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Exhibit
10.1
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”) is made and entered into effective as of
February 11, 2008 (“Effective Date”), by and
between Kenneth E. Wolf (“Employee”), and Natural
Alternatives International, Inc., a Delaware corporation
(“Company”). The Company and Employee may be referred
to herein collectively as the “Parties.”
RECITALS
WHEREAS, the Company wishes
to retain the services of Employee as Chief Financial Officer of
the Company, but only on the terms and subject to the conditions
set forth in this Agreement; and
WHEREAS, Employee desires to
enter into the employ of the Company and is willing to do so on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth herein
and intending to be legally bound thereby, the Parties agree as
follows:
AGREEMENT
1. Employment .
Employee hereby accepts the offer of the Company for employment as
Chief Financial Officer of the Company beginning on the Effective
Date. Employee’s employment will be at-will and may be
terminated by either Employee or the Company at any time for any
reason or no reason, with or without Cause (as hereinafter
defined), upon written notice to the other, or without any notice
upon the death of Employee. The at-will status of the employment
relationship may not be modified except by an agreement in writing
signed by the President or Chief Executive Officer of the Company
and Employee, the terms of which were approved in advance in
writing by the Company’s Board of Directors (which shall
include any committee or subcommittee thereof authorized to
determine matters of executive employment and
compensation).
2. Employee
Handbook . Employee and the Company understand and agree
that nothing in the Company’s Employee Handbook is intended
to be, and nothing in it should be construed to be, a limitation of
the Company’s right to terminate, transfer, demote, suspend
and administer discipline at any time for any reason. Employee and
the Company understand and agree nothing in the Company’s
Employee Handbook is intended to, and nothing in such Employee
Handbook should be construed to, create an implied or express
contract of employment contrary to this Agreement nor to relieve
either party of any of its obligations under this
Agreement.
3. Position and
Responsibilities .
a. During Employee’s
employment with the Company hereunder, Employee shall report to the
Company’s President and Board of Directors and shall have
such responsibilities, duties and authority as the Company, through
its Board of Directors, may from time to time assign to Employee.
Employee shall perform any other duties reasonably required by the
Company and, if requested by the Company, shall serve as a director
and/or as an additional officer of the Company or any subsidiary or
affiliate of the Company without additional
compensation.
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b. Employee, in
Employee’s capacity as Chief Financial Officer of the
Company, shall diligently and to the best of Employee’s
ability perform all duties that such position entails. Employee
shall devote such time, energy, skill and effort to the performance
of Employee’s duties hereunder as may be fairly and
reasonably necessary to faithfully and diligently further the
business and interests of the Company and its subsidiaries.
Employee agrees not to engage in any other business activity that
would materially interfere with the performance of Employee’s
duties under this Agreement. Employee represents to the Company
that Employee has no other outstanding commitments inconsistent
with any of the terms of this Agreement or the services to be
rendered under it.
c. Employee shall render
Employee’s service at the Company’s offices in the
County of San Diego, California, or such other location as is
mutually agreed upon by the Company and Employee. It is understood,
however, and agreed that Employee’s duties may from time to
time require travel to other locations, including other offices of
the Company and/or its subsidiaries both within and outside the
United States.
4. Compensation
.
a. Salary . During the
term of Employee’s employment hereunder, the Company agrees
to pay Employee a base salary of $237,500 per year, payable in
arrears no less frequently than bi-weekly in accordance with the
Company’s general payroll practices. In the first year of
employment, the base salary will be prorated from the start date of
Employee’s employment with the Company. The amount of
Employee’s base salary as set forth in this Section 4(a)
may be adjusted from time to time by an agreement in writing signed
by the President or Chief Executive Officer of the Company and
Employee, the terms of which were approved in advance by action of
the Company’s Board of Directors (or authorized committee or
subcommittee thereof). All references in this Agreement to
Employee’s base salary shall mean the base salary as adjusted
from time to time.
b. Additional Benefits
. During Employee’s employment with the Company, in addition
to the other compensation and benefits set forth herein, Employee
shall be entitled to receive and/or participate in such other
benefits of employment generally available to the Company’s
other corporate officers when and as Employee becomes eligible for
them, including, without limitation, participation in the
Company’s Management Cash Incentive Plan for fiscal 2008.
