Exhibit 10.2


 


FORM OF


EMPLOYMENT AGREEMENT


 


BETWEEN


 


ROCKFORD CORPORATION


 


AND


 


Employee


 


November 5, 2010


 

















 


FORM OF


EMPLOYMENT AGREEMENT


 


THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of
November 5, 2010, and effective as of the Closing Date (as hereinafter
defined), by and among Rockford Corporation, an Oregon corporation (the “Employer”),
and Employee, an individual (the “Employee”).


 


WHEREAS,
pursuant to that certain Agreement and Plan of Merger by and among Primoris
Services Corporation,  Rockford Holdings
Corporation, and Christopher S. Wallace, as Sellers’ Representative dated on or
about November 5, 2010, a closing date for the consummation of the
prospective purchase is defined therein (the “Closing Date”);


 


WHEREAS,
the Employer desires to employ the Employee, and the Employee desires to accept
such employment, on the terms and subject to the conditions hereinafter set
forth;


 


NOW,
THEREFORE, in consideration of the covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows.


 


1.                                       Definitions.


 


Generally,
defined terms used in this Agreement are defined in the first instance in which
they appear herein.  In addition, the
following terms and phrases shall have the following meanings:


 


“Board”
shall mean the board of directors of Employer.


 


“Business
Day” shall mean any day that is not a Saturday, Sunday, or a day on which
banking institutions in California are not required to be open.


 


“Cause”
shall mean the Employee’s:


 


(i)            failure to devote
substantially all his working time to the business of Employer and its
Affiliates and Subsidiaries;


 


(ii)           willful disregard of his
duties, or his intentional failure to act where the taking of such action would
be in the ordinary course of the Employee’s duties hereunder;


 


(iii)          gross negligence or willful
misconduct in the performance of his duties hereunder;


 


(iv)          commission of any act of
fraud, theft or financial dishonesty, or any felony or criminal act involving
moral turpitude; or


 

















 


(v)           unlawful use (including
being under the influence) of alcohol or drugs or possession of illegal drugs
while on the premises of the Employer or any of its Affiliates or while
performing duties and responsibilities to the Employer and its Affiliates.


 


“Confidential
Information” shall mean all proprietary and other information relating to
the business and operations of Employer, which has not been specifically
designated for release to the public by an authorized representative of
Employer, including, but not limited to the following: (i) information,
observations, procedures and data concerning the business or affairs of
Employer; (ii) products or services; (iii) costs and pricing
structures; (iv) analyses; (v) drawings, photographs and reports; (vi) computer
software, including operating systems, applications and program listings; (vii) flow
charts, manuals and documentation; (viii) data bases; (ix) accounting
and business methods; (x) inventions, devices, new developments, methods
and processes, whether patentable or unpatentable and whether or not reduced to
practice; (xi) customers, vendors, suppliers and customer, vendor and
supplier lists; (xii) other copyrightable works; (xiii) all
production methods, processes, technology and trade secrets and (xiv) all
similar and related information in whatever form.  Confidential Information will not include any
information that has been published in a form generally available to the public
prior to the date the Employee proposes to disclose or use such
information.  Confidential Information
will not be deemed to have been published merely because individual portions of
the information have been separately published, but only if all material
features comprising such information have been published in combination.


 


“Disability”
shall mean the Employee’s inability, due to physical or mental illness or
disability, to perform the essential functions of his employment with the
Employer, even with reasonable accommodation that does not impose an undue
hardship on the Employer, for more than sixty (60) consecutive days, or for any
ninety (90) days within any one year period, unless a longer period is required
by federal or state law, in which case such longer period will be
applicable.  The Employer reserves the
right, in good faith, to make the determination of Disability under this
Agreement based on information supplied by the Employee and/or his medical
personnel, as well as information from medical personnel selected by the
Employer or its insurers.


 


“Employer”
shall mean Rockford Corporation.


 


“Person”
shall be construed broadly and shall include, without limitation, an
individual, a partnership, an investment fund, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture,
an unincorporated organization and a governmental entity or any department,
agency or political subdivision thereof.


