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EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of December 1, 2000, between
Sybron Dental Management Company, Inc. a Delaware corporation ("Employer" or
"Company"), and ________ ("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to retain the services of Employee and is willing
to do so upon the terms and conditions set forth herein; and
WHEREAS, Employee desires to be employed by Employer upon the terms and
conditions set forth herein;
NOW, THEREFORE, Employee and Employer, in consideration of the agreements,
covenants and conditions herein, hereby agree as follows:
1. Basic Employment Provisions.
(a) Employment and Term. Employer hereby employs Employee as __________
and Employee agrees to be employed by Employer in such capacity, for a period
commencing on the date hereof and continuing thereafter until terminated, by one
of the means provided herein, by the Employee or Employer.
(b) Duties. Employee shall, as the ____________, be subject to the
direction and supervision of the President of Employer, or such other persons as
determined by the President. Employee shall have those duties and
responsibilities that are commensurate with his position and assigned to him by
the President, which duties Employee shall faithfully perform to the best of his
abilities and to the satisfaction of the President. Employee shall be required
to devote his full working time to the performance of his duties hereunder.
2. Compensation.
(a) Salary.
(i) As basic compensation for the services to be rendered by
Employee hereunder, Employer shall to pay to Employee an initial annual base
salary at the rate of $__________ per year. Such salary shall accrue and be
payable in accordance with the payroll practices of Employer in effect from time
to time. All such payments shall be subject to any deductions and withholdings
required by applicable law.
(ii) While he continues to be employed by Employer, Employee shall
be eligible for consideration for merit salary increases. Such increases shall
be at the sole discretion of the Employer and nothing herein contained shall be
construed as granting Employee a vested right to any such increases.
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(iii) If during his employment, Employee fails to perform his
duties on account of illness or other incapacity, his base salary will be
reduced by the amount of any statutory disability benefits and disability income
benefits, for which he is eligible.
(b) Benefits. In addition to his salary, Employee shall be entitled,
while employed by Employer, to such employee benefits and other benefits as are
customarily accorded the executives of Employer, including without limitation
participation in pension, stock option, bonus and other incentive plans, group
life, hospitalization, other welfare or insurance plans, relocation plans,
automobile plans, and vacations ("Benefit Plans").
(c) Expense Reimbursement. During his employment, Employer shall
reimburse Employee, upon the submission of properly documented expense account
reports, for all reasonable travel and entertainment expenses incurred by
Employee in the course of his employment with Employer.
[The following subsection 2(d) is applicable only for Xxxxxxx X. Xxxxxxx.]
(d) [Relocation Benefits.
(i) Employee shall have the right, three years following the date
this Agreement is made and entered into, to relocate his place of employment to
Milwaukee, Wisconsin. If Employee elects to relocate to Milwaukee, Wisconsin and
Employer, one (1) year following the date Employee relocates, elects to
terminate Employee's employment pursuant to Section 3(b) or 3(b)(iii), Employer
shall have no obligation to pay Employee and Employee shall have no right to
collect the twelve months of monthly base salary described Section 4(a). In
addition, should Employee elect to relocate to Milwaukee, Wisconsin, Employer
may assign the Employee new duties and adjust his base salary and other benefits
to be commensurate with the new duties.
(ii)If Employee sells his residence in Milwaukee, Wisconsin within
three (3) years following the date this Agreement is made and entered into,
Employer shall pay to Employee those costs and expenses associated with the sale
of the residence that Employer would have paid to Employee had Employee sold his
residence at the time he moved to California in connection with his employment
by Employer. The type and amount of costs and expenses Employer would have paid
Employee shall be those costs and expenses described in Employer's Relocation
Policy as the costs and expenses for which the Employer reimburses Employee.
(iii)Employer shall adjust Employees gross income to compensate
Employee for any income taxes, both state and federal, that Employee is required
to pay as a result of any income imputed to Employee in connection with the
loan, described in the attached promissory note, provided by Employer to
Employee.]
3. Termination of Employment.
(a) Termination by Employee.
(i) Except as provided in Section 3(a)(ii), Employee may terminate
his employment with Employer for any reason, at any time, by providing Employer
with a written notice, at least forty-five (45) days in advance of the
termination date, of his desire to terminate his employment.
