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EXHIBIT S
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (the "Agreement") is made and entered this
10th day of February 1997, by and between JOHNSON & JOHNSON, a New Jersey
corporation ("J&J"), and SUNDER H. MALKANI, an individual (the "Stockholder").
W I T N E S S E T H
WHEREAS, the Stockholder is a stockholder of Innotech, Inc., a Delaware
corporation (the "Company"), and is also a key executive officer of the Company;
and
WHEREAS, pursuant to, and subject to the terms and conditions of, an
Agreement and Plan of Merger with the Company (the "Merger Agreement"), J&J
through a subsidiary ("Sub") will make a tender offer (the "Offer") to purchase
all the issued and outstanding shares of capital stock of the Company (the
"Shares"), and the now existing stockholders of the Company will receive a cash
payment per share constituting a significant premium to the market price of the
stock of the Company; and
WHEREAS, the Board of Directors of the Company has adopted resolutions
approving the Offer and the subsequent merger of Sub into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement; and
WHEREAS, following the Merger, J&J intends, or intends to cause Sub, to
continue to conduct and operate the business of the Company; and
WHEREAS, as an inducement to J&J to enter into the Merger Agreement and to
acquire the Company stock owned by (and to pay the amount set forth in Section
7.04(a) of the Merger Agreement in respect of the Company stock options held by)
the Stockholder, the Stockholder is entering into this Agreement:
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
1. Noncompetition. (a) The Stockholder agrees that for the period of
the Stockholder's employment following the Closing with J&J, or any
subsidiary thereof, and for two (2) years following the termination of such
employment (regardless of the circumstances under which such employment is
terminated) (such period, the "Noncompetition Period"), the Stockholder
will not have any Relationship (as defined below) with any entity,
including but not limited to any corporation, partnership, limited
liability company, sole proprietorship or unincorporated business (whether
or not for profit) (such entity, a "Business") in the course of which
Relationship the Stockholder engages in or assists such Business with
respect to the ophthalmic spectacle lens business (which business shall not
include lens analyzing equipment) ("Lens Products and Services").
(b) In the event that the Company terminates the Stockholder's
employment without Cause (as defined below), the Company shall (x) continue
to pay such Stockholder through the end of the Noncompetition Period
(payable in accordance with the regular payroll practices of the Company)
an annual amount equal to the salary that the Stockholder was receiving
immediately prior to such termination and (y) continue to provide all
benefits generally available under employee benefit plans or the practices
and policies of the Company at the time of such termination (other than
stock option or similar plans), determined in accordance with the
provisions of such plans, practices and policies. "Cause" shall mean (i)
Stockholder's conviction of, guilty plea to, or confession of guilt of, a
felony, (ii) dishonest or illegal conduct or misconduct or malfeasance by
the Stockholder in the performance of services for or on behalf of the
Company, or other conduct detrimental to the business, operations or
reputation of the Company, regardless of whether such conduct is within the
scope of Stockholder's duty, (iii) failure by the Stockholder to perform
his duties, as assigned to him by the President from time to time, provided
that such duties are not inconsistent with the Stockholder's current
duties, or
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(iv) violation by the Stockholder of the covenants set forth in this
Agreement; provided, however, that "Cause" shall, in no circumstances mean
the failure by the Stockholder to relocate in the event the Company
relocates its place of business and the Stockholder is unable to perform
his duties without so relocating.
(c) The Stockholder will be deemed to have a relationship (a
"Relationship") with a Business if such Stockholder (i) owns, manages,
operates, joins, or is employed by such Business, (ii) is a director,
member, agent, shareholder, owner or general partner of such Business,
(iii) acts as a consultant or advisor to such Business or (iv) controls or
participates in the ownership, management or operation of, such Business;
provided however, that nothing herein shall prevent the purchase or
ownership by the Stockholder (and his "associates" as defined by the
Securities and Exchange Commission's Proxy Rules) of an interest in a
Business that constitutes less than 5% of the outstanding equity securities
of such Business.
2. Nonsolicitation of Clients. During the Noncompetition Period, the
Stockholder agrees that he will not directly or indirectly provide Lens
Products and Services (whether as an employee, consultant, advisor or
otherwise) to any entity that at such time is, or at any time in the twelve
(12) month period prior to such time had been, a customer of the Company
unless (a) the Stockholder is employed by J&J or a subsidiary thereof and
such solicitation is made on behalf of, or payment for the performance of
such services is made to, such employer or (b) the Stockholder shall have
previously obtained a written release specifically permitting an action
that would otherwise be prohibited by the provisions of this Paragraph 2.
3. Nonsolicitation of Employees and Consultants. During the
Noncompetition Period, the Stockholder agrees that he will not directly or
indirectly solicit, influence, entice or encourage any person who at such
time is, or who at any time in the three (3) month period prior to such
time had been, an employee of or consultant to the Company or J&J to cease
or curtail his or her relationship therewith.
4. Nondisruption; Other Matters. During the Noncompetition Period,
the Stockholder agrees that he will not directly or indirectly interfere
with, disrupt or attempt to disrupt any past, present or prospective
relationship, contractual or otherwise, between the Company or J&J, on the
one hand, and any of their respective customers, suppliers or employees, on
the other hand.
5. Confidential Information. The Stockholder covenants and agrees
that, during the Noncompetition Period, he shall not use for his own behalf
or divulge to any other person or entity any confidential information or
trade secrets of or relating to the Company. The Stockholder further
covenants and agrees that, during the Noncompetition Period, he shall not
take or remove from the property of the Company any documentary copies,
records or materials containing any such confidential information or trade
secrets. As used herein, confidential information shall consist of all
information, knowledge or data relating to the Company or J&J (including
all information relating to inventions, production methods, customer and
prospective customer lists, prices and trade practices) which is not in the
public domain or otherwise published or publicly available.
