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Delaware
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No.
11-2644611
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(State
or other jurisdiction of incorporation or organization)
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(IRS—
Employer Identification No.)
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Title
of Each
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Amount
to be
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Proposed
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Proposed
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Amount
of
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Class
of
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Registered
(1)
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Maximum
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Maximum
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Registration
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Be
registered
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Offering
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Aggregate
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Fee
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Price
Per
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Offering
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Share
(1)
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Price
(1)
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Common
Stock,
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Par
value
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$.001
per share (2)
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1,200,000
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$4.50
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$
5,400,000
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$
577.80
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(1)
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Estimated
solely for the purpose of calculating the registration
fee.
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(2)
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The
shares registered pursuant to this Registration Statement are available
for grant as of the date of this Registration Statement under the
registrant’s 2003 Key Services Stock Option Plan and available for
issuance pursuant to certain stock options the forms of which are
attached
as exhibits to this Registration Statement.
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(3)
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Pursuant
to General Instruction E, the registration fee paid in connection
herewith
is based on the maximum aggregate price at which securities covered
by
this registration statement are proposed to be offered.
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PART
I.
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INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
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ITEM
1:
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Plan
Information.
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The
information required by Part I is included in documents to be sent
or
given to the participants.
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ITEM
2:
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Registration
Information and Employee Plan Annual Information.
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Upon
written or oral request, Bovie Medical Corporation, a Delaware corporation
(the "Registrant") will provide, without charge, a copy of all documents
incorporated by reference in Item 3 of Part II of this Registration
Statement, which are incorporated by reference in the Section 10(a)
Prospectus, and all other documents required to be delivered to employees
pursuant to Rule 428(b) promulgated under the Securities Act of 1933,
as
amended (the "Securities Act"). All requests should be made to Bovie
Medical Corporation att: Andrew Makrides, President, Melville, NY
11747,
tel no. (516) 421-5452
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PART
II:
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INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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ITEM
3:
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Incorporation
of Documents by Reference.
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The following documents, which are on file with the Securities and
Exchange Commission (the "Commission"), are incorporated in this
Registration Statement by reference:
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(A)
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Annual
Report on Form 10-KSB for the Fiscal Year Ended December 31, 2005,
filed
March 30, 2006.
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(B)
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The
description of the Common Stock which is contained in the registration
statement filed under the Securities and Exchange Act of 1934, as
amended
(the “Exchange Act”), including any amendment or report filed for the
purpose of updating such description.
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All
documents filed by the Registrant pursuant to Section 13(a), 14 and
15(d)
of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all shares offered hereby have been sold or
which
deregisters all shares then remaining unsold, shall be deemed to
be
incorporated in this Registration Statement by reference and to be
a part
hereof from the date of filing of such documents.
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ITEM
4:
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Description
of Securities.
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N/A
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ITEM
5:
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Interests
of Named Experts and Counsel.
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N/A
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ITEM
6.
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Indemnification
of Directors and Officers.
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The
Registrant’s Certificate of Incorporation generally provides for the
maximum indemnification of the corporation’s officers and directors as
permitted by law in the State of Delaware. Delaware law empowers
a
corporation to indemnify any person who was or is a party or who
is
threatened to be made a party to any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative
or
investigative, except in the case of an action by or in the right
of the
corporation, by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation or is or was serving
at the
request of the corporation as a director, officer, employee or agent
of
another corporation or other enterprise. Depending on the character
of the
proceeding, a corporation may indemnify against expenses (including
attorney’s fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with such action, suit or proceeding
if the person indemnified acted in good faith and in a manner he
or she
reasonably believed to be in or not opposed to the best interests
of the
corporation, and with respect to any criminal action or proceedings,
had
no reasonable cause to, believe his or her conduct was unlawful.
