Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into this 1st day
of April, 2002, by and between Young Innovations, Inc., a Missouri corporation
("EMPLOYER"), and Xxxxxx X. Xxxxxxxx ("EMPLOYEE").
In consideration of 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 Effective Date and shall expire on December 31, 2002 (such
period, the "INITIAL TERM"). Employer and Employee may agree to extend
employment hereunder for successive twelve (12) month terms ("SUCCESSIVE TERMS")
by agreeing to such extension(s) in writing thirty (30) days prior to the
expiration of the Initial Term or any Successive Terms. The terms of this
Agreement shall be binding during all Successive Terms, except as may be
modified in writing by agreement of the Employer and Employee.
3. DUTIES. Employee shall perform such duties as may be assigned to him
from time to time by the Board of Directors of Employer and the Chief Executive
Officer of Employer. During the Initial Term or any Successive Terms, Employee
may not undertake any other employment that in the opinion of the Board of
Directors interferes with the effective carrying out of Employee's duties
hereunder; provided, however, that, subject to Section 7, nothing herein shall
prevent Employee from entering into consulting agreements or other advisory
relationships with outside companies or making and managing personal investments
or engaging in industry related, 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) SALARY. Employer shall pay to Employee salary at the rate of $50,000
per year throughout the Initial Term or any Successive Terms, or such other
amounts as shall be agreed between Employee and Employer and as approved by the
Compensation Committee or the Board of Directors (in each case, the "BASE
SALARY").
(b) 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
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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 receive, in addition to any other amounts provided for herein, three
weeks of paid vacation.
(c) 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 other
executives of the Employer; 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).
(d) PAYMENTS ATTRIBUTABLE TO RESTRICTIVE COVENANTS. In exchange for
Employee agreeing to be subject to the provisions of Section 7(d), (e) and (f)
for the remainder of his life, following the termination of Employee's
employment with Employer by: (i) failure to enter into a new employment contract
or extension(s) of this Agreement, (ii) Voluntary Termination by Employee, or
(iii) Termination by the Employer Without Cause, Employer shall be obligated to
pay Employee $50,000 per year (pro-rata on a monthly basis throughout the year).
Such payments shall terminate beginning with the month after Employee's death.
5. TERMINATION OF EMPLOYMENT.
(a) 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 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.
(b) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION. The Employer may in
its sole discretion terminate this Agreement and Employee's employment with
Employer for Cause (as defined in Section 6(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, Employer shall promptly pay to Employee all amounts of Base
Salary accrued pursuant to Section 4 above through the date of termination,
whereupon Employer shall have no further obligations to Employee under Section 4
of this Agreement, except as set forth in Section 4(d).
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Employee and his dependents shall also be entitled to any continuation health
insurance coverage rights, if any, under applicable law.
(c) TERMINATION WITHOUT CAUSE. 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). In the event
Employee's employment with Employer is terminated pursuant to this Section 5(c),
(i) Employer shall pay to Employee all amounts of Base Salary 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 7 hereof.
In addition, if Employee's employment with Employer is terminated pursuant to
this Section 5(c), Employer shall pay to Employee the value of all compensation
and benefits that Employee would have earned under this Agreement for the
remainder of the Initial Term or any Successive Term together with all
reasonable attorneys' or other professional fees and costs incurred by Employee
in enforcing his rights under this Section 5(c). 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 and his dependents shall also be entitled to any continuation health
insurance coverage rights, if any, under applicable law.
(d) 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.
(e) 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) Employee's obligations under Sections 5(e), 7, and 10 shall
survive termination of this Agreement.
6. 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
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Employer's audited financial statements.
(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) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
(g) "EFFECTIVE DATE" shall mean the date hereof.
(h) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
(i) "IRS" shall mean the Internal Revenue Service.
(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.
(m) "VOLUNTARY TERMINATION" (including "VOLUNTARILY TERMINATES") shall
mean the termination by Employee of his employment with 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 Employee would constitute Cause.
7. RESTRICTIVE COVENANTS.
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(a) CONSIDERATION AND ACKNOWLEDGEMENTS. Employee acknowledges and agrees
that the covenants described in this Section 7 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 7 are reasonable and enforceable in every
respect under applicable law.
(b) TERM. The covenants set forth in this Section 7 shall remain in force
and effect throughout the Initial Term or any Successive Term(s) and for such
subsequent period as set forth in Section 4(d) of this Agreement, regardless of
the reason for or timing of the termination of Employee's employment.
(c) DEFINITIONS. As used in this Section 7, the following terms have the
following meanings:
(i) "EMPLOYER" shall mean Young Innovations, Inc., including any
parent, subsidiary or affiliate as of the date of this Agreement or at any time
during the Initial Term or any Successive Term(s).
(ii) "CONFIDENTIAL INFORMATION" shall include any and all
information not generally available to the public through legitimate means
regarding 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 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 Employee and 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
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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 and after his employment,
Employee 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 and after his employment,
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 7 if such activity were carried out by Employee. Employee also
specifically agrees that he will not directly or indirectly induce any other
employee of Employer to leave the employ of Employer or to carry out, directly
or indirectly, any such activity that would be prohibited by the provisions of
this Section 7 if such activity were carried out by Employee.
(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 (i) obtain, enjoy and/or
enforce Letters Patent for those inventions, innovations or improvements in the
United States and in any other country; (ii) obtain, enjoy or enforce the right
to claim the priority of the first filed patent application anywhere in the
world; or (iii) 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 his employment with Employer. 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 (x)
directly to the business of Employer or (y) to Employer's actual or demonstrably
anticipated research or development, or (2) which does not result from any work
performed by Employee for Employer.
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(h) ENFORCEMENT OF THESE COVENANTS. Employee acknowledges that full
compliance with all of the covenants set forth in this Section 7 is necessary to
enable Employer to do business with its customers and suppliers for the Initial
Term and any Successive Term(s) of this Agreement and to prevent 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, and Employer shall further
be entitled to such other relief, including money damages, as may 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 7 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.
8. 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 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 of 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. Except as specifically
provided in this Agreement, each party shall bear its own costs and attorneys'
fees incurred in connection with any such actions or proceedings.
9. INJUNCTIVE RELIEF. Employee acknowledges that damages would be an
inadequate remedy for Employee's breach of any of the provisions of Section 7 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 Section 7,
without the necessity of posting a bond.
10. 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.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
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 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
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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, 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 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, including the Employment Agreement dated July 25, 2000
by and between Employer and Employee (the "EMPLOYMENT AGREEMENT"). Employee and
Employer hereby agree that the Employment Agreement is hereby terminated
effective as of the date hereof and that the 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 option 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 agreement of the
parties 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
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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) 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.
(j) AUTHORSHIP. The parties agree that the terms and language of this
Agreement were the result of negotiations between the parties and, as a result,
there shall be no presumption that any ambiguities in this Agreement shall be
resolved against any party. Any controversy over construction of this Agreement
shall be decided without regard to events of authorship or negotiation.
* * *
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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.
---------------------------
Its: Chief Financial Officer
--------------------------
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
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