Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") is entered into
between Innovex, Inc., a Minnesota corporation (collectively, with its
subsidiaries, affiliates and parent companies, "Innovex" or the "Company"), and
Xxxxx Xxxxxxxxxx ("Employee") as of January 16, 2008.
WHEREAS, the Employee and the Company entered into an Employment Agreement dated
as of October 19, 2005 (the "Existing Agreement"); and
WHEREAS, the Employee has been employed as Innovex's Senior Vice-President since
January 12, 2004, Innovex desires to continue to employ the Employee in the
capacity of Chief Executive Officer and the Employee agrees to continue his
employment under the terms and conditions of this Agreement, which amends and
replaces the Existing Agreement; and
WHEREAS, Innovex is providing consideration to the Employee consisting of
increased protection in the event of a Change in Control, enhanced severance
benefits, its willingness to retain him as its employee, its payment of
compensation and provision of benefits to him, his exposure and access to its
valuable Customers and other business contacts and trade secrets, his
specialized training in connection with his employment, and all other benefits
associated with this Agreement and his employment with Innovex.
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions
herein contained, it is hereby agreed by and between the parties hereto as
follows:
DEFINITIONS
Change in Control. A Change in Control shall be deemed to have occurred if any
of the following occur:
(1) Any "Person" (as defined in Section 13(d) of the Securities Exchange Act
of 1934, as amended, or any successor statute thereto (the Exchange Act))
acquires or becomes a beneficial owner (as defined in Rule 13d-3 or any
successor rule), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's
then outstanding securities entitled to vote generally in the election of
directors (Voting Securities) or 20% or more of the outstanding shares of
common stock of the Company (Common Stock), provided, however, that the
following shall not constitute a Change in Control:
(a) any acquisition or beneficial ownership by the Company or a
subsidiary of the Company;
(b) any acquisition or beneficial ownership by any employee benefit plan
(or related trust) sponsored or maintained by the Company or one or more
of its subsidiaries;
(2) Continuing Directors shall not constitute a majority of the members of
the Board of Directors of the Company. Continuing Directors shall mean:
(a) individuals who, on the date hereof, are directors of the Company,
(b) individuals elected as directors of the Company subsequent to the
date hereof for whose election proxies shall have been solicited by the
Board of Directors of the Company, or (c) any individual elected or
appointed by the Board of Directors of the Company to fill vacancies on
the Board of Directors of the Company caused by death or resignation (but
not by removal) or to fill newly-created directorships, provided that a
Continuing Director shall not include an individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the threatened election or removal of
directors (or other actual or threatened solicitation of proxies or
consents) by or on behalf of any person other than the Board of Directors
of the Company;
(3) Consummation of a reorganization, merger or consolidation of the Company
(other than a merger or consolidation with a subsidiary of the Company),
unless immediately following such reorganization, merger or
consolidation, all or substantially all of the persons who were the
beneficial owners, respectively, of Voting Securities and Common Stock
immediately prior to such reorganization, merger or consolidation
beneficially own, directly or indirectly, 51% or more respectively of (a)
the combined voting power of the then outstanding Voting Securities
entitled to vote generally in the election of directors, and (b) the then
outstanding shares of Common Stock of the corporation resulting from such
reorganization, merger or consolidation in substantially the same
proportions as their ownership of the Voting Securities and Common Stock,
as the case may be, immediately prior to such reorganization, merger or
consolidation; or
(4) Consummation of a liquidation or dissolution of the Company or the sale
or other disposition of all or substantially all of the assets of the
Company (in one or a series of transactions), other than to a
wholly-owned subsidiary of the Company.
Notwithstanding anything stated above, a Change of Control event shall not be
deemed to occur with respect to the Employee if the acquisition or beneficial
ownership of the 20% or greater interest referred to in (1) is by the Employee
or a group, acting in concert, that includes the Employee or a majority of the
then combined voting power of the then outstanding Voting Securities (or voting
equity interests) of the surviving corporation or of any corporation (or other
entity) acquiring all or substantially all of the assets of the Company shall,
immediately after a reorganization, merger, consolidation or disposition of
assets referred to in (3) or (4) of this definition, be beneficially owned,
directly or indirectly, by the Employee or by a group, acting in concert, that
includes the Employee.
Conflicting Organization. A Conflicting Organization is any person or
organization (including Innovex Customers and Vendors) engaged in or about to
become engaged in, research, development, production, marketing, leasing,
selling or servicing of a Conflicting Product in any market in which Innovex is
doing or about to be doing business as of the Employee's termination date.
Conflicting Product. A Conflicting Product is any product, product line,
process, system or service (including any component thereof or research to
develop information useful in connection with a product or service) which is the
same, similar to or competitive with (whether based on similar or alternative
technologies) any product, product line, process, system or service which the
Employee or any person under the Employee's direct or indirect supervision
designed, developed, marketed, promoted, sold, serviced, provided or worked on
in any other capacity on behalf of Innovex during the two years preceding the
Employee's termination date, including any product, product line, process,
system or service in existence or under development or about which the Employee
possesses Confidential Information.
Customer or Vendor. A Customer or Vendor is any person or entity with whom the
Employee or anyone under his direct or indirect supervision had any direct or
indirect contact on behalf of Innovex in connection with Innovex's products or
services.
Disability. The Employee's Disability shall occur if he becomes unable to
substantially, with or without reasonable accommodation, perform his duties
under this Agreement, by reason of any medically determinable physical or mental
impairment, for at least 180 consecutive days. The existence of a Disability
will be determined pursuant to the standards for entitlement for long-term
disability benefits set forth in Innovex's Long-Term Disability Plan.
Good Cause. Good Cause shall exist if the Employee has (a) engaged in theft,
embezzlement, other act of dishonesty, moral turpitude, or any willful violation
of the Securities Exchange Act of 1934, as amended; (b) materially breached any
of his obligations under this Agreement; or (c) engaged in gross mismanagement
or gross negligence in the performance of his duties hereunder. With respect to
(b) and (c), Employee shall be given written notice of the facts believed to
constitute grounds for termination and a 30-day period in which to cure those
grounds to the satisfaction of the Board.
Good Reason. Good Reason shall exist if the Employee experiences (a) a material
reduction in his compensation or responsibilities (except if such change is made
available as reasonable accommodation in the event of Employee's Disability or
other inability to perform his duties due to a physical or mental condition) or
(b) a requirement that he relocate to a workplace more than 50 commuting miles
from his principal residence, provided however that Good Reason shall not exist
following a Change in Control if the Employee retains responsibility for a
division, subsidiary or other operational unit or entity that is substantially
similar to or larger than Innovex as it existed prior to the Change in Control.
Good Will. Good Will is Innovex's valuable Customer, Vendor and other industry
relationships which it is the responsibility of the Employee and other Innovex
employees to maintain, develop, nurture, improve and expand in connection with
the products and services provided to said Customers by Innovex or purchased
from said Vendors.
1. Employment and Term. Innovex agrees to employ the Employee as its Chief
Executive Officer, reporting to the Board of Directors (the "Board"), and
the Employee agrees to serve Innovex in such capacities on the terms and
conditions set forth herein for the period commencing on the date of this
Agreement and continuing until terminated by the Employee or Innovex in
accordance with paragraph 5.
2. Duties. The Employee shall be responsible for the management of
manufacturing operations, process engineering, supply chain management,
human resources management and such other duties and responsibilities as
may be assigned to him by the Board. Employee shall faithfully and
diligently do and perform all such acts and duties and furnish such
services for Innovex as the Board shall direct, promote the interest and
welfare of Innovex and its business, be familiar with Innovex's policies
that relate to his duties and abide by these policies, and not
intentionally do anything which may cause loss or damage to Innovex, its
business, business reputation or Good Will. He shall devote his full
time, energy and skill to the business of Innovex, except for vacations,
absences made necessary because of illness, and service on other
corporate, civic, or charitable boards or committees not significantly
interfering with his duties hereunder. Employee shall not engage in any
other business or nonprofit activity during his employment with Innovex
except as may be approved in advance by the Board; provided, however,
that Employee shall not be precluded from owning up to 5% of the issued
and outstanding capital stock or other interest of an entity which is not
a Customer, Vendor or Conflicting Organization.