 


“Termination
Date” shall mean the effective date of the termination of the Employee’s
employment hereunder, which (i) in the case of termination by resignation,
shall mean the date that is ninety (90) days following the date of the Employee’s
written notice to the Employer of his resignation; provided, however, that the
Employer may accelerate the Termination Date; (ii) in the case of
termination by reason of death shall mean the date of death; (iii) in the
case of termination by reason of Disability, shall mean the date specified in
the notice of such termination delivered to the Employee by the Employer (but
no sooner than the giving of the notice); (iv) in the case of a
Termination for Cause or a Termination without Cause, shall mean


 


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the
date specified in the written notice of such termination delivered to the
Employee by the Employer; (iv) in the case of termination by mutual
agreement shall mean the date mutually agreed to by the parties hereto and (v) in
the case of nonrenewal, shall mean the expiration of the Employment Period.


 


2.                                       Employment.


 


a.             Initial Term.  The Employer shall employ the Employee, and
the Employee accepts employment with the Employer, upon the terms and
conditions set forth in this Agreement. 
The initial term of this Agreement (the “Initial Term”) shall be
for a period of five (5) years commencing on the Closing Date, unless
terminated earlier pursuant to Article 5 hereof; provided, however, that
Employee’s obligations in Article 11 and Article 12 hereof shall
continue in effect after such termination.


 


b.             Additional Terms.  This Agreement may be extended beyond the
Initial Term upon the mutual consent and agreement of Employee and
Employer.  The Initial Term and
additional terms or periods of time, if any, during which Employee remains
employed by Employer shall collectively be referred to herein as the “Employment
Period”.


 


3.                                       Position
and Duties.


 


During
the Employment Period, the Employee shall serve as ______________, reporting to
___________________ of Primoris Services Corporation, or to such officer as may
hereafter be assigned by the _________________ of Primoris Services
Corporation, and shall have the usual and customary duties, responsibilities
and authority of such position.  In
addition, during the Employment Period, if elected or appointed thereto, shall
serve as an officer and/or member of the board of any subsidiary of Employer as
reasonably requested by the Employer and its subsidiaries, in each case,
without additional compensation hereunder. 
The Employee hereby accepts such employment and positions and agrees to
diligently and conscientiously devote his full and exclusive business time,
attention, and best efforts in discharging and fulfilling his duties and
responsibilities hereunder.  The Employee
shall comply with the Employer’s policies and procedures and the direction and
instruction of the Board and the Employee shall not engage in any business
activity which, in the reasonable judgment of the Board, conflicts with the
duties of the Employee hereunder, whether or not such activity is pursued for
gain, profit or other pecuniary advantage.


 


4.                                       Compensation


 


(a)           Salary.  During the Employment Period, the Employer
shall pay the Employee base salary (the “Base Salary”) at the rate of ______________
per annum, payable in equal installments twice monthly on Employer’s regular
payroll dates, less applicable deductions and withholdings.


 


(b)           Performance Bonus.  In addition to the Base Salary, during the
Employment Period the Employee shall be eligible to receive a cash bonus (the “Bonus”)
with respect to each calendar year as of the last day of which the Employee is
employed by the Employer.  The amount of
the Bonus, if any, payable in respect of any calendar year will be determined
at the 


 


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sole
discretion of Employer by the Board or compensation committee of the Board of
Directors of Employer’s parent company (the “Compensation Committee”).  The Bonus, if any, payable with respect to a
calendar year shall be paid within thirty (30) days following the rendering of
Employer’s audited financial statements for the relevant calendar year.


 


(c)           Benefits and Perquisites.  In addition to the Base Salary, Employee
shall be entitled to all other benefits of employment provided to other
employees of Employer; provided, however, that during the Employment Period
Employee shall be entitled to ______________ weeks of vacation per
annum.  Additional benefits and
perquisites will be provided subject to Employer’s policies and practices in
effect and then in place at the Closing Date, and the terms of applicable
benefit plans and arrangements as in effect from time to time.


 


(d)           Reimbursements.  The Employer shall reimburse the Employee for
all reasonable and necessary business-related expenses incurred by him in the
course of performing his duties under this Agreement which are consistent with
Employer’s policies and practices in effect and then in place at the Closing
Date, including travel, entertainment and other business expenses, subject to
the Employer’s requirements with respect to reporting and documentation of such
expenses.


 


(e)           Deductions and Withholding.  The Employer shall deduct from any payments
to be made by it to or on behalf of the Employee under this Agreement any
amounts required to be withheld in respect of any federal, state or local
income or other taxes.


