EMPLOYMENT AGREEMENT
Exhibit 10.11
EMPLOYMENT AGREEMENT (this “Agreement”) dated as of September 1, 2009 between XXXXXXX XXXXX
(the “Executive”) and MILESTONE SCIENTIFIC INC. (the “Company”).
WHEREAS, the Company would like to employ the Executive as its Chief Executive Officer; and
WHEREAS, the Company and the Executive desire to provide for the terms and conditions of the
future employment of the Executive by the Company.
NOW, THEREFORE, in consideration of the premises and covenants herein contained, the parties
hereto agree as follows:
1. New Employment Term and Suspension of Existing Employment Term, etc.
(a) Subject to the terms and conditions hereof, the Company employs the Executive and the
Executive accepts such employment for the five year period commencing September 1, 2009 and ending
August 31, 2014 (the “New Employment Term”), unless the New Employment Term is extended or
terminated as provided in Sections 2 and 7, respectively.
(b) The existing employment term (the “Existing Employment Term”), pursuant to an Employment
Agreement dated as of January 1, 2008 between the Executive and the Company (the “2008 Agreement”),
is hereby suspended as of the close of business on August 31, 2009 and the 2008 Agreement is hereby
held in abeyance as of such date (the “Suspension Date”). Notwithstanding the suspension of the
Existing Employment Term and the 2008 Agreement, the Executive shall be entitled to all
compensatory and other benefits earned by him under the 2008 Agreement prior to the Suspension Date
other than those under the 2008 Agreement or the Employment Agreement dated December 20, 2003 (the
“2003 Agreement”) deferred until the expiration of Executive’s employment by the Company. Upon
expiration of the Existing Employment Term the 2008 Agreement shall be reinstated and Executive’s
employment thereunder shall continue for the remaining 40 months specified under the 2008
Agreement.
2. Renewal. The New Employment Term shall be extended for successive one-year periods unless
prior to August 1 of any year, either party notifies the other that he or it chooses not to extend
the New Employment Term. By way of example, if neither party makes an election prior to August 1,
2014 then the New Employment Term shall automatically be extended by one additional year to August
31, 2015.
3. Duties and Responsibilities. During the New Employment Term, the Executive shall serve as
the Chief Executive Officer of the Company and as the holder of such other senior executive
positions consistent therewith as the Board may determine. He shall report to, and be subject to,
the direction of the Company’s Board of Directors with such duties and responsibilities as are
commensurate with his title and position. The Executive shall work on a substantially full time
basis and shall devote his time, energy and attention to the business of the Company; it being
understood that Executive’s employment hereunder shall not preclude his working on other
non-competitive business matters that do not interfere with his duties hereunder.
4. Compensation.
(a) Basic Compensation. In payment for services to be rendered by the Executive hereunder, the
Executive shall be entitled to annual Basic Compensation in cash, less any withholding required by
law; of $300,000 per annum, payable monthly or on such more frequent schedule as the Company may
elect.
(b) Bonus. The Executive shall be entitled to an aggregate bonus of $400,000 each year during his
employment on achieving targets set for each year by the Compensation Committee of the Board of
Directors of the Company. The Executive may also receive such other discretionary bonus amounts as
the Compensation Committee may determine. The aggregate bonus earned by Executive in any year will
be payable one-half (1/2) in cash payable as soon as practicable following the determination of the
bonus amount and one-half (1/2) by an allotment of Shares (the “Bonus Shares”) determined (based on
a valuation equal to one-half (1/2) of the aggregate bonus amount for such year) and issuable
within 15 days after the expiration of the New Employment Term, or any extension thereof, as
follows:
The Bonus Shares for each year shall be such number of Shares which, when valued at their
average closing price on the American Stock Exchange or on such other market or exchange on
which such Shares are then traded which publish actual closing prices, or at the average of
the closing bid and asked prices in the absence of closing prices, during the first fifteen
(15) trading days of December of each year during the Executive’s employment, shall equal
one-half (1/2) of the aggregate bonus amount.
