Exhibit 10.8.3
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") between Xxxxx Xxxxxxxx
Corporation, a Delaware corporation ("Avery" or the "Company") and Xxxxxx X. xxx
Xxxxxxxxxxxx (the "Executive"), dated as of the 16th day of March, 1996.
1. Employment Period. Avery hereby agrees to continue the Executive
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in its employ, and the Executive hereby agrees to remain in the employ of Avery
for the period commencing on the date of this Agreement and ending on the second
anniversary of such date (the "Employment Period"); provided, however, that
commencing on the first day of the month next following the effective date
hereof, and on the first day of each month hereafter (the most recent of such
dates is hereinafter referred to as the "Renewal Date"), the Employment Period
shall be automatically extended so as to terminate two years from such Renewal
Date, unless at least 60 days prior to any Renewal Date Avery or the Executive
shall give notice to the other than the Employment Period shall not be so
extended, provided, further, however, that upon a Change of Control, if the
Executive is an employee of the Company at such time, the Employment Period
shall be extended until the second anniversary of the Change of Control.
2. Duties. (a) Executive's Position and Duties. During the
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Employment Period, the Executive's position (including titles and reporting
relationship to the Chief Executive Officer of Avery), authority and
responsibilities shall be similar to those held by the Executive on the date
hereof with such additions and modifications, and consistent with
responsibilities generally assigned to executive officers of Avery as the Chief
Executive Officer of Avery may in his discretion and acting in good faith from
time to time assign to Executive. During the Employment Period, the Executive
shall report directly to the Chief Executive Officer of the Company. The
Executive's services shall be performed in the general area in which Executive
was employed on the date of this Agreement and Executive will not be transferred
outside the area without Executive's consent, other than for normal business
travel and temporary assignments.
(b) Full Time. The Executive agrees to devote his full business time
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to the business and affairs of Avery and to use his best efforts to perform
faithfully and efficiently the responsibilities assigned to him hereunder to the
extent necessary to discharge such responsibilities, except for (i) services on
corporate, civic or charitable boards or committees not significantly
interfering with the performance of such responsibilities; (ii) periods of
vacation and sick leave to which he is entitled; and (iii) the management of his
personal investments and affairs. Executive will not engage
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in any outside business activity including, but not limited to, activity as a
consultant, agent, partner or officer or provide services of any nature directly
or indirectly to a corporation or other business enterprise.
3. Compensation. (a) Base Salary. During the Employment Period,
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the Executive shall receive a base salary ("Base Salary") at a monthly rate at
least equal to the monthly salary agreed to be paid to Executive by Avery on the
date of this Agreement. The Base Salary shall be reviewed at least every year
and may be increased at any time and from time to time by action of the Board of
Directors of Avery (the "Board") or any committee thereof or any individual
having authority to take such action in accordance with Xxxxx'x regular
practices. Any increase in the Base Salary shall not serve to limit or reduce
any other obligation of Avery hereunder, and after any such increase, the Base
Salary shall not be reduced.
(b) Bonus Programs. In addition to the Base Salary, the Executive
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shall continue to participate in Xxxxx'x cash and deferred bonus or incentive
plans or programs ("Bonus Programs") as may be in effect from time to time with
respect to executives employed by Avery at a participation level reflecting
Executive's responsibilities, including but not limited to, the Executive
Leadership Compensation Plan ("ELCP") and the Amended and Restated Long-Term
Incentive Plan
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("LTIP") as they may be modified from time to time and including any plans
substituted therefore, provided, however, except as provided in Section 5(f)
hereof, the determination of the amounts to be paid pursuant to such plans shall
be made by the Board or a committee thereof authorized to take such action and
shall be made in accordance with Xxxxx'x compensation practice and the terms and
provisions of such plans or programs.
(c) Incentive and Savings Plans. In addition to the Base Salary and
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participation in the Bonus Programs, during the Employment Period the Executive
shall continue to be entitled to participate in all incentive and savings plans
and programs, including stock option plans, as well as in all retirement plans
as may be in effect from time to time with respect to executives employed by
Avery at Executive's level reflecting Executive's responsibilities.
(d) Benefit Plans. The Executive and/or her family, as the case may
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be, shall be entitled to receive all amounts which she or her family is or would
have been entitled to receive as benefits under all medical, dental, disability,
group life, accidental death and travel accident insurance plans and programs of
Avery in which Executive is a participant as in effect from time to time with
respect to executives employed by Avery. Eligibility for continued
participation in such benefit plans shall remain in effect up through the ear-
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lier of: the date Executive commences a position with a new employer where the
overall content and value of the benefit plans available are either
substantially similar to or more favorable to Executive than the Company's
plans; or, at the conclusion of the two year life of this Agreement, which
follows the tender of appropriate notice or is pursuant to an applicable
termination under Sections 5(d) and 5(e).
(e) Expenses. During the Employment Period, the Executive shall be
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entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the policies and practices of Avery as in
effect from time to time with respect to executives employed by Avery.
(f) Fringe Benefits. The Executive shall be entitled to fringe
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benefits, commensurate with those available to comparable level executives, to
include an automobile and related expenses, and financial counseling in
accordance with the policies of Avery as in effect from time to time with
respect to executives employed by Avery for the full duration of the Agreement,
including the two year period from date of Executive's termination as governed
by the provisions of 5(d) and 5(e). Further in the event of Executive's
termination under the provisions of 5(d) and 5(e), Executive shall be entitled
to company-paid outplacement services commensurate with those provided to
terminated executives of comparable
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level and made available through and at the facilities of a reputable and
experienced vendor.
(g) Vacation. During the Employment Period, the Executive shall be
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entitled to paid vacation in accordance with the policies of Avery as in effect
from time to time with respect to executives employed by Avery.
(h) Certain Amendments. Nothing herein shall be construed to prevent
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Avery from amending, altering, eliminating or reducing any plans, benefits or
programs so long as the Executive continues to have the opportunity to receive
compensation and benefits consistent with Sections 3(a) through (g).
4. Termination. (a) Death or Disability. This Agreement shall
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terminate automatically upon the Executive's death. Avery may terminate this
Agreement, after having established the Executive's Disability, by giving to the
Executive written notice of its intention to terminate his employment, and his
employment with Avery shall terminate effective on the 90th day after receipt of
such notice (the "Disability Effective Date"). For purposes of this Agreement,
an Executive's Disability shall be deemed to have occurred when the Executive
becomes entitled to receive disability benefits under the Xxxxx Xxxx-Term
Disability Plan for exempt employees.
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(b) Cause. Avery may terminate the Executive's employment for
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"Cause" if a majority of the Board determines that "Cause" exists. For purposes
of this Agreement, "Cause" means (i) an act or acts of dishonesty on the
Executive's part which are intended to result in his substantial personal
enrichment at the expense of Avery or (ii) repeated violations by the Executive
of his obligations under Section 2 of this Agreement which are demonstrably
willful and deliberate on the Executive's part and which resulted in material
injury to Xxxxx, (iii) conduct of a criminal nature which may or which is likely
to have an adverse impact on Xxxxx'x reputation or standing in the community or
on its relationship with its customers or those who purchase or use its products
or (iv) fraudulent conduct in connection with the business or affairs of Avery
regardless of whether said conduct is designed to defraud Avery or others.
For purposes of this provision, no act or failure to act, on the part
of the Executive, shall be considered "willful" unless it is done, or omitted to
be done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by
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the Executive in good faith and in the best interests of the Company. The
cessation of employment of the Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of a majority of the entire
membership of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and the Executive
is given an opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the Executive is guilty of
the conduct described in subparagraphs (i), (ii), (iii) or (iv) above, and
specifying the particulars thereof in detail.
(c) Good Reason. This Executive may terminate his employment for
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Good Reason. For purposes of this Agreement, "Good Reason" means:
(i) Without the express written consent of the Executive, the
assignment to the Executive of any duties inconsistent in any material respect
with the Executive's position, reporting lines, authority or responsibilities as
contemplated by Section 2 of this Agreement;
(ii) any failure by Avery to comply with any of the provisions of
Section 3 of this Agreement, other than an insubstantial and inadvertent failure
remedied by Xxxxx
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promptly after receipt of notice thereof given by the Executive;
(iii) Xxxxx requires the Executive without his consent to be based
at any office or location other than an office or location in the general area
where Executive was based on the date of this Agreement, except for travel
reasonably required in the performance of the Executive's responsibilities;
(iv) any proposed termination by Avery of the Executive's employment
otherwise than as permitted by this Agreement; or
(v) any failure by Avery to obtain the assumption and agreement to
perform this Agreement by a successor as contemplated by Section 11(b).
