EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement")
is effective as of the 2nd
day of March,
2010 (the "Effective Date"), by arid between Bovie Medical Corporation, a
corporation organized and existing under the laws of the State of Delaware with
offices at 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 (the "Company") and
Xxxxxxx Xxxx, a resident of Seminole County, Florida, whose address is 000
Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000 (the "Employee"), and has been
approved by the Company's Board of Directors.
WITNESSETH:
WHEREAS, the Company is a
Delaware corporation existing and authorized to do business in the State of
Florida at the address first stated above;
WHEREAS, the Company is
desirous of securing Employee's services on an ongoing basis and Employee is
willing to provide such services; and
WHEREAS, the Employee is
well-known to the Company as Employee has provided consulting and/or legal
services to the Company for nearly ten (10) years.
NOW, THEREFORE, for and in
consideration of the mutual covenants contained herein, the Parties hereto agree
as follows:
1) 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.
2) DUTIES: The Employee
shall render, as an employee, professional services as Vice-President &
General Counsel, reporting to the Company's Chief Operating Officer, and shall
perform such additional duties as may reasonably be assigned to the Employee by
the Board of Directors of the Company. The Employee agrees to devote four (4)
business days per week to the performance of his duties, except for customary
vacations and reasonable absences due to illness or other incapacity, 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 in writing by the Board of Directors. Nothing
contained herein shall be construed so as to prohibit or prevent the Employee
from engaging in any outside teaching or business activities as long as such
activities do not conflict or interfere with the adequate performance of his
duties hereunder. Company acknowledges and approves of Employee continuing to
operate, during the Term of this Agreement, his law practice and/or other
endeavors, subject to the condition set forth in the preceding
sentence.
3) TERM: The initial
term of employment under this Agreement shall commence on the Effective Date and
shall continue for a self-renewing period of three (3) years (the "Term")
thereafter unless terminated pursuant to Section 11 (TERMINATION OP EMPLOYMENT),
below. At the end of each
year
during the Term, the Term shall be automatically extended by an additional year
unless the Company provides the Employee with advanced written notice of
non-renewal of this Agreement of at least one (1) year and one (1) day (the
"Non-Renewal Notice").
4) PLACE OF EMPLOYMENT:
Initially, the Employee will reside and work from his home in Longwood, Florida,
and, upon reasonable notice from the Company, shall be available for up to five
(5) nights per calendar month to work at the Company in Clearwater, Florida.
Subject to the terms of Section 5 (COMPENSATION), below, the Employee agrees to
work at the Company five (5) business days per week, starting no later than
January 1, 2011. At least thirty (30) days prior to such transition by the
Employee, as set forth in Employee's written notice to the Company, the Company
shall pay the Employee a lump sum payment sufficiently grossed up to account for
Employee's applicable payroll/income taxes to yield an after-tax, net payment of
Fifty Thousand Dollars ($50,000).
5) COMPENSATION: For
Employee's services rendered hereunder, the Company shall pay the Employee (i)
an annual base salary of not less than One Hundred and Fifty Thousand Dollars
($150,000.00) while Employee works four (4) business days per week and an annual
base salary of not less than One Hundred and Eighty-Seven Thousand and Five
Hundred Dollars ($187,500.00) commencing when the Employee starts to work five
(5) business days per week at the Company in Clearwater, Florida (as applicable,
the "Base Salary"), payable in equal weekly installments; (ii) bonuses as shall
be determined from lime to time by the Board of Directors in its discretion;
(iii) annual Seven And One-Hall Percent (7.5%) increases in Base Salary, subject
to review and adjustment by the Board of Directors, but in any case comparable
increases as received by the other members of executive management and (iv) an
immediate grant of One Hundred Thousand (100,000) options for restricted shares
of Company common stock (symbol AMEX:BVX)(the "Options"), as set forth in the
attached Stock Option, which is incorporated herein by reference. The Options
shall be subject to (x) a vesting period of Seven (7) years from the Effective
Date of this Agreement, with annual vesting, in equal portions, for each of the
Seven (7) years, (y) a strike price of the Options established on even date
herewith and (z) full and complete accelerated vesting of all remaining unvested
Options (if any) upon the occurrence of a Non-Renewal Notice, a Termination
Without Cause or a Change-in-Control Event as set forth in Section 11
(TERMINATION OF EMPLOYMENT), below. Notwithstanding any term or clause herein
relating to Base Salary, the same percent adjustment in Base Salary as shall
apply to all other members of executive management whether as part of a
cost-saving program for the Company or otherwise, shall apply to the
Employee.
