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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of
October 1, 1999, by and between YOUNG INNOVATIONS, INC., a Missouri corporation
("EMPLOYER"), and XXXXXX X. XXXXXXX, XX., of Algonquin, Illinois ("EMPLOYEE").
In consideration of Employer's employment of Employee, the terms,
conditions and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Employee and Employer, intending to be legally bound, hereby agree as follows:
1. Employment. Employer hereby agrees to employ Employee and Employee
agrees to accept such employment upon the terms and conditions herein set forth.
2. Employment Period. The initial term of employment hereunder shall
commence on the date hereof and shall expire on October 1, 2002 (such period,
the "TERM"). In the event that Employee continues to be employed by Employer
following the initial or any extended term hereof, such employment shall be
governed by this Agreement, except that it will be "at-will," without a fixed
term, and may be terminated by Employer or Employee at any time, with or without
notice, for any reason or no reason (and no reason need be given), and without
obligation of severance or additional compensation beyond that owed for periods
that Employee was actually employed by Employer.
3. Position and Duties. Employee hereby agrees to serve as either the
Chief Executive Officer or Chief Operating Officer of Employer (as determined
from time to time by Employer's Board of Directors). Employee shall devote his
full business time and attention to the management, development and enhancement
of the business of Employer and perform such duties as are necessary and
required of the Chief Operating Officer or Chief Executive Officer (as the case
may be) as directed from time to time. During the Term, Employee may not
undertake any other employment, engagements, consulting or other outside
activities that in the opinion of the Board of Directors interfere with the
effective carrying out of Employee's duties hereunder, provided, however, that
nothing herein shall prevent Employee from making and managing personal
investments consistent with Section 8 of this Agreement or engaging in community
and/or charitable activities, so long as such
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activities, either singly or in the aggregate, do not interfere with the proper
performance of his duties and responsibilities to Employer.
4. Compensation.
(a) Base Salary. Employer shall pay to Employee salary at the
rate of $243,800 per year for the period from the date hereof through October 1,
2002, or such higher amounts as shall be approved by the Compensation Committee
or the Board of Directors (in each case, the "Base Salary").
(b) Bonus Compensation. In addition to Base Salary, Employee
shall be entitled to receive bonus compensation as determined by the
Compensation Committee or the Board of Directors (the "BONUS COMPENSATION").
(c) Holidays and Vacation Time. Employee shall be entitled to
sick leave as is consistent with Employer's policy for executive employees with
respect to such matters as of the date hereof. Employee is entitled to as many
weeks of paid vacation time as Employee deems appropriate, provided that such
vacation time does not interfere with Employee's duties to Employer. Moreover,
if this Agreement is terminated for any reason other than Cause, death or
Permanent Disability, Employee shall be entitled to three weeks of paid
vacation.
(d) Other Benefits. Subject to Employer's rules, policies and
regulations as in effect from time to time (and subject to applicable
eligibility requirements, including a minimum employment period), Employee shall
be entitled to all other rights and benefits for which Employee may be eligible
under any: (i) group life insurance, disability or accident, death or
dismemberment insurance, (ii) medical and/or dental insurance program (90-day
minimum employment period, for which Employer will reimburse the COBRA expenses
of Employee), (iii) 401(k) benefit plan, or (iv) other employee benefits that
Employer may, in its sole discretion, make generally available to employees of
Employer of the same level and responsibility as Employee; provided, however,
that nothing herein shall obligate Employer to establish or maintain any of such
benefits or benefit plans. In addition to the foregoing, Employer agrees that it
shall pay for 100% of any premiums for a health insurance policy which covers
Employee and his Qualified Dependents (PPO or equivalent).
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(e) Disability Insurance. Employer will provide Employee with
long term disability insurance which provides a minimum benefit of at least
seventy-five percent (75%) of Employee's Base Salary to age 65.
