CONSULTING, NONDISCLOSURE, SEVERANCE AND RESIGNATION
AGREEMENT
This Consulting, Nondisclosure, Severance and Resignation Agreement (this
"Agreement") is entered into by and between ▇▇▇▇▇ ▇▇▇▇▇ (the "Executive") and
International Rectifier Corporation (the "Company"), as of May 10, 1999,
based on the following:
The Executive is employed by the Company as one of its two its Chief
Executive Officers. The Board of Directors of the Company (the "Board")
recognizes that the Executive's contribution to the growth and success of the
Company has been substantial. The Company and the Executive desire to enter
into a contractual arrangement whereby the Executive will resign from his
position as Chief Executive Officer and provide independent consulting
services to the Company.
In consideration of the promises and mutual covenants contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree:
I.RESIGNATION. The Executive shall resign his employment as Chief
Executive Officer of the Company effective as of June 15, 1999 (the
"Resignation Date"), at which time the Executive's employment with the
Company shall be severed. At the same time, the Executive shall resign
as an officer or director of any subsidiary or other affiliate of the
Company. The Executive's resignation does not affect the Executive's
tenure as a member of the Company's Board of Directors.
II.TRANSITION SERVICES. Between the date of this Agreement and
the Resignation Date, the Executive shall use his full time efforts to
assist in the transition of his management responsibilities to the
other Chief Executive Officer of the Company in such manner, and at
such times and places, as the other Chief Executive Officer reasonably
requests.
▇▇▇.▇▇▇▇▇▇▇▇▇▇ ENGAGEMENT.
A.Engagement. Subject to the Executive's resignation under
Section I of this Agreement, and effective from the Resignation
Date to the end of the Term as defined in Section V of this
Agreement, the Company shall engage the Executive as a
consultant, and the Executive agrees to serve as a consultant to
the Company.
B.Assignment of Duties. The Executive shall be available to the
Company to provide such services and complete such projects as
may reasonably be required of or assigned to him by the Chairman
of the Board or the Chief Executive Officer of the Company. The
Executive's obligation to provide consulting services shall not
exceed 20 hours during any month occurring during the Term.
C.Outside Employment. The Executive's engagement under this
Agreement is nonexclusive and limited in time, so as to permit
the Executive to perform duties for another person or
company, subject to the limitations set forth in Sections III
and IV of this Agreement. Thus, except as otherwise provided in
this Agreement, the Executive is free, during the Term of this
Agreement, to seek employment with or consult with any other
person. If an availability conflict arises between the
Executive's performance of his duties or commitments under this
Agreement and any obligation that he may owe to an employer, both
the Executive and the Company shall make reasonable scheduling
accommodations to allow the Executive to perform both his duties
under this Agreement and his obligation to his then-employer.
D.Independent Contractor Status.
1.Status. The Executive shall perform all of his services
under this Section III solely as an independent contractor
and not as an agent or employee of the Company. The
Executive does not have any right or authority to assume or
create any obligation, responsibility or liability on
behalf of or in the name of the Company or to bind the
Company, except as may be authorized in writing
by an officer of the Company, and he shall not make any
contrary representation to any third party. This Agreement
does not constitute the Company and the Executive as
partners, joint venturers or employer and employee.
2.Independent Judgment. The Company is engaging
Executive to exercise his own independent and professional
judgment in performing his services under this Section III.
The Executive will determine, in his sole discretion, the
manner, means, details, and methods used in performing his
services. The Company retains no control over the manner,
means, details, or methods that the Executive uses in
performing his services.
3.Treatment of Relationship, Taxes. The Executive and
the Company shall treat the engagement solely as that of
independent contractor and not that of agent or employee for
all purposes, including (a) Federal, state, and local
income, employment and other taxes, (b) benefits, and (c)
insurance. Specifically, the Executive and the Company agree
that the Executive shall not be eligible for benefits
generally available to employees of the Company;
compensation to be paid to the Executive for his consulting
services under this Agreement will not be subject to
withholding or deductions provided by local, state or
Federal law; and the Executive shall report and pay all
taxes imposed on the Executive for any compensation to be
paid to the Executive for his consulting services under this
Agreement. The Executive shall indemnify and hold harmless
the Company against any liabilities to any taxing authority
arising out of the Executive's failure to report or pay
taxes on any such compensation, but does not indemnify the
Company for any related payments, penalties, or other
liabilities to any taxing authority arising from any cause
other than the Executive's failure to report or pay taxes on
such compensation.
