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FORM# KV-1
[KV LOGO]
K-V PHARMACEUTICAL COMPANY
EMPLOYMENT AND CONFIDENTIAL INFORMATION AGREEMENT
This Agreement ("Agreement") is entered into on September 27, 1999,
between Xxxx X. Xxxxxxx ("Employee") and K-V PHARMACEUTICAL COMPANY, a
Delaware corporation ("KV").
In consideration of Employee's employment or continued employment by KV
and other valuable consideration, the receipt and sufficiency of which are
acknowledged, Employee agrees as follows:
1. AFFILIATES. KV has or may in the future have one or more subsidiaries
and/or affiliated companies (collectively referred to in the remainder of
this Agreement as the "Companies"). From time to time, KV and the Companies
may exchange or use facilities, technology and/or Confidential Information
(as that term is defined below) of the other. The covenants in this Agreement
are for the benefit and protection of KV and the Companies.
2. NATURE OF EMPLOYMENT. Employee is hereby employed by KV in the
position of Senior Vice President, Strategic Planning and Corporate Growth.
Employee acknowledges and agrees that his/her job title and/or responsibilities
may change from time to time. Employee further agrees that, at all times, (s)he
shall devote his/her full time and best efforts to performing all duties
reasonably assigned by KV.
3. COMPENSATION. As compensation for Employee's services to KV, Employee
shall receive a base salary at the rate of three hundred fifty thousand
dollars ($350,000,00) per year, payable at such intervals as KV pays its
other employees. In addition, Employee shall be entitled to participate in
the fringe benefits normally provided to other KV employees at comparable
employment levels. Employee's compensation shall be subject to KV's normal
compensation review.
4. TERM. The initial term of this Agreement shall begin on September 27,
1999, and continue until March 31, 2000, unless terminated sooner in
accordance with paragraph 5 of this Agreement. If not terminated sooner under
paragraph 5 hereof, this Agreement shall automatically renew for successive
one (1) year periods unless and until either party terminates this Agreement
pursuant to the provisions of paragraph 5. Termination of this Agreement by
either party, for any reason, shall in no manner affect the covenants
contained in paragraphs 6-11 of this Agreement.
5. TERMINATION. See substitute provision attached hereto as "Exhibit 1"
and incorporated herein by this reference. KV reserves the right to cease
the payment(s) described above if, in KV's reasonable determination, Employee
breaches this Agreement during the period of such payments. Notwithstanding
the foregoing, KV may terminate this Agreement without prior written notice
to Employee or any continuing compensation obligations if, in KV's reasonable
determination, Employee has breached this Agreement or Employee's continued
employment is detrimental to KV's best interests. By way of example, but not
limitation, Employee's continued employment will be deemed detrimental to
KV's best interests if Employee has engaged in dishonesty, disloyalty,
failure to perform his/her duties to KV or any act which may be harmful to
the reputation of KV and/or the Companies.
6. CONFIDENTIAL INFORMATION. In the course of performing his/her
responsibilities as an employee of KV, Employee has or may come into
possession of technical, financial or business information pertaining to KV
and/or the Companies which is not published or readily available to the
public, including, but not limited to, trade secrets, techniques, designs,
formulae, methods, processes, devices, machinery, equipment, inventions,
research and development projects, programs, plans and data, clinical
projects and data, plans for future developments, marketing concepts and
plans, pricing information, licensing agreements, and lists of or other
information pertaining to and/or received from employees, customers and/or
suppliers ("Confidential Information"). Employee acknowledges that the
Confidential Information is important to and greatly affects the success of
KV and the Companies in a competitive, worldwide marketplace. Employee
further agrees that while employed by KV and at all times thereafter,
regardless of how, when and why that employment ends, Employee shall hold in
the strictest confidence, and shall not disclose, duplicate and/or use for
himself/herself or any other person or entity any Confidential Information
without: (A) the prior written consent of an officer of KV, or (B) unless
required to do so in order to perform his/her responsibilities while employed
by KV.
7. PUBLICATION. Employee agrees not to publish or cause or permit to be
published any article, oral presentation or material related to KV and/or the
Companies, including any information related to any products or proposed
products, without obtaining the prior written consent of an officer of KV.
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8. NO OTHER CONTRACT. Except as listed below, Employee warrants that
(s)he is not bound by the terms of any other agreement, oral or written,
which would limit or preclude him/her from disclosing to KV and/or the
Companies any idea, invention, discovery or other information pertaining or
related to Employee's responsibilities as an employee of KV. Employee agrees
to promptly provide KV with a copy of any and all agreements listed below.
