EMPLOYMENT AGREEMENT
EXHIBIT
10.1
This Employment Agreement is made as of
the 28th day of January, 2010 by and between Occidental Petroleum Corporation, a
Delaware corporation (hereinafter referred to as “Employer”), and Xxxxxxx X.
Xxxxxx (hereinafter referred to as “Employee”).
WITNESSETH
WHEREAS, Employee, since May 1, 1994,
has served as an officer of Employer, most recently pursuant to an agreement
between Employee and Employer dated as of October 9, 2008, which expired January
12, 2010 (the “Prior Agreement”); and
WHEREAS, the parties desire to continue
the employment relationship.
NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein, Employer and Employee hereby agree to
continue Employee’s employment upon the following terms and
conditions:
1. Duties. Employee
shall perform the duties of President and Chief Financial Officer or shall serve
in such other capacity and with such other duties for Employer as the Chief
Executive Officer of Employer may direct. In performing such duties, Employee
will comply with Employer’s Code of Business Conduct and Corporate Policies, as
the same may be amended from time to time.
2. Term of
Employment. The term of employment shall be for a period of
five (5) years, commencing as of the date hereof and ending midnight
January 27, 2015, unless terminated prior thereto in accordance with the
provisions of this Agreement, or unless extended by mutual agreement in
accordance with Paragraph 8 hereof.
3. Compensation. For
the services to be performed hereunder, Employee shall be compensated by
Employer at the base pay rate of not less than seven hundred twenty thousand
dollars ($720,000) per annum, payable semi-monthly. The minimum
salary hereunder shall be automatically adjusted to the level of any increase in
annual compensation as the Employer may determine during the term of this
Agreement. Salary increases may be paid, at the discretion of the Compensation
Committee, in cash or common stock (or restricted stock units) of Employer, or a
combination thereof.
4. Participation in Benefit and
Executive Programs. Employee shall be eligible to participate
in all benefit programs and under the same terms and conditions as are generally
applicable to salaried employees and senior executives of Employer during the
term of this Agreement. Employee shall also be eligible to
participate in (i) Employer’s 2005 Long-Term Incentive Plan and (ii) any other
equity-based compensation plan maintained or created by Employer during the term
of this Agreement (the “Long-Term Incentive Plans”), as long as Employer
continues such plans during the term of this Agreement, and to receive awards or
grants under such Plans at Employer’s sole discretion. Employee also shall be
entitled to participate in Employer’s annual incentive plan for senior
executives, as in effect from time to time. Bonus awards shall be
paid in accordance with the terms of such plan. Employee shall
be
- 1
-
entitled
to a total of six (6) weeks of paid vacation in each contract year and shall not
be subject to the ceiling on vacation accruals contained in OPC Policy
06:45:80.
5. Exclusivity of
Services. Employee agrees to devote his full-time, exclusive
services to Employer hereunder, except for such time as Employee may require in
connection with his personal investments.
6. Termination.
(a) Retirement with the Consent of
Employer. If Employee has satisfied the age and service
requirements to be eligible for retiree medical benefits under the Occidental
Petroleum Corporation Medical Care Plan in effect on the date of this Agreement,
Employee may voluntarily retire, and such retirement shall be deemed to be
retirement with the consent of Employer and not be deemed to be a breach of this
Agreement, so long as Employer is provided at least ninety (90) days’ notice of
any retirement.
Any performance-based long-term
incentive award or portion of such an award that has vested based on the terms
of the award at the time of Employee’s termination of employment pursuant to
this Paragraph 6(a) shall be paid at the time and in the manner provided for
under the terms of such award. In addition, promptly in connection
with Employee’s retirement, the Executive Compensation and Human Resources
Committee of Employer’s Board of Directors, as the Administrator of Long-Term
Incentive Plans, shall consider whether to approve cash payments to Employee
with respect to the portion of such awards that has not vested based on the
terms of the award at the time of Employee’s termination. Payment
with respect to such awards, if any, shall be equal in value to the amounts
Employee would have received with respect to such awards, and shall be made at
the time such awards would have been settled, had Employee remained employed by
Employer. If the Committee decides not to approve a cash payment with
respect to the non-vested awards, the Committee shall promptly provide to the
Employee, in writing, the reasons for its decision. Any dispute over
such payment will be resolved by arbitration as provided in Paragraph
13.
