Exhibit 10(dd)
[PARTICLE DYNAMICS logo] EMPLOYMENT AND CONFIDENTIAL INFORMATION AGREEMENT
This Agreement ("Agreement") is entered into on May 5, 2003 between XXXX
X. XXXXX ("Employee") and PARTICLE DYNAMICS, INCORPORATED, a wholly owned
subsidiary of KV PHARMACEUTICAL COMPANY ("KV"), a Delaware corporation
("Employer").
In consideration of Employee's employment or continued employment by
Employer and other valuable consideration, the receipt and sufficiency of
which are acknowledged, Employee agrees as follows:
1. AFFILIATES. Particle Dynamics, Inc. and/or KV have or may in the future
have one or more parents, subsidiaries and/or affiliated companies
(collectively referred to in the remainder of this Agreement along with
Particle Dynamics, Inc. and KV as the "Companies"). From time to time,
Employer and the Companies may exchange or use facilities, technology and/or
Confidential Information (as that term is defined in Paragraph 6 below) of
the other. The covenants in this Agreement are for the benefit and protection
of the Employer and the Companies.
2. NATURE OF EMPLOYMENT. Employee is hereby employed by Employer in the
position of PRESIDENT, PARTICLE DYNAMICS, INC. 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
Employer.
3. COMPENSATION. As compensation for Employee's services to Employer, Employee
will receive a base salary at the rate of TWO HUNDRED TWENTY FIVE THOUSAND
dollars per year ($225,000.00), payable at such intervals as Employer pays its
other employees at comparable employment levels. Employee will be entitled to
participate in the fringe benefits normally provided to other employees at
comparable employment levels. Employee's compensation will be subject to
Employer's normal compensation review.
4. TERM. The initial term of this Agreement shall begin on MAY 5, 2003, and
continue until MARCH 31, 2004, unless terminated sooner in accordance with
this Agreement. If not terminated sooner, this Agreement will automatically
renew for successive one (1) year periods unless and until either party
terminates this Agreement. Termination of this Agreement by either party, for
any reason, will in no manner affect the covenants contained in Sections 6-11
of this Agreement.
5. TERMINATION.
A. Employee may terminate this Agreement, for any reason, with one
hundred twenty (120) calendar days advance written notice. Employer may elect
to have the Employee cease work at any time during the notice period for any
reason, including without limitation, the reasons set forth in Paragraph 5C
below. In such event, Employer's obligation to provide Employee with
compensation and benefits will end when Employee ceases to work. Employer's
exercise of this option will not be construed as a termination by Employer.
B. Employer may terminate this Agreement for any reason by giving the
Employee sixty (60) calendar days advance written notice. Employer may, in its
sole discretion, either permit Employee to work during the notice period, or
pay Employee in lieu of having Employee continue to work. If Employer
exercises this right and option, it shall pay Employee, on Employer's
regularly scheduled paydays and in accordance with Employer's regular pay
practices, either: (A) Employee's regular weekly compensation for the notice
period or (B) one-half (1/2) of Employee's regular weekly compensation for a
period of twice the notice period. Employer reserves the right to cease the
payment(s) described above if, in Employer's reasonable determination,
Employee breaches this Agreement during the period of such payments. If
Employer elects to pay Employee in lieu of Employee continuing to work,
Employer will pay Employee's regular wages for the notice period, less
whatever compensation Employee receives from other full-time employment during
the notice period. Notwithstanding the foregoing, Employer may terminate this
Agreement without prior written notice to Employee or any continuing
compensation obligations if, in Employer's reasonable determination, Employee
has breached this Agreement or Employee has engaged in dishonesty, disloyalty,
failure to perform his/her duties to Employer or any act which may be harmful
to the reputation of Employer and/or the Companies.
C. Employee agrees to faithfully, diligently, and to the best of her/his
ability, experience and talents, perform all of the duties required prior to
notice if Employee continues to work during the notice period. In all
situations, Employee will comply with the terms of this Agreement and will
engage in honest, faithful and loyal conduct during the notice period.
Form PDI-1 Rev 3/03
6. CONFIDENTIAL INFORMATION. In the course of performing his/her
responsibilities, as well as through training pertaining to the business of
the Companies, Employee has or may come into possession of technical,
financial, sales and/or other business information pertaining to Employer
and/or the Companies which is not published or readily available to the
public, and from which the Employer and/or the Companies may derive economic
value, actual or potential, 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 Employer, employees of
the Companies, customers and/or supplies (collectively referred to as
"Confidential Information"). Employee acknowledges that the Confidential
Information is important to and greatly affects the success of the Employer
and the Companies in a competitive marketplace. Employee further agrees that
while employed by Employer or any of the Companies, and at all times
thereafter, regardless of how, when and why that employment ends, Employee
will hold in the strictest confidence, and will not directly or indirectly
disclose, duplicate and/or use for himself/herself or any other person or
entity any Confidential Information without the prior written consent of an
officer of Employer, or unless required to do so in order to perform his/her
responsibilities while employed by Employer.
