ex10-32.htm


    EXHIBIT
10.32

    


    SEPARATION
AGREEMENT AND RELEASE OF CLAIMS

    


    


    This
Separation Agreement and Release of Claims (“Separation Agreement”) is made by
and between NeoMagic Corporation (the “Company”), and Douglas R. Young,
(“Employee”).  The Company and Employee shall collectively be referred
to in this Separation Agreement as the “Parties” and sometimes individually as a
“Party.”

    


    WHEREAS,
Employee was employed by the Company pursuant to an Employment Agreement, dated
May 1, 2006 (the “Employment Agreement”);

    


    WHEREAS,
the Company and Employee have entered into an Employment, Confidential
Information, Invention Assignment and Arbitration Agreement (the
“Confidentiality Agreement”);
 

    WHEREAS,
the Company and Employee have mutual agreed that Employee’s employment with the
Company ceased as of January 19, 2010 (the “Termination Date”) by mutual
agreement of the Company and the Employee and Employee acknowledges that as a
result, he has no rights to any severance benefits under the Employment
Agreement, however, the Company will provide certain benefits to Employee as
described in this Separation Agreement and the Consulting Agreement (as defined
below);

    


    WHEREAS,
concurrently herewith, and as an integral part hereof, the Parties also wish to
enter into the Consulting Agreement in substantially the form attached hereto as
Exhibit A;

    


    WHEREAS,  Employee’s
receipt of certain separation benefits is conditioned upon the execution of this
Separation Agreement;

    


    WHEREAS,
the Parties have negotiated and agreed, for valid and sufficient consideration,
to revise certain terms of this Separation Agreement from those terms contained
in the form of Separation Agreement originally attached as Exhibit B to the
Employment Agreement;

    


    NOW
THEREFORE, in consideration of the mutual promises made herein, the Company and
Employee hereby agree as follows:

    


    1.           
 Consideration.  Provided
that Employee does not revoke this Separation Agreement prior to the Effective
Date (as defined in Section 7(h)(v) below), the Company agrees to pay Employee
as new consideration to which Employee is not otherwise entitled severance pay
and other benefits, including accelerated vesting and an extension of the
exercise period on Employee’s outstanding options (the “Severance
Benefits”).  The Severance Benefits consist of the
following:

    


    (a)           the
gross amount of fifty thousand and no/100 dollars ($50,000.00), subject to
appropriate tax and other applicable withholding, to be paid within ninety (90)
days following the Effective Date of this Separation Agreement by a wire
transfer to an account designated by Employee to the Company in
advance  This amount will be reported to the Internal Revenue Service
(“IRS”) and other appropriate taxing authorities on Form W-2 (or other
appropriate forms);

    


    (b)           the
gross amount of two hundred thirty-five thousand and no/100 dollars
($235,000.00), subject to appropriate tax and other applicable withholding, to
be paid in twenty-six (26) equal amounts of nine thousand thirty-eight and
46/100 dollars ($9,038.46) in accordance with the Company’s normal payroll
procedures, beginning with the first Company payroll period following the
Effective Date of this Separation Agreement.  This amount will be
reported to the IRS and other appropriate taxing authorities on Form W-2 (or
other appropriate forms;

     

    
      
        
        

      

      
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    (c)           All
of Employee's options that are unvested as of the Effective Date shall
accelerate and become fully vested as of the Effective Date and the right to
exercise the vested options shall be extended through the date six (6) months
following the Termination Date on all of Employee’s outstanding options that
were granted prior to the Termination Date;

    


    (d)           There
is a good faith dispute between Employee and the Company as to how much, if any,
additional accrued vacation pay remains owed to Employee.  Company
will pay Employee the gross amount of ten thousand and no/100 dollars
($10,00.00), subject to appropriate tax and other applicable withholding, to be
paid within twenty (20) days following the Effective Date of this Separation
Agreement by a wire transfer to an account designated by Employee to the Company
in advance.  This amount will be reported to the IRS and other
appropriate taxing authorities on Form W-2 (or other appropriate
forms);

    


