Exhibit 10.4
April 21, 2005
Amended and Restated May 31, 2005
Xx. Xxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Re: Amended and Restated Employment Agreement
Dear Xxxx:
This letter is to confirm our understanding with respect to (i) your
future employment by OSI Pharmaceuticals, Inc. (the "Company"), (ii) your
agreement not to solicit employees or customers of the Company, or any present
or future parent, subsidiary or affiliate of the Company (each, a "Company
Affiliate" and collectively, together with the Company, the "Company", (iii)
your agreement to protect and preserve information and property which is
confidential and proprietary to the Company, and (iv) your agreement with
respect to the ownership of inventions, ideas, copyrights and patents which may
be used in the business of the Company (the terms and conditions agreed to in
this letter are hereinafter referred to as the "Agreement"). In consideration of
the mutual promises and covenants contained in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, we have agreed as follows:
1. Employment.
(a) Subject to the terms and conditions of this Agreement, the
Company will employ you, and you will be employed by the Company and/or
any Company Affiliate designated by the Company, initially as Executive
Vice President, Chief Financial Officer and Treasurer, of the Company
reporting to the Chief Executive Officer (the "CEO") of the Company. You
will have the responsibilities, duties and authority customarily
performed, undertaken and exercised by a person in a similar executive
capacity. You will also perform such other and/or different services for
the Company as may be assigned to you from time to time by the CEO. The
principal location at which you will perform such services will be the
Company's headquarters located at 00 Xxxxx
Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx, although you will be available to
perform services at any other Company facility and to travel as the needs
of business may require.
(b) Devotion to Duties. While you are employed hereunder, you will,
to the best of your ability, perform faithfully and diligently all duties
assigned to you pursuant to this Agreement and will devote your full
business time and energies to the business and affairs of the Company.
While you are employed hereunder, you will not undertake any other
employment from any person or entity without the prior written consent of
the Company.
2. Term. Except for earlier termination as provided for in Section 4
hereof, your employment under this Agreement (the "Employment Term") shall
be for an initial term commencing on May 31, 2005 (the "Effective Date")
and ending on the third anniversary of the Effective Date (the "Initial
Term"). Unless written notice is given of an intent not to extend the
Initial Term or any extension thereof by you or the Company at least 90
days prior to an anniversary of the Effective Date, the Employment Term
shall be deemed, as of such 90th day, to have been extended and continue
until the end of the successive 12-month period unless otherwise
terminated as provided for in Section 4 hereof. In the event the Company
elects not to renew the Employment Term, you shall be entitled to the
payments and benefits set forth in Section 6(c).
3. Compensation.
(a) Base Salary. While you are employed hereunder, the Company will
pay you a base salary at the annual rate of $410,000 (the "Base Salary").
Your Base Salary will be reviewed on an annual basis each January (or such
other time as determined by the CEO and/or the Compensation Committee of
the Board of Directors of the Company (the "Board")), commencing with
January, 2006. The Base Salary will be payable in equal installments in
accordance with the Company's payroll practices as in effect from time to
time. The Company will deduct from each such installment all amounts
required to be deducted or withheld under applicable law or under any
employee benefit plan in which you participate.
(b) Bonus. In addition to the Base Salary, for each fiscal year of
the Company ending during the Term of the Agreement, beginning with the
2005 fiscal year, you will be eligible to receive a target bonus of
between $200,000 - $300,000 , determined and payable in accordance with
the Company's practices applicable to bonuses paid to its executives. The
Company's bonus system is a discretionary annual performance-based
incentive bonus system, approved by the Company's Board, and is based upon
a combination of personal and corporate performance contributing to your
maximum target. Bonuses are determined in December of each year.
(c) Equity Compensation.
