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EXHIBIT 10.4
Each of the following executive officers of Chaparral Network Storage,
Inc. (the "Corporation") has executed an Executive Employment and Non-Compete
Agreement with the Corporation in a form substantially identical to the form of
agreement between the Corporation and Executive attached hereto: Xxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx. The material details in which
their agreements differ from the form agreement are set forth below.
1. Xxxx Xxxxxxx, Chief Executive Officer. Xxxxxxx'x
agreement differs from the form agreement attached hereto only as follows:
Recitals
--------
Position -- Chief Executive Officer
Reports to -- Board of Directors
Section 1
---------
Position -- Chief Executive Officer
Section 3
---------
Reports to -- Board of Directors
Section 4
---------
Options -- 200,000
Section 7
---------
Vacation -- Six (6) work weeks of paid vacation
-- may accrue up to fifteen (15) work weeks of paid
vacation
2. Xxxxxxx X. Xxxxx, President and Chief Operating Officer. Xxxxx'x
agreement differs from the form agreement attached hereto only as follows:
Recitals
--------
Position -- President and Chief Operating Officer
Reports to -- Chief Executive Officer and Chairman of the Board
of Directors
Section 1
---------
Position -- President and Chief Operating Officer
Section 3
---------
Reports to -- Chief Executive Officer and Chairman of the Board
of Directors
Section 4
---------
Options -- 150,000
Section 7
---------
Vacation -- Four (4) work weeks of paid vacation
-- may accrue up to ten (10) work weeks of paid vacation
3. Xxxxx X. Xxxxxx, Executive Vice President. Xxxxxx'x agreement
differs from the form agreement attached hereto only as follows:
Recitals
--------
Position -- Executive Vice President for Engineering and
Operations
Reports to -- President
Section 1
---------
Position -- Executive Vice President for Engineering and
Operations
Section 3
---------
Reports to -- President
Section 4
---------
Options -- 150,000
Section 7
---------
Vacation -- Four (4) work weeks of paid vacation
-- may accrue up to ten (10) work weeks of paid vacation
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FORM OF
EXECUTIVE EMPLOYMENT AND NON-COMPETE AGREEMENT
THIS EXECUTIVE EMPLOYMENT AND NON-COMPETE AGREEMENT (the "Agreement"),
effective April 1, 2000, is by and between CHAPARRAL NETWORK STORAGE, INC.
("Chaparral"), a Delaware corporation, and Executive.
WHEREAS, Executive holds the position of President and Chief Operating
Officer with Xxxxxxxxx, reports to the _______________________________________
______________________, and is an integral part of Xxxxxxxxx's executive and
management operations;
WHEREAS, it is the desire of the Board of Directors of Chaparral to
assure itself of the executive and management services of Executive by employing
Executive in the position of ______________________________________; and
WHEREAS, Executive is desirous of committing himself to serve Xxxxxxxxx
pursuant to the terms provided herein; and
WHEREAS, Xxxxxxxxx is desirous of entering into a non-compete agreement
with Executive.
NOW THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties agree as follows:
1. Employment. Xxxxxxxxx agrees to employ Executive and Executive
hereby agrees to be employed as Xxxxxxxxx's _______________________________
__________, or in another position by mutual agreement of the parties and
consistent with Executive's responsibilities in those positions, to which he may
hereafter be elected or appointed during the Employment Term, as hereinafter
defined.
2. Employment Term. Executive's employment pursuant to this Agreement
shall be for a term of two (2) years commencing upon the execution of this
Agreement, unless terminated earlier pursuant to Sections 9, 10, 11, 12 or 13 of
this Agreement (the "Employment Term"). This Agreement is automatically renewed
for successive one (1) year periods, unless either party provides written notice
to the other party of an intent not to renew the Agreement, at least ninety (90)
days prior to the expiration of the Agreement.
