SEPARATION AND RELEASE AGREEMENT
Exhibit10.11
THIS
SEPARATION AND RELEASE AGREEMENT (this “Agreement”)
is
entered into by and among XXXX X. XXXXXX, M.D., Ph.D. (“Xxxxxx”),
with
an address at 000
Xxxx
00xx
Xxxxxx,
Xxx. 00X, Xxx Xxxx, XX 00000 and MANHATTAN PHARMACEUTICALS, INC. (the
“Employer”),
with
its principal executive offices located at 000 Xxxxxxx Xxxxxx, 0xx
xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, and together with its parents, divisions, affiliates,
and subsidiaries and their respective officers, directors, employees,
shareholders, members, partners, plan administrators, attorneys, and agents,
as
well as any predecessors, future successors or assigns or estates of any of
the
foregoing (collectively referred to herein as the “Company”).
1. Separation
of Employment.
Xxxxxx
acknowledges and agrees that Xxxxxx’ last day employment with Employer shall be
December 31, 2007 (the “Separation
Date”),
and
that Xxxxxx has received all compensation and benefits to which Xxxxxx is
entitled as a result of Xxxxxx’ employment with Employer, except as otherwise
provided in this Agreement. Xxxxxx understands that, except as otherwise
provided in this Agreement, Xxxxxx is entitled to nothing further from Company,
including reinstatement by Employer.
2. Xxxxxx
Release of Company.
In
consideration of the release set forth in Section 4 and the payments,
compensation, and other benefits set forth below in Section 5, Xxxxxx hereby
releases, waives, discharges and gives up any and all Claims (as defined below)
that Xxxxxx may have against Company, arising on or prior to Xxxxxx’ execution
and delivery of this Agreement to Employer. “Claims”
means
any and all actions, charges, controversies, demands, causes of action, suits,
rights, and/or claims whatsoever for debts, sums of money, wages, salary,
severance pay, commissions, bonuses, incentive compensation, unvested stock
options, restricted stock awards, vacation pay, sick pay, expense reimbursement,
fees and costs, attorneys fees, losses, penalties, damages, including damages
for pain and suffering and emotional harm, arising, directly or indirectly,
out
of any promise, agreement (including, without limitation, his Employment
Agreement dated January 26, 2006, hereafter the “Employment
Agreement”),
contract, understanding, common law, tort, the laws, statutes, and/or
regulations of the States of New York, Delaware, or any other state and the
United States, including, but not limited to, federal and state wage and hour
laws, federal and state whistleblower laws, Title VII of the Civil Rights Act
of
1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans with
Disabilities Act, the Family and Medical Leave Act, the Employment Retirement
Income Security Act (excluding COBRA), the Vietnam Era Veterans Readjustment
Assistance Act, the Fair Credit Reporting Act, the Fair Labor Standards Act,
the
Age Discrimination in Employment Act, OSHA, the Xxxxxxxx-Xxxxx Act of 2002,
the
Delaware Discrimination in Employment Act, the Delaware Handicapped Persons
Employment Protection Act, the New York State Human Rights Laws, and the New
York City Human Rights Laws, as each may be amended from time to time, whether
arising directly or indirectly from any act or omission, whether intentional
or
unintentional. This releases all Claims including those of which Xxxxxx is
not
aware and those not mentioned in this Agreement. Xxxxxx specifically releases
any and all Claims arising out of his employment with Employer, and/or the
separation thereof or therefrom. Xxxxxx expressly forfeits and waives his right
to any stock options that have not vested as of the Separation Date, except
as
otherwise provided in this Agreement on the attached Schedule
A.
Nothing
in this Agreement shall preclude Xxxxxx from: (A) participating in any manner
in
an investigation, hearing or proceeding conducted by the Equal Employment
Opportunity Commission, but Xxxxxx hereby waives any and all rights to recover
under, or by virtue of, any such investigation, hearing or proceeding; (B)
exercising Xxxxxx’ rights, if any, under Section 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, popularly known as COBRA;
or
(C) exercising Xxxxxx’ rights under this Agreement.
3. Representations;
Covenants.
