Exhibit 10(cc)
[THER-RX logo]
EMPLOYMENT AND CONFIDENTIAL INFORMATION AGREEMENT
This Agreement ("Agreement") is entered into on APRIL 8, 2004 between
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JERALD J. WENKER ("Employee") and THER-RX CORPORATION ("Ther-Rx"), a wholly
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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. Ther-Rx 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 Ther-Rx 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. Employee acknowledges and agrees that his/her job
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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 THREE HUNDRED FIFTY
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THOUSAND dollars per year ($350,000.00), payable at such intervals as
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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 for employees in
this job classification.
4. TERM. The initial term of this Agreement shall begin on APRIL 8, 2004,
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and continue until MARCH 31, 2005, unless terminated sooner in accordance
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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
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HUNDRED TWENTY (120) calendar days advance written notice. Employer may
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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 THIRTY (30) calendar days advance written notice. Employer may, in
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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.
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 suppliers (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. ____________________________________________________________________
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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. 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 marketing and sale of brand name prescription
pharmaceutical 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. To sell or market, manage or direct the sale or marketing, or
indirectly or directly assist any other person in the sale or
marketing of the same or similar brand name products as Employee
marketed or sold for Employer under this Agreement, on behalf of
or for any business that markets or sells any product or product
line which is competitive with any product or product line
Employer has sold during the most recent twenty-four (24) month
period anywhere Employer conducted business.
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.
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/ Jerald J. Wenker /s/ Gerald R. Mitchell
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