3. Responsibilities. During the Employment Term, Executive shall render
such services to Chaparral as are reasonably required by the Board of Directors
and as may be required by virtue of the office(s) and positions held by
Executive. Executive shall report to the ______________________.
4. Compensation. As full compensation for all services rendered
pursuant to this Agreement, Xxxxxxxxx agrees to pay Executive a base salary, as
the Board of Directors may designate from time to time, at a rate of not less
than one hundred and eighty thousand dollars ($180,000) per year ("Base
Salary"), less applicable taxes and withholdings. The Base Salary shall be
subject to review by the Board of Directors annually. In addition to his Base
Salary, Executive may receive a quarterly cash bonus of up to twenty-five
percent (25%) of his Base Salary ("Quarterly Bonus") and/or additional stock
options, as determined by the Board of Directors. In addition to his Base Salary
and Quarterly Bonus, Executive may receive an annual bonus of up to
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100% of his Base Salary ("Annual Bonus"), as determined by the Board of
Directors, which Annual Bonus will be payable in the form of cash or shares of
Common Stock, at the election of Executive. The Quarterly Bonus and the Annual
Bonus are together referred to as "Bonus." Executive shall also receive a car
allowance of $500 per month ($6,000 per year). Upon the effective date of a
registration statement on Form S-1 for an initial public offering of Chaparral,
Mr. Executive will be granted an option to purchase _______ shares of Common
Stock, which option will (i) be an incentive stock option to extent allowed
under the Internal Revenue Code of 1986, as amended, (ii) have an exercise price
equal to the offering price per share in the initial public offering and (iii)
vest in three equal annual installments on the first, second and third
anniversary date of the date of grant.
5. Expenses. During the Employment Term, Xxxxxxxxx shall reimburse
Executive for his reasonable travel, business entertainment, and other business
expenses incurred in the performance of his duties, subject to the rules and
regulations adopted by Xxxxxxxxx for the handling of such business expenses.
6. Other Benefits. During the Employment Term, Chaparral shall pay for
Executive to have the same insurance and other benefits that Chaparral makes
available to other similarly situated employees and/or executives, such benefits
shall include, but not be limited to, a stock option plan. Chaparral shall
provide such benefits pursuant to the provisions of the agreements, policies,
etc. maintained by Chaparral regarding those individual benefits.
7. Vacations. Executive shall be entitled to four (4) workweeks of paid
vacation each year, or such additional number of days or weeks as may be
determined by the Board of Directors. Executive shall accrue such vacation days
on the first day of the calendar year. Executive shall be permitted to accrue up
to __________________ of paid vacation. Upon reaching this maximum accrual,
Executive will receive compensation for any accrued, but unused vacation days so
that his accrued vacation days will not exceed _________________. Upon his
termination of employment from Chaparral, Executive will receive compensation at
his then regular rate of pay for his accrued, but unused paid vacation days.
8. Confidentiality Covenant. In addition to the provisions set forth in
Sections 14 and 15, Executive agrees while employed by Xxxxxxxxx and thereafter
for a period of two (2) years not to, directly or indirectly, disclose or use to
the detriment of Chaparral, or for the benefit of any other person or firm, any
Confidential Information and Materials (defined below). Furthermore, Executive
shall deliver promptly to Chaparral upon termination of employment, or at any
time Chaparral may so request, all Confidential Information and Materials
relating to the business of Xxxxxxxxx then possessed or under the control of
Executive.
Executive acknowledges and agrees that all Confidential Information and
Materials shall, to the extent possible, be considered works made for hire for
Chaparral under applicable copyright law. To the extent any Confidential
Information and Materials are not deemed to be a work made for hire, Executive
hereby assigns to Chaparral any rights he may have or may acquire in such
Confidential Information and Materials as they are created, throughout the
world, in perpetuity. Further, Executive hereby waives any and all moral rights
he may have in such Confidential Information and Materials. Notwithstanding the
foregoing, Chaparral acknowledges that it shall have no right to inventions or
other material for which no equipment, supplies, facilities or
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Confidential Information and Material of Chaparral are used and which are
developed entirely on Executive's own time and (a) do not relate directly to the
business of Chaparral or (b) do not result from any work performed by Executive
under this Agreement.