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The
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a
judgment
in its favor by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the
request of the corporation as a director, officer, employee or agent
of
another corporation or other enterprise, against expenses, including
amounts paid in settlement and attorney's fees actually and reasonably
incurred by him or her in connection with the defense or settlement
of the
action or suit if he or she acted in good faith and in a manner which
he
or she reasonably believed to be in or not opposed to the best interests
of the corporation. Indemnification may not be made for any claim,
issue
or matter as to which such a person has been adjudged by a court
of
competent jurisdiction, after exhaustion of all appeals therefrom,
to be
liable to the corporation or for amounts paid in settlement to the
corporation unless and only to the extent that the court in which
the
action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances
of the
case, the person is fairly and reasonably entitled to indemnity for
such
expenses as the court deems
proper.
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To
the extent that a director, officer, employee or agent of the corporation
has been successful on the merits or otherwise in defense of any
action,
suit or proceeding referred to above, or in defense of any claim,
issue or
matter therein, he or she must be indemnified by the corporation
against
expenses, including attorney's fees, actually and reasonably incurred
by
him in connection with the defense. Any indemnification under this
section, unless ordered by a court or advanced pursuant to this section,
must be made by the corporation only as authorized in the specific
case
upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances. The determination
must
be made: (a) by the stockholders; (b) by the board of directors by
majority vote, of a quorum consisting of directors who were not parties
to
the action, suit or proceeding; (C) if a majority vote of a quorum
consisting of directors who were not parties to the action, suit
or
proceeding so orders, by independent legal counsel in a written opinion;
or (d) if a quorum consisting of directors who were not parties to
the
action, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
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The
certificate of incorporation, the bylaws or an agreement made by
the
corporation may provide that the expenses of officers and directors
incurred in defending a civil or criminal action, suit or proceeding
must
be paid by the corporation as they are incurred and in advance of
the
final disposition of the action, suit or proceeding upon receipt
of an
undertaking by or on behalf of the director or officer to repay the
amount
if it is ultimately determined by a court of competent jurisdiction
that
he or she is not entitled to be indemnified by the corporation. The
provisions of this section do not affect any rights to advancement
of
expenses to which corporate personnel other than directors or officers
may
be entitled under any contract or otherwise by law.
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The
indemnification and advancement of expenses authorized in or ordered
by a
court pursuant to this section: (a) does not exclude any other rights
to
which a person seeking indemnification or advancement of expenses
may be
entitled under the articles of incorporation or any bylaw, agreement,
vote
of stockholders or disinterested directors or otherwise, for either
an
action in his or her official capacity or an action in another capacity
while holding his or her office, except that indemnification, unless
ordered by a court pursuant to this section or for the advancement
of any
director or officer if a final adjudication establishes that his
or her
acts or omissions involved intentional misconduct, fraud or a knowing
violation of the law and was material to the cause of action; and
(b)
continues for a person who has ceased to be a director, officer,
employee
or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
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ITEM
7:
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Not
Applicable
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ITEM
8:
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Exhibits.
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4.1
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2003
Key Services Stock Option Plan.
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4.2
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Form
of Stock Option
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5.1
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Opinion
of Sierchio Greco & Greco, LLP
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23.1
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Consent
of Sierchio Greco & Greco, LLP(consent included in Exhibit
5.1).
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23.2
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Consent
of Bloom & Company
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ITEM
9:
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Undertakings.
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The
undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this Registration
Statement:
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(i)
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To
include any prospectus required by Section 10(a) (3) of the Securities
Act;
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(ii)
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To
reflect in the prospectus any facts or events which, individually
or
together, represent a fundamental change in the information in the
Registration Statement;
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(iii)
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To
include any additional or changed material information on the plan
of
distribution; provided, however, that paragraphs
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(1)(i)
and (1)(ii) above do not apply if the Registration Statement is on
Form
S-3 or Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is incorporated by reference
from periodic reports filed by the Registrant under the Exchange
Act.
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That,
for determining liability under the Securities Act, to treat each
such
post-effective amendment as a new registration statement of the securities
offered, and the offering of such securities at that time to be the
initial bona fide offering.
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| (3) |
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To
remove from registration by means of a post-effective amendment any
of the
securities being registered that remain unsold at the end of the
offering.