Anything to the contrary in this Agreement notwithstanding, any
termination by the Executive for whatever reason during the 30-day period
following the first anniversary of a Change of Control shall constitute a
termination for Good Reason for all purposes of this Agreement.
(d) Change of Control. A "Change of Control" shall be deemed to have
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occurred if:
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(i) any "Person", which shall mean a "person" as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than Avery, any trustee or other fiduciary holding
securities under an employee benefit plan of Avery) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, or securities of Avery representing 30% or more of the combined
voting power of Xxxxx'x then outstanding voting securities;
(ii) during any period of 24 consecutive months, individuals, who at
the beginning of such period constitute the Board of Avery, and any new director
whose election by the Board, or whose nomination for election by Xxxxx'x
stockholders, was approved by a vote of at least one-half ( 1/2) of the
directors (other than in connection with an actual or threatened election
contest) (the "Incumbent Board") cease for any reason to constitute at least a
majority thereof;
(iii) the stockholders of Avery approve (I) a plan of complete
liquidation of Avery or (II) the sale or disposition by Avery for all or
substantially all of Xxxxx'x assets unless the acquirer of the assets or its
board of directors shall meet the conditions for a merger or consolidation in
subparagraphs (iv)(I) or (iv)(II) below; or
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(iv) the consummation of a merger or consolidation of Avery with any
other company other than:
(I) such a merger or consolidation which would result in the
voting securities of Avery outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the combined voting power
of Xxxxx'x or such surviving entity's outstanding voting securities immediately
after such merger or consolidation; and
(II) such a merger or consolidation, which would result in the
Incumbent Board immediately prior to the execution of the initial agreement, or
other action providing for such merger or consolidation, continuing to
constitute at least 50% of the directors of the surviving entity immediately
after such merger or consolidation.
In this paragraph (iv), "surviving entity" shall mean only an entity in which
all of Xxxxx'x stockholders immediately before such merger or consolidation
become stockholders by the terms of such merger or consolidation.
(e) Notice of Termination. Any termination by Avery for Cause or
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following a Change of Control or by the Executive for Good Reason shall be
communicated by Notice of
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Termination to the other party hereto given in accordance with Section 13(b).
Any termination by Avery due to Disability shall be given in accordance with
Section 4(a). For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) and except in the event of a termination as a result
of a Change of Control, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (iii) if the termination date
is other than the date of receipt of such notice, specifies the termination date
of this Agreement (which date shall be not more than 15 days after the giving of
such notice).
(f) Date of Termination. "Date of Termination" means the fifth day
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following the mailing (or if personally delivered, the date of delivery) of the
Notice of Termination or any later date specified therein, as the case may be.
Notwithstanding any contrary provision in Section 4(e), if the Executive's
employment is terminated by Avery for any reason other than Cause, Death, or
Disability, the Date of Termination is the date on which Avery notifies the
Executive of such termination; if the Executive's employment is terminated due
to Disability, the Date of Termination is the Disability Effective Date, and if
the Executive's employment
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is terminated due to the Executive's death, the Date of Termination shall be the
date of death.
5. Obligations of Avery upon Termination.
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(a) Death. If the Executive's employment is terminated by reason of
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the Executive's death, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this Agreement other
than those obligations accrued hereunder at the date of his death. Anything in
this Agreement to the contrary notwithstanding, the Executive's family shall be
entitled to receive benefits at least equal to those provided by Avery to
surviving families of executives of Avery under the plan, programs and policies
described in Sections 3(d) and 3(f) of this Agreement, if any, as in effect from
time to time with respect to executives employed by Avery with comparable
responsibilities and their families.
(b) Disability. If the Executive's employment is terminated by
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reason of the Executive's Disability, the Executive shall be entitled to receive
after the Disability Effective Date disability and other benefits at least equal
to those provided by Avery to disabled employees and/or their families in
accordance with the plans, programs and policies described in Sections 3(d) and
3(f) of this Agreement if and as in effect on the Disability Effective Date with
respect to
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executives with comparable responsibilities and their families.