Xxxxxx
hereby represents and warrants to Company that: (A) Xxxxxx has not filed, caused
or permitted to be filed any pending proceeding (nor has Xxxxxx lodged a
complaint with any governmental or quasi-governmental authority) against
Company, nor has Xxxxxx agreed to do any of the foregoing; (B) Xxxxxx has not
assigned, transferred, sold, encumbered, pledged, hypothecated, mortgaged,
distributed, or otherwise disposed of or conveyed to any third party any right
or Claim against Company that has been released in this Agreement; (C) Xxxxxx
has not directly or indirectly assisted any third party in filing, causing
or
assisting to be filed, any Claim against Company, and (D) Xxxxxx is unaware
of
any potential Claims that any third party may have against Company which Xxxxxx
has not previously disclosed to Company. In addition, Xxxxxx shall not encourage
or solicit or voluntarily assist or participate in any way in the filing,
reporting or prosecution by itself or any third party of a proceeding or Claim
against Company based upon or relating to any Claim released by Xxxxxx in this
Agreement.
4. Employer
Release of Xxxxxx; Indemnification.
(a) As
good
consideration to Xxxxxx, Employer
hereby forever releases, waives and discharges Xxxxxx from any and all actions,
claims or demands in general, special or punitive damages, attorneys’ fees and
costs, expenses or other compensation which in any way relate to or arise out
of
Xxxxxx’ employment with Employer or separation therefrom or the circumstances
related thereto or by reason of any other matter, cause or thing whatsoever
from
the date of Xxxxxx’x employment through the date of this Agreement which
Employer may now have under federal, state or local law, regulation, or
ordinance. Notwithstanding the foregoing, nothing herein shall be deemed to
release Xxxxxx from any of Xxxxxx’x acts or omissions involving or arising from
fraud or criminal conduct by Xxxxxx while employed by Employer, provided that,
as of the date of this Agreement, Employer’s Chief Executive Officer or Chief
Financial Officer is not aware of such conduct. As of the Separation Date,
Employer represents that it is unaware of any non-compliance by Xxxxxx with
respect to his Employment Agreement or this Agreement.
(b) Employer
acknowledges and agrees that Xxxxxx shall be entitled to the maximum coverage
permissible under its directors & officers insurance and any other insurance
policy available to Employer or which may be applicable to Xxxxxx. To the extent
permitted by applicable law and its certificate of incorporation and by-laws,
Employer also agrees to indemnify and hold Xxxxxx harmless for all actions
or
omissions he engaged in the course of his employment with Employer to the extent
such actions or omissions were in good faith and not outside the scope of his
employment or duty to Employer.
5. Consideration.
As
additional consideration to Xxxxxx
for his execution,
delivery and non-revocation of this Agreement:
(A) Employer
shall provide Xxxxxx with continuation of his base salary through February
29,
2008, in accordance with Employer’s regular payroll practices, commencing on the
eighth day after the next regularly scheduled paydate following Xxxxxx’
execution and delivery of this Agreement to Employer;
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(B) Employer
shall accelerate Xxxxxx’ vesting of certain stock options and extend the
exercise period for such options to be exercised under Employer’s 2003 Stock
Option Plan, as set forth on the attached Schedule
A;
and
(C) employer
shall waive its right to enforce the covenant against competition provision
contained in Section 6(a) of the Employment Agreement.
Xxxxxx
acknowledges, understands, and agrees that Xxxxxx
is not
otherwise entitled to receive the payments and benefits set forth above in
this
Section 5, and further acknowledges, understands, and agrees that nothing in
this Agreement shall be deemed to be an admission of liability on the part
of
Company. Xxxxxx
agrees
that Xxxxxx
will not
seek any further payments, benefits, or other consideration or relief from
Company.
6. Expense
Reimbursement.
Xxxxxx
shall be entitled to reimbursement by Employer of reasonable expenses incurred
during his employment with Employer provided such expenses are submitted within
a reasonable amount of time following the Separation Date and consistent with
Employer’s customary policies and practices with respect to such expense
reimbursement.
7. Cooperation.
Xxxxxx
agrees to reasonably make himself available through February 29, 2008 to respond
to inquiries from the Company regarding any outstanding transitional issues.