For purposes of this Agreement, "Confidential Information and
Materials" refers to all information belonging to or used by Chaparral or
Chaparral's clients relating to internal operations, procedures and policies,
finances, income, profits, business strategies, pricing, billing information,
compensation and other personnel information, client contacts, sales lists,
employee lists, technology, software source codes, programs, costs, marketing
plans, developmental plans, computer programs, computer systems, inventions,
developments, personnel manuals, computer program manuals, programs and system
designs, and trade secrets of every kind and character, whether or not they
constitute a trade secret under applicable law and whether developed by
Executive during or after business hours.
9. Termination by Reason of Incapacity. If during the Employment Term,
Executive is unable to perform the essential duties of his positions with
Chaparral by reason of any physical or mental condition for a continuous period
of six (6) months, then Chaparral, in its sole and absolute discretion, may
consider such condition to be permanent and may, upon thirty (30) days written
notice to Executive, terminate Executive's employment hereunder, but Executive
shall continue to be eligible to receive any benefits to which he may be
entitled under the terms of any long-term disability plan for Chaparral
employees and/or executives. In the event of such incapacity, Xxxxxxxxx's
termination of Executive will be considered a "Termination by Reason of
Incapacity," and Executive shall immediately be paid all accrued Base Salary,
all accrued vacation time, any unpaid Bonus and any reasonable and necessary
business expenses incurred by Executive in connection with his duties hereunder,
all to the date of termination. In addition, Xxxxxxxxx shall pay Executive the
difference between his Base Salary and Bonus, at the rate existing at the time
of such termination, and the amount he receives from any long term disability
insurance plan, for a period of one (1) year following such termination.
Executive shall receive such payments on Chaparral's designated payday
(currently on the 1st and 15th of each calendar month). Notwithstanding the
foregoing, Xxxxxxxxx's obligation to Executive for severance compensation under
this section shall immediately cease if Executive is in violation of the
provisions of Sections 8, 14 and/or 15 hereof.
10. Termination by Reason of Death. The Employment Term, unless
terminated earlier pursuant to this Agreement, shall automatically terminate on
the last day of the month in which Executive's death occurs. If Executive's
employment with Xxxxxxxxx terminates pursuant to this subsection, the
termination shall be considered a "Termination by Reason of Death," and
Executive's heirs shall immediately be paid all accrued Base Salary, all accrued
vacation time, any unpaid Bonus and any reasonable and necessary business
expenses incurred by Executive in connection with his duties hereunder, all to
the date of termination. In addition, Xxxxxxxxx shall pay Executive's heirs
Executive's Base Salary and Bonus, at the rate existing at the time of such
termination, for a period of one (1) year following such termination.
Executive's heirs shall receive such payments on Xxxxxxxxx's designated payday
(currently on the 1st and 15th of each calendar month)
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11. Termination for Cause. Termination for Cause shall occur in the
event that Executive:
a. commits any fraudulent or felonious act in respect to duties to
Chaparral or shall, with respect to his employment, commit an act of moral
turpitude of such degree that it bears upon his ability to carry out his
functions under this Agreement; or
b. commits any willful malfeasance or gross negligence (in the
discharge of duties to Chaparral) having a material adverse effect on Chaparral.
Upon the Termination for Cause of Executive's employment, Executive
shall immediately be paid all accrued Base Salary, all accrued vacation time,
any unpaid Bonus and any reasonable and necessary business expenses incurred by
Executive in connection with his duties hereunder, all to the date of
termination. In addition, the parties' obligations hereunder, except as set
forth in Sections 8, 14, 15 and 17, hereof, shall terminate; provided, however,
that rights and remedies accruing prior to such termination or arising out of
the breach of this Agreement shall survive.
