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Exhibit 10(kkk)
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made this 1st day
of January, 1999, by and between RANDAL L. BUNESS ("Executive") and CERPROBE
CORPORATION, a Delaware corporation ("Cerprobe"), effective January 1, 1999
("Effective Date").
R E C I T A L S
A. Executive is presently employed by Cerprobe as its Vice President,
Chief Financial Officer, Secretary, and Treasurer.
B. Cerprobe wishes to retain the continuing services of Executive
pursuant to this Employment Agreement, the terms and provisions of which are set
forth below.
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1. POSITION AND DUTIES.
During the Term (as defined in Section 5) Executive will be
employed by Cerprobe as its Senior Vice President, Chief Financial Officer,
Secretary, and Treasurer and shall perform those duties as from time to time
determined by the Board of Directors of Cerprobe ("Board") in accordance with
the policies, practices and bylaws of Cerprobe.
Executive shall serve Cerprobe faithfully, loyally, honestly
and to the best of Executive's ability. Executive will devote Executive's best
efforts and substantially all of the Executive's business time to the
performance of Executive's duties for, and in the business and affairs of,
Cerprobe.
Subject to Section 7, the Board reserves the right, in its
sole discretion, to change or modify Executive's position, title and duties
during the Term of this Agreement.
2. BASE SALARY.
Commencing on the Effective Date and during the term of this
Agreement, Executive's base salary will be one hundred sixty thousand and 00/100
Dollars ($160,000.00), payable in accordance with Cerprobe's customary payroll
practice. Executive's base salary will
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be reviewed annually by the Board in accordance with Cerprobe's compensation
review policies and practices, all as determined by Cerprobe in its discretion;
provided that in no event shall the amount of Executive's base salary be
decreased.
3. INCENTIVE COMPENSATION.
Executive shall be eligible to participate in any and all
performance-based incentive compensation program that the Board has established
or may in the future establish for Executive, as well as any performance-based
incentive compensation program established from time to time for other members
of Cerprobe's senior management.
4. OTHER AGREEMENTS.
Cerprobe and Executive may, from time to time, enter into one
or more agreements relating to specific benefit and/or compensation programs
including without limitation, a change of control agreement, stock option
agreements, stock purchase agreements, and stock grant agreements. Nothing in
this Agreement is intended to alter or modify any of such agreements, which an
referred to below as "Ancillary Agreements."
5. TERM AND TERMINATION.
This Agreement will continue in full force and effect until
terminated by the parties. This Agreement may be terminated in any of the
following ways: (a) it may be negotiated and replaced by a written agreement
signed by both parties; (b) Cerprobe may elect to terminate this Agreement, with
or without "Cause," as defined below; (c) Executive may elect to terminate this
Agreement with or without "Good Reason," as defined below; or (d) either party
may serve notice on the other of its or his desire to terminate this Agreement
at the end of the Term.
The "Term" of this Agreement shall begin on the Effective Date
and shall expire by its terms on December 31, 1999, unless sooner terminated in
accordance with the provisions of this Agreement. Thereafter, the "Term" of this
Agreement shall renew automatically for additional 12-month periods unless
terminated in accordance with the provisions of this Agreement.
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6. TERMINATION BY CERPROBE.
A. Termination For Cause. Cerprobe may terminate this
Agreement and Executive's employment for Cause at any time upon written notice.
For purposes of this Agreement, "Cause" shall be limited to discharge resulting
from a determination by Cerprobe that Executive has: (i) been convicted of a
felony involving dishonesty, fraud, theft or embezzlement; (ii) repeatedly
failed or refused, in a material respect, to follow reasonable policies or
directives established by Cerprobe and after written notice thereof from
Cerprobe, and a reasonable opportunity by Executive to cure such failures or
refusals after having been given reasonable written notice of such failures or
refusals; (iii) willfully and persistently failed to attend to the material
duties or obligations imposed upon Executive under this Agreement after
reasonable written notice from Cerprobe and a reasonable opportunity by
Executive to cure such failure; (iv) performed an act or failed to act, which,
if Executive were prosecuted and convicted, would constitute a felony involving
$1,000 or more of money or property of Cerprobe; or (v) intentionally
misrepresented or concealed a material fact for purposes of securing employment
with Cerprobe or this Agreement.
If this Agreement and Executive's employment are
terminated by Cerprobe for Cause, Executive shall receive no Severance Benefits.