The Executive acknowledges that the Shares issuable under this Section 4(b) will be taken by him
for investment and not for distribution thereof and will not be sold or otherwise disposed of in
violation of the Securities Act of 1933 as amended and the rules and regulations promulgated
thereunder.
(c) Options. If in any year the Executive receives an allotment of Bonus Shares under Section
4(b) above, he shall also be entitled to receive options to purchase two times the number of Bonus
Shares included in the allotment. The options shall be issued at the same time that the Bonus
Shares are allotted and shall be exercisable at a per share purchase price equal to 100% of fair
market value on the date of grant or 110% of fair market value if the Executive is the owner of 10%
or more of the Company’s outstanding shares. Such options shall have a five (5) year duration and
shall vest and become exercisable to the extent of one-third (1/3) of the options granted at the
expiration of each of the first three (3) years from the date of grant. The vested options shall
be exercisable only while Executive is employed by the Company or within thirty (30) days after any
termination of employment. The options shall contain anti-dilution protection in the event of
stock dividends and splits and such other provisions as are customary in option grants of this
kind.
(d) Specified Employee. If the Executive is a “specified employee” of the Company within the
meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code (the “Code”) (or any successor
provision), no payment under this Section 4 or under the provisions for the deferral of
compensation under the 2003 Agreement and 2008 Agreement in connection with the Executive’s
termination of employment (other than a payment of salary through the date of such termination, and
payments on account of termination of employment by reason of death) shall be made until the date
which is six (6) months after the date of the termination of the employment of the Executive (or,
if earlier, the date of death of the Executive); provided further, if the Company determines based
upon written advice of counsel that any such payment if made during the calendar year that includes
the termination date would not be deductible in whole or in part by reason of Code § 162(m), such
payment shall be made on January 2 of the following calendar year (or such later date as may be
required under the preceding proviso if the Executive is a “specified employee”).
5. Expenses. During the New Employment Term, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by him (in accordance with the policies
and procedures established from time to time by the Board of Directors of the Company) in
performing services hereunder, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Company.
6. Other Benefits. The Executive shall be entitled to the following additional benefits:
(a) six weeks of paid vacation during each year of the term; it being understood and agreed
that Executive shall be entitled to take such additional paid vacation time as does not interfere
with the performance of his duties hereunder and as are not reasonably objected to by the Company’s
Board of Directors.
(b) Paid holidays in accordance with the Company’s usual holiday schedule plus eight
additional paid holiday, or personal days, to be taken at such time as the Executive determines;
it being understood and agreed that Executive shall be entitled to take such additional paid
holidays or paid personal days as do not interfere with the performance of his duties hereunder and
as are not reasonably objected to by the Company’s Board of Directors.
(c) Such major medical, family health and dental coverage benefits and long-term disability
group plan coverage generally available to the Company’s officers. To the extent the Executive
qualifies, the Executive may participate in, or benefit under, any employee benefit plan,
arrangement or perquisite made available by the Company to its key executives.
(d) The Company shall reimburse the Executive for such ordinary and necessary business related
expenses as shall be incurred by the Executive in the course of the performance of his duties under
this Agreement.
(e) A monthly car allowance in the amount of the monthly rental cost of a luxury sedan or its
equivalent plus expenses for business use.
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7. Termination. The Executive’s employment hereunder may be terminated under the following
circumstances:
(a) The Company shall have the right to terminate the employment of the Executive under this
Agreement for disability in the event the Executive suffers an injury, or physical or mental
illness or incapacity of such character as to substantially disable him from performing his duties
hereunder for a period of more than one hundred eighty (180) consecutive days upon the Company
giving at last thirty (30) days written notice of termination; provided, however, that if the
Executive is eligible to receive disability payments pursuant to a disability insurance policy or
policies paid for by the Company, the Executive shall assign such benefits to the Company for all
periods as to which he is receiving payment under this Agreement.
(b) This Agreement shall terminate upon the death of Executive.
(c) The Company may terminate this Agreement at any time for “Cause” because of (i) his being
convicted of criminal charges or violating such rules and regulations of the Securities and
Exchange Commission as may result in criminal action or material fines against the Company. (ii)
Executive’s material breach of any term of this Agreement or (iii) the willful engaging by the
Executive in misconduct which is materially injurious to the Company, monetarily or otherwise;
provided, in the case or (ii) or (iii), however, that the Company shall not terminate this
Agreement pursuant to this Section 7(c) unless the Company shall first have delivered to the
Executive a notice which specifically identifies such breach or misconduct, specifies reasonable
corrective action and the Executive shall not have cured the breach or corrected the misconduct
within fifteen (15) days after receipt of such notice.
(d) The Executive may terminate his employment for “Good Reason” on five days written
notice if:
| (ii) | he is assigned, without his express written consent, any duties
inconsistent with his positions, duties, responsibilities, authority and status
with the Company as of the date hereof, or a change in his reporting
responsibilities or titles as in effect as of the date hereof, except in
connection with the termination of his employment by him without Good Reason; or |
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| (iii) | his compensation is reduced or |
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| (iii) | any purchaser or purchasers of substantially all of the business
or assets of the Company do not agree, at or prior to the closing of any such
transaction, by agreement in form and substance satisfactory to the Executive to
perform this Agreement in the same manner and to the same extent that the Company
would be required to perform if no sale was consummated. |
8. Nondisclosure; Noncompetition.
(a) The Executive agrees not to use or disclose, either while in the Company’s employ or at
any time thereafter, except with the prior written consent of the Board of Directors, any trade
secrets, proprietary information, or other information that the Company considers confidential
relating to processes, suppliers (including but not limited to a list or lists of suppliers),
customers (including but not limited to a list or lists of customers), compositions, improvements,
inventions, operations, processing, marketing, distributing, selling, cost and pricing data, or
master files utilized by the Company, not presently generally known to the public, and which is,
obtained or acquired by the Executive while in the employ of the Company.
(b) During his employment and for a period of two years thereafter, the Executive shall not,
directly or indirectly; (i) in any manner, engage in any business which competes with any business
conducted by the Company (including any subsidiary) and will not directly or indirectly own,
manage, operate, join, control or participate in the ownership, management, operation or control
of, or be employed by or connected in any manner with any corporation, firm or business that is so
engaged (provided, however, that nothing herein shall prohibit the Executive from owning not more
than three percent (3%) of the outstanding stock of any publicly held corporation), (ii) persuade
or attempt to persuade any employee of the Company to leave the employ of the Company or to become
employed by any other entity, or (iii) persuade or attempt to persuade any current client or former
client with leaving, or to reduce the amount of business it does or intends or anticipates doing
with the Company.
(c) During his employment with the Company, and for two years thereafter, the Executive shall
not take any action which might divert from the Company any opportunity learned about by him during
his employment with the Company (including without limitation during the New Employment Term) which
would be within the scope of any of the businesses then engaged in or planned to be engaged in by
the Company.
(d) In the event that this Agreement shall be terminated, then notwithstanding such
termination, the obligations of the Executive pursuant to this Section 8 of this Agreement shall
survive such termination.
9. Successors; Binding Agreement.
(a) The Company shall require any purchaser or purchasers of the Company or any purchaser or
purchasers of substantially all of the business or assets of the Company, by agreement in form and
substance satisfactory to the Executive, to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it if no such purchase
had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore
defined and any successor to its business or assets which executes and delivers the agreement
provided for in this Section 9(a) or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
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(b) This agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still be payable
hereunder if the Executive had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the Executive’s devisee,
legatee or other designee or, if there be no such designee, to the Executive’s estate.
