This EMPLOYMENT
AGREEMENT (“ Agreement ”), dated as of
May 4, 2006 (the “ Effective Date ”), is
made by and between AVANIR Pharmaceuticals, a California
corporation (the “ Company ”), and Michael J.
Puntoriero (“ Employee ”).
1.
Commencement Date . Employee’s employment with the
Company, which initially commenced on May 1, 2006, shall
commence under the terms of this Agreement on the Effective Date
(the “ Commencement Date ”).
2.
At-will Employment . Employee’s employment
relationship with the Company (“ Employment ”)
is at-will, terminable at any time and for any reason by either the
Company or Employee. While certain sections of this Agreement
describe events that could occur at a particular time in the
future, nothing in this Agreement shall be construed as a guarantee
of employment of any length.
(a)
Title/Responsibilities . Employee shall serve as a Senior
Vice President and as Chief Financial Officer of the Company upon
election by the Board of Directors (or at a defined date specified
by the Board). Employee shall perform all of the duties and
responsibilities of such offices set forth in the Bylaws of the
Company and those commonly associated with such offices and such
further duties and responsibilities as may from time to time be
assigned to him by the President and Chief Executive Officer or the
Board of Directors of the Company (the “ Board
”).
(b)
Full-Time Attention . Employee shall devote his full time,
attention, energy and skills to the Company during the period he is
employed under this Agreement.
(c)
Policy Compliance . Employee shall comply with all of the
Company’s policies, practices and procedures, including the
terms of the Confidentiality Agreement (defined below).
(a)
Base Salary . The Company shall pay Employee a base salary
of $25,000 per month (an annual rate of $300,000), or such higher
amount as the Board may determine from time to time (“
Base Salary ”), payable in accordance with the
Company’s regular payroll practices.
(b)
Bonus Compensation . In addition to the Base Salary,
Employee shall be eligible for the following bonus
compensation:
(i)
Signing Bonus . Employee shall receive a signing bonus upon
the Commencement Date in the amount of $40,000, but which amount
shall be immediately repaid to the Company if, within one year from
the Commencement Date, Employee is terminated with Cause or resigns
and such resignation is not a “Resignation for Good
Reason” (as defined in the Change of Control
Agreement).
(ii)
Annual Bonus . Employee shall receive an annual target bonus
equal to 35% of the then-current annual Base Salary, which bonus is
payable in October 2006 (pro-rated for 2006 from the
Commencement Date) and annually thereafter, provided that the
actual bonus may be higher or lower than the target amount,
depending on the Employee’s satisfaction of performance
criteria (which may include Company overall performance criteria)
established by the President and Chief Executive Officer and the
Compensation Committee of the Board. Employee must be employed by
the Company when bonuses are distributed in order to be eligible to
receive any portion of such bonus.
(c)
Equity Compensation . Employee shall be granted the
following equity awards as additional compensation:
(i)
Restricted Stock Award . On the Commencement Date, Employee
shall be awarded the right to purchase 10,000 shares of
Class A common stock (the “ Restricted Shares
”) at a price of $0.001 per share. The Restricted Shares will
be subject to a right of repurchase in favor of the Company. The
Restricted Stock will vest, and the Company’s right of
repurchase will lapse, with respect to one-third of the shares of
Restricted Stock on the first anniversary of the Commencement Date
and then with respect to one-twelfth of the shares quarterly
thereafter so that the Restricted Stock will be fully vested upon
the third anniversary of the Commencement Date.
(ii)
Initial Option Grant . On the Commencement Date, Employee
will receive an inducement option to purchase up to 100,000 shares
of Class A common stock at an exercise price equal to 100% of
the fair market value of the underlying shares on the date of grant
(the “ Initial Option ”). The Initial Option
will have a ten-year term and will be subject to a four-year
vesting schedule, vesting with respect to 25% of the underlying
shares one year after the grant and the with respect to the
remaining shares in 12 equal installments on a quarterly basis
thereafter. The Initial Option will be granted outside of the
Company’s equity incentive plans, but will be subject in all
material respects to the terms and conditions set forth in the
Company’s 2005 Equity Incentive Plan (the “ Plan
”) and the Company’s form of non-qualified stock option
agreement adopted for use under the Plan.
