Mr. Paul Chaney 13 McGregor Avenue Mt. Arlington, NJ 07856 Re: Employment Agreement Dear Paul:
Exhibit 10.01
May 3, 2006
Mr. Xxxx Xxxxxx
00 XxXxxxxx Xxxxxx
Xx. Xxxxxxxxx, XX 00000
00 XxXxxxxx Xxxxxx
Xx. Xxxxxxxxx, XX 00000
Re: Employment Agreement
Dear Xxxx:
This letter is to confirm our understanding with respect to (i) your 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 of the Company and President of (OSI)
Eyetech, Inc., 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
Times Square facility located in New York, NY or such other facility mutually agreed upon by
you and the CEO, 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 the terms of this Agreement (the “Employment Term”) shall be for an initial
term commencing on May 1, 2006 (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 $365,000 (the “Base Salary”). Your Base Salary will be
reviewed on an annual basis each December (or such other time as determined by the CEO
and/or the Compensation Committee of the Board of Directors of the Company (the “Board”)).
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 bonus based upon the target set for your grade level at such time,
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. Your grade level as of the date hereof is 13.
(c) Equity Compensation.
(i) Vesting. All stock options, restricted stock and other equity-based
compensation heretofore granted to you or granted to you during the Employment Term
under the OSI Pharmaceuticals, Inc. Amended and Restated
2
Stock Incentive Plan or any successor plan or the Stock Incentive Plan for
Pre-Merger Employees of Eyetech Pharmaceuticals, Inc. shall vest and be fully
exercisable upon a Change of Control (as hereinafter defined).
(ii) Future Grants. On each date that an annual grant of equity
compensation is made by the Company to its executive management group, so long as
you then remain in the employ of the Company, the Company will make a grant of
equity compensation to you (an “Annual Equity Grant”) to be determined by the
Compensation Committee of the Board based upon your grade level and performance. The
terms and conditions of the Annual Equity Grant will be as set forth in the
Agreement accompanying such Annual Equity Grant.
(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 governing such Fringe Benefits. Nothing contained herein will require the
Company to establish or maintain any Fringe Benefits.
(f) Retention Bonus. In connection with the Company’s acquisition of Eyetech
Pharmaceuticals, Inc. in November 2005, you are entitled to a retention bonus of $75,000 if
you remain employed by the Company on February 14, 2007.
(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 member of your immediate family) and the
Company. Such physician’s written
3
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 facility in Manhattan, 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”.
4
(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) payment for 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) If, at the time of your termination, (i) the Company’s stock is publicly traded on
an established securities market or otherwise and (ii) you are a key employee as defined in
Section 416(i) of the Internal Revenue Code (the “Tax Code”) without regard to paragraph (5)
thereof, the distribution of any payment under this Agreement that constitutes nonqualified
deferred compensation under Section 409A of the Tax Code and any regulations thereunder
shall not be made before the date which is six months after the date of your separation from
service (or, if earlier, the date of your death).
(e) The Company intends to comply with Section 409A of the Tax Code, or an exemption to
Section 409A of the Tax Code, with regard to any severance payments hereunder that
constitutes nonqualified deferred compensation within the meaning of
5
Section 409A of the Tax Code. To the extent that the Company determines that as a result of
any provision of this Agreement you would be subject to the additional 20% tax imposed on
certain nonqualified deferred compensation plans pursuant to Section 409A of the Tax Code
and any regulations thereunder, such provision shall be deemed amended to the minimum extent
necessary to avoid application of such additional tax. The nature of any such amendment
shall be determined by the Company or the Compensation Committee of the Board.
(f) 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.
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 a majority 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
6
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, 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
7
(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.
(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.
8
(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 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
9
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 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, including, without
limitation, the letter agreement dated August 21, 2005 between you and the Company. 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.
10
(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.
(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
11
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 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
12
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]
13
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/ Xxxx Xxxxxx
|
May 3, 2006 | |||
Xxxx Xxxxxx
|
Date |
14
EXHIBIT 10(d)
PRIOR INVENTIONS
N/A
15