(f) Life and Other Insurance. Subject to Employee meeting
applicable underwriting criteria, Employer will provide $2 million of guaranteed
level premium term life insurance for a policy which covers Employee for at
least 15 years after the date hereof (naming Employee or Employee's written
designee as the beneficiary of the policy, with Employer having no right to
revoke or alter the designation) and such other types of insurance for Employee
as shall be agreed upon between Employee and Employer from time to time.
Employer shall only be responsible for the payment of insurance premiums during
the term of this Agreement. Employer shall use its best efforts to ensure that
life insurance policy is "portable" so that Employee can continue the policy
after the end of Employee's employment with Employer at Employee's own expense.
(g) Automobile Allowance. Employer shall provide Employee with
an automobile allowance not to exceed $750 per month, or such greater amount as
shall be approved from time to time by the Compensation Committee.
(h) Failure to Renew or Renegotiate Contract. In the event
that Employer and Employee do not enter into a new employment contract at the
end of the Term, Employer shall have the right, exercisable by written notice at
least thirty (30) days prior to the end of the Term, to extend the applicability
of Section 8(e) until the first anniversary of the end of the Term, by payment
to Employee, in one lump sum, of an amount equal to Employee's Base Salary for
the last year of the Term. Such payment shall be made within fifteen (15) days
after the end of the Term.
5. Supplemental Payment Upon a Change In Control. If a Change In
Control occurs from the date hereof until October 1, 2003, and Employee is
employed by Employer on the date of the Change In Control or Employee
demonstrates that Employee would have been employed by Employer but for steps
taken at the request of a third party to effect the Change In Control or
Employee's termination was without Cause and arose in connection with or
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anticipation of such Change In Control, then Employer shall have the additional
rights set forth in this Section 5. Namely, Employer shall, within thirty (30)
days immediately following the date of the Change In Control, pay to Employee a
lump sum cash amount such that the total amount of payments to Employee in
connection with the Change In Control under or in connection with all plans,
arrangements, obligations or agreements between Employer and Employee (including
any plans providing for the vesting of stock options or other property in
connection with a Change of Control) equals 2.9999 times the "base amount" (as
such term is used in Section 280G(b)(3) of the Code). However, in the event that
the total amount payable by Employer to Employee in connection with a Change In
Control under or in connection with all plans, arrangements, obligations or
agreements exclusive of amount payable under this Section 5 exceeds 2.9999 times
the "base amount," Employer will have no obligation to Employee under this
Section 5. The Employer shall engage its Accounting Firm to determine the "base
amount" and all amounts payable in connection with a Change In Control;
provided, however, that if the Accounting Firm is serving as accountant or
auditor for the person, entity or group effecting the Change In Control,
Employee shall appoint another nationally recognized accounting firm which shall
provide Employee with detailed supporting calculations for its conclusions. All
fees and expenses of the Accounting Firm shall be borne solely by Employer.
6. Termination of Employment.
(a) Permanent Disability. In the event of the Permanent
Disability (as defined below) of Employee, Employer shall cause all amounts due
under the disability policy described in Section 4(e) to be paid to Employee,
along with any Base Salary accruing during any eligibility or waiting period
under the disability insurance policy obtained by Employer. Notwithstanding the
foregoing, all payments hereunder shall end upon the earlier to occur of
Employee's attaining the age of sixty-five (65) and the cessation of such
Permanent Disability (whether as a result of recovery, rehabilitation, death or
otherwise).
(b) Death. In the event of Employee's death, Employer shall
pay to Employee's personal representative (on behalf of Employee's estate),
within sixty (60) days after Employer receives written notice of such
representative's appointment, all amounts of Base Salary and Bonus Compensation
accrued pursuant to Section 4 above as of the date of
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Employee's death, which payment shall constitute full and complete satisfaction
of Employer's obligations hereunder. Employee's dependents shall also be
entitled to receive fully paid group medical and dental benefits for a period of
ninety (90) days at Employer's expense, and thereafter, at the dependents'
expense, any continuation of health insurance coverage rights, if any, under
applicable law.
(c) Termination for Cause or Voluntary Termination Without
Good Reason. The Employer may in its sole discretion terminate this Agreement
and Employee's employment with Employer for Cause (as defined in Section 7(e)
below) at any time and with or without advance notice to Employee. If Employee's
employment is terminated for Cause, or if Employee Voluntarily Terminates (as
defined below) his employment with Employer without Good Reason (as defined
below), Employer shall promptly pay to Employee all amounts of Base Salary
accrued pursuant to Section 4 above through the date of termination (but not
Bonus Compensation), whereupon Employer shall have no further obligations to
Employee under this Agreement. Employee and his dependents shall also be
entitled to any continuation health insurance coverage rights, if any, under
applicable law. If Employee Voluntarily Terminates without Good Reason and
provide at least 6 months prior written notice, Employee is entitled to receive,
in one lump sum, an amount equal to employee's annual Base Salary at the end of
the six-month notice period (in addition to his Base Salary and Bonus
Compensation during the six-month notice period). If Employee Voluntarily
Terminates without Good Reason but gives less than 6 months written notice, then
Employee will be entitled to no further payments of Base Salary or Bonus
Compensation from and after the date of the transmission of the written notice.
(d) Termination Without Cause; Voluntary Termination With Good
Reason. Employer may terminate this Agreement and Employee's employment with
Employer without Cause at any time, with or without notice, for any reason or no
reason (and no reason need be given). Employee may terminate this Agreement and
Voluntarily Terminate his employment with Employer with Good Reason upon thirty
(30) days' prior written notice to Employer, provided that Employer does not
correct the circumstances giving Employee Good Reason during such thirty (30)
day period. In the event Employee's employment with Employer is terminated
pursuant to this Section 6(d), (i) Employer shall pay to Employee all amounts of
Base Salary and Bonus Compensation accrued pursuant to Section 4 above through
the date of
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termination, (ii) Employee shall be relieved of his obligations under Sections 1
and 3 hereof, and (iii) Employee shall be free to seek other employment subject
to the terms of Section 8 hereof. In addition, if Employee's employment with
Employer is terminated pursuant to this Section 6(d), Employer shall pay to
Employee the value of all compensation and benefits that Employee would have
earned under this Agreement for the remaining Term together with all reasonable
attorneys' or other professional fees and costs incurred by Employee in
enforcing his rights under this Section 6(d). Employer may satisfy its
obligation hereunder by either providing such compensation and benefits in kind
at the time such compensation and benefits would otherwise be due hereunder, or
with consent of Employee, by paying the present value thereof in a lump sum.
Employee has a duty to mitigate such amount by obtaining comparable or better
employment, if possible, and the amounts payable hereunder shall be reduced by
25% of the base salary and bonus which Employee earns during such period.
However, Employee's duty to find a comparable position does not require Employee
to accept a position that is not comparable to his current position's duties, in
a different location or at a lesser rate of compensation or benefits. Employer
may also require Employee to fully and completely release any and all claims for
breach of this Agreement as a condition to receiving such payments under this
Section 6(d). Employee and his dependents shall also be entitled to any
continuation health insurance coverage rights, if any, under applicable law.
(e) Mutual Agreement. This Agreement may be terminated by the
mutual written agreement of Employer and Employee. Employee's rights and
obligations, in such event, shall be as set forth in the termination agreement.
(f) Termination Obligations.
(i) Employee hereby acknowledges and agrees that all personal
property and equipment furnished to or prepared by Employee in the course of or
incident to his employment by Employer, belongs to Employer and shall be
promptly returned to Employer upon termination of Employee's employment. The
term "PERSONAL PROPERTY" includes, without limitation, all books, manuals,
records, reports, notes, contracts, requests for proposals, bids, lists,
blueprints, and other documents, or materials, or copies thereof (including
computer files), and all other proprietary information relating to the business
of Employer or any of its affiliates. Following
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termination, Employee will not retain any written or other tangible material
containing any proprietary information of Employer or any of its affiliates.
(ii) Upon termination of the Employment Period, Employee shall
be deemed to have resigned from all offices and directorships then held with
Employer and each of its affiliates.
(iii) The representations and warranties contained herein and
Employee's obligations under Sections 6(f), 8, and 11 shall survive termination
of the Employment Period and the expiration of this Agreement.
7. Definitions. For the purposes of this Agreement the following terms
and phrases shall have the following meanings:
(a) ACCOUNTING FIRM shall mean the "Big-Five" firm who
regularly prepares Employer's audited financial statement.
(b) AFFILIATE(S) shall have the same meaning ascribed to such
term in the Exchange Act.
(c) ASSOCIATE(S) shall have the same meaning ascribed to such
term in the Exchange Act.
(d) BENEFICIAL OWNERSHIP shall have the same meaning ascribed
to such term in Rule 13d-3 promulgated pursuant to the Exchange Act.
(e) "CAUSE" shall mean (i) violation of any agreement or law
relating to non-competition, trade secrets, inventions,
non-solicitation or confidentiality between Employee and
Employer or an affiliate, (ii) willful, intentional or bad
faith conduct that materially injures Employer or an
Affiliate, (iii) commission of a felony, an act of fraud
or the misappropriation of property; and (iv) gross
neglect or moral turpitude.
(f) "CHANGE IN CONTROL" shall mean any of the following:
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(1) such time that Xxxxxx X. Xxxxxxxx ceases to own,
30% or more of the then outstanding shares of
common stock of Employer;
(2) the majority of the members of Employer's Board
of Directors being replaced during any 12-month
period by directors whose appointment or
election is not endorsed by a majority of the
members of the Board of Directors of Employer
immediately prior to such appointment or
election;
(3) any reorganization, merger or consolidation (a
"Reorganization") involving Employer unless at
least 50% of the then outstanding shares of
common stock of the surviving corporation is
held or is anticipated to be held by persons who
are shareholders of Employer immediately prior
to such Reorganization in substantially the same
proportions as their ownership, immediately
prior to such Reorganization;
(4) Approval by the shareholders of Employer of (i)
a "going private" transaction of Employer within
the meaning of Section 13(e) of the Exchange
Act, (ii) the consummation date of a complete
liquidation or dissolution of Employer or (iii)
the consummation date of the sale or other
disposition of all or substantially all of the
assets of Employer.
(5) For purposes of this Section 7(f), all shares of
stock of Employer owned or held by Xxxxxx X.
Xxxxxxxx directly or indirectly (i.e., through
partnerships, corporations or limited liability
companies), or by Xxxxxx X. Xxxxxxxx'x spouse,
estate, lineal descendants, spouses of lineal
descendants or trusts for any of their benefit,
and which indirectly held shares were
transferred from Xxxxxx X. Xxxxxxxx after the
date of this Agreement shall be deemed to be
owned by Xxxxxx X. Xxxxxxxx. For purposes of
illustration, any disposition, sale, gift or
other transfer of shares of Employer's
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common stock by Xxxxxx X. Xxxxxxxx after the
date of this Agreement to his children or to
trusts established for his or their benefit will
not be taken into account for purposes of
determining whether a "Change In Control" has
occurred under this Agreement. However, if the
direct ownership of Xxxxxx X. Xxxxxxxx is
reduced to 29% but his children own 10% of
Employer's shares as a result of transfers made
prior to the date of this Agreement, a Change In
Control will have occurred.
(g) CODE shall mean the Internal Revenue Code of 1986, as
amended.
(h) EXCHANGE ACT shall mean the Securities Exchange Act of
1934, as amended.
(i) GOOD REASON shall mean, with respect to a Voluntary
Termination, if (i) a material and adverse change in Employee's duties,
responsibilities or status with Employer or an affiliate is made without Cause,
(ii) a reduction in the annual compensation or total benefit package of Employee
(other than a comparable reduction in cash compensation or benefits generally
affecting substantially all officers or executive employees of Employer), (iii)
amendment or termination of this Agreement without Employee's consent; (v) a
change in Employee's job location beyond an area outside of a 25-mile radius of
Employee's principal office or (vi) the Board of Directors of Employer otherwise
determines that a Voluntary Termination by Employee is for "Good Reason" under
the circumstances then prevailing; provided, however, that Good Reason will not
be deemed to exist unless Employee provides written notice to Employer within 60
days after the occurrence of the event specified above and Employer fails to
cure the event to Employee's reasonable satisfaction within 60 days after
Employer receives such notice.
(j) IRS shall mean the Internal Revenue Service.
(k) PERMANENT DISABILITY shall have the meaning set forth in
Section 22(e)(3) of the Code.
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(l) PERSON shall have the same meaning as ascribed to such
term in Sections 13(d) and 14(d)(2) of the Exchange Act; provided, however, that
for purposes of this Agreement, neither Employer nor any trustee or fiduciary
acting in such capacity for an employee benefit plan sponsored or maintained by
Employer or any entity controlled by Employer, shall be deemed to be a "person".
(m) QUALIFIED DEPENDENTS shall mean Employee's spouse and
unmarried children less than 19 years old; provided, that the 19 year age limit
does not apply to a child who: i) is enrolled as a full time student in school
and ii) has not attained the age of 23 years.
(n) VOLUNTARY TERMINATION (including VOLUNTARILY TERMINATES)
shall mean the termination by Employee of his employment by Employer by
voluntary resignation or any other means other than death, retirement or
Permanent Disability and other than simultaneous with or following termination
for Cause or an event which, whether or not known to Employer at the time of
such Voluntary Termination by such Executive, would constitute Cause.
8. Restrictive Covenants.
(a) Consideration and Acknowledgements. Employee acknowledges
and agrees that the covenants described in this Section 8 are essential terms of
this Agreement and that the Agreement would not be entered into by Employer in
the absence of the covenants described herein. Employee acknowledges and agrees
that the covenants set forth in this Section are necessary for the protection of
the business interests of Employer. Employee further acknowledges that these
covenants are supported by adequate consideration as set forth elsewhere in this
employment Agreement, that full compliance with these covenants will not prevent
Employee from earning a livelihood following the termination of his employment,
and that these covenants do not place undue restraint on Employee and are not in
conflict with any public interest. Employee acknowledges and agrees that the
covenants set forth in this Section 8 are reasonable and enforceable in every
respect under applicable law.
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(b) Term. The covenants set forth in this Section 8 shall
remain in force and effect throughout Employee's employment with Employer and
thereafter for the time periods governing such covenants as set forth herein,
regardless of the reason for or timing of the termination of Employee's
employment and shall survive and continue in full force and effect after the
termination of the Agreement.
(c) Definitions. As used in this Section 8, the following
terms have the following meanings:
i. "Employer" shall mean Young Innovations, Inc.,
including and any parent, subsidiary or
affiliate as of the date of this Agreement or at
any time during the term of Employee's
employment.
ii. "Confidential Information" shall include any and
all information not generally available to the
public through legitimate means regardless of
any past, current or anticipated future
business, product, system service, process, or
practice of Employer, as well as any and all
information relating to Employer's business,
research, development purchasing, accounting,
advertising, marketing, manufacturing,
merchandising and selling. Confidential
Information includes but is not limited to
information that may constitute a "trade secret"
under applicable law.
iii. "Competing Business" means any product, system,
service, process or practice produced, provided,
marketed or sold anywhere in the geographic area
where Employer is then conducting any business
by any person or entity other than Employer
which resembles or competes directly or
indirectly with any product, system, service,
process or practice produced, provided,
marketed, sold, or under development by Employer
at any time during Employee's employment.
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iv. "Competing Organization" means any person or
entity which is engaged in, or is planning to
become engaged in research, development,
production, manufacturing, marketing or selling
of a Competing Business within the area in which
Employer is then conducting any business or has
affirmative plans to conduct business while
these covenants are in effect.
(d) Non-Disclosure of Confidential Information. Except as
necessary to perform his job duties, Employee agrees not to use any Confidential
Information, or disclose any Confidential Information to any person or entity,
either during or at any time after his employment, without Employer's prior
written consent, unless required to do so by a court of competent jurisdiction,
or by an administrative or legislative body (including a committee thereof) with
purported or apparent jurisdiction to order Employee to divulge, disclose or
make accessible such information.
(e) Non-Competition. Employee agrees that during his
employment and for a period of one year after the termination for Cause or
Voluntary Termination without Good Reason (provided that no Change of Control
has occurred), any reason of his employment, he will not render services to,
give advice to, become employed by or otherwise affiliate with, directly or
indirectly, any Competing Organization, nor will he (on behalf of himself or any
other person or entity) engage directly or indirectly in any Competing Business,
unless otherwise agreed to in writing by Employer.
(f) Non-Inducement. Employee agrees that during the term of
his employment and for the one year period following the termination, he will
not directly or indirectly assist or encourage any person or entity in carrying
out any activity that would be prohibited by the provisions of this Section 8 if
such activity were carried out by Employee. Employee also specifically agrees
that he will not directly or indirectly induce any other employee to leave the
employ of Employer or to carry out, directly or indirectly, any such activity;
provided, however, that Employer shall not be in violation of this provision if
an employee decides to join the new employer of Employee if Employee did not
intentionally direct or solicit such employee to leave.
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(g) Inventions and Patents. Employee agrees to promptly and
fully disclose in writing and does hereby assign to Employer every invention,
innovation, copyright, or improvement made or conceived by Employee during the
period of his employment that relates directly or indirectly to his employment
with Employer. Employee further agrees that both during and after his
employment, without charge to Employer but at Employer's expense, he will
execute, acknowledge and deliver any documents, including applications for
Letters Patent, as may be necessary, or in the opinion of Employer, advisable to
(a) obtain, enjoy and/or enforce Letters Patent for those inventions,
innovations or improvements in the United States and in any other country; (b)
obtain, enjoy or enforce the right to claim the priority of the first filed
patent application anywhere in the world; or (c) vest title in Employer and its
successors, assigns or nominees. Additionally, Employee agrees that for a period
of one (1) year after termination of his employment, any invention, development,
innovation, or improvement within the scope of this Section shall be presumed to
have been made during the term of his employment. Employee shall have the burden
of clearly and convincingly establishing otherwise.
This Agreement does not apply to any invention for which no equipment,
supplies, facility or trade secret information of Employer was used and which
was developed entirely on Employee's own time, and (1) which does not relate (a)
directly to the business of Employer or (b) to Employer's actual or demonstrably
anticipated research or development, or (2) which does not result from any work
performed by employee for Employer.
(h) Enforcement of These Covenants. Employee acknowledges that
full compliance with all of the covenants set forth in this Section 8 is
necessary to enable Employer to do business with its customers for the term of
this Agreement and damage to Employer for which there will be no adequate remedy
at law. In the event of a breach of any of these covenants, Employee therefore
acknowledges and agrees that Employer shall be entitled to injunctive relief,
regardless of whether or not Employer has complied with this Agreement, and
Employer shall further be entitled to such other relief, including money
damages, as many be deemed appropriate by a court of competent jurisdiction or
an Arbitrator. In the event of a court action based upon an alleged breach of
any of these covenants, the prevailing party (as determined by court ruling on
the merits of the dispute) will be reimbursed by the other party for reasonable
attorneys' fees and costs incurred as a result of the dispute. If any court
should at any
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time find any one of these covenants to be unenforceable or unreasonable as to
scope, territory or period of time, then the scope, territory or period of time
of the covenant shall be that determined by the court to be reasonable, and the
parties hereby agree that the court has the authority to so modify any of these
covenants as necessary to make the covenant enforceable.