(iii)
Annual Option Grant . Commencing in November 2006,
Employee will be eligible to receive an annual target option grant
equal to the greater of 25,000 shares of Class A common stock
or the amount set for other Senior Vice Presidents of the Company
(“ SVPs ”) (the “ Annual Option
”), with an exercise price equal to 100% of the fair market
value of the underlying shares on the date of grant, subject to a
four-year vesting schedule, vesting with respect to 25% of the
underlying shares one year after the grant and vesting with respect
to the remaining shares in 12 equal installments on a quarterly
basis thereafter. Each Annual Option will be subject to the terms
and conditions of the Company’s equity incentive plans. The
size of the option grants shall be established by the Compensation
Committee and may be larger or
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smaller than
the target size, depending on the Employee’s satisfaction of
performance criteria (which may include Company overall performance
criteria) established by the President and Chief Executive Officer
or Compensation Committee of the Board. The Annual Option granted
in November 2006 shall be prorated from the Commencement
Date.
(iv)
Award Adjustments . The foregoing share amounts and share
purchase prices shall be adjusted, as necessary, to give effect to:
(A) any stock split, reverse stock split, stock dividend,
recapitalization or similar transaction affecting the
Company’s Class A common stock that is effected after
the Effective Date, or (B) any change in the aggregate
compensation payable to executive officers of the Company, as
determined by the Compensation Committee of the Board of
Directors.
(d)
Employee Benefits . Employee shall be entitled to
participate in all employee benefit plans, programs and
arrangements maintained by the Company and made available to
employees generally, including, without limitation, retirement,
profit sharing and savings plans and medical, disability, dental,
life and accidental death and dismemberment insurance plans and
vacation (“ Benefit Plans ”). The
Employee’s participation in Benefit Plans shall be on the
same basis and terms as are applicable to other SVPs.
Notwithstanding any contrary terms of the Company’s Benefit
Plans: (i) the Company shall, subject to the last sentence of
this Section 4(d) and during the term of this Agreement, either
provide Employee with term life insurance in the amount of
$2.5 million or reimburse Employee for the premium costs of
such a policy, and (ii) Employee shall be entitled to 5 weeks
of vacation per year of service (subject to the Company’s
applicable vacation accrual limits), with the first 2 weeks to
accrue immediately upon the Commencement Date and the remaining
3 weeks for the first year of service to accrue ratably over a
period of one year from the Commencement Date. Notwithstanding
clause (i) of this Section 4(d), if the Company
subsequently agrees to provide Employee with death benefits
substantially similar to the benefits payable in connection with a
termination without Cause (including cash severance payments and
treatment of equity awards), the Company shall thereafter only be
required to maintain or reimburse Employee for a term life
insurance policy in the amount of $1 million.
(e)
Reimbursement of Expenses . During his Employment with the
Company, Employee shall be entitled to reimbursement for all
reasonable and necessary business expenses incurred on behalf of
the Company, including without limitation, travel and entertainment
expenses, business supplies and cellular phone expenses, in each
case in accordance with the Company’s then-existing policies
and procedures.
5.
Confidentiality Agreement . Employee shall, on the
Commencement Date, execute and deliver to the Company the Employee
Confidentiality and Inventions Agreement (“
Confidentiality Agreement ”) in the form attached
hereto as Exhibit 1 .
6.
Non-Solicitation . During his Employment, and for a period
of 12 months thereafter, whether for Employee’s own
account or the account of any other person, Employee shall not
solicit, directly or indirectly, any employee to leave his or her
employment with the Company. For purposes of this Agreement, the
phrase, “shall not solicit, directly or indirectly,”
includes, without limitation, that Employee shall not:
(i) identify any Company employees to any third party as
potential candidates for employment, such as by disclosing the
names,
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backgrounds,
compensation or qualifications of any Company employees;
(ii) personally or through any other person approach, recruit
or otherwise solicit employees of Company to work for any other
employer; or (iii) participate in any pre-employment interview
with any person who was employed by the Company while Employee was
employed by the Company whether under this Agreement or otherwise.