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Insofar
as indemnification for liabilities arising under the Securities Act
may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, the Registrant has been advised
that
in the opinion of the Commission such indemnification is against
public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such
liabilities (other than the payment by the Registrant of expenses
incurred
or paid by a director, officer or controlling person in the successful
defense of any action, suit or proceeding) is asserted by such director,
officers or controlling person in connection with the securities
being
registered, the Registrant will, unless in the opinion of its counsel
the
matter has been settled by controlling precedent, submit to a court
of
appropriate jurisdiction the question whether such indemnification
by it
is against public policy as expressed in the Securities Act and will
be
governed by the final adjudication of such
issue.
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Bovie
Medical Corporation
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By
/S/
Andrew Makrides
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Andrew
Makrides, Principal Executive
Officer
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Signature
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Capacity
in Which Signed
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Date
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S/
Andrew
Makrides
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Andrew
Makrides
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President,
Director,
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May
11, 2006
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Principal
Executive Officer
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Chief
Financial Officer and
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Principal
Accounting Officer
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S/
__________________
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Robert
J. Saron
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Director
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May
__, 2006
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S/
George
Kromer
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George
Kromer
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Director
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May
11, 2006
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S/
Brian
Madden
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Brian
Madden
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Director
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May
11, 2006
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S/
_________________
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Michael
Norman
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Director
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May
__, 2006
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S/
Randy
D. Rossi
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Randy
D. Rossi
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Director
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May
11, 2006
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EXHIBIT
INDEX
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Sequentially
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Document
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Description
of Document
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Numbered
Page
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4.1
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2003
Key Services Stock Option Plan
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4.2
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Form
of Stock Option
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5.1
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Opinion
of Sierchio Greco & Greco, LLP
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23.1
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Consent
of Sierchio Greco & Greco, LLP
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(contained
in opinion)
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23.2
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Consent
of Bloom & Company
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(A)
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"Affiliate"
shall mean (i) any entity that, directly or indirectly through one
or more
intermediaries, is controlled by the Company and (ii) any entity
in which
the Company has a significant equity interest.
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(B)
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"Code"
shall mean the Internal Revenue Code of 1986, as amended from time
to
time, and any regulations promulgated thereunder.
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(C)
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"Committee"
shall mean the Board of Directors, or a committee of the Board of
Directors of the Company designated by resolution of the Board of
Directors to administer the Plan, which shall consist of not less
than two
(2) “Non-Employee Directors,” as such term is defined in Rule
16b-3(b)(3)(i) promulgated under the Securities Exchange Act of 1934,
as
amended, each having the requisite qualifications thereunder to satisfy
the requirements of Rule 16b-3.
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(D)
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"Company
shall mean BOVIE MEDICAL CORPORATION", a Delaware
corporation.
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(E)
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"Eligible
Person" shall mean any employee, officer, director or consultant
providing
services to the Company or any Affiliate who the Committee determines
to
be an Eligible Person.
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(F)
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"Fair
Market Value" shall mean the closing "bid" price of the Company's
Shares
on the date in question as quoted on the American Stock Exchange,
the
Electronic Bulletin Board of the National Association of Securities
Dealers or its Automated Quotation System ("NASDAQ") or on any successor
national stock exchange on which the Common Stock is then listed
and
traded, provided, however, that if on the date in question there
is no
public market for the Company's Shares and they are neither quoted
on the
American Stock Exchange, the Electronic Bulletin Board, "NASDAQ"
nor
traded on any other national securities exchange, then the Committee
shall, in its sole discretion and best judgment, determine the Fair
Market
Value.
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(G)
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"Incentive
Stock Option" shall mean an option granted under the Plan that is
intended
to meet the requirements of Section 422 of the Code or any successor
provision.
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(H)
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"Non-Qualified
Stock Option" shall mean an option granted under the Plan that is
not
intended to be an Incentive Stock Option.
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(I)
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"Option"
shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
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(J)
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"Option
Agreement" shall mean any written agreement, contract or document
evidencing any Option granted under the Plan.
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(K)
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"Participant"
shall mean an Eligible Person designated to be granted an Option
under the
Plan.
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(L)
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"Person"
shall mean any individual, corporation, partnership, association,
limited
liability company, association or trust.