(b) Cause. Notwithstanding
the term of this Agreement, Employer may discharge Employee and terminate this
Agreement without severance or other pay upon thirty (30) days’ written notice
or pay in lieu of such notice for material cause, including without limitation,
(i) breach of any legal duty to Employer, or (ii) conduct constituting moral
turpitude or conviction of a crime which may diminish Employee’s ability to
effectively act on the Employer’s behalf or with or on behalf of
others. Employer shall give Employee notice of such cause and
Employee shall have thirty (30) days to cure such breach.
(c) Incapacity. If,
during the term of this Agreement, Employee is incapacitated from performing the
essential functions of his job pursuant to this Agreement by reason of illness,
injury, or disability, Employer may terminate this Agreement by at least one
week’s written notice to Employee, but only in the event that such conditions
shall aggregate not less than one-hundred eighty (180) days during any twelve
(12) month period. If at the time notice is given, Employee has satisfied the
age and service requirements to be eligible for retiree medical benefits under
the Occidental Petroleum Corporation Medical Care Plan in effect on
the
- 2
-
date of
this Agreement, then the Employee will be deemed to have retired with the
consent of Employer.
(d) Retirement at the Request of
Employer. Employer may at any time terminate the employment of
Employee without cause or designate a termination for cause as a termination
without cause, and in such event, if Employee has satisfied the age and service
requirements to be eligible for retiree medical benefits under the Occidental
Petroleum Corporation Medical Care Plan in effect on the date of this Agreement,
the Employee will be deemed to have retired with the consent of the
employer. Employer shall, in lieu of continued employment, compensate
Employee in an amount equal to two (2) times the sum of Employee’s highest
annual base salary. Such amount shall be payable in equal
semi-monthly installments (less appropriate deductions for applicable taxes and
the cost of any medical or dental coverage) over two (2) years, beginning with
the first pay period following the date of Employee’s termination (the
“Compensation Period”).
In the event Employee dies during the
Compensation Period, any remaining installment payments due will be paid in a
lump sum to Employee’s estate. Such amount shall be paid as soon as
administratively feasible and in no event later than 90 days following the date
of Employee’s death.
In addition, Employee shall be
entitled to the following:
(i) During
the Compensation Period, in addition to any right to additional or accelerated
vesting under the terms of the applicable awards or Long-Term Incentive Plan,
Employee shall continue to vest in all stock options, stock appreciation rights,
restricted stock and restricted stock units (other than performance-based awards
described in the following paragraph) previously granted to Employee under the
Long-Term Incentive Plans, as if Employee had continued as a full-time employee
of Employer. Employee shall continue to be eligible to exercise all
stock options and stock appreciation rights that are or become exercisable
during the Compensation Period, provided that no such awards may be exercised
after the earlier of (I) the latest date on which the award could have expired
pursuant to its terms and (II) ten (10) years after its original grant
date.
(ii) Any
performance-based long-term incentive award or portion of such an award
previously granted to Employee under the Long-Term Incentive Plans that has
vested at the time of Employee’s termination of employment pursuant to the terms
of the award shall be paid at the time and in the manner provided for under the
terms of such award. In addition, Employee shall receive cash
payments with respect to the non-vested portion of any such awards, based on
Employer’s actual achievement with respect to the applicable performance-based
vesting criteria. Payments with respect to non-vested awards shall be
equal in value to the amounts Employee would have received with respect to such
awards had he not been requested to retire, and shall be made at the time such
awards would have been settled, had Employee remained employed by
Employer.
(iii) During
the Compensation Period, Employee shall be entitled to continued coverage (at
Employer’s cost) under any general liability insurance policy
maintained
- 3
-
by
Employer for the benefit of Employee at the time of Employee’s termination of
employment on the same terms and conditions as are applicable to senior
executives of Employer generally.
(iv) During
the Compensation Period, Employee and his spouse shall continue to be eligible
to participate in Employer’s dental plan, as in effect from time to time, at the
active participant rate, but on an after-tax basis.