It shall not be a violation of this Agreement for Employee to
respond if any employee or former employee of Company initiates
contact with Employee for the purposes discussed in this
paragraph.
7.
Agreement with Previous Employers . Employee represents and
warrants to the Company that he does not have any agreement (other
than customary confidentiality agreements) with any previous
employer that prevents him from performing his duties and
responsibilities under this Agreement or that in any way limits his
performance hereunder.
8. Voluntary
Resignation or Termination for “Cause .”
(a)
Payment upon Voluntary Resignation or Termination for Cause
. If Employee voluntarily resigns his Employment, and such
resignation is not a “Resignation for Good Reason” (as
defined in the Change of Control Agreement), or if Employee is
terminated for Cause (defined below), the Company shall pay
Employee all accrued and unpaid Base Salary through the date of
termination and any vacation that is accrued but unused as of such
date. Employee shall not be eligible for Severance Payments, as
defined below, or any continuation of benefits (other than those
provided for under the Federal Consolidated Omnibus Budget
Reconciliation Act (“ COBRA ”)), or any other
compensation pursuant to this Agreement or otherwise.
(b)
Definition of “Cause .” As set forth above, the
Employment relationship between the parties is at-will, terminable
at any time by either party for any reason or no reason. The
termination may nonetheless be for “ Cause .”
For purposes of this Agreement, “ Cause ”
means:
(i) Employee’s
material breach of this Agreement or any confidentiality agreement
between the Company and Employee; or
(ii) Employee’s
willful and intentional failure or refusal to comply with the
Company’s Employee Manual, the Company’s Code of
Business Conduct and Ethics, or other policies or procedures
established by the Company; or
(iii) Employee’s
willful and intentional appropriation (or attempted appropriation)
of a material business opportunity of the Company, including
attempting to secure or securing any personal profit in connection
with any transaction entered into on behalf of the Company;
or
(iv) Employee’s
misappropriation (or attempted misappropriation) of any of the
Company’s funds or material property; or
(v) Employee’s
conviction of, or the entering of a guilty plea or plea of no
contest with respect to a felony, the equivalent thereof, or any
other crime with respect to which imprisonment is a possible
punishment; or
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(vi) Employee’s
willful and intentional misconduct or incompetence; or
(vii) Employee’s
physical or mental Disability, as defined in Section 9 below,
resulting in his inability to perform the essential functions of
his position, with reasonable accommodation; or
In each case,
“Cause” shall be determined conclusively by the Board,
acting in good faith. Notwithstanding the foregoing, no event
described in Section 8(b)(i), (ii), (iii) and
(vi) above will give rise to “Cause” unless it is
communicated by the Company to Employee in writing and unless it is
not corrected by the Employee in a manner that is reasonable
satisfactory to Company within 30 days of the Employee’s
receipt of such written notice.
(c)
Termination Without Cause or Resignation for Good Reason .
