PROVISIONS) IN ORDER TO MAKE SUCH PROVISION
ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW AND/OR SHALL DELETE SPECIFIC
WORDS AND PHRASES, AND SUCH MODIFIED PROVISION SHALL THEN BE ENFORCEABLE AND
SHALL BE ENFORCED.
THE PARTIES HERETO RECOGNIZE THAT IF, IN ANY JUDICIAL OR
ARBITRAL PROCEEDING, A COURT OR ARBITRATION PANEL SHALL REFUSE TO ENFORCE ANY OF
THE SEPARATE COVENANTS CONTAINED IN THIS AGREEMENT, THEN THAT INVALID OR
UNENFORCEABLE COVENANT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED ELIMINATED
FROM THESE PROVISIONS TO THE EXTENT NECESSARY TO PERMIT THE REMAINING SEPARATE
COVENANTS TO BE ENFORCED. IN THE EVENT THAT ANY COURT OR ARBITRATION PANEL
DETERMINES THAT THE TIME PERIOD OR THE AREA, OR BOTH, ARE UNREASONABLE AND THAT
ANY OF THE COVENANTS IS TO THAT EXTENT INVALID OR UNENFORCEABLE, THE PARTIES
HERETO AGREE THAT SUCH COVENANTS WILL REMAIN IN FULL FORCE AND EFFECT, FIRST,
FOR THE GREATEST TIME PERIOD, AND SECOND, IN THE GREATEST GEOGRAPHICAL AREA THAT
WOULD NOT RENDER THEM UNENFORCEABLE.
11.
SURVIVABILITY.
THE PROVISIONS OF THIS AGREEMENT WHICH BY THEIR
TERMS CALL FOR PERFORMANCE SUBSEQUENT TO TERMINATION OF EXECUTIVE'S EMPLOYMENT
HEREUNDER SHALL SO SURVIVE SUCH TERMINATION, WHETHER OR NOT SUCH PROVISIONS
EXPRESSLY STATE THAT THEY SHALL SO SURVIVE.
12.
GOVERNING LAW; ARBITRATION.
(A)
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE WHOLLY PERFORMED WITHIN THAT STATE, WITHOUT REGARD TO ITS
CONFLICT OF LAWS PROVISIONS OR WHERE THE PARTIES ARE LOCATED AT THE TIME A
DISPUTE ARISES.
(B)
ARBITRATION.
EXECUTIVE AND THE COMPANY AGREE THAT, EXCEPT FOR
CLAIMS FOR WORKERS' COMPENSATION, UNEMPLOYMENT COMPENSATION, AND ANY OTHER CLAIM
THAT IS NON-ARBITRABLE UNDER APPLICABLE LAW, FINAL AND BINDING ARBITRATION SHALL
BE THE EXCLUSIVE FORUM FOR ANY DISPUTE OR CONTROVERSY BETWEEN THEM, INCLUDING,
WITHOUT LIMITATION, DISPUTES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT,
EXECUTIVE'S EMPLOYMENT, AND/OR TERMINATION OF EMPLOYMENT, WITH THE COMPANY;
PROVIDED, HOWEVER, THAT THE COMPANY SHALL BE ENTITLED TO COMMENCE AN ACTION IN
ANY COURT OF COMPETENT JURISDICTION FOR INJUNCTIVE RELIEF IN CONNECTION WITH ANY
ALLEGED ACTUAL OR THREATENED VIOLATION OF ANY PROVISION OF SECTION 5.
JUDGMENT
MAY BE ENTERED ON THE ARBITRATORS' AWARD IN ANY COURT HAVING JURISDICTION.
FOR
PURPOSES OF ENTERING SUCH JUDGMENT OR SEEKING INJUNCTIVE RELIEF WITH REGARD TO
SECTION 5, THE COMPANY AND EXECUTIVE HEREBY CONSENT TO THE JURISDICTION OF ANY
OR ALL OF THE FOLLOWING COURTS: (I) THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; (II) THE SUPREME COURT OF THE STATE OF NEW YORK,
NEW YORK COUNTY; OR (III) ANY OTHER COURT HAVING JURISDICTION; PROVIDED, THAT
DAMAGES FOR ANY ALLEGED VIOLATION OF SECTION 5, AS WELL AS ANY CLAIM,
COUNTERCLAIM OR CROSSCLAIM BROUGHT BY EXECUTIVE OR ANY THIRD-PARTY IN RESPONSE
TO, OR IN CONNECTION WITH, ANY COURT ACTION COMMENCED BY THE COMPANY SEEKING
SAID INJUNCTIVE RELIEF SHALL REMAIN EXCLUSIVELY SUBJECT TO FINAL AND BINDING
ARBITRATION AS PROVIDED FOR HEREIN.
THE COMPANY AND EXECUTIVE HEREBY WAIVE, TO
THE FULLEST EXTENT PERMITTED