Xxxxxx further agrees, upon Company’s request, to reasonably cooperate at any
time in any Company investigations, inquiries, and/or litigation regarding
events that occurred during Xxxxxx’ tenure with Employer. Employer will
compensate Xxxxxx for reasonable expenses that Xxxxxx incurs in extending such
cooperation to Company, so long as Xxxxxx provides advance written notice of
Xxxxxx’ request for compensation.
8. Non-Disparagement;
Confidentiality.
Xxxxxx
agrees not to make any defamatory or derogatory statements concerning Company
or
its products. Employer agrees to instruct its current officers and directors
not
to make any defamatory or derogatory statements concerning Xxxxxx. Xxxxxx
confirms and agrees that Xxxxxx shall not, directly or indirectly, disclose
to
any person or entity or use for Xxxxxx’ own benefit, any confidential
information concerning the business, finances or operations of Company or its
clients or customers, provided, however, that Xxxxxx’ obligations under this
Section 8 shall not apply to information generally known in Company’s industry
through no fault of Xxxxxx or the disclosure of which is required by law.
Confidential information shall include trade secrets, customer lists, details
of
contracts, pricing policies, operational materials, marketing plans or
strategies, security and safety plans and strategies, product development,
and
any other non-public or confidential information of, or relating to, Company.
Xxxxxx also agrees that the amounts paid to Xxxxxx and all of the other terms
of
this Agreement shall be kept confidential. If Xxxxxx
breaches
any term or condition of this Agreement, it shall constitute a material breach
of this Agreement and Company reserves all rights to it available at law or
in
equity.
9. Surrender
of Company Property.
Xxxxxx
agrees
that he will surrender to Employer, no later than the Separation Date, all
property belonging to, or purchased with the funds of, Company, and any
equipment (including computers and cell phones), employee or security
identification or access codes, pass codes, keys, credit cards, swipe cards,
client data bases, computer files, Company proposals, computer access codes,
documents, memoranda, records, files, letters, specification or other papers
(including all copies and other tangible forms of the foregoing) acquired by
Xxxxxx by reason of his employment with Employer and in Xxxxxx’ possession or
under his custody or control relating to the operations, business or affairs
of
Company. Xxxxxx agrees that Xxxxxx will not retain any copies, duplicates,
reproductions, computer disks, or excerpts thereof of Company
documents.
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10. Who
is
Bound.
Employer
and
Xxxxxx
are
bound by this Agreement. Anyone who succeeds to Xxxxxx’
rights
and responsibilities, such as the executors and heirs of Xxxxxx’
estate,
is bound and anyone who succeeds to Employer’
rights
and responsibilities, such as their respective successors and assigns, is also
bound.
11. Construction
of Agreement.
In the
event that one or more of the provisions contained in this Agreement shall
for
any reason be held unenforceable in any respect under the law of any state
of
the United States, such unenforceability shall not affect any other provision
of
this hereof or thereof, and
such
invalid, illegal, or unenforceable provision shall be reformed and construed
so
that it will be valid, legal, and enforceable to the maximum extent permitted
by
law.
This
Agreement and any and all matters arising directly or indirectly herefrom shall
be governed under the laws of the State of New York, without reference to choice
of law rules. XXXXXX
AND EMPLOYER EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY WITH
RESPECT TO ANY MATTERS RELATED TO THIS AGREEMENT, XXXXXX’ EMPLOYMENT WITH
EMPLOYER GENERALLY, OR ANY OTHER DISPUTE THAT MAY ARISE BETWEEN
THEM.
12. Entire
Agreement; Survival.
Xxxxxx
and Employer acknowledge and agree that with the exception of sections 5,
6(b)-(g), 7, 10(a), and 10(c)-(l) of the Employment Agreement (which are
attached hereto as Schedule
B,
and
which continue to remain in full force and effect and survive Xxxxxx’ separation
of employment with Employer even after the Separation Date), the Employment
Agreement shall be null and void. Except as otherwise provided in sections
5,
6(b)-(g), 7, 10(a), and 10(c)-(l) of the Employment Agreement, this Agreement
shall constitute the entire agreement among the parties with respect to the
matters covered hereby and shall supersede all previous written, oral or implied
understandings among them with respect to such matters related to Xxxxxx’
employment with Employer.