(v) Within
90 days following the end of each Payout Period (as defined below), Employee
shall receive a lump sum payment equal to the aggregate employer-provided
benefit Employee would have accrued during such Payout Period under the
Occidental Petroleum Corporation Savings Plan (the “Savings Plan”), the
Occidental Petroleum Corporation Retirement Plan and the Occidental Petroleum
Corporation Supplemental Retirement Plan II (or any successor plan to any of the
foregoing) assuming (I) Employee contributed the maximum elective contributions
permissible under the Savings Plan and (II) a rate of compensation equal to the
cash severance paid to Employee during such Payout Period pursuant to this
Paragraph 6(d). In addition, within 90 days following the end of each
Payout Period, Employee shall receive a lump sum payment equal to the value (as
determined in good faith by Employer) of continued participation during such
Payout Period in any employee benefit plans in which Employee is participating
at the time of his termination not otherwise described above in this Paragraph
6(d) (but only to the extent such plans continue to be available to salaried
employees and senior executives during such Payout Period), which payment shall
be in lieu of such continued participation.
For purposes of this Paragraph
6(d)(v), a “Payout Period” shall mean the portion of each calendar year
beginning or ending within the Compensation Period that falls within the
Compensation Period. Each Payout Period shall end on December 31 of
the calendar year, except that if the Compensation Period ends during a calendar
year, the final Payout Period shall end on the last day of the Compensation
Period.
(e) No Other
Benefits. Except as expressly provided above or under the
terms of any plan, program, arrangement or agreement covering Employee,
following Employee’s termination of employment, Employee shall not be entitled
to participate in any employee benefit plans or programs offered by
Employer.
(f) Termination of
Employment. For purposes of this Agreement, the date of
Employee’s termination of employment or retirement shall be the date of
Employee’s “separation from service” within the meaning of Section 409A
(“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”)
and Treas. Reg. § 1.409A-1(i) (or successor provisions) and, for purposes
of this Agreement, references to a “termination,” “termination of employment” or
like terms shall mean “separation from service.” For this purpose,
Employee shall have a separation from service if he ceases to be an employee of
Employer and all affiliates with whom Employer would be considered a single
employer under Section 414(b) or 414(c) of the Code. In addition, for
this purpose, Employee shall have a separation from service if it is reasonably
anticipated that no further services shall be performed by Employee, or that the
level of services Employee shall perform shall permanently decrease to no more
than 20 percent of the average level of services performed by Employee over the
immediately preceding 36-month period.
- 4
-
7. Confidential
Information. Employee agrees that he will not divulge to any
person, nor use to the detriment of Employer or any of its affiliates or
subsidiaries, nor use in any business or process of manufacture competitive with
or similar to any business or process of manufacture of Employer or any of its
affiliates or subsidiaries, at any time during employment by Employer or
thereafter, any trade secrets or confidential information obtained during the
course of his employment with Employer, without first obtaining the written
permission of Employer.
Employee agrees that, at the time of
leaving the employ of Employer, he will deliver to Employer, and not keep or
deliver to anyone else, any and all credit cards, notes, notebooks, memoranda,
documents and, in general, any and all material relating to Employer’s business,
including copies therefor, whether in paper or electronic format.
8. Modification. This
Agreement and the related indemnification agreement between Employee and
Employer, together with the plans, programs, arrangements and agreements in
which Employee currently participates or is eligible or becomes eligible to
participate, as they may be amended from time to time in accordance with their
terms, contains all the terms and conditions agreed upon by the parties hereto,
and no other agreements, oral or otherwise, regarding the subject matter of this
Agreement shall be deemed to exist or bind either of the parties
hereto. This Agreement cannot be modified except by a subsequent
writing signed by both parties.
9. Prior
Agreement. This Agreement supersedes and replaces any and all
previous employment agreements between the parties.
10. Severability. If
any provision of this Agreement is illegal and unenforceable in whole or in
part, the remainder of this Agreement shall remain enforceable to the extent
permitted by law.
