EXHIBIT 10.2
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EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made as of August 14,
2000, between Cypress Financial Services, Inc., a Nevada corporation (the
"Company"), and Xxxxxx Xxxxx ("Executive").
1. Employment . The Company shall employ Executive, and Executive hereby
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accepts employment with the Company, upon the terms and conditions set forth in
this Agreement for the period beginning on the date hereof and ending as
provided in paragraph 4 hereof (the "Employment Period").
2. Position and Duties
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(a) The Company hereby engages Executive as the Senior Vice President of
Business Development of the Company. During the Employment Period, Executive
shall render services to the Company and its Affiliates (as defined below) as
the Company's board of directors (the "Board"), or a person designated by the
Board, may from time to time direct. The Board shall assign Executive to a
position or office commensurate with his experience and prior positions and
having such authority and duties as the Board may prescribe.
(b) During the Employment Period, Executive shall report to the Board, or a
person designated by the Board, and shall devote his best efforts and his full
business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs
of the Company and its Affiliates. Executive shall perform his duties,
responsibilities and functions to the Company and its Affiliates hereunder to
the best of his abilities in a diligent, trustworthy, businesslike and efficient
manner.
3. Compensation and Benefits
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(a) During the Employment Period, Executive's base salary shall be
$175,000.00 per annum or such other rate as the Board may determine from time to
time (as adjusted from time to time, the "Base Salary"), which salary shall be
payable by the Company in regular installments in accordance with the Company's
general payroll practices. In addition, during the Employment Period, Executive
shall be entitled to participate in all of the Company's employee welfare
benefit programs for which senior executive employees of the Company and its
Affiliates are generally eligible, and Executive shall be entitled to four weeks
of paid vacation each year, which if not taken during any year may not be
carried forward to any subsequent year.
(b) In addition to the Base Salary, the Board may, in its sole discretion,
award a bonus to Executive following the end of each fiscal year during the
Employment Period based upon Executive's performance and the Company's operating
results during such year.
(c) Executive shall be entitled to payment of up to $750.00 per month to
reimburse Executive for use of an automobile.
(d) Executive shall be entitled to such fringe benefits and perquisites as
are generally made available to executive officers of the Company, and such
other fringe benefits as may be approved by the Board for executive officers of
the Company during the term hereof.
(e) During the Employment Period, the Company shall reimburse Executive for
all reasonable expenses incurred by him in the course of performing his duties
and responsibilities under this Agreement which are consistent with the
Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's requirements
with respect to reporting and documentation of such expenses.
(f) Executive may receive such grants of equity-based compensation (e.g.,
option grants for Company common stock), if any, as shall be determined within
the sole discretion of the Board (or any committee of the Board which is
appointed to consider matters relative to equity-based compensation).
(g) All amounts payable to Executive as compensation hereunder shall be
subject to all required withholding by the Company.
4. Term
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(a) Subject to prior termination of this Agreement as hereinafter provided,
the Employment Period shall end on July 31, 2002 and shall automatically be
renewed on the same terms and conditions set forth herein as modified from time
to time by the parties hereto for additional one-year periods beginning on
August 1, 2003, unless the Company or Executive gives the other party written
notice of the election not to renew the Employment Period at least 60 days prior
to any such renewal date; provided that (i) the Employment Period shall
terminate prior to such date immediately upon Executive's resignation, death or
inability to perform the essential duties, responsibilities and functions of
Executive's position with the Company and its Affiliates as a result of any
mental or physical disability or incapacity even with reasonable accommodations
of such disability or incapacity provided by the Company and its Affiliates or
if providing such accommodations would be unreasonable (as determined by the
Board in its good faith judgment) and (ii) the Employment Period may be
terminated by the Company at any time prior to such date for Cause (as defined
below) or without Cause. Except as otherwise provided herein, any termination
of the Employment Period by the Company shall be effective as specified in a
written notice from the Company to Executive.
