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Exhibit 10(ee)
KV
K-V PHARMACEUTICAL COMPANY
EMPLOYMENT AND CONFIDENTIAL INFORMATION AGREEMENT
This
Agreement ("Agreement") is entered into on May 2,1990, between
David Hermelin
("Employee") and K-V PHARMACEUTICAL COMPANY, a Delaware
corporation
("KV").
In consideration of Employee's employment or continued employment
by
KV and other valuable
consideration, the receipt and sufficiency of which are
acknowledged, Employee
agrees as follows:
1. Affiliates. KV has or may in the future have one or more
subsidiaries and/or affiliated companies (collectively referred to
in the
remainder of this Agreement as the "Companies"). From time to time,
KV and the
Companies may exchange or use facilities, technology and/or
Confidential
Information (as that term is defined below) of the other. The
covenants in
this Agreement are for the benefit and protection of KV and the
Companies.
2. Nature of Employment. Employee is hereby employed by KV in
the
position of Manager, Business Development. 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 KV.
3. Compensation. As compensation for Employee's services to KV,
Employee shall receive a base salary at the rate of Fifty-five
Thousand
Dollars ($55,000) per year, payable at such intervals as KV pays
its other
employees. In addition, Employee shall be entitled to participate
in the
fringe benefits normally provided to other KV employees at
comparable
employment levels. Employee's compensation shall be subject to KV's
normal
compensation review.
4. Term. The initial term of this Agreement shall begin on May
2,
1990 , and continue until March 31, 1991, unless terminated sooner
in
accordance with paragraph 5 of this Agreement. If not terminated
sooner under
paragraph 5 hereof, this Agreement shall automatically renew for
successive
one (1) year periods unless and until either party terminates this
Agreement
pursuant to the provisions of paragraph 5. Termination of this
Agreement by
either party, for any reason, shall in no manner affect the
covenants
contained in paragraphs 6-11 of this Agreement.
5. TERMINATION. Either party may terminate this Agreement, for
any
reason, by giving the other party thirty (30) calendar day's
advance written
notice. KV may, at its sole discretion, elect to pay Employee in
lieu of
having Employee continue to work during the notice period. If KV
exercises
this right and option, it shall pay Employee, on KV's regularly
scheduled
paydays and in accordance with KV's regular pay practices, either:
(A)
Employee's regular wages for a period of thirty (30) calendar days
or (B)
one-half (1/2) of Employee's regular wages for a period of sixty
(60) calendar
days. KV reserves the right to cease the payment(s) described above
if, in
KV's reasonable determination, Employee breaches this Agreement
during the
period of such payments. Notwithstanding the foregoing, KV may
terminate this
Agreement without prior written notice to Employee or any
continuing
compensation obligations if, in KV's reasonable determination,
Employee has
breached this Agreement or Employee's continued employment is
detrimental to
KV's best interests. By way of example, but not limitation,
Employee's
continued employment will be deemed detrimental to KV's best
interests if
Employee has engaged in dishonesty, disloyalty, failure to perform
his/her
duties to KV or any act which may be harmful to the reputation of
KV and/or
the Companies.
6. Confidential Information. In the course of performing
his/her
responsibilities as an employee of KV, Employee has or may come
into
possession of technical, financial or business information
pertaining to KV
and/or the Companies which is not published or readily available to
the
public, 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 employees, customers and/or
suppliers
("Confidential Information"). Employee acknowledges that the
Confidential
Information is important to and greatly affects the success of KV
and the
Companies in a competitive, worldwide marketplace. Employee further
agrees
that while employed by KV and at all times thereafter, regardless
of how, when
and why that employment ends, Employee shall hold in the strictest
confidence,
and shall not disclose, duplicate and/or use for himself/herself or
any other
person or entity any Confidential Information without: (A) the
prior written
consent of an officer of KV, or (B) unless required to do so in
order to
perform his/her responsibilities while employed by KV.
7. PUBLICATION. Employee agrees not to publish or cause or permit
to
be published any article, oral presentation or
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material related to KV and/or the Companies, including any
information related
to any products or proposed products, without obtaining the prior
written
consent of an officer of KV.
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 KV and/or the
Companies any
idea, invention, discovery or other information pertaining or
related to
Employee's responsibilities as an employee of KV. Employee agrees
to promptly
provide KV with a copy of any and all agreements listed below.
Employee
further agrees not to disclose to KV or the Companies, or to seek
to induce KV
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 KV,
either solely or jointly with others: (A) in the course of
performing his/her
duties for KV, (B) which are based, in whole or part, upon
Confidential
Information, the resources, supplies, facilities or business,
technical or
financial information of KV and/or the Companies, or (C) which
relate to the
business or the anticipated research and development of KV, the
Companies or
both ("Work Product"), shall be the sole property of KV and
available to KV at
all times. Employee agrees to promptly disclose and assign and
hereby assigns
to KV, 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 KV and after that
employment ends,
regardless of how, when and why, (s)he shall, upon KV'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 KV any and all
such
applications, copyrights and patents relating thereto, and (C)
assist KV, as
KV deems necessary, in order for KV to apply for, defend or enforce
any
copyright or patent. KV shall pay all expenses of preparing, filing
and
prosecuting any such application and of obtaining such copyrights
and patents.