 


(f)            Annual Review of Base Salary.  The Board (or the Compensation Committee)
shall undertake a review of the Base Salary not less frequently than annually
during the Employment Period and may increase, but not decrease, the rate of
Base Salary from the rate then in effect.


 


5.                                       Termination
of Employment.


 


The
Employee’s employment under this Agreement shall be terminated upon the
earliest to occur of the following events:


 


(a)           Termination for Cause.  The Employer may in its sole discretion
terminate this Agreement and the Employee’s employment hereunder for Cause at
any time and with or without advance notice to the Employee.


 


(b)           Termination without Cause.  The Employer may terminate this Agreement and
the Employee’s employment hereunder without Cause at any time, with or without
notice, for any reason or no reason (and no reason need be given).


 


(c)           Mutual Agreement.  This Agreement and the Employee’s employment
hereunder may be terminated by the mutual written agreement of the Employer and
the Employee (“Mutual Agreement”).


 


(d)           Termination by Death or Disability.  This Agreement and the Employee’s employment
hereunder shall automatically terminate upon the Employee’s death or
Disability.


 


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(e)           Resignation.  The Employee may terminate this Agreement and
his employment hereunder upon ninety (90) days advance written notice to the
Employer (“Resignation”).


 


(f)            Nonrenewal.  In the event either party does not elect to
renew the term of this Agreement, this Agreement and the Employee’s employment
hereunder shall automatically terminate as of the expiration of the current
term in effect (“Nonrenewal”).


 


6.                                       Compensation
upon Termination


 


(a)           General.  In the event of the Employee’s termination of
employment for any reason, the Employee or his estate or beneficiaries shall
have the right to receive the following:


 


(i)            the unpaid portion of the
Base Salary and paid time off accrued and payable through the Termination Date;


 


(ii)           reimbursement for any
expenses for which the Employee shall not have been previously reimbursed, as
provided in Section 4(d); and


 


(iii)          continuation of health
insurance coverage rights, if any, as required under applicable law.


 


(b)           Termination for Cause, Resignation, Mutual
Agreement or Nonrenewal.  In the event of the Employee’s termination of
employment by reason of (i) Termination for Cause, (ii) Resignation, (iii) Mutual
Agreement or (iv) Nonrenewal, the Employer shall have no current or
further obligations (including Base Salary) to the Employee under this
Agreement other than as set forth in Section 6(a).


 


(c)           Termination without Cause or by Death or
Disability.  Subject to Section 6(d),
in the event of the Employee’s termination of employment hereunder by reason of
(i) Termination without Cause or (ii) death or Disability, the
Employee shall be entitled to the following (the “Severance Benefits”):


 


(i)            a lump sum equal to one-half
of the annual Base Salary in effect upon the Termination Date, payable within
fifteen (15) days following the Termination Date;


 


(ii)           a pro rata amount of a
Bonus, if any, which would have been payable to the Employee for the calendar
year in which the Termination Date occurs, determined after the end of the
calendar year in which such Termination Date occurs and equal to the amount
which would have been payable to the Employee if his employment had not been
terminated during such calendar year multiplied by the fraction, the numerator
of which is the number of whole months the Employee was employed by the
Employer during such calendar year and the denominator of which is 12.  Any pro rata bonus payable under this Section 6(c)(ii) shall
be paid in a lump sum at the time bonuses for such calendar year are otherwise
payable to senior executives of the Employer; and


 


(iii)          in the event that the
Employee elects COBRA benefits, the Employer shall pay the Employee’s share of
the premium for such COBRA benefits until the earlier of (i) 


 


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one year after the
Termination Date or longer if and to the extent required by law; or (ii) the
date that Employee obtains comparable health benefits through new employment.


 


(d)           General Release.  Notwithstanding any provision to the contrary
in this Agreement, the foregoing Severance Benefits under Section 6(c) shall
not apply and the Employer shall have no obligations to pay or provide any
Severance Benefits (other than upon the Employee’s termination of employment by
reason of death), unless the Employee signs, delivers and does not rescind or
revoke a general release, substantially in the form attached hereto as Exhibit A,
of all known and unknown claims of the Employee (and his affiliates,
successors, heirs and assigns and the like) against Employer and the Board.