12. Termination Other Than for Cause. A "Termination Other Than for
Cause" shall include Xxxxxxxxx's termination of Executive's employment with
Chaparral for any reason or for no reason, excluding a Termination for Cause, a
Termination Upon a Change in Control, a Termination by Reason of Incapacity and
a Termination by Reason of Death. Chaparral is required to give Executive ninety
(90) days notice of its termination of his employment under this section. A
"Termination Other Than for Cause" shall also include termination by Executive
within thirty (30) days following the occurrence of any of the following
(without Executive's express written consent):
a. the assignment to Executive by Xxxxxxxxx of duties inconsistent
with, or a substantial diminution in the nature or status of, Executive's
responsibilities;
b. material reduction by Chaparral in Executive's compensation and
benefits or perquisites (unless all Chaparral employees are subject to an across
the board reduction in compensation and/or benefits);
c. a relocation of Chaparral's principal offices to a location
outside a 50 mile radius of Longmont, Colorado, or Executive's relocation to any
place other than the principal office of Chaparral, except for reasonably
required travel by Executive on Xxxxxxxxx's business; or
d. any material breach by Chaparral of any provision of this
Agreement, if such material breach has not been cured within thirty (30) days
following written notice by Executive to Chaparral of such breach setting forth
with specificity the nature of the breach.
Upon a Termination Other Than for Cause, Executive shall immediately be
paid all accrued Base Salary, all accrued vacation time, any unpaid Bonus and
any reasonable and necessary business expenses incurred by Executive in
connection with his duties hereunder, all to the date of termination. In
addition, Executive will receive his Base Salary and Bonus, at the rate existing
at the time of such termination, and Executive shall be entitled to receive
benefits, for a period of one (1) year following termination. Executive shall
receive such payments on Chaparral's designated payday (currently on the 1st and
15th of each calendar month). Upon termination pursuant to this
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Section 12, any options to purchase common stock of the Company held by
Executive will automatically be vested and exercisable for a period of one (1)
year following termination and restrictions on any shares of restricted stock
held by Executive shall immediately lapse. Notwithstanding the foregoing,
Xxxxxxxxx's obligation to Executive for severance compensation under this
section shall cease immediately if Executive is in violation of the provisions
of Sections 8, 14 and/or 15 hereof.
13. Termination upon a Change in Control. In the event of a Termination
Upon a Change in Control (as defined below), Executive shall immediately be paid
all accrued Base Salary, all accrued vacation time, any unpaid Bonus and any
reasonable and necessary business expenses incurred by Executive in connection
with his duties hereunder, all to the date of termination. In addition,
Executive shall immediately be paid a lump sum payment of an amount equal to two
(2) years Base Salary and Bonus, at the rate existing at the time of such
termination, and Executive shall be entitled to receive fully paid benefits for
a period of two (2) years following termination. Executive shall receive such
payments on Chaparral's designated payday (currently on the 1st and 15th of each
calendar month). Each option outstanding at the time of a Change in Control, but
not otherwise fully-vested, shall be accelerated for twelve (12) months.
However, if the successor company terminates Executive for any reason within
twelve (12) months from the date of the Change of Control or the successor
company does not adopt the plan in its entirety or convert to a plan of
equivalent value, then all options will automatically be 100% vested, as of the
date of the Change of Control.
Notwithstanding the foregoing, (a) solely in the event of a Termination
Upon Change in Control, the aggregate amount of severance compensation paid to
Executive under this Agreement or otherwise shall not include any amount that
Chaparral is prohibited from deducting for federal income tax purposes by virtue
of Section 280G of the Internal Revenue Code or any successor provision; and (b)
Chaparral's obligation to Executive for severance compensation under this
section shall cease immediately if Executive is in violation of the provisions
of Sections 8, 14 and/or 15 hereof.
