EXHIBIT 10.30
May 16, 2003
▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Employment Agreement
Dear Gabe:
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 and President, Oncology Business,
of the Company reporting to 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 ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, 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 21, 2003 (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 $350,000 (the
"Base Salary"). Your Base Salary will be reviewed on an annual basis
each September (or such other time as determined by the CEO or the
Compensation Committee of the Board of Directors of the Company (the
"Board")), commencing with September, 2004. 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 2004 fiscal year, you will be eligible to receive a
target bonus of up to 50% of the Base Salary, 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. For fiscal year 2003, you will receive a
guaranteed bonus equal to 30% of your Base Salary, or $105,000, payable
in December 2003 or January 2004, at your option.
(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 and you under the OSI
Pharmaceuticals, Inc. 2001 Incentive and Non-Qualified Stock
Option 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
2
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 24 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 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 target for grade 11
ranges from 35,000 to 40,000, subject to the discretion of the
Compensation Committee of the Board. 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. Each Annual 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 24 months
following the first anniversary of the date of grant on a
monthly pro-rated basis. Notwithstanding the foregoing, each
Annual Option shall vest and be fully exercisable upon a
Change of Control (as hereinafter defined).
(d) Vacation. You will be entitled to 22 paid vacation
days in each calendar year, including 2003, 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) Company Car. The Company will provide you with an
approved company car and will reimburse you for related expenses in
accordance with the Company's policy for other similarly situated
senior executives.
3
(g) Relocation. The Company will assist you in your
relocation to Long Island in accordance with the following:
(i) Relocation Service. Cendant Mobility will
assist you in your relocation from New Jersey to Long Island
in accordance with the Company's agreement with Cendant
Mobility.
(ii) Current Residence. The Company, through
Cendant Mobility and at your request, will purchase your
current residence in New Jersey for a purchase price equal to
its fair market value as determined by the Company's agreement
with Cendant Mobility.
(iii) Expenses. The Company will reimburse you,
either directly or through its relocation service, Cendant
Mobility, 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
mortgage points) associated with the purchase of a new home on
Long Island, 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 three months prior to your move into a new home (including
transportation, lease or sublease amounts, hotel or other
accommodations, meals, brokers' fees).
(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 Payment. In addition to the amounts
provided for in Sections 3 (g) (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.
(vi) Gross-Up. In addition to the amounts set
forth in Sections 3 (g) (iii), (iv) and (v), you will be
entitled to receive an additional payment (a "Gross-Up
Payment") in an amount equal to all
4
taxes (including any interest or penalties imposed with
respect to such taxes) paid by you with respect to such
amounts.
(vii) Pay-Back. If, within 18 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 a pro-rated portion (based upon the date of
your termination) of the amounts paid to you pursuant to
Sections 3 (g) (iii), (iv), (v) and (vi) (the "Relocation
Expenses") in accordance with the following schedule:
(A) If such termination occurs within 6 months
of the Effective Date hereof, you will be responsible to repay
100% of the Relocation Expenses;
(B) If such termination occurs between 7 to 12
months following the Effective Date, you will be responsible
to repay 75% of the Relocation Expenses; and
(C) If such termination occurs between 13 to 18
months following the Effective Date, you will be responsible
to repay 50% of the Relocation Expenses.
(viii) Documentation. Reimbursement of the expenses
provided for in this Section 3(g) 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 (g) (v).
(h) 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 determination of your
Permanent Disability
5
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 (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; or;
(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".
6
(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.
7
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 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,
8
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
(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.
9
(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 ▇▇▇▇▇ 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
10
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 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
11
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. 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.
12
(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
13
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 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
14
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 (g) (iv) and Section 6 will remain in
effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
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/
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D
Title: Chief Executive Officer
Accepted and Approved:
/s/
--------------------------- -------------------
▇▇▇▇ ▇▇▇▇▇ Date
16
EXHIBIT 10(d)
PRIOR INVENTIONS