Employee’s participation in the Company’s Management
Cash Incentive Plan for fiscal 2008 shall be at seventy five
percent (75%) of the amount in which Employee otherwise would
have been entitled to participate if Employee had participated in
such plan for a full fiscal year. The Company reserves the right to
modify, suspend or discontinue any and all benefit plans, policies
and practices at any time without notice to or recourse by the
Employee. Employee’s eligibility to participate in the
Company’s Management Cash Incentive Plan in fiscal years
after 2008 shall be in the sole discretion of the Company’s
Board of Directors.
c. No Other
Compensation . Employee acknowledges and agrees that, except as
expressly provided herein, and as set forth in the Company’s
Employee Handbook or any other written compensation arrangement
approved by the Company’s Board of Directors, Employee is not
entitled to any other compensation or benefits from the
Company.
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d. Withholdings . All
compensation under this Agreement shall be paid less withholdings
required by federal and state law and less deductions agreed to by
the Company and Employee.
5. Termination
.
a. Due to Death .
Employee’s employment with the Company shall terminate
automatically in the event of Employee’s death. The Company
shall have no obligation to Employee or Employee’s estate for
base salary or any other form of compensation or benefit other than
amounts accrued through the date of Employee’s death, except
as otherwise required by law or pursuant to a specific written
policy, agreement or benefit plan of the Company.
b. Without Cause,
Severance Benefit . In the event Employee is terminated by the
Company without Cause and not as a result of death, upon
Employee’s delivery to the Company of an executed general
release in a form substantially similar to that set forth in
Attachment #3 attached hereto (“Release”), Employee
shall be entitled to receive (i) a severance benefit,
including standard employee benefits available to the
Company’s other corporate officers, in an amount equal to
three (3) months’ base salary; and (ii) continuing
group health insurance coverage pursuant to COBRA for the three
(3) months following termination with the premiums for such
continuation coverage paid by the Company. If Employee does not
execute and deliver the Release, Employee shall only be entitled to
receive a severance benefit in an amount equal to four
(4) weeks’ base salary and the Company shall not pay any
premiums for continuing group health insurance coverage pursuant to
COBRA or otherwise. One half of any severance benefit owing
hereunder shall be paid within ten (10) business days of
termination and the balance shall be paid on a bi-weekly basis over
the applicable severance period of four (4) weeks or three
(3) months.
c. With Cause, No
Severance Benefit . The Company may terminate Employee for
Cause. For purposes of this Agreement, “Cause” shall
mean the occurrence of one or more of the following events:
(i) the Employee’s commission of any fraud against the
Company or any of its subsidiaries; (ii) Employee’s
intentional appropriation for Employee’s personal use or
benefit of the funds of the Company or of its subsidiaries not
authorized in writing by the Board of Directors;
(iii) Employee’s conviction of any crime involving moral
turpitude; (iv) Employee’s conviction of a violation of
any state or federal law that could result in a material adverse
impact upon the business of the Company or its subsidiaries;
(v) Employee engaging in any other professional employment or
consulting or directly or indirectly participating in or assisting
any business that is a current or potential supplier, customer or
competitor of the Company or its subsidiaries without prior written
approval from the Company’s Board of Directors;
(vi) Employee’s failure to comply with the
Company’s written policy on acceptance of gifts and
gratuities as in effect from time to time; or (vii) when
Employee has been disabled and is unable to perform the essential
functions of the position for any reason notwithstanding reasonable
accommodation, provided Employee has received from the Company
compensation in an amount equivalent to Employee’s severance
benefit payment. No severance benefit shall be due to Employee if
Employee is terminated for Cause, including if Employee is
terminated for Cause upon or after a Change in Control (as
hereinafter defined and separately addressed below), except in the
event of disability as set forth above.
d. Resignation or
Retirement, No Severance Benefit . This Agreement shall be
terminated upon Employee’s voluntary retirement or
resignation. No severance benefit shall be due to Employee if
Employee resigns or retires from employment for any reason or at
any time, including upon or after a Change in Control.