"Termination Upon a Change in Control" shall mean a termination by
Xxxxxxxxx or any successor thereto of Executive's employment with Chaparral or
such successor for any reason or a termination by Executive for Good Reason (as
defined below) of Executive's employment with Chaparral or any successor thereto
within twelve (12) months from the date on which any of the following occurs:
a. any "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934 (the "1934 Act")), other
than a trustee or other fiduciary holding securities under an employee benefit
plan of Chaparral, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of greater than fifty percent
(50%) of the then outstanding voting stock of Chaparral; or
b. at any time during any period of three consecutive years (not
including any period prior to the effective date of this Agreement), individuals
who at the beginning of such period constitute the Board (and any new director
whose election by the Board or whose nomination for election by Xxxxxxxxx's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such
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period or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority thereof; or
c. the stockholders of Chaparral approve a merger or consolidation
of Chaparral with any other corporation, other than a merger or consolidation
which would result in the voting securities of Chaparral outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least 80% of
the combined voting power of the voting securities of Chaparral or such
surviving entity outstanding immediately after such merger or consolidation or
an agreement for the sale or disposition by Chaparral of all or substantially
all of Chaparral's assets.
"Good Reason" shall include, but not be limited to, any of the
following (without Executive's express written consent):
a. the assignment to Executive by Xxxxxxxxx of duties inconsistent
with, or a substantial diminution in the nature or status of, Executive's
responsibilities immediately prior to a Change in Control other than any changes
primarily attributable to the fact that Xxxxxxxxx's securities are no longer
publicly traded;
b. a material reduction by Chaparral in Executive's compensation
and benefits or perquisites (unless all Chaparral employees are subject to an
across the board reduction in compensation and/or benefits), as in effect on the
date of a Change in Control;
c. a relocation of Chaparral's principal offices to a location
outside a 50 mile radius outside of Longmont, Colorado, or Executive's
relocation to any place other than the principal offices of Chaparral offices of
Chaparral, except for reasonably required travel by Executive on Chaparral's
business;
d. any material breach by Chaparral of any provision of this
Agreement, if such material breach has not been cured within thirty (30) days
following written notice by Executive to Chaparral of such breach setting forth
with specificity the nature of the breach; or
e. any failure by Xxxxxxxxx to obtain the assumption and
performance of this Agreement by any successor (by merger, consolidation or
otherwise) or assign of Chaparral.
14. Covenant Not to Compete. In consideration of this Agreement,
Executive agrees that he will not, during the term of his employment and for one
(1) year after his date of termination, directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner, corporate officer,
director, investor, or financier, or in any other individual or representative
capacity:
a. participate in or consult with any business in the world, that
(i) is in competition with Xxxxxxxxx's business as it exists at the date of his
termination, or of the products or services offered by Xxxxxxxxx in the world,
or (ii) Chaparral has requested and received confidential information relating
to the acquisition of such business by Chaparral within the four (4) month
period prior to the termination of Executive's employment with the Company; or
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b. engage in any acts or activities, which would interfere with or
harm any business relationship Chaparral may have with any then current
customer, supplier, employee, or investor.
An investment by Executive of up to 2% of the outstanding equity in a
publicly traded corporation shall not constitute a violation of this Section 14.
Executive agrees that this covenant not to compete is reasonable as to
geographic scope and duration. Executive agrees that this non-competition
agreement supersedes any non-competition agreement Executive may have executed
before this date. Notwithstanding the foregoing, Executive shall not be
prohibited, during the one-year period following termination of his employment
agreement and while this non-compete restriction is in effect, from working in
any capacity in a company which is not a competitor of Chaparral.
15. Further Restrictions. Executive covenants that during his
employment and for one (1) year after his date of termination, he will not
directly or indirectly:
a. call on or solicit, or attempt to call on or solicit, or assist
in the solicitation of, any of the past, present or prospective customers or
suppliers of Chaparral in any manner which is competitive with the business of
Chaparral as it is operated as of the termination of this Agreement;
b. induce, or attempt to induce, any employee of Chaparral to
terminate his or her employment, or hire away, or attempt to hire away, any
employee of Xxxxxxxxx;
c. induce, or attempt to induce, any present or future supply or
service resource from Chaparral; or
d. knowingly engage in any act or activity, which would interfere
with or harm any business relationship Chaparral may have with any customer,
employee, principle, or supplier. The mere act of termination of his employment
status shall not in and of itself constitute harm to Chaparral.