B. Termination Without Cause. Cerprobe also may terminate this
Agreement and Executive's employment at any time or elect to not renew this
Agreement at the end of any Term without Cause by giving at least 60 days prior
written notice to Executive. In the event (i) this Agreement and Executive's
employment are terminated by Cerprobe, or (ii) Cerprobe elects to not renew this
Agreement at the end of any Term, without Cause, Executive shall be entitled to
receive Severance Benefits pursuant to Section 9.
7. TERMINATION BY EXECUTIVE.
Executive may terminate this Agreement and his employment with
or without "Good Reason" in accordance with the provisions of this Section 7.
A. Termination For Good Reason. Executive may terminate this
Agreement and Executive's employment for "Good Reason" by giving written notice
to Cerprobe within 60 days, or such longer period as may be agreed to in writing
by Cerprobe, of Executive's
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knowledge or receipt of notice of the occurrence of an event constituting "Good
Reason," as described below.
Executive shall have "Good Reason" to terminate his
Agreement and Executive's employment upon the occurrence of any of the following
events: (i) the assignment to Executive of any duties that are inconsistent
with, or the reduction of powers or functions associated with, Executive's
position, duties, or responsibilities with Cerprobe, or an adverse change in
Executive's titles, authority, or reporting responsibilities, or in conditions
of Executive's employment, (ii) the Executive's base salary is reduced or the
potential incentive compensation (or bonus) to which Executive may become
entitled to at any level of performance by the Executive or Cerprobe is reduced,
(iii) the failure of Cerprobe to cause any successor to expressly assume and
agree to be bound by the terms of this Agreement, (iv) any purported termination
by Cerprobe of Executive's employment for grounds other than for "Cause," (v)
Cerprobe relieving the Executive of Executive's duties other than for "Cause,"
or (vi) Executive is required to relocate to an employment location that is more
than fifty (50) miles from Gilbert, Arizona.
If Executive terminates this Agreement and his
employment for Good Reason, Executive shall be entitled to receive Severance
Benefits pursuant to Section 9.
B. Termination Without Good Reason. Executive also may
terminate this Agreement and Executive's employment without Good Reason at any
time by giving 60 days notice to Cerprobe. If Executive terminates this
Agreement and Executive's employment without Good Reason, Executive shall not be
entitled to receive Severance Benefits pursuant to Section 9.
8. DEATH OR DISABILITY.
This Agreement will terminate automatically on Executive's
death. Any salary or other amounts due to Executive for services rendered prior
to Executive's death shall be paid to Executive's surviving spouse, or if
Executive does not leave a surviving spouse, to Executive's estate. No other
benefits shall be payable to Executive's estate or heirs pursuant to this
Agreement, but amounts may be payable pursuant to any life insurance or other
benefit plans maintained in whole or in part by Cerprobe for the benefit of
Executive, his estate or heirs.
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In the Executive becomes "Disabled," Executive's employment
hereunder and Cerprobe's obligation to pay Executive's salary shall continue for
a period of 12 months from the date of such Disability, at which time
Executive's employment hereunder shall automatically cease and terminate.
Executive shall be considered "Disabled" or to be suffering from a "Disability"
for purposes of this Section 8 if, in the reasonable, good faith judgment of a
licensed physician selected by the Board, Executive is unable for a period of 90
consecutive business days to perform the essential functions of Executive
position required under this Agreement, with or without reasonable
accommodations, because of a physical or mental impairment. Any dispute relating
to the existence of a Disability shall be resolved by the opinion of the
licensed physician selected by the Board, provided, however, that if Executive
does not accept the opinion of the licensed physician selected by Cerprobe, the
dispute shall be resolved by the opinion of a licensed physician who shall be
selected by Executive; provided further, however, that if Cerprobe does not
accept the opinion of the licensed physician selected by Executive, the dispute
shall be finally resolved by the opinion of a licensed physician selected by the
licensed physicians selected by Cerprobe and Executive, respectively.
9. SEVERANCE BENEFITS.
If this Agreement and Executive's employment are terminated
without Cause pursuant to Section 6(B) hereof or if Executive elects to
terminate this Agreement for Good Reason pursuant to Section 7(A) hereof,
Executive shall receive the "Severance Benefits" as provided by this Section.