6. Equitable Relief. The Stockholder acknowledges and agrees that
J&J's remedies at law for breach of any of the provisions of this Agreement
would be inadequate and, in recognition of this fact, the Stockholder
agrees that, in the event of such breach, in addition to any remedies at
law it may have, J&J, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other
equitable remedy that may be available. The Stockholder further
acknowledges that should the Stockholder violate any of the provisions of
this Agreement, it will be difficult to determine the amount of damages
resulting to J&J or its affiliates and that in addition to any other
remedies it may have J&J shall be entitled to temporary and permanent
injunctive relief.
7. Merger Agreement. J&J represents that concurrently with the
execution of this Agreement, J&J is executing the Merger Agreement, and
subject to the terms of the Merger Agreement will cause the Offer to be
commenced as provided in the Merger Agreement.
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8. Acknowledgement. Each of the Stockholder and J&J acknowledges and
agrees that the covenants and agreements contained in this Agreement have
been negotiated in good faith by the parties, and are reasonable and are
not more restrictive or broader than necessary to protect the interests of
the parties hereto, and would not achieve their intended purpose if they
were on different terms or for periods of time shorter than the periods of
time provided herein or applied in more restrictive geographical areas than
are provided herein. Each party further acknowledges that J&J would not
enter into the Merger Agreement and the transactions contemplated thereby
(including, without limitation, the purchase of the Shares held by the
Stockholder and payment in respect of the stock options granted to him by
the Company) in the absence of the covenants and agreements contained in
this Agreement and that such covenants and agreements are essential to
protect the value of the Company.
9. Reasonableness of Provisions; Severability. The Stockholder
expressly understands and agrees that although both he and J&J consider the
covenants and agreements contained in this Agreement, including the
restrictions contained in Paragraphs 1, 2, 3, 4, and 5, to be reasonable,
if a final judicial determination is made by a court of competent
jurisdiction that the time or territory restrictions contained herein, or
any other provision or restriction contained herein, is an unenforceable
provision or restriction against the Stockholder, the provisions and
restrictions of this Agreement shall not be rendered void but shall be
deemed amended to apply as to such maximum time and territory and to such
maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds
that any provision or restriction contained in this Agreement is
unenforceable, and such provision or restriction cannot be amended so as to
make it enforceable, such finding shall not affect the enforceability of
any of the remaining provisions and restrictions contained herein, which
remaining provisions and restrictions shall be deemed severable from the
unenforceable provision or restriction and shall remain in full force and
effect.
10. Not an Employment Agreement. This Agreement is not, and nothing
in this Agreement shall be construed as, an agreement to provide employment
to the Stockholder. The provisions of Paragraphs 1, 2, 3, 4, and 5 of this
Agreement shall be operative regardless of the reasons for any termination
of the Stockholder's employment and regardless of the performance or
nonperformance by any party under any other section of this Agreement.
11. Governing Law. This Agreement is made under and shall be
governed by, construed in accordance with and enforced under the laws of
the State of New York, without regard to conflict of laws provisions of New
York law.
12. Entire Agreement. This Agreement together with the Merger
Agreement and the Stockholder Agreement (as defined in the Merger
Agreement) constitutes and contains the entire agreement and understanding
concerning the subject matter addressed herein between the parties, and
supersedes and replaces all prior negotiations and all agreements proposed
or otherwise, whether written or oral, concerning the subject matter
hereof, and the parties hereto have made no agreements, representations or
warranties relating to the subject matter of this Agreement that are not
set forth herein or in the Merger Agreement or the Stockholder Agreement.
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13. Notices. Any notice or demand hereunder shall be given in
writing to the address set forth below by personal service or registered or
certified mail, postage prepaid, return receipt requested, or overnight
courier:
If to J&J, to:
Johnson & Johnson
One Johnson & Johnson Plaza
New Brunswick, NJ 08933
Attention: General Counsel
If to the Stockholder:
Sunder H. Malkani
Such address may be changed by notice to the other party as provided
above. Notices given pursuant to this Paragraph shall be deemed effective
upon receipt.
14. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
15. Amendments: No Waiver. (a) No amendment or modification of this
Agreement shall be deemed effective unless made in writing and signed by
the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel to enforce any provision of
this Agreement, except by a statement in writing signed by the party
against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
16. Assignment. This Agreement may be assigned by J&J to any
affiliate of J&J or to any nonaffiliate of J&J that shall succeed to the
business and assets of the Company. In the event of any such assignment,
J&J shall cause such affiliate or nonaffiliate, as the case may be, to
assume the obligations of J&J hereunder, by a written agreement addressed
to the Stockholder, concurrently with any assignment with the same effect
as if such assignee were "J&J" hereunder. This Agreement is personal to the
Stockholder and the Stockholder may not assign any rights or delegate any
responsibilities hereunder.
17. Headings. The headings of paragraphs in this Agreement are
solely for convenience of reference and shall not control the meaning or
interpretation of any provision of this Agreement.
18. Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
19. Binding Effect; Benefit. This Agreement shall be binding upon
execution and shall become effective when J&J or a subsidiary acquires a
majority of the Shares. This Agreement shall thereafter continue in effect
and shall inure to the benefit of and be binding upon the parties hereto.
Nothing in this Agreement, express or implied, is intended to confer on any
person other than the parties hereto, and their respective successors, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first written above.
SUNDER H. MALKANI,
/s/ SUNDER H. MALKANI
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Name: Sunder H. Malkani
JOHNSON & JOHNSON,
by /s/ ROGER S. FINE
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Name: Roger S. Fine
Title:
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