(i) Initial Grant. On the Effective Date and pursuant to a
written stock option agreement (the "Stock Option Agreement")
between the Company
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and you under the OSI Pharmaceuticals, Inc. Amended and Restated
Stock Incentive Plan (the "Plan"), you will be granted a
non-qualified option (the "Initial Option") to purchase 150,000
shares of the Company's common stock, par value, $.01 per share (the
"Common Stock"). The exercise price for the Initial Option will be
the fair market value per share of the Common Stock on the date the
Initial Option is granted and the other terms and conditions of the
Initial Option will be as set forth in the Plan and the Stock Option
Agreement. The Initial Option will have a term of 10 years and will
become exercisable with respect to 33% of such shares on the first
anniversary of the date of grant with the remaining shares vesting
over the succeeding 48 months following the first anniversary of the
date of grant on a monthly pro-rated basis. Notwithstanding the
foregoing, the Initial Option shall vest and be fully exercisable
upon a Change of Control (as hereinafter defined).
(ii) Future Grants. On each date that annual stock options or
other equity compensation are granted by the Company to its
executive management group, so long as you then remain in the employ
of the Company, the Company will grant to you an option (an "Annual
Option") to purchase a number of shares of Common Stock to be
determined by the Compensation Committee of the Board based upon
your grade level. The exercise price for each Annual Option will be
the fair market value per share of Common Stock on the date the
Annual Option is granted and the other terms and conditions of the
Annual Option will be as set forth in the Plan and Option Agreement
accompanying such Annual Option. Notwithstanding the foregoing, each
Annual Option shall vest and be fully exercisable upon a Change of
Control (as hereinafter defined).
(iii) Restricted Stock Grant. On the first business day of the
month after your employment begins, pursuant to the terms of the
Plan, the Company will issue to you 15,000 shares of Common Stock
("Restricted Stock"). The shares of Restricted Stock shall vest in
five equal tranches of 3,000 shares on each anniversary of the date
of issuance commencing with June 1, 2006, provided that you continue
to be an employee of the Company or an affiliate or subsidiary of
the Company as of such date. Notwithstanding the foregoing, all of
the shares of Restricted Stock shall vest upon a Change of Control.
The terms and conditions of the Restricted Stock will be set forth
in a Restricted Stock Agreement.
(d) Vacation. You will be entitled to 22 paid vacation days in each
calendar year, and paid holidays plus personal days in accordance with the
Company's policies for its senior executives as in effect from time to
time.
(e) Fringe Benefits. In addition to the equity compensation provided
for herein, you will be entitled to participate in employee benefit plans
which the Company provides or may establish for the benefit of its senior
executives generally (for example, term life, disability, medical, dental
and other insurance, retirement, pension, profit-sharing and similar
plans) (collectively, the "Fringe Benefits"). Your eligibility to
participate in the Fringe Benefits and receive benefits thereunder will be
subject to the plan documents
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governing such Fringe Benefits. Nothing contained herein will require the
Company to establish or maintain any Fringe Benefits.
(f) Relocation. The Company will assist you in your relocation to
Long Island in accordance with the following:
(i) Relocation Service. American International will assist you
in your relocation from New Jersey to Long Island.
(ii) Current Residence. The Company, through American
International and at your request, will appraise your current
residence in New Jersey. American International will arrange for two
or more independent appraisals of your residence. You will market
your home with their assistance to try to find a third-party buyer.
If the sale price is less than the average of the appraisals, OSI
will reimburse you the difference.
(iii) Expenses. The Company will reimburse you, either
directly or through its relocation service, American International,
for all expenses relating to your relocation from New Jersey to Long
Island, including, without limitation, expenses relating to packing
and moving household goods, temporary storage of household goods,
closing costs (including 2 mortgage points) associated with the
purchase of a new home on Long Island, sales and closing costs
associated with the sale of your home in New Jersey, expenses
incurred by you and/or your family relating to house-hunting trips
(including transportation, hotel accommodations and meals) and
expenses incurred by you and/or your family for temporary living
accommodations for up to six months prior to your move into a new
home (including transportation, lease or sublease amounts,
utilities, hotel or other accommodations, brokers' fees). During the
six-month period commencing with the Effective Date, the Company
will pay for a car service to bring you to and from Long Island on
Mondays and Fridays.
(iv) Mortgage Assistance. For a period of three years
following your purchase of a home on Long Island (the "Long Island
Home"), the Company will pay you a mortgage assistance allowance
equal to $50,000 per annum, payable in equal monthly installments.
The foregoing is subject to your continued employment with the
Company during such three-year period. If (A) your employment
terminates "without cause" (as defined in Section 4(e) hereof), (B)
you terminate your employment for "good reason" (as defined in
Section 4(d) hereof), or (C) upon a "Change of Control" (as defined
in Section 7 hereof) prior to the end of such three-year period, you
will continue to receive such mortgage assistance allowance on the
terms described in this section provided that you remain resident in
the Long Island Home.
(v) Lump Sum Xxxxxxx.Xx addition to the amounts provided for
in Sections 3 (f) (iii) and (iv), upon your purchase of the Long
Island Home, you will receive a one-time lump sum payment equal to
$25,000 to cover incidental expenses.
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(vi) Additional Living Expenses. If you have not relocated to
Long Island on or before November 30, 2005, the Company will
continue to pay for a car service to bring you to and from Long
Island on Mondays and Fridays and to reimburse you for your living
expenses; provided, however, that such costs will be offset against
the amounts which are otherwise to be subsequently reimbursed to you
pursuant to Section (f) (ii) and (iii) upon your ultimate relocation
to Long Island (e.g., moving costs, spread between the appraised
value and the sale price of your New Jersey home, etc.) provided
that the amount to be reimbursed under Section (f) (ii) and (iii) is
greater than the offsetting amount. In the event that the amount to
be reimbursed to you pursuant to Section (f) (ii) and (iii) is less
than the amount to be reimbursed under this Section (f) (vi), you
will not be required to pay back to the Company the difference
between the two amounts.
(vii) Pay-Back. If, within 12 months following the Effective
Date, you terminate your employment with the Company "without good
reason" (as defined in Section 4(f) hereof), you shall pay back all
(based upon the date of your termination) of the amounts paid to you
pursuant to Sections 3 (f) (iii), (iv), (v) and (vi) (the
"Relocation Expenses").
(viii) Documentation. Reimbursement of the expenses provided
for in this Section 3(f) shall be made upon presentation of
documentation reasonably satisfactory to the Company in accordance
with the Company's policies with respect thereto as in effect from
time to time. Receipts shall not be required for payment covered
under Section 3 (f) (v).
(ix) Any amounts paid under this Section 3 (f) deemed to be
taxable income to you will be grossed up for taxes at the
appropriate rate.
(g) Reimbursement of Expenses. Upon presentation of documentation of
such expenses reasonably satisfactory to the Company, the Company will
reimburse you for all ordinary and reasonable out-of-pocket business
expenses that are reasonably incurred by you in furtherance of the
Company's business in accordance with the Company's policies with respect
thereto as in effect from time to time.
4. Termination. The Employment Term shall end upon the earliest of the
following to occur:
(a) Your death.
(b) Upon written notice to you of termination as a result of your
Permanent Disability. "Permanent Disability" means your inability, by
reason of any physical or mental impairment, to substantially perform your
duties and responsibilities hereunder for two or more periods of 90 days
each in any 360-day period, as determined by a qualified physician with no
history of prior dealings with you or the Company, as reasonably agreed
upon by you (or, if you are unable to make such selection, by an adult
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member of your immediate family) and the Company. Such physician's written
determination of your Permanent Disability shall, upon delivery to the
Company, be final and conclusive for purposes of this Agreement.
(c) Your termination by the Company for "cause" as evidenced by, and
effective upon, delivery by the Company to you of a Notice of Termination
(as defined in Section 5 below). "Cause" shall mean, for purposes of this
Agreement, (i) an act of fraud or embezzlement against the Company or an
unauthorized disclosure of Confidential Information (as defined in Section
8(a)(iv) hereof) of the Company, in each case which is willful and results
in material damage to the Company, (ii) any criminal violation of the
Securities Act of 1933 or the Securities Exchange Act of 1934, (iii) your
conviction (or a plea of nolo contendere) of any felony, (iv) your gross
neglect of your duties or your willful and continuing refusal to perform
your duties, provided you have been given written notice of such neglect
or refusal and within 30 days have failed to cure such neglect and
refusal, or (v) your material willful misconduct with respect to the
business or affairs of the Company.