The Severance Benefits shall be payable in a single lump sum within 10 days
following termination of employment and shall equal the the sum of (x)
Executive's base salary in effect on the date of termination and (y) the average
of incentive compensation paid to the Executive for the two years prior to the
date of termination. In addition, the Executive shall continue to receive life,
disability, accident and group health insurance benefits substantially similar
to those which he was receiving immediately prior to his termination of
employment until the earlier of the end of the period of 12 months following his
termination of employment or the day on which he becomes eligible to receive any
substantially similar continuing health care benefits under any Plan or program
of any other employer. If a particular insurance benefit may not be continued
for any reason, Cerprobe shall pay Executive the amount necessary to permit
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Executive to purchase the same insurance benefits as were provided by Cerprobe,
such payment to be made to Executive in a single lump sum. The benefits provided
pursuant to this Section shall be provided on substantially the same terms and
conditions as they were provided prior to the termination of employment, except
that the full cost of such benefits shall be paid by the Cerprobe. The
Executive's right to receive continued coverage under the Cerprobe's group
health plans pursuant to Section 601 et seq. of the Employee Retirement Income
Security Act of 1974, as it may be amended or replaced from time to time, shall
commence following the expiration of his right to receive continued benefits
under this Agreement.
Executive shall have no duty to mitigate damages in order to
receive the benefits provided by this Section.
If Cerprobe terminates the Agreement and Executive's
employment for Cause, or if Executive voluntarily terminates this Agreement and
Executive's employment without Good Reason prior to the end of the Term, no
Severance Benefits shall be paid to Executive. No Severance Benefits are payable
in the event of Executive's death or disability while in the active employ of
Cerprobe.
10. BENEFITS.
Executive will be entitled to participate in all employee
benefit plans, including, but not limited to, retirement plans, stock option
plans, life insurance plans and health and dental plans available to other
Cerprobe employees, subject to restrictions (including waiting periods)
specified in the applicable Plan.
Executive is entitled to four weeks of paid vacation per
calendar year, with such vacation to be scheduled and taken in accordance with
Cerprobe's standard vacation policies.
11. CONFIDENTIALLY AND NON-DISCLOSURE.
During the course of Executive's employment, Executive has and
will become exposed to a substantial amount of confidential and proprietary
information, including, but not limited to financial information, annual report,
audited and unaudited financial reports, strategic plans, business plans,
marketing strategies, new business strategies, personnel and compensation
information, and other such reports, documents or information. In the event
Executive's
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employment is terminated by either party for any, reason, Executive will return
to Cerprobe and Executive will not take, any copies of such documents, computer
print-outs, computer tapes, floppy disks, CD ROMS, etc., in any form, format or
manner whatsoever, nor will Executive disclose the same in whole or in part to
any person or entity, in any manner either directly or indirectly. Excluded from
this Agreement is information that is already disclosed to third parties and is
in the public domain or that Cerprobe consents to be disclosed, with such
consent to be in writing. The provisions of this Section 11 shall survive the
termination of this Agreement.
12. COVENANT-NOT-TO-COMPETE.
A. Interests to be Protected. The parties acknowledge that
during the Term, Executive will perform essential for Cerprobe, its employees
and shareholders, and for customers of Cerprobe. Therefore, Executive will be
given an opportunity to meet, work with and develop close working relationships
with Cerprobe's clients on a first-hand basis and will gain valuable insight as
to the clients' operations, personnel and need for services. In addition,
Executive will be to, have access to, and be required to work with, a
considerable amount of Cerprobe's confidential and proprietary information,
including but not limited to information concerning Cerprobe's methods of
operation, financial information, strategic planning, operational budgets and
strategies, payroll data, management systems programs, computer systems,
marketing plans and strategies, merger and acquisition strategies and customer
lists.
The parties also expressly recognize and
acknowledge that the personnel of Cerprobe have been trained by, and are
valuable to Cerprobe, and that if Cerprobe must hire new personnel or retrain
existing personnel to fill vacancies Cerprobe will incur substantial expense in
recruiting and training such personnel. The parties expressly recognize that
should Executive compete with Cerprobe in any manner whatsoever, it would
seriously impair the goodwill and diminish the value of Cerprobe's business.
The parties acknowledge that this covenant has an
extended duration; however, they agree that this covenant is reasonable and that
it is necessary for the protection of Cerprobe, its shareholders and employees.