Subject to Section 10, if Employee: (i) is terminated
without “Cause,” or (ii) resigns in a
“Resignation for Good Reason,” (as defined in the
Change of Control Agreement), then Employee shall be paid all
accrued and unpaid Base Salary and any accrued but unused vacation
through the date of termination. In addition, in exchange for
Employee’s execution of a release of all claims against the
Company and its subsidiaries and affiliates effective as of the
date of termination and in the form attached hereto as
Exhibit 2 :
(i) Employee
shall be eligible to receive severance payments under this
Agreement in an amount equal to 9 months Base Salary and an
amount equal to the greater of (x) 26.25% of Base Salary or
(y) 75% of the last bonus, if any, paid to Employee pursuant
to Section 4(b)(ii) (the “ Severance Payments
”), payable on the earliest of (A) the date which is six
(6) months and a day after Employee’s “separation
from service” for any reason, other than death or becoming
“disabled” (as such terms are used in
Section 409A(a)(2) of the Code), (B) the date of
Employee’s death or on which Employee becomes
“disabled” (as such term is used in
Section 409A(a)(2)(C) of the Code), (C) the effective
date of a “change in the ownership or effective
control” of the Company (as such term is used in
Section 409A(a)(2)(A)(v) of the Code) or (D) the date
such payments or benefits are no longer deemed by the Code to be
subject to penalty tax or interest. The provisions of this
paragraph shall only apply to the extent required to avoid
Employee’s incurrence of any penalty tax or interest under
Section 409A of the Code or any regulations or Treasury
guidance promulgated thereunder. In addition, if any provision of
this Agreement would cause Employee to incur any penalty tax or
interest under Section 409A of the Code or any regulations or
Treasury guidance promulgated thereunder, the Company shall, upon
the written request of Employee, reform such provision to maintain
to the maximum extent practicable the original intent of the
applicable provision without violating the provisions of
Section 409A of the Code and without creating additional cost
for the Company; and
(ii) the
Company’s right to repurchase the Restricted Shares under the
Restricted Stock Agreement shall lapse and Employee’s
ownership of the Restricted Shares shall be fully
vested.
9.
Employee’s Disability or Death . Employee’s
Employment shall terminate automatically in the event of
Employee’s death or “Disability.” In the event of
Employee’s death
5
or Disability,
the Company shall pay Employee’s estate or Employee all
accrued and unpaid Base Salary through the date of death or
Disability and any vacation that is accrued but unused as of the
date of death or Disability. For purposes of this Agreement,
“Disability” shall mean the Employee’s failure or
inability to perform his duties hereunder, for a period of not less
than 90 days within any 120-day period because of Employee’s
incapacitation due to physical or mental injury, disability, or
illness.
10.
Change of Control Benefits .
(a)
Severance Benefits . Employee will have the ability to
participate in the Company’s standard form of Change of
Control Agreement, which will be substantially in the form attached
hereto as Exhibit 5 (the “ Change of Control
Agreement ”) once approved by the Compensation Committee
of the Company’s Board of Directors. In the event of a
“Change of Control Termination,” as defined in the
Change of Control Agreement, Employee shall be entitled to the
severance and other benefits set forth in the Change of Control
Agreement (subject to the conditions set forth therein), provided,
however, that in such case, the Employee will not also be entitled
to severance benefits provided for under Section 8(c) of this
Agreement.
(b)
Change of Control Benefits . Pursuant to the terms and
conditions of the Plan, the employee’s equity grants
(restricted stock and options) will become immediately vested upon
the consummation of a Change of Control.
11.
Dispute Resolution Procedures. Except as expressly provided
in this Agreement, Employee agrees that any dispute or controversy
arising out of, relating to, or in connection with this Agreement,
or the interpretation, validity, construction, performance, breach,
or termination thereof shall be settled by arbitration, to the
extent permitted by law, to be held in Orange County, California in
accordance with the National Rules for the Resolution of Employment
Disputes then in effect of the American Arbitration Association
(the “ Rules ”) and in accordance with the
accompanying Mutual Arbitration Agreement attached hereto as
Exhibit 3 . The arbitrator’s decision shall be
final, conclusive and binding on the parties to the arbitration
pursuant to the Mutual Arbitration Agreement. Judgment may be
entered on the decision of the arbitrator in any court having
competent jurisdiction.
12.
Notices. Any reports, notices or other communications
required or permitted to be given by either party hereto, shall be
given in writing by personal delivery, overnight courier service,
or by registered or certified mail, postage prepaid, return receipt
requested, addressed to each respective party at the address shown
below or other current address:
Avanir
Pharmaceuticals
11388 Sorrento Valley Road
San Diego, California 92121
Fax: (858) 658-7455
Attn: President and Chief Executive Officer
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Michael J.
Puntoriero
[Address]
13.
Withholding . All payments to be made hereunder, including
Base Salary and bonus and severance payments, shall be paid less
applicable Federal and state withholding taxes.