(d) Your termination of your employment for "good reason" by
delivering to the Company a Notice of Termination (as defined in Section 5
below) not less than 30 days prior to the effective date of such
termination. For purposes of this Agreement, "good reason" shall mean the
occurrence of any of the events hereinafter set forth which are not cured
by the Company within 30 days after the Company has received written
notice from you specifying the particular events or conditions which
constitute "good reason":
(i) a material reduction in your duties, title,
responsibilities, authority, status, or reporting responsibilities
unless you have previously consented in writing to such reduction
(which consent may be given or withheld in your sole discretion);
(ii) a material reduction in your Base Salary or the range of
your target bonus;
(iii) the Company's requiring you to be based more than 35
miles from the Company's current headquarters in Melville, New York
or to any location for which the average commute from your residence
exceeds 45 minutes; or
(iv) change of control (as defined in Section 7 hereof).
(e) Termination of your employment by the Company "without cause" by
delivery by the Company to you of a Notice of Termination (as defined in
Section 5 below) not less than 30 days prior to the effective date of such
termination. Your termination by the Company shall be considered to be
"without cause" if you are terminated or dismissed by the Company for
reasons other than death, Permanent Disability or for "cause".
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(f) Your termination of your employment "without good reason" by
delivery by you to the Company of a Notice of Termination (as defined in
Section 5 below). Your termination of your employment shall be considered
to be "without good reason" unless you resign for "good reason" (as
defined in Section 4(d)).
5. Notice of Termination. Any termination by the Company or by you shall
be communicated by a written "Notice of Termination" to the other party
hereto. A "Notice of Termination" shall mean a notice which indicates a
termination date and the specific termination provision in this Agreement
relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the
provision so indicated.
6. Payments Upon Termination.
(a) Upon termination of your employment for any reason you will
become entitled to (i) any accrued and unpaid Base Salary up to the date
of termination, and (ii) any accrued and unpaid vacation pay up to the
date of termination ((i) and (ii) being collectively referred to as the
"Accrued Compensation").
(b) Upon termination of your employment due to death or Permanent
Disability, in addition to Accrued Compensation, you (or your estate, as
the case may be) will become entitled to an amount equal to the bonus that
you would have been entitled to receive for the fiscal year in which your
termination occurs had you continued to be employed until the end of such
fiscal year, multiplied by a fraction (i) the numerator of which is the
number of days in such fiscal year through the termination date and (ii)
the denominator or which is 365 (a "Pro-rata Bonus").
(c) Upon a termination of your employment by the Company "without
cause" or by you "for good reason" or upon a "Change of Control" (as
defined in Section 7 hereof), in addition to Accrued Compensation, you
will become entitled to (i) your Base Salary for 12 months following the
date of termination, (ii) your Pro-rata Bonus, and (iii) continued
coverage for 12 months following termination under any health and dental
program in which you were eligible to participate as of the time of
termination of your employment.
(d) You shall not be required to mitigate the amount of any payment
provided for under this Section 6 by seeking other employment or otherwise
and no payment shall be offset or reduced by the amount of any
compensation or benefits provided to you in any subsequent employment. The
Company's obligation to make the payments provided for in this Section 6
and otherwise perform its obligations hereunder shall not be affected by
any circumstances, including, without limitation, set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may
have against you or others.
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7. Change of Control. For purposes of this Agreement, a "Change of
Control" shall mean the approval by stockholders of the Company of (a) a
merger or consolidation involving the Company if the stockholders of the
Company, immediately before such merger or consolidation, do not, as a
result of such merger or consolidation, directly or indirectly, continue
to hold greater than 60% of the voting power in the resulting entity, or
(b) an agreement for the sale or other disposition of all or substantially
all of the assets of the Company.
8. Prohibited Activities.
(a) Certain Acknowledgements and Agreements.
(i) We have discussed, and you recognize and acknowledge the
competitive and proprietary aspects of the business of the Company.