    (e)           It
is the intent of the parties that the benefits provided under this Separation
Agreement and the Consulting Agreement, including all severance payments and all
other cash, equity, and other benefits, shall not be deferred compensation
arrangements under Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”), or comply with the requirements of Sections
409A.  The parties agree to take all reasonably necessary steps to
have such benefits not be deferred compensation arrangements under Section
409A.  .  With respect to the time period within which
Employee may exercise any outstanding stock options to acquire Company common
stock, the parties agree to avoid the imposition of Section 409A as follows: (1)
with respect to options that have been issued to Executive prior to Employees
Termination Date to acquire Company common stock, Employee shall exercise such
options, if at all, by the earlier of (i) the end of its original maximum
contractual term, or (ii) six (6) months from the Termination Date. For purposes
of Section 409A, each payment made under this Separation Agreement shall be
designated as a “separate payment” within the meaning of Section 409A. 
Notwithstanding the provisions of Section 1(d) and the foregoing provisions of
this Section, if Employee is a “specified employee,” within the meaning of
Section 409A, as of the Termination Date, then any benefits payable to Employee
under Section 1 that may be considered deferred compensation under Section 409A
and would otherwise be payable to Employee within six (6) months following
Employee’s Termination Date shall instead be paid to Employee in a single lump
sum on the date that is six (6) months and one (1) day  following
Employee’s Termination Date.  Notwithstanding anything to the contrary
herein, except to the extent any expense, reimbursement or in-kind benefit
provided pursuant to this Agreement does not constitute a “deferral of
compensation” within the meaning of Section 409A of the Code (x) the amount of
expenses eligible for reimbursement or in-kind benefits provided to Executive
during any calendar year will not affect the amount of expenses eligible for
reimbursement or in-kind benefits provided to Executive in any other calendar
year, (y) the reimbursements for expenses for which Executive is entitled to be
reimbursed shall be made on or before the last day of the calendar year
following the calendar year in which the applicable expense is incurred and (z)
the right to payment or reimbursement or in-kind benefits hereunder may not be
liquidated or exchanged for any other benefit.

    


    (f)         
  In reference to all amounts and transactions under this Separation
Agreement, the Company shall issue and/or file documents that are legally
required and/or the Company in good faith believes may be required by the IRS
and other appropriate taxing authorities.  These actions may include,
but are not limited to, issuing Employee appropriate Forms W-2 and/or 1099, or
other documentation required by federal and state law.

     

    
      
        
        

      

      
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    2.           
 Confidential
Information.  Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of the
Confidentiality Agreement between Employee and the Company.  Employee
confirms and the Company acknowledges that Employee has returned all Company
property and confidential information that needs to be returned.

    


    3.             Board
Membership.  Effective as of the Effective Date, Employee resigns as
a director of the Company (including from each committee thereof) and as a
director and officer of any Company subsidiaries for which he currently is a
director or officer.

    


    4.          
  Payment of
Salary and COBRA Rights.  Employee acknowledges and represents
that the Company has paid all salary, wages, bonuses, accrued vacation,
commissions and any and all other benefits due to Employee once the above-noted
payments and benefits as described in Section 1 are received and that he will
not seek any further payments of salary, wages, bonuses, accrued vacation, and
commissions, including, but not limited to, any interest and/or penalties that
Employee claims were owed through the Effective Date.  Employee
further acknowledges and represents that he and his dependents have not
participated in the Company’s group health insurance policies, and therefore
neither Employee nor any of his dependents is eligible for any Company-provided
health insurance benefits, including, but not limited to, any Consolidated
Omnibus Budget Reconciliation Act (“COBRA”) continuation of group health
coverage, following the Termination Date.

    


    
      5.         
   Employee Representations and
Warranties Regarding “Cause.”

    

    


    (a)           Employee
represents and warrants that he has not engaged in any acts or omissions that
would constitute “Cause” under Section 10(b)(ii) through 10(b)(v) of the
Employment Agreement, specifically (ii) Employee’s conviction
of or plea of nolo
contendere to the commission of any felony or gross misdemeanor, but only
if such event significantly harms the Company’s reputation or business;
(iii) any fraud,
misrepresentation or gross misconduct by Employee that is materially injurious
to the Company; (iv) a material and willful violation by Employee of a federal
or state law or regulation applicable to the business of the Company which is
materially injurious to
the Company, and (v) Employee’s willful
breach of a material provision of this Agreement;

    


    (b)           Employee
understands that Employee’s representations and warranties contained in this
Section 5 are material to the Company; that the Company is relying upon them in
entering into Section 8 of this Separation Agreement (Company Release of Claims)
and in agreeing to assume its obligations contained in Section 8 of the
Separation Agreement; that the Company’s reliance upon these representations and
warranties by Employee is reasonable, and if these representations and
warranties by Employee were not true, the Company would not agree to assume the
obligations contained in Section 8 herein.