(a)
Governing Law . This Agreement shall be governed by and
construed in accordance with the laws of the State of
California.
(b)
Assignment . Employee may not assign, pledge or encumber his
interest in this Agreement or any part thereof.
(c)
No Waiver of Breach . The failure to enforce any provision
of this Agreement shall not be construed as a waiver of any such
provision, nor prevent a party thereafter from enforcing the
provision or any other provision of this Agreement. The rights
granted the parties are cumulative, and the election of one shall
not constitute a waiver of such party’s right to assert all
other legal and equitable remedies available under the
circumstances.
(d)
Severability . The provisions of this Agreement are
severable, and if any provision shall be held to be invalid or
otherwise unenforceable, in whole or in part, the remainder of the
provisions, or enforceable parts of this Agreement, shall not be
affected.
(e)
Entire Agreement . This Agreement, the Restricted Stock
Agreement, and the exhibits hereto constitute the entire agreement
of the parties with respect to the subject matter of this Agreement
and supersede all prior and contemporaneous negotiations,
agreements and understandings between the parties, whether oral or
written.
(f)
Modifications and Waivers . No modification or waiver of
this Agreement shall be valid unless in writing, signed by the
party against whom such modification or waiver is sought to be
enforced.
(g)
Amendment . This Agreement may be amended or supplemented
only by a writing signed by both of the parties hereto.
(h)
Duplicate Counterparts . This Agreement may be executed in
duplicate counterparts, each of which shall be deemed an original;
provided, however, such counterparts shall together constitute only
one agreement.
(i)
Interpretation . The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(j)
Drafting Ambiguities . Each party to this Agreement and its
counsel have reviewed and revised this Agreement. The rule of
construction that any ambiguities are to be
7
resolved
against the drafting party shall not be employed in the
interpretation of this Agreement or any of the amendments to this
Agreement.
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EXECUTED at San
Diego, California, as of the Effective Date.
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AVANIR
PHARMACEUTICALS
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By:
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/c/ Eric K.
Brandt
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President and
Chief Executive Officer
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EMPLOYEE
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Dated:
5/4/06
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/c/ Michael J.
Puntoriero
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9
EXHIBIT 1
FORM OF EMPLOYEE CONFIDENTIALITY
AND INVENTIONS AGREEMENT
EXHIBIT 2
This General
Release (“ Release ”) is entered into effective
as of
, 20___, (the “ Effective Date ”) by and between
Avanir Pharmaceuticals, a California corporation, having its
principal offices at 11388 Sorrento Valley Road, San Diego,
California 921211 (“ Company ”) and [
], an individual residing at [
] (“ Employee ”) with reference to the following
facts:
A. On
, 2006, the parties hereto entered into an Employment Agreement
(“ Agreement ”) pursuant to which Employee is
eligible in certain circumstances to receive severance payments for
the periods provided in the Agreement from the date of termination
of his Employment (“ Termination Date ”) in
exchange for a release by Employee of all claims that he may have
against the Company and its subsidiaries and affiliates as of the
Termination Date.
B. The
parties desire to dispose of, fully and completely, all claims,
that Employee may have against the Company in, the manner set forth
in this Release.
NOW, THEREFORE, in
consideration of the severance payments referenced above and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Employee hereby agrees as
follows:
1.
Release . Employee, for himself/herself and his heirs,
successors and assigns, fully releases, and discharges Company, its
officers, directors, employees, shareholders, attorneys,
accountants, other professionals, insurers and agents (collectively
“ Agents ”), and all entities related to each
such party, including, but not limited to, heirs, executors,
administrators, personal representatives, assigns, parent,
subsidiary and sister corporations, affiliates, partners and
co-venturers (collectively “ Related Entities
”), from all rights, claims, demands, actions, causes of
action, liabilities and obligations of every kind, nature and
description whatsoever, Employee now has, owns or holds or has at
anytime had, owned or held or may have against the Company, Agents
or Related Entities from any source whatsoever, whether or not
arising from or related to the facts recited in this Release.