(b) If the Employment Period is terminated by (i) the Company without Cause
or (ii) Executive because he has Resigned for Good Reason (as defined below)
within twelve (12) months following a Change of Control (as defined below),
Executive shall be entitled to continue to receive his Base Salary payable in
regular installments for 180 days after the date of termination or resignation
(the "Severance Period"), if and only if Executive has executed and delivered to
the Company the General Release substantially in form and substance as set forth
in Exhibit A attached hereto and only so long as Executive has not breached the
provisions of paragraphs 5 and 6 hereof, and Executive shall not be entitled to
any other salary, compensation or benefits after termination of the Employment
Period.
(c) If the Employment Period is terminated by the Company for Cause or is
terminated pursuant to clause (a)(i) above, Executive shall only be entitled to
receive his Base Salary through the date of termination and shall not be
entitled to any other salary, compensation or benefits from the Company or its
Affiliates thereafter.
(d) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, fringe benefits and other compensation hereunder
which accrue or become payable after the termination or expiration of the
Employment Period shall cease upon such termination or expiration, other than
those expressly required under applicable law (such as COBRA). The Company may
offset any amounts Executive owes it or its Affiliates against any amounts it or
its Affiliates owes Executive hereunder.
(e) For purposes of this Agreement, "Cause" shall mean (i) commission of a
felony or other crime involving moral turpitude or the commission of any other
act or omission involving dishonesty, disloyalty or fraud with respect to the
Company or any of its Affiliates or any of their customers, (ii) reporting to
work under the influence of alcohol or illegal drugs, the use of illegal drugs
(whether or not at the workplace) or other repeated conduct causing the Company
or any of its Affiliates substantial public disgrace or disrepute or economic
harm, (iii) substantial and repeated failure to perform duties as reasonably
directed by the Board, (iv) gross negligence or willful misconduct with respect
to the Company or any of its Affiliates or (v) any material breach of this
Agreement.
(f) For purposes of this Agreement, a "Change in Control" shall mean any
of the following:
(i) The sale to a "Non-Affiliate" (as defined below) of all or
substantially all of the assets of the Company;
(ii) The direct or indirect merger of the Company with or into a Non-
Affiliate where immediately following such transaction 50% or more of the
outstanding voting stock of the remaining entity is not owned by persons who
were shareholders of the Company immediately prior to such transaction;
(iii) The acquisition by any person who is not on the date hereof an
Affiliate or Major Shareholder (as such terms are defined below) of 50% or more
of the issued and outstanding stock of the Company; or
(iv) The Board shall cease to be a "Qualified Board" as defined
below.
(g) For purposes of this Agreement:
(i) Persons or entities shall be "Affiliates" if one controls the
other or if they are under common control. "Control" shall mean the ownership
of 50% or more of the issued and outstanding stock of any such entity.
(ii) "Major Shareholder" shall mean any person or entity who directly
or indirectly currently owns as of the date of this Agreement twenty-five
percent (25%) of the issued and outstanding stock of the Company.
(iii) "Qualified Board" shall mean the Board of Directors of the
Company at least a majority of whose members are currently directors of the
Company or shall have been elected or nominated to the Board by a "Qualified
Board."
(h) For purposes of this Agreement, Executive shall be deemed to have
"Resigned for Good Reason" if the Executive shall have resigned from all of his
positions as employee, officer, director of the Company and its Affiliates
within 60 days after the occurrence of any of the following events:
(i) If the Executive is an officer of the Company, the Executive is
removed from that post except for the purposes of assuming another post in the
Company, which other post the Executive accepts.
(ii) The imposition on the Executive of a requirement to relocate the
site of his employment by the Company to a place more than 100 miles from the
site of his present employment.
(iii) A reduction in the Executive's rate of compensation from the
Company, which reduction continues after the Executive has protested in writing
to the Board, referring to this Agreement.
