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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: AVANIR Pharmaceuticals | Michael J. Puntoriero You are currently viewing:
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AVANIR Pharmaceuticals | Michael J. Puntoriero

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Title: EMPLOYMENT AGREEMENT
Governing Law: California     Date: 12/18/2006
Industry: Biotechnology and Drugs     Sector: Healthcare

EMPLOYMENT AGREEMENT, Parties: avanir pharmaceuticals , michael j. puntoriero
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EXHIBIT 10.39

EMPLOYMENT AGREEMENT

     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 ").

AGREEMENT

     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.

     3.  Employment Duties .

          (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).

     4.  Compensation .

          (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

               (viii) Employee’s death.

     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

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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:

     If to AVANIR:

Avanir Pharmaceuticals
11388 Sorrento Valley Road
San Diego, California 92121
Fax: (858) 658-7455
Attn: President and Chief Executive Officer

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     If to Employee:

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.

     14.  General Provisions .

          (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

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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.

 

 

 

 

 

 

 

 

 

 

AVANIR PHARMACEUTICALS

 

 

 

 

 

 

 

 

 

Dated: 5/4/06

 

By:

 

/c/ Eric K. Brandt

 

 

 

 

 

 

 

 

 

 

 

 

 

Eric K. Brandt

 

 

 

 

 

 

President and Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

 

EMPLOYEE

 

 

 

 

 

 

 

 

 

Dated: 5/4/06

 

/c/ Michael J. Puntoriero

 

 

 

 

 

 

 



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EMPLOYMENT AGREEMENT

EXHIBIT 1

FORM OF EMPLOYEE CONFIDENTIALITY AND INVENTIONS AGREEMENT

 

 

 

EMPLOYMENT AGREEMENT

EXHIBIT 2

GENERAL RELEASE

     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:

RECITALS

     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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AVANIR PHARMACEUTICALS  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dated:

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EMPLOYEE

 

 

Dated:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



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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:

 

 

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;

 

     

 

 

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;

 

     

 

 

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;

 

     

 

 

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

 

     

 

 

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.

     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:

 

 

claims for workers’ compensation benefits, unemployment insurance, or state or Federal disability insurance; and

 

     

 

 

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.

     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.

Arbitration Procedures

     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 applicable law


 
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