3. Compensation. In return for his services to Innovex, Employee shall
receive compensation and benefits which shall include the following:
3.1 Salary. The Employee shall receive a semi-monthly base salary of $11,875
($285,000 annualized). Salary reviews shall occur at least once per year,
and the Board shall grant Employee such salary increases based upon the
Employee's performance as the Board, in its sole discretion, deems
appropriate.
3.2 Bonus. For each fiscal year during Employee's employment, Employee will
be eligible for a bonus award pursuant to a bonus plan determined by the
Board. Bonus awards will be subject to the terms of the applicable bonus
plan and are conditioned upon Employee's continued employment with
Innovex through the last day of the fiscal year on which the bonus is
based except as otherwise permitted under 5.2. A determination as to
whether the bonus objectives have been met will be made, in the sole
discretion of the Board, by comparing Employee's and Innovex's actual
performance for the fiscal year to the performance measures defined in
the bonus plan at the beginning of the fiscal year. A bonus awarded
pursuant to this 3.2 may take the form of cash or stock options, subject
to the applicable stock option plans, or a combination of the two. A
bonus awarded to the Employee for any fiscal year will be paid within two
and a half months following the end of said year.
4. Benefits and Expenses.
4.1 Employee Benefits. The Employee shall be eligible for such employee
benefits as are offered by Innovex to other employees. Innovex may
terminate any or all such plans at any time and may choose not to adopt
any additional plans. Employee's rights under any Innovex plans and
policies shall be governed solely by their terms. Employee shall be
eligible for four weeks of vacation annually, subject to the parameters
set forth in Innovex's vacation policy.
4.2 Reimbursable Business Expenses. In addition to salary and other benefits,
Innovex will advance or reimburse Employee for any ordinary, necessary
and reasonable expenses incurred by him in the course of his employment.
Innovex shall reimburse the Employee upon his submission of any records
and documentation required to substantiate said expenses.
4.3 Company Vehicle. Innovex will provide Employee with an annual vehicle
allowance to be prorated over the Company's regular pay periods
throughout the year. Employee's vehicle allowance will be in accordance
with and subject to the Company Vehicle Policy (Exhibit 2).
4.4 Indemnification. Innovex will indemnify the Employee from loss and
expenses arising out of his conduct as an officer of Innovex to the
fullest extent permitted by the Company's corporate articles, by-laws,
Board resolutions, applicable insurance policy and Minnesota law.
4.5 Relocation Expenses. In the event the Employee's employment is terminated
by Innovex without Good Cause or by Employee for Good Reason, Innovex
will provide Employee relocation expenses, back to the United States
location of Employee's choice, consisting solely of (i) business class
airfare for Employee and his spouse; (ii) en route normal travel
expenses; (iii) sea transportation of personal belongings (including
packing and unpacking); and (iv) up to two (2) weeks' temporary lodging
costs. In no event shall such costs exceed $50,000.
5. Termination of Employment.
5.1 Voluntary Resignation. The Employee may resign his employment with
Innovex for any reason effective upon 120 days' advance written notice to
the Board. During the notice period he will provide all reasonable aid
and assistance in hiring, training, and introducing his replacement as
may be requested by Innovex and will undertake such other
responsibilities as Innovex may direct. Alternatively, Innovex reserves
the right to terminate Employee's employment, effective upon written
notice to Employee, at any time during the notice period provided,
however, that base salary and Innovex's share of his group health, dental
and life premiums as may be in effect, subject to the terms of the plans,
applicable law and 5.6 and 5.7 hereof, will continue for the duration of
the notice period. No other benefits will be payable to Employee during
the notice period.
5.2 Involuntary Termination and Resignation for Good Reason. Employee's
employment may be terminated (a) by Innovex for other than Good Cause,
effective upon the date specified in Innovex's written notice of
termination to Employee, (b) by Innovex for Good Cause, effective upon
Employee's receipt of Innovex's written notice of termination, or (c) by
the Employee for Good Reason, effective upon the Board's receipt of
Employee's written notice of termination, which shall include a detailed
explanation as to why he believes Good Reason exists. If Employee's
employment is terminated for other than Good Cause or for Good Reason
under this 5.2 and the termination is not related to a Change in Control,
base salary and the employer share of Employee's Innovex group health and
dental premiums will continue to be paid for 12 months from Employee's
termination date, subject to 5.6, 5.7 and Employee's other obligations
hereunder. In addition, if the Employee's termination occurs partway
through a fiscal year, the Board may award a prorated bonus to Employee
if (i) Employee would have received a bonus if he had remained in
Innovex's employ for the full fiscal year and (ii) the Board determines
that Employee's contribution to Innovex prior to his termination date
warrants a prorated bonus award. Only the benefits described in this 5.2
will be payable to Employee during the severance period. Termination for
other than Good Cause shall include non-Good Cause termination due to
performance issues and any other non-Good Cause termination not described
in 5.3, 5.4 or 5.5. If the Employee's termination is for Good Cause, his
base salary and benefits will be paid only through his termination date.