(iv) A substantial negative change in the duties, responsibilities or
supervisory authority of the Executive, which change persists for a period of at
least 60 days after written protest by the Executive to the Board, referring to
this Agreement.
5. Confidential Information. Executive acknowledges that the information,
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observations and data (including trade secrets) obtained by him while employed
by the Company and its Affiliates concerning the business or affairs of the
Company and any of its Affiliates ("Confidential Information") are the property
of the Company or such Affiliate. Therefore, Executive agrees that he shall not
disclose to any unauthorized person or use for his own purposes any Confidential
Information without the prior written consent of the Board, unless and to the
extent that the Confidential Information becomes generally known to and
available for use by the public other than as a result of Executive's acts or
omissions. Executive shall deliver to the Company at the termination or
expiration of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer tapes,
printouts and software and other documents and data (and copies thereof)
embodying or relating to the Confidential Information, Work Product (as defined
below) or the business of the Company and its Affiliates which he may then
possess or have under his control.
6. Inventions and Patents. Executive acknowledges that all inventions,
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innovations, improvements, developments, methods, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable) which
relate to the Company's or any of its Affiliates' actual or anticipated
business, research and development or existing or future products or services
and which are conceived, developed or made by Executive while employed by the
Company and its Affiliates ("Work Product") belong to the Company or such
Affiliate. Executive shall promptly disclose such Work Product to the Board and,
at the Company's expense, perform all actions reasonably requested by the Board
(whether during or after the
Employment Period) to establish and confirm such ownership (including, without
limitation, assignments, consents, powers of attorney and other instruments). If
applicable, this Agreement does not apply to inventions which qualify fully for
protection under Section 2870 of the California Labor Code (which, if
applicable, could apply to ideas or inventions for which no equipment, supplies,
facility or trade secret information of the Company or its Affiliates were used
and which were developed entirely on Executive's own time, and (i) which do not
relate at the time of conception or reduction to practice of the invention (A)
to the actual business of the Company or its Affiliates, or (B) to the Company
or its Affiliates actual or demonstrably anticipated research or development or
(ii) which do not result from any work performed by Executive for the Company or
its Affiliates. Notwithstanding the foregoing, Executive shall disclose in
confidence to the Company any invention in order to permit the Company to make a
determination as to compliance by Executive with the terms and conditions of
this Agreement.
7. Enforcement. If, at the time of enforcement of paragraph 5 or 6 of
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this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area. Because
Executive's services are unique and because Executive has access to Confidential
Information and Work Product, the parties hereto agree that money damages would
not be an adequate remedy for any breach of this Agreement. Therefore, in the
event a breach or threatened breach of this Agreement, the Company or its
successors or assigns, in addition to other rights and remedies existing in
their favor, shall be entitled to specific performance and/or injunctive or
other equitable relief from a court of competent jurisdiction in order to
enforce, or prevent any violations of, the provisions hereof (without posting a
bond or other security).
8. Executive's Representations. Executive hereby represents and warrants
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to the Company that (a) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (b) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity except the Non-
Competition Agreement between Executive and the Company of even date herewith,
and (c) upon the execution and delivery of this Agreement by the Company, this
Agreement shall be the valid and binding obligation of Executive, enforceable in
accordance with its terms. Executive hereby acknowledges and represents that he
has had an opportunity to consult with independent legal counsel regarding his
rights and obligations under this Agreement and that he fully understands the
terms and conditions contained herein.
9. Survival. Paragraphs 5 through 18 shall survive and continue in full
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accordance with their terms notwithstanding the expiration or termination of the
Employment Period.
10. Notices. Any notice provided for in this Agreement shall be in
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writing and shall be either personally delivered, sent by reputable overnight
courier service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
Xxx Xxxxx
0000 Xxxxx Xxxxx Xx.
Xxxxx Xxxx, XX 00000
Notices to the Company:
Cypress Financial Services, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
attn: Chief Financial Officer
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
11. Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any action in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
12. Complete Agreement. This Agreement embodies the complete agreement
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and understanding among the parties and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way,
including, without limitation, any prior understandings, agreements or
representations between Executive and Orange County Professional Services, Inc.
13. No Strict Construction. The language used in this Agreement shall
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be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
14. Counterparts. This Agreement may be executed in separate
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counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
15. Successors and Assigns. This Agreement is intended to bind and
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inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and except that Executive may not assign his rights
or delegate his duties or obligations hereunder without the prior written
consent of the Company.
16. Choice of Law. All issues and questions concerning the
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construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of California, without giving effect to any choice
of law or conflict of law rules or provisions
(whether of the State of California or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
California.
17. Amendment and Waiver. The provisions of this Agreement may be
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amended or waived only with the prior written consent of the Company (as
approved by the Board) and Executive, and no course of conduct or course of
dealing or failure or delay by any party hereto in enforcing or exercising any
of the provisions of this Agreement (including, without limitation, the
Company's right to terminate the Employment Period for Cause) shall affect the
validity, binding effect or enforceability of this Agreement or be deemed to be
an implied waiver of any provision of this Agreement.
18. Arbitration. Except with respect to disputes or claims under
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paragraphs 5 and 6 hereof (which may be pursued in any court of competent
jurisdiction as specified below and with respect to which each party shall bear
the cost of its own attorney's fees and expenses except as otherwise required by
applicable law), each party hereto agrees that the arbitration procedure set
forth in Exhibit B hereto shall be the sole and exclusive method for resolving
any claim or dispute ("Claim") arising out of or relating to the rights and
obligations acknowledged and agreed to in this Agreement and the employment of
Executive by the Company and its Affiliates (including, without limitation,
disputes and claims regarding employment discrimination, sexual harassment,
termination and discharge), whether such Claim arose or the facts on which such
Claim is based occurred prior to or after the execution and delivery of adoption
of this Agreement. The parties agree that the result of any arbitration
hereunder shall be final, conclusive and binding on all of the parties. Nothing
in this paragraph shall prohibit a party hereto from instituting litigation to
enforce any "Final Determination" (as defined in Exhibit B hereto). Each party
hereto hereby irrevocably submits to the jurisdiction of any United States
District Court or California state court of competent jurisdiction sitting in
Orange County, California, and agrees that such court shall be the exclusive
forum with respect to disputes and claims under paragraphs 5 and 6 and for the
enforcement of any Final Determination. Each party hereto irrevocably consents
to service of process by registered mail or personal service and waives any
objection on the grounds of personal jurisdiction, venue or inconvenience of the
forum. Each party hereto further agrees that each other party hereto may
initiate litigation in any court of competent jurisdiction to execute any
judicial judgment enforcing a Final Determination.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
CYPRESS FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxx
_______________________________
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxx Xxxxx
________________________________
XXXXXX XXXXX
Exhibit A
GENERAL RELEASE
I, Xxx Xxxxx, in consideration of and subject to the performance by Cypress
Financial Services, Inc., a Nevada corporation (together with its Affiliates,
the "Company"), of its material obligations under the Employment Agreement,
dated as of August ___, 2000 (the "Agreement"), do hereby release and forever
discharge as of the date hereof the Company, its Affiliates and all present and
former directors, officers, agents, representatives, employees, successors and
assigns of the Company and its Affiliates and the Company's direct or indirect
owners (collectively, the "Released Parties") to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under
paragraph 5(b) of the Agreement represent, in part, consideration for
signing this General Release and are not salary, wages or benefits to which
I was already entitled. I understand and agree that I will not receive the
payments and benefits specified in paragraph 5(b) of the Agreement unless I
execute this General Release and do not revoke this General Release within
the time period permitted hereafter or breach this General Release.
