Exhibit 10(bb)
EMPLOYMENT AND CONFIDENTIAL INFORMATION AGREEMENT
This Agreement ("Agreement") is entered into on July 20, 2007
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between Gregory J. Divis ("Employee") and THER-RX CORPORATION ("Ther-Rx"), a
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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. 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, Ther-Rx Corporation. Employee acknowledges and
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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 Three Hundred Twenty-Five
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Thousand Dollars per year ($325,000.00), 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 July 20,
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2007, and continue until March 31, 2008, unless terminated sooner in
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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
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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 one hundred twenty (120) calendar days' advance written notice.
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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.
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.
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(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 twins 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.
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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.
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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/ Gregory J. Divis By: /S/ Gerald R. Mitchell
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Title:
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