    


    6.         
   Expense
Reimbursement.  Employee will be reimbursed for all outstanding
properly documented business expenses incurred through the Termination Date, if
any, according to the usual Company procedures.  Employee will submit
his final documented expense reimbursement statement within twenty (20) days
following the Termination Date.   All reimbursements will be paid
to Employee no later than twenty (20) days after such properly documented
expenses are submitted by the Employee.

    


    7.        
    Employee Release of
Claims.  Employee agrees that the foregoing Severance Benefits
represents settlement in full of all outstanding obligations owed to Employee by
the Company.  Employee, on his own behalf and on behalf of his
executors, heirs,  and assigns, hereby fully and forever releases the
Company and its officers, directors, employees, investors, shareholders,
administrators, attorneys, insurers, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, from, and agrees not to sue
concerning, any claim, duty, obligation or cause of action relating to any
matters of any kind, whether presently known or unknown, suspected or
unsuspected, that he may possess arising from any omissions,
acts,  facts, or things that have occurred up until and including the
Effective Date, including, without limitation,

     

    
      
        
        

      

      
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    (a)           any
and all claims relating to or arising from Employee’s employment relationship
with the Company and the termination of that relationship;

    


    (b)           any
and all claims relating to, or arising from, Employee’s right to purchase, or
actual purchase of shares of stock of the Company, including, without
limitation, any claims for fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law, and securities fraud under
any state or federal law;

    


    (c)           any
and all claims for wrongful discharge of employment; termination in violation of
public policy; discrimination; breach of contract, both express and implied;
breach of a covenant of good faith and fair dealing, both express and implied;
additional benefits; promissory estoppel; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospec­tive economic advantage;
unfair business practices; defamation; libel; slander; negligence; personal
injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;

    


    (d)           any
and all claims for violation of any federal, state or municipal statute,
including, but not limited to, Title VII of the Civil Rights Act of 1964,
as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment
Act of 1967; the Americans with Disabilities Act of 1990; the Fair Labor
Standards Act; the Employee Retirement Income Security Act of 1974; The Worker
Adjustment and Retraining Notification Act; the Older Workers Benefit Protection
Act of 1990 (“OWBPA”); the Family Medical Leave Act; the Sarbanes-Oxley Act; the
California Fair Employment and Housing Act; the California Family Rights Act;
and the California Labor Code, all as amended;

    


    (e)           any
and all claims for violation of the federal, or any state,
constitution;

    


    (f)           any
and all claims arising out of any other laws and regulations relating to
employment or employment discrimination; and

    


    (g)            any
and all claims for attorneys’ fees and costs.

    


    The
Company and Employee agree that the release set forth in this section shall be
and remain in effect in all respects as a complete general release as to the
matters released.  However, this release is not intended to bar any
claims that, by statute, may not be waived, such as any challenge to the
validity of Employee’s release of claims under the Age Discrimination in
Employment Act of 1967, as amended, as set forth in this Separation Agreement,
claims for workers’ compensation benefits, unemployment insurance benefits, or
any statutory right to be indemnified for necessary expenditures or losses
incurred in the discharge of Employee’s duties under California Labor Code
Section 2802.  This release also does not extend to any obligations
incurred under this Separation Agreement.

    


    (h)           Waiver of Claims Under
ADEA.  This Separation Agreement is intended to satisfy the
requirements of the OWBPA.  Employee hereby acknowledges that he is
waiving and releasing any rights he has or may have under the Age Discrimination
in Employment Act of 1967, as amended (“ADEA”) and that this waiver and
release is knowing and voluntary.  Employee acknowledges that the
Severance Benefits and other consideration are in addition to anything to which
he was already entitled.  He agrees further that he is advised by this
Separation Agreement, as required by the OWBPA, that (i) this waiver and release
does not apply to any rights or claims that may arise after the Effective Date
of this Agreement; (ii) he has the right to consult with an attorney prior to
signing this Separation Agreement, (iii) he may have at least twenty-one (21)
days to consider this Separation Agreement, (iv) he has seven (7) days following
his signing of the Separation Agreement to revoke the Separation Agreement, and
(v) this Separation Agreement shall not be effective until the revocation period
has expired, therefore making the effective date the eighth (8th) day
after this Separation Agreement is signed by him (the “Effective
Date”).   In addition, this Separation Agreement does not
prohibit Employee from challenging the validity of this Separation Agreement’s
waiver and release of claims under the ADEA.