 


(e)           Exclusive Remedy.  The rights of the Employee set forth in this Section 6
are intended to be the Employee’s exclusive remedy for termination and, to the
greatest extent permitted by applicable law, the Employee waives all other
remedies.


 


7.                                       Insurance.


 


Employer
may, for its own benefit, maintain “key man” life and disability insurance
policies covering the Employee.  The
Employee will cooperate with Employer and provide such information or other
assistance as they may reasonably request in connection with obtaining and
maintaining such policies.


 


8.                                       Exclusive
Services.


 


During
the term of this Agreement, the Employee will not accept or perform any work,
consulting, or other services for any other business entity or for remuneration
of any kind, without written approval by the Board.


 


9.                                       The
Employee’s Termination Obligations.


 


The
Employee hereby acknowledges and agrees that all personal property and
equipment furnished to or prepared by the Employee in the course of or incident
to his employment hereunder belongs to Employer and shall be promptly returned
to Employer upon termination of the Employee’s employment.  The term “personal property” includes,
without limitation, all office equipment, laptop computers, cell phones, books,
manuals, records, reports, notes, contracts, requests for proposals, bids,
lists, blueprints, and other documents, or materials, or copies thereof
(including computer files), and all other proprietary and non-proprietary
information relating to the business of Employer.  Following termination of his employment
hereunder, the Employee will not retain any written or other tangible material
containing any proprietary or non-proprietary information of Employer.


 


10.                                 Acknowledgment
of Protectable Interests.


 


The
Employee acknowledges and agrees that his employment with Employer involves
building and maintaining business relationships and good will on behalf of the
Employer with customers, and other professional contractors, subcontractors,
employees and staff, and various providers and users of services related to
Employer’s business; that he is entrusted with


 


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proprietary,
strategic and other confidential information which is of special value to
Employer; and that the foregoing matters are significant interests which the
Employer is entitled to protect.


 


11.                                 Confidential
Information.


 


The
Employee agrees that all Confidential Information that comes or has come into
his possession by reason of his employment hereunder is the property of the
Employer and shall not be used except in the course of employment by Employer
and for Employer’s exclusive benefit. 
Further, the Employee shall not, during his employment or thereafter,
disclose or acknowledge the content of any Confidential Information to any
person who is not an employee of Employer authorized to possess such
Confidential Information.  Upon
termination of employment, the Employee shall deliver to Employer all
documents, writings, electronic storage devices, and other tangible things
containing any Confidential Information and the Employee shall not make or
retain copies, excerpts, or notes of such information.


 


12.                                 Nonsolicitation/Nondisparagement.


 


In
the event of the termination of this Agreement for any reason, the Employee
shall not, for a period of two (2) years thereafter, directly or
indirectly:


 


(a)           solicit, induce or encourage any employee of
Employer to terminate his or her employment with Employer;


 


(b)           make any disparaging public statement concerning
Employer; or


 


(c)           use Employer’s Confidential Information to induce,
attempt to induce or knowingly encourage any Customer (as defined below) of
Employer to divert any business or income from Employer, or to stop or alter
the manner in which they are then doing business with Employer.  The term “Customer” with respect to
Employer shall mean any individual or business firm that is, or within the
prior twenty-four (24) months was, a customer or client of Employer, or whose
business was actively solicited by Employer at any time, regardless of whether
such customer was generated, in whole or in part, by the Employee’s efforts.


 


13.                                 Damages
For Improper Termination With Cause.


 


In
the event that the Employer terminates this Agreement and the Employee’s
employment hereunder for “Cause,” but it subsequently is determined by an
arbitrator or a court of competent jurisdiction, as the case may be, that the
Employer did not have Cause for the termination, then for purposes of this
Agreement, the Employer’s decision to terminate shall be deemed to have been a
termination without Cause, and the Employer shall be obligated to pay  the Severance Benefits specified under Section 6(c),
and only that amount, and as provided in Section 25.