(ii) You acknowledge that your employment by the Company
creates a relationship of confidence and trust between the Company
and you with respect to certain information relating to the business
and affairs of the Company or applicable to the business of any
client, customer, consultant, partner, external collaborator or
service provider of the Company, which may be made known to you by
the Company or by any client, customer, consultant, partner,
external collaborator or service provider of the Company, or learned
by you during the period of your affiliation with the Company.
(iii) You further acknowledge that, while you are employed
hereunder, the Company will furnish, disclose or make available to
you Confidential Information (as defined in Section 8 (a) (iv)
below) related to the business of the Company (whether or not the
information has commercial value to the Company's business). You
also acknowledge that such Confidential Information has been
developed and will be developed by the Company through the
expenditure by the Company of substantial time, effort and money and
that all such Confidential Information could be used by you to
compete with the Company. You also acknowledge that if you become
employed or affiliated with any competitor of the Company, it is
possible that you would disclose Confidential Information to such
competitor and would use Confidential Information, knowingly or
unknowingly, on behalf of such competitor.
(iv) For purposes of this Agreement, "Confidential
Information" means confidential and proprietary information of the
Company, whether in written, oral, electronic or other form,
including, without limitation, systems, processes, formulae, data,
functional specifications, computer software, programs and displays,
know-how, improvements, discoveries, inventions, developments,
designs, techniques, marketing plans, strategies, forecasts, new and
proposed products and technologies, unpublished financial statements
and financial information, business plans, budgets, projections,
licenses, prices, costs, training methods and materials, sales
prospects, and customer, supplier, manufacturer,
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collaborator, partner, and client lists and any and all intellectual
properties, including any scientific, technical or trade secrets of
the Company or of any third party provided to you or the Company
under a condition of confidentiality, provided that Confidential
Information will not include information that is in the public
domain other than through any fault or act by you.
(b) Covenants. While you are employed hereunder and for a period of
one year following the termination of your employment hereunder for any
reason or for no reason, you will not, without the prior written consent
of the Company:
(i) Engage, directly or indirectly, for your benefit or the
benefit of others, in any activity or employment in the performance
of which any Confidential Information obtained during the course of
your employment would, by necessity, need to be disclosed by you in
order to engage in any such activity or employment. This covenant
shall not be construed to limit in any way your obligation not to
use or disclose Confidential Information as set forth in Section 9
below.
(ii) Either individually or on behalf of or through any third
party, directly or indirectly, solicit, divert or appropriate or
attempt to solicit, divert or appropriate, any customers of the
Company or any prospective customers with respect to which the
Company has developed or made a sales presentation (or similar
offering of services) for the purpose of directly competing with the
Company with respect to the Company's "principal marketed products"
(i.e., those products which are in the first or second detail
position) or its development candidates which have material
financial significance to the Company and which are in Phase III
programs; or
(iii) Either individually or on behalf of or through any third
party, directly or indirectly, (A) solicit, entice or persuade or
attempt to solicit, entice or persuade any employees of or
consultants to the Company to leave the service of the Company for
any reason, or (B) employ, cause to be employed, or solicit the
employment of, any employees of or consultants to the Company while
any such person is providing services to the Company or within six
months after any such person has ceased providing services to the
Company; or
(iv) Either individually or on behalf of or through any third
party, directly or indirectly, interfere with, or attempt to
interfere with, the relations between the Company and any
manufacturer or supplier to or customer of the Company.
(c) Reasonableness of Restrictions. You understand that the
provisions set forth in Section 8(b) are not meant to prevent you from
earning a living or fostering your career. They are intended, however, to
prevent competitors of the Company from gaining an unfair advantage from
your knowledge of Confidential Information. You understand that, by making
any other employer aware of the provisions set forth in this Section 8,
that employer can take such action as to avoid your breach of this Section
8.
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(d) Survival of Acknowledgements and Agreements. Your
acknowledgements and agreements set forth in this Section 8 will survive
the termination of this Agreement and the termination of your employment
hereunder for any reason or for no reason.
