an Affiliate in one or more related transactions
constituting in excess of 50% of the asset value of The Xxxxxxxx Group, Inc.,
(iii) any merger or consolidation of the Xxxxxxxx Group, Inc., or a major
Affiliate following which
8
9
Xxxxx and Xxxxxx Xxxxxxxx holds directly or indirectly less than a majority of
the voting equity securities of Xxxxxxxx or such Affiliate, or (iv) any sale or
purchase of securities or other transaction, the result of which is that Xxxxx
and Xxxxxx Xxxxxxxx holds less than a majority of the voting equity securities
of The Xxxxxxxx Group, Inc., its major Affiliates or any surviving entity, then
Xxxxxxxx shall take one of the following actions, at its option: (a) require a
successor that has sufficient financial and operational capability to adequately
and faithfully satisfy the obligations called for under this Agreement for the
remaining term of this Agreement to expressly assume in writing the Company's
obligations hereunder; (b) demonstrate to Xx. Xxxxxx'x reasonable satisfaction
that the Company continues to have sufficient financial and operational
capability to adequately and faithfully satisfy the obligations called for under
this Agreement for the remaining term of this Agreement; (c) implement other
financial arrangements that will reasonably ensure the satisfaction of the
obligations called for under this Agreement for the remaining term of this
Agreement; or (d) immediately pay to Xx. Xxxxxx without discount the remaining
financial obligations of the Company under this Agreement.
28. EXECUTION. This Agreement may be executed with duplicate original
counterparts with faxed signatures, each of which shall constitute an original
and which together shall constitute one and the same document. The Company has
the corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and the undersigned officer of the Company is
authorized to execute this Agreement on the Company's behalf.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
THE XXXXXXXX GROUP, INC. XXXXX XXXXXX
By /s/ Xxxxx Xxxxxxxx
-----------------------------
Its President /s/ Xxxxx Xxxxxx
---------------------------- ----------------------------------
Date: 7/24/01 Date: 7/24/01
-------------------------- ----------------------------------
9
10
EXHIBIT A
ARBITRATION RULES AND PROCEDURES
The rules and procedures of the American Arbitration Association in
effect when any arbitration occurs shall govern the procedures of any
arbitration between the Company and Xx. Xxxxxx ("Parties"). Any arbitration
shall take place in Seattle, Washington.
A single neutral arbitrator shall conduct the arbitration hearing and
decide the issues submitted to arbitration. If within 21 calendar days of the
receipt by either Party of a written demand for arbitration from the other Party
the Parties cannot agree on a single neutral arbitrator, either Party may
request a panel of seven arbitrators experienced in commercial disputes from the
American Arbitration Association's Seattle, Washington office. The Parties shall
alternatively strike names from the panel until one arbitrator remains, who
shall then act as the single neutral arbitrator.
The Parties grant the following authority and jurisdiction to the single
neutral arbitrator. The arbitrator shall determine the lawfulness under federal,
state, and local law, whether statutory or common law, or both, of acts or
omissions, or both, that produced the complaint, controversy, or dispute subject
to arbitration. In addition, the arbitrator shall decide the appropriateness of
the Parties' acts or omissions that comprise the complaint, controversy, or
dispute submitted to arbitration, given the rights and duties under this
Agreement. Further, the arbitrator may interpret and determine the rights of the
Parties under the Agreement and any other agreement to which they are both
parties.
The single neutral arbitrator may fashion either equitable or legal
relief, or both, as limited by this provision. The arbitrator may award full
reimbursement to the prevailing Party for such out-of-pocket expenses or losses
together with any other damages to which the prevailing Party may be entitled,
including, without limitation, reasonable attorneys' fees, costs and expenses of
arbitration and back pay that the evidence supports. However, the arbitrator
shall lack any authority to grant exemplary or punitive damages. Finally, the
arbitrator may assess interest on any award at the legal rate of interest due on
judgments in Washington State.
The arbitrator's decision shall bind the Parties as a final decision
enforceable in a court of competent jurisdiction.
The prevailing Party may confirm the arbitrator's award in a court of
competent jurisdiction. If either Party refuses to satisfy an arbitration award,
then the other Party shall have the right to receive reimbursement for all of
its costs incurred to confirm that award, including a reasonable attorneys' fee.
