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EXHIBIT L
EMPLOYMENT AGREEMENT, dated as of April 1, 1996, between Innotech, Inc., a
corporation organized under the laws of the State of Delaware ("Employer"), and
Jo Ann Swasey ("Executive").
WHEREAS, Executive desires to provide services to Employer and Employer
desires to retain the services of Executive;
WHEREAS, Employer and Executive desire to formalize the terms and
conditions of Executive's employment with Employer.
NOW, THEREFORE, Employer and Executive hereby agree as follows:
1. Employment.
1.1. General. Employer hereby employs Executive in the capacity
of Treasurer and Controller hereby accepts such employment, upon the
terms and subject to the conditions herein contained.
1.2. Duties. During the Executive's employment with Employer,
Executive will report directly to the Chief Operating Officer, will be
responsible for performing those duties consistent with the position of
treasurer and controller and for performing such other duties as may
from time to time be assigned to or requested of Executive by Employer's
Chief Operating Officer, President or Chairman of the Board and/or the
Board of Directors (the "Board"). Executive shall use her reasonable
efforts to perform faithfully and effectively such responsibilities.
Executive shall conduct all of her activities in a manner so as to
maintain and promote the business and reputation of the Employer.
1.3. Full-Time Position. Executive, during her employment with
Employer, will devote all of her business time, attention and skills to
the business and affairs of Employer.
1.4. Location of Employment. Executive's place of employment
during her employment with Employer shall be in Roanoke, Virginia.
Notwithstanding anything to the contrary in this Agreement, in the event
Employer requires Executive to relocate to a location outside of the
metropolitan Roanoke area and Executive fails to so relocate, such
failure shall not be deemed to be grounds for termination for "Cause"
(as defined in Section 3.2.3. hereof).
2. Compensation and Benefits.
2.1. Salary. Employer will pay to Executive, and Executive will
accept, as full compensation for any and all services rendered and to be
rendered by her to Employer in all capacities during the term of her
employment under this Agreement, (i) a base salary at the annual rate of
$78,000 or at such rate as the Board, in its sole discretion, may
hereafter from time to time grant to Executive ("Base Salary"), payable
in accordance with the regular payroll practices of Employer, and (ii)
the additional benefits hereinafter set forth in this Section 2.
2.2. Additional Compensation. Executive shall be entitled to
participate in the Employer's Management Incentive Compensation Plan
("MICP") commencing on the date hereof and shall be entitled to any
awards granted pursuant to the terms thereof as determined by the Board.
2.3. Executive Benefits.
2.3.1. Expenses. Employer will reimburse Executive for
expenses she reasonably incurs in connection with the performance of
her duties (including business travel and entertainment expenses),
all in accordance with Employer's policies with respect thereto.
2.3.2. Employer Plans. Executive will be entitled to
participate in such executive benefit plans and programs as Employer
may from time to time offer or provide to executives of Employer,
including, but not limited to, participation in life insurance,
health and accident and medical plans and programs.
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2.3.3. Vacation. Executive shall be eligible for paid vacation
leave, accruing one day of leave for each 5.2 weeks of employment, or
10 days of paid leave per year. Executive shall be able to accrue
vacation days from year to year in accordance with Employer's
published vacation policies. Such vacation time shall be at such
times as shall be approved by the Chief Operating Officer, President
or Chairman of Employer.
3. Termination of Employment.
3.1. Termination. Executive's employment by Employer pursuant to
this Agreement shall commence on the date hereof and will continue until
the first anniversary of the date of this Agreement. Thereafter, it will
continue for successive one-year periods commencing on April 1 of each
subsequent year; provided, however, that either party may elect to
terminate this Agreement as of March 31, 1997, or as of any subsequent
March 31, by written notice to such effect delivered to the other party
at least 90 days prior to such termination date. Upon termination of
Executive's employment with Employer pursuant to Sections 3.2.2 through
3.2.6 hereof, inclusive, Executive will be released from any duties and
obligations hereunder (except those duties and obligations set forth in
Sections 4, 5.11, 5.12 and 5.13 hereof), and the obligations of Employer
to Executive will be as set forth in Section 3.3 hereof.
3.2. Events of Termination. Executive's employment with Employer
will terminate upon the occurrence of any one or more of the following
events:
3.2.1. Death. In the event of the Executive's death,
Executive's employment will terminate on the date of death.
3.2.2. Disability. In the event of Executive's Disability (as
hereinafter defined), Employer will have the option to terminate
Executive's employment by giving a notice of termination to
Executive. The notice of termination shall specify the date of
termination, which date shall not be earlier than thirty (30) days
after the notice of termination is given. For purposes of this
Agreement, "Disability" means the inability of Executive to
substantially perform her duties hereunder for 90 days out of 180
consecutive days as a result of a physical or mental illness, all as
determined in good faith by the Board.