9. Protected Information. All Confidential Information shall be the sole
property of the Company and its assigns. You hereby assign to the Company
any right you may have or acquire in such Confidential Information. You
will at all times, both during the period while you are employed hereunder
and after the termination of this Agreement and the termination of your
employment hereunder for any reason or for no reason, maintain in
confidence and will not, without the prior written consent of the Company,
use, except as required in the course of performance of your duties for
the Company or by court order, disclose or give to others any Confidential
Information. In the event you are questioned by anyone not employed by the
Company or by an employee of or a consultant to the Company not authorized
to receive Confidential Information, in regard to any Confidential
Information, or concerning any fact or circumstance relating thereto, you
will promptly notify the Company. Upon the termination of your employment
hereunder for any reason or for no reason, or if the Company otherwise
requests, you will return to the Company all tangible Confidential
Information and copies thereof (regardless how such Confidential
Information or copies are maintained). The terms of this Section 9 are in
addition to, and not in lieu of, any statutory or other contractual or
legal obligation that you may have relating to the protection of the
Company's Confidential Information. The terms of this Section 9 will
survive indefinitely any termination of this Agreement and/or any
termination of your employment hereunder for any reason or for no reason.
10. Ownership of Ideas, Copyrights and Patents.
(a) Property of the Company. All ideas, discoveries, creations,
manuscripts and properties, innovations, improvements, know-how,
inventions, designs, developments, apparatus, techniques, methods,
biological processes, cell lines, laboratory notebooks and formulae
(collectively, the "Inventions") which may be used in the current or
planned business of the Company or which in any way relates to such
business, whether patentable, copyrightable or not, which you may
conceive, reduce to practice or develop while you are employed hereunder
(and, if based on or related to any Confidential Information, within two
years after termination of such employment for any reason or for no
reason), alone or in conjunction with another or others, whether during or
out of regular business hours, whether or not on the Company's premises or
with the use of its equipment, and whether at the request or upon the
suggestion of the Company or otherwise, will be the sole and exclusive
property of the Company, and that you will not publish any of the
Inventions without the prior written consent of the Company. Without
limiting the foregoing, you also acknowledge that all original works of
authorship which are made by you (solely or jointly with others) within
the scope of your employment or which relate to the business of the
Company and which are protectable by copyright are "works made for hire"
pursuant to the United States Copyright Act (17 U.S.C. Section 101). You
will promptly disclose to the Company all of the foregoing and you hereby
assign to the Company all of your right, title and interest in and to all
of the
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foregoing. You further represent that, to the best of your knowledge and
belief, none of the Inventions will violate or infringe upon any right,
patent, copyright, trademark or right of privacy, or constitute libel or
slander against or violate any other rights of any person, firm or
corporation, and that you will use your best efforts to prevent any such
violation.
(b) Cooperation. At any time during your employment hereunder or
after the termination of your employment hereunder for any reason or for
no reason, you will cooperate fully with the Company and its attorneys and
agents in the preparation and filing of all papers and other documents as
may be required to perfect the Company's rights in and to any of such
Inventions, including, without limitation, joining in any proceeding to
obtain letters patent, copyrights, trademarks or other legal rights with
respect to any such Inventions in the United States and in any and all
other countries, provided that the Company will bear the expense of such
proceedings, and that any patent or other legal right so issued to you
personally will be assigned by you to the Company without charge by you.
(c) Licensing and Use of Inventions. With respect to any Inventions,
and work of any similar nature (from any source), whenever created, which
you have not prepared or originated in the performance of your employment,
but which you provide to the Company or incorporate in any Company product
or system, you hereby grant to the Company a royalty-free, fully paid-up,
non-exclusive, perpetual and irrevocable license throughout the world to
use, modify, create derivative works from, disclose, publish, translate,
reproduce, deliver, perform, dispose of, and to authorize others so to do,
all such Inventions. You will not include in any Inventions you deliver to
the Company or use on its behalf, without the prior written approval of
the Company, any material which is or will be patented, copyrighted or
trademarked by you or others unless you provide the Company with the
written permission of the holder of any patent, copyright or trademark
owner for the Company to use such material in a manner consistent with
then-current Company policy.