4.Facilities. The Executive shall maintain at his own
expense any facilities, equipment, and instrumentalities
required to perform his services under this Section III.
IV.RESTRICTIONS ON EXECUTIVE
For purposes of this Section IV, "the Company" means the Company
and its subsidiaries.
A.Confidentiality and Work Product.
1.During his employment with the Company, Executive
has had and during the Term will continue to have access
to proprietary information, trade secrets, and
confidential material, in whatever form, of the Company
and its successors and assigns, including information
concerning the Company's operations, policies and
procedures, present and future business plans, financial
information, budgets and projections, methods of doing
business, and marketing, research and development
activities and strategies ("Confidential Information").
Executive shall maintain the confidentiality of the
Confidential Information and refrain from divulging,
disclosing, or otherwise using the Confidential
Information to the detriment of the Company or its
successors or assigns, or for any other purpose.
Executive's obligation under this Section continues
without limitation in time, or until the Confidential
Information becomes public other than by Executive's
unauthorized disclosure.
2.Except as may be authorized in writing by the
Chairman of the Board or the other Chief Executive Officer
of the Company, at the time of leaving the employ of the
Company, the Executive shall deliver to the Company (and
will not keep in his possession, recreate or deliver to
anyone else) any Confidential Information, and any and all
devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints,
sketches, materials, equipment, other documents or property,
or reproductions of any of the aforementioned items in any
form developed by the Executive pursuant to his employment
with the Company or otherwise belonging to the Company, and
its affiliates and successors or assigns.
3.Assignment of Work Product. The Executive hereby
assigns the Company the entire right, title and interest for
the entire world in and to all (a) work performed,
writing(s), software, formula(s), design(s), model(s),
drawing(s), photograph(s), design invention(s) and other
invention(s) (collectively "Developments") made, conceived
or reduced to practice or authorized by the Executive,
either solely or jointly with others, during Executive's
employment with the Company and during the performance of
this Agreement, and (b) materials or facilities of the
Company received or used by the Executive during Executive's
employment with the Company and during the Term. The
Executive shall promptly disclose to the Company all
work(s), writing(s), formula(s), design(s), other
invention(s) made, conceived, or reduced to practice or
authored by the Executive in the course of the performance
of this Agreement.
The Executive shall sign, execute and acknowledge or cause
to be signed, executed and acknowledged without cost to the
Executive, but at the expense of the Company, any and
all documents and perform such acts as may be necessary,
useful or convenient for the purpose of securing to the
Company or its nominees, patent, trademark, or copyright
protection
throughout the world upon all such Developments, title to
which the Company may acquire in accordance with the
provisions of this clause.
▇.▇▇▇▇ Product Owned by Company. All Developments made
during Executive's employment with the Company and under
this Agreement of whatever type relating to the work
performed during Executive's employment or under this
Agreement shall be the exclusive property of the Company.
The Executive hereby confirms and agrees that such
Developments were conceived, created and developed during
the course of his employment by the Company and are the sole
and exclusive property of the company and were also "works
for hire" under the federal copyright statute and other
applicable intellectual property laws, domestic or foreign.
All machines, instruments and products purchased,
manufactured or assembled by the Executive during his
employment or pursuant to this agreement and paid for by the
Company shall be the exclusive property of the Company. Upon
termination of this Agreement, the Executive shall dispose
of such items as directed by the Company.
B.Involvement with Company's Competitors.