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(ii) In the event a Potential change in control of the Parent, as
hereafter defined, occurs, Employee may not voluntarily terminate his employment
with the Company pursuant to subsection (i) above for a period of six (6) months
following the occurrence of a Potential change in control of the Parent. If more
than one Potential change in control of the Parent occurs during the term of
this Agreement, the provisions of the preceding sentence shall be applicable to
each Potential change in control of the Parent occurring prior to the occurrence
of a Change in Control.
(b) Termination by Employer.
(i) Employer may terminate Employee's employment with Employer, at
any time, without cause, by providing Employee with a written notice, at least
ninety (90) days in advance of the termination date, of its desire to terminate
Employee's employment.
(ii) Employer may terminate Employee's employment with Employer
for cause, at any time, with or without advance notice. For the purposes of this
Agreement, "cause" shall be deemed to be a willful and material breach of this
Agreement, fraud, dishonesty, competition with Employer or any subsidiary or
affiliate of Employer, unauthorized use of Employer's or any of its
subsidiaries' or affiliates' trade secrets or confidential information or
continued gross neglect by Employee of the duties assigned to him (if such
neglect or breach continues for 30 days after written notice by the President of
Employer to Employee specifying the duties being neglected or the breach of this
Agreement by Employee).
(iii) Employer may terminate the Employee's employment with
Employer, at any time, with or without advance notice, upon the total disability
of the Employee. For the purpose of this Agreement, "total disability" shall be
deemed to have occurred if Employee shall have been unable to perform his duties
hereunder due to mental or physical incapacity for a period of six consecutive
months.
(c) Termination due to Death. Employee's employment with Employer shall
terminate automatically upon the death of Employee.
4. Payments Upon Termination.
(a) If Employee's employment is terminated for any reason other than
pursuant to Section 3(a) or 3(b)(ii), Employee (if living), or Employee's spouse
(if the employment was terminated because of the death of Employee and
Employee's spouse survives him), or Employee's estate (if the employment was
terminated because of the death of Employee and Employee's spouse does not
survive him), shall be entitled, in addition to any other benefits provided to
them or Employee hereunder or under any of the Benefit Plans, to receive
Employee's then current monthly base salary for a period of 12 months from the
date the employment terminates.
(b) If Employee's employment is terminated pursuant to Section 3(b)(i),
Employee (if living), or Employee's spouse (if the employment was terminated
because of the death of Employee and Employee's spouse survives him), or
Employee's estate (if the employment was terminated because of the death of
Employee and Employee's spouse does not survive him) shall, in addition to any
payments made pursuant to Section 4(a), be entitled to receive a payment in an
amount equal to the incentive award that would have been earned by the Employee
under the Senior Executive Incentive Compensation Plan for the fiscal year in
which the Employee's employment is terminated; multiplied, however, by a
percentage equal to
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the percentage of the fiscal year in which the Employee was actively employed.
The payment of this amount shall be made on or about the same time as the
payment to other Company employees of the incentive award is made for the fiscal
year in which the Employee's employment is terminated.
(c) If Employee's employment is terminated pursuant to Section 3(a) or
3(b)(ii), no further compensation shall be paid to Employee after the date of
termination (other than base compensation earned up to the date of termination,
exclusive of bonus); provided, however, that the rights of Employee under any of
the Benefit Plans shall be determined by the terms of the plan.
[The following subsection 4(d) is applicable only for Xxxxxxx X. Xxxxxxx.]
(d) [In the event Employee terminates his employment, except for Good
Reason following a Change in Control, or Employer terminates his employment
pursuant to Section 3(b)(iii), Employee shall within thirty (30) days following
the effective date of the termination repay in full any amounts owed to Employer
under the Promissory Note executed by Employee on August __, 2000. Interest
shall accrue and be due, at the rate of ten percent (10%) per annum, on any
amount not paid within the thirty (30) day period until paid.]
5. Change in Control.
(a) Definitions. For purposes of this Agreement, the following words
and phrases shall have the eaning ascribed to them.
