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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of July
25, 2000, by and between YOUNG INNOVATIONS, INC., a Missouri corporation
("EMPLOYER"), and XXXXXX X. XXXXXXXX, of Xx. Xxxxx, XX 00000 ("Employee").
In consideration of the long-term service of Employee as Chief
Executive Officer of Employer, 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. Position and Duties. Employee hereby agrees to serve as Chief
Executive Officer or Chairman of the Board, though it is understood that
Employee intends to transition to the role of Chairman during the term of this
Agreement. Employee's primary duties shall be to support the process of
effecting an orderly transition of management and provide strategic direction
for Employer. In addition, Employee shall be involved in external activities
related to the business to help guide and support the strategic direction 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.
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4. Compensation.
(a) Salary. Employer shall pay to Employee salary at the rate
of $250,000 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 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) 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.
(e) 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 the Employer by: i) failure to enter into a new employment
contract or extension(s) of this Agreement, ii) Voluntary Termination by
Employee (With or Without Good Reason), or iii) Termination by the Employer
Without Cause, the 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
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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 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 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 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, whereupon
Employer shall have no further obligations to Employee under Section 4 of this
Agreement, except as set forth in Section 4(e). 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 six-month notice period (in addition to his Base Salary during
the six-month notice period). If Employee Voluntarily Terminates without Good
Reason but provides less than 6 months written notice, then Employee will be
entitled to no further payments of Base Salary from and after the effective date
of termination.
(c) 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 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.
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(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) The representations and warranties contained herein
and Employee's obligations under Sections 5(f), 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 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) CODE shall mean the Internal Revenue Code of 1986, as
amended.
(g) EFFECTIVE DATE shall mean January 1, 2000.
(h) EXCHANGE ACT shall mean the Securities Exchange Act of
1934, as amended.
(i) GOOD REASON shall mean, with respect to a Voluntary
Termination by Employee, if (i) a material and adverse change in Employee's
duties, responsibilities or status with Employer or an affiliate is made without
Cause, other than as agreed to by Employer and Employee, (ii) a reduction in the
annual compensation or total benefit package of Employee
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(other than a comparable reduction in cash compensation or benefits generally
affecting substantially all officers or executive employees of Employer), (iii)
amendment of this Agreement without Employee's consent; (iv) a change in
Employee's job location beyond an area outside of a 50-mile radius of Employee's
principal office or (v) 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.
(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 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.
(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
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set forth in Section 4(e) of this Section 7, 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
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 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 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
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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
(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 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 (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 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.
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(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 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:
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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 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 (together with any option
agreement Employer may require Employee to execute in order to avail
himself/herself of any stock option plan benefits specifically contemplated
herein and any agreement to release and hold harmless Employer executed
concurrently therewith) 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 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.
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(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 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.
* * *
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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:
-----------------------------------
Name:
Title:
EMPLOYEE:
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Xxxxxx Xxxxxxxx
00