13. Opportunity
For Review.
(A) Xxxxxx
acknowledges that Xxxxxx has read and fully understands this Agreement and
represents that prior to signing this Agreement Xxxxxx has been advised to,
and
has had an opportunity to, consult Xxxxxx’ counsel with respect to this
Agreement and Xxxxxx gives it freely and voluntarily. Xxxxxx understands that
Xxxxxx has been given twenty-one (21) days to review this Agreement before
signing it and that if Xxxxxx fails to execute this Agreement and return it
to
Employer within twenty-one days of the date provided to him, Employer shall
have
no obligation to enter into this Agreement. The parties understand that they
are
each responsible for their own attorney’s fees.
(B) This
Agreement shall be effective and enforceable on the eighth (8th)
day
after execution and delivery to Employer by Xxxxxx. The parties understand
and
agree that Xxxxxx may revoke this Agreement after having executed and delivered
it to Employer by so advising Employer in writing no later than 11:59 p.m.
on
the seventh (7th)
day
after Xxxxxx’ execution and delivery of this Agreement to Employer. If Xxxxxx
revokes this Agreement, it shall not be effective or enforceable, and Xxxxxx
shall not receive the payments or the other benefits of this
Agreement.
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Agreed
to
and accepted by, on this 21st
day of
December, 2007
XXXXXX:
s/Xxxx
Xxxxxx
Xxxx
Xxxxxx
Agreed
to
and accepted by, on this 21st
day of
December, 2007
EMPLOYER:
MANHATTAN
PHARMACEUTICALS, INC.
|
BY:
|
s/Xxxxxxx
XxXxxxxxxx
|
Name:
Xxxxxxx XxXxxxxxxx
Title:
Chief Financial Officer
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SCHEDULE
A
As
partial consideration for Xxxxxx’ execution, delivery, and non-revocation of the
Agreement, and as set forth in Paragraph 5(b) of the Agreement, Employer agrees
to (i) accelerate the vesting on two
issuances of stock options pursuant to Employer’s 2003 Stock Option Plan
pursuant to the schedule below; and (ii) extend the exercise period on options
that already have vested from ninety (90) days to two (2) years, with such
exercise period to commence on December 31, 2007.
|
ISSUE
DATE
|
SHARES
|
EXERCISE
PRICE
|
VESTING
DATE
|
COMMENT
|
|
2/01/06
|
100,000
|
$1.35
|
2/01/07
|
vested
|
|
2/01/06
|
100,000
|
$1.35
|
2/01/08
|
accelerated
|
|
2/01/06
|
100,000
|
$1.35
|
2/01/09
|
accelerated
|
|
4/25/07
|
100,000
|
$0.95
|
4/25/08
|
accelerated
|
|
4/25/07
|
100,000
|
$0.95
|
4/25/09
|
forfeited
|
|
4/25/07
|
100,000
|
$0.95
|
4/25/10
|
forfeited
|
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SCHEDULE
B
5. Confidential
Information and Inventions.
(a) The
Employee recognizes and acknowledges that in the course of his duties he is
likely to receive confidential or proprietary information owned by the Company,
its affiliates or third parties with whom the Company or any such affiliates
has
an obligation of confidentiality. Accordingly, during and after the Term, the
Employee agrees to keep confidential and not disclose or make accessible to
any
other person or use for any other purpose other than in connection with the
fulfillment of his duties under this Agreement, any Confidential and Proprietary
Information (as defined below) owned by, or received by or on behalf of, the
Company or any of its affiliates. “Confidential and Proprietary Information”
shall include, but shall not be limited to, confidential or proprietary
scientific or technical information, data, formulas and related concepts,
business plans (both current and under development), client lists, promotion
and
marketing programs, trade secrets, or any other confidential or proprietary
business information relating to development programs, costs, revenues,
marketing, investments, sales activities, promotions, credit and financial
data,
manufacturing processes, financing methods, plans or the business and affairs
of
the Company or of any affiliate or client of the Company. The Employee expressly
acknowledges the trade secret status of the Confidential and Proprietary
Information and that the Confidential and Proprietary Information constitutes
a
protectable business interest of the Company. The Employee agrees: (i) not
to
use any such Confidential and Proprietary Information for himself or others;
and
(ii) not to take any Company material or reproductions (including but not
limited to writings, correspondence, notes, drafts, records, invoices, technical
and business policies, computer programs or disks) thereof from the Company’s
offices at any time during his employment by the Company, except as required
in
the execution of the Employee’s duties to the Company. The Employee agrees to
return immediately all Company material and reproductions (including but not
limited, to writings, correspondence, notes, drafts, records, invoices,
technical and business policies, computer programs or disks) thereof in his
possession to the Company upon request and in any event immediately upon
termination of employment.