(i) "Change in Control of the Parent" shall mean a change in
control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), whether or not the Parent is then
subject to such reporting requirement; provided that, without limitation, such a
Change in Control shall be deemed to have occurred if (A) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Parent representing 25% or more of the
combined voting power of the Parent's then outstanding securities; (B) during
any period of two consecutive years (not including any period prior to the
execution of this Agreement), individuals, who at the beginning of such period
constitute the Board and any new director added during the period whose election
to the Board or nomination for election to the Board by the Parent's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was approved prior to the
beginning of the period, cease for any reason to constitute a majority of the
Board; (C) the stockholders of the Parent approve a merger or consolidation of
the Parent with any other corporation, other than a merger or consolidation
immediately following which the directors of the Parent immediately prior to the
merger or consolidation continued to constitute at least a majority of the board
of directors of the Parent, the surviving entity, or any parent thereof; or (D)
the stockholders of the Parent approve a plan of complete liquidation of the
Parent or an agreement for the sale or disposition by the Parent of all or
substantially all of the Parent's assets.
(ii) "Base Amount" shall have the same meaning as the term is
given in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended
(the "Code") and shall be calculated in accordance with any temporary or final
regulations promulgated under Section 280G of the Code in effect, if any. In the
absence of such regulations, if Employee was not employed by the Company (or any
corporation
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affiliated with the Parent (an "Affiliate") within the meaning of Section 1504
of the Code or a predecessor of the Parent) during the entire five calendar
years (the "Base Period") preceding the calendar year in which a change in
control of the Parent occurred, Employee's average annual compensation for the
purposes of such determination shall be the least of (A) the average of
Employee's annual compensation for the complete calendar years during the Base
Period during which Employee was so employed, (B) the average of Employee's
annual compensation for both complete and partial calendar years during the Base
Period during which Employee was so employed, determined by annualizing any
compensation (other than nonrecurring items) includible in Employee's gross
income for any partial calendar year, or (C) the annual average of Employee's
total compensation for the Base Period during which Employee was so employed,
determined by dividing such total compensation by the number of whole and
fractional years included in the Base Period. Compensation payable to Employee
by the Company or any Affiliate or predecessor of the Company shall include
every type and form of compensation includible in Employee's gross income in
respect of Employee's employment by the Company or any Affiliate or predecessor
of the Company, except to the extent otherwise provided in temporary or final
regulations promulgated under Section 280G of the Code.
(iii) "Good Reason" shall mean the occurrence, following a Change
in Control, without Employee's express written consent, of any of the following
circumstances unless, in the case of subsections (1), (5), (6), (7), or (8) of
Section 5(a)(iii), such circumstances are fully corrected prior to the date of
termination specified in the notice given in respect thereof:
(1) the assignment to Employee of any duties inconsistent
with his status as ________, his removal from the position of __________, or a
diminution in the nature or status of Employee's responsibilities;
(2) a reduction by the Company in Employee's annual base
salary;
(3) the relocation of the executive office in which Employee
is located prior to the Change in Control to a location more than fifty miles
there from or the Company or any of its subsidiaries requiring Employee to be
based anywhere other than the executive office in which Employee is located
prior to the Change in Control except for required travel on the business of the
Company and its subsidiaries to an extent substantially consistent with
Employee's present business travel obligations;
(4) the failure by the Company to pay to Employee any
portion of an installment of deferred compensation under any deferred
compensation program of the Company within seven (7) days of the date such
compensation is due;
(5) the failure by the Company to continue in effect any
compensation plan in which Employee participates prior to the Change in Control,
unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made in such plan in connection with the Change in
Control, or the failure by the Company to continue Employee's participation
therein on the same basis, both in terms of the amount of compensation provided
and the level of Employee's participation relative to other participants, as
existed at the time of the Change in Control;
(6) the failure by the Company to continue to provide
Employee with benefits at least as favorable as those enjoyed by Employee under
any of the Benefit Plans in which Employee was participating at the time of the
Change in Control, the taking of any action by the Company or any of its
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subsidiaries which would directly or indirectly materially reduce any of the
benefits provided by any of the Benefit Plans, deprive Employee of any material
fringe benefit enjoyed by him at the time of the Change in Control, or the
failure by the Company to provide Employee with the number of paid vacation days
to which he is entitled at the time of the Change in Control;
(7) the failure of the Parent to obtain a satisfactory
agreement from any successor to assume and agree to perform this Agreement, as
contemplated in Section 6 hereof; or
(8) any purported termination of Employee's employment that
is not effected pursuant to a proper notice of termination satisfying the
requirements of this Agreement; for purposes of this Agreement, no such
purported termination shall be effective.