11. Governing
Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California. In the event
that any ambiguity or questions of intent or interpretation arise, no
presumption or binder of proof shall arise favoring or disfavoring the Employer
by virtue of authorship of this Agreement and the terms and provisions of this
Agreement shall be given their meaning under law.
12. Assignment. This
Agreement shall be binding upon Employee, his heirs, executors and assigns and
upon Employer, its successors and assigns.
13. Arbitration. In
consideration for entering into this Agreement and for the position,
compensation, benefits and other promises provided hereunder, the Employee and
Employer agree to be bound by the arbitration provisions attached hereto as
Attachment 1 and incorporated herein by this reference.
14. Section 409A
Compliance.
(a) The
intent of the parties is that payments and benefits under this Agreement comply
with Section 409A and the regulations and guidance promulgated
thereunder,
- 5
-
to the
extent applicable, and, accordingly, to the maximum extent permitted, this
Agreement shall be administered and interpreted to be in compliance therewith,
to the extent applicable.
(b) In
the event Employee is a specified employee (within the meaning of Section 409A
and Treas. Reg. § 1.409A-1(i) (or successor provisions) and as determined
pursuant to any rules adopted for such purposes by Employer) as of the date of
retirement or termination, then with regard to any reimbursement or payment or
the provision of any benefit under this Agreement (including, without
limitation, Paragraph 6) that is considered deferred compensation under Section
409A payable on account of a “separation from service” (as distinguished from,
for instance, at a specified time or fixed schedule as described under Treas.
Reg. § 1.409A-3(a)(4) and -3(i)) and that is not exempt from Section 409A as
involuntary separation pay or a short-term deferral (or otherwise), such
reimbursement, payment or benefit shall be paid or provided at the date which is
the earlier of (i) the expiration of the six (6)-month period measured from the
date of such “separation from service” of Employee, and (ii) as soon as
administratively feasible and in no event later than 90 days following the date
of Employee’s death (the “Delay Period”)
(unless, in the case of any benefit subject to the Delay Period, Employer and
Employee agree that Employee shall be charged for receiving such benefit during
the Delay Period, at a fair market value price, in which case Employee shall
subsequently be reimbursed by Employer for such charge at the end of the Delay
Period). Upon the expiration of the Delay Period, all payments and
benefits delayed pursuant to this Paragraph 14(b) (whether they would have
otherwise been payable in a single sum or in installments in the absence of such
delay) shall be paid or reimbursed to Employee in a lump sum, and any remaining
payments and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.
(c) With
regard to any provision herein that provides for reimbursement of costs and
expenses or in-kind benefits (including, without limitation, Paragraphs 4 and
6(e)), the provision of such payment or benefit shall comply with the
requirements of Treas. Reg. § 1.409A-3(i)(1)(iv) (or any successor provision)
for reimbursement and in-kind benefit plans, to the extent
applicable. For this purpose, (i) the amount of expenses eligible for
reimbursement, or benefits provided, in one calendar year shall not affect the
expenses eligible for reimbursement, or benefits to be provided, in any other
calendar year, (ii) the reimbursement of any expense shall be made promptly, but
in any event no later than the last day of the calendar year next following the
calendar year in which the expense was incurred, and (iii) the right to any
reimbursement or benefit shall not be subject to liquidation or exchange for any
other benefit.
- 6
-
(d) No
amount that is subject to Section 409A shall be paid in 2010 under this
Agreement that would not have been paid in 2010 under the Prior Agreement and
Section 409A.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement the day and year first above
written.
|
OCCIDENTAL
PETROLEUM CORPORATION
|
||||
|
By:
|
/s/
XXX X. XXXXX
|
|||
|
Xx.
