LAW; VENUE.
THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
.
THE EMPLOYEE, THE EMPLOYER, AND AVOCENT CORPORATION
EACH HEREBY EXPRESSLY CONSENTS TO THE EXCLUSIVE VENUE OF THE STATE AND FEDERAL
COURTS LOCATED IN
FOR ANY LAWSUIT ARISING
FROM OR RELATING TO THIS AGREEMENT.
13
6.9
ARBITRATION.
EMPLOYEE, EMPLOYER, AND
AVOCENT CORPORATION AGREE THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES
WITH THE EMPLOYER OR AVOCENT CORPORATION OR ANY OF THEIR RESPECTIVE EMPLOYEES,
OFFICERS, DIRECTORS, STOCKHOLDERS, OR BENEFIT PLANS IN THEIR CAPACITY AS SUCH OR
OTHERWISE ARISING OUT OF, RELATING TO, OR RESULTING FROM THE EMPLOYEE'S SERVICE
TO THE EMPLOYER UNDER THIS AGREEMENT OR OTHERWISE OR THE TERMINATION OF THE
EMPLOYEE'S SERVICE WITH THE EMPLOYER, INCLUDING ANY BREACH OF THIS AGREEMENT,
SHALL BE SUBJECT TO BINDING ARBITRATION IN
, UNDER THE ARBITRATION
RULES SET FORTH BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICES ("JAMS").
JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION THEREOF.
DISPUTES WHICH THE EMPLOYEE AGREES TO ARBITRATE,
AND THEREBY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE, TO THE EXTENT
PERMISSIBLE BY LAW, 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, CLAIMS OF HARASSMENT,
DISCRIMINATION OR WRONGFUL TERMINATION AND ANY OTHER STATUTORY, CONTRACT, TORT
AND OTHER CLAIMS.
THE ARBITRATOR SHALL 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, PRIOR TO ANY ARBITRATION HEARING.
THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES, AND SHALL AWARD
ATTORNEYS' FEES AND COSTS TO THE PREVAILING PARTY UNLESS PROHIBITED BY LAW.
EACH PARTY SHALL PAY THE FEES OF THE ARBITRATOR SELECTED BY HIM AND OF HIS OWN
ATTORNEYS, AND THE EXPENSES OF HIS WITNESSES AND ALL OTHER EXPENSES CONNECTED
WITH THE PRESENTATION OF HIS CASE.
THE COST OF THE ARBITRATION, INCLUDING THE
COST OF THE RECORD OR TRANSCRIPTS THEREOF, IF ANY, ADMINISTRATIVE FEES, AND ALL
OTHER FEES AND COSTS SHALL BE BORNE EQUALLY BY THE PARTIES.
6.10
SEVERABILITY.
IF A COURT OR OTHER BODY OF
COMPETENT JURISDICTION DETERMINES THAT ANY PROVISION OF THIS AGREEMENT IS
EXCESSIVE IN SCOPE OR OTHERWISE INVALID OR UNENFORCEABLE, SUCH PROVISION SHALL
BE ADJUSTED RATHER THAN VOIDED, IF POSSIBLE, AND ALL OTHER PROVISIONS OF THIS
AGREEMENT SHALL BE DEEMED VALID AND ENFORCEABLE TO THE EXTENT POSSIBLE.
6.11
SURVIVAL OF EMPLOYER'S OBLIGATIONS.
THE
EMPLOYER'S AND AVOCENT CORPORATION'S OBLIGATIONS HEREUNDER SHALL NOT BE
TERMINATED BY REASON OF ANY LIQUIDATION, DISSOLUTION, BANKRUPTCY, CESSATION OF
BUSINESS, OR SIMILAR EVENT RELATING TO THE EMPLOYER OR AVOCENT CORPORATION.
THIS AGREEMENT SHALL NOT BE TERMINATED BY ANY MERGER OR CONSOLIDATION OR OTHER
REORGANIZATION OF THE EMPLOYER OR AVOCENT CORPORATION.
IN THE EVENT ANY SUCH
MERGER, CONSOLIDATION OR REORGANIZATION SHALL