EMPLOYMENT AGREEMENT
EXHIBIT 10.21
Confidential
This
Employment Agreement (“Agreement”), effective as of the 18, day of June 2007
(“Effective Date”), is entered into by and between Bovie Medical Corporation, a
Delaware corporation, with its principle business address at 0000 00xx Xxxxxx
X, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as “the Company”), and
Xxxx X. Xxxxxxx (hereinafter referred to as “the Employee”), and is approved by
the Bovie Medical Corporation Board of Directors on the ____ day of __________
2007.
WITNESSETH:
WHEREAS,
the Company is a corporation existing and authorized to do business in Delaware
and Florida; and
WHEREAS,
the Company is desirous of securing Employee’s services and Employee is willing
to provide such services under the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, for and in consideration of the mutual covenants contained herein,
the sufficiency of which is hereby acknowledged, Company and Employee (each, a
“Party,” and collectively, the “Parties”) agree as follows:
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1)
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EMPLOYMENT OF
EMPLOYEE: The Company hereby agrees to employ the Employee, and the
Employee hereby agrees to accept said employment pursuant to the terms and
conditions of this Agreement.
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2)
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DUTIES: The
Employee shall render, as a full-time employee, professional services as
Chief Financial Officer of the Company, reporting to Company’s Chief
Operating Officer (or his designee), and shall perform such additional
duties as may be assigned to the Employee by the Board of Directors of the
Company. The Employee agrees to devote all of his time and
efforts to the performance of his duties hereunder, except for customary
vacations and reasonable absences due to illness, or other incapacity, as
set forth herein, and to perform all of his duties to the best of his
professional ability and to comply with such reasonable policies,
standards, and regulations of the Company as are from time to time
established by the Board of Directors of the Company. Nothing contained
herein shall be construed so as to prohibit or prevent the Employee from
engaging in any business activity as long as such activities do not
conflict or interfere with the satisfactory performance of his duties
hereunder, or which compete, directly or indirectly, with Company or its
Affiliates. "Affiliate(s)," as to either
Party, means any other person or entity that, directly or indirectly,
controls, is under common control with, or is controlled by, that Party.
For purposes of this definition, "control" (including, with its
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any person or entity, shall mean direct or
indirect ownership of more than Fifty Percent (50%) of the voting stock or
(partnership) shares of such person or
entity.
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3)
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TERM: The
Employee’s initial term of employment under this Agreement shall commence
on the Effective Date and shall continue until two (2) years thereafter,
or until terminated as hereinafter provided (the
“Term”). Subject to the approval of the Company’s Board of
Directors, the Term of this Agreement shall be automatically extended for
continuous terms of one (1) year unless the Company provides the Employee
with advance written notice of its intention not to renew this Agreement
of at least three hundred and sixty-five (365)
days.
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4)
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PLACE OF
EMPLOYMENT: Unless expressly approved otherwise by the Company
Board of Directors, during the Term, the Employee will permanently reside
and work in the Tampa Bay, Florida
area.
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5)
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COMPENSATION:
For all services rendered to the Company, the Employee agrees to accept as
total compensation the sum computed as follows, payable in accordance with
the Company’s standard payroll procedures, established and approved by the
Company Board of Directors, as
amended:
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a.
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During
the Term, the Employee shall receive the sum equal to Ninety Thousand U.S.
Dollars (US$90,000) per year, payable in accordance with the standard
payroll practices of the Company.
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b.
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Bonuses:
Shall be determined from time to time by the Company Board of Directors at
its discretion.
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6)
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VACATION/SICK:
The Employee shall be entitled to a vacation with full pay, of three (3)
weeks (fifteen (15) working days), during each 12-month period of
Employee’s employment hereunder. The scheduling of any vacation shall be
coordinated with the Company so that the needs of the Company are met to
the extent reasonably possible. The Employee may be entitled to such
further paid vacation as may be approved in writing by the Board of
Directors of the Company. Any accrued vacation not taken by the Employee
during a year shall be available for use in subsequent
year. The Employee may elect to receive a cash payment for one
(1) week’s vacation, in lieu of taking such vacation, every calendar year
during the Term. The Employee shall be granted sick time in
accordance with Company policy, as outlined in the Company’s Employee
Handbook, as amended.