6) VACATION/SICK: The
Company agrees that the Employee shall receive vacation, with full pay, of Three
(3) weeks (Fifteen (15) working days) during each year of the Term, subject to
any increases to which Employee becomes eligible based on years of service or
otherwise. The scheduling of any vacation shall be coordinated with the Company
so that the staffing needs of the Company are met to the extent reasonably
possible. The Employee may be entitled to such further paid vacation as is
approved in writing by the Board of Directors of the Company. The Company shall
pay the Employee for all unused vacation upon any expiration or termination of
this Agreement. The Employee shall be granted sick time and other paid lime off,
and may use the same, in accordance
Employment
Agreement - Xxxxxxx
Xxxx Page
2 of 7
with the
Company policy, as amended, as applicable to other executive management of the
Company.
7) REIMBURSEMENT OF BUSINESS
EXPENSES: The Company agrees to pay, either directly or indirectly by
payment to the Employee, for all of the Employee's approved entertainment,
travel and miscellaneous business expenses incurred by him during the course of
his employment. Employee shall he entitled, on each business-related travel, to
coach airline tickets on domestic travel and business class airline tickets on
international travel, and a full-size or larger rental automobile. Additionally,
the Company shall provide Employee with expense reimbursements at least
comparable with Company's past practices with Employee while he was an outside
contractor. The Company acknowledges and accepts that Employee has physical
limitations that are well-known to the Company's management, which severely
limit Employee's ability to travel. The Company shall reimburse the Employee for
his own cellular phone plan expense or, at his election, provide him with a
Company cellular phone and voice/data service. 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.
8) ADDITIONAL BENEFITS:
If the Employee elects such coverage, the Company shall provide (and subsidize
the Company-standard portion of the cost of) group medical and dental insurance
for the Employee and his dependents, under the Company's group insurance program
and plan. Further, the Company shall obtain and pay for One Hundred Percent
(100%) of the premiums for group term life insurance in the amount of Fifty
Thousand Dollars ($50,000.00), and long-term disability insurance, under
insurance programs and plans applicable to the other members of the Company's
executive management. Notwithstanding anything herein to the contrary, the
Employee shall be entitled to receive all of the other benefits established for
the employees of the Company including, without limitation, those other benefits
set forth in the Company's Employee Handbook, as amended.
9) PROPERTY DEFINED: The
Employee understands and agrees that all Company files, customer files, legal
files, legal research files, form files, forms, examples, samples, and all
briefs and memoranda, and other work product are the sole and exclusive property
of the Company; and the same shall remain in the possession of the Company and
shall constitute the property of the Company. The Employee shall not remove,
photocopy, photograph or in any other manner duplicate or remove said property
of the Company, except to the extent necessary to perform his duties hereunder.
The Company acknowledges and agrees that legal work product previously prepared
and provided by Employee does not constitute Company's sole and exclusive
property.
10) DISPOSITION OF PROPERTY UPON
TERMINATION OF EMPLOYMENT: In the event Employee's employment with the
Company is terminated, the Employee agrees and understands that all files and
all customers of the Company are the sole and exclusive property of the Company,
and the Employee shall have no right, title or interest in the same, subject to
the proviso set forth at the end of Section 9 (PROPERTY DEFINED),
above.
Employment
Agreement - Xxxxxxx
Xxxx Page
3 of 7
11) TERMINATION OF
EMPLOYMENT: The employment of the Employee may only be terminated as
follows:
a) By the
death of the Employee ("Termination Upon Death"); in such case, the Company
shall pay the Employee's beneficiaries (as designated in writing by Employee) a
lump sum payment equal to the total of the compensation and benefits set forth
in Section 5 (COMPENSATION), Section 6 (VACATION/SICK), Section 7 (REIMBURSEMENT
OF BUSINESS EXPENSES), and Section 8 (ADDITIONAL BENEFITS), above, due the
Employee, prorated through and including the date of termination.
b) By the
Employee, at any time upon at least thirty (30) days prior written notice to the
Company; and the Company shall pay the Employee a lump sum payment equal to the
total of compensation and benefits set forth in Section 5 (COMPENSATION),
Section 6 (VACATION/SICK), Section 7 (REIMBURSEMENT OF BUSINESS EXPENSES), and
Section 8 (ADDITIONAL BENEFITS), above, due the Employee, prorated through and
including the date of termination.
c) 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 ("Termination Without Cause"), subject to the terms set forth in
subparagraph (d), below.