 


14.                                 Arbitration.


 


Any
controversy or dispute arising out of, based upon, or relating to this
Agreement, its enforcement or interpretation, or because of an alleged breach,
default, or misrepresentation in connection with any of its provisions, or
arising out of, based upon, or relating in any way to the


 


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Employee’s
employment or association with Employer, or termination of the same, including,
without limiting the generality of the foregoing, any questions regarding
whether a particular dispute is arbitrable, and any alleged violation of
statute, common law or public policy, including, but not limited to, any state
or federal statutory claims, shall be submitted to final and binding
arbitration in Multnomah County, Oregon, in accordance with the JAMS Employment
Arbitration Rules and Procedures, before a single neutral arbitrator
selected from the JAMS panel, or if JAMS is no longer able to supply the
arbitrator, such arbitrator shall be selected from the American Arbitration Association,
in accordance with its National Rules for the Resolution of Employment
Disputes (the arbitrator selected hereunder, the “Arbitrator”).  Provisional injunctive relief may, but need
not, be sought by either party to this Agreement in a court of law while
arbitration proceedings are pending, and any provisional injunctive relief
granted by such court shall remain effective until the matter is finally
determined by the Arbitrator.  Final
resolution of any dispute through arbitration may include any remedy or relief
which the Arbitrator deems just and equitable, including any and all remedies
provided by applicable state or federal statutes.  At the conclusion of the arbitration, the
Arbitrator shall issue a written decision that sets forth the essential
findings and conclusions upon which the Arbitrator’s award or decision is
based.  Any award or relief granted by
the Arbitrator hereunder shall be final and binding on the parties hereto and
may be enforced by any court of competent jurisdiction.  The parties acknowledge and agree that they
are hereby waiving any rights to trial by jury in any action, proceeding or
counterclaim brought by either of the parties against the other in connection
with any matter whatsoever arising out of or in any way connected with this
Agreement or the provision of services under this Agreement.  The Employer will pay the arbitrator’s fees
and arbitration expenses and any other costs associated with the arbitration or
arbitration hearing that are unique to arbitration.  Subject to the provisions of Section 25,
the parties shall each pay their own deposition, witness, expert and attorneys’
fees and other expenses as and to the same extent as if the matter were being
heard in court.


 


15.                                 Representations/Warranties.


 


The
Employee represents and warrants that he is under no contractual or other
obligation that would prevent him from accepting the Employer’s offer of
employment as set forth herein.


 


16.                                 Entire
Agreement.


 


This
Agreement is intended by the parties to be the final expression of their
agreement with respect to the employment of the Employee by Employer and may
not be contradicted by evidence of any prior or contemporaneous agreement
(including, without limitation any term sheet or similar agreement entered into
between Employer and the Employee).  The
parties further intend that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic evidence whatsoever may
be introduced in any judicial, administrative, or other legal proceeding to
vary the terms of this Agreement.  No Representations.


 


No
person or entity has made or has the authority to make any representations or
promises on behalf of any of the parties which are inconsistent with the
representations or promises contained in this Agreement, and this Agreement has
not been executed in reliance on any representations or promises not set forth
herein.  Specifically, no promises,
warranties or 


 


8

















 


representations
have been made by anyone on any topic or subject matter related to the Employee’s
relationship with the Employer or any of their executives or employees,
including but not limited to any promises, warranties or representations
regarding future employment, compensation, benefits, any entitlement to equity
interests in Employer or regarding the termination of the Employee’s
employment.  In this regard, the Employee
agrees that no promises, warranties or representations shall be deemed to be
made in the future unless they are set forth in writing and signed by an
authorized representative of the Employer.


 


17.                                 Amendments.


 


This
Agreement may be modified only by agreement of the parties by a written
instrument executed by the parties that is designated as an amendment to this
Agreement.


 


18.                                 Severability
and Non-Waiver/Survival.


 


Any
provision of this Agreement (or portion thereof) which is deemed invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction and
subject to this Section 19, be ineffective to the extent of such
invalidity, illegality or unenforceability, without affecting in any way the
remaining provisions thereof in such jurisdiction or rendering such provision
or any other provision of this Agreement invalid, illegal, or unenforceable in
any other jurisdiction.  If any covenant
should be deemed invalid, illegal or unenforceable because its scope is
considered excessive, such covenant shall be modified so that the scope of the
covenant is reduced only to the minimum extent necessary to render the modified
covenant valid, legal and enforceable. 
No waiver of any provision or violation of this Agreement by the
Employer shall be implied by the Employer’s forbearance or failure to take
action.  The expiration or termination of
the Employment Period and this Agreement shall not impair the rights or
obligations of any party hereto which shall have accrued hereunder prior to
such expiration or termination.