7. PUBLICATION. It is expressly agreed between Employee and the Companies that
Employee will hold in confidence and not make use of any Confidential
Information at any time except as required in the course and performance of
the Employee's employment with Employer or as otherwise agreed to in writing
by the Corporate Communications Officer of Employer. Employee agrees not to
publish or cause or permit to be published or otherwise disclose any article,
oral presentation or material related to Employer and/or the Companies,
including without limitation the Employer's and/or the Companies' Confidential
Information and information related to any products or proposed products,
without obtaining the prior written consent of the Corporate Communications
Officer.
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 Employer and/or the Companies any
idea, invention, discovery or other information pertaining or related to
Employee's responsibilities. Employee agrees to promptly provide Employer with
a copy of any and all agreements listed below, and other agreements which may
prohibit or restrict his/her employment with Employer. Employee further agrees
not to disclose to Employer or the Companies, or to seek to induce Employer 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 Employer,
either solely or jointly with others and in the course of performing his/her
duties for Employer, which are based, in whole or part, upon Confidential
Information, the resources, supplies, facilities or business, technical or
financial information of Employer and/or the Companies, or which relate to the
business, the research or the anticipated research and development of Employer
and/or the Companies (collectively referred to herein as "Work Product"), will
be the sole property of Employer and available to Employer at all times.
Employee agrees to promptly disclose and assign and hereby assigns to
Employer, 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 Employer and after that employment
ends, regardless of how, when and why, (s)he will, upon Employer'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 Employer
and/or the Companies any and all such applications, copyrights and patents
relating to Work Product, and (C) assist Employer and/or the Companies, as
Employer and/or the Companies deem necessary, in its application, defense and
enforcement of any copyright or patent relating to Work Product. Employer will
pay all expenses of preparing, filing, prosecuting and defending any such
application and of obtaining such copyrights and patents. In the event
Employer does not employ Employee at the time any request for such assistance
is made by Employer, Employer will pay Employee a reasonable amount for
Employee's time and will 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
Employer, regardless of how, when and why that employment ends, Employee will
immediately deliver to Employer all property of Employer and all property of
the Companies, including, without limitation, all Company equipment, records,
documents and computer disks (including all copies). If Employee fails to
return to Employer all property of Employer and the Companies, Employee
authorizes Employer to deduct from his/her final paycheck such amount to cover
the loss, to the extent permitted by applicable law.
Form PDI-1 Rev 3/03
Nothing contained herein shall limit Employer's right to recover the full
value of such property from Employee in any proceeding.
11. RESTRICTIVE COVENANTS.
A. The parties agree that at the time this Agreement was entered, the
business of Employer was the development, manufacture, marketing and/or sale
of directly compressible and/or microencapsulated raw materials used in the
processing of nutritional, pharmaceutical, personal care and/or food products
(hereafter "the business of Employer"). Employee agrees that during the
thirty-six (36) consecutive months immediately following termination of
Employee's employment with Employer, regardless of how, when or why that
employment ends, Employee will not in any manner or in any capacity, directly
or indirectly, for himself/herself or any other person or entity, actually or
attempt to do any of the following:
1. Perform any of the same or similar responsibilities as Employee
performed for Employer on behalf of a competitor that engages in
the business of Employer.
2. Solicit, contact, divert, interfere with or take away any customer
of Employer and/or the Companies that has conducted business or
negotiations with Employer or the Companies during the twenty-four
(24) months immediately preceding termination of employment.
3. Interfere with any of the suppliers of Employer and/or the
Companies, including, without limitation, reducing in any material
way the willingness or capability of any supplier to continue
supplying Employer and/or the Companies with their present or
contemplated requirements.
4. Solicit or interfere with the Employer's and/or the Companies'
relationship with any of their employees or agents, or provide the
names of any of Employer's and/or the Companies' employees or
agents, to any third party.
5. Acquire any interest in any business that markets or sells any
product or product line that is competitive with any product or
product line Employer sold during the twenty-four (24) months
immediately preceding termination of employment, except as
permitted in Section 12 below.
B. Employee further agrees that (s)he will not engage in any of the
activities listed above while employed by Employer.