For these and other reasons, and the fact that there
are many other employment opportunities available to Executive if Executive
should terminate, the parties are in
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full and complete agreement that the following restrictive covenants (which
together are referred to as the "Covenant-Not-To-Compete") are fair and
reasonable and are freely, voluntarily and knowingly entered into. Further, each
party has been given the opportunity to consult with independent legal counsel
before entering into this Agreement.
B. Devotion to Employment. Executive shall devote
substantially all of Executive's business time and best efforts to the
performance of Executive's duties on behalf of Cerprobe. During the term of
employment, Executive shall not at any time or place or to any extent
whatsoever, either directly or indirectly, without the express written consent
of Cerprobe, engage in any outside employment, or in any activity competitive
with or adverse to Cerprobe's business, practice or affairs, whether alone or as
partner, officer, director, employee, shareholder of any corporation or as a
trustee, fiduciary, consultant or other representative. This is not intended to
prohibit Executive from engaging in nonprofessional activities such as personal
investments or conducting to a reasonable extent private business affairs which
may include other boards of directors' activity, as long as they do not conflict
with Cerprobe. Participation to a reasonable extent in civic, social or
community activities is encouraged.
C. Non-Solicitation of Customer or Suppliers. During the term
of Executive's employment with Cerprobe and for a period of 12 months after the
expiration or termination of employment with Cerprobe, regardless of who
initiates the termination, Executive shall not, directly or indirectly, for
Executive, or on behalf of, or in conjunction with, any other person(s),
company, partnership, corporation, or governmental entity, in any manner
whatsoever, call upon, contact encourage, handle or solicit, or cause others to
solicit, any person or other entity that is, or was within the 12-month period
immediately prior to the date of Executive's termination, a customer or supplier
of Cerprobe or any of its subsidiaries or affiliates, for the purpose of
soliciting, selling or purchasing from such customer or supplier the same,
similar, or related services or products that are provided by, or purchased by,
Cerprobe or any of its subsidiaries or affiliates. Notwithstanding the
foregoing, the obligations of Executive under this Section 12(C), shall
terminate only if the employment of Executive is terminated by Cerprobe without
Cause or if Executive terminates his employment for Good Reason. If Executive
violates Executive's obligations under this Section 12(C), then the time periods
hereunder shall
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be extended by the period of time equal to that period beginning when the
activities constituting such violation commenced and ending when the activities
constituting such violation terminated.
D. Non-Solicitation of Employees. During the term of
Executive's employment with Cerprobe and for a period of 12 months after the
termination of employment with Cerprobe, regardless of who initiates the
termination, Executive shall not, directly or indirectly, for Executive, or on
behalf of, or in conjunction with, any other person(s), company, partnership,
corporation, or governmental entity, in any manner whatsoever, seek to him,
and/or hire any person who, on the date hereof, or on the date of Executive's
termination, is an employee of Cerprobe or any of its subsidiaries or
affiliates, and that receives annual compensation in excess of $25,000, for
employment or as an independent contractor with any person or entity (other than
Cerprobe or any of its subsidiaries or affiliates), unless first authorized in
writing by Cerprobe, which authorization may be withheld in the sole and
absolute discretion of Cerprobe. If Executive violates Executive's obligations
wider this Section 12(D), then the time periods hereunder shall be extended by
the period of time equal to that period beginning when the activities
constituting such violation commenced and ending when the activities
constituting such violation terminated.
E. Competing Business. During the term of Executive's
employment and for a period of 12 months after the termination of employment
with Cerprobe, regardless of who initiates the termination, Executive shall not,
directly or indirectly, (including, without limitation, as a partner, director,
officer or employee of, or lender or consultant to, any other personal entity,
or shareholder (other than as the holder of less than five percent of the stock
of a corporation the securities of which are traded on a national securities
exchange or in the over-the-counter market), for Executive, or on behalf of, or
in conjunction with, any other person(s), company, partnership, corporation, or
governmental entity, in any manner whatsoever, or in any other capacity, within,
into or from the Restricted Territory (as defined below) engage or cause others
to engage in the same or similar business as Cerprobe and its subsidiaries, or
any aspect thereof, unless first authorized in writing by Cerprobe, which
authorization may be withheld in the sole and absolute discretion of Cerprobe.
For purposes of this Section 12(E), the term "Restricted Territory" shall mean
any geographical service area where Cerprobe or any of its subsidiaries and
affiliates is engaged in business, sells products or performs services or was
considering engaging
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in business at any time, prior to the termination or at the time of termination.