(c) Cause. If the Executive's employment shall be terminated for
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Cause or if the Executive terminates his employment without Good Reason, Avery
shall pay the Executive his full Base Salary through the Date of Termination at
the rate in effect at the time Notice of Termination is given, and Avery shall
have no further obligations to the Executive under this Agreement.
(d) Good Reason, Other Than for Cause or Disability.
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(i) Lump Sum Payments. If during the Employment Period Avery shall
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terminate the Executive's employment other than for Cause or Disability, or the
Executive shall terminate his employment for Good Reason prior to a Change of
Control as provided in Section 5(e):
(I) Avery shall pay to the Executive in a lump sum in cash within 30
days after the Date of Termination the aggregate of the following amounts:
(A) if not theretofore paid, the Executive's Base Salary through the
Date of Termination at the rate in effect at the time of Notice of Termination
was given;
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(B) a current year ELCP bonus equal to the average of the greatest
two out of the three most recent annual ELCP bonuses received by Executive
(which two greatest ELCP bonuses need not represent consecutive years) and
prorated to reflect the total number of full months Executive is employed in the
year in which termination occurs;
(C) an LTIP payment reflective of the Executive's full participation
in the three-year plan, so that at the time that final performance under the
Plan is determinable and individual payouts calculated, Executive shall promptly
receive an amount equivalent to what he would have received if he had remained
employed through the date of such payouts.
(D) two times the sum of (x) the Executive's annual Base Salary at
the rate in effect at the time the Notice of Termination is given and (y) the
Annual Bonus defined in Section 5(d)(i)(I)(B), but without proration.
(II) Options granted to Executive under Xxxxx'x stock option plans
(the "Stock Option Plan") which options have been outstanding for more than six
months shall become immediately exercisable and Executive shall have for a
period of not less than 2 years following such Date of Termination to exercise
all options granted under the Stock
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Option Plans then exercisable, but not to exceed the term of the grant, or which
become exercisable pursuant to this clause (II). For options granted to
Executive on and after November 30, 1995, in the event Executive is age 55 or
older on the Date of Termination, he will be treated as a retiree under the
Stock Option Plan, which will enable Executive to vest in and exercise stock
options theretofore granted under that plan, for a period of up to five years
(but in no event past the expiration of the term of the option grant).
(III) In addition, Avery shall, promptly upon submission by the
Executive of supporting documentation, pay or reimburse to the Executive any
costs and expenses paid or incurred by the Executive which would have been
payable under Section 3(e) if his employment had not terminated; and
(IV) Until the earlier of (i) the second anniversary of the Date of
Termination referred to in this Section, or (ii) the date Executive accepts
other employment, Avery shall continue benefits to the Executive and/or his
family at least equal to those which would have been provided to them in
accordance with the plans, programs and policies described in Sections 3(d) and
3(f) of this Agreement if the Executive's employment had not been terminated, if
and as in effect from time to time with respect to executives employed by Avery
with comparable responsibilities and their families. The last 18 months of
Executive's participation shall be
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deemed to be participation under an election to continue such benefits under the
Consolidated Omnibus Budget Reconciliation Act.
(V) For purposes of the Avery nonqualified deferred compensation and
qualified and nonqualified retirement plans, Executive shall be credited with
two years of service in addition to his years of service actually accrued
through the Date of Termination and Executive shall also be credited with (i)
the number of years of attained age in addition to his actual age attained upon
the Date of Termination, and (ii) the number of years of service, minimally
required in order to satisfy the requirements for "early retirement" benefits
eligibility under both the Avery deferred compensation and qualified and
nonqualified retirement plans. The crediting of age and service to the
Executive shall be taken into account for all purposes of the plans. During the
two-year period immediately succeeding Executive's termination date, Executive
shall participate in any enhancements or improvements to Avery benefit plans
available to Avery executives, including extensions to the duration of receipt
of payments, increased payment amounts, or any other similar changes which may
ensue during the applicable period. In the event that the benefits described
above cannot be provided by the terms of the plans referred to herein, Avery
shall provide the Executive with identical benefits outside of such plans.
Commencement of benefits under
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the foregoing plans shall be subject to the Executive's ability to defer such
benefits as provided pursuant to such plans as of the date hereof.