In the event Employee is not employed by KV at the time any request
for
assistance is made by KV, KV shall pay Employee a reasonable
payment for
Employee's time and shall schedule any needed assistance so as to
not to
interfere with Employee's then current employment and
obligations.
10. RETURN OF PROPERTY. Upon the termination of Employee's
employment
with KV, regardless of how, when and why that employment ends,
Employee shall
immediately deliver to KV all property of KV and all property of
the
Companies, including, but not limited to, all records and documents
(including
all copies) containing or relating to Confidential Information.
11. RESTRICTIVE COVENANTS. The parties acknowledge and agree that
at
the time this Agreement was entered, the business of KV and the
Companies
included, but was not limited to, the contract or private label
manufacture
for other marketers or distributors of pharmaceutical preparations
or
specialty chemicals, and the research, development, manufacture,
sale and
distribution of drug delivery products and technology. Employee
agrees that
during the thirty-six (36) consecutive months immediately
following
termination of Employee's employment with KV, regardless of how,
when or why
that employment ends, Employee shall not in any manner or in any
capacity,
directly or indirectly, for himself/herself or any other person or
entity,
actually or attempt:
(A) to perform any of
the same or similar responsibilities as
Employee performed for KV under this Agreement, on behalf of or
for any business that engages in the same or similar business
as:
(i) KV anywhere KV has
conducted business, or
(ii) the Companies anywhere the Companies have conducted
business during the twenty-four (24) months immediately
preceding termination of employment; or
(B) to interfere with
or take away:
(i) any customer of KV
that has conducted business with KV,
or
(ii) any customer of the Companies that has conducted
business with the Companies during the twenty-four (24)
months immediately preceding termination of employment;
or
(C) to interfere with
any of the suppliers of KV and/or the
Companies, including, without limitation, reducing in any
material way the willingness or capability of any supplier to
continue supplying KV with its and/or the Companies with their
present or contemplated requirements; or
(D) to solicit or
interfere with the relationship between KV and any
of its employees or agents, and/or the Companies and any of
their employees or agents; or
(E) to acquire any
interest in any business that engages in the same
or similar business as:
(i) KV anywhere KV has
conducted business, or
(ii) the Companies anywhere the Companies have conducted
business during the twenty-four (24) months immediately
preceding termination of employment. Employee further
agrees that (s)he shall not engage in any of the
activities listed above while (s)he is employed by KV.
Employee acknowledges and agrees that his/her experience, knowledge
and
capabilities are such that (s)he can obtain
<PAGE>
employment in unrelated pharmaceutical, chemical, 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 paragraph 11, (s)he shall, to
avoid confusion
or misunderstanding, submit the question(s) in writing to an
officer of KV for
a written response by KV. Employee additionally agrees to keep KV
advised of
the identity of his/her employer and his/her work location during
the period
covered by this paragraph 11.
12. INVESTMENT SECURITIES. Anything to the contrary
notwithstanding,
nothing in this Agreement shall limit the right of Employee as an
investor to
hold or to 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 of any such business entity does not exceed
five percent
(5%) of the ownership of that business entity.
13. Material Breach. Any breach of this Agreement shall be a
material
breach of this Agreement.
14. EMPLOYEE CONSENT. In order to preserve the rights under
this
Agreement of KV and the Companies, KV and/or the Companies may
advise any
third party with whom Employee may consider, establish or contract
a
relationship of the existence of this Agreement and of its terms.
KV and the
Companies shall have no liability for so acting.
15. CONTROLLING Law. This Agreement shall be construed in
accordance
with the laws of the State of Missouri. The parties agree that any
controversy
arising with respect to this Agreement shall fall under the
exclusive
jurisdiction of the Circuit Court of the County of St. Louis,
Missouri, and
each party hereby consents to the jurisdiction of that court.
16. Remedies. Employee agrees that the promises in this Agreement
are
reasonable and necessary to protect the legitimate business
interests of KV
and the Companies, that any violation by Employee of any of the
promises in
this Agreement would result in great damage and irreparable injury
to KV
and/or the Companies, and that KV and/or the Companies have the
right to any
and all legal and/or equitable remedies available for breach of
this
Agreement. Employee further agrees that enforcement by KV and/or
the Companies
of the promises contained in this Agreement by way of injunction
would not
prevent Employee from making a living.