     

    
      
        
        

      

      
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    8.          
  Company
Release of Claims.  The Company, on behalf of itself and its
predecessor, successor  corporations, and assigns hereby fully and
forever releases Employee and his respective heirs,  executors,
agents, and assigns from, and agrees not to sue concerning, any claim, duty,
obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that it may possess
arising from any omissions, acts or facts that have occurred up until and
including the Termination Date.  However, this release is not intended
to bar any claims that, by statute, may not be waived.

    


    9.          
  Civil Code
Section 1542.  Employee represents that he is not aware of any
claim by him other than the claims that are released by him in this Separation
Agreement.  Employee acknowledges that he has been advised by legal
counsel and is familiar with the provisions of California Civil Code
Section 1542, which 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,
being aware of said code section, agrees to expressly waive any rights he may
have thereunder, as well as under any other statute or common law principles of
similar effect, to the fullest extent permitted under applicable
law.

    


    10.           No Pending or Future
Lawsuits.  Employee represents that he has no lawsuits, claims,
or actions pending in his name, or on behalf of any other person or entity,
against the Company or any other person or entity referred to
herein.  Employee also represents that he does not intend to bring any
claims on his own behalf or on behalf of any other person or entity against the
Company or any other person or entity referred to herein.

    


    11.           Confidentiality.  The
Parties agree that this Separation Agreement may be filed as an exhibit to the
Company’s Quarterly Report on Form 10-Q for the period during which this
Separation Agreement becomes effective.

     

    12.           No
Cooperation.  Employee agrees he will not act in any manner
that might damage the business of the Company.  Employee agrees that
he will not counsel or assist any attorneys or their clients in the presentation
or prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against the Company and/or any officer, director,
employee, agent, representative, shareholder or attorney of the Company, unless
under a subpoena or other court order to do so.

    


    13.           Non-Solicitation.
Employee agrees that for a period of twenty-four (24) months immediately
following the Termination Date, Employee will not either directly or indirectly
solicit, induce, recruit or encourage any of the Company’s (or any of its
subsidiary companies no matter where located) employees or consultants to leave
their employment or consulting relationship with the Company, or attempt to
solicit, induce, recruit, or encourage employees or consultants of the Company,
either for himself or any other person or entity.  To the extent this
provision conflicts with any provision in any other agreement between the
parties, including the Confidentiality Agreement, the provision in this
Separation Agreement shall prevail.

     

    
      
        
        

      

      
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    14.           Mutual
Non-Disparagement.  Employee and the Company's officers and
directors agree to refrain from any defamation, libel or slander of the other
Party  and of the Company’s officers, directors and employees,
investors, and shareholders, and the Parties each agree to refrain from tortious
interference with the contracts and relationships of the other.  All
inquiries by potential future employers of Employee will be directed to the
Company’s Director of Finance and Administration.  Upon inquiry, the
Company shall only state the following: his dates of service as President and
Chief Executive Officer and his mutually agreeable separation from the Company
followed by his service as a consultant to the Company.

    


    15.           Tax Liability and
Indemnification.  Employee agrees that he shall bear full
responsibility for any and all tax liabilities owed by Employee that may arise
in relation to this Separation Agreement, and Employee agrees that he shall
fully indemnify and hold the Company harmless from any tax liability owed by
Employee arising from or related to the transactions set forth herein
(including, but not limited to, the Company’s payment of the Severance
Benefits), including, but not limited to, any taxes, penalties, fines, and/or
interest that are assessed by any tax authority against Employee and further
including all attorneys’ fees and costs incurred by the Company in response to
any claims or assessments by any tax authority against Employee.

    


    16.           Costs.  The
Parties shall each bear their own costs, expert fees, attorneys’ fees and other
fees incurred in connection with entering into this Separation
Agreement.

    


    17.           Arbitration.  The
Parties agree that any and all disputes arising out of the terms of this
Separation Agreement, their interpretation, and any of the matters herein
released, shall be subject to binding arbitration in Santa Clara County before
the American Arbitration Association under its California Employment Dispute
Resolution Rules, pursuant to Section 12(c) of the Employment
Agreement.  Section 12(c) of the Employment Agreement is incorporated
into this Separation Agreement in Exhibit 1.