Employee specifically releases and waives any and all claims
arising under any express or implied contract, rules, regulation or
ordinance, including, without limitation, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans
with Disabilities Act, the California Fair Employment and Housing
Act, and the Age Discrimination in Employment Act, as amended
(“ ADEA ”).
2.
Section 1542 Waiver . This Release is intended as a
full and complete release and discharge of any and all claims that
Employee may have against the Company, Agents or Related Entities.
In making this release, Employee intends to release the Company,
Agents and Related Entities from liability of any nature whatsoever
for any claim of damages or injury or for equitable or declaratory
relief of any kind, whether the claim, or any facts on which such
claim might be based, is known or unknown to Employee. Employee
expressly waives all rights under
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§1542 of
the Civil Code of the State of California, which Employee
understands provides as follows:
A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Employee
acknowledges that he may discover facts different from or in
addition to those that he now believes to be true with respect to
this Release. Employee agrees that this Release shall remain
effective notwithstanding the discovery of any different or
additional facts.
3. Waiver
of Certain Claims . Employee acknowledges that he has been
advised in writing of his right to consult with an attorney prior
to executing the waivers set out in this Release, and that he has
been given a 21-day period in which to consider entering into the
release of ADEA claims, if any. In addition, Employee acknowledges
that he has been informed that he may revoke a signed waiver of the
ADEA claims for up to 7 days after executing this
Release.
4. No
Undue Influence . This Release is executed voluntarily and
without any duress or undue influence. Employee acknowledges he has
read this Release and executed it with full and free consent. No
provision of this Release shall be construed against any party by
virtue of the fact that such party or its counsel drafted such
provision or the entirety of this Release.
5.
Governing Law . This Release is made and entered into in the
State of California and accordingly the rights and obligations of
the parties hereunder shall in all respects be construed,
interpreted, enforced and governed in accordance with the laws of
the State of California as applied to contracts entered into by and
between residents of California to be wholly performed within
California.
6.
Severability . If any provision of this Release is held to
be invalid, void or unenforceable, the balance of the provisions of
this Release shall, nevertheless, remain in full force and effect
and shall in no way be affected, impaired or
invalidated.
7.
Counterparts . This Release may be executed simultaneously
in one or more counterparts, each of, which shall be deemed an
original, but all of which together shall constitute one and the
same instrument. This Release may be executed by facsimile, with
originals to follow by overnight courier.
8.
Dispute Resolution Proceedings . Any dispute or claim
arising out of or relating to this Release shall be subject to
final and binding arbitration conducted in accordance with that
certain Mutual Arbitration Agreement, attached as Exhibit 3 to
the Agreement.
9. Entire
Agreement . This Agreement constitutes the entire agreement of
the parties with respect to the subject matter of this Agreement,
and supersedes all prior and contemporaneous negotiations,
agreements and understandings between the parties, oral or
written.
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10.
Modification; Waivers . No modification, termination or
attempted waiver of this Agreement will be valid unless in writing,
signed by the party against whom such modification, termination or
waiver is sought to be enforced.
11.
Amendment . This Agreement may be amended or supplemented
only by writing signed by Employee and the Company.
IN WITNESS
WHEREOF, the undersigned have executed this Release at San Diego,
California as of the date first above written.
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AVANIR
PHARMACEUTICALS
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By:
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EMPLOYEE
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13
EMPLOYMENT AGREEMENT
EXHIBIT 3
MUTUAL ARBITRATION
AGREEMENT
This MUTUAL
ARBITRATION AGREEMENT (“Agreement”), dated as of
[May 1, 2006], is made by and between AVANIR Pharmaceuticals,
a California corporation (“the Company”) and Michael J.
Puntoriero (“Employee”) (collectively, the
“Parties” or “we”).