(b) Except
with prior written authorization by the Company, the Employee agrees not to
disclose or publish any of the Confidential and Proprietary Information, or
any
confidential, scientific, technical or business information of any other party
to whom the Company or any of its affiliates owes an obligation of confidence,
at any time during or after his employment with the Company.
(c) Notwithstanding
the foregoing, Confidential and Proprietary Information shall not include any
information or material which the Employee can establish through competent
proof: (i) is or becomes generally available to the public other than as a
result of disclosure thereof by the Employee; (ii) is lawfully received by
the
Employee on a non-confidential basis from a third party that is not itself
under
an obligation of confidentiality or non-disclosure to the Company with respect
to such information; (iii) was in the Employee’s possession at the time of
disclosure by the Company and was not acquired, directly or indirectly from
the
Company; or (iv) is required to be publicly disclosed by law or by regulation;
provided, however, that in such event Employee shall provide the Company with
prompt advance notice of such disclosure so that the Company has the opportunity
if it so desires to seek a protective order or other similar protection. If,
in
the absence of a protective or other similar order, the Employee is legally
compelled to disclose Confidential and Proprietary Information, such
Confidential and Proprietary Information (and only such Confidential and
Proprietary Information) may be disclosed in such proceeding without liability
hereunder; provided, however, that the Employee shall give the Company written
notice of the Confidential and Proprietary Information to be disclosed as far
in
advance of its disclosure as is practical and, upon the Company’s request and
expense, the Employee shall use all reasonable efforts to obtain assurances
that
confidential treatment will be accorded to such Confidential and Proprietary
Information in such proceeding.
-7-
(d) The
Employee agrees that all inventions, discoveries, improvements and patentable
or
copyrightable works (“Inventions”) initiated, conceived or made by him, either
alone or in conjunction with others, during the Term shall be the sole property
of the Company to the maximum extent permitted by applicable law and, to the
extent permitted by law, shall be “works made for hire” as that term is defined
in the United States Copyright Act (17 U.S.C.A., Section 101). The Company
shall
be the sole owner of all patents, copyrights, trade secret rights, and other
intellectual property or other rights in connection therewith. The Employee
hereby assigns to the Company all right, title and interest he may have or
acquire in all such Inventions; provided, however, that the Board may in its
sole discretion agree to waive the Company’s rights pursuant to this Section
5(d) with respect to any Invention that is not directly or indirectly related
to
the Company’s business. The Company acknowledges that as of the Effective Date,
the Employee has undertaken certain activities prior to the Effective Date
and
that pursuant thereto has developed the Inventions and/or engaged in such
specific activities set forth on Annex A hereto, and that pursuant to the
foregoing sentence, the Board has waived the Company’s rights with respect to
such Inventions and/or activities as they are in existence on the Effective
Date. Notwithstanding the foregoing, nothing in this Section 5(d) shall be
construed to limit, restrict or modify in any way Executive’s obligations under
this Agreement, including without limitation Section 3(a) and Section 6 hereof.
The Employee further agrees to assist the Company in every proper way (but
at
the Company’s expense) to obtain and from time to time enforce patents,
copyrights or other rights on such Inventions in any and all countries, and
to
that end the Employee will execute all documents necessary:
(i)
to
apply for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights or other analogous protection
in
any country throughout the world and when so obtained or vested to renew and
restore the same; and
(ii)
to
defend any opposition proceedings in respect of such applications and any
opposition proceedings or petitions or applications for revocation of such
letters patent, copyright or other analogous protection.