1.During the Term, the Executive shall not
directly or indirectly (a) engage in a business that
competes with the Company; (b) work for, as an employee,
officer, independent contractor, or consultant, or take
an interest in, in any capacity, including as a partner,
stockholder, director, principal, agent, or trustee, any
person, business or entity that competes with the
Company, except that the Executive may own, directly or
indirectly, solely as a passive investment, securities of
any entity traded on any national securities exchange if
Executive is not a controlling person of, or a member of
a group which controls, such person, business or entity
and does not, directly or indirectly, own 5% or more of
any class of securities of such entity. For the purposes
of this paragraph, a person, business or entity
"competes" with the Company if the entity designs,
licenses, manufactures, markets, or sells a product that
performs the same or similar function as any product that
is listed in the Company's catalog or is being researched
or developed on the Resignation Date or is scheduled for
release during the Term. The Company's Board of
Directors, acting through only its nonemployee members,
shall determine, in their reasonable discretion, whether
a person, business, or entity "competes" within the
meaning of this paragraph. The Executive may request such
a determination at any time during the Term, and the
Company's Board of Directors will respond as promptly as
the Board deems reasonable under the circumstances.
2.During the Term, the Executive (whether acting alone
or in concert with others) shall not (a) solicit, induce or
encourage or attempt to solicit, induce or encourage any
customer, consultant, vendor, supplier or other business
relation of the Company to cease doing business or provide
service with the Company or in any way interfere with the
relationship between any such customer, consultant, vendor,
supplier or business relation and the Company or (b)
solicit, induce or encourage any customer, consultant,
vendor or supplier to do business with or provide any
service to any person, business or entity that competes with
the Company within the meaning of Paragraph IV.B.1.
C.Non-Acquisition. During the Term, the Executive may
not directly or indirectly engage in any activity, on his own
behalf, or on behalf of any other entity (as an employee,
consultant, independent contractor, broker, agent, or otherwise),
the purpose of which is the acquisition of the Company, a
material portion of its assets, or its common stock, except in
connection with the exercise of options to purchase common stock
that the Company grants or has granted to the Executive, unless
the Company in its sole discretion waives this restriction in
writing or offers in writing to sell any of the foregoing to the
Executive.
D.Solicitation of Employees. For a period of two years
immediately following the termination of the Executive's
employment by the Company, the Executive shall not (whether
acting alone or in concert with others) either directly or
indirectly solicit, recruit, induce or encourage, or attempt to
solicit, recruit, induce or encourage any of the Company's
employees to leave their employment or to join any other person
or entity, subject to the following exceptions:
1.This paragraph does not prohibit the Executive from
soliciting or employing his current executive assistant at
any time.
2.This paragraph does not prohibit any business or
entity by whom the Executive is employed or for whom the
Executive renders services from employing any of the
Company's employees or any former Company employee or from
soliciting, recruiting, inducing, or encouraging, or
attempting to solicit, recruit, induce or encourage any of
the Company's employees to leave their employment or to join
such business or entity, as long as the employment,
solicitation, recruiting, inducing, encouragement, or
attempt does not result from a breach of the other
provisions of this paragraph.
3.This paragraph does not prohibit the Executive from
responding to any employment or similar inquiry from any
Company employee that is initiated by the employee and not
directly or indirectly by the Executive, but the Executive
may not employ any employee of the Company before December
15, 1999.
E.Enforceability of Provisions/Remedies. With the
objective of obtaining the successful implementation of the
provisions of this Section IV, the Company and the Executive
agree (1) the obligations contained in each provision shall be
enforced to the maximum extent that the provision and the
obligation may be enforced and still be held to be reasonable and
(2) the arbitrator or court interpreting or enforcing a provision
of Section IV of this Agreement that the arbitrator or court
determines is not reasonable or enforceable may excise or modify
the provision to the extent that the provision appears
unreasonable to the court and enforce the provision as so
modified.
V.TERM OF THE AGREEMENT. Unless earlier terminated in
accordance with Section VII of this Agreement, the term of this
Agreement is two years, commencing on the Resignation
Date (the "Term").
VI.PAYMENTS AND BENEFITS.
▇.▇▇▇▇▇▇▇▇▇ Payment. As compensation for the Company's
termination of the Executive's employment with the Company and
in partial consideration for the restrictions imposed on the
Executive under this Agreement and the other terms and
conditions of this Agreement, the Company shall pay the
Executive $3,200,000 by check or wire transfer on the
Resignation Date.
B.Compensation as Chief Executive Officer.
