EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
by and between REGENERATION TECHNOLOGIES, INC. a Florida for-profit corporation
(the "Corporation") and XXXXX X. XXXXXXX ("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 Vice President of Business Development. 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 approximately fifty percent (50%) of her time on behalf of
the Corporation, it being understood and agreed between the Corporation and
Employee that Employee shall devote the remaining fifty percent (50%) of her
time on behalf of University of Florida Tissue Bank, Inc. ("Tissue Bank") 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, commodi-
ties or other forms of investment, including real property. Employee and
Corporation agree to review, on a semi-annual basis, the actual division of
Employee's time between Corporation and Tissue Bank.
3. Term of Agreement. This Agreement shall be effective as of
February 13, 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 her services a salary of Seventy-Five Thousand Dollars
($75,000.00) 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 the Corporation's Board
of Directors.
(b) Performance Bonus. To provide greater incentive for
Employee by rewarding her 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;
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(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
(v) Such other matters as may be considered appropriate
by the Directors.
(c) Stock of the Corporation. The Corporation shall issue to
Employee Two Hundred Twenty Thousand (220,000) shares of common stock of the
Corporation (the "Shares"). The Shares shall be issued as described herein 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, pro rated based on the percentage of time Employee devotes to 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
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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 Employee in the course
of her 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 two (2) weeks paid
vacation time each year. 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.
(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
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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.
(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.
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(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 her 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 effective date of
termination, and shall, in such event, be paid the compensation due Employee
hereunder for the remainder of such period.
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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 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.
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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 she 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 she 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
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further agrees that upon the termination of her 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) In the event of the termination of Employee's employment
with the Corporation by the Corporation for cause (as defined in Subparagraph
9(b) above), Employee agrees that for a period of one (1) year following the
effective date of such termination, Employee will not engage 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 within the
United States; provided, however, that Employee shall then be entitled to a
severance payment in the amount of one (1) times Employee's annual 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.
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(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 tissues are
distributed over a protracted period.
(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 Employee, in the form
of employment by the Corporation, in accepting this covenant as a material term
of the Agreement.
(d) 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.
(e) 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.
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(f) 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, 11 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;
(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
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(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
President or Chief Financial Officer is also obtained with respect to same.
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. Attorney's 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 incurred 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 are merged into this document which alone fully and completely
expresses their agreement. No
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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:
Xxxxx X. Xxxxxxx
00000 XX 00xx
Xxxxxxx, 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 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.
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.
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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)
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on
this 14th day of December, 1998.
WITNESSES: "CORPORATION"
Regeneration Technologies, Inc.
/s/ [ILLEGIBLE] By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
"EMPLOYEE"
/s/ [ILLGIBLE] /s/ Xxxxx X. Xxxxxxx
--------------------------------- ---------------------------------------
Xxxxx X. Xxxxxxx
/s/ [ILLEGIBLE]
---------------------------------
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