AND EACH PROVISION HEREOF SHALL BE ENFORCED TO THE FULLEST
EXTENT PERMITTED BY LAW.
IF ANY PROVISION OF THIS AGREEMENT, OR ANY PART
THEREOF, IS HELD TO BE INVALID OR UNENFORCEABLE BECAUSE OF THE SCOPE OR DURATION
OF OR THE AREA COVERED BY SUCH PROVISION, THE PARTIES HERETO AGREE THAT THE
COURT MAKING SUCH DETERMINATION SHALL REDUCE THE SCOPE, DURATION AND/OR AREA OF
SUCH PROVISION (AND SHALL SUBSTITUTE APPROPRIATE PROVISIONS FOR ANY SUCH INVALID
OR UNENFORCEABLE 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 PROCEEDING, A COURT SHALL
REFUSE TO ENFORCE ANY OF THE SEPARATE COVENANTS CONTAINED IN THIS AGREEMENT,
THEN THAT
17
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 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.
13.
SURVIVABILITY.
THE PROVISIONS OF THIS
AGREEMENT WHICH BY THEIR TERMS CALL FOR PERFORMANCE SUBSEQUENT TO TERMINATION OF
EXECUTIVE'S EMPLOYMENT HEREUNDER, OR OF THIS AGREEMENT, SHALL SO SURVIVE SUCH
TERMINATION, WHETHER OR NOT SUCH PROVISIONS EXPRESSLY STATE THAT THEY SHALL SO
SURVIVE.
14.
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.
(B)
ARBITRATION.
THE 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 7.
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 7, 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