Employee further agrees not to disclose to KV or the Companies, or to seek to
induce KV or the Companies to use any confidential information, material or
trade secrets belonging to any other person or entity.______________________
____________________________________________________________________________
____________________________________________________________________________
9. RIGHT TO WORK PRODUCT. Any and all designs, inventions, discoveries,
improvements, specifications, technical data, reports, business plans and
other embodiments of Employee's work conceived, made, discovered and/or
produced by Employee during the period of his/her employment by KV, either
solely or jointly with others: (A) in the course of performing his/her duties
for KV, (B) which are based, in whole or part, upon Confidential
Information, the resources, supplies, facilities or business, technical or
financial information of KV and/or the Companies, or (C) which relate to the
business or the anticipated research and development of KV, the Companies or
both ("Work Product"), shall be the sole property of KV and available to KV
at all times. Employee agrees to promptly disclose and assign and hereby
assigns to KV, without royalty or other additional consideration, any and all
of Employee's proprietary rights to any and all Work Product. Employee
further agrees that during his/her employment by KV and after that employment
ends, regardless of how, when and, why (s)he shall, upon KV's request: (A)
execute any and all applications for copyright and/or patent of Work Product
which may be prepared for his/her signature, (B) assign to KV any and all
such applications, copyrights and patents relating thereto, and (C) assist KV,
as XX xxxxx necessary, in order for KV to apply for, defend or enforce any
copyright or patent. KV shall pay all expenses of preparing, filing and
prosecuting any such application and of obtaining such copyrights and
patents. In the event Employee is not employed by KV at the time any request
for assistance is made by KV, KV shall pay Employee a reasonable payment for
Employee's time and shall schedule any needed assistance so as not to
interfere with Employee's then current employment and obligations.
10. RETURN OF PROPERTY. Upon the termination of Employee's employment
with KV, regardless of how, when and why that employment ends, Employee shall
immediately deliver to KV all property of KV and all property of the
Companies, including, but not limited to, all records and documents
(including all copies) containing or relating to Confidential Information.
11. RESTRICTIVE COVENANTS. The parties acknowledge and agree that at the
time this Agreement was entered, the business of KV and the Companies
included, but was not limited to, the contract or private label manufacture
for other marketers or distributors of pharmaceutical preparations or
specialty chemicals, and the research, development, manufacture, sale and
distribution of drug delivery products and technology. Employee agrees that
during the thirty-six (36) consecutive months immediately following
termination of Employee's employment with KV, regardless of how, when or why
that employment ends, Employee shall not in any manner or in any capacity,
directly or indirectly, for himself/herself or any other person or entity,
actually or attempt:
(A) to perform any of the same or similar responsibilities as Employee
performed for KV under this Agreement, on behalf of or for any business
that engages in the same or similar business as:
(i) KV anywhere KV has conducted business, or
(ii) The Companies anywhere the Companies have conducted business
during the twenty-four (24) months immediately preceding termination of
employment; or
(B) To interfere with or take away:
(i) any customer of KV that has conducted business with KV, or
(ii) any customer of the Companies that has conducted business with
the Companies during the twenty-four (24) months immediately preceding
termination of employment; or
(C) to interfere with any of the suppliers of KV and/or the Companies,
including, without limitation, reducing in any material way the
willingness or capability of any supplier to continue supplying KV with
its and/or the Companies with their present or contemplated
requirements; or
(D) to solicit or interfere with the relationship between KV and any of
its employees or agents, and/or the Companies and any of their
employees or agents; or
(E) to acquire any interest in any business that engages in the same or
similar business as:
(i) KV anywhere KV has conducted business, or
(ii) the Companies anywhere the Companies have conducted business
during the twenty-four (24) months immediately preceding termination of
employment.
Employee further agrees that (s)he shall not engage in any of the activities
listed above while (s)he is employed by KV.
Employee acknowledges and agrees that his/her experience, knowledge and
capabilities are such that (s)he can obtain employment in unrelated
pharmaceutical, chemical, food, industrial, household, confectionery or other
businesses,
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and that the enforcement of this paragraph 11 by way of injunction would not
prevent Employee from earning a livelihood. Employee further agrees that if
(s)he has any question(s) regarding the scope of activities restricted by
this paragraph 11, (s)he shall, to avoid confusion or misunderstanding,
submit the question(s) in writing to an officer of KV for a written response
by KV. Employee additionally agrees to keep KV advised of the identity of
his/her employer (including any unit or division to which Employee is
assigned), his/her work location and his/her job responsibilities during the
period covered by this paragraph 11.
12. INVESTMENT SECURITIES. Anything to the contrary notwithstanding,
nothing in this Agreement shall limit the right of Employee as an investor to
hold or to acquire the stock or other investment securities of any business
entity that is registered on a national securities exchange or regularly
traded on a generally recognized over-the-counter market, so long as
Employee's interest of any such business entity does not exceed five percent
(5%) of the ownership of that business entity.