2. Except as provided in paragraph 4 below, I knowingly and voluntarily
release and forever discharge the Company and the other Released Parties
from any and all claims, controversies, actions, causes of action, cross-
claims, counter-claims, demands, debts, compensatory damages, liquidated
damages, punitive or exemplary damages, other damages, claims for costs and
attorneys' fees, or liabilities of any nature whatsoever in law and in
equity, both past and present (through the date of this General Release)
and whether known or unknown, suspected, or claimed against the Company or
any of the Released Parties which I, my spouse, or any of my heirs,
executors, administrators or assigns, may have, which arise out of or are
connected with my employment with, or my separation from, the Company
(including, but not limited to, any allegation, claim or violation, arising
under: Title VII of the Civil Rights Act of 1964, as amended; the Civil
Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as
amended (including the Older Workers Benefit Protection Act); the Equal Pay
Act of 1963, as amended; the Americans with Disabilities Act of 1990; the
Family and Medical Leave Act of 1993; the Civil Rights Act of 1866, as
amended; the Worker Adjustment Retraining and Notification Act; the
Employee Retirement Income Security Act of 1974; any applicable Executive
Order Programs; the Fair Labor Standards Act; or their state or local
counterparts; or under any other federal, state or local civil or human
rights law, or under any other local, state, or federal law, regulation or
ordinance; or under any public policy, contract or tort, or under common
law; or arising under any policies, practices or procedures of the Company;
or any claim for wrongful discharge, breach of contract, infliction of
emotional distress, defamation; or any claim for costs, fees, or other
expenses, including attorneys' fees incurred in these matters) (all of the
foregoing collectively referred to herein as the "Claims").
3. I represent that I have made no assignment or transfer of any right, claim,
demand, cause of action, or other matter covered by paragraph 2 above.
4. I agree that this General Release does not waive or release any rights or
claims that I may have under the Age Discrimination in Employment Act of
1967 which arise after the date I execute this General Release. I
acknowledge and agree that my separation from employment with the Company
in compliance with the terms of the Agreement shall not serve as the basis
for any claim or action (including, without limitation, any claim under the
Age Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release shall
be given full force and effect according to each and all of its express
terms and provisions, including those relating to unknown and unsuspected
Claims (notwithstanding any state statute that expressly limits the
effectiveness of a general release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied. I acknowledge and agree that this
waiver is an essential and material term of this General Release and that
without such waiver the Company would not have agreed to the terms of the
Agreement. I further agree that in the event I should bring a Claim
seeking damages against the Company, or in the event I should seek to
recover against the Company in any Claim brought by a governmental agency
on my behalf, this General Release shall serve as a complete defense to
such Claims. I further agree that I am not aware of any pending charge or
complaint of the type described in paragraph 2 as of the execution of this
General Release.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at any
time to be an admission by the Company, any Released Party or myself of any
improper or unlawful conduct.
7. I agree that I will forfeit all amounts payable by the Company pursuant to
the Agreement if I challenge the validity of this General Release. I also
agree that if I violate this General Release by suing the Company or the
other Released Parties, I will pay all costs and expenses of defending
against the suit incurred by the Released Parties, including reasonable
attorneys' fees, and return all payments received by me pursuant to the
Agreement.
8. I agree that this General Release is confidential and agree not to disclose
any information regarding the terms of this General Release, except to my
immediate family and any tax, legal or other counsel I have consulted
regarding the meaning or effect hereof or as required by law, and I will
instruct each of the foregoing not to disclose the same to anyone.
9. Any non-disclosure provision in this General Release does not prohibit or
restrict me (or my attorney) from responding to any inquiry about this
General Release or its underlying facts and circumstances by the Securities
and Exchange Commission (SEC), the National Association of Securities
Dealers, Inc. (NASD), any other self-regulatory organization or
governmental entity.