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7)
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REIMBURSEMENT OF
BUSINESS EXPENSES: The Company agrees to pay, either directly or
indirectly, by payment to the Employee, for all the Employee’s approved
entertainment, travel and miscellaneous business expenses incurred by him
during the course of his employment. Employee shall be entitled, on
approved business-related travel, coach airline tickets on domestic travel
and business class airline tickets on international travel, and a full
size rental automobile. As a prerequisite to any payment or reimbursement
by the Company for business expenses, the Employee shall submit receipts
of all such expenses to the Company, and the Company’s obligation to
effect payment or reimbursement of such expenses shall be only to the
extent of such receipts.
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8)
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ADDITIONAL
BENEFITS: The Company shall obtain and pay for group medical and
dental insurance for the Employee and his dependents, under such insurance
program and plan that the Board of Directors of the Company deems
appropriate. The Company shall obtain and pay for term life insurance in
the amount of $50,000.00 for the Employee under such insurance program and
plan that the Board of Directors of the Company deems appropriate. The
Company shall further provide a disability plan upon such terms and
conditions that are, at a minimum, equal to or better than those
maintained by the Company as of the Effective
Date.
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9)
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PROPERTY
DEFINED: The Employee understands and agrees that Company
Intellectual Property, files, customer files, correspondence, e-mails,
memos, legal files, research files, engineering files, development
materials, notes, analyses, compilations, studies, interpretations and
other documents (regardless of form or medium) and information, form
files, forms, examples, test data, samples, and all briefs and memoranda,
and other work product, related in any way to Company customers, products,
plans, designs, concepts, ideas, research, development, know-how, costs,
prices, finances, marketing plans, business opportunities, or personnel
are the sole and exclusive property of the Company (collectively “Company
Property”); and the same shall remain in the possession of the Company and
shall constitute the property of the Company irrespective of who prepared
the same. The Employee shall not remove, photocopy, photograph or in any
other manner duplicate, translate, compile, summarize, transmit, convey,
or remove, said Company Property. “Intellectual Property”
means all intellectual property rights, both domestic and foreign,
including any and all tangible and intangible trade secret rights, patents
rights (including registrations, applications, renewals, extensions,
continuations, divisions, reexaminations and reissues), processes,
know-how, prototypes, specifications, drawings, designs, tools, industrial
property rights, shop rights, inventions, improvements, developments or
discoveries, whether conceived or made by Employee or not, and whether
patentable (or registrable) or not.
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10)
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DISPOSITION OF
PROPERTY DURING AND AFTER EMPLOYMENT: The Employee agrees and
understands that all Confidential Information (as defined below) and
Company Property are and shall remain, during and after the Term, the sole
and exclusive property of the Company, and the Employee shall have no
right, title or interest in or to the
same.
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Employment
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11)
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TERMINATION OF
EMPLOYMENT: The employment of the Employee may be terminated as
follows:
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a.
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By
the death of the Employee, in which case the Company shall pay the
Employee’s estate the basic annual compensation due the Employee,
pro-rated through the date of
termination.
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b.
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By
the Employee, at any time upon at least sixty (60) days prior written
notice to the Company, in which case the Company shall be obligated to pay
the Employee the basic annual compensation due him pro-rated to the date
of termination.
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c.
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By
the Company, without cause, with the majority approval of the Board of
Directors of the Company, at any time upon at least thirty (30) days prior
written notice to the Employee, and the Company shall be obligated to pay
the Employee compensation currently in effect including all bonuses (if
any), accrued or prorated, and approved expenses, up to the date of
termination. During any subsequent time remaining on this Agreement, the
Company shall pay the Employee the salary in effect at the time of
termination, payable weekly or as otherwise mutually agreed in writing.
Employee shall not have to account for other compensation from other
sources or otherwise mitigate his damages due to termination pursuant to
this subparagraph.
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d.