A Change in Control of the Parent shall not, by itself, constitute Good Reason.
(iv) "Parent" shall mean Sybron Dental Specialties, Inc.
(v) "Potential change in control of the Parent" shall mean the
occurrence of one or more of the following events (A) the Parent enters into an
agreement, the consummation of which would result in the occurrence of a Change
in Control; (B) any person (including the Parent) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control; (C) the Board adopts a resolution to the effect
that, for purposes of this Agreement, a potential change in control of the
Parent has occurred.
(vi) "Unadjusted Severance Payment" shall mean an amount equal to
2.99 times Employee's Base Amount unreduced by the amount of any other payment
or the value of any benefit received or to be received by Employee in connection
with Employee's termination of employment or upon a change in control of the
Parent (whether payable pursuant to the terms of this Agreement or any other
agreement, plan or arrangement with the Parent or an Affiliate, predecessor or
successor of the Parent or any person whose actions result in a change in
control of the Parent or an Affiliate of such person) unless (A) in the opinion
of tax counsel selected by the Company's independent auditors and reasonably
acceptable to Employee, such other payments or benefit constitutes a "parachute
payment" within the meaning of Section 280G(b)(2) of the Code, and (B) in the
opinion of such tax counsel, the Unadjusted Severance Payment plus all other
payments or benefits which constitute "parachute payments" within the meaning of
Section 280G(b)(2) of the Code would result in a portion of the Unadjusted
Severance Payment being subject to the excise tax under Section 4999 of the
Code. In such event, the amount of the Unadjusted Severance Payment shall be
reduced by the minimum amount necessary such that no portion thereof will be
subject to the excise tax under Section 4999 of the Code. The Unadjusted
Severance Payment, as reduced, if at all, pursuant to the provisions of this
paragraph shall be referred to as the Adjusted Severance Payment. In determining
whether the Unadjusted Severance Payment shall be reduced under this paragraph,
(A) there shall not be included in the computation any payment if Employee shall
have effectively waived his receipt or enjoyment of such payment or benefit, and
(B) the value of any non-cash benefit or any deferred cash payment shall be
determined by the Company's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
(b) Payments.
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(i) Upon the termination of his employment with Employer,
following a Change in Control of the Parent or in anticipation of a Change of
Control of the Parent, Employee shall be entitled to the following payments and
benefits unless such termination is (A) because of Employee's death or
retirement under Employer's retirement policies as in effect on the date hereof
or as hereafter modified with the consent of the Employee, (B) effective more
than twenty-four months following the occurrence of the Change in Control of the
Parent, or (C) pursuant to Section 3(a), unless for Good Reason, 3(b)(ii) or
3(b)(iii).
(1) The Company shall pay Employee his full base salary, in
effect at the time notification of the termination is provided, through the date
of termination. The salary payments shall accrue and be payable in accordance
with the payroll practices of Employer in effect at the time of termination. All
such payments shall be subject to any deductions and withholdings required by
applicable law.
(2) The Company shall pay Employee an amount equal to the
incentive award that would have been earned by the Employee under the Senior
Executive Incentive Compensation Plan for the fiscal year in which the
Employee's employment is terminated; multiplied, however, by a percentage equal
to the percentage of the fiscal year in which the Employee was actively
employed. The payment of this amount shall be made on or about the same time as
the payment of the incentive award is made for the fiscal year in which the
Employee's employment is terminated
(3) The Company shall pay to Employee all amounts to which
Employee is entitled a payment under any of the Benefit Plans. Any payments due
under a plan shall be made, at the time the payments are due under the terms of
the Plan.