(e) The
Employee acknowledges that while performing the Services under this Agreement
the Employee may locate, identify and/or evaluate patented or patentable
inventions having commercial potential in the fields of pharmacy,
pharmaceutical, biotechnology, healthcare, technology and other fields which
may
be of potential interest to the Company or one of its affiliates (the “Third
Party Inventions”). The Employee understands, acknowledges and agrees that all
rights to, interests in or opportunities regarding, all Third-Party Inventions
identified by the Company, any of its affiliates or either of the foregoing
persons’ officers, directors, employees (including the Employee), agents or
consultants during the Term shall be and remain the sole and exclusive property
of the Company or such affiliate and the Employee shall have no rights
whatsoever to such Third-Party Inventions and will. not pursue for himself
or
for others any transaction relating to the Third-Party Inventions which is
not
on behalf of the Company; provided, however, that the Company acknowledges
and
agrees that Employee may, with the Company’s prior written consent, discuss the
development of any Third Party Inventions that the Employee has located,
identified and/or evaluated, and which the Company has decided not to pursue,
solely with Paramount Biosciences, LLC (“Paramount”). Notwithstanding the
foregoing, the Company acknowledges and agrees that Employee shall be permitted
to discuss the development of any Third Party Inventions that the Employee
has
located, identified and/or evaluated, and which each of the Company and
Paramount has decided not to pursue in accordance with the foregoing, provided
that such discussions are consented to in advance by each of the Company and
Paramount and that such discussions do not conflict with or interfere in any
way
with Executive’s obligations under this Agreement, including without limitation
Section 3(a) and Section 6 hereof.
-8-
(f) Employee
agrees that he will promptly disclose to the Company, or any persons designated
by the Company, all improvements and Inventions made or conceived or reduced
to
practice or learned by him, either alone or jointly with others, during the
Term.
(g) The
provisions of this Section 5 shall survive any termination of this
Agreement.
6. Non-Competition,
Non-Solicitation and Non-Disparagement.
(a) [THE
COVENANT AGAINST COMPETITION PREVIOUSLY CONTAINED IN THIS PARAGRAPH 6(a) IS
STRICKEN AS PER SECTION 5(C) OF THE PARTIES’ SEPARATION AND GENERAL RELEASE
AGREEMENT DATED December 21, 2007.]
(b) During
the Term and for a period of 18 months thereafter, the Employee shall not,
directly or indirectly, without the prior written consent of the
Company:
(i)
solicit or induce any employee of the Company or any of its affiliates to leave
the employ of the Company or any such affiliate; or hire for any purpose any
employee of the Company or any affiliate or any employee who has left the
employment of the Company or any affiliate within one year of the termination
of
such employee’s employment with the Company or any such affiliate [Remainder
of sentence deleted.];
or
(ii)
solicit or accept employment or be retained by any Person who, at any time
during the term of this Agreement, was an agent, client or customer of the
Company or any of its affiliates where his position will be related to the
business of the Company or any such affiliate; or
(iii)
solicit or accept the business of any agent, client or customer of the Company
or any of its affiliates with respect to products, services or investments
similar to those provided or supplied by the Company or any of its
affiliates.
(c) The
Company and the Employee each agree that both during the Term and at all times
thereafter, neither party shall directly or indirectly disparage, whether or
not
true, the name or reputation of the other party or any of its affiliates,
including but not limited to, any officer, director, employee or shareholder
of
the Company or any of its affiliates.
-9-
(d) In
the
event that the Employee breaches any provisions of Section 5 or this Section
6
or there is a threatened breach, then, in addition to any other rights which
the
Company may have, the Company shall (i) be entitled, without the posting of
a
bond or other security, to injunctive relief to enforce the restrictions
contained in such Sections and (ii) have the right to require the Employee
to
account for and pay over to the Company all compensation, profits, monies,
accruals, increments and other benefits (collectively “Benefits”) derived or
received by the Employee as a result of any transaction constituting a breach
of
any of the provisions of Sections 5 or 6 and the Employee hereby agrees to
account for and pay over such Benefits to the Company. The Employee agrees
that
in an action pursuant to clause 6(d)(i), that if the Company makes a prima
facie
showing that the Employee has violated or apparently intends to violate any
of
the provisions of this Section 6, the Company need not prove either damage
or
irreparable injury in order to obtain injunctive relief.