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(M)
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"Plan"
shall mean this 2003 Key Services Stock Option Plan, as amended from
time
to time.
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(N)
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"Rule
16b-3" shall mean Rule 16b-3 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended,
or any
successor rule or regulation.
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(O)
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"Shares"
shall mean shares of Common Stock, $.001 par value, of the
Company.
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SECTION
3
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ADMINISTRATION.
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(A)
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Power
and Authority of the Committee.
The Plan shall be administered by the Board of Directors, or, pursuant
to
resolution of the Board of Directors, a committee consisting of at
least
two non-employee directors, (the "Committee"). Subject to the express
provisions of the Plan and to applicable law, the Committee shall
have
full power and authority to: (i) designate Participants; (ii) determine
the types of Options (e.g., whether Incentive Stock Options or
Non-Qualified Stock Options) to be granted to each Participant under
the
Plan; (iii) determine the number of Shares to be covered by each
Option;
(iv) determine the terms and conditions of any Option Agreement;
(v) amend
the terms and conditions of any Option Agreement and accelerate the
exercisability of Options covered thereunder; (vi) determine whether,
to
what extent and under what circumstances Options may be exercised
in cash,
Shares or other property, or canceled, forfeited or suspended; (vii)
determine whether, to what extent and under what circumstances Options
shall be deferred either automatically or at the election of the
holder
thereof or the Committee; (viii) interpret and administer the Plan
and any
instrument or Option Agreement relating to, or Option granted under
the
Plan; (ix) establish, amend, suspend or waive such rules and regulations
and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and (x) make any other determination
and take
any other action that the Committee deems necessary or desirable
for the
administration of the Plan. Unless otherwise expressly provided in
the
Plan, all designations, determinations, interpretations and other
decisions under or with respect to the Plan or any Option shall be
within
the sole discretion of the Committee, may be made at any time and
shall be
final, conclusive and binding upon any Participant, any holder or
beneficiary of any Option granted under the Plan and any employee
of the
Company or any Affiliate.
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SECTION
4
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AVAILABLE
SHARES SUBJECT TO OPTION.
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(A)
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Shares
Available. The total number of Shares for which Options may be granted
pursuant to the Plan shall be 1,200,000 Shares of the Common Stock
in the
aggregate, subject to adjustment as provided in Section 4(c). If
any
Shares covered by an Option or to which an Option relates are not
purchased or are forfeited, or if an Option otherwise expires, then
the
number of Shares counted against the aggregate number of Shares available
under the Plan with respect to such Option, to the extent of any
such
forfeiture or termination, shall again be available for Options under
the
Plan.
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(B)
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Accounting
for Shares Covered by an Option. For purposes of this Section 4,
the
number of Shares covered by an Option shall be counted on the date
of
grant of such Option against the aggregate number of Shares available
for
granting Options under the Plan.
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(C)
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Adjustments.
In the event that the Committee shall determine that any dividend
or other
distribution (whether in the form of cash, Shares, other securities
or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Shares or other securities of the Company,
issuance of warrants or other rights to purchase Shares or other
securities of the Company or other similar rights to purchase Shares
or
other securities of the Company or other similar corporation transaction
or event affects the Shares subject to Option grants under the Plan
such
that an adjustment is determined by the Committee to be appropriate
in
order to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan, then the Committee
shall, in such manner as it may deem equitable, adjust any or all
of(i)
the number of Shares which may thereafter be made the subject of
Options;
(ii) the number of Shares subject to outstanding Option awards; (iii)
the
purchase or exercise price with respect to any Option, provided,
however,
that the number of Shares covered by an Option or to which such Option
relates shall always be a whole number.
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(D)
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Incentive
Stock Options. Notwithstanding the foregoing, the number of Shares
available for granting Incentive Stock Options under the Plan shall
not
exceed 1,200,000, subject to adjustment as provided in the Plan and
Section 422 or 424 of the Code or any successor
provisions.
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(A)
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(i)
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Exercise
Price.