3.2.3. Termination by Employer for Cause. Employer may, at its
option, terminate Executive's employment for "Cause" based on
objective factors determined in good faith by a majority of the Board
by giving a notice of termination to Executive specifying the reasons
for termination, and if Executive shall fail to cure same within ten
(10) days of her receiving the notice of termination, her Employment
shall terminate at the end of such ten (10) day period; provided,
that in the event the Board in good faith determines that the
underlying reasons giving rise to such determination cannot be cured,
then said cure period shall not apply and Executive's employment
shall terminate on the date of Executive's receipt of the notice of
termination. "Cause" shall mean (i) Executive's conviction of, guilty
plea to, or confession of guilt of, a felony, (ii) dishonest or
illegal conduct or misconduct or malfeasance by Executive in the
performance of services for or on behalf of the Employer, or other
conduct detrimental to the business, operations or reputation of the
Employer, regardless of whether such conduct is within the scope of
Executive's duties, (iii) failure by Executive to perform her duties,
as assigned to her by the Chief Executive Officer, President,
Chairman or the Board from time to time, (iv) violation by Executive
of the covenants set forth in this Agreement, (v) the filing by or
against Executive of any bankruptcy, insolvency or reorganization
proceeding and (vi) except as may be permitted herein, disclosure of
Confidential Information (as defined in Section 4.1 hereof) without
the prior written consent of Employer.
3.2.4. Without Cause By Employer. Employer may, at its option,
terminate the Executive's employment for any reason whatsoever (other
than for the reasons set forth above in this Section 3.2) by giving a
notice of termination to Executive, and Executive's employment shall
terminate on the later of the date the notice of termination is given
or the date set forth in such notice of termination.
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3.2.5. Employer's Material Breach. Executive may, at her
option, terminate the Executive's employment upon Employer's material
breach of this Agreement by giving Employer written notice of such
breach (which notice will identify the manner in which Employer has
materially breached this Agreement) and if such breach is not cured
within thirty (30) days of Employer receiving such written notice,
the Executive's employment shall terminate at the end of such thirty
(30) day period. Employer's "Material Breach" of this Agreement shall
mean (i) the failure of Employer to pay Base Salary or additional
compensation hereunder in accordance with this Agreement or (ii) the
assignment to Executive without Executive's consent of duties
substantially inconsistent with her duties as set forth in Section
1.2 hereof. Notwithstanding the foregoing, Employer shall have the
right to remove Executive's title and duties as Treasurer of the
Corporation, and such change shall not be deemed to be a material
breach by Employer of this Agreement. Employer shall not be entitled
to the payments provided in Section 3.3.2 hereof solely as a result
of such change in title and duties.
3.2.6. Without Cause By Executive. Executive may terminate the
Executive's employment for any reason whatsoever by giving a notice
of termination to Employer. The Executive's employment shall
terminate on the earlier of (i) the date, following the date of the
notice of termination, upon which a suitable replacement for
Executive is found by Employer, or (ii) 5 days after the date of
receipt by Employer of the notice of termination.
3.3. Certain Obligations of Employer Following Termination of the
Executive's Employment. Following the termination of Executive's
employment under the circumstances described below, Employer will pay to
Executive in accordance with its regular payroll practices the following
compensation and provide the following benefits in full satisfaction and
final settlement of any and all claims and demands that Executive now
has or hereafter may have hereunder a gainst Employer:
3.3.1. Death; Disability. In the event that Executive's
employment is terminated by reason of Executive's death or
Disability, Executive or her estate, as the case may be, shall be
entitled to the following payments:
(i) Base Salary through the date the Executive's employment
is terminated; and
(ii) Employer shall pay to Executive or her estate, as the
case may be, the amounts and shall provide all benefits generally
available under the employee benefit plans, and the policies and
practices of Employer, determined in accordance with the
applicable terms and provisions of such plans, policies and
practices, in each case, as accrued to the date of termination or
otherwise payable as a consequence of Executive's death or
Disability.
3.3.2. Without Cause by Employer; Material Breach by
Employer. In the event that the Executive's employment is terminated
by Employer pursuant to Section 3.2.4 hereof or by Executive pursuant
to Section 3.2.5 hereof, Executive shall be entitled to the following
payments:
(i) Base Salary through the date the Executive's employment
is terminated; and
(ii) a pro-rata portion of any amounts Executive would be
entitled to under the MICP, if any, accrued on or prior to date
Executive's employment is terminated for any reason hereunder.
(iii) continuing payments of Base Salary, payable in
accordance with the regular payroll practices of Employer, for
six (6) months following the date of termination of Executive's
employment.