 


19.                                 Successor/Assigns.


 


This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, representatives, executors, administrators, successors,
and assigns, provided, however, that the Employee may not assign any or all of
his rights or duties hereunder except following the prior written consent of
the Employer.  The Employee shall be
entitled, to the extent permitted under applicable law, to select and change a
beneficiary or beneficiaries to receive any compensation or benefit hereunder
following the Employee’s death by giving written notice thereof.  In the event of the Employee’s death or a
judicial determination of his incompetence, references in this Agreement to the
Employee shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative.


 


20.                                 Voluntary
and Knowledgeable Act.


 


The
Employee represents and warrants that the Employee has read and understands
each and every provision of this Agreement and has freely and voluntarily
entered into this Agreement.


 


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21.                                 Choice
of Law.


 


This
Agreement shall be governed as to its validity and effect by the laws of the
state of Oregon without regard to principles of conflict of laws.


 


22.                                 Counterparts.


 


This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original, but both of which together shall constitute one and the same
instrument.


 


23.                                 Notices.


 


All
notices and other communications necessary or contemplated under this Agreement
shall be in writing and shall be delivered in the manner specified herein or,
in the absence of such specification, shall be deemed delivered when delivered
in person or sent by first-class mail (certified or registered mail, return
receipt requested, postage prepaid), facsimile or overnight air courier guaranteeing
next day delivery, addressed as follows:


 


	
  (a)           if to the Employee, to him
  at his most recent address in Employer’s records,

  
	
   

  	
   

  
	
  (b)           if to the
  Employer, to:

  	
  John M. Perisich

  
	
   

  	
  26000 Commercentre Dr.

  
	
   

  	
  Lake Forest, CA 92630

  
	
   

  	
  Facsimile: (949) 595-5544

  
	
   

  	
   

  
	
  with
  a copy to:

  	
  Rutan &
  Tucker

  
	
   

  	
  611
  Anton Boulevard, Fourteenth Floor

  
	
   

  	
  Costa
  Mesa, California 92626-1931

  
	
   

  	
  Facsimile:
  (714) 546-9035

  
	
   

  	
  Attention:
  George J. Wall, Esq.

  



 


or
to such other address as the recipient party to whom notice is to be given may
have furnished to the other party in writing in accordance herewith.


 


24.                                 Attorneys’
Fees.


 


In
the event that any dispute between the parties should result in litigation or
arbitration, the prevailing party in such dispute shall be entitled to recover
from the other party all reasonable fees, costs and expenses of enforcing any
right of the prevailing party, including without limitation, reasonable
attorneys’ fees and expenses, all of which shall be deemed to have accrued upon
the commencement of such action and shall be paid whether or not such action is
prosecuted to judgment.  Any judgment or
order entered in such action shall contain a specific provision providing for
the recovery of attorneys’ fees and costs incurred in enforcing such judgment
and an award of prejudgment interest from the date of the breach at the maximum
rate of interest allowed by law.  For the
purposes of this Section 25: (a) attorneys’ fees shall include,
without limitation, fees incurred in the following:  (i) postjudgment motions; (ii) contempt
proceedings; (iii) garnishment, levy, and debtor and third party
examinations; (iv) discovery and


 


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(v) bankruptcy
litigation and (b) “prevailing party” shall mean the party who is
determined in the proceeding to have prevailed or who prevails by dismissal,
default or otherwise.


 


25.                                 Descriptive
Headings; Nouns and Pronouns.


 


Descriptive
headings are for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.  Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice-versa.


 


26.                                 Non-Qualified
Deferred Compensation.


 


The
parties acknowledge and agree that, to the extent applicable, this Agreement
shall be interpreted in accordance with Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) and Department of Treasury
regulations and other interpretive guidance issued thereunder, including
without limitation any such regulations or other guidance that may be issued
after the date hereof.  Notwithstanding
any provision of this Agreement to the contrary, in the event that the Employer
determines that any amounts payable hereunder will be immediately taxable to
the Employee under Section 409A of the Code and related Department of
Treasury guidance, the Employer may (a) adopt such amendments to this
Agreement and appropriate policies and procedures, including amendments and
policies with retroactive effect, that the Employer determines necessary or
appropriate to preserve the intended tax treatment of the benefits provided by
this Agreement and/or (b) take such other actions as the Employer
determines necessary or appropriate to comply with the requirements of Section 409A
of the Code and related Department of Treasury guidance, including such
Department of Treasury guidance and other interpretive materials as may be
issued after the date hereof.