10. I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial proceeding. I
understand and agree that my cooperation may include, but not be limited
to, making myself available to the Company upon reasonable notice for
interviews and factual investigations; appearing at the Company's request
to give testimony without requiring service of a subpoena or other legal
process; volunteering to the Company pertinent information; and turning
over to the Company all relevant documents which are or may come into my
possession all at times and on schedules that are reasonably consistent
with my other permitted activities and commitments. I understand that in
the event the Company asks for my cooperation in accordance with this
provision, the Company will reimburse me solely for reasonable travel
expenses, including lodging and meals, upon my submission of receipts.
11. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect any
rights or claims arising out of any breach by the Company or by any
Released Party of the Agreement.
12. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under applicable
law, but if any provision of this General Release is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision or any other jurisdiction, but this General
Release shall be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been
contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
1. I HAVE READ IT CAREFULLY;
2. I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED;
3. I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
4. I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT
TO DO SO OF MY OWN VOLITION;
5. I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON _______________ __, _____ TO CONSIDER IT
AND THE CHANGES MADE SINCE THE _______________ __, _____ VERSION OF THIS
RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY PERIOD;
6. THE CHANGES TO THE AGREEMENT SINCE _______________ ___, _____ EITHER ARE
NOT MATERIAL OR WERE MADE AT MY REQUEST.
7. I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE REVOCATION PERIOD HAS EXPIRED;
8. I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
9. I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE: ______________ __, ______
_______________________________
Xxxxxx Xxxxx
Exhibit B
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ARBITRATION PROCEDURE
1. Notice of Claim. A party asserting a Claim (the "Claimant") shall
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deliver written notice to each party against whom the Claim is asserted
(collectively, the "Opposing Party"), with a copy to the persons required to
receive copies of notices under the Agreement (the "Additional Notice Parties"),
specifying the nature of the Claim and requesting a meeting to resolve same. The
Additional Notice Parties shall be given reasonable notice of and invited and
permitted to attend any such meeting. If no resolution is reached within 10
business days after delivery of such notice, the Claimant or the Opposing Party
may, within 45 days after giving such notice, invoke the arbitration procedure
provided herein by delivering to each Opposing Party and the Additional Notice
Parties a Notice of Arbitration, which shall specify the Claim as to which
arbitration is sought, the nature of the Claim, the basis for the Claim, and the
nature and amount of any damages or other compensation or relief sought (a
"Notice of Arbitration"). Each party agrees that no punitive damages may be
sought or recovered in any arbitration, judicial proceeding or otherwise.
Failure to file a Notice of Arbitration within 45 days shall constitute a waiver
of any right to relief for the matters asserted in the notice of claim. Any
Claim shall be forever barred, and no relief may be sought therefor, if written
notice of such Claim is not made as provided above within one year of the date
such claim accrues.
2. Selection of Arbitrator. Within 20 business days after receipt of the
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Notice of Arbitration, the Executive and the Board shall meet and attempt to
agree on an arbitrator to hear and decide the Claim. If the Executive and the
Board cannot agree on an arbitrator within ten business days, then they shall
request the Judicial Arbitration and Mediation Service ("JAMS") in Orange
County, California to appoint an arbitrator experienced in the area of dispute
who does not have an ongoing business relationship with any of the parties to
the dispute. If the arbitrator selected informs the parties he cannot hear and
resolve the Claim within the time-frame specified below, the Executive and the
Board shall request the appointment of another arbitrator by the JAMS subject to
the same requirements.
3. Arbitration Procedure. The following procedures shall govern the
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conduct of any arbitration under this section. All procedural matters relating
to the conduct of the arbitration other than those specified below shall be
discussed among counsel for the parties and the arbitrator. Subject to any
agreement of the parties, the arbitrator shall determine all procedural matters
not specified herein.
(a) Within 30 days after the delivery of a Notice of Arbitration, each
party shall afford the other, or its counsel, with reasonable access to
documents relating directly to the issues raised in the Notice of Arbitration.
All documents produced and all copies thereof shall be maintained as strictly
confidential, shall be used for no purpose other than the arbitration hereunder,
and shall be returned to the producing party upon completion of the arbitration.
