Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
15th day of June, 1998, by and between REGENERATION TECHNOLOGIES, INC., a
Florida corporation (the "Corporation") and XXXXXX XXXXXX ("Employee").
WHEREAS, the Corporation is engaged in the business of manufacturing
products from bone tissue in Alachua, Florida; and
WHEREAS, the Corporation desires to employ Employee and Employee desires
to accept such employment during the term of this Agreement and upon the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and the benefits
accruing to the parties hereto, the parties agree as follows:
1. Employment. The Corporation hereby agrees to employ Employee, and
Employee hereby agrees to accept such employment, to render services on behalf
of the Corporation as Director of Marketing. The duties of Employee shall be
those established by the Corporation's Board of Directors, or its officers, from
time to time.
2. Devotion to Employment. During the term of this Agreement, Employee
shall devote his full time on behalf of the Corporation, and Employee shall not
engage in any other gainful employment without the written consent of the
Corporation. Provided, however, that nothing contained herein shall prohibit
Employee from investing or trading in stocks, bonds, commodities or other forms
of investment, including real property.
3. Term of Agreement. This Agreement shall be effective as of the date
first written above, and it shall continue in full force and effect for a period
of five (5) years unless sooner terminated as hereinafter provided.
4. Compensation.
(a) Annual Salary. The Corporation shall pay to Employee as
compensation for his services a salary of One Hundred Forty-Eight Thousand
Dollars ($148,000.00) per year, payable in equal biweekly installments.
Employee's salary shall be reviewed annually by the Corporation's Board of
Directors, at which time Employee's salary may be adjusted as mutually agreed
upon by Employee and the Corporation's Board of Directors.
(b) Performance Bonus. To provide greater incentive for Employee by
rewarding him with additional compensation, a cash bonus may be paid to Employee
at any time during the year, or after the close of the year, based upon the
performance of the Corporation and the performance of Employee during such year;
provided, however, that the payment of any such bonus and the amount thereof
shall be within the sole discretion of the Corporation's Board of Directors. In
making such determination, the Directors will consider the following:
(i) The net profits of the Corporation for the year;
(ii) The base salary of Employee;
(iii) Employee's overall performance as an employee of
the Corporation;
-2-
(iv) A comparison of Employee's performance with the
performance of the other employees of the Corporation; and
(v) Such other matters as may be considered appropriate by the
Directors.
The performance bonus described herein, if any, shall not exceed twenty
percent (20%) of Employee's base annual salary.
(c) Stock of the Corporation. The Corporation shall issue to
Employee the option to purchase Forty-Five Thousand (45,000) shares of common
stock of the Corporation (the "Shares") at a price and on the terms set forth in
the "Regeneration Technologies, Inc. Omnibus Stock Plan." The Shares shall be
issued as described therein only upon Employee's execution of a Stock
Restriction Agreement for Regeneration Technologies, Inc. (the "Stock
Restriction Agreement"), which, inter alia restricts the transfer of the Shares
and contains certain buy-back provisions regarding the Shares upon the
termination of Employee's employment with the Corporation.
(d) Withholding, FICA, FUTA. Employee's salary and performance
bonus, if any, shall be subject to, and reduced by, applicable federal income
tax withholding and FICA tax, and any other taxes imposed by law.
5. Fringe Benefits. During the term of this Agreement, Employee shall be
entitled to all fringe benefits offered generally to the Corporation's
managerial employees as established or modified from time to time by the
Corporation, subject always to the rules in effect regarding participation in
such plans. Notwithstanding the foregoing, Employee shall not be entitled to
receive health insurance, life insurance, or long term disability insurance
-3-
until the three month waiting period, commencing on Employee's first day of
performance hereunder, has expired. During such three month waiting period, the
Corporation shall reimburse Employee for his actual out-of-pocket expenses
incurred in maintaining his pre-existing health, life, and long term disability
coverages, if any. Employee shall not be entitled to any other fringe benefits
as a result of his employment with the Corporation.
6. Business Expenses. Except as otherwise provided herein, the Corporation
shall pay, either directly or by reimbursement to Employee, such reasonable and
necessary business expenses incurred by Employee in the course of his employment
by the Corporation as are consistent with the Corporation's policies in
existence from time to time, subject to such dollar limitations and verification
and record keeping requirements as may be established from time to time by the
Corporation.
7. Vacation. Employee shall be entitled to four (4) weeks paid vacation
time each calendar year, prorated in accordance with Corporation policy. All
vacations shall be taken by Employee at such time or times as may be approved by
the Corporation. There will be no carryover of unused vacation time or sick
leave from one year to another, and no compensation for such unused vacation or
sick leave, if any.