(e) Change of Control. If during the Employment Period and within 24
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months following a Change of Control, Executive shall terminate his employment
for Good Reason as defined in Section 4(c) or if Avery terminates the
Executive's employment other than for Cause or Disability:
(i) Avery shall pay to the Executive in a lump sum in cash within 30
days after the Date of Termination the aggregate of the following amounts:
(A) if not theretofore paid, the Executive's Base Salary through the
Date of Termination at the rate in effect at the time of Notice of Termination
was given; and
(B) an amount equal to the ELCP bonus that would have been payable to
executives of Avery in the same bonus category as Executive pursuant to the
Bonus Programs provided in Section 3(b) assuming, for purposes of calculating
the amount of the bonus pool under the plan, that the "maximum" amount, as that
term is used in the plan, were achieved, ("Annual Bonus") multiplied by a
fraction whose numerator shall be the number of full months that have elapsed
from the end of the last fiscal year with respect to which an
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ELCP bonus calculation was made, and ending on the Date of Termination and the
denominator shall be 12. The year on which the computation is based shall be the
year in which the Date of Termination occurred;
(C) three times the sum of (x) the Executive's annual Base Salary at
the rate in effect at the time the Notice of Termination is given, and (y) the
Executive's Annual ELCP Bonus based upon the formula described in 5.(d)(i)(I)(B)
but without proration, and assuming a maximum bonus pool and payout for the
year; and
(D) the full term payment for the three-year period of the LTIP,
assuming for purposes of calculating the amount earned under this plan,
achievement of the three-year maximum award, less any interim payments
previously received by Executive.
(ii) If it is determined that any payment or distribution by Avery to
Executive, whether pursuant to this Agreement or otherwise (determined without
regard to any additional payments required pursuant to this sentence) (a
"Payment") would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986 (the "Code") or any interest or penalties are
incurred by Executive with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred
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to as the "Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(iii) In addition, Executive shall receive the amounts and be entitled
to the benefits provided in clauses (II), (III), (IV) and (V) of Section
5(d)(i).
(f) Bonus During Cancellation Period. If Avery notifies the
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Executive that the Employment Period provided in Section 1 hereof will not be
automatically extended as provided therein, the compensation of Executive shall
continue as provided in this Agreement for the period provided therein, except
that the amount of short-term incentive compensation payable under the Bonus
Programs with respect to each fiscal year during such period (including the year
in which the notice was given) shall be the Annual Bonus as determined in
Section 5(d)(I)(B). Amounts payable with respect to the year in which the term
specified in Section 1 expires shall be prorated based on a fraction the
numerator of which is the number of full months from the beginning of such year
until
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the date of the expiration of this Agreement and denominator is 12.
6. Non-exclusivity of Rights. Nothing in this Agreement shall
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prevent or limit the Executive's continuing or future participating in any
benefit, bonus, incentive or other plan or program provided by Avery and for
which the Executive may qualify, nor shall anything herein limit or otherwise
affect such rights as the Executive may have under any stock option or other
agreements with Avery or any of its affiliated companies. Except as otherwise
provided herein, amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of Avery at or
subsequent to the Date of Termination shall be payable in accordance with such
plan or program.
7. No Set Off, Payment of Fees. Except as provided herein, Xxxxx'x
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obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including without limitation any set-off, counterclaim, recoupment, defense or
other right which Avery may have against the Executive or others. Avery agrees
to pay, to the full extent permitted by law, all legal fees and expenses which
the Executive may reasonably incur as a result of any contest (regardless or the
outcome thereof) by Avery or others of the validity or enforceability of, or
liability under, any
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provision of this Agreement other than expenses relating to a claim by Executive
that he terminated for Good Reason or that the termination for Cause was
improper, in which case such fees and expenses shall be paid only if Executive
prevails in whole or in part. All amounts provided herein shall include, in each
case, interest, compounded quarterly, on the total unpaid amount determined to
be payable under this Agreement, such interest to be calculated on the basis of
the prime commercial lending rate announced by Bank of American National Trust
and Savings Association in effect from time to time during the period of such
nonpayment. In the event that the Executive shall in good faith give a Notice of
Termination for Good Reason and it shall thereafter be determined that Good
Reason did not exist, the employment of the Executive shall, unless Avery and
the Executive shall otherwise mutually agree, be deemed to have terminated at
the date of giving such purported Notice of Termination by mutual consent of
Avery and the Executive shall be entitled to receive only those payments and
benefits which he would have been entitled to receive at such date.