    


    18         
  Authority.  The
Company represents and warrants that the undersigned has the authority to act on
behalf of the Company and to bind the Company and all who may claim through it
to the terms and conditions of this Separation Agreement.  Employee
represents and warrants that he has the capacity to act on his own behalf and on
behalf of all who might claim through him to bind them to the terms and
conditions of this Separation Agreement.  Each Party warrants and
represents that there are no liens or claims of lien or assignments in law or
equity or otherwise of or against any of the claims or causes of action released
herein.

    


    19.           No
Representations.  Each Party represents that it or he has had
the opportunity to consult with an attorney and a tax advisor and has carefully
read and understands the scope and effect of the provisions of this Separation
Agreement, including any tax consequences of payments and transactions made
pursuant to this Separation Agreement.  Neither Party has relied upon
any express or implied representations or statements made by the other Party or
any of their respective lawyers, agents or representatives hereto which are not
specifically set forth in this Separation Agreement.

    


    20.           No Admission of
Liability.  This Separation Agreement and any action taken by
the Company, either previously or in connection with this Separation Agreement,
is not and shall not be construed to be an admission or evidence of any
wrongdoing or liability on the part of the Company.

     

    
      
        
        

      

      
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    21.           Severability.  If
any provision hereof becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable or void, this Separation Agreement shall continue
in full force and effect without said provision.

    


    22.           Entire
Agreement.  This Separation Agreement (including the Exhibits
hereto), any outstanding equity awards, and the Confidentiality Agreement (to
the extent the Confidentiality Agreement does not conflict with this Separation
Agreement) represents the entire agreement and understanding between the Company
and Employee concerning     Employee ’s separation from
the Company, and supersedes and replaces any and all prior agreements and
understandings, including, but not limited to, the Employment Agreement,
concerning Employee’s relationship with the Company and Employee’s compensation
by the Company.

    


    23.           No Oral
Modification.  This Separation Agreement may only be amended in
writing signed by Employee and either the President or the Chief Executive
Officer of the Company.

    


    24.           Governing
Law.  This Separation Agreement shall be governed by the laws
of the State of California.

    


    25.           Effective
Date.  This Separation Agreement is effective after it has been
signed by both Parties and after seven (7) days have passed since Employee has
signed the Separation Agreement, unless revoked by Employee by giving written
notice to the Company within seven (7) days after the date the Separation
Agreement was signed by Employee.

    


    26.           Counterparts.  This
Separation Agreement may be executed in counterparts, and each counterpart shall
have the same force and effect as an original and shall constitute an effective,
binding agreement on the part of each of the undersigned.  Faxed
signatures shall be deemed to be original signatures and shall be
effective.

    


    27.           Voluntary Execution of
Agreement.  This Separation Agreement is executed voluntarily
and without any duress or undue influence on the part or behalf of the Parties
hereto, with the full intent of releasing all claims.  The Parties
acknowledge that:

    


    (a)           They
have read this Separation Agreement;

    


    (b)           They
have been represented in the preparation, negotiation, and execution of this
Separation Agreement by legal counsel of their own choice or that they have
voluntarily declined to seek such counsel;

    


    (c)           They
understand the terms and consequences of this Separation Agreement and of the
releases it contains;

    


    (d)           They
are fully aware of the legal and binding effect of this Separation
Agreement.

     

    
      
        
        

      

      
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    IN
WITNESS WHEREOF, the Parties have executed this Separation Agreement on the
respective dates set forth below.

     

    NeoMagic
Corporation:

    
      
        	 	 	 	 	 
	
                /s/
      Syed Zaidi  

              	 	 	
                February
      4, 2010 

              	 
	
                
                  Syed
      Zaidi

                  President

                

              	 	 	
                Date

              	 


      

       

      Employee:

    

    
      
        	 	 	 	 	 
	
                /s/
      Douglas R. Young 

              	 	 	
                February
      4, 2010

              	 
	
                Douglas
      R. Young 

              	 	 	
                 

              	 
	
                 

              	 	 	
                
                  Date

                

              	 


      

       

    

    
      
        
        

      

      
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    Exhibit
1

     

     

    Arbitration.