8. Time Off. Employee shall be entitled to such time off with pay for
attendance at seminars, courses, meetings and conventions as is authorized by
the Corporation from time to time. The specific seminars, courses, meetings and
conventions to be attended by Employee shall be subject to the Corporation's
prior approval.
9. Termination of Employment.
-4-
(a) Voluntary Termination. Employee or the Corporation may
voluntarily terminate Employee's employment with the Corporation (and, except as
otherwise specifically provided hereunder, this Agreement) at any time, by
delivering to the other party written notice of such intention not less than
thirty (30) days prior to the effective date of termination. Notwithstanding the
foregoing, if notice of termination is given by Employee to the Corporation,
then the Corporation shall have the option of advancing the effective date of
such termination to any date after receipt of such notice from Employee, which
option shall be exercised by the Corporation within three (3) business days of
receipt of such notice.
(b) Termination for Cause. The Corporation may immediately terminate
Employee's employment with the Corporation (and, except as otherwise
specifically provided hereunder, this Agreement) for "cause" by giving written
notice (without regard to the thirty (30) day period provided above) of such
termination to Employee specifying the grounds therefor. A termination for
"cause" shall only be for any one or more of the following reasons:
(i) Willfully or negligently damaging the Corporation's
property, business, reputation or goodwill.
(ii) Willfully injuring any employee of the Corporation.
(iii) Willfully injuring any person in the course of the
performance of services for the Corporation.
(iv) Lawfully charged with commission of a felony.
(v) Stealing, dishonesty, fraud or embezzlement.
(vi) Deliberate and continuous neglect of duty.
-5-
(vii) Use of alcohol or narcotics to the extent it prevents,
in the sole judgment of the Corporations Board of Directors,
Employee from effectively performing the duties set forth in
Paragraph 1 above.
(viii) Violating the covenants set forth in Paragraphs 10 or
11 of this Agreement.
The decision to terminate Employee's employment for "cause" shall be
made by the Corporation's Board of Directors in its sole discretion.
(c) Termination Upon Death, Incompetency or Disability.
Notwithstanding Subparagraph 9(a) above, the Corporation shall have the right to
terminate Employee's employment with the Corporation (and, except as otherwise
specifically provided hereunder, this Agreement) immediately and without prior
written notice to Employee in the event that Employee dies, or is adjudicated
incompetent, or is "permanently disabled", as hereinafter defined. As used
herein, the term "permanently disabled" shall mean that Employee is unable to
adequately perform his regular duties hereunder as a result of sickness or
accident and such condition appears to be permanent. The determination of
"permanent disability" shall be made by the Corporation's Board of Directors in
its sole and absolute discretion and its decision shall be final and binding on
Employee unless found to be arbitrary or capricious by a court of competent
jurisdiction.
(d) Performance of Duties During Notice Period. In the event that
Employee terminates Employee's employment with the Corporation in accordance
with the terms of Subparagraph 9(a), Employee, if requested by the Corporation,
shall continue to render services hereunder on behalf of the Corporation for the
thirty (30) day period until the
-6-
effective date of termination, and shall, in such event, be paid the
compensation due Employee hereunder for the remainder of such period.
10. Confidential Information. Employee acknowledges and recognizes that,
in connection with the performance of Employee's duties and obligations for the
Corporation, Employee has and will have access to certain confidential
information of the Corporation, including, but not limited to any intellectual
property of the Corporation, the identity of the Corporation's clients, the
identity of prospective clients, the existence of negotiations with prospective
clients of the Corporation, all drawings, records, sketches, models, financial
information, customer information, trade secrets, and trade secrets relating to
services of the Corporation, and products being developed by the Corporation
(the "Confidential Information"). Employee hereby acknowledges that the
maintenance of the confidentiality of the Confidential Information and
restrictions on the use of the Confidential Information is essential to the
Corporation. Employee shall not, at any time, whether during the term of this
Agreement or after the termination of Employee's employment with the
Corporation for any reason whatsoever, divulge or reveal any of the Confidential
Information to any person, party or entity, directly or indirectly. In addition,
Employee shall not utilize any of the Confidential Information for Employee's
own benefit, or for the benefit of any subsequent employer or competitor of the
Corporation. Employee shall maintain the Confidential Information in strict
confidence and shall not copy, duplicate or otherwise reproduce, in whole or in
part, such Confidential Information, except as necessary for Employee to perform
services for the Corporation. Upon the termination of Employee's employment by
the Corporation, or at the
-7-
earlier request of the Corporation, Employee shall immediately surrender to the
Corporation any and all memoranda, records, files or other documents and any
other materials (including photocopies or other reproductions) containing or
relating to the Confidential Information. Employee shall indemnify and hold the
Corporation harmless from any loss, damage, expense, cost or liability arising
out of any unauthorized use or disclosure of the Confidential Information by
Employee. The provisions of this Paragraph 10 shall survive the termination of
Employee's employment with the Corporation and the termination of this
Agreement.