3.3.3. Termination by Executive Without Cause or by Employer
for Cause. In the event the Executive's employment is terminated by
Executive pursuant to Section 3.2.6 hereof or by Employer pursuant to
Section 3.2.3 hereof, Executive shall be entitled to no further
compensation or other benefits under this Agreement except as to that
portion of any unpaid Base Salary and other benefits accrued and
earned by her hereunder up to and including the effective date of
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such termination. In addition, Executive shall be entitled to receive
any additional compensation earned but not yet paid with respect only
to any calendar year prior to the calendar year of termination.
3.4. Nature of Payments. All amounts to be paid by Employer to
Executive pursuant to this Section 3 are considered by the parties to be
severance payments. In the event such payments are treated as damages,
it is expressly acknowledged by the parties that damages to Executive
for termination of employment would be difficult to ascertain and the
above amounts are reasonable estimates thereof.
4. Confidentiality; Nonsolicitation; Non-Compete.
4.1. Confidential Information Defined. "Confidential Information"
means any and all information (oral or written) relating to Employer or
any person controlling, controlled by, or under common control with
Employer or any of their respective activities, including, but not
limited to, information relating to: discoveries, innovations,
chemistry, patents, patent applications, know how, secret processes,
research, test procedures and results, machinery and equipment;
manufacturing processes; financial information; products; identity and
description of materials and services used; purchasing; costs; pricing;
customers and prospects; advertising, promotion and marketing;
trademarks and trademark registrations; copyrights and copyright
registrations; and information pertaining to any governmental
investigation, except such information which can be shown by Executive
to be generally in the public domain (such information not being deemed
to be in the public domain merely because it is embraced by more general
information which is in the public domain), other than as a result of a
breach of the provisions of Section 4.2 hereof.
4.2. Nondisclosure of Confidential Information. Executive will
not, at any time (other than as may be required or appropriate in
connection with the performance by her of her duties hereunder) directly
or indirectly, use, communicate, disclose or disseminate any
Confidential Information in any manner whatsoever (except as may be
required under legal process by subpoena or other court order; provided,
that, Executive will take reasonable steps to give Employer sufficient
prior written notice in order to contest such requirement or order).
4.3. Certain Activities. Executive will not while employed by
Employer and thereafter, directly or indirectly, hire, offer to hire,
entice away or in any other manner persuade or attempt to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee, customer,
prospective customer, supplier or shareholder or prospective shareholder
of Employer to discontinue or alter her or its relationship with
Employer.
4.4. Covenant Not to Compete. During the Executive's employment
and for a period of two (2) years after the termination of Executive's
employment, Executive will not directly or indirectly engage in
competition with Employer by being associated with any competitor of
Employer that sells or offers to sell any products or services which
compete with the products or services offered or sold by Employer or
being developed by Employer for sale at the time of termination of the
Executive, or induce or attempt to induce, directly or indirectly, any
then current or potential customer of Employer to cease doing business,
in whole or in part, with Employer or solicit business of any such
customer for any products or services of any competitor of Employer
which compete with the products or services offered or sold by Employer
or being developed by Employer for sale at the time of termination of
the Executive. Notwithstanding the foregoing, in the event Executive's
employment is terminated by Employer without Cause or due to Employer's
Material Breach of this Agreement, this Section 4.4 shall only apply to
the products or services offered or sold by Employer that relate to its
SurfaceCasting technology.
4.5. Injunctive Relief. Executive acknowledges and agrees that
(a) Employer will be irreparably injured in the event of a breach by
Executive of any of her obligations under this Section 4; (b) monetary
damages will not be an adequate remedy for any such breach; (c) Employer
will be entitled to injunctive relief, in addition to any other remedy
which it may have, in the event of any
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such breach, including, but not limited to, termination of the
Executive's employment for Cause; and (d) the existence of any claims
which Executive may have against Employer, whether under this Agreement
or otherwise, will not be a defense to the enforcement by Employer of
any of its rights under this Section 4.
4.6. Nonexclusivity and Survival. The covenants and obligations
of Executive contained in this Section 4 are in addition to, and not in
lieu of, any covenants and obligations which Executive may have with
respect to the subject matter hereof, whether by contract, as a matter
of law or otherwise, and such covenants and obligations, and their
enforceability, will survive any termination of Executive's employment
by either party and any investigation made with respect to the breach
thereof by Employer at any time.
5. Miscellaneous Provisions.
5.1. Severability. If in any jurisdiction any term or provision
hereof is determined to be invalid or unenforceable, (a) the remaining
terms and provisions hereof shall be unimpaired, (b) any such invalidity
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and (c) the
invalid or unenforceable term or provision shall, for purposes of such
jurisdiction, be deemed replaced by a term or provision that is valid
and enforceable and that comes closest to expressing the intention of
the invalid or unenforceable term or provision.