Agreement
to Arbitrate Certain Disputes and Claims
We agree to
arbitrate before a neutral arbitrator any and all disputes or
claims arising from or relating to Employee’s recruitment to
or employment with the Company, or the termination of that
employment, including claims against any current or former agent or
employee of the Company, whether the disputes or claims arise in
tort, contract, or pursuant to a statute, regulation, or ordinance
now in existence or which may in the future be enacted or
recognized, including, but not limited to, the following
claims:
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claims for fraud, promissory
estoppel, fraudulent inducement of contract or breach of contract
or contractual obligation, whether such alleged contract or
obligation be oral, written, or express or implied by fact or
law;
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claims for wrongful termination of
employment, violation of public policy and constructive discharge,
infliction of emotional distress, misrepresentation, interference
with contract or prospective economic advantage, defamation, unfair
business practices, and any other tort or tort-like causes of
action relating to or arising from the employment relationship or
the formation or termination thereof;
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•
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claims for discrimination,
harassment, or retaliation under any and all Federal, state, or
municipal statutes, regulations, or ordinances that prohibit
discrimination, harassment, or retaliation in employment, as well
as claims for violation of any other Federal, state, or municipal
statute, regulation, or ordinance, except as set forth
herein;
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claims for non-payment or incorrect
payment of wages, commissions, bonuses, severance, employee fringe
benefits, stock options and the like, whether such claims be
pursuant to alleged express or implied contract or obligation,
equity, the California Labor Code, the Fair Labor Standards Act,
the Employee Retirement Income Securities Act, and any other
Federal, state, or municipal laws concerning wages, compensation or
employee benefits; and
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claims arising out of or relating to
the grant, exercise, vesting and/or issuance of equity in the
Company or options to purchase equity in the Company.
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We understand and
agree that arbitration of the disputes and claims covered by this
Agreement shall be the sole and exclusive method of resolving any
and all existing and future disputes or claims arising out of
Employee’s recruitment to or employment with the Company
or
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the termination
thereof. We further understand and agree that the following
disputes and claims are not covered by this Agreement and shall
therefore be resolved in any appropriate forum, including courts of
law, as required by the laws then in effect:
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claims for workers’
compensation benefits, unemployment insurance, or state or Federal
disability insurance; and
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claims concerning the validity,
infringement, enforceability, or misappropriation of any trade
secret, patent right, copyright, trademark, or any other
intellectual or confidential property held or sought by Employee or
the Company, including claims alleged by Employee or the Company
that arise under the Company’s Employee Confidentiality and
Inventions Agreement.
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Nothing in this
Agreement should be interpreted as restricting or prohibiting the
Employee from filing a charge or complaint with a Federal, state,
or local administrative agency charged with investigating and/or
prosecuting complaints under any applicable Federal, state or
municipal law or regulation. Any dispute or claim that is not
resolved through the Federal, state, or local agency must be
submitted to arbitration in accordance with this
Agreement.
Final and
Binding Arbitration
We understand and
agree that the arbitration of disputes and claims under this
Agreement shall be instead of a trial before a court or jury. We
further understand and agree that, by signing this Agreement, we
are expressly waiving any and all rights to a trial before a court
regarding any disputes and claims which we now have or which we may
in the future have that are subject to arbitration under this
Agreement.
We understand and
agree that the arbitration shall be conducted in accordance with
the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association; provided, however , that
the Arbitrator shall allow the discovery authorized by California
Code of Civil Procedure section 1283.05 or any other discovery
required by law in arbitration proceedings. Also, to the extent
that any of the National Rules for the Resolution of Employment
Disputes or anything in this Agreement conflicts with any
arbitration procedures required by applicable law, the arbitration
procedures required by applicable law shall govern. Employee and
the Company also agree that nothing in this Agreement relieves
either of them from any obligation they may have to exhaust certain
administrative remedies before arbitrating any claims or disputes
under this Agreement.
We understand and
agree that the Arbitrator shall issue a written award that sets
forth the essential findings and conclusions on which the award is
based. The Arbitrator shall have the authority to award any relief
authorized by law in connection with the asserted claims or
disputes. The Arbitrator’s award shall be subject to
correction, confirmation, or vacation, as provided by any
applica
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