Xxx X. Xxxxx
|
||||
|
Chairman
of the Board and Chief Executive Officer
|
||||
|
EMPLOYEE:
|
||||
|
/s/
XXXXXXX X. XXXXXX
|
||||
|
Xxxxxxx
X. Xxxxxx
|
||||
- 7
-
|
ATTACHMENT
1
|
ARBITRATION
PROVISIONS ("Provisions")
Incorporated
by Reference into and Made a Part of the
Agreement,
dated January 28, 2010 (the "Agreement"), between
Occidental
Petroleum Corporation (the "Employer")
and
Xxxxxxx X. Xxxxxx (the "Employee")
In recognition of the fact that
differences may arise between the Employer and the Employee arising out of or
relating to certain aspects of the Employee's employment with the Employer or
the termination of that employment, and in recognition of the fact that
resolution of any differences in the courts is rarely timely or cost-effective
for either party, the Employer and Employee have agreed to the incorporation of
the Provisions into the Agreement in order to establish and gain the benefits of
a speedy, impartial and cost-effective dispute resolution procedure. By so
doing, the Employer and the Employee mutually agree to arbitrate Claims (as
defined below) and each knowingly and voluntarily waive their rights before a
jury. Each party's promise to resolve Claims (as defined below) by arbitration
in accordance with these Provisions is consideration for the other party's like
promise, in addition to any other consideration.
1. Claims
1.1 Except
as provided in paragraph 1.2 below, "Claims" (collectively called "Claim" or
"Claims" in these Provisions) means all claims or controversies between the
Employer and Employee or between the Employee and others arising out of, or
relating to or concerning the Employee's employment with the Employer or
termination thereof for which a state or federal court otherwise would be
authorized to grant relief, including, but not limited to, claims based on any
purported breach of contract, tort, state or federal statute or ordinance,
common law, constitution or public policy, claims for wages or other
compensation, or of discrimination, or violation of public policy of any type.
Claims expressly include the Employee's Claims against the Employer, and any
subsidiary and related or affiliated entity, successor or assign, and any of
their officers, directors, employees, managers, representatives, attorneys or
agents, and Claims against others arising out of, relating to or concerning the
Employee's employment with the Employer or termination thereof.
1.2 These
Provisions do not apply to or cover: claims for workers' compensation benefits,
claims for unemployment compensation benefits, or claims for which the National
Labor Relations Board has exclusive jurisdiction; claims by the Employer for
injunctive and/or other equitable relief for intellectual property, unfair
competition and/or the use and/or unauthorized disclosure of trade secrets or
confidential information; and claims based upon an employee pension or benefit
plan the terms of which contain an arbitration or other non judicial resolution
procedure, in which case the provisions of such plan shall apply. Employee shall
further retain the right to seek injunctive and/or other equitable relief
expressly made available by a statute which forms the basis of a Claim which is
subject to arbitration under these Provisions. Where one or more of the included
Claims in a dispute are covered under these Provisions and one or more of the
included Claims in the dispute are not covered under these
A-1
Provisions,
such covered and non-covered claims shall be separated and shall be heard
separately in the appropriate forum for each claim.
2. Agreement to Arbitrate All
Claims
2.1 Except
for claims excluded from these Provisions by paragraph 1.2 above and as
otherwise provided in paragraph 1.2 and 4.1, the Employer and the Employee
hereby agree to the resolution by exclusive, final and binding arbitration of
all Claims.
2.2 The
parties further agree that any issue or dispute concerning the formation,
applicability, interpretation, or enforceability of these Provisions, including
any claim or contention that all or any part of these Provisions is void or
voidable, shall be subject to arbitration as provided herein. The arbitrator,
and not any federal, state or local court or agency, shall have authority to
decide any such issue or dispute.
3. Governing
Law
3.1 Except
as modified by these Provisions, the arbitration shall be conducted pursuant to
the rules set forth in the California Arbitration Act, California Civil Code or
Procedure Section 1281, et. seq.
3.2 The
Arbitrator shall apply the substantive law (and the law of remedies, if
applicable) of the State of California, or federal law, or both, as applicable
to the Claims asserted.
4. Binding
Effect
4.1 The
arbitration Award (see Section 10, herein) shall be final and binding on the
parties except that both parties shall have the right to appeal to the
appropriate court any errors of law in the decision rendered by the
Arbitrator.
4.2 The
Award may be entered as a judgment in any court of competent jurisdiction and
shall serve as a bar to any court action for any Claim or allegation which was,
or could have been, raised in Arbitration.
4.3 For
Claims covered by these Provisions, Arbitration is the exclusive remedy, except
as provided by paragraph 1.2. The parties shall be precluded from bringing or
raising in court or before any other forum any dispute which could have been
brought or raised pursuant to Arbitration.