16. Remedies for Breach. Executive acknowledges that the legal remedies
for breach of the covenants contained in Sections 8, 14 and 15 may be
inadequate, and therefor agrees that, in addition to any or all other remedies
available to Chaparral in the event of a proven breach of any covenant contained
in Sections 8, 14 and 15, Chaparral may seek to:
a. obtain preliminary and permanent injunctions against any and all
such actions; and
b. recover from Executive monetary damages to Chaparral arising
from such breach.
If Xxxxxxxxx brings such an action and does not prevail, Executive
shall recover any monetary damages, his attorneys' fees and costs associated
with defending against the action. THE PARTIES HAVE CAREFULLY CONSIDERED ALL OF
SECTIONS 8, 14, 15 AND 16 AND AGREE THAT THEY REPRESENT A PROPER BALANCING OF
THEIR INTERESTS AND
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WILL NOT PREVENT Executive FROM EARNING A LIVING AFTER TERMINATION OF HIS
EMPLOYMENT.
Additionally, if Executive violates Section 8, 14, or 15 of this
Agreement during any time that he is receiving severance payments from Chaparral
under Section 9, 11, 12 or 13, Chaparral shall be entitled to discontinue paying
Executive any additional severance pay or benefits, and Executive shall be
required to pay back to Chaparral the lesser of (i) two months of severance
payments or (ii) severance payments received to date.
17. Indemnification. Xxxxxxxxx agrees to defend, indemnify and save
Executive harmless from any claims, proceedings, actions, or causes of actions
brought against him in his capacity as an employee of Chaparral. This
indemnification provision does not apply where the proceeding, claim, action, or
cause of action brought against Executive is as a result of an event for which
Executive is terminated for cause, pursuant to Section 11 of this Agreement.
Xxxxxxxxx agrees to indemnify Executive for the above claims no matter when such
claims are filed or alleged.
18. Release of Claims. Prior to Executive's receipt of any severance
payment referenced in Section 9, 11, 12, or 13, of this Agreement, Executive
shall be required to sign an agreement releasing Chaparral from any and all
claims related to his employment or his termination of employment from
Chaparral. Such release shall include, but not be limited to, claims for
wrongful discharge; claims for discrimination in employment, including claims
under federal or state statute, rule or regulation; claims under the Americans
with Disabilities Act; claims under the Age Discrimination in Employment Act;
claims under the Older Workers Benefit Protection Act; claims under Title VII of
the 1964 Civil Rights Act; claims for violation of any fair or unfair employment
practices act or law; claims for unpaid wages, either regular or overtime,
compensation, benefits or remuneration; claims for defamation, libel, slander,
and other negligent or intentional torts; claims for invasion of privacy; claims
for outrageous conduct; claims for intentional interference with express or
implied contract concerning employment; claims for breach of express or implied
employment contract; claims for breach of express or implied covenant of good
faith and fair dealing; claims for violation of Colorado Revised Statute Section
8-2-101, et seq.; and claims for discrimination on the basis of a prohibited
basis under Title VII of the Civil Rights Act of 1964 and Colorado's
Anti-Discrimination and Unfair Employment Practices Act. If Executive does not
sign and execute the release prepared by Xxxxxxxxx, Executive shall not be
entitled to any severance pay or benefits as set forth in Section 9, 11, 12, and
13 of this Agreement. After Xxxxxxxxx presents Executive with the release
agreement, Executive shall have twenty-one (21) days within which to consider
whether to sign the release agreement. During this time period, Xxxxxxxxx
advises Executive to consult with an attorney regarding the release agreement.