8. Arbitration of Disputes. (a) The parties agree that any
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disputes, controversies or claims which arise out of or related to this
Agreement, Executive's employment or the termination of his employment,
including, but not limited to, any claim relating to the purported validity,
interpretation, enforceability or breach of this Agreement, and/or any other
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claim or controversy arising out of the relationship between the Executive and
Avery (or the nature of the relationship) or the continuation or termination of
that relationship, including, but not limited to, claims that a termination was
for Cause, including the Board's determination in accordance with Section 4(b),
or for Good Reason, claims for breach of covenant, breach of an implied covenant
of good faith and fair dealing, wrongful termination, breach of contract, or
intentional infliction of emotional distress, defamation, breach of right of
privacy, interference with advantageous or contractual relations, fraud,
conspiracy or other tort or property claims of any kind, which are not settled
by agreement between the parties, shall be settled by arbitration before a board
of three arbitrators.
One arbitrator shall be selected by the Executive, one by Avery and
the third by the two persons so selected, all in accordance with the labor
arbitration rules of the American Arbitration Association then in effect. In
the event that the arbitrator selected by the Executive and the arbitrator
selected by Avery are unable to agree upon a third arbitrator, then the third
arbitrator shall be selected from a list of seven provided by the office of the
American Arbitration Association nearest to the employee's residence with the
parties striking names in order and the party striking first to be determined by
the flip of a coin. The arbitration shall be held in a location to be mutually
agreed upon by the parties. In
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the absence of agreement, the Chairman of the Board of Avery shall determine the
location.
(b) In consideration of the parties' agreement to submit to
arbitration all disputes with regard to this Agreement and/or with regard to any
alleged contract, or any other claim arising out of their conduct, the
relationship existing hereunder or the continuation or termination of that
relationship, and in further consideration of the anticipated expedition and the
minimizing of expense of this arbitration remedy, the arbitration provisions of
this Agreement shall provide the exclusive remedy, and each party expressly
waives any right he or it may have to seek redress in any other forum.
(c) Any claim which either party has against the other party could be
submitted for resolution pursuant to this Section must be presented in writing
by the claiming party to the other within one year of the date the claiming
party knew or should have known of the facts giving rise to the claim, except
that claim arising out of or related to the termination of the Executive's
employment must be presented by him within one year of the Date of Termination.
Unless the party against whom any claim is asserted waives the time limits set
forth above, any claim not brought within the time periods specified shall be
waived and forever barred.
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(d) Xxxxx will pay all costs and expenses of the arbitration to the
extent provided in Section 8, hereof. In the event expenses are not paid by
Avery, and without diminishing the Executive's right to reimbursement as
provided in this Section costs and expenses shall be paid as follows: (x) the
expenses of the neutral arbitrator and of a transcript of any arbitration
proceeding shall be divided equally between the Executive and Avery; and (y)
each party shall bear the expenses of the arbitrator selected by it and of the
witnesses it calls.
(e) Any decision and award or order of the majority of the
arbitrators shall be binding upon the parties hereto and judgment thereon may be
entered in the Superior Court of the State of California or any other court
having jurisdiction.
(f) Each of the above terms and conditions shall have separate
validity and the invalidity of any part thereof shall not affect the remaining
parts.
(g) Any decision and award or order of the majority of the
arbitrators shall be final and binding between the parties as to all claims
which were or could have been raised in connection with the dispute to the full
extent permitted by law. In all other cases the parties agree that the decision
of the board of arbitrators shall be a condition precedent to
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the institution or maintenance of any legal, equitable, administrative, or other
formal proceeding by the employee in connection with the dispute, and that the
decision and opinion of the board of arbitrators may be presented in any other
forum on the merits of the dispute.
