Exhibit 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
by and between REGENERATION TECHNOLOGIES, INC., a Florida corporation (the
"Corporation") and XXXXX X. XXXXXX ("Employee").
WHEREAS, the Corporation is engaged in the business of manufacturing
products from human and animal 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 Chief Executive Officer and President. The duties of
Employee shall be those established by the Corporation's Board of Directors 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 he 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
February 9, 1998, 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 Ninety-Two Thousand Three
Hundred Ninety-Five Dollars ($192,395.00) per year, payable in equal monthly
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 agreed
upon by 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;
(iv) A comparison of Employee's performance with the
performance of the other employees of the Corporation; and
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(v) Such other matters as may be considered appropriate
by the Directors.
(c) Withholding, FICA, FUTA. Employee's compensation hereunder
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. In addition, the Corporation shall obtain and maintain in force
during the term of this Agreement a life insurance policy covering Employee's
life in a face value of not less than one million dollars ($1,000,000.00). The
death benefit of such policy shall be made payable to the beneficiary or
beneficiaries Employee may from time to time designate in writing.
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 him, 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 Time. 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
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will be no carryover of unused vacation time 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. Automobile. Employee shall provide an automobile for his use in
the conduct of the Corporation's business as a condition of his employment.
During the term of this Agreement, the Corporation shall reimburse Employee for
Employee's use of his automobile and all incidental costs associated therewith
(including, but not limited to, gas, oil, repairs, maintenance, insurance and
car telephone) in the conduct of the Corporation's business based upon the
standard mileage rate as announced from time to time by the Internal Revenue
Service for use in computing deductible costs for operating a passenger
automobile; provided, however, Employee shall be required to submit written
verification to the Corporation of the mileage, destination and purpose of each
trip for which reimbursement is requested pursuant to this Paragraph
10. Termination of Employment.
(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
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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.
(vii) Use of alcohol or narcotics to the extent it
prevents, in the sole judgment of the Corporation's Board of Directors,
Employee from effectively performing the duties set forth in Paragraph 1
above.
(viii) Violating the covenants set forth in Paragraphs
11 or 12 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.
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(c) Termination Upon Death, Incompetency or Disability.
Notwithstanding Subparagraph 10(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 either party terminates Employee's employment with the Corporation in
accordance with the terms of Subparagraph 10(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 effective date of
termination, and shall, in such event, be paid the compensation due him
hereunder for the remainder of such period.
11. Confidential Information. Employee acknowledges and recognizes
that, in connection with the performance of his 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,
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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 his own benefit, 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 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 11
shall survive the termination of Employee's employment with the Corporation and
the termination of this Agreement.
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12. 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 that are the property of the Corporation to
the Corporation and he will cooperate with the Corporation in connection with
any patent applications. In this regard, 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, he shall immediately deliver and surrender to the Corporation any
and all plans, documents and other materials of any nature relating to Employee
Developments. The Corporation may provide additional compensation to Employee as
consideration for Employee Developments in
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accordance with any patent policy of the Corporation. The provisions of this
Paragraph 12 shall survive the termination of this Agreement.
13. Limitation of Employment.
(a) In the event of the termination of Employee's employment
with the Corporation by the Corporation for cause (as defined in Subparagraph
10(b) above), Employee agrees that for a period of one (1) year following the
effective date of such termination, he will not engage in any business which
receives, processes, or distributes human tissue 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 one (1) year
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 (1) times his then-current salary (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.
(b) 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 products are
manufactured or distributed over a protracted period.
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(c) 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 him, in the form of
employment by the Corporation, in accepting this covenant as a material term of
the Agreement.
(d) 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 13, and that period will begin to run again
from the date Employee ceases such violation.
(e) This Paragraph 13 will survive the termination of this
Agreement and the termination of Employee's employment with the Corporation.
14. Remedies For Breach. The parties understand 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 a violation by Employee
of the covenants contained in Paragraphs 11, 12 or 13 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 11, 12 and/or 13, 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 11, 12 and/or 13 above, whether incurred at
the trial level or in any appellate proceeding. The provisions of this Paragraph
14 shall survive the termination of this Agreement.
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15. 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;
(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.
Notwithstanding the foregoing, Employee may bind the Corporation under
contracts, agreements, notes, mortgages or other obligations up to a value of
$100,000, provided the approval and signature of either the Corporation's Chief
Operating Officer or Chief Financial Officer is also obtained with respect to
same.
16. 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.
17. Attorney's Fees and Costs. Except as provided in Paragraph 14
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 incurred at the trial level or in any appellate proceeding.
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18. 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.
19. Completeness of Agreement. All understandings and agreements
heretofore made between the parties hereto with respect to the subject matter of
this Agreement 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.
20. 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: Board of Directors - Compensation Committee
If to Employee:
Xxxxx X. Xxxxxx
0000 XX 00xx Xxxx
Xxxxxxxxxxx, Xxxxxxx 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
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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.
21. Assignment. Neither party to this Agreement may assign its
rights or obligations hereunder without the prior written consent of the other
party.
22. 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.
23. 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.
24. 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.
25. 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)
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on
this 12th day of February, 1998.
WITNESSES: "CORPORATION"
Regeneration Technologies, Inc.
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
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"EMPLOYEE"
/s/ [ILLEGIBLE] /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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