 


27.                                 Waiver
of Jury Trial.


 


EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT.


 


[signature page follows]


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as
of the date first written above.


 


	
   

  	
  Rockford
  Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Employee,
  individually

  



 

















 


EXHIBIT A


 


[Form of Release]


 


1.             [Severance Benefits]


 


2.             Release of Claims.  Except as explicitly provided below, you
agree that the foregoing consideration represents settlement in full of all
outstanding obligations owed to you by the Company, and its respective
officers, directors, partners, members, agents and employees, including,
without limitation, any and all obligations under the Employment Agreement, and
is satisfactory consideration for the waiver and release of all claims set
forth herein.  On behalf of yourself, and
your respective heirs, family members, executors and assigns, you hereby fully
and forever release the Company and its past, present and future officers,
agents, directors, employees, investors, stockholders, partners, members,
administrators, affiliates, divisions, subsidiaries, parents, predecessor and
successor corporations and assigns (the “Releasees”), from, and agree
not to sue concerning, or in any manner to institute, prosecute or pursue, or
cause to be instituted, prosecuted, or pursued, any claim, duty, obligation or
cause of action relating to any matters of any kind, whether presently known
or unknown, suspected or unsuspected, that you may possess against any of
the Releasees arising from any omissions, acts or facts that have occurred up
until and including the Effective Date of this Release including, without
limitation:


 


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


 


(b)           any and all
claims relating to, or arising from, your right to purchase, or actual purchase
of shares of stock or other securities of the Company or any of its affiliates
or subsidiaries, 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; harassment; retaliation; breach of contract, both
express and implied, including, without limitation, any and all claims arising
under or in connection with the Employment Agreement; breach of a covenant of
good faith and fair dealing, both express and implied; 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; 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


 


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Family
and Medical Leave Act; the California Fair Employment and Housing Act; the
California Family Rights Act; and the California Labor Code, including, but not
limited to Section 201, et seq,. Section 970, et seq., Sections
1400-1408; and all amendments to each such Act as well as the regulations
issued thereunder;


 


(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;


 


provided, however, that the parties hereto
agree and acknowledge that you have not, by virtue of this Release or
otherwise, waived any claim, duty, obligation or cause of action relating to
any of the following:


 


(i)            any matter that arises after the Effective Date of
this Release;


 


(ii)           vested benefits under any employee benefit plan
within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended;


 


(iii)          any claim relating to indemnification in accordance
with applicable laws or the Company’s certificate of incorporation or by-laws
or any applicable insurance policy, with respect to any liability as a
director, officer or employee of the Company (including as a trustee, director
or officer of any employee benefit plan);


 


(iv)          any right to obtain contribution as permitted by law
in the event of entry of judgment against you as a result of any act or failure
to act for which the Company and you are held jointly liable; and


 


(v)           any of your rights under the Membership Interest
Purchase Agreement and other agreements, stock or instruments executed or to be
executed, or delivered or to be delivered in connection therewith (except for
this Employment Agreement).


 


You agree that the release set forth in this Paragraph shall be and
remain in effect in all respects as a complete general release as to the
matters released.  This release does not
extend to any obligations incurred under this Release.  In the event that any of the parties brings
an action to enforce or effect their rights under this Release, the prevailing
party shall be entitled to recover their reasonable attorneys’ fees and
expenses incurred in connection with such an action.


 


3.             Acknowledgment of Waiver of
Claims under ADEA. You acknowledge that you are waiving and releasing
any rights you may have under the Age Discrimination in Employment Act of 1967
(“ADEA”) and that this waiver and release is knowing and voluntary.  You and the Company agree that this Release
does not apply to any rights or claims that may arise under 


 


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ADEA
after the Effective Date of this Release. 
You acknowledge that the consideration given for this Release is in
addition to anything of value to which you were already entitled.  You further acknowledge that you have been
advised by this writing that:


 


(a)           you should
consult with an attorney prior to executing this Release;


 


(b)           you have up to
[        ] days within which to
consider this Release;


 


(c)           you have seven
days following your execution of this Release to revoke this Release; and this
Release shall not be effective until the eighth day after you execute and do
not revoke this Release; nothing in this Release prevents or precludes you from
challenging or seeking a determination in good faith of the validity of this
waiver under the ADEA, nor does it impose any condition precedent, penalties or
costs from doing so, unless specifically authorized by federal law.