4.4 Nothing
in these Provisions shall prevent a party from pursuing any legal right to bring
an action to vacate or enforce an Award or to compel arbitration pursuant to
applicable California law.
A-2
5. Initiating
Arbitration
To initiate the arbitration process,
the aggrieved party must provide the other party or parties with: a written
request to arbitrate any covered Claims which states the Claim or Claims for
which arbitration is sought. The written request to arbitrate must be received
within the limitations periods applicable under the law to such
Claims.
6. Selection of the
Arbitrator
6.1 All
Claims shall be decided by a single neutral decision-maker, called the
"Arbitrator."
6.2 To
be qualified to serve, the Arbitrator must be an attorney in good standing with
at least seven years experience in employment law or a retired judge and be
available to hear the matter within sixty (60) days of selection and on
consecutive days.
6.3 Within
fifteen calendar days after receipt of the written request to arbitrate, the
parties will attempt to agree on the selection of a qualified Arbitrator
pursuant to paragraph 6.2 above. If the parties fail to agree on the selection
of an Arbitrator within that fifteen calendar day period, the Employer will
designate an alternate dispute resolution service (by way of example, American
Arbitration Association, National Arbitration Forum, Judicial Arbitration and
Mediation Services/Endispute) which has the capacity of providing the parties
with a list of potential qualified arbitrators. The parties shall request that
designated alternate dispute resolution service to provide them with a list of
nine persons who meet the requirements of paragraph 6.2 above. Each party shall
rate the nine names by giving the most preferred arbitrator the number nine and
using descending successive numbers to rate the remaining choices in descending
order of that party's preference and returning the list to the alternate dispute
resolution service for calculation. The arbitrator candidate with the highest
combined rating will be the Arbitrator. The functions of the alternate dispute
resolution service shall be strictly limited to providing the list of arbitrator
candidates and tallying the respective parties' ratings of the candidates in
accordance with this Section 6 and no rules of that service shall otherwise
apply.
7. Arbitration
Procedures:
7.1 All
parties may be represented by counsel throughout the arbitration process,
including without limitation, at the arbitration hearing.
7.2 The
Arbitrator shall afford each party a full and fair opportunity to present
relevant and material proof, to call and cross-examine witnesses, and to present
its argument.
7.3 The
Arbitrator shall not be bound by any formal rules of evidence with the exception
of applicable law regarding the attorney-client privilege and work product
doctrine, and any applicable state or federal law regarding confidentiality of
documents and other information (including, without limitation, pursuant to
rights of privacy).
A-3
7.4 The
Arbitrator shall decide the relevance of any evidence offered, and the
Arbitrator's decision on any question of evidence or argument shall be final and
binding.
7.5 The
Arbitrator may receive and consider the evidence of witnesses by affidavit and
shall give it such weight as the Arbitrator deems appropriate after
consideration of any objection made to its admission.
7.6 Either
party, at its expense, may arrange and pay for the cost of a court reporter to
provide a stenographic record of the proceedings. The other party may obtain a
copy of the recording by paying the reporter's normal fee for such copy. If both
parties agree to utilize the services of a court reporter, the parties shall
share the expense equally and shall be billed and responsible for payment
individually.
7.7 Either
party shall have the right to file an pre- or post-hearing brief. The time for
filing such briefs shall be set by the Arbitrator.
7.8 The
Arbitrator has authority to entertain a written or oral motion to dismiss and
motion for summary judgment, dispositive of all or part of any Claim, to which
the Arbitrator shall apply the standards governing such motions under the
Federal Rules of Civil Procedure.
8. Discovery
8.1 Discovery
shall be governed by this paragraph 8, notwithstanding Code of Civil Procedure
Section 1283.05 to the contrary.
8.2 Discovery
shall be conducted in the most expeditious and cost-effective manner possible,
and shall be limited to that which is relevant and for which the party seeking
it has substantial, demonstrable need.