11. Employee Developments. Employee is aware and understands that, during
the term of Employee's employment with the Corporation or with the financial and
other assistance that may be provided by the Corporation, Employee may invent,
create, develop and improve certain valuable property such as, but not limited
to, patents, trademarks, inventions, other patentable inventions and other trade
secrets and formula, where such valuable property is (1) created during
Employee's normal work hours; (2) created using the equipment or facilities of
the Corporation; (3) created by Employee under the supervision or guidance of
the Corporation; or (4) within the field of use which includes human or animal
allograft tissue ("Employee Developments"). Employee agrees that all Employee
Developments that may be developed or produced by Employee during Employee's
employment by the Corporation are and will be the property of the Corporation
and that Employee further agrees that he will, at the request of the
Corporation, execute such documents as the Corporation may reasonably request
from time to time, to assign and transfer all of the right, title and interest
in Employee Developments to the Corporation and he will cooperate with the
Corporation in connection with any patent applications. In this regard,
-8-
Employee will, at all times, fully advise and inform the Corporation of all
matters that Employee may be developing or working on while employed by the
Corporation. Employee further agrees that upon the termination of his employment
with the Corporation for any reason whatsoever, Employee shall immediately
deliver and surrender to the Corporation any and all plans, documents and other
materials of any nature relating to the Employee Developments. The Corporation
may provide additional compensation to Employee as consideration for Employee
Developments in accordance with any patent policy of the Corporation. The
provisions of this Paragraph 11 shall survive the termination of this Agreement.
12. Limitation of Employment.
(a) After nine months of performance hereunder, in the event of the
termination of Employee's employment with the Corporation either by the
Corporation for cause (as defined in Subparagraph 9(b) above) or voluntarily by
Employee, Employee agrees that for a period of two (2) years following the
effective date of such termination, Employee will not engage in any business
which receives, processes, or distributes human tissue (or in any business that
competes with the Corporation) within the United States. In the event of the
termination of Employee's employment with the Corporation by the Corporation
without cause, Employee agrees that for a period of two (2) years following the
effective date of such termination, Employee will not engage in any business
which receives, processes, or distributes human tissue (or in any business that
competes with the Corporation) within the United States; provided, however, that
Employee shall then be entitled to a severance payment in the amount of one-half
(1/2) his then current annual salary (computed without reference to shares of
stock in the Corporation, fringe benefits, or any other form of compensation).
The
-9-
Corporation may require Employee to execute a release of claims against the
Corporation as a condition precedent to its obligation to make the severance
payment described herein.
(b) During the first nine months of performance hereunder, in the
event of the termination of Employee's employment with the Corporation either by
the Corporation for cause (as defined in Subparagraph 9(b) above) or voluntarily
by Employee, Employee will not engage in the tissue banking business (or in any
business that competes with the Corporation) within the United States, subject
to the following terms:
Length of Service Length of Noncompetition Period Severance Amount
----------------- ------------------------------- ----------------
0-3 months none none
4-9 months one month for each month of none
service after the third month
In the event of the termination of Employee's employment with the
Corporation by the Corporation without cause, Employee will not engage in the
tissue banking business (or in any business that competes with the Corporation)
within the United States, subject to the following terms:
Length of Service Length of Noncompetition Period Severance Amount
----------------- ------------------------------- ----------------
0-3 months none none
4-9 months one month for each month of none
service after the third month
-10-
The base salary described in this subparagraph shall be computed without
reference to shares of stock in the Corporation, fringe benefits, or any other
form of compensation. The Corporation may require Employee to execute a release
of claims against the Corporation as a condition precedent to its obligation to
make the severance payment described herein.
(c) Employee acknowledges that this restrictive covenant is
reasonably necessary to protect the Corporation's legitimate business interests,
which are represented by, among other things, the substantial relationships
between the Corporation and its licensees and tissue sources, as well as the
goodwill established by the Corporation with licensees and tissue sources in the
United States and other countries where the Corporation's tissues are
distributed over a protracted period.
(d) Employee recognizes the fact that the Corporation would not sign
this Agreement without the inclusion of this covenant, and Employee confirms the
sufficiency of the consideration received by Employee, in the form of employment
by the Corporation, in accepting this covenant as a material term of the
Agreement.
(e) The parties acknowledge and agree that no amount of money would
adequately compensate the Corporation for damages which the parties acknowledge
would be suffered as a result of the violation of the terms of this provision by
Employee, and they confirm that any such violation would result in irreparable
injury to the Corporation because of the reduction in its income caused by the
loss of or damage to the aforesaid relationships. It is agreed that the
Corporation will be entitled to specific performance of this provision, and to
injunctive relief, in view of the fact that the actual harm is not readily
ascertainable or compensable by money damages.
