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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.
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AVANIR PHARMACEUTICALS
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Dated: 5/4/06
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By:
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/c/ Eric K. Brandt
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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
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.
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AVANIR PHARMACEUTICALS
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Dated:
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By:
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EMPLOYEE
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Dated:
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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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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.
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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