(i) Existence of Other Obligations. Employee represents and
warrants that he is not currently subject to any contractual or other
obligations to any former employer or other entity, including but not limited to
obligations not to use or disclose confidential information, or to refrain from
competing with any person or entity.
(j) Waiver. Employee agrees that Employer's failure to enforce
any of the covenants of this Section 8 in any particular instance shall not be
deemed to be a waiver of the covenant in that or any subsequent instance, nor
shall it be deemed a waiver by Employer of any other rights at law or under this
Agreement.
9. Jurisdiction; Service of Process. Each of the parties hereto agrees
that all any action or proceeding initiated or otherwise brought to judicial
proceedings by either Employee or Employer concerning the subject matter of this
Agreement shall be litigated in the United States District Court for the Eastern
District of Missouri or, in the event such court cannot or will not exercise
jurisdiction, in the state courts of the State of Missouri (the "COURTS"). Each
of the parties hereto expressly submits to the jurisdiction and venue of the
Courts and consents to process being served in any suit, action or proceeding of
the nature referred to above either (a) by the mailing of a copy thereof by
registered or certified mail, postage prepaid, return receipt requested, to his
or its address as set forth herein or (b) by serving a copy thereof upon such
party's authorized agent for service of process (to the extent permitted by
applicable law, regardless whether the appointment of such agent for service of
process for any reason shall prove to be ineffective or such agent for service
of process shall accept or acknowledge such service); provided that, to the
extent lawful and practicable, written notice of said service upon said agent
shall be mailed by registered or certified mail, postage prepaid, return receipt
requested, to the party at his or its address as set forth herein. Each party
hereto agrees that such service, to the fullest extent permitted by law, (i)
shall be deemed in every respect effective service of process upon him or it in
any such suit, action or proceeding and (ii) shall be taken and
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held to be valid personal service upon and personal delivery to him or it. Each
party hereto waives any claim that the Courts are an inconvenient forum or an
improper forum based on lack of venue or jurisdiction. Each party shall bear its
own costs and attorneys' fees incurred in connection with any such actions or
proceedings.
10. Injunctive Relief. Employee acknowledges that damages would be an
inadequate remedy for Employee's breach of any of the provisions of Section 8 of
this Agreement, and that breach of any of such provisions will result in
immeasurable and irreparable harm to Employer. Therefore, in addition to any
other remedy to which Employer may be entitled by reason of Employee's breach or
threatened breach of any such provision, Employer shall be entitled to seek and
obtain a temporary restraining order, a preliminary and/or permanent injunction,
or any other form of equitable relief from any court of competent jurisdiction
restraining Employee from committing or continuing any breach of such Sections,
without the necessity of posting a bond. It is further agreed that the existence
of any claim or cause of action on the part of Employee against Employer,
whether arising from this Agreement or otherwise, shall in no way constitute a
defense to the enforcement of the provisions of Section 8 of this Agreement.
11. Miscellaneous.
(a) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given (i) when made, if delivered
personally, (ii) three (3) days after being mailed by certified or registered
mail, postage prepaid, return receipt requested, or (iii) two (2) days after
delivery to a reputable overnight courier service, to the parties, their
successors in interest or their assignees at the following addresses, or at such
other addresses as the parties may designate by written notice in the manner
aforesaid:
To Employer:
Young Innovations, Inc.
00000 Xxxxxxxxx Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
To Employee, to his home address as recorded in the payroll
records of Employer from time to time.