17. SEVERABILLTY. In the event any whole or partial provision in
this
Agreement is deemed unenforceable, it shall not invalidate the
remaining whole
or partial provisions of this Agreement. In addition, the parties
have
attempted to limit Employee's right to compete only to the extent
necessary to
protect KV from unfair competition. Consequently, the parties
further agree
that if any whole or partial restrictive covenant in this Agreement
is deemed
unenforceable 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
shall be binding upon Employee and Employee's heirs, executors and
legal
and/or personal representatives. This Agreement is assignable by
KV, and shall
inure to the benefit of KV, its successors and assigns.
19. NONWAIVER. Failure of KV 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 KV
and/or the Companies from later enforcing strict compliance with
the promises
in this Agreement.
20. MODIFICATION. This Agreement contains the parries' 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: (A) (s)he fully
understands
his/her right to discuss all aspects of this Agreement with legal
or personal
advisors of his/her choice, (B) to the extent (s)he desired, (s)he
has done
so, (C) (s)he has carefully read and fully understands all of the
provisions
of this Agreement, and (D) (s)he has voluntarily entered into this
Agreement.
IN WITNESS WHEREOF, Employee and KV have executed this Agreement
on
the day and year first written above.
EMPLOYEE
COMPANY
/s/ David S. Hermelin
By /s/ Gerald R. Mitchell
----------------------------------
--------------------------------
Title VP, Finance
-----------------------------
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KV PHARMACEUTICAL COMPANY
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is entered into effective November
18,
1996, between David S. Hermelin ("Employee") and KV PHARMACEUTICAL
COMPANY, a
Delaware corporation ("KV").
In consideration of employee's employment or continued
employment by KV and other valuable consideration, the receipt and
sufficiency
of which are acknowledged, Employee agrees as follows:
1. Affiliates. KV has or may in the future have one or more
subsidiaries and/or affiliated companies (collectively referred to
in the
remainder of this Agreement as the "Companies"). From time to time,
KV and the
Companies may exchange or use facilities, technology and/or
Confidential
Information (as that term is defined below) of the other. The
covenants in
this Agreement are for the benefit and protection of KV and the
Companies.
2. Nature of Employment. Employee is hereby employed by KV
in the position of Vice President, Corporate Planning and
Administration.
Employee shall be employed at KV's offices in St. Louis, Missouri
or such
other location as shall be agreeable to KV and Employee. Employee
acknowledges
and agrees that his job title and/or responsibilities may change
from time to
time. Employee further agrees that, at all times, he shall devote
his full
time and best efforts to performing all duties reasonably assigned
by KV.
3. COMPENSATION. As compensation for Employee's services to
KV, Employee shall receive a base salary at the rate per year being
paid to
Employee as of the effective date of the Agreement, payable at such
intervals
as KV pays its other employees. In addition, Employee shall be
entitled to
participate in the fringe benefits normally provided to the other
KV employees
at comparable employment levels. Employee's compensation shall be
subject to
annual review.
4. Term. This Agreement shall be effective as of the date
first set forth above and continue until March 31, 2002, unless
terminated
sooner in accordance with Paragraph 5 of this Agreement. If not
terminated
sooner under Paragraph 5 hereof, this Agreement shall automatically
renew for
successive twelve (12) month periods unless and until either party
terminates
this Agreement pursuant to the provisions of Paragraph 5.
Termination of this
Agreement by either party, for any reason, shall in no manner
affect the
covenants contained in Paragraphs 6-11 of this Agreement.
5. TERMINATION.
(A) Voluntary. Employee may terminate this Agreement, for
any reason, by giving KV ninety (90) calendar days' advance written
notice to
KV's Director, Human Resources. Employee agrees to remain on the
job and at
all times faithfully, industriously and to the best of his ability,
experience
and talents, perform all of the duties that have been required of
him prior to
Employee's notice of termination, all to the reasonable
satisfaction of KV.
Employee agrees that he will remain actively at work, as described
above,
during the entire notice period unless he is released from all
responsibilities prior to the end of the notice period by the Board
of
Directors or the Chief Executive Officer of KV. Employee agrees
that if he
should fail to fully comply with the notice required by this
subsection, and
if he should fail to fully comply with the requirement to remain on
the job
and faithfully and to the best of his ability perform all of his
duties, KV
will incur substantial damages as a direct result and that the
amount of said
damages will be difficult to ascertain.
If
Employee decides to terminate his employment with KV,
Employee shall disclose
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Employee's decision to terminate to the Director, Human
Resources, of KV and shall not disclose such information to any
other party
(except for a subsequent employer of Employee which has agreed to
keep such
information confidential until KV has announced Employee's
termination) until
such time as the Director, Human Resources of KV determines how and
when to
announce Employee's termination.
(B) INVOLUNTARY. KV may terminate this Agreement at
any time and for any reason.