9. General Release. Executive acknowledges and agrees that this
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Agreement includes the entire agreement and understanding between the parties
with regard to Executive's employment or the termination thereof during the
Employment Period and all amounts to which Executive shall be entitled whether
during the term of employment or upon termination thereof. Accordingly, upon
Xxxxx'x fulfilling its obligations to Executive hereunder, Executive, on behalf
of himself and his related individuals and entities, if any, including, but not
limited to, any predecessors, successors/assigns, and any and all other related
individuals and entities, if any, and each of them, shall and does hereby
forever relieve, release, and discharge Avery and its respective predecessors,
successors, assigns, owners, attorneys representatives, affiliates, parent
corporations, subsidiaries (whether or not wholly-owned), divisions, partners
and their officers, directors, agents, employees, servants, executors,
administrators, accountants, investigators, insurers, and any and all other
related individuals and entities, if any, and each of them, in any and all
capacities, from any and all claims, debts, liabilities, demands, obligations,
liens,
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promises, acts, agreements, costs and expenses (including, but not limited to,
attorneys' fees), damages, actions and causes of action, of whatever kind or
nature, including, without limitation, any statutory, civil or administrative
claim, or any claim, arising out of acts or omissions occurring before the
execution of this Agreement, whether known or unknown, suspected or unsuspected,
fixed or contingent, apparent or concealed (collectively referred to as
"claims"), including, but not limited to, any claims based on, arising out of,
related to or connected with the subject matter of this Agreement, Executive's
employment or the termination thereof, and any and all facts in any manner
arising out of, related to or connected with Executive's employment with, or
termination of employment from, Avery or any of its related entities, including,
but not limited to, any claims arising from rights under federal, state, and
local laws prohibiting discrimination on the basis of race, national origin,
sex, religion, age, marital status, pregnancy, handicap, ancestry, sexual
orientation, or any other form of discrimination, and any common law claims of
any kind, including, but not limited to, contact, tort, and property rights
including, but not limited to, breach of contract, breach of the implied
covenant of good faith and fair dealing, tortious interference with contract or
current or prospective economic advantage, fraud, deceit, misrepresentation,
defamation, wrongful termination, infliction of emotional distress, breach of
fiduciary duty, and any other common law claim of any kind whatever.
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Upon Xxxxx'x fulfilling its obligations to Executive hereunder,
Executive expressly waives any and all rights under Section 1542 of the Civil
Code of the State of California, or any other federal or state statutory rights
or rules, or principles of common law or equity, or those of any jurisdiction,
government, or political subdivision thereof, similar to Section 1542 ("similar
provision"). Thus Executive may not invoke the benefits of Section 1542 or any
similar provision in order to prosecute or assert in any manner any claims
released hereunder. Section 1542 provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
10. Confidential Information. The Executive shall hold in a
------------------------
fiduciary capacity for the benefit of Avery all secret or confidential
information, knowledge or data relating to Avery or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during his employment by Avery or any of its affiliated companies
and which shall not be public knowledge and will continue to be bound by the
provisions of the Patent and
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Confidence Agreement previously executed by Executive. After termination of the
Executive's employment with Avery, he shall not, without the prior written
consent of Avery, communicate or divulge any such information, knowledge or data
to anyone other than Avery and those designated by it.
11. Successors. (a) This Agreement is personal to the Executive and
----------
without the prior written consent of Avery shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
Avery and its successors. Avery shall require any successor to all or
substantially all of the business and/or assets of Avery, whether direct or
indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, by an agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent as Avery would be required to perform if no such succession
had taken place.
12. Amendment. This Agreement contains the entire agreement between
---------
the parties with respect to the subject mat-
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ter hereof and may be amended or modified only by a written instruction executed
by Executive and Avery.
13. Miscellaneous. (a) This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
-------------------
Xxxxxx X. xxx Xxxxxxxxxxxx
000 Xxxxxxxxx Xxxxx
Xx Xxxxxx Xxxxxxxxxx, XX 00000
If to the Corporation:
---------------------
Xxxxx Xxxxxxxx Corp.
000 X. Xxxxxx Xxxxx Xxxx.
Xxxxxxxx, XX 00000
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or to such other address as either party shall have furnished to the other in
writing in accordance herewith.
(c) The invalidity of unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) Avery may withhold from any amounts payable under this Agreement
such Federal, state or local taxes as shall be required to be withheld pursuant
to any applicable law or regulation.
(e) This Agreement supersedes all other agreements and arrangements
between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Executive has hereunto set hand and, pursuant
to the authorization from the Board of Directors, Avery has caused these
presents to be executed in its name on its behalf, and its corporate seal to be
hereunto affixed and attested by its Secretary, all as of the date and year
first above written.
/s/ Xxxxxx X. xxx Xxxxxxxxxxxx
______________________________
Xxxxxx X. xxx Xxxxxxxxxxxx
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XXXXX XXXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
Chairman of the Board and
Chief Executive Officer
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