There shall be no other discovery except that, if a reasonable need is shown,
limited depositions may be allowed in the discretion of the arbitrator, it being
the expressed intention and agreement of each party to have the arbitration
proceedings conducted and resolved as expeditiously, economically and fairly as
reasonably practicable, and with the maximum degree of confidentiality.
(b) All written communications regarding the proceeding sent to the
arbitrator shall be sent simultaneously to each party or its counsel, with a
copy to the Additional Notice Parties. Oral communications between any of the
parties or their counsel and the arbitrator shall be conducted only when all
parties or their counsel are present and participating in the conversation.
(c) Within 20 days after selection of the arbitrator, the Claimant shall
submit to the arbitrator a copy of the Notice of Arbitration, along with a
supporting memorandum and any exhibits or other documents supporting the Claim.
(d) Within 20 days after receipt of the Claimant's submission, the Opposing
Party shall submit to the arbitrator a memorandum supporting its position and
any exhibits or other supporting documents. If the Opposing Party fails to
respond to any of the issues raised by the Claimant within 20 days of receipt of
the Claimant's submission, then the arbitrator may find for the Claimant on any
such issue and bar any subsequent consideration of the matter.
(e) Within 20 days after receipt of the Opposing Party's response, the
Claimant may submit to the arbitrator a reply to the Opposing Party's response,
or notification that no reply is forthcoming.
(f) Within 10 days after the last submission as provided above, the
arbitrator shall notify the parties and the Additional Notice Parties of the
date of the hearing on the issues raised by the Claim. Scheduling of the
hearing shall be within the sole discretion of the arbitrator, but in no event
more than 30 days after the last submission by the parties, and shall take place
within 50 miles of the corporate headquarters of the Company at a place selected
by the arbitrator or such other place as is mutually agreed. Both parties shall
be granted substantially equal time to present evidence at the hearing. The
hearing shall not exceed one business day, except for good cause shown.
(g) Within 30 days after the conclusion of the hearing, the arbitrator
shall issue a written decision to be delivered to both parties and the
Additional Notice Parties (the "Final Determination"). The Final Determination
shall address each issue disputed by the parties, state the arbitrator's
findings and reasons therefor, and state the nature and amount of any damages,
compensation or other relief awarded.
(h) The award rendered by the arbitrator shall be final and non-appealable,
except as otherwise provided under applicable law, and judgment may be entered
upon it in accordance with applicable law in such court as has jurisdiction
thereof.
4. Costs of Arbitration. As part of the Final Determination, the
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arbitrator shall determine the allocation of the costs and expenses of the
arbitration, including the arbitrator's fee and both parties' attorneys' fees
and expenses, based upon the extent to which each party prevailed in the
arbitration. In the event that any relief which is awarded is non-monetary, then
such costs and expenses shall be allocated in any manner as may be determined by
the arbitrators.
5. Confidentiality of Proceedings. The parties hereto agree that all of
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the arbitration proceedings provided for herein, including any notice of claim,
the Notice of Arbitration, the submissions of the parties, and the Final
Determination issued by the arbitrator, shall be
confidential and shall not be disclosed at any time to any person other than the
parties, their representatives, the arbitrator and the Additional Notice
Parties; provided, however, that this provision shall not prevent the party
prevailing in the arbitration from submitting the Final Determination to a court
for the purpose of enforcing the award, subject to comparable confidentiality
protections if the court agrees; and further provided that the foregoing shall
not prohibit disclosure to the minimum extent reasonably necessary to comply
with (i) applicable law (or requirement having the force of law), court order,
judgment or decree, including, without limitation, disclosures which may be
required pursuant to applicable securities laws, and (ii) the terms of
contractual arrangements (such as financing arrangements) to which the Company
or any Additional Notice Party may be subject so long as such contractual
arrangements were not entered into for the primary purpose of permitting
disclosure which would otherwise be prohibited hereunder.