     

    General.  In
consideration of Employee’s service to the Company, its promise to arbitrate all
employment related disputes and Employee’s receipt of the compensation, pay
raises and other benefits paid to Employee by the Company, at present and in the
future, Employee agrees that any and all controversies, claims, or disputes with
anyone (including the Company and any employee, officer, director, shareholder
or benefit plan of the Company in their capacity as such or otherwise) arising
out of, relating to, or resulting from Employee’s service to the Company under
this Agreement or otherwise or the termination of Employee’s service with the
Company, including any breach of this Agreement, will be subject to binding
arbitration under the Arbitration Rules set forth in California Code of Civil
Procedure Section 1280 through 1294.2, including Section 1283.05 (the
“Rules”) and pursuant to California law.  Disputes which Employee
agrees to arbitrate, and thereby agrees to waive any right to a trial by jury,
include any statutory claims under state or federal law, including, but not
limited to, claims under Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act of 1990, the Age Discrimination in Employment
Act of 1967, the Older Workers Benefit Protection Act, the California Fair
Employment and Housing Act, the California Labor Code, claims of harassment,
discrimination or wrongful termination and any statutory
claims.  Employee further understands that this Agreement to arbitrate
also applies to any disputes that the Company may have with
Employee.

     

    Procedure.  Employee
agrees that any arbitration will be administered by the American Arbitration
Association (“AAA”) and that a neutral arbitrator will be selected in a manner
consistent with its National Rules for the Resolution of Employment
Disputes.  All arbitration proceedings shall be held in Santa Clara
County, California.  The arbitration proceedings will allow for
discovery according to the rules set forth in the National Rules for the Resolution of
Employment Disputes or California Code of Civil
Procedure.  Employee agrees that the arbitrator will have the
power to decide any motions brought by any party to the arbitration, including
motions for summary judgment and/or adjudication and motions to dismiss and
demurrers, prior to any arbitration hearing.  Employee agrees that the
arbitrator will issue a written decision on the merits.  Employee also
agrees that the arbitrator will have the power to award any remedies, including
attorneys’ fees and costs, available under applicable law.  Employee
understands the Company will pay for any administrative or hearing fees charged
by the arbitrator or AAA except that Employee will pay the first $125.00 of any
filing fees associated with any arbitration Employee
initiates.  Employee agrees that the arbitrator will administer and
conduct any arbitration in a manner consistent with the Rules and that to the
extent that the AAA’s National Rules for the Resolution of Employment Disputes
conflict with the Rules, the Rules will take precedence.

     

    Remedy.  Except
as provided by the Rules, arbitration will be the sole, exclusive and final
remedy for any dispute between Employee and the Company.  Accordingly,
except as provided for by the Rules, neither Employee nor the Company will be
permitted to pursue court action regarding claims that are subject to
arbitration.  Notwithstanding, the arbitrator will not have the
authority to disregard or refuse to enforce any lawful Company policy, and the
arbitrator will not order or require the Company to adopt a policy not otherwise
required by law which the Company has not adopted.  The prevailing
party in any arbitration proceeding shall be entitled to recover from the losing
party all costs that it has incurred as a result of such proceeding, including
but not limited to, all reasonable travel costs and reasonable attorneys’
fees.

     

    Availability of Injunctive
Relief.  In addition to the right under the Rules to petition
the court for provisional relief, Employee agrees that any party may also
petition the court for injunctive relief where either party alleges or claims a
violation of this Agreement or the Confidentiality Agreement or any other
agreement regarding trade secrets, confidential information, nonsolicitation or
Labor Code §2870.  In the event either party seeks injunctive
relief, the prevailing party will be entitled to recover reasonable costs and
attorneys’ fees.

     

    
      
        
        

      

      
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    Administrative
Relief.  Employee understands that this Agreement does not
prohibit Employee from pursuing an administrative claim with a local, state or
federal administrative body such as the Department of Fair Employment and
Housing, the Equal Employment Opportunity Commission or the workers’
compensation board.  This Agreement does, however, preclude Employee
from pursuing court action regarding any such claim.

    


    (vi)     Voluntary Nature of
Agreement.  Employee acknowledges and agrees that Employee is
executing this Agreement voluntarily and without any duress or undue influence
by the Company or anyone else. Employee further acknowledges and agrees that
Employee has carefully read this Agreement and that Employee has asked any
questions needed for Employee to understand the terms, consequences and binding
effect of this Agreement and fully understand it, including that Employee is
waiving Employee’s right to a jury trial.  Finally, Employee agrees
that Employee has been provided an opportunity to seek the advice of an attorney
of Employee’s choice before signing this Agreement.

     

     

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