(4) The Company shall pay as severance to Employee, no later
than the fifth day following the termination, the Unadjusted Severance Payment
unless the Company in good faith believes that the Unadjusted Severance Payment
must be reduced under the provisions of Section 5(b)(i)(1) hereof, in which
event the Company shall instead pay to Employee a good faith estimate of the
Adjusted Severance Payment (the "Estimated Adjusted Severance Payment," the
computation of which shall be given to Employee in writing together with a
written explanation of the basis for making such adjustment), which amount shall
in no event be less than 50% of the Unadjusted Severance Payment. The Company
shall, within 60 days of the date of termination, either pay to Employee the
balance of the Unadjusted Severance Payment together with interest thereon at
the Applicable Federal Rate (as defined in Sections 1274(d) of the Code) or
deliver to Employee a copy of the opinion of the tax counsel referred to in
Section 5(b)(i)(1) hereof establishing the amount of the Adjusted Severance
Payment. If the Adjusted Severance Payment exceeds the Estimated Adjusted
Severance Payment, the difference shall be paid to Employee at such time
together with interest thereon at the applicable federal rate (as defined in
Section 1274(d) of the Code).
(5) Except to the extent that the payment thereof would
subject any payment hereunder to the excise tax under Section 4999 of the Code
the Company shall also:
(a) Pay to Employee all legal fees and expenses
incurred by Employee in successfully contesting or disputing any such
termination or in successfully seeking to obtain or enforce any right or benefit
provided by this Agreement; and
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(b) For a twenty-four (24) month period after
termination of Employee's employment, the Company shall arrange to provide
Employee with life, disability, accident and health insurance benefits
substantially similar to those which Employee was receiving or entitled to
receive immediately prior to the termination. Benefits otherwise receivable by
Employee pursuant to this Section 5(b)(i)(5)(b) shall be reduced to the extent
comparable benefits are actually received by Employee during the twenty-four
(24) month period following Employee's termination, and any such benefits
actually received by Employee shall be reported to the Company.
(ii)If it is established pursuant to a final determination of a
court or an Internal Revenue Service proceeding that, notwithstanding the good
faith of Employee and the Company in applying the terms of this Section
5(b)(ii), the aggregate "parachute payments" paid to or for Employee's benefit
are in an amount that would result in any portion of such "parachute payments"
being subject to the excise tax under Section 4999 of the Code, then Employee
shall have an obligation to pay the Company upon demand an amount equal to the
sum of(A) the excess of the aggregate "parachute payments" paid to or for
Employee's benefit over the aggregate "parachute payments" that would have been
paid to or for Employee's benefit without any portion of such "parachute
payments" being subject to the excise tax under Section 4999 of the Code; and
(B) interest on the amount set forth in clause (A) of this sentence at the
applicable federal rate (as defined in Section 1274(d) of the Code) from the
date of Employee's receipt of such excess until the date of such payment.
(c) Mitigation. Employee shall not be required to mitigate the amount
of any payment provided for in this Section 5 by seeking other employment or
otherwise nor shall the amount of any payment or benefit provided for in this
Section 5 be reduced by any compensation earned by Employee as the result of
employment by another employer or by retirement benefits received after the date
of termination, or otherwise except as specifically provided in this Section 5.
6. Assignment.
(a) The Parent will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Parent expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company and
Parent would be required to perform it if no such succession had taken place.
Failure of the Parent to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Employee to compensation from the Company in the same amount and
on the same terms as Employee would be entitled hereunder if Employee had
terminated his employment for Good Reason following a Change in Control, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the date of termination. As used in
this Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Employee should die
while any amount would still be payable to him hereunder if Employee had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to Employee's spouse or, if
there is no spouse, to Employee's estate.
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7. Confidential Information.
(a) Non-Disclosure. During Employee's employment or at any time
thereafter, irrespective of the time, manner or cause of the termination of this
Agreement, Employee will not directly or indirectly, reveal, divulge, disclose
or communicate to any person or entity other than authorized officers, directors
and employees of Employer, in any manner whatsoever, any Confidential
Information (as hereinafter defined) of Employer without the prior written
consent of the Company, except in connection with the fulfillment of his duties
hereunder.