Notwithstanding the foregoing, the obligations of Executive under this Section
12(E), shall terminate only if Executive is terminated by Cerprobe without Cause
or if Executive terminates his employment for Good Reason. If Executive violates
Executive's obligations under this Section 12(E), then the time periods
hereunder shall be extended by the period of time equal to that period beginning
when the activities constituting such violation commenced and ending when the
activities constituting such violation terminated.
F. Judicial Amendment. If the scope of any provision of this
Section 12 is found by a court of competent jurisdiction to be too broad to
permit enforcement to its full extent, then such provision shall be enforced to
the maximum extent permitted by law. The parties agree that the scope of any
provision of this Agreement may be modified by a judge in any proceeding to
enforce this Agreement, so that such provision can be enforced to the maximum
extent permitted by law. If any provision of this Agreement is found to be
invalid or unenforceable for any reason, it shall not affect the validity of the
remaining provisions of this Agreement.
G. Injunctive Relief Damages and Forfeiture. Due to the nature
of Executive's position with Cerprobe, and with full realization that a
violation of this Agreement will cause immediate and irreparable injury and
damage, which is not readily measurable, and to protect Cerprobe's interests,
Executive understands and agrees that in addition to instituting legal
proceedings to recover damages resulting from a breach of this Agreement,
Cerprobe may seek to enforce this Agreement with an action for injunctive relief
to cease or prevent any actual or threatened violation of this Agreement on the
part of Executive.
H. Survival. The provisions of this Section 12, shall survive
the termination of this Agreement.
13. DEFERRAL OF AMOUNTS PAYABLE UNDER THIS AGREEMENT.
Any payment due pursuant to this Agreement may be deferred if
and to the extent that the payment does not satisfy the requirements to be
"qualified performance-based compensation" (as such term is defined by the
regulations issued under Section 162(m) of the Internal Revenue Code, of 1986
(the "Code")) and when combined with all other payments
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received during the year that are subject to the limitations on deductibility
under Section 162(m) of the Code, the payment exceeds the limitations on
deductibility under Section 162(m) of the Code. The deferral of payments shall
be in the discretion of the Board. Such deferred amounts shall be paid no later
than the 60th day after the end of the next succeeding calendar year, provided
that such payment, when combined with any other payments subject to the Section
162(m) limitations received during the year, does not exceed the limitations on
deductibility under Section 162(m) of the Code. If the payments in such
succeeding calendar year exceed the limitations on deductibility under Section
162(m) of the Code, such payments shall continue to be deferred to the next
succeeding year. The above procedure shall be repeated until such payments can
be and is fully paid without exceeding the limitation on deductibility under
Section 162(m) of the Code.
14. AMENDMENTS.
This Agreement and the Ancillary Agreements constitute the
entire agreement between the parties as to the subject matter hereof.
Accordingly, there are no side agreements or verbal agreements other than those
which are stated in this document or in the Ancillary Agreements. Any amendment,
modification or change in said Agreements must be done so in writing and signed
by both parties.
15. SEVERABILITY.
In the event a court or arbitrator declares that any provision
of this Agreement is invalid or unenforceable, it shall not affect or invalidate
any of the remaining provisions. Further, the court shall have the authority to
re-write that portion of the Agreement it deems unenforceable, to make it
enforceable.
16. GOVERNING LAW.
The law of the State of Arizona shall govern the
interpretation and application of all of the provisions of this Agreement.
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17. INDEMNITY.
A. General. Cerprobe shall, to the fullest extent authorized
by the Delaware General Corporation Law, as amended, indemnify and hold harmless
Executive in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative against expenses,
liabilities and losses (including attorneys' fees, judgments, fines, excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by Executive in connection therewith.
B. Expenses. This right to indemnification includes the right
to be paid by Cerprobe the expenses (including attorneys' fees) incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by Executive shall be made only upon delivery to Executive
of an undertaking, by or on behalf of Executive, to repay all amounts so
advanced if it is ultimately determined by final judicial decision from which
there is no further right to appeal that Executive is not entitled to be
indemnified for such expenses. The rights to indemnification and to the
advancement of expenses shall be contract rights and such rights shall continue
as to Executive after his termination of employment and shall inure to the
benefit of the Indemnitee's heirs, executors and administrators.