1.Salary. The Executive's salary shall remain the
same for the remainder of fiscal 1999 through the Resignation
Date.
2.Bonus. The Company shall award and pay the Executive
the same bonus (including option grants), if any, for fiscal
1999 performance (to be awarded and paid during fiscal year
2000) as it awards and pays to the other Chief Executive
Officer for fiscal year 1999 performance (the "1999 Bonus").
3.Other. On the Resignation Date, the Company shall pay
the Executive any other amounts owing to the Executive for
his services as an employee of the Company, such as accrued
vacation pay, other accrued benefits, and reimbursable
expenses.
▇.▇▇▇▇▇▇▇▇▇▇ Fee. In addition to the payment required
under Sections VI.A and B of this Agreement and as partial
additional consideration for this Agreement, including
particularly the agreements in Section III of this Agreement, the
Company shall pay the Executive a fee of $100,000 per quarter
during the Term, payable on the forty- fifth day of each
consulting quarter during the Term.
▇.▇▇ Offset. Any other compensation owing to the Executive
as of the Resignation Date for services performed for the Company
on or before the Resignation Date shall be in addition to and
shall not be applied to or operate to reduce the payments and
benefits due and payable under Section VI of this Agreement on or
after the Resignation Date.
E.Expense Reimbursement. The Company shall promptly
reimburse the Executive for all reasonable out of pocket expenses
related to travel, entertainment and miscellaneous expense
incurred in carrying out his duties under this Agreement. Any
expenses not previously approved that aggregate over $5,000 and
any expense that is over $5,000 must be pre-approved by the
Chairman or the other Chief Executive Officer of the Company.
Reimbursement shall be made only against an itemized list of such
expenditures signed by the Executive in such form as required by
the Company and consistent with the Company's expense
reimbursement policy.
F.Stock Options.
1.Outstanding Stock Options. All outstanding options
to purchase common stock of the Company that the Company
previously granted to the Executive, other than the vested
options that are "in-the-money" as of the close of business on
date of this Agreement, shall fully vest, and the
post-termination exercise period of each option will be extended
to the end of the remaining term of such option. The terms
of the outstanding vested options that are "in-the-money" as
of the close of business on date of this Agreement will not
change.
▇.▇▇▇ Options. Before the Resignation Date, the Company
shall grant the Executive new nonqualified options to
purchase shares of common stock of the Company at the market
price on the date of grant determined in accordance with the
Company's stock option plan. The new options will
immediately vest and will terminate on the tenth anniversary
of the date of grant. The amount of the new options to be
granted under this paragraph shall be equal to the number of
options, if any, that the Company grants to the other Chief
Executive Officer of the Company relating to performance in
fiscal year 1999, as provided in Section VI.B, plus 51,200.
3.Early Termination. If this Agreement is terminated
under Section VII.C, any unexercised options will expire 30
days after such termination.
VII.TERMINATION.
A.Termination Upon Death or Disability. If the Executive dies or
becomes totally disabled during the Term, this Agreement shall
terminate on the date of such death or disability; but the
termination does not relieve the Company of its obligations to
provide the benefits described in Section VI.F (in accordance
with the Company's Stock Option Plan of 1992 , as amended, and
the Executive's option agreement) of this Agreement and to make
the payments or provide the entitlement to benefits described in
Sections VI.C and E of this Agreement accrued through the date of
termination, all of which are subject to Section VI.D of this
Agreement. For purposes of this Section, the Executive is
"disabled" if the Executive is unable to perform his duties under
this Agreement for a period of 90 consecutive days or for shorter
periods aggregating six months in any 12 month period because of
disability or incapacitation.
B.Termination by the Company. If the Company terminates the
Executive as consultant before the end of the Term without cause
(as "cause" is defined in paragraph C of this Section) or
otherwise materially breaches any provision of this Agreement,
the Company shall pay the Executive a lump sum amount by check or
wire transfer equal to the total compensation and benefits due or
to become due under Section VI.C of this Agreement through to the
end of the Term as if fully completed, within thirty days of the
termination or breach. Any options to purchase common stock of
the Company that the Executive holds as of the date of such
termination or breach shall be governed by Section VI.F.3.