-11-
(f) The period set forth in subparagraph (a) above will be tolled
during any time in which Employee is in violation of the restrictive covenant
contained in this Paragraph 12, and that period will begin to run again from the
date Employee ceases such violation.
(g) This Paragraph 12 will survive the termination of this Agreement
and the termination of Employee's employment with the Corporation.
13. Remedies For Breach. It is understood and agreed by the parties that
no amount of money would adequately compensate the Corporation for damages which
the parties acknowledge would be suffered as a result of a violation by the
Employee of the covenants contained in Paragraphs 10, 11 and 12 above, and that,
therefore, the Corporation shall be entitled, upon application to a court of
competent jurisdiction, to obtain injunctive relief to enforce the provisions of
Paragraphs 10, 1] and 12. which injunctive relief shall be in addition to any
other rights or remedies available to the Corporation. If such a violation
occurs, Employee shall be responsible for the payment of reasonable attorney's
fees and other costs and expenses incurred by the Corporation in enforcing the
covenants contained in Paragraphs 10, 11 and 12 above, whether incurred at the
trial level or in any appellate proceeding. The provisions of this Paragraph 13
shall survive the termination of this Agreement.
14. Limitations on Authority. Without the express written consent of the
Corporation's Board of Directors, Employee shall have no authority to do any of
the following:
(a) Pledge the credit of the Corporation or any of its other
employees;
-12-
(b) Bind the Corporation under any contract, agreement, note,
mortgage or other obligation, except as provided in the Corporation's Standard
Operating Procedures;
(c) Release or discharge any debt due the Corporation unless the
Corporation has received the full amount thereof; or
(d) Sell, mortgage, transfer or otherwise dispose of any assets of
the Corporation.
15. Severability. If any provision of this Agreement shall be declared
invalid or unenforceable by a court of competent jurisdiction, the invalidity or
unenforceability of such provision shall not affect the other provisions hereof.
and this Agreement shall be construed and enforced in all respects as if such
invalid or unenforceable provision was omitted.
16. Attorneys Fees and Costs. Except as provided in Paragraph 13 above, in
the event a dispute arises between the parties hereto and suit is instituted,
the prevailing party in such litigation shall be entitled to recover reasonable
attorney's fees and other costs and expenses from the nonprevailing party,
whether included at the trial level or in any appellate proceeding.
17. Governing Law: Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, and venue for any
legal proceeding or action at law arising out of or construing this Agreement
shall lie in the state courts of Alachua County, Florida, or the United States
District Court For the Northern District of Florida, Gainesville Division.
18. Completeness of Agreement. All understandings and agreements
heretofore made between the parties hereto with respect to the subject matter of
this Agreement
-13-
are merged into this document which alone fully and completely expresses their
agreement. No change or modification may be made to this Agreement except by
instrument in writing duly executed by the parties hereto with the same
formalities as this document.
19. Notices. Any and all notices or other communications provided for
herein shall be given in writing and shall be hand delivered or sent by United
States mail, postage prepaid, registered or certified, return receipt requested,
addressed as follows:
If to the Corporation:
Regeneration Technologies. Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: President
If to Employee:
Xxxxxx Xxxxxx
0000 XX 00xx XXXXX
---------------------
XXXXXXXXXX, XX 00000
---------------------
provided, however, that any party may, from time to time, give notice to the
other party of some other address to which notices or other communications to
such party shall be sent, in which event, notices or other communications to
such party shall be sent to such address. Any notice or other communication
shall be deemed to have been given and received hereunder as of the date
the same is actually hand delivered or, if mailed, when deposited in the United
States mail, postage prepaid, registered or certified, return receipt requested.
20. Assignment. Neither party to this Agreement may assign its rights or
obligations hereunder without the prior written consent of the other party.
-14-
21. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective parties hereto, their heirs, legal representatives,
successors and permitted assigns.
22. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of which shall constitute but
one and the same instrument.
23. Captions. The captions appearing in this Agreement are inserted only
as a matter of convenience and in no way define, limit, construe or describe
the scope or intent of any provisions of this Agreement or in any way affect
this Agreement.
24. Employee Handbook. Employee agrees to follow and be bound by the
guidelines contained in the Corporation's Employee Handbook, as same may be
modified from time to time.
(Signatures on following page)
-15-
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date and year set forth above.
WITNESSES: "CORPORATION"
Regeneration Technologies, Inc.
[ILLEGIBLE] /s/ Xxxxx X. Xxxxxx
----------------------- --------------------------------
Xxxxx X. Xxxxxx, President
-----------------------
"EMPLOYEE"
[ILLEGIBLE] /s/ Xxxxxx Xxxxxx
----------------------- --------------------------------
Xxxxxx Xxxxxx
-----------------------
-16-