d) If the
Company (i) imposes a Termination Without Cause, (ii) provides Employee with a
Non-Renewal Notice, (iii) fails to meet its obligations to the Employee on a
timely basis, or (iv) undergoes a change in the control of the Company (a
"Change-in-Control Event")1, the Employee may elect to terminate this
Agreement upon at least thirty (30) days prior written notice to the Company. If
any of the preceding events (i), (ii), (iii) or (iv) occurs, and the Employee
provides Company with at least thirty (30) days advance written notice, the
Company shall pay the Employee a lump sum severance equal to three (3) times the
compensation and benefits set forth in Section 5 (COMPENSATION), Section 6
(VACATION/SICK), Section 7 (REIMBURSEMENT OF BUSINESS EXPENSES), and Section 8
(ADDITIONAL BENEFITS), above, then in effect, as well as any other sums, which
may be due under the terms hereof Employee shall not have to account for other
compensation from other sources or otherwise mitigate his damages due to
termination pursuant to Section 11 (TERMINATION OF EMPLOYMENT).
e) By the
Company, if during the Term the Employee violates the provisions of Section
12(u) (NONCOMPETITION AND PRESERVATION OF NON-TRADE SECRET PROTECTABLE BUSINESS
INTERESTS) hereof and the Employee fails to cure said violation within a period
of twenty (20) days after Employee receives Company's written notice thereof, or
is found guilty in a court of law of any crime of moral turpitude ("Termination
for Cause").
Employment
Agreement - Xxxxxxx
Xxxx Page
4 of 7
1 For purposes hereunder, a
"Change-in-Control Event" shall include, but not be limited to, the occurrence
of a third party acquiring all or substantially all of the assets of the Company
or acquiring such a number of shares of Company common stock or acquiring such
other means and rights, so as to control the direction or affairs of the Company
or the replacement of management, regardless of whether such control or
replacement is actually exercised.
12) NON-COMPETITION AND
PRESERVATION OF NON-TRADE SECRET PROTECTABLE BUSINESS INTERESTS: (u) Upon
a Termination for Cause or a Non-Renewal Notice, and for twelve (12) months
thereafter, 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 within the geographic areas where the Company and/or
the Employee conducted business during the twenty-four (24) month period
directly preceding his/her Termination for Cause or Non-Renewal
Notice.
(ii) Furthermore,
during the Term of this Agreement and for a period of twelve (12) months
thereafter (except for a termination by Employee under Section 11(d)(iii),
above), Employee:
a) 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, non-public information concerning Company’s customers;
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 Section
688.002 (2009), as amended;
b) Shall
not solicit, directly or indirectly, any then-existing customer with whom the
Company has had a substantial commercial relationship;
c) Shall
not hire, recruit or attempt to recruit any person employed by the Company at
the time of the Employee's termination of employment with the Company for any
person or business entity, which competes or plans to compete with the
Company;
d) Shall
not adversely affect the Company's customer goodwill associated with (1) an
ongoing business by way of tradename, trademark, service xxxx, trade dress and
the like; (2) a specific geographic location; or (3) a specific marketing or
trade area; and/or
e) Shall
not use extraordinary or specialized training (unrelated to the practice of law)
received from the Company and pertaining specifically and uniquely to the
business of the Company in a manner, which competes with the
Company.
This
Non-Competition and Protection of Non-Trade Secret Protectable Business Interest
provision is expressly intended to benefit the Employer, its successors and
assigns (the "Third Party Beneficiaries") and the Company and the Third Party
Beneficiaries are expressly authorized to enforce this provision.
Employee
agrees that the precise value of the covenants in this Section 12 (and in
Section 13, below) 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, such covenants shall be limited to the extent which
is so permitted.
Employment
Agreement - Xxxxxxx
Xxxx Page
5 of 7
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.
18) GOVERNING LAW: This
Agreement shall be construed and interpreted in accordance with the laws of the
State of Florida. The prevailing party to any dispute arising from or related to
this Agreement shall be entitled to recovery of its reasonable attorneys' fees
and court costs from the other party hereunder.
19) ENTIRE AGREEMENT:
This Agreement constitutes the entire agreement between the parties and
supersedes and replaces any prior agreement pertaining to the subject matter
hereof, and there are no other agreements between the parties except as set
forth herein.
20) 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 both parties.
IN
WITNESS WHEREOF, the parties hereto have set their hands and seals effective on
the day and year first above written.
|
COMPANY: Bovie
Medical Corporation
|
EMPLOYEE: Xxxxxxx
Xxxx
|
|
|
/s/
Xxxxx Citronowicz
|
/s/
Xxxxxxx Xxxx
|
|
|
Xxxxx
Citronowicz, COO & EVP
|
Xxxxxxx
Xxxx
|
|
|
Signed
and Sealed in the Presence of:
|
||
|
/s/
Xxxx XxXxxxx
|
/s/
Xxxx XxXxxxx
|
|
|
Witness: Xxxx
XxXxxxx
|
Witness: Xxxx
XxXxxxx
|
Employment
Agreement - Xxxxxxx
Xxxx Page
7 of 7