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(b) Governing Law. This Agreement shall be governed as to its
validity and effect by the internal laws of the State of Missouri, without
regard to its rules regarding conflicts of law.
(c) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of (i) the heirs, executors and legal
representatives of Employee, upon Employee's death, and (ii) any successor of
Employer, and any such successor shall be deemed substituted for Employee or
Employer, as the case may be, under the terms hereof for all purposes. As used
in this Agreement, "successor" shall include any person, firm, corporation or
other business entity that at any time, whether by purchase, merger,
consolidation or otherwise, directly or indirectly acquires a majority of the
assets, business or stock of Employer. Employee acknowledges and agrees that the
rights and obligations of Employer hereunder may be assigned to and assumed by
any of its wholly or majority-owned subsidiaries, without Employee's consent,
which assignment and assumption shall constitute a release of Employer, its
subsidiaries or any of their respective affiliates that is then bound by the
terms of this Agreement, of all of its obligations and liabilities hereunder.
(d) Integration. This Agreement (together with any option
agreement Employer may require Employee to execute in order to avail
himself/herself of any Stock Plan benefits specifically contemplated herein and
any agreement to release and hold harmless Employer executed concurrently
herewith) constitutes the entire agreement between the parties with respect to
all matters covered herein, including but not limited to the parties' employment
relationship and Employee's entitlement to compensation, commissions and
benefits from Employer or any of its affiliated companies and/or the termination
of Employee's employment. This Agreement supersedes all prior oral or written
understandings and agreements relating to its subject matter and all other
business relationships between Employer and/or its affiliated companies.
(e) No Representations. No person or entity has made or has
the authority to make any representations or promises on behalf of any of the
parties which are inconsistent with the representations or promises contained in
this Agreement, and this Agreement has not been executed in reliance on any
representations or promises not set forth herein. Specifically, no
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promises, warranties or representations have been made by anyone on any topic or
subject matter related to Employee's relationship with Employer or any of its
executives or employees, including but not limited to any promises, warranties
or representations regarding future employment, compensation, commissions and
benefits, any entitlement to stock, stock rights, Stock Plan benefits, profits,
debt and equity interests in Employer or any of its affiliated companies or
regarding the termination of Employee's employment. In this regard, Employee
agrees that no promises, warranties or representations shall be deemed to be
made in the future unless they are set forth in writing and signed by an
authorized representative of Employer.
(f) Amendments. This Agreement may be modified only by a
written instrument executed by the parties that is designated as an amendment to
this Agreement.
(g) Counterparts. This Agreement is being executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) Severability and Non-Waiver. Any provision of this
Agreement (or portion thereof) which is deemed invalid, illegal or unenforceable
in any jurisdiction shall, as to that jurisdiction and subject to this Section,
be ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions thereof in such
jurisdiction or rendering that or any other provisions of this Agreement
invalid, illegal, or unenforceable in any other jurisdiction. If any covenant
should be deemed invalid, illegal or unenforceable because its scope is
considered excessive, such covenant shall be modified so that the scope of the
covenant is reduced only to the minimum extent necessary to render the modified
covenant valid, legal and enforceable. No waiver of any provision or violation
of this Agreement by Employer shall be implied by Employer's forbearance or
failure to take action.
(i) Attorneys Fees. In the event that any action or proceeding
is commenced by any party hereto for the purpose of enforcing any provision of
this Agreement, the parties to such action, proceeding or arbitration may
receive as part of any award, settlement, judgment, decision or other resolution
of such action or proceeding, whether or not reduced to a court judgment, their
costs and reasonable attorneys fees as determined by the person or body making
such award, settlement, judgment, decision or resolution.
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(j) Voluntary and Knowledgeable Act. Employee represents and
warrants that Employee has read and understands each and every provision of this
Agreement and has freely and voluntarily entered into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYER:
YOUNG INNOVATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: CEO
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------------
Xxxxxx X. Xxxxxxx
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