C.Termination for Cause. The Company may terminate this
Agreement and all of Executive's rights to receive any unpaid
compensation or benefits under this Agreement (1) if Executive
fails, refuses, or willfully neglects to perform his required
consulting services contemplated by this Agreement ten or more
days after the Company has given him written notice of such
failure to perform; (2) upon a determination by the Company
acting in good faith that the Executive (a) is engaging or has
engaged in willful misconduct that adversely affects the Company,
(b) is
breaching or has breached a fiduciary duty to the Company,
(c) has violated any law, rule or regulation that adversely
affects the Company, or (3) if the Executive materially breaches
any of the provisions of this Agreement. The Executive agrees to
resign from the Board of Directors of the Company if this
Agreement is terminated under this paragraph. Any erroneous
termination for cause shall be treated solely as a termination
under Section VII.B.
D.Other Relief. In addition to and notwithstanding the
exercise of the foregoing termination rights, the Company
reserves all other available rights and remedies including
injunctive and other equitable relief. The Executive agrees that
damages would not be an adequate remedy for his breach of any of
the provisions of Section IV of this Agreement.
E.Survival of Provisions. The provisions of Sections IV,
VIII, IX, X, and XI of this Agreement survive any termination of
this Agreement.
VIII.RELEASE. Except for those obligations created by or arising
out of this Agreement or the Executive's vested accounts (such as
a 401(k) plan), the Executive (a) acknowledges full and complete
satisfaction of all obligations of the Company toward him whether
past, present or future, and on behalf of himself, his spouse, his
descendants, dependents, heirs, administrators, assignees and
successors, and each of them, (b) discharges, releases and covenants
not to ▇▇▇ the Company, its divisions, subsidiaries, or affiliated
corporations, past and present, and each of them, as well as their
respective directors, officers, shareholders, representatives,
assignees, successors, agents and employees, past and present, and
each of them (individually and collectively, "Releasees") from and
with respect to any and all claims, agreements, obligations, demands
and causes of action of any nature whatsoever, known or unknown,
suspected or unsuspected (individually and collectively, the
"Claims")
▇.▇▇ to the Company, its divisions, subsidiaries, or affiliated
corporation, past and present, as well as their respective
assignees and successors, past and present, including but
not limited to Claims arising out of or in any way connected
with the employment relationship with or termination from
the Company, and any Claims for wages, severance pay, bonus
or similar benefit, stock options, sick leave, pension,
retirement, vacation pay, life insurance, health or medical
or disability, or any other Claims resulting from any act or
omission by or on the part of Releasees committed or omitted
prior to the date of this Agreement, whether based on
contract, tort, common law, statute or any other legal
source including, without limiting the generality of the
foregoing, any Claims under Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical
Leave Act, the California Fair Employment and Housing Act,
the California Family Rights Act, or any other federal,
state or local law, regulation or ordinance; and
▇.▇▇ to their respective directors, officers,
shareholders, representatives, agents and employees, past
and present, limited to Claims arising out of or in any
way connected with the Executive's service as an officer
or director of or the employment relationship with or
termination from the Company, including any Claims for
wages, severance pay, bonus or similar benefit, stock
options, sick leave, pension, retirement, vacation pay,
life insurance, health or medical or disability,
resulting from any act or omission by or on the part of
Releasees committed or omitted prior to the date of this
Agreement, whether based on contract, tort, common law,
statute or any other legal source including, without
limiting the generality of the foregoing, any Claims
under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with
Disabilities Act, the Family and Medical Leave Act, the
California Fair Employment and Housing Act, the
California Family Rights Act, or any other federal, state
or local law, regulation or ordinance; This Agreement is
intended to be effective as a bar to all Claims as stated
above, including unknown or unsuspected claims.
