(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, BUT BOTH SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE ONE AND THE SAME
DOCUMENT.
(K)
SURVIVAL.