In the event of either voluntary or involuntary termination,
except termination for cause, KV shall provide Employee with twelve
(12)
months of severance pay equal to no less than Employee's annual
base salary,
then in effect under Paragraph 3 of this Agreement, less usual
withholdings
and offset by compensation Employee receives from other
full-time,
non-temporary employment. This severance package shall be paid in
twelve (12)
equal monthly installments, each payment to be made on the last day
of each of
the twelve (12) calendar months following the last date worked.
Such monthly
payments shall be reduced dollar for dollar by Employee's monthly
compensation
payable from another employer for full-time, non-temporary
employment. In
addition, KV shall provide Employee at KV's expense, with medical,
disability
and life insurance coverage and all other insurance coverage of the
same or
similar types, and in the same or similar amounts as KV is
providing to
Employee immediately prior to the last date worked. This
continuation of
insurance coverage shall cease the earlier of eighteen (18) months
after the
last date worked or at such time as Employee obtains other
full-time,
non-temporary employment. In addition, as of the last date worked,
all stock
options shall become immediately exercisable and shall remain
exercisable
until the earlier of eighteen (18) months after the last date
worked or at
such time as Employee obtains other full-time, non-temporary
employment.
Further, any holding period of such options shall automatically be
waived by
KV.
In consideration of the severance pay provided under this
paragraph, in the event of the cancellation, termination or
expiration of the
Employment Agreement for any reason, Employee agrees to provide
reasonable and
necessary services to assist KV in transition of responsibilities
and ongoing
continuity of his job function unless both KV and Employee agree
otherwise.
KV may terminate this Agreement for cause and in such event
Employee shall not be entitled to any severance pay. The term "for
cause" as
used herein shall mean (i) commission of a dishonest or criminal
act in
respect of Employee's employment or conviction of a felony, or (ii)
breach of
trust or gross negligence, or (iii) willful refusal to perform
duties imposed
by this Agreement which are legal and not improper, or (iv)
Employee's
violation of Paragraph 7, 9, 10 or 11 of this Agreement, or (v) the
continuing
neglect or failure of Employee to perform the duties reasonably
assigned to
Employee by KV and after notice from KV of such neglect or failure,
Employee's
failure to cure such neglect or failure. Any termination of this
Agreement by
KV shall be effective only upon providing Employee with written
notice and
advising Employee as to whether his termination is for cause.
Employee acknowledges that the duties and obligations of
Paragraphs 7, 9, 10, 11 and 12 shall survive the termination of
his
employment.
6. Off-Site EMPLOYMENT. Employee may elect to take a reduced
annual rate of pay of Fifty Thousand Dollars ($50,000) for up to a
one (1)
year period to be agreed upon by KV and Employee so long as
Employee provides
continuity in all areas of responsibility or in other areas
requested by KV.
During this one (1) year period, KV shall keep in full force all
benefits,
including, but not limited to, insurance coverage, pension plans,
and stock
option plans provided to other employees. In the event of
employee's
termination during this one (1) year period, employee shall
continue to be
<PAGE>
entitled to the severance pay provided under paragraphs 5 and 14
based on
employee's unreduced annual rate of pay under paragraph 3 as of the
date
employee elected to take a reduced rate of pay under this
paragraph. This one
(1) year term may be extended on an annual basis with the mutual
agreement of
KV and Employee.
7. CONFIDENTIAL INFORMATION. In the course of performing
responsibilities as an employee of KV, Employee has or may come
into
possession of technical, financial or business information
pertaining to KV
and/or the Companies which is not published or readily available to
the
public, 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 or other information
pertaining to
and/or received from employees, customers and/or suppliers
("Confidential
Information"). Employee acknowledges that the Confidential
Information is
important to and greatly affects the success of KV and the
Companies in a
competitive, worldwide marketplace. Employee further agrees that
while
employed by KV and at all times thereafter, regardless of how, when
and why
that employment ends, Employee shall hold in the strictest
confidence, and
shall not disclose, duplicate and/or use for himself or any other
person or
entity any Confidential Information without: (A) the prior written
consent of
an officer of KV, or (B) unless required to do so in order to
perform his
responsibilities while employed by KV.
8. Publication. Employee agrees not to publish or cause or
permit to be published any article, oral presentation or material
related to
KV and/or the Companies, including any information related to any
products or
proposed products, without obtaining the prior written consent of
an officer
of KV.
9. No Other Contract. Except as listed below, Employee
warrants that he is not bound by the terms of any other agreement,
oral or
written, which would limit or preclude his from disclosing to KV
and/or the
Companies any idea, invention, discovery or other information
pertaining or
related to Employee's responsibilities as an employee of KV.
Employee agrees
to promptly provide KV with a copy of any and all agreements listed
below.
Employee further agrees not to disclose to KV or the Companies, or
to seek to
induce KV or the Companies to use any confidential information,
material or
trade secrets belonging to any other