After signing the release agreement, Executive shall have seven (7) days within
which to notify Chaparral that he wants to void the release agreement. Chaparral
is not required to make any severance payments, pursuant to Section 9, 11, 12 or
13, until the expiration of this seven (7) day period.
19. Amendments. This Agreement may be amended or modified from time to
time, but only by written instrument executed by all parties hereto. No
variations, modifications, or changes herein or hereof shall be binding upon any
party hereto except as set forth in such a written instrument.
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20. Notices. All notices, demands, or requests provided for or
permitted to be given pursuant to this Agreement must be given in writing,
unless otherwise specified, and shall be deemed to have been properly given,
delivered, or served by depositing the same in the United States mail, postage
prepaid, certified or registered mail, with deliveries to be made to the
following addresses:
If to Executive:
If to Chaparral: Chaparral Network Storage, Inc.
0000 X. Xxxxxxx Xx.
Xxxxxxxx, Xxxxxxxx 00000.
Either party may change such party's address for notices by notice
given pursuant to this Section 20.
21. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Colorado.
22. Severability. If an arbitrator, or Court, determines that one or
more provisions of this Agreement is/are invalid, the invalidity of any one or
more of such provisions does not affect or limit the enforceability of the
remaining provisions or Sections of this Agreement. If, in any arbitration or
judicial proceeding, an arbitrator or court, as applicable, shall refuse to
enforce one or more of the covenants or agreements contained in this Agreement
because the duration thereof is too long, the scope thereof is too broad or some
other reason, for the purpose of such arbitration or proceeding, the arbitrator
or court, as applicable, may reduce the duration or scope to the extent
necessary to permit the enforcement of such obligations and restrictions.
23. Arbitration. Any and all disputes which may arise during the course
of this Agreement, or as a result of its termination or alleged breach by either
party (except for equitable or injunction actions or claims by Executive for
workers' compensation or unemployment compensation) shall be resolved by
arbitration. Such arbitration shall be held at Denver, Colorado before a single
arbitrator whose judgment shall be final and enforceable in either the District
Courts for the City and County of Denver or Boulder counties or the United
States District Court for Colorado. Either party may commence arbitration by the
filing of a demand and service of same under the notice provisions of Section
20. It is presumed that the forum for the arbitration will be the American
Arbitration Association at Denver unless the parties mutually agree to use
another arbitration service. The arbitrator shall be entitled, after
consideration of all facts and issues presented, to award the prevailing party
its costs, including attorneys fees, if the arbitrator feels such award is
appropriate under the circumstances.
24. Headings. The headings in this Agreement are solely for convenience
of reference and shall not affect its interpretation.
25. No Waiver. No failure on the part of any party hereto at any time
to require the performance by any other party of any term of this Agreement
shall be taken or held to be a
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waiver of such term or in any way affect such party's right to enforce such
term, and no waiver on the part of either party of any term of this Agreement
shall be taken or held to be a waiver of any other term hereof or the breach
thereof.
26. Entire Agreement. This entire Agreement embodies the complete and
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes all prior negotiations, whether written or oral,
relating to the subject matter hereof. To the extent that this Agreement
conflicts with any previous employment agreement entered into between Chaparral
and Xxxxx, the provisions of this Agreement shall control.
27. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed shall be an original but all of
such counterparts shall together constitute but one and the same instrument.
EXECUTED AND EFFECTIVE as of the date first written above.
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Executive
CHAPARRAL NETWORK STORAGE, INC.
By:
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Xxxx X. Xxxxxxx, Chief Executive Officer and
Chairman of the Board of Directors
By:
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Xxxxx X. Xxxxxx, Executive Vice President
Board of Directors Member
By:
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Xxxxxxx X. Xxxxx President and Chief
Operating Officer and
Board of Directors Member
By:
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X. Xxxxx Xxxxxxx, Board of Directors Member
By:
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Xxxxxx Xxxxxx Board of Directors Member
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