THAN 20
PERCENT OF THE
- 4 -
AVERAGE LEVEL OF SERVICES PERFORMED BY EMPLOYEE OVER THE IMMEDIATELY PRECEDING
36-MONTH PERIOD.
7.
CONFIDENTIAL INFORMATION.
EMPLOYEE AGREES THAT HE WILL NOT
DIVULGE TO ANY PERSON, NOR USE TO THE DETRIMENT OF EMPLOYER OR ANY OF ITS
AFFILIATES OR SUBSIDIARIES, NOR USE IN ANY BUSINESS OR PROCESS OF MANUFACTURE
COMPETITIVE WITH OR SIMILAR TO ANY BUSINESS OR PROCESS OF MANUFACTURE OF
EMPLOYER OR ANY OF ITS AFFILIATES OR SUBSIDIARIES, AT ANY TIME DURING EMPLOYMENT
BY EMPLOYER OR THEREAFTER, ANY TRADE SECRETS OR CONFIDENTIAL INFORMATION
OBTAINED DURING THE COURSE OF HIS EMPLOYMENT WITH EMPLOYER, WITHOUT FIRST
OBTAINING THE WRITTEN PERMISSION OF EMPLOYER.
Employee agrees that, at the time of leaving the employ of Employer, he will
deliver to Employer, and not keep or deliver to anyone else, any and all credit
cards, notes, notebooks, memoranda, documents and, in general, any and all
material relating to Employer's business, including copies therefor, whether in
paper or electronic format.
8.
MODIFICATION.
THIS AGREEMENT AND THE RELATED INDEMNIFICATION
AGREEMENT BETWEEN EMPLOYEE AND EMPLOYER, TOGETHER WITH THE PLANS, PROGRAMS,
ARRANGEMENTS AND AGREEMENTS IN WHICH EMPLOYEE CURRENTLY PARTICIPATES OR IS
ELIGIBLE OR BECOMES ELIGIBLE TO PARTICIPATE, AS THEY MAY BE AMENDED FROM TIME TO
TIME IN ACCORDANCE WITH THEIR TERMS, CONTAINS ALL THE TERMS AND CONDITIONS
AGREED UPON BY THE PARTIES HERETO, AND NO OTHER AGREEMENTS, ORAL OR OTHERWISE,
REGARDING THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE DEEMED TO EXIST OR BIND
EITHER OF THE PARTIES HERETO.
THIS AGREEMENT CANNOT BE MODIFIED EXCEPT BY A
SUBSEQUENT WRITING SIGNED BY BOTH PARTIES.
9.
PRIOR AGREEMENT.
THIS AGREEMENT SUPERSEDES AND REPLACES ANY AND
ALL PREVIOUS EMPLOYMENT AGREEMENTS BETWEEN THE PARTIES.
10.
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS ILLEGAL AND
UNENFORCEABLE IN WHOLE OR IN PART, THE REMAINDER OF THIS AGREEMENT SHALL REMAIN
ENFORCEABLE TO THE EXTENT PERMITTED BY LAW.
11.
GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
IN THE EVENT THAT ANY
AMBIGUITY OR QUESTIONS OF INTENT OR INTERPRETATION ARISE, NO PRESUMPTION OR
BINDER OF PROOF SHALL ARISE FAVORING OR DISFAVORING THE EMPLOYER BY VIRTUE OF
AUTHORSHIP OF THIS AGREEMENT AND THE TERMS AND PROVISIONS OF THIS AGREEMENT
SHALL BE GIVEN THEIR MEANING UNDER LAW.
12.
ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING UPON EMPLOYEE, HIS
HEIRS, EXECUTORS AND ASSIGNS AND UPON EMPLOYER, ITS SUCCESSORS AND ASSIGNS.
13.
ARBITRATION.
IN CONSIDERATION FOR ENTERING INTO THIS AGREEMENT
AND FOR THE POSITION, COMPENSATION, BENEFITS AND OTHER PROMISES PROVIDED
HEREUNDER, THE EMPLOYEE AND EMPLOYER AGREE TO BE BOUND BY THE ARBITRATION
PROVISIONS ATTACHED HERETO AS ATTACHMENT 1 AND INCORPORATED HEREIN BY THIS
REFERENCE.
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14.
SECTION 409A COMPLIANCE.
(A)
THE INTENT OF THE PARTIES IS THAT PAYMENTS AND BENEFITS UNDER THIS
AGREEMENT COMPLY WITH SECTION 409A AND THE REGULATIONS AND GUIDANCE PROMULGATED
THEREUNDER, TO THE EXTENT APPLICABLE, AND, ACCORDINGLY, TO THE MAXIMUM EXTENT
PERMITTED, THIS AGREEMENT SHALL BE ADMINISTERED AND INTERPRETED TO BE IN
COMPLIANCE THEREWITH, TO THE