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e. Payment Through Date of
Termination . Except as otherwise set forth herein, upon the
termination of this Agreement for any reason, Employee shall be
entitled to receive any unpaid compensation earned through the
effective date of termination. If this Agreement is terminated for
any reason before year-end bonus or other compensation becoming
payable to Employee, then such bonus and other compensation shall
be forfeited in full by Employee.
6. Termination
Obligations .
a. Return of Company
Property . Upon termination of this Agreement and cessation of
Employee’s employment, Employee agrees to return all Company
Property (as such term is defined in Attachment #2 to this
Agreement) to the Company promptly, but in no event later than two
(2) business days following termination of
employment.
b. Termination of
Benefits . Any and all benefits to which Employee is otherwise
entitled shall cease upon Employee’s termination, unless
explicitly continued either under this Agreement or under any
specific written policy or benefit plan of the Company.
c. Termination of Other
Positions . Upon termination of Employee’s employment
with the Company, Employee shall be deemed to have resigned from
all other offices and directorships then held with the Company or
its subsidiaries, unless otherwise expressly agreed in a writing
signed by the Parties.
d. Employee
Cooperation . Following termination of Employee’s
employment, Employee shall cooperate fully with the Company in all
matters including, but not limited to, advising the Company of all
pending work on behalf of the Company and the orderly transfer of
work to other employees or representatives of the Company. Employee
shall also cooperate in the defense of any action brought by any
third party against the Company that relates in any way to
Employee’s acts or omissions while employed by the
Company.
e. Survival of
Obligations . Employee’s obligations under this
Section 6 shall survive the termination of employment and the
termination of this Agreement.
7. Change in
Control . In the event of any Change in Control, the
following provisions will apply.
a. Any of the following shall
constitute a “Change in Control” for the purposes of
this Agreement:
(i) The consummation of a
merger or consolidation of the Company with or into another entity
or any other corporate reorganization, if more than 50% of the
combined voting power of the continuing or surviving entity’s
securities outstanding immediately after such merger, consolidation
or other reorganization is owned by persons who were not
stockholders of the Company immediately prior to such merger,
consolidation or other reorganization;
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(ii) The sale, transfer or
other disposition of all or substantially all of the
Company’s assets;
(iii) A change in the
composition of the Company’s Board of Directors, as a result
of which fewer than 50% of the incumbent directors are directors
who either (i) had been directors of the Company on the date
24 months prior to the date of the event that may constitute a
Change in Control (the “original directors”) or
(ii) were elected, or nominated for election, to the Board of
Directors with the affirmative votes of at least a majority of the
aggregate of the original directors who were still in office at the
time of the election or nomination and the directors whose election
or nomination was previously so approved; or
(iv) Any transaction as a
result of which any person is the “beneficial owner”
(as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (“Exchange Act”)), directly or
indirectly, of securities of the Company representing at least 20%
of the total voting power represented by the Company’s then
outstanding voting securities. For this purpose, the term
“person” shall have the same meaning as when used in
Sections 13(d) and 14(d) of the Exchange Act but shall exclude
(i) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or of a parent or subsidiary
of the Company and (ii) a corporation owned directly or
indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of the common stock of the
Company.
A transaction shall not
constitute a Change in Control if its sole purpose is to change the
state of the Company’s incorporation or to create a holding
company that will be owned in substantially the same proportions by
the persons who held the Company’s securities immediately
before such transaction.
b. In the event of a Change
in Control, this Agreement shall continue in effect unless
terminated by Employee or the Company.
