Suite 1200
San Francisco, CA 94111
Fax: (415) 837-1516
Attn: Roger S. Mertz, Esq.
(II)
TO THE EMPLOYEE:
S. LEWIS MEYER, PH.D.
Last known residential address
and fax number on file with the Company
or to such other persons or other addresses as either party may specify to the
other in writing.
(D)
REPRESENTATION BY THE EMPLOYEE.
THE EMPLOYEE REPRESENTS AND
WARRANTS THAT HIS ENTERING INTO THIS AGREEMENT DOES NOT, AND THAT HIS
PERFORMANCE UNDER THIS AGREEMENT AND CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY WILL NOT, VIOLATE THE PROVISIONS OF ANY AGREEMENT OR
INSTRUMENT TO WHICH THE EMPLOYEE IS A PARTY OR ANY DECREE, JUDGMENT OR ORDER TO
WHICH THE EMPLOYEE IS SUBJECT, AND THAT THIS AGREEMENT CONSTITUTES A VALID AND
BINDING OBLIGATION OF THE EMPLOYEE IN ACCORDANCE WITH ITS TERMS.
BREACH OF THIS
REPRESENTATION WILL RENDER ALL OF THE COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT
VOID AB INITIO.
(E)
ASSIGNMENT; ASSUMPTION OF AGREEMENT.
NO RIGHT, BENEFIT OR
INTEREST HEREUNDER SHALL BE SUBJECT TO ASSIGNMENT, ENCUMBRANCE, CHARGE, PLEDGE,
HYPOTHECATION OR SETOFF BY THE EMPLOYEE IN RESPECT OF ANY CLAIM, DEBT,
OBLIGATION OR SIMILAR PROCESS.
THE COMPANY WILL REQUIRE ANY SUCCESSOR (WHETHER
DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF THE COMPANY TO ASSUME EXPRESSLY
AND TO AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT
THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN
PLACE.
(F)
AMENDMENT.
NO PROVISION OF THIS AGREEMENT MAY BE AMENDED,
MODIFIED, WAIVED OR DISCHARGED UNLESS SUCH AMENDMENT, MODIFICATION, WAIVER OR
DISCHARGE IS AGREED TO IN WRITING AND SIGNED BY THE PARTIES.
NO WAIVER BY
EITHER PARTY HERETO AT ANY TIME OF ANY BREACH BY THE OTHER PARTY HERETO OF, OR
COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS AGREEMENT TO BE PERFORMED BY
SUCH OTHER PARTY SHALL BE DEEMED A WAIVER OF SIMILAR OR DISSIMILAR PROVISIONS OR
CONDITIONS AT THE SAME OR AT ANY PRIOR OR SUBSEQUENT TIME.
(G)
SEVERABILITY.
IF ANY TERM OR PROVISION HEREOF IS DETERMINED TO BE
INVALID OR UNENFORCEABLE IN A FINAL COURT OR ARBITRATION PROCEEDING, (I) THE
REMAINING TERMS AND PROVISIONS HEREOF SHALL BE UNIMPAIRED AND (II) THE INVALID
OR UNENFORCEABLE TERM OR PROVISION SHALL BE DEEMED REPLACED BY A TERM OR
PROVISION THAT IS VALID AND ENFORCEABLE AND THAT COMES CLOSEST TO EXPRESSING THE
INTENTION OF THE INVALID OR UNENFORCEABLE TERM OR PROVISION.
(H)
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA (DETERMINED WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
(I)
ENTIRE AGREEMENT.
THIS AGREEMENT AND THE CONFIDENTIALITY
AGREEMENT CONTAIN THE ENTIRE AGREEMENT OF THE EMPLOYEE, THE COMPANY AND ANY
PREDECESSORS OR AFFILIATES THEREOF WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
ALL PRIOR AGREEMENTS AND NEGOTIATIONS ARE SUPERCEDED HEREBY.
7
(J)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED BY THE PARTIES
HERETO IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL,