Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of June 12,
2002, by and between YOUNG INNOVATIONS, INC., a Missouri corporation
("EMPLOYER"), and Xxxxxx X. Xxxxxxx, Xx., of Chicago, 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 June 12, 2005 (such period, the
"TERM"); PROVIDED, HOWEVER, that the Term shall automatically be extended for an
additional period of one year on June 12, 2005, and on each June 12 thereafter
unless the Employer delivers written notice to the Employee of the Employer's
intention not to so extend the Term not later than six (6) months prior to its
expiration.
3. POSITION AND DUTIES. Employee hereby agrees to serve as President and
Chief Executive Officer or in such other capacity to which the Employee may be
promoted during the term hereof. 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 President
and Chief Executive Officer or in such capacity as Employee may then be serving.
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
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 $350,000 per year during the Term hereof, or such higher amounts as shall be
recommended by the Compensation Committee and approved by 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 recommended by the Compensation
Committee and approved by 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 vacation pay.
(d) OTHER BENEFITS. Subject to Employer's rules, policies and
regulations as in effect from time to time, 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, (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).
(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.
-2-
(f) LIFE AND OTHER INSURANCE. Employer will continue to provide $2
million of guaranteed level premium term life insurance coverage (naming
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 insure 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 of not less than $1,000 per month.
(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 second 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 one year after the end of the Term, 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
anticipation of such Change In Control, then Employee 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 equal to the excess, if any, of (a) 2.9999 times the "base
amount" (as such term is used in Section 280G(b)(3) of the Code), over (b) the
aggregate present value of payments in the nature of compensation (including the
vesting of stock options or other property) to Employee contingent upon the
Change In Control under or in connection with this Agreement and all plans,
arrangements, obligations or
-3-
other agreements between Employer and Employee ("Such Payments"). However, in no
event may the aggregate present value of Such Payments to Employee exceed 2.9999
times the "base amount," and the Employee agrees to reduce the amount permitted
to be paid pursuant to this Agreement or other payments or benefits which may be
subject to Section 280G of the Code to comply with this limitation. 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) or 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 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.
-4-
(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
provides 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 notice period (in addition to his Base Salary and Bonus
Compensation during the 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 other than Base Salary earned through
the date of termination.
(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 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
-5-
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 no duty to mitigate such amount by obtaining other employment.
However, the amounts payable hereunder shall be reduced by 25% of the base
salary and bonus which Employee earns from new employment during such period.
Employer may also require Employee to fully and completely release any and all
claims for breach of this Agreement at the time of termination 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 that 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
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 employment, Employee shall be deemed to
have resigned from all offices and directorships then held with Employer
and each of its affiliates.
-6-
(iii) The representations and warranties contained herein and
Employee's obligations under Sections 6(f), 8, and 11 shall survive
termination of employment and the expiration of the Term 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 nationally-recognized 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:
(1) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of
Employer representing 20% or more of the combined voting
power of Employer's then outstanding securities (other
than Xxxxxx X. Xxxxxxxx and members of his family);
however, a Change In Control shall not
-7-
occur under this Section 7(f)(1) if Xxxxxx X. Xxxxxxxx and
members of his family continue to be the beneficial
owners, directly or indirectly, of more than 30% of the
combined voting power of the then outstanding securities
of the Employer and no other person or group is or becomes
the beneficial owner, directly or indirectly, of combined
voting power of the Employer equal to or greater than that
beneficially owned, directly or indirectly, by Xxxxxx X.
Xxxxxxxx and members of his family;
(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) a complete
liquidation or dissolution of Employer or (iii) the sale
or other disposition of all or substantially all of the
assets of Employer.
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
-8-
descendants or trusts for any of their benefit, shall be deemed to be owned by
Xxxxxx X. Xxxxxxxx and members of his family.
(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, (i) a material and adverse change in Employee's duties,
responsibilities or status with Employer or an affiliate 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)
a change in Employee's job location beyond an area outside of a 25-mile radius
of Employee's principal office or (iv) 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) PERMANENT DISABILITY shall have the meaning set forth in
Section 22(e)(3) of the Code.
(k) 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".
(l) 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.
-9-
(m) VOLUNTARY TERMINATION 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.
(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.
-10-
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.
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
-11-
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 of his employment for Cause or
Voluntary Termination without Good Reason (provided that no Change of Control
has occurred), 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-SOLICITATION. 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 solicit 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.
(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
-12-
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. 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 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
-13-
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 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
Northern District of Illinois or, in the event such court cannot or will not
exercise jurisdiction, in the state courts of the State of Illinois (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 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.
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
-14-
committing or continuing any breach of such provisions, 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.
(b) GOVERNING LAW. This Agreement shall be governed as to its
validity and effect by the internal laws of the State of Illinois, 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,
-15-
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 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 the Employment Agreement dated October 1, 1999 by and between
Employer and Employee (the "PRIOR EMPLOYMENT AGREEMENT"). Employee and Employer
hereby agree that the Prior Employment Agreement is hereby terminated effective
as of the date hereof and that the Prior Employment Agreement shall thereafter
be null and void and of no further force and effect.
(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 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.
-16-
(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. 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) 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. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chief Financial Officer
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------------
-17-