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By
the Company, if during the term of this Agreement the Employee (i)
violates the provisions of Paragraph 12 or Paragraph 13 hereof, (ii) is
found guilty in a court of law of any crime of moral turpitude, or (iii)
breaches this Agreement and such breach remains uncured ten (10) days
after Employee’s receipt of Company’s written notice of Employee’s breach
or threatened breach.
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12)
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NON-COMPETITION AND
PRESERVATION OF NON-TRADE SECRET PROTECTIVE BUSINESS INTERESTS:
During and upon expiration or termination of this Agreement, and for
twelve (12) months thereafter, irrespective of the time, manner, or method
of such expiration or termination, the Employee shall not, without the
express written consent of the Company, directly or indirectly, consult
with, render services to, or otherwise participate or attempt to
participate in any manner in a business, which competes with the Company
or its Affiliates, within the geographic areas where the Company or its
Affiliates, or the Employee, conducted business during the twenty-four
(24) month period directly preceding any expiration or termination of this
Agreement, and Employee:
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a.
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Shall
not use or disclose any Confidential Information to any person or entity
without the written authorization of the Company. “Confidential
Information” includes, but is not limited to, information concerning
Company’s or its Affiliates’ customers, products, designs, engineering and
manufacturing methods, pricing information and methods, training and
operational procedures, advertising, marketing, and sales information,
financial information, and other data, concepts, strategies, methods,
procedures or other confidential information, that is not a “trade
secret,” as defined by Florida Statute §688.002 (2006), as
amended;
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b.
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Shall
not solicit, directly or indirectly, any existing or potential client or
customer with whom the Company has or may have a business relationship. A
potential client or customer is defined as any person or entity that the
Company or Employee actively solicited, or engaged in business activity,
during the twenty-four (24) month period directly preceding the expiration
or termination of this Agreement;
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c.
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Shall
not hire, recruit, or attempt to recruit, any person employed by the
Company at the time of the expiration or termination of this Agreement for
any person or business entity which competes or plans to compete with the
Company;
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d.
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Shall
not adversely affect the Company’s customer goodwill associated with (1)
an ongoing business by way of trade name, trademark, service xxxx, trade
dress and the like; (2) a specific geographical location; or (3) a
specific marketing or trade area;
and
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Agreement – Xxxx X. Xxxxxxx (06.18.07)
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e.
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Shall
not use extraordinary or specialized training received from the Company
except for the benefit of the Company, within the scope of Employee’s
employment hereunder.
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f.
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This
Non-Competition and Protection of Non-Trade Secret Protectable Business
Interest provision is expressly intended to benefit the Company and its
Affiliates, their respective successors and assigns (the “Third Party
Beneficiaries”), and the Company and the Third Party Beneficiaries are
expressly authorized to enforce this
provision.
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g.
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Employee
agrees that the precise value of the covenants in Section 12 (and Section
13) are so difficult to evaluate that no accurate measure of liquidated
damages could possibly be established and that, in the event of a breach
or threatened breach, the Company is entitled to temporary and permanent
injunctive relief restraining Employee from such breach or threatened
breach. In the event that any covenants made in this Section shall be more
restrictive than permitted by applicable law, it shall be limited to the
extent which is so permitted.
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13)
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PRESERVATION OF TRADE
SECRETS: During the Term, and upon the expiration or termination of
this Agreement, the Employee shall not, directly or indirectly, use or
disclose any “trade secret” (as that term is defined by Florida Statute
§688.002 (2006), as amended) of the Company or its Affiliates, or allow
any such trade secret to be disclosed to or used by any person or entity,
for any reason or purpose whatsoever, except as expressly authorized, in
writing, by the Company’s Chief Executive Officer or Chief Operating
Officer. In addition, the Employee will not accept any employment or other
business relationship which would, by the nature of the position, involve
the inevitable disclosure of any such trade
secret.
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This
Non-Disclosure of Trade Secrets provision is expressly intended to benefit the
Company and the Third Party Beneficiaries, and the Company and the Third Party
Beneficiaries are expressly authorized to enforce this provision.