5.2. Execution in Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in
separate counterparts, each of which shall be deemed to be an original
but all of which taken together shall constitute one and the same
agreement (and all signatures need not appear on any one counterpart),
and this Agreement shall become effective when one or more counterparts
has been signed by each of the parties hereto and delivered to each of
the other parties hereto.
5.3. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed duly
given when delivered by hand, or when delivered if mailed by registered
or certified mail or private courier service, postage prepaid, return
receipt requested or via facsimile (with written confirmation of
receipt) as follows:
If to Employer, to:
Innotech, Inc.
5568 Airport Road
Roanoke, VA 24012
Attention: Dr. Ronald Blum, Chairman
Telefax No.: (703) 366-5177
Copy to:
Joel D. Zychick, Esq.
c/o Hertzog, Calamari & Gleason
100 Park Avenue
New York, NY 10017
Telefax No.: (212) 213-1199
If to Executive, to:
Ms. Jo Ann Swasey
Route 1, Box 18
Hardy, VA 24101
or to such other address(es) as a party hereto shall have designated
by like notice to the other parties hereto.
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5.4. Amendment. No provision of this Agreement may be modified,
amended, waived or discharged in any manner except by a written
instrument executed by Employer and Executive.
5.5. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings of the
parties hereto, oral or written, with respect to the subject matter
hereof.
5.6. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia
applicable to contracts made and to be wholly performed therein without
regard to its conflicts or choice of law provisions.
5.7. Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or
affect the meaning or interpretation of any of the terms or provisions
of this Agreement.
5.8. Binding Effect; Successors and Assigns. Executive may not
delegate her duties or assign her rights hereunder. This Agreement will
inure to the benefit of, and be binding upon, the parties hereto and
their respective heirs, legal representatives, successors and permitted
assigns.
5.9. Waiver, etc. The failure of either of the parties hereto to
at any time enforce any of the provisions of this Agreement shall not be
deemed or construed to be a waiver of any such provision, nor to in any
way affect the validity of this Agreement or any provision hereof or the
right of either of the parties hereto to thereafter enforce each and
every provision of this Agreement. No waiver of any breach of any of the
provisions of this Agreement shall be effective unless set forth in a
written instrument executed by the party against whom or which
enforcement of such waiver is sought, and no waiver of any such breach
shall be construed or deemed to be a waiver of any other or subsequent
breach.
5.10. Capacity, etc. Executive and Employer hereby represent and
warrant to the other that: (a) she or it has full power, authority and
capacity to execute and deliver this Agreement, and to perform her or
its obligations hereunder; (b) such execution, delivery and performance
will not (and with the giving of notice or lapse of time or both would
not) result in the breach of any agreements or other obligations to
which she or it is a party or she or it is otherwise bound; and (c) this
Agreement is her or its valid and binding obligation in accordance with
its terms.
5.11. Enforcement. If any party institutes legal action to
enforce or interpret the terms and conditions of this Agreement, the
prevailing party shall be awarded reasonable attorneys' fees at all
trial and appellate levels, and the expenses and costs incurred by such
prevailing party in connection therewith. Venue for any such action
shall exclusively be Roanoke, Virginia.
5.12. Arbitration.
(i) Any dispute under Section 3 hereof, including but not
limited to the determination by the Board of a termination for Cause
pursuant to Section 3.2.3 hereof or in respect of the breach thereof
will be settled by arbitration in Roanoke, Virginia. The arbitration
will be accomplished in the following manner. Either party may serve
upon the other party written demand that the dispute, specifying the
nature thereof, shall be submitted to arbitration. Within ten (10)
days after the service of such demand, each of the parties will
designate an arbitrator and serve written notice of such appointment
upon the other party. If either party fails within the specified time
to appoint such arbitrator, the other party will be entitled to
appoint both arbitrators. The two (2) arbitrators so appointed will
appoint a third arbitrator.
(ii) The decision of the arbitrators will be final and binding
upon the parties. The arbitration will be conducted, to the extent
consistent with this Section 5.12, in accordance with the then
prevailing rules of commercial arbitration of the American
Arbitration Association or its successor.
5.13. Continuing Effect. Where the context of this Agreement
requires, the respective rights and obligations of the parties shall
survive any termination or expiration of the term of this Agreement.
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WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
INNOTECH, INC.
By: /s/ Ronald D. Blum
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Ronald D. Blum
Chairman and Chief
Executive Officer
/s/ Jo Ann Swasey
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JO ANN SWASEY
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