10. Amendment; Waiver. No provisions of this Agreement may be modified, supplemented, waived
or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the
Executive and the Company. No waiver by either party hereto at any time of any breach by the other
party hereto of, or in compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
11. Applicable Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New Jersey without regard to its conflict
of laws principles.
12. Severability of Covenants. In the event that any provision of this Agreement, including
any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in
any respect by a court of competent jurisdiction, the remaining provisions shall not be affected,
but shall remain in full force and effect and any invalid and enforceable provisions shall be
deemed, without further action on the part of the undersigned, modified, amended and limited solely
to the extent necessary to render the same valid and enforceable.
13. Remedies.
(a) In the event of a breach or threatened breach of any of the Executive’s covenants under
Section 8, the Executive acknowledges that the Company will not have an adequate remedy at law.
Accordingly, in the event of any such breach or threatened breach, the Company will be entitled to
such equitable and injunctive relief as may be available to restrain the Executive from the
violation of the provisions thereof.
(b) Nothing herein shall be construed as prohibiting the Company, on the one hand, and the
Executive, on the other hand, from pursuing any remedies available at law or in equity for any
breach or threatened breach of the provisions of this Agreement by the other party, including the
recovery of damages.
(c) If the Company terminates this Agreement at any time without Cause (as defined above in
section 7(c)) or the Executive terminates his employment for a Good Reason (as defined above in
Section 7(d)), after January 1, 2008, the Executive shall be entitled under this Section 13(c) to
receive an amount equal to the amount of the compensation payments that, but for his termination of
employment, would have been payable to the Executive under Section 4(a) as follows:
| Termination under Section 13(c) | Compensation under Section 4(a) | |
Within the first full calendar year
of the Executive’s employment
|
an amount equal to the amount of compensation payments for 4 months | |
Within the second full calendar year
of the Executive’s employment
|
an amount equal to the amount of compensation payments for 12 months | |
Within or after the third full
calendar year of the Executive’s
employment
|
an amount equal to the amount of compensation payments for one 18 month period | |
The Executive shall also be entitled to the amounts of any bonus payments under
§4(b) for the year of termination to the extent that targets were achieved
prior to the date of termination.
(d) The above amounts shall be deemed liquidated damages, and not a penalty. The Executive
shall not be required to mitigate the amount of any payment received pursuant to this paragraph nor
shall the amount payable under this paragraph be reduced by any compensation earned by the
Executive after the date of his termination of employment.
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14. Notices. Any notice, request, instruction or other document to be given hereunder by any
party to the other party shall be in writing and shall be deemed to have been duly given when
delivered personally or five (5) days after dispatch by registered or certified mail, postage
prepaid, return receipt requested, to the party to whom the same is so given or made:
If to the Company
| addressed to: | Milestone Scientific Inc. | |||
| 00 XXXXXXXXXXXX XXXX | ||||
| XXXXXXXXXX, XXX XXXXXX 00000 | ||||
| with a copy to: | Morse, Zelnick, Rose & Lander, LLP | |||
| 000 XXXX XXXXXX, XXXXX 0000 | ||||
| XXX XXXX, XXX XXXX 00000 |
If to the Executive
| addressed to: | Xx. Xxxxxxx Xxxxx | |||
| 000 Xxxx Xxxxx Xxxx | ||||
| XX Xxx 000 | ||||
| Xxxxxxxxx Xxxxxx, XX 00000 |
or to such other address as the one party shall specify to the other party in writing.
15. Entire Agreement. This Agreement sets forth the entire agreement of the parties hereto
in respect of the subject matter contained herein and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether oral or written, by
any officer, employee or representative of any party hereto; and any prior agreement of the parties
hereto in respect of the subject matter contained herein is hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above
written.
| MILESTONE SCIENTIFIC INC. |
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| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Xxxxxx Xxxxxxxx, Chairman | ||||
| /s/ Xxxxxxx Xxxxx | ||||
| Xxxxxxx Xxxxx | ||||
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