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14)
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INDEMNIFICATION:
The Company shall indemnify the Employee from liability in connection with
his acting as an officer or director of Company, including but not limited
to, indemnification for legal expenses and out-of-pocket disbursements in
connection with defense of any claim or lawsuit against him based upon
acts or omissions by him during the period that he was an officer or
director of the Company. However, the foregoing indemnification as to
certain acts shall not apply in the event it is determined by a court of
competent jurisdiction that the Employee, during his tenure as an officer
or director had (a) breached his duty of loyalty to the Company or its
stockholders; (b) acted not in good faith or had intentionally acted
against the best interests of the Company or the stockholders; (c) paid
unlawful dividends or made unlawful stock repurchases or redemptions; or
(d) engaged in a transaction in which he had received an improper personal
benefit against the interest of the Company or its
shareholders.
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15)
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NOTICES: Any
notice required or permitted to be given pursuant to the provisions of
this shall be sufficient if in writing, and if personally delivered to the
Party to be notified or, if sent by registered or certified mail, to said
Party at the following
addresses:
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If
to the Company:
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Bovie
Medical Corporation
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0000
00xx
Xxxxxx Xxxxx
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Xx.
Xxxxxxxxxx, XX 00000
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Attn:
Xxxxx Citronowicz, COO & VP
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If
to the Employee:
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Xxxx
X. Xxxxxxx
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0000
Xxxx Xxxxxxxx Xxxxx Xxxx
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Xxxxx,
XX 00000
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Employment
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16)
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UNREASONABLE
COMPENSATION: It is agreed that in the event all or any part of the
compensation paid to the Employee hereunder shall be disallowed by the
Internal Revenue Service as a deduction by the Company under Section 162
of the Internal Revenue Code of 1986, as amended, (or shall be disallowed
as a deduction for state or local income purposes) and interest or other
tax “costs” to the Company, as the case may be, attributable to said
disallowance shall be determined and shall be a debt payable on demand by
the Employee to the Company, which the Company may recover as a setoff
against future compensation.
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17)
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BYLAWS;
MISCELLANEOUS: This Agreement is made subject to and with reference
to the Bylaws of the Company, which are incorporated herein by reference,
and which the Employee accepts as binding upon
him.
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18)
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SEVERABILITY:
In the event any portion of this Agreement is held to be invalid or
unenforceable, the invalid or unenforceable portion or provision shall not
affect any other provision hereof and this Agreement shall be construed
and enforced as if the invalid provision had not been
included.
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19)
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BINDING EFFECT:
This Agreement shall inure to the benefit of and shall be binding upon the
Company and upon any person, firm or corporation with which the Company
may be merged or consolidated or which may acquire all or substantially
all of the Company’s assets through sale, lease, liquidation or otherwise.
The rights and benefits of Employee are personal to him and no such rights
or benefits shall be subject to assignment or transfer by
Employee.
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20)
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GOVERNING LAW:
The laws of the State of Florida, without regard to their choice of law
principles, govern all matters arising from or related to this
Agreement.
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21)
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ENTIRE
AGREEMENT: This Agreement constitutes the entire agreement between
the Parties and supersedes and replaces any prior agreement regarding the
subject matter hereof, and there are no other agreements between the
Parties pertaining to such subject matter, except as expressly set forth
herein.
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22)
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AMENDMENT AND
MODIFICATION: All terms, conditions and provisions of this
Agreement shall remain in full force and effect unless modified, changed,
altered or amended, in writing, executed by authorized representatives of
both Parties.
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IN WITNESS WHEREOF, the
Parties hereto have set their hands and seals effective on this day and
year first above written.
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EMPLOYEE:
Xxxx X. Xxxxxxx
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COMPANY:
Bovie Medical Corporation
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/S/ Xxxx X. Xxxxxxx
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/S/ Xxxxxx Xxxxxxxx
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Xxxx
X. Xxxxxxx, Employee
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Xxxxxx
Xxxxxxxx, CEO (Bovie)
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Xxxxx
Citronowicz, VP & COO (Bovie)
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Signed
Sealed and delivered in the presence of:
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Witness
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Witness
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Employment
Agreement – Xxxx X. Xxxxxxx (06.18.07)
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