5.3 Change in Control.
5.3.1. If Employee's employment is terminated without Good Cause or Employee
resigns for Good Reason within 18 months following a Change in Control,
he will receive (a) continuation of his base salary for 18 months, (b)
payment of the employer share of his group health and dental premiums for
up to 12 months, and (c) immediate 100% vesting of any unvested stock
options (the "Parachute Payments"). Approval of this Agreement by the
Compensation Committee of the Board shall be deemed approval of the
vesting of options as provided in the immediately preceding sentence for
all purposes under Innovex stock purchase and stock option plans and
programs. Notice of termination or resignation shall be in writing to the
applicable party. Employee's right to the benefits provided in this 5.3.1
is contingent upon him not resigning his employment from Innovex within
90 days following a Change in Control, the requirements of 5.6 and 5.7,
and his compliance with his other obligations hereunder.
5.3.2. If the Employee or Innovex would be subject to excise tax or denial of
deduction under Sections 280G and 4999 of the Internal Revenue Code as a
result of the Parachute Payments described in 5.3.1, Innovex shall reduce
or eliminate such payments to the extent necessary to reduce the
aggregate "present value" (as defined in Section 280G(d)(4) of the Code)
of such payments to $100 less than an amount equal to three times
Employee's "base amount" (as defined in 280G(b)(3)(a) and (d)(1) and (2)
of the Code) so that Employee is not subject to tax under Section 4999
and no Innovex deduction is disallowed pursuant to Section 280G(a).
5.4 Disability. The Employee's employment will terminate if he comes under a
Disability, is unable to perform his duties hereunder and Innovex is
unable, because of undue hardship, to provide reasonable accommodations
to enable him to continue his employment. Accommodations offered by
Innovex could include change of responsibilities or title. In the event
of Employee's Disability, his benefits will be those available under
group short-term and long-term disability plans sponsored by Innovex,
except as provided in the following sentence. If Employee is covered
under a group short-term disability plan, Innovex will continue to pay
40% of his base salary for the duration of his short-term disability
period unless the plan would cause this amount to reduce his short-term
disability benefits. If he is covered by a long-term disability plan, he
will not be eligible for any additional payments from Innovex during the
period of such coverage. Innovex will pay Employee's group health and
dental premiums during any period of group short or long term disability
coverage for up to 18 months, to the extent such premiums are not paid
under any group health, disability or other policy maintained by Innovex
under which the Employee is a Participant, Employee is not eligible to
participate in any other group plans, and Employee continues to be
eligible to participate in said Innovex plans.
5.5 Death. If Employee dies during his employment, Innovex will pay his
estate the biweekly installment otherwise due and payable at the end of
that biweekly period in which the Employee shall have died, and
thereafter no further compensation shall be payable by Innovex to
Employee hereunder, except for normal and customary life insurance
benefits and vested pension benefits, if any.