Accordingly, the Executive expressly waives any rights
and benefits conferred by Section 1542 of the California
Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Executive expressly acknowledges and agrees that, by entering
into this Agreement, he is waiving any and all rights or claims
arising under the Age Discrimination in Employment Act of 1967, as
amended, which have arisen on or before the date of execution of this
Agreement. In furtherance of that intention, the Executive expressly
acknowledges and agrees that:
▇.▇▇ return for this Agreement, the Executive will receive
compensation beyond that which he was already entitled to receive
before entering into this Agreement;
B.The Executive has been advised to consult with an attorney before
signing this Agreement, and has done so;
C.The Executive has been advised, and is hereby advised in writing by
this Agreement, that he has 21 days within which to consider the
Agreement before executing it (although he may choose to execute
it at any time before the 21 days has elapsed); and
D.The Executive has seven days following the date of execution of this
Agreement in which to revoke this Agreement. This Agreement will
not be effective or enforceable until the revocation period has
expired.
IX.INDEMNIFICATION. The Company shall (a) indemnify, hold harmless,
and defend the Executive against all claims, damages, losses and
expenses (including attorney's fees and costs) arising out of or
resulting from the Executive's
performance of consulting services covered by this Agreement, to the
full extent that the Company indemnifies its senior officers and
directors, (b) continue to indemnify, hold harmless, and defend the
Executive against all claims, damages, losses and expenses (including
attorney's fees and costs) arising out of or resulting from the
Executive's acts, conduct, or decisions during his employment by the
Company to the same extent as the Company is required to indemnify,
hold harmless, and defend the Executive during his employment by the
Company, (c) pay all reasonable expenses and attorney's fees and
costs that the Executive incurs in connection with or relating to any
of the matters for which the Executive is indemnified under this
Section, to the full extent of the indemnity, unless the adjudicating
body determines Executive is ineligible for indemnification, in which
case the Executive must reimburse the Company for all such fees,
expenses and costs, and (d) continue to include the Executive as a
covered individual under the Company's directors' and officers'
liability insurance policies for a period of five years after the
Resignation Date.
X.OTHER PROVISIONS.
A.Announcements B Publicity. Any written announcements or other public
statement by the Company or the Executive, including press
releases, other external communications, and internal Company
communications, of the Executive's resignation from the Company,
of this Agreement or its terms, or of any other matter relating
to the resignation, this Agreement or the events or circumstances
leading thereto, shall be consistent with the message and tone of
the statements which the Company and the Executive have agreed
upon under separate cover; but the Company retains the reasonable
discretion to make only such additional announcements as are
deemed reasonably necessary by the Company's counsel to meet
disclosure obligations. Public oral communications shall be
consistent with written statements. The Company and the Executive
will maintain and uphold the name and professional reputation of
the other.
B.Notices. All notices and other communications under this Agreement
shall be in writing and shall be given by fax or first-class
mail, certified or registered with return receipt requested, and
shall be deemed to have been given three days after mailing or 24
hours after transmission of a fax (with answer-back) to the
respective persons named below:
If to the Company:International Rectifier Corporation
Attention: General Counsel
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Executive:
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change the party's notice information in
this paragraph by notice given under this paragraph.
C.Entire Agreement. This Agreement contains the entire agreement
between the parties and supersedes all prior agreements, written
or oral, with respect to the subject matter of this Agreement.
D.Waivers and Amendments. This Agreement may be amended, superseded,
cancelled, renewed or extended, and the terms of this Agreement
may be waived, only in writing, signed by both parties or, in the
case of a waiver, by the party waiving compliance. No delay on
the part of any party in exercising any right, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any right, power or
privilege, nor any single or partial exercise of any such right,
power or privilege, preclude any other or further exercise
thereof or the exercise of any other such right, power or
privilege.
E.Severability. Each of the Sections in this Agreement shall be
enforceable, independently of every other section in this
Agreement, and the invalidity or enforceability of any Section
shall not invalidate or render unenforceable any other Section in
this Agreement.
F.Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to
agreements made and to be performed entirely within California.
G.Assignment of Change in Control. The services to be rendered by the
Executive under this Agreement are personal in nature and, thus,
the Executive may not assign any of his obligations under this
Agreement to any other person, but the Executive may assign his
right to receive any payments due under this Agreement. The
Company may not assign this Agreement or any of its rights or
obligations under this Agreement without the express written
consent of the Executive, which Executive must not unreasonably
withhold. A Change of Control, as defined in the Company's Stock
Option Plan of 1992, as amended, during the Term shall be treated
for purposes of this Agreement the same as an assignment of this
Agreement by the Company, except that if the Executive reasonably
withholds his consent to the Change
in Control, then the Change of Control shall be treated as a
termination of this Agreement without cause under Section VII.B.