C. Employee acknowledges and agrees that his/her experience, knowledge
and capabilities are such that (s)he can obtain employment in unrelated
pharmaceutical, chemical, nutritional, food, industrial, household,
confectionery or other businesses, 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 Section 11, (s)he will, to avoid confusion or
misunderstanding, submit the question(s) in writing to the Director, Human
Resources of the Employer for a written response. Employee additionally agrees
to promptly inform and keep the Employer 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 title and work responsibilities during the
period covered by this Section 11.
D. Employee agrees to fully disclose the terms of this Agreement to any
person or entity by which or with whom (s)he may hereafter become employed or
to which (s)he may hereafter render services, and agrees that Employer may, if
desired, send a copy of this Agreement, or otherwise make the provisions
hereof known, to any such entity.
E. In the event of a breach by Employee of any of the terms of Section
11, the period of time the obligations hereunder apply will be automatically
extended for a period of time equal to the length of time Employee is in
breach.
12. INVESTMENT SECURITIES. Nothing in this Agreement will limit the right of
Employee, as an investor, to hold or 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 in any such business entity does not
exceed five percent (5%) of its ownership.
13. MATERIAL BREACH. Any breach of this Agreement by the Employee will be a
material breach.
14. EMPLOYEE CONSENT. In order to preserve their rights under this Agreement,
Employer and/or the Companies may advise any third party with whom Employee
may consider, establish or contract an employment, consulting or service
relationship of the existence of this Agreement and of its terms. Employee
agrees that Employer and the Companies will have no liability for so acting.
Form PDI-1 Rev 3/03
15. CONTROLLING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of Missouri and the rights and duties of
the parties pursuant to this Agreement or by operation of law by reason of any
matter relating to this Agreement, will be governed by the laws of the State
of Missouri, without regard to conflicts of laws principles. The parties agree
that any controversy arising with respect to this Agreement will fall under
the exclusive jurisdiction of the Circuit Court of the County of St. Louis,
Missouri, and each party hereby consents to the jurisdiction and venue of that
court.
16. REMEDIES. Employee agrees that the promises in this Agreement are
reasonable and necessary to protect the legitimate business interests of
Employer and the Companies, and that any violation by Employee of any of the
promises in this Agreement would result in great damage and irreparable
injury to Employer and/or the Companies. Employee further agrees that if
Employee were to violate the covenants in Section 11 of this Agreement, the
unauthorized disclosure of Confidential Information would be inevitable and
result in great damage and irreparable harm. Employee agrees that in the event
of a breach of this Agreement, the Employer and/or the Companies have the
right to seek any and all legal and/or equitable remedies available for any
breach of this Agreement, including, but not limited to, enforcement by
injunction including ex parte temporary restraining order relief, in view of
such irreparable harm. Employee agrees that enforcement by way of Injunction
would not prevent Employee from making a living as described in Paragraph 11C.
Employer is entitled to its attorneys' fees, costs, and any related expenses
incurred in the enforcement of this Agreement in the event of any breach by
Employee.
17. SEVERABILITY. In the event any provision in this Agreement is deemed
unenforceable, in whole or in part, it will not invalidate either the balance
of the provisions or the remaining provisions of this Agreement. In addition,
the parties have attempted to limit Employee's right to compete only to the
extent necessary to protect Employer from unfair competition. Consequently,
the parties further agree that if any restrictive covenant in this Agreement
is deemed unenforceable, in whole or in part, 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 will be
binding upon Employee and Employee's heirs, executors and legal and/or
personal representatives. This Agreement is assignable by Employer, and will
inure to the benefit of Employer, its successors and assigns. If Employee
subsequently accepts employment with one of the Companies, this Agreement will
be automatically assigned to the employing Company without additional covenant
or notice to Employee. In the event of this or any other assignment, sale,
merger, or other change in the ownership or structure of Employer, the
resulting entity will step into the place of the Employer under this Agreement
without additional covenant or notice to Employee. If the Agreement is
assigned, the term "Employer" will mean the then-employing Company and the term
"Companies" will mean the then-employing Company's parents, subsidiaries and
affiliates.
19. NONWAIVER. Failure of Employer 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
Employer 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 (s)he fully understands his/her right
to discuss all aspects of this Agreement with the legal or personal advisors
of his/her choice, and warrants that, to the extent (s)he desired, (s)he has
done so, (s)he has carefully read and fully understands all of the provisions
of this Agreement, and (s)he has voluntarily entered into this Agreement.
IN WITNESS WHEREOF, Employee and Employer have executed this Agreement on the
day and year first written above.
EMPLOYEE EMPLOYER
/s/ Xxxx X. Xxxxx By /s/ Xxxxxx X. Xxxxxxxx
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Form PDI-1 Rev 3/03