5.6 Payment Conditions. Any payments made to Employee pursuant to 5.1, 5.2,
5.3 or 5.4 will be reduced by (a) any other benefits payable to Employee
directly or indirectly from Innovex (not including Social Security
benefits), such as payments under any disability plan or policy the
premiums of which have been paid by Innovex or any severance or other
payments to Employee under any company plan or policy and (b)
unemployment benefits received by the Employee. In addition, as a
condition of receiving any such payments, or any payments under Section
4.5, Employee will be required to sign a standard release agreement in
which he releases all claims which he might have against Innovex or any
affiliate, employee, shareholder, director, officer or agent of Innovex
(along with other standard releasees affiliated with Innovex). Innovex
will provide said release agreement to the Employee at the time he is
notified of his termination without Good Cause, following his notice of
resignation for Good Reason or during the notice period following his
voluntary resignation. As part of the release agreement, Employee will be
required to (i) cooperate with Innovex with respect to any business
matters about which he has knowledge, including any litigation or
threatened litigation, (ii) not cooperate with any plaintiffs or
claimants against Innovex unless required by law to do so, (iii) not make
negative or derogatory comments about Innovex or any other releasee and
(iv) affirm his post-termination obligations under this Agreement. The
release agreement will also provide that if the Employee violates any
obligation of his under paragraphs 6, 7 or 8 of this Agreement, all
payments and benefits to him will immediately cease. The release
agreement is attached as Exhibit 3, provided however that Exhibit 3 may
be revised to comply with current law or to provide for unforeseen
circumstances.
5.7 Group Health and Dental Coverage. The Employee's right to Innovex's
payment of the employer share of his group health and dental premiums is
subject to his timely election to continue his coverage under COBRA and
applicable state law, his continued eligibility under the plans, his lack
of eligibility to participate in any other group plans, and deduction of
his share of the premiums from his severance payments.
6. Confidentiality. During his employment with Innovex, the Employee has had
and will continue to have access to and become acquainted with trade
secrets and other proprietary and confidential information owned by
Innovex and used in the operation of Innovex's business. "Trade secrets
and other proprietary and confidential information" shall mean any
information or knowledge possessed by Innovex which is not generally
known to or readily ascertainable by outside parties who can obtain
economic value from its use or disclosure. This shall include, without
limitation, inventions, discoveries, ideas, know-how, research and
development information, designs, specifications, formulas, patterns,
compilations, computer programs, devices, methods, techniques, processes,
data, improvements, ideas, algorithms, computer processing systems,
drawings, proposals, job notes, reports, records, specifications,
information concerning any matters relating to the business of Innovex
and any of its customers, vendors, customer and vendor contacts,
licenses, the prices it obtains or has obtained for the licensing of its
software products and services, or any other non-public information
concerning the business of Innovex and its good will. Confidential
information also includes the terms of this Agreement and any release
agreement provided to Employee by Innovex or entered into between the
Employee and Innovex, except as otherwise provided in 6.1 or 8.2.
6.1 Nondisclosure. Employee shall not disclose or use in any manner, directly
or indirectly, any such trade secrets or other proprietary and
confidential information either during the term of his employment or at
any time thereafter, except as required (a) in the course of his
employment with Innovex or (b) by applicable law, including the Exchange
Act, contingent upon establishment of confidentiality protections
satisfactory to Innovex.
6.2 Information Disclosed Remains Company Property. All ideas, concepts,
information, and written material disclosed to Employee by Innovex or
acquired from a Customer or prospective Customer of Innovex, are and
shall remain the sole and exclusive property and proprietary information
of Innovex or such Customers, and are disclosed in confidence by Innovex
or permitted to be acquired from such Customers in reliance on Employee's
agreement to maintain them in confidence and not to use or disclose them
to any other person except in furtherance of Innovex's business.
6.3 Return of Materials. Employee agrees that, upon request of Innovex or
upon termination of employment, Employee shall turn over to Innovex
originals and any copies of all documents, files, disks or other computer
media, or other property or material in his possession or under his
control that (a) may contain or be derived from ideas, concepts,
creations, or trade secrets and other proprietary and confidential
information as described in this section or (b) are connected with or
derived from Employee's services to Innovex. Employee agrees to certify
in writing that he has complied with this 6.3 at the time of his
termination of employment.
6.4 Prohibition. Employee certifies and agrees that to the best of his
knowledge he (a) does not possess confidential or proprietary documents
or property of any prior employer and (b) while in Innovex's employ, he
has not and will not use or disclose the protected trade secrets of any
prior employer or other entity. Trade secrets for purposes of this
prohibition are defined in (i) Minnesota Statutes Section 325C.01, Subd.
5 and (ii) any agreement with a prior employer or any other person or
entity in which the Employee is obligated not to use or disclose that
person or entity's trade secrets. The Employee certifies that he has
provided a copy of any such contractual obligation to Innovex.