(d) Prior Inventions. Listed on Exhibit 10(d) to this Agreement are
any and all Inventions in which you claim or intend to claim any right,
title and interest (collectively, "Prior Inventions"), including, without
limitation, patent, copyright and trademark interests, which to the best
of your knowledge will be or may be delivered to the Company in the course
of your employment, or incorporated into any Company product or system.
You acknowledge that your obligation to disclose such information is
ongoing while you are employed hereunder.
11. Records. Upon termination of your employment hereunder for any reason
or for no reason and at any other time requested by the Company, you will
deliver to the Company any property of the Company which may be in your
possession, including products, materials, memoranda, notes, records,
reports, or other documents or photocopies of the same.
12. Representations. You hereby represent and warrant to the Company that
you understand this Agreement, that you enter into this Agreement
voluntarily and that your
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employment under this Agreement will not conflict with any legal duty owed
by you to any other party, or with any agreement to which you are a party
or by which you are bound, including, without limitation, any
non-competition or non-solicitation provision contained in any such
agreement.
13. General.
(a) Notices. All notices, requests, consents and other
communications hereunder which are required to be provided, or which the
sender elects to provide, in writing, will be addressed to the receiving
party's address set forth above or to such other address as a party may
designate by notice hereunder, and will be either (i) delivered by hand,
(ii) sent by overnight courier, or (iii) sent by registered or certified
mail, return receipt requested, postage prepaid. All notices, requests,
consents and other communications hereunder will be deemed to have been
given either (i) if by hand, at the time of the delivery thereof to the
receiving party at the address of such party set forth above, (ii) if sent
by overnight courier, on the next business day following the day such
notice is delivered to the courier service, or (iii) if sent by registered
or certified mail, on the fifth business day following the day such
mailing is made.
(b) Entire Agreement. This Agreement, and the other agreements
specifically referred to herein, embodies the entire agreement and
understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly
set forth in this Agreement will affect, or be used to interpret, change
or restrict, the express terms and provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by
the parties hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of such
terms or provisions. No such waiver or consent will be deemed to be or
will constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar. Each such waiver or
consent will be effective only in the specific instance and for the
purpose for which it was given, and will not constitute a continuing
waiver or consent.
(e) Assignment. The Company may assign its rights and obligations
hereunder to any person or entity that succeeds to all or substantially
all of the Company's business or that aspect of the Company's business in
which you are principally involved or to any Company Affiliate; provided,
that the Company shall remain responsible for any payments and obligations
to you to the extent any assignee fails to fulfill such payments and
obligations. You may not assign your rights and obligations under this
Agreement without the prior written consent of the Company and any such
attempted assignment by you without the prior written consent of the
Company will be void.
12
(f) Benefit. All statements, representations, warranties, covenants
and agreements in this Agreement will be binding on the parties hereto and
will inure to the benefit of the respective successors and permitted
assigns of each party hereto. Nothing in this Agreement will be construed
to create any rights or obligations except between the Company and you,
except for your obligations to the Company as set forth herein, and no
person or entity (except for a Company Affiliate as set forth herein) will
be regarded as a third-party beneficiary of this Agreement.
(g) Governing Law. This Agreement and the rights and obligations of
the parties hereunder will be construed in accordance with and governed by
the laws of the State of New York, without giving effect to the conflict
of law principles thereof.
(h) Jurisdiction, Venue and Service of Process. Any legal action or
proceeding with respect to this Agreement that is not subject to
arbitration pursuant to Section 14 (i) below will be brought in the courts
of Suffolk County, New York. By execution and delivery of this Agreement,
each of the parties hereto accepts for itself and in respect of its
property, generally and unconditionally, the exclusive jurisdiction of the
aforesaid courts.
(i) Arbitration. Any controversy, dispute or claim arising out of or
in connection with this Agreement, other than a controversy, dispute or
claim arising under Section 8, 9 or 10 hereof, will be settled by final
and binding arbitration to be conducted in New York, New York pursuant to
the national rules for the resolution of employment disputes of the
American Arbitration Association then in effect. The decision or award in
any such arbitration will be final and binding upon the parties and
judgment upon such decision or award may be entered in any court of
competent jurisdiction or application may be made to any such court for
judicial acceptance of such decision or award and an order of enforcement.