c. If Employee is terminated
without Cause following a Change in Control by the Company and/or
the surviving or resulting corporation, upon Employee’s
delivery to the Company of an executed Release, Employee shall be
entitled to receive as severance pay or liquidated damages, or
both, (i) a lump sum payment (“Change in Control
Severance Payment”) in an amount equal to one
(1) year’s compensation or such greater amount as the
Board of Directors determines from time to time pursuant to terms
which may not be revoked or reduced thereafter; and
(ii) continuing group health insurance coverage pursuant to
COBRA for the twelve (12) months following termination with
the premiums for such continuation coverage paid by the Company. If
Employee does not execute and deliver the Release, Employee shall
only be entitled to receive a Change in Control Severance Payment
in an amount equal to four (4) weeks’ compensation and
the Company shall not pay any premiums for continuing group health
insurance coverage pursuant to COBRA or otherwise.
d. Subject to applicable law,
any Change in Control Severance Payment shall be made not later
than the fifteenth (15th) day following the effective date of
Employee’s termination without Cause in connection with a
Change in Control; provided, however, that if the amount of such
payment cannot be finally determined on or before such date, the
Company shall pay to Employee on such date a good faith estimate of
the minimum amount of such payment, and, subject to applicable law,
shall pay the remainder of such payment (together with interest at
the rate provided in Section 1274(b)(2)(B) of the Internal
Revenue Code of 1986, as amended
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(“Code”)), as soon as the
amount thereof can be determined, but in no event later than the
thirtieth (30th) day after the applicable termination date. If
the amount of the estimated payment exceeds the amount subsequently
determined to have been due, such excess shall constitute a loan by
the Company to Employee payable on the fifteenth (15th) day
after receipt by Employee of a written demand for payment from the
Company (together with interest calculated as set forth above). The
total of any payment pursuant to this Section 7 shall be
limited to the extent necessary, in the opinion of legal counsel
acceptable to Employee and the Company, to avoid the payment of an
“excess parachute” payment within the meaning of
Section 280G of the Code or any similar successor
provision.
e. In the event of
termination of Employee’s employment under Section 7(c),
and provided Employee delivers to the Company an executed Release,
the Company shall cause each then-outstanding stock option granted
by the Company to the Employee as of the date of termination to
become fully exercisable and to remain exercisable for the term of
the option.
8. Arbitration
. Employee and the Company hereby agree to the Mutual Agreement
to Mediate and Arbitrate Claims attached hereto as Attachment #1
and made a part hereof. Employee’s obligations under this
Section 8 and such Mutual Agreement to Mediate and Arbitrate
Claims shall survive the termination of employment and the
termination of this Agreement.
9. Confidential
Information and Inventions . Employee and the Company
hereby agree to the Confidential Information and Invention
Assignment Agreement, Covenant of Exclusivity and Covenant Not to
Compete attached hereto as Attachment #2 and made a part hereof.
Employee’s obligations under this Section 9 and such
Confidential Information and Invention Assignment Agreement,
Covenant of Exclusivity and Covenant Not to Compete shall survive
the termination of employment and the termination of this
Agreement.
10. Competitive
Activity . Employee covenants, warrants and represents that
during the period of Employee’s employment with the Company,
Employee shall not engage anywhere, directly or indirectly (as a
principal, shareholder, partner, director, manager, member,
officer, agent, employee, consultant or otherwise), or be
financially interested in any business that is involved in business
activities that are the same as, similar to, or in competition with
the business activities carried on by the Company or any business
that is a current or potential supplier, customer or competitor of
the Company without prior written approval from the Company’s
Board of Directors. Notwithstanding the foregoing, Employee may
invest in and hold up to one percent (1%) of the outstanding
voting stock of a publicly held company that is involved in
business activities that are the same as, similar to, or in
competition with the business activities carried on by the Company
or any business that is a current or potential supplier, customer
or competitor of the Company without the prior written approval of
the Company’s Board of Directors; provided, however, that if
such publicly held company is a current or potential supplier,
customer or competitor of the Company, the Employee shall advise
the Audit Committee of the Company’s Board of Directors in
writing of Employee’s investment in such company as soon as
reasonably practicable.
11. Employee
Conduct . Employee covenants, warrants and represents that
during the period of Employee’s employment with the Company,
Employee shall at all times comply with the Company’s written
policy as in effect from time to time on the acceptance of gifts
and gratuities from customers, vendors, suppliers, or other persons
doing business with the Company.