7. Inventions and Creations. Any and all inventions, discoveries,
improvements, or creations (collectively, "Inventions") made or conceived
by Employee during the period of his employment by Innovex shall be the
property of Innovex. Employee hereby assigns to Innovex all of his rights
to any such Inventions and agrees to promptly disclose any such
Inventions in writing to Innovex. Employee further agrees to execute and
assign any and all proper applications, assignments and other documents
and to render all assistance reasonably necessary to apply for patent,
copyright or trademark protection in all countries.
7.1 Exceptions. Paragraph 7 does not apply to an Invention for which no
equipment, supplies, facility or trade secret information of Innovex was
used and which was developed entirely on Employee's own time and (a)
which does not relate (i) directly to the business of Innovex or (ii) to
Innovex's actual or demonstrably anticipated research or development; or
(b) which does not result from any work performed by Employee for
Innovex. Exhibit 3 hereto constitutes a complete list of the inventions
made by Employee prior to employment by Innovex as to which he has at
least partial ownership. Innovex shall have no claim of right or title to
the inventions listed on Exhibit 3.
7.2 Definition of Inventions. For purposes of this Agreement, the term
"Inventions" shall mean discoveries, improvements, and ideas (whether or
not shown or described in writing or reduced to practice) and works of
authorship, whether or not patentable or copyrightable, which (a) relate
directly to the business of Innovex; (b) relate to Innovex's actual or
demonstrably anticipated research or development; or (c) result from any
work performed by Employee for Innovex, or for which equipment, supplies,
facilities or trade secret information of Innovex is used, or which is
developed on Innovex time.
7.3 Non-Covered Inventions. Should the Employee make a discovery, improvement
or Invention that is not covered by the provisions of this Agreement (a
"Non-Covered Invention"), the Employee may, at his sole option, disclose
the Non-Covered Invention to Innovex and Innovex shall then have a right
of first refusal to enter into a license agreement with Employee to
acquire rights thereunder. If negotiations extend for more than six
months from the date of disclosure to Innovex, Employee shall be free to
submit the Non-Covered Invention to others without obligation to Innovex
and with respect to such Non-Covered Invention.
8. Non-Competition, Non-Solicitation and Non-Interference.
8.1 Duty of Loyalty. The Employee acknowledges that he has a duty of loyalty
to Innovex during his employment. Therefore, during his employment, he
will not directly or indirectly plan, organize, own, perform services for
or in any way associate with any Conflicting Organization or conspire
with others to do so.
8.2 Non-Competition. For one year following the termination of his employment
with Innovex for any reason, the Employee will not directly or
indirectly, as a shareholder, director, officer, employee, owner, agent,
associate, consultant or in any other capacity, plan, organize, own,
perform services for or in any other way associate with any Conflicting
Organization. During this one-year period, the Employee also agrees to
provide (a) a copy of this agreement to any prospective employer or other
person or entity for which he intend to perform services and (b) written
notification to the CEO of Innovex of any new employment or other
business engagement of his. Because Innovex has no interest in the
Employee's post-Innovex activities if those activities do not involve
Innovex's Confidential Information or Good Will and are not otherwise
harmful to Innovex, Innovex's CEO, in his sole discretion, will consider
modification of the obligation in this 8.2 with respect to a specific
position with a specific employer, entity or person following Employee's
written request for same and his cooperation in providing any requested
information in connection with such request. The CEO will agree to the
requested modification or a variation thereof only if he determines that
the modification will not be harmful to Innovex's business interests and
will not violate its protectable interests in its Confidential
Information and Good Will. The CEO will notify the Employee in writing of
his decision, which will be final.
8.3 Non-Solicitation. For one year following the termination of Employee's
employment with Innovex for any reason, he agrees that he will not,
directly or indirectly, on his own behalf or on behalf of any Conflicting
Organization, solicit:
8.3.1 any Customer with whom he had contact during the two-year period prior to
his termination date or about which he possesses Confidential
Information, for the purpose of directly or indirectly (a) marketing,
promoting or encouraging the use of a Conflicting Product, (b) providing
advice or assistance in connection with the marketing, promotion or use
of a Conflicting Product, or (c) attempting to interfere with, or
preventing or diverting the sale or purchase of, any product being
designed, developed, sold or marketed by Innovex;
8.3.2 any Innovex employee or agent to terminate his or her employment or
agency with Innovex; or
8.3.3 any Vendor that provides an exclusive or unique service or product to
Innovex for the purpose of obtaining similar products or services for a
Conflicting Organization.
