Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment 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/Xxxxx Xxxxxxxx]
("Employee") as of February 16, 2006.
WHEREAS, the Employee has been employed as Innovex's Senior Vice-President since
[January 12, 2004/May 25, 1992], Innovex desires to continue to employ the
Employee in these capacities and the Employee agrees to continue his employment
under the terms and conditions of this 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.
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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
[Senior Vice-President & Chief Operating Officer/ Senior Vice President,
Development and Sales], reporting to the Chief Executive Officer ("CEO")
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/new product development, customer sales and
service] and such other duties and responsibilities as may be assigned
to him by the CEO. Employee shall faithfully and diligently do and
perform all such acts and duties and furnish such services for Innovex
as the CEO or 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
[$9,333.33 ($224,000 annualized)/ $8,333.33 ($200,000 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. Employee's 2005 bonus plan is attached as Exhibit 1. 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.
5. Termination of Employment.
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5.1 Voluntary Resignation. The Employee may resign his employment with
Innovex for any reason effective upon 30 days' advance written notice to
the CEO. 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 12 months following a Change in Control,
he will receive (a) continuation of his base salary for 12 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).
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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, 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.
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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.
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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.
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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 protectible 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.
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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.
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.
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AGREED:
Dated:_____________ --------------------------------------------
[Xxxxx Xxxxxxxxxx/Xxxxx Xxxxxxxx]
INNOVEX, INC.
Dated:_____________ /s/ Xxx Xxxxx
--------------------------------------------
Xxx Xxxxx
Chairman of the Compensation Committee
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