In the event that any procedural matter is not covered by the aforesaid
rules, the procedural law of New York will govern. Any disagreement as to
whether a particular dispute is arbitrable under this Agreement shall
itself be subject to arbitration in accordance with the procedures set
forth herein. The fees of the arbitrators shall be paid by the Company.
(j) WAIVER OF JURY TRIAL. ANY ACTION, DEMAND, CLAIM OR COUNTERCLAIM
ARISING UNDER OR RELATING TO THIS AGREEMENT THAT IS NOT SUBJECT TO
ARBITRATION PURSUANT TO SECTION 14(i) ABOVE WILL BE RESOLVED BY A JUDGE
ALONE AND EACH OF YOU AND THE COMPANY WAIVE ANY RIGHT TO A JURY TRIAL
THEREOF.
(k) Severability. The parties intend this Agreement to be enforced
as written. However, (i) if any portion or provision of this Agreement is
to any extent declared illegal or unenforceable by a duly authorized court
having jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those
as to which it is so declared illegal or unenforceable, will not be
affected thereby, and each portion and provision of this Agreement will be
valid and enforceable to the fullest extent permitted by law and (ii) if
any provision, or part thereof, is held to be unenforceable because of the
duration of such provision, the geographic area covered thereby, or other
aspect or scope of such provision, the court making such determination
will have the power
13
to reduce the duration, geographic area of such provision, or other aspect
or scope of such provision, and/or to delete specific words and phrases
("blue-penciling"), and in its reduced or blue-penciled form, such
provision will then be enforceable and will be enforced.
(l) Injunctive Relief. You hereby expressly acknowledge that any
breach or threatened breach of any of the terms and/or conditions set
forth in Section 8, 9 or 10 of this Agreement will result in substantial,
continuing and irreparable injury to the Company. Therefore, in addition
to any other remedy that may be available to the Company, the Company will
be entitled to injunctive or other equitable relief by a court of
appropriate jurisdiction in the event of any breach or threatened breach
of the terms of Section 8, 9 or 10 of this Agreement. The period during
which the covenants contained in Section 8 will apply will be extended by
any periods during which you are found by a court to have been in
violation of such covenants.
(m) No Waiver of Rights, Powers and Remedies. No failure or delay by
a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, will
operate as a waiver of any such right, power or remedy of the party. No
single or partial exercise of any right, power or remedy under this
Agreement by a party hereto, nor any abandonment or discontinuance of
steps to enforce any such right, power or remedy, will preclude such party
from any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The election of any remedy by a party
hereto will not constitute a waiver of the right of such party to pursue
other available remedies. No notice to or demand on a party not expressly
required under this Agreement will entitle the party receiving such notice
or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving
such notice or demand to any other or further action in any circumstances
without such notice or demand.
(n) Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties hereto on separate counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
(o) Opportunity to Review. You hereby acknowledge that you have had
adequate opportunity to review these terms and conditions and to reflect
upon and consider the terms and conditions of this Agreement, and that you
have had the opportunity to consult with counsel of your own choosing
regarding such terms. You further acknowledge that you fully understand
the terms of this Agreement and have voluntarily executed this Agreement.
(p) Survival of the Company's Obligations. Notwithstanding the
termination of this agreement pursuant to Section 4, the Company's
obligation to make payments and provide benefits to you as set forth in
Section 3 (f) (iv) and Section 6 will remain in effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing accurately sets forth our agreement, please so indicate
by signing and returning to us the enclosed copy of this Agreement.
Very truly yours,
OSI Pharmaceuticals, Inc.
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx, Ph.D
Title: Chief Executive Officer
Accepted and Approved:
/s/ Xxxxxxx Xxxxx
--------------------------- ---------
Xxxxxxx Xxxxx Date
15
EXHIBIT 10(d)
PRIOR INVENTIONS
N/A
16