13. MATERIAL BREACH. Any breach of this Agreement shall be a material
breach of this Agreement.
14. EMPLOYEE CONSENT. In order to preserve the rights under this
Agreement of KV and the Companies, KV and/or the Companies may advise any
third party with whom Employee may consider, establish or contract a
relationship of the existence of this Agreement and of its terms. KV and the
Companies shall have no liability for so acting.
15. CONTROLLING LAW. This Agreement shall be construed in accordance with
the laws of the State of Missouri. The parties agree that any controversy
arising with respect to this Agreement shall fall under the exclusive
jurisdiction of the Circuit Court of the County of St. Louis, Missouri, and
each party hereby consents to the jurisdiction of that court.
16. REMEDIES. Employee agrees that the promises in this Agreement are
reasonable and necessary to protect the legitimate business interests of KV
and the Companies, that any violation by Employee of any of the promises in
this Agreement would result in great damage and irreparable injury to KV
and/or the Companies, and that KV and/or the Companies have the right to any
and all legal and/or equitable remedies available for breach of this
Agreement. Employee further agrees that enforcement by KV and/or the
Companies of the promises contained in this Agreement by way of injunction
would not prevent Employee from making a living.
17. SEVERABILITY. In the event any whole or partial provision in this
Agreement is deemed unenforceable, it shall not invalidate the remaining
whole or partial provisions of this Agreement. In addition, the parties have
attempted to limit Employee's right to compete only to the extent necessary
to protect KV from unfair competition. Consequently, the parties further
agree that if any whole or partial restrictive covenant in this Agreement is
deemed unenforceable because overly broad in geographic scope, activity or
time duration, that provision shall be automatically modified so as to be
enforceable to the maximum extent reasonable.
18. ASSIGNMENT. This Agreement is not assignable by Employee, and shall
be binding upon Employee and Employee's heirs, executors and legal and/or
personal representatives. This Agreement is assignable by KV, and shall inure
to the benefit of KV, its successors and assigns.
19. NONWAIVER. Failure of KV and/or the Companies to exercise any of
its/their rights in the event Employee breaches any of the promises in this
Agreement shall not be construed as a waiver of such a breach or prevent KV
and/or the Companies from later enforcing strict compliance with the promises
in this Agreement.
20. MODIFICATION. This Agreement contains the parties' complete
agreement, and supersedes any other agreement, oral or written, pertaining to
the subject matter of this Agreement. This Agreement may be altered, amended
or revoked at any time only by a writing signed by both parties.
21. ACKNOWLEDGMENT. Employee agrees that: (A) (s)he fully understands
his/her right to discuss all aspects of this Agreement with legal or personal
advisors of his/her choice, (B) to the extent (s)he desired, (s)he has done
so, (C) (s)he has carefully read and fully understands all of the provisions
of this Agreement, and (D) (s)he has voluntarily entered into this Agreement.
IN WITNESS WHEREOF, Employee and KV have executed this Agreement on the
day and year first written above.
EMPLOYEE COMPANY
/s/ Xxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxxxx
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Title VP Finance
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KV Pharmaceutical
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KV PHARMACEUTICAL COMPANY
EMPLOYMENT AND CONFIDENTIAL INFORMATION AGREEMENT
EXHIBIT 1
During the first twelve (12) months of employment, Employee may terminate
this Agreement, for any reason, by giving KV one hundred eighty (180) days
advance written notice. KV may, at its sole discretion, elect to have
Employee cease work at any time during this one hundred eighty (180) day
notice period and in such event KV's obligation to provide Employee with
compensation and benefits shall cease when Employee ceases work. Any decision
by KV to have Employee cease work at any time during the foregoing one
hundred eighty (180) day notice period shall not be construed as a
termination of this Agreement by KV.
During the first twelve (12) months of employment, KV may terminate this
Agreement for any reason, including and not limited to cause, by giving
employee thirty (30) days advance written notice. KV may, at its sole
discretion, elect to pay Employee in lieu of having Employee continue to work
during this thirty (30) day notice period. If KV exercises this right and
option, it shall pay Employee, on KV's regularly scheduled paydays and in
accordance with KV's regular pay practices, Employee's regular wages for this
thirty (30) day notice period.
Following the first twelve (12) months of employment, either party may
terminate this Agreement, for any reason, by giving the other party one
hundred twenty (120) days advance written notice. KV may, at its sole
discretion, elect to pay Employee in lieu of having Employee continue to work
during this one hundred twenty (120) day notice period. If KV exercises this
right and option, it shall pay Employee, on KV's regularly scheduled paydays
and in accordance with KV's regular pay practices, Employee's regular wages
for any portion of the one hundred twenty (120) day notice period Employee is
not required to work, less usual withholdings, and offset by compensation
Employee receives from other full-time non-temporary employment.