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Employee represents and understands that
acceptance or encouragement of any gift or gratuity not in
compliance with such policy may create a perceived financial
obligation and/or conflict of interest for the Company and shall
not be permitted as a means to influence business decisions,
transactions or service. In this situation, as in all other areas
of employment, Employee is expected to conduct himself or herself
using the highest ethical standard.
12. Miscellaneous
Provisions .
a. Entire Agreement .
This Agreement and any attachments and/or exhibits contains the
entire agreement between the Parties. It supersedes any and all
other agreements, either oral or in writing, between the Parties
with respect to Employee’s employment by the Company. Each
party to this Agreement acknowledges that no representations,
inducements, promises or agreements, oral or otherwise, have been
made by any party, or anyone acting on behalf of any party, which
are not embodied herein and acknowledges that no other agreement,
statement or promise not contained in this Agreement shall be valid
or binding. To the extent the practices, policies or procedures of
the Company, now or in the future, are inconsistent with the terms
of this Agreement, the provisions of this Agreement shall
control.
b. Governing Law .
This Agreement shall be construed and enforced in accordance with
the laws of the State of California.
c. Severability .
Should any part or provision of this Agreement be held by a court
of competent jurisdiction to be illegal, unenforceable, invalid or
void, the remaining provisions of this Agreement shall continue in
full force and effect and the validity of the remaining provisions
shall not be affected by such holding.
d. Attorneys’
Fees . Except as set forth in the Mutual Agreement to Mediate
and Arbitrate Claims attached hereto as Attachment #1, should any
party institute any action, arbitration or proceeding to enforce,
interpret or apply any provision of this Agreement, the Parties
agree that the prevailing party shall be entitled to reimbursement
by the non-prevailing party of all recoverable costs and expenses,
including, but not limited to, reasonable attorneys’
fees.
e. Interpretation .
This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. By way of
example and not in limitation, this Agreement shall not be
construed in favor of the party receiving a benefit nor against the
party responsible for any particular language in this Agreement.
The headings and captions contained in this Agreement are for
convenience of reference only and shall not constitute a part of
this Agreement and shall not be used in the construction or
interpretation of this Agreement.
f. Amendment; Waiver .
This Agreement may not be modified or amended by oral agreement or
course of conduct, but only by an agreement in writing signed by
the President or Chief Executive Officer of the Company and
Employee, the terms of which were approved in advance in writing by
the Company’s Board of Directors. The failure of either party
hereto at any time to require the performance by the other party
hereto of any provision hereof shall in no way affect the full
right to require such performance at any time thereafter, nor shall
the waiver by either party hereto of a breach of any provision
hereof be taken or held to be a waiver of any succeeding breach of
such provision or waiver of the provision itself or a waiver of any
other provision of this Agreement.
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g. Assignment . This
Agreement is binding on and is for the benefit of the Parties and
their respective successors, heirs, executors, administrators and
other legal representatives. Neither this Agreement nor any right
or obligation hereunder may be assigned by the Company (except to
an affiliate of the Company or to a person, as defined herein, in
accordance with a Change in Control) or by the Employee.
h. No Restrictions; No
Violation . The Employee represents and warrants that:
(i) Employee is not a party to any agreement that would
restrict or prohibit Employee from entering into this Agreement or
performing fully Employee’s obligations hereunder; and
(ii) the execution by Employee of this Agreement and the
performance by Employee of Employee’s obligations and duties
pursuant to this Agreement will not result in any breach of any
other agreement to which Employee is a party.
i. Counterparts . This
Agreement may be executed in counterparts, each of which will be
deemed an original copy of this Agreement and all of which, when
taken together, will be deemed to constitute one and the same
agreement. The exchange of copies of this Agreement and of
signature pages by facsimile transmission shall constitute
effective execution and delivery of this Agreement as to the
Parties and may be used in lieu of the original Agreement for all
purposes. Signatures of the parties transmitted by facsimile shall
be deemed to be their original signatures for all
purposes.
j. Legal Representation;
Independent Counsel . The law firm of Bell Boyd &
Lloyd LLP has prepared this Agreement on behalf of the Company
based on the Company’s instructions. Bell Boyd &
Lloyd LLP does not represent any other party to this Agreement. In
executing this Agreement, Employee represents that Employee has
neither requested nor been given legal advice or counsel by Bell
Boyd & Lloyd LLP or any of its attorneys. Employee is
aware of Employee’s right to obtain separate legal counsel
with respect to the negotiation and execution of this Agreement and
acknowledges that Bell Boyd & Lloyd LLP has recommended
that Employee retain Employee’s own counsel for such purpose.