(e) Each
of
the rights and remedies enumerated in Section 6(d) shall be independent of
the
others and shall be in addition to and not in lieu of any other rights and
remedies available to the Company at law or in equity. If any of the covenants
contained in this Section 6, or any part of any of them, is hereafter construed
or adjudicated to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or rights or remedies which shall be
given full effect without regard to the invalid portions. If any of the
covenants contained in this Section 6 is held to be invalid or unenforceable
because of the duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall have the power
to
reduce the duration and/or area of such provision and in its reduced form such
provision shall then be enforceable. No such holding of invalidity or
unenforceability in one jurisdiction shall bar or in any way affect the
Company’s right to the relief provided in this Section 6 or otherwise in the
courts of any other state or jurisdiction within the geographical scope of
such
covenants as to breaches of such covenants in such other respective states
or
jurisdictions, such covenants being, for this purpose, severable into diverse
and independent covenants.
(f) In
the
event that an actual proceeding is brought in equity to enforce the provisions
of Section 5 or this Section 6, the Employee shall not urge as a defense that
there is an adequate remedy at law nor shall the Company be prevented from
seeking any other remedies which may be available. The Employee agrees that
he
shall not raise in any proceeding brought to enforce the provisions of Section
5
or this Section 6 that the covenants contained in such Sections limit his
ability to earn a living.
(g) The
provisions of this Section 6 shall survive any termination of this
Agreement.
7. Representations
and Warranties by the Employee.
The
Employee hereby represents and warrants to the Company as follows:
(i)
Neither the execution or delivery of this Agreement nor the performance by
the
Employee of his duties and other obligations hereunder violate or will violate
any statute, law, determination or award, or conflict with or constitute a
default or breach of any covenant or obligation under (whether immediately,
upon
the giving of notice or lapse of time or both) any prior employment agreement,
contract, or other instrument to which the Employee is a party or by which
he is
bound.
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(ii)
The
Employee has the full right, power and legal capacity to enter and deliver
this
Agreement and to perform his duties and other obligations hereunder. This
Agreement constitutes the legal, valid and binding obligation of the Employee
enforceable against him in accordance with its terms. No approvals or consents
of any persons or entities are required for the Employee to execute and deliver
this Agreement or perform his duties and other obligations
hereunder.
10. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York, without giving effect to its principles
of conflicts of laws.
(b) [THE
ARBITRATION PROVISION PREVIOUSLY CONTAINED IN THIS PARAGRAPH 10(B) IS STRICKEN
HEREIN.]
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and permitted
assigns.
(d) This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the Executive. The rights and obligations of the Company under
this
Agreement shall inure to the benefit of and shall be binding upon the successors
and permitted assigns of the Company, including any successors or permitted
assigns in connection with any sale, transfer or other disposition of all or
substantially all of its business or assets.
(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing,
but
only by a written agreement signed by the parties hereto.
(f) The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as
a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No waiver
of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.
(g) All
notices, requests, consents and other communications, required or permitted
to
be given hereunder, shall be in writing and shall be delivered personally or
by
an overnight courier service or sent by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the addresses set forth
on
the first page of this Agreement, and shall be deemed given when so delivered
personally or by overnight courier, or, if mailed, five days after the date
of
deposit in the United States mails. Either party may designate another address,
for receipt of notices hereunder by giving notice to the other party in
accordance with this Section 10(g).
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(h) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by either party
that is not embodied in this Agreement, and neither party shall be bound by
or
liable for any alleged representation, promise or inducement not so set
forth.
(i) As
used
in this Agreement, “affiliate” of a specified Person shall mean and include any
Person controlling, controlled by or under common control with the specified
Person.
(j) The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
(k) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and
the
same instrument.
(l) As
used
in this Agreement, the masculine, feminine or neuter gender, and the singular
or
plural, shall be deemed to include the others whenever and wherever the context
so requires. Additionally, unless the context requires otherwise, “or” is not
exclusive.
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