(b) Definition. As used herein, "Confidential Information" means
information disclosed to or known by Employee as a direct or indirect
consequence of or through his association with Employer and its subsidiaries and
affiliates, about Employer or any subsidiary or affiliate of Employer, their
businesses, products and practices, including but not limited to trade secrets,
know-how, technical information, and financial information, which information is
not generally known in the business in which Employer or any subsidiary of
Employer is or may become engaged. However, Confidential Information shall not
include any information which is (i) available to the public from a source other
than Employee, (ii) released in writing by Employer to the public or to persons
who are not under a similar obligation of confidentiality to Employer and who
are not parties to this Agreement, (iii) obtained by Employee from a third party
not under a similar obligation of confidentiality to Employer, or (iv) required
to be disclosed by any court process or any government or agency or department
of any government.
(c) Return of Property. Upon termination of Employee's employment,
Employee will surrender to Employer all Confidential Information, including
without limitation, all lists, charts, schedules, reports, financial statements,
books and records of Employer and all subsidiaries and affiliates of Employer,
and all copies thereof, and all other property belonging to Employer and all
subsidiaries and affiliates of Employer, provided that Employee shall be
accorded reasonable access to such materials subsequent thereto for any proper
purpose as determined in the reasonable judgment of Employer.
8. Agreement Not to Solicit Clients and Employees. Employee agrees that,
for a period of one year following the termination of the Employment Period,
neither he nor any affiliate shall, either alone or on behalf of any business
engaged in a business competitive with Employer or any subsidiary of Employer,
solicit or induce, or in any manner attempt to solicit or induce, any person
employed by, or an agent of, Employer or any subsidiary of Employer to terminate
his employment or agency, as the case may be, with the Employer or such
subsidiary.
9. Assignment of Inventions. Employee agrees that he will assign to
Employer or its appropriate subsidiary all inventions, discoveries and
improvements relating to its lines of business, conceived or made by him solely
or jointly with others during his employment, and to execute, upon request,
whether during his employment or thereafter, any and all applications for
patents, assignments and other papers which Employer or its counsel may deem
necessary or appropriate for securing to it in all countries, exclusive rights
in all such inventions, discoveries and improvements.
10. No Violation. Employee represents and warrants to Employer that the
execution, delivery and performance of this Agreement by Employee does not, with
or without the giving of notice or the passage of time, or both, conflict with,
result in a default, right to accelerate or loss of rights under any provision
of any agreement or understanding to which Employee or his affiliates are a
party or by which Employee, or to the best knowledge of Employee, Employee's
affiliates may be bound or affected.
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11. Captions. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
12. Notices. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed delivered when actually received or, if
mailed, whether or not actually received, two days after deposited in the United
States mail, postage prepaid, registered or certified mail, return receipt
requested, addressed to the party to whom notice is being given at the specified
address or at such other address as such party may designate by notice:
Employer: ___________________________
Employee: ___________________________
13. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Agreement, provided that if any of the limitations set forth in Sections
7, 8, 9 or 10 shall be determined to be unreasonable by any court, the parties
agree that the provisions of such Section shall be reduced to such lessor
limitations as are determined to be reasonable; the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
14. Amendments. This Agreement may be amended only by an instrument in
writing duly executed by an officer of Employer expressly authorized by the
Board to do so and by Employee.
15. Waiver. No delay or omission by either party hereto to exercise any
right or power hereunder shall impair such right or power or be construed as a
waiver thereof including without limitation employee's continued employment
shall not constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason hereunder. A waiver by either of the
parties hereto of any of the covenants to be performed by the other or of any
breach thereof shall not be construed to be a waiver of any succeeding breach
thereof or of any other covenant herein contained. All remedies provided for in
this Agreement shall be cumulative and in addition to and not in lieu of any
other remedies available to either party at law, in equity or otherwise.
16. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, and all of which together shall
constitute one and the same agreement.
17. Governing Law. This Agreement shall be construed and enforced according
to the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
EMPLOYER:
By: ______________________________________________
Name: ____________________________________________
Title: ___________________________________________
EMPLOYEE:
By: ______________________________________________
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