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 December 31, 2008.
WHEREAS, the Employee and the Company entered into an Employment Agreement dated
as of October 19, 2005, as amended January 16, 2008 (the "Existing Agreement");
and
WHEREAS, 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 30% 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 30%
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 30% 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.
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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.
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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
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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. Innovex will make any
payment or reimbursement expenses no later than 10 days from the later
of the date the amount was incurred or the date the invoice was
submitted by Employee. No payment or reimbursement in any year shall
affect the amount of payment or reimbursement in any other year and
the right to the payment or reimbursement cannot be liquidated or
exchanged for any other benefit.
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;
provided, however, that prior to such notice, Employee had provided
written notice to the Board within 90 days of the occurrence of an
event constituting Good Reason, and Innovex had failed to cure any
breach (if capable of cure) within a reasonable period of time, not to
exceed 10 days from the date of the initial notice. 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
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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
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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.
5.8 Separation from Service. The phrases similar to "termination of
employment," "terminate employment" and "voluntary resignation" in the
Agreement shall be interpreted to mean a "separation from service'" as
defined in Treas. Reg. ss.1.409A-1(h), except Employee's service as a
member of the Board of Directors of Innovex (and any entity that is
part of a controlled group of which Innovex is a member) shall be
disregarded in determining whether a separation from service has
occurred.
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
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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
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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;
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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
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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. It is the intention of the parties that this
Agreement shall be exempt from the requirements of Code ss.409A as a
separation pay plan. Accordingly, all provisions herein shall be
construed to exempt such payment from the definition of "deferral of
compensation" that is subject to Code ss.409A in the least restrictive
manner necessary without any diminution in the value of the payments
to the Employee, so as to avoid the imposition of taxes and penalties
pursuant to Code ss.409A.
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: December 31, 2008 /s/Xxxxx Xxxxxxxxxx
-------------------
Xxxxx Xxxxxxxxxx
INNOVEX, INC.
Dated: December 31, 2008 /s/ Xxxxx Acres
---------------
By: Xxxxx Acres
Its: Senior Vice President and CFO
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