BREACH IN ADDITION TO THE CORPORATION BEING RELIEVED
OF ITS SEVERANCE PAYMENT AND BONUS OBLIGATIONS UNDER THE SEVERANCE AGREEMENT.
NOTHING CONTAINED IN THIS PROVISION SHALL BE CONSTRUED AS PROHIBITING THE
CORPORATION FROM PURSUING ANY OTHER REMEDIES AVAILABLE FOR SUCH BREACH OR
THREATENED BREACH OR ANY OTHER BREACH OF THIS AGREEMENT. IF ANKER VIOLATES THIS
AGREEMENT, THEN THE DURATION OF THE RESTRICTIONS CONTAINED IN PARAGRAPHS 2 AND 3
SHALL BE EXTENDED FOR AN AMOUNT OF TIME EQUAL TO THE PERIOD OF TIME DURING WHICH
ANKER WAS IN VIOLATION OF THE AGREEMENT.
7.
ENTIRE AGREEMENT.
THIS AGREEMENT (TOGETHER WITH
THE SEVERANCE AGREEMENT AND RELEASE) EMBODIES THE ENTIRE AGREEMENT AND
UNDERSTANDING BETWEEN THE PARTIES WITH REGARD TO THE SUBJECT MATTER OF THIS
AGREEMENT, IS BINDING UPON AND INURES TO THE BENEFIT OF THE PARTIES, AND IT
SUPERSEDES ANY AND ALL PRIOR AGREEMENTS OR UNDERSTANDINGS BETWEEN THE
CORPORATION AND ANKER.
8.
MODIFICATION.
THIS AGREEMENT MAY BE MODIFIED OR
AMENDED ONLY BY AN INSTRUMENT IN WRITING EXECUTED BY THE PARTIES HERETO, OR IN
ACCORDANCE WITH PARAGRAPH 14 HEREIN.
9.
GOVERNING LAW AND VENUE.
THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK, AND MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION.
10.
WAIVER.
IF IN ONE OR MORE INSTANCES EITHER PARTY FAILS
TO INSIST THAT THE OTHER PARTY PERFORM ANY OF THIS AGREEMENT'S TERMS, THIS
FAILURE SHALL NOT BE CONSTRUED AS A WAIVER BY THE PARTY OF ANY PAST, PRESENT, OR
FUTURE RIGHT GRANTED UNDER THIS AGREEMENT; THE OBLIGATIONS OF BOTH PARTIES UNDER
THIS AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT.
11.
ASSIGNMENT. THIS AGREEMENT MAY NOT BE ASSIGNED BY ANKER.
THE CORPORATION SHALL HAVE THE RIGHT TO ASSIGN ITS RIGHTS AND OBLIGATIONS
HEREUNDER WITHOUT THE CONSENT OF THE ANKER.
12.
ARBITRATION.
EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, ANY CONTROVERSY OR CLAIM ARISING OUT OF ANKER'S EMPLOYMENT WITH
CORPORATION OR THE TERMINATION THEREOF, INCLUDING WITHOUT LIMITATION ANY CLAIM
RELATED TO THIS AGREEMENT OR THE BREACH THEREOF SHALL BE RESOLVED BY BINDING
ARBITRATION IN ACCORDANCE WITH THE RULES THEN IN EFFECT OF THE AMERICAN
ARBITRATION ASSOCIATION, AT THE OFFICE OF THE AMERICAN ARBITRATION ASSOCIATION
3
NEAREST TO WHERE ANKER PERFORMED ANKER'S
PRINCIPAL DUTIES FOR THE CORPORATION. NOTHING IN THIS PARAGRAPH SHALL PREVENT
THE PARTIES FROM SEEKING INJUNCTIVE RELIEF FROM THE COURTS PENDING ARBITRATION.
EACH PARTY SHALL BE PERMITTED TO ENGAGE IN ARBITRAL DISCOVERY IN THE FORM OF
DOCUMENT PRODUCTION, INFORMATION REQUESTS, INTERROGATORIES, DEPOSITIONS AND
SUBPOENAS. THE PARTIES SHALL SHARE EQUALLY THE FEE OF THE ARBITRATION PANEL.
To the extent that an arbitrator or court shall find that any dispute between
the parties, including any claim made under or relating to this Agreement, is
not subject to arbitration, such claim shall be decided by the courts of the
State and the County, in which this agreement was executed, in a proceeding held
before a Judge of the Trial Court of the State and County in which this
agreement was executed or