H.Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts
together shall constitute one and the same instrument. Each
counterpart may consist of two copies hereof each signed by one
of the parties hereto.
I.Headings. The headings in this Agreement are for reference only and
shall not affect the interpretation of this Agreement.
J.Authority. The Company represents and warrants that
it has all corporate power and authority and has obtained
all required approvals to enter into this Agreement.
▇.▇▇▇▇▇▇▇▇'s Fees. In the event of a dispute under this Agreement, the
prevailing party shall, unless the applicable statute requires
different treatment of the issue, be awarded all costs, including
reasonable attorneys' fees, based on the determination by the
authority that resolves the dispute, of the extent to which each
party has prevailed as to the material issues involved in the
dispute.
XI.ARBITRATION OF DISPUTES.
▇.▇▇ exchange for the benefits of the speedy, economical, confidential
and impartial dispute resolution procedure of arbitration, the
Company and Executive are foregoing their right to resolution of
their disputes in a court of law by a judge or jury, in favor of
binding arbitration pursuant to the Federal Arbitration Act
and/or California Civil Procedure Code " 1281 et seq.
B.Any controversy or claim arising out of or in any way related to
this Agreement, or to Executive's employment with the Company or
its termination, and otherwise cognizable in a court of law,
shall be submitted to final and binding arbitration. This
obligation includes, but is not limited to any contractual,
common law, tort or statutory claims (such as discrimination
claims under either Federal or State laws), and claims against
individual officers, directors, managers, supervisors, employees
and agents of the Company, in their capacity as such, as well as
claims against the Company. However, either party may, without
waiving arbitration rights and duties under this Agreement, seek
preliminary injunctive relief (including temporary restraining
orders) or other provisional relief pursuant to California Code
of Civil Procedure "1281.8 from a court upon the same basis and
showing as would other litigants, together with a showing that
any potential arbitration award would be rendered ineffectual
without such provisional relief. Nothing herein shall limit in
any way the scope and preclusive effort of the Release herein
(Section VIII).
C.Statutes of limitations, scope of remedies, prior
exhaustion of administrative agency relief, and substantive law
shall be the same as would be applicable were the action to be
brought in court, except that claimed breaches of this Agreement
must be filed with the responding party within one year of the
event giving rise to the claim. Any claim or demand for
arbitration must be served upon the responding party in a timely
manner, and fairly put the opposing parties on notice as to the
factual and legal basis for the claim(s).
D.The arbitration shall be held in Los Angeles County and administered
by the American Arbitration Association ("AAA") under its
Commercial Arbitration Rules, except as otherwise provided in
this Section XI. If for any reason AAA is unwilling or unable to
handle the dispute, then the dispute shall be processed pursuant
to California Civil Procedure Code " 1282 - 1284.2.
E.The arbitrator shall be selected by mutual agreement of the parties,
or pursuant to the appointment procedures of AAA.
F.The arbitrator shall have exclusive authority to resolve any dispute
relating to the arbitrability of any claim or matter, including
any dispute regarding the applicability, formation or enforcement
of this Agreement, to hear and rule upon pre-hearing disputes,
and shall entertain and rule upon motions for summary
adjudication or judgment and motions in limine, and in doing so
shall apply the Federal Rules of Civil Procedure applicable to
such motions.
G.Each party shall have the right to engage in reasonable, limited
pre-hearing discovery, subject to the supervision of the
Arbitrator.
H.Any party may, but is not required to, be represented by counsel of
its choice. The hearing and all filings and other proceedings
shall be treated in a private and confidential manner by the
arbitrator and all parties and representatives, and shall not be
disclosed except as necessary for any related judicial
proceedings.
The parties have executed this Agreement as of the date first above
written.
INTERNATIONAL RECTIFIER CORPORATION
By:__________________________________________
L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Its Executive Vice President
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