8.4 Employee's Acknowledgments and Agreements. Employee acknowledges and
agrees that the products developed by Innovex are or are intended to be
marketed and licensed to Customers in various markets throughout the
world. Employee further acknowledges and agrees to the reasonableness of
the covenants contained in this Section 8, including the reasonableness
of the geographic area and duration of time which are part of said
covenant. Employee also acknowledges and agrees that this covenant will
not preclude Employee from becoming gainfully employed following
termination of employment with Innovex. Employee certifies that he is not
currently subject to a noncompetition agreement with a former employer
which prohibits him from working for Innovex.
8.5 Time Periods After a Change in Control. If Employee's employment
terminates pursuant to 5.3.1, the time periods in 8.2 and 8.3 shall be
extended from one year to 18 months.
9. Miscellaneous Provisions.
9.1 Remedies, Injunction. In the event of a breach or threatened breach by
Employee of any provision of this Agreement which could cause irreparable
injury and damage to Innovex not compensable by money damages, Employee
agrees that Innovex, in addition to and not in limitation of any other
rights, remedies or damages available to Innovex at law or in equity,
shall be entitled to injunctive and other equitable relief to prevent or
restrain any such breach by Employee or by Employee's partners, agents,
representatives, servants, employees, and/or any and all persons directly
or indirectly acting for or with Employee.
9.2 Severability. If any provisions of this Agreement are held to be invalid
or unenforceable in whole or in part, those provisions to the extent
enforceable and all other provisions shall nevertheless continue to be
valid and enforceable as though the invalid or unenforceable parts had
not been included in this Agreement. If any provision relating to the
time period or scope of a restriction shall be declared by a court of
competent jurisdiction to exceed the maximum time period or scope such
court deems reasonable and enforceable, then the time period or scope of
the restriction deemed reasonable and enforceable by the court shall
become and shall thereafter be the maximum time period or the applicable
scope of the restriction.
9.3 Governing Law. This Agreement shall be construed and enforced according
to Minnesota law, except where federal law applies. All legal actions
arising under this Agreement shall be instituted in, and both Innovex and
Employee consent to, the jurisdiction of the courts of Hennepin County,
Minnesota or the U.S. District Court for the District of Minnesota.
9.4 Survivability. The covenants and agreements of paragraphs 5 and 9, where
applicable, and paragraphs 6, 7 and 8 of this Agreement shall survive the
termination of the Employee's employment for any reason and shall not be
terminated by a Change in Control, including but not limited to any
merger or consolidation whereby Innovex is not the surviving corporation
or any transfer of substantially all the assets of Innovex, unless no
transferee or successor continues to carry on the business activities of
Innovex. In the event of any such event , the provisions of this
Agreement shall inure to the benefit of and be binding upon the
surviving, resulting or transferee entity .
9.5 Integration. The terms of this Agreement constitute the entire agreement
between Innovex and the Employee on the subjects addressed herein and
supersede any previous conflicting oral or written communications,
representations, policies or agreements. This Agreement amends and
replaces the Existing Agreement in its entirety.
9.6 Amendment or Termination. This Agreement may not be terminated, amended,
or modified in any way, except in writing signed by both Innovex and
Employee.
9.7 Waiver. Innovex's waiver or failure to enforce the terms of this
Agreement or any similar agreement in one instance shall not constitute a
waiver of its rights hereunder with respect to other violations of this
or any other agreement.
9.8 Tax Withholding. Innovex will withhold from any payment of benefits under
this Agreement (and forward to the appropriate taxing authority) any
taxes required to be withheld under applicable law.
9.9 Agreement Read, Understood and Deemed Reasonable. Employee has carefully
read and considered all provisions of this Agreement and agrees that all
of the restrictions set forth are reasonable and reasonably required for
the protection of Innovex's interests.
AGREED:
Dated:1/16/08 /s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
INNOVEX, INC.
Dated:1/16/08 /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Chairman of the Board