 


Any
revocation must be in writing and delivered to the Company as follows:
[                                                            ]
by close of business on or before the seventh day from the date that you sign
this Release.


 


4.             Civil Code Section 1542/Unknown
Claims.  You represent that you are not
aware of any claims against the Company other than the claims that are released
by this Release.  You acknowledge that
you have had the opportunity to be advised by legal counsel and are familiar
with the provisions of California Civil Code 1542, below, 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.


 


Being
aware of said code section, you agree to expressly waive any rights you may
have thereunder, as well as under any statute or common law principles of
similar effect.


 


5.             No Pending or Future
Lawsuits.  You
represent that you have no lawsuits, claims, or actions pending in your name,
or on behalf of any other person or entity, against the Company or any of the
Releasees with respect to claims released hereunder.  You also represent that you do not intend to
bring any claims with respect to claims released hereunder on your own behalf
or on behalf of any other person or entity against the Company or any of the
Releasees.


 


6.             Confidentiality of Release. You agree to
keep the terms of this Release in the strictest confidence and, except as
required by law, not reveal the terms of this Release to any persons except
your immediate family, your attorney, and your financial advisors (and to them
only provided that they also agree to keep the information completely
confidential), and the court in any proceedings to enforce the terms of this
Release.


 


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7.             Non-Disparagement. You agree not
to make any public oral or written statement, or take any other public action,
that disparages or criticizes the Company’s management, employees, products or
services, in any case that damages the Company’s reputation or impairs its
normal operations provided Employee reserves the right to make allegations in
litigation or arbitration matters with respect to claims not released
hereunder.


 


8.             Entire Agreement. The terms of
which are specifically incorporated herein, this Release constitutes the entire
agreement between you and the Company concerning your employment with and
separation from the Company and all the events leading thereto and associated
therewith, and supercedes and replaces any and all prior agreements and understandings,
both written and oral, concerning your employment relationship with the
Company.


 


9.             Successors and Assigns. This Release
shall be binding upon each of the parties and upon their respective heirs,
administrators, representatives, executors, successors and assigns, and shall
inure to the benefit of each party and to their heirs, administrators,
representatives, executors, successors, and assigns.


 


10.           No Admission of Liability. You
understand and acknowledge that this Release constitutes a compromise and
settlement of any and all potential disputed claims with respect to claims
released hereunder.  No action taken by
the Company hereto, either previously or in connection with this Release, shall
be deemed or construed to be: (a) an admission of the truth or falsity of
any potential claims; or (b) an acknowledgment or admission by the Company
of any fault or liability whatsoever to you or to any third party.


 


11.           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 Release. 
Similarly, you represent and warrant that you have the capacity to act
on your own behalf and on behalf of all who might claim through you to bind
them to the terms and conditions of this Release.  The Company and you each warrant and
represent 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.


 


12.           Effective Date.  This Release is effective after it has been
signed by both parties and after seven days have passed since you have signed
this Release (such date, the “Effective Date”).


 


13.           Voluntary Execution of
Release.  This Release 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 except claims
specifically excluded under Paragraph 4 hereof. 
The parties acknowledge that:


 


(a)           They have read
this Release;


 


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


 


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


 


(d)           They are fully
aware of the legal and binding effect of this Release.  The laws of the State of Delaware govern this
Release, regardless of the laws that might otherwise govern under applicable
principles of conflict of law thereof. 
In the event that any portion of this Release or the application
thereof, becomes or is declared by a court of competent jurisdiction to be
illegal, void or unenforceable, the remainder of this Release will continue in
full force and effect and the application of such portion to other persons or
circumstances will be interpreted so as reasonable to effect the intent of the
parties hereto.  This Release may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by you and an authorized representative of the
Company or by a court of competent jurisdiction.


 


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