C. Claims for Indemnification or Expenses. If a claim under
either A or B above is not paid in full by Cerprobe within 60 days after
Cerprobe receives a written claim, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be 20 days,
Executive may at any time thereafter bring suit against Cerprobe to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
Executive shall be entitled to be paid also the expense of prosecuting or
defending such suit. In any suit brought by the Executive to enforce a right to
indemnification or to an advancement of expenses hereunder, or brought by
Cerprobe to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that Executive is not entitled to be
indemnified, or to such advancement of expenses, shall be on Cerprobe.
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18. DISPUTE RESOLUTION.
A. Mediation. Any and all disputes arising under, pertaining
to or touching upon this Agreement (excepting the confidentiality and
non-disclosure provisions of Section 11 hereof, and the Covenant-Not-To-Compete
provisions of Section 12 hereof), or the statutory rights or obligations of
either party hereto, shall, if not settled by negotiation, be subject to
non-binding mediation before an independent mediator selected by the parties
pursuant to Section below writing and served upon the other. Any demand for
mediation shall be made in writing party to the dispute, by certified mail,
return receipt requested, at the business address of or at the last known
residence address of Executive respectively. The demand shall set forth with
reasonable specificity the basis of the dispute and the relief sought. The
mediation learning will occur at a time and place convenient to the parties in
Maricopa County, Arizona, within thirty (30) days of the date of selection or
appointment of the mediator and shall be governed by the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association
("AAA").
B. Arbitration. In the event that the dispute is not settled
through mediation, the parties shall then proceed to binding arbitration before
a single independent arbitrator selected pursuant to Section 18(D). The mediator
shall not serve as arbitrator. ALL DISPUTES INVOLVING ALLEGED UNLAWFUL
EMPLOYMENT DISCRIMINATION TERMINATION BY ALLEGED BREACH OF CONTRACT OR POLICY,
OR ALLEGED EMPLOYMENT TORT COMMITTED BY CERPROBE OR A REPRESENTATIVE OF CERPROBE
INCLUDING CLAIMS OF VIOLATIONS OF FEDERAL OR STATE DISCRIMINATION STATUTES OR
PUBLIC POLICY, SHALL BE RESOLVED PURSUANT TO THIS POLICY AND THERE SHALL BE NO
RECOURSE TO COURT, WITH OR WITHOUT A JURY TRIAL. The arbitration hearing shall
occur at a time and place convenient to the parties in Maricopa County, Arizona,
within thirty (30) days of selection or appointment of the arbitrator. If
Cerprobe has adopted a policy that is applicable to arbitrations with
executives, the arbitration shall be conducted in accordance with said policy to
the extent that the policy is consistent with this Agreement and the Federal
Arbitration Act, 9 U.S.C. SectionSection 1-16. If no such policy has been
adopted, the arbitration shall be governed by the National Rules for the
Resolution of Employment Disputes of the AAA. The
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arbitrator shall issue written findings of fact and conclusions of law, and an
award, within fifteen (15) days of the date of the hearing unless the parties
otherwise agree.
C. Damages. In cases of breach of contract or policy, damages
shall be limited to contract damages. In cases of intentional discrimination
claims prohibited by statute, the arbitrator may direct payment consistent with
42 U.S.C. Section 1981(a) and the Civil Rights Act of 1991. In cases of
employment tort, the arbitrator may award punitive damages if proved by clear
and convincing evidence. Any award of punitive damages shall not exceed two
times any compensatory award and in any event, shall not exceed Two Hundred
Fifty Thousand Dollars ($250,000). The arbitrator may award fees to the
prevailing party and assess costs of the arbitration to the non-prevailing
party. Issues of procedure, arbitrability, or confirmation of award shall be
governed by the Federal Arbitration Act, 9 U.S.C. SectionSection 1-16, except
that court review of the arbitrator's award shall be that of an appellate court
reviewing a decision of a trial judge sitting without a jury.
D. Selection of Mediators or Arbitrators. The parties shall
select the mediator or arbitrator form a panel list made available by the AAA.
If the parties are unable to agree to a mediator or arbitrator within 10 days of
receipt of a demand for mediation or arbitration, the mediator or arbitrator
will be chosen by alternatively striking from a list of five (5) mediators or
arbitrators obtained by Cerprobe from ALA. Executive shall have the first
strike.
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IN WITNESS WHEREOF, Cerprobe and Executive have executed this Agreement
effective on the date set forth above.
CERPROBE CORPORATION "EXECUTIVE"
By:
Ross J. Mangano Randal L. Buness
Chairman of the Board
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