Employee further acknowledges that Employee (i) has read and
understands this Agreement and its exhibits and attachments;
(ii) has had the opportunity to retain separate counsel in
connection with the negotiation and execution of this Agreement;
and (iii) has relied on the advice of separate counsel with
respect to this Agreement or made the conscious decision not to
retain counsel in connection with the negotiation and execution of
this Agreement.
[Signatures on following
page.]
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IN WITNESS WHEREOF, the
Parties have executed this Agreement effective as of the Effective
Date.
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EMPLOYEE
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/s/ Kenneth Wolf
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Kenneth Wolf
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COMPANY
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Natural Alternatives International,
Inc.,
a Delaware corporation
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By:
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/s/ Randell Weaver
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Randell
Weaver, President |
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ATTACHMENT
#1
MUTUAL AGREEMENT TO
MEDIATE AND ARBITRATE CLAIMS
This Mutual Agreement to
Mediate and Arbitrate Claims (“Agreement”) is made and
entered into effective as of February 11, 2008
(“Effective Date”), by and between Kenneth E. Wolf
(“Employee”), and Natural Alternatives International,
Inc., a Delaware corporation (“Company”).
In consideration of and as a
condition of Employee’s prospective and continued employment
relationship with the Company, Employee’s employment rights
under Employee’s Employment Agreement, Employee’s
participation in the Company’s benefit programs (when and if
eligible), Employee’s access to and receipt of confidential
information of the Company, and other good and valuable
consideration, all of which Employee considers to have been
negotiated at arm’s length, Employee and Company agree to the
following:
1. Claims Covered by
this Agreement .
a. To the fullest extent
permitted by law, all claims and disputes between Employee (and
Employee’s successors and assigns) and the Company relating
in any manner whatsoever to the employment or termination of
Employee, including without limitation all claims and disputes
arising under this Agreement or that certain Employment Agreement
entered into by and between the Company and Employee on equal date
hereof, as may be amended from time to time (“Employment
Agreement”), shall be resolved by mediation and arbitration
as set forth herein. All persons and entities specified in the
preceding sentence (other than the Company and Employee) shall be
considered third-party beneficiaries of the rights and obligations
created by this Agreement. Claims and disputes covered by this
Agreement include without limitation those arising
under:
(i) Any federal, state or
local laws, regulations or statutes prohibiting employment
discrimination (including, without limitation, discrimination
relating to race, sex, national origin, age, disability, religion,
or sexual orientation) and harassment;
(ii) Any alleged or actual
agreement or covenant (oral, written or implied) between Employee
and the Company;
(iii) Any Company policy,
compensation, wage or related claim or benefit plan, unless the
decision in question was made by an entity other than the
Company;
(iv) Any public policy;
and
(v) Any other claim for
personal, emotional, physical or economic injury.
b. The only disputes between
Employee and the Company that are not included within this
Agreement are:
(i) Any claim by Employee for
workers’ compensation or unemployment compensation benefits;
and
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(ii) Any claim by Employee
for benefits under a Company plan that provides for its own
arbitration procedure.
2. Mandatory Mediation
of Claims and Disputes .
a. If any claim or dispute
covered under this Agreement cannot be resolved by negotiation
between the parties, the following mediation and arbitration
procedures shall be invoked. Before invoking the binding
arbitration procedure set forth below, the Company and Employee
shall first participate in mandatory mediation of any dispute or
claim covered under this Agreement.
b. The claim or dispute shall
be submitted to mediation before a mediator of the Judicial
Arbitration and Mediation Service (“JAMS&
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