8.3 All
parties shall be entitled to receive, reasonably prior to the hearing, copies of
relevant documents which are requested in writing, clearly described and
governed by paragraph 8.2 above, and sought with reasonable advance notice given
the nature of the requests. Upon request, Employee shall also be entitled to a
true copy of his or her personnel file kept in the ordinary course of business
and pursuant to the Employer policy. Any other requests for documents shall be
made by subpoena as provided for in Section 9 herein.
8.4 Except
as mutually agreed by the parties, all parties shall be entitled to submit no
more than twenty interrogatories (including subparts) and twenty requests for
admission (including subparts), on each of the other parties, which are
requested in writing, clearly described and governed by paragraph 8.2 above, and
sought with reasonable advance notice given the nature of the
requests.
A-4
8.5 Upon
reasonable request and scheduling, each party shall be entitled to take three
depositions in total of relevant parties, representative of the opposing party,
or third parties, of up to two days duration each.
8.6 Physical
and/or mental examinations may be conducted in accordance with the standards
established by the Federal Rules of Civil Procedure.
8.7 At
a mutually agreeable date, the parties will exchange lists of experts who will
testify at the arbitration. Each party may depose the other party's experts and
obtain documents they reviewed and relied upon and these depositions will not be
charged against the party's limit of three depositions.
8.8 Any
disputes relative to discovery or requests for discovery other than specifically
provided for herein, shall be presented to the Arbitrator who shall make final
and binding decisions in accordance with paragraphs 8.1 and 8.2
herein.
9. Subpoenas
9.1 Subject
to formal request and a determination of both need and relevance by the
Arbitrator in accordance with paragraphs 8.1 and 8.2 above, each party may issue
a subpoena for production of documents or persons (other than those provided for
in Sections 8.3, 8.5 and 8.7) relevant to the procedure. The Arbitrator's
decision regarding relevance and the need for subpoenas shall be final and
binding.
9.2 The
Arbitrator is empowered to subpoena witnesses or documents to the extent
permitted in a judicial proceeding, upon his or her own initiative or at the
request of a party.
9.3 The
party requesting the production of any witness or proof shall bear the costs of
such production.
10. The
Award
10.1 The
Arbitrator shall render his or her decision and award (collectively the "Award")
based solely on the evidence and authorities presented, the applicable policies
of the Employer, any applicable written employment agreement, the applicable law
argued by the parties, and these Provisions as interpreted by the
Arbitrator.
10.2 The
Award shall be made promptly by the Arbitrator, and unless otherwise agreed by
the parties, not later than sixty (60) days from the closing of the hearing, or
the date post-hearing briefs are filed, whichever is later.
10.3 The
Award shall be in writing and signed and dated by the Arbitrator. The Award
shall decide all issues submitted, shall contain express findings of fact and
law (including findings on each issue of fact and law raised by a party), and
provide the reasons supporting the decision including applicable law. The
Arbitrator shall give signed and duplicate original copies of the Award to all
parties at the same time.
A-5
11. Damages and
Relief
11.1 The
Arbitrator shall have the same authority to award remedies and damages as
provided to a judge and/or jury under applicable state or federal laws, where
the aggrieved party has met his or her burden of proof
11.2 Both
parties have a duty to mitigate their damages by all reasonable means. The
Arbitrator shall take a party's failure to mitigate into account in granting
relief in accordance with applicable state and federal law.
11.3 Arbitration
of damages or other remedies may be conducted in a bifurcated
proceeding.
12. Fees and
Expenses
12.1 All
parties shall share equally the fees of the Arbitrator. Each party will deposit
funds or post other appropriate security for its share of the Arbitrator's fee,
in an amount and manner determined by the Arbitrator, at least ten (10) days
before the first day of hearing. Additionally, each party shall pay for its own
expenses associated with the arbitration process and attorneys' fees, if any. If
any party prevails on a statutory claim which entitles the prevailing party to
attorneys' fees, or if there is a written agreement providing for fees, the
Arbitrator may award reasonable fees to the prevailing party in accordance with
such statute or agreement.
12.2 The
Arbitrator may additionally award either party its reasonable attorneys' fees
and costs, including reasonable expenses associated with production of witnesses
or proof, upon a finding that the other party (a) engaged in unreasonable delay,
or (b) failed to comply with the Arbitrator's discovery order.
ù