(The purchase price per Share purchasable under an Option shall be
determined by the Committee, provided, however, that such purchase
price
shall not be less than 100% of the Fair Market Value of a Share on
the
date of grant of such Option, provided further, however, that in
the case
of an Incentive Stock Option granted to a Participant who, at the
time
such Option is granted, owns Shares of the Company or shares of any
subsidiary corporation or parent corporation of the Company which
possesses more than ten percent (10%) of the total combined voting
power
of all classes of shares of the Company or of any subsidiary corporation
or parent corporation of the Company (hereinafter, a “10% Shareholder”),
the purchase price for each Share shall be such amount as the Committee
in
its best judgment shall determine to be not less than one hundred
ten
percent (110%) of the Fair Market Value per Share at the date the
Incentive Stock Option is granted. In determining stock ownership
of a
Participant for any purposes under the Plan, the rules of Section
424(d)
of the Code shall be applied, and the Committee may rely on
representations of fact made to it by Participant and believed by
it to be
true.
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(ii)
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Option
Term.
The term of each Option shall be fixed by the Committee which in
any event
shall not exceed a term (10) years from the date of the grant, provided,
however, that the term of any Incentive Stock Option granted to any
10%
Shareholder shall not be exercisable after the expiration of five
(5)
years from the date such Incentive Stock option was granted.
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(iii)
|
Maximum
Grant of Incentive Stock Options.
The aggregate Fair Market Value (determined on the date the Incentive
Stock Option is granted) of Shares subject to an Incentive Stock
Option
(when first exercisable) granted to a Participant by the Committee
in any
calendar year shall not exceed
$100,000.
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(iv)
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Time
and Method of Exercise.
Subject to the provisions of the Plan, the Committee shall determine
the time or times at which an Option may be exercised in whole or
in part
and the method or methods by which, and the form or forms (including,
without limitation, cash, Shares, promissory notes, other securities,
other property, cancellation of credit or amounts due optionee from
Company, or any combination thereof, having a Fair Market Value on
the
exercise date equal to the relevant exercise price) in which, payment
of
the exercise price with respect thereto may be made or
deemed to have been made.
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(B)
|
(1)
|
Vesting
of Options.
Options granted to participants shall either vest immediately on
grant or
shall vest over time as follows:
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(a)
|
As
to Participants that have served the Company for a period of less
than
five years, options granted under the Plan shall vest at the rate
of 20%
thereof for each year served and 20% per year for each additional
year
thereafter until a total of five years has been served by the Participant.
At that time, the Option granted to the Participant shall be deemed
fully
vested.
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(b)
|
As
to Participants that have been employed or otherwise served the Company
for a period of five consecutive years or more at the time of the
grant of
an Option under the Plan, such Option shall be deemed fully
vested at time of grant.
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(c)
|
All
Options under the Plan shall be required to be vested prior to exercise
and if the entire option is not fully vested at the time of exercise,
only
that portion of the option that is vested shall be exercisable e.g.
a
participant who has been an employee or has had a relationship (as
defined), with the Company for three years is granted an option for
one
thousand shares and wishes to immediately exercise it. Under the
terms of
the Plan, six hundred shares may be exercised immediately (because
the
shares vest immediately due to his three years of service) and as
to the
other four hundred shares, options to exercise two hundred shares
shall
vest and be exercisable during the current ( fourth ) year of service
with
the Company and options for the balance of 200 shares shall vest
and be
exercisable during the fifth year that the Participant serves with
the
Company. After the fifth year of service, any other options received
by
that Participant shall vest immediately because participant will
have
served the Company for five years at that time.
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(e)
|
Limits
on Transfer of Options. An Option and shares issuable or issued under
the
plan shall be transferable by a Participant only to family members
by gift
or through a domestic relations order, or by will or by the laws
of
descent and distribution; provided, however, that, if so determined
by the
Committee, a Participant may, in the manner established by the Committee,
designate a beneficiary or beneficiaries to exercise the rights of
the
Participant and receive any Shares purchased with respect to any
Option
upon the death of the Participant. Each Option shall be exercisable
during
the Participant's lifetime only by the Participant or by the Participant's
or bona-fide transferee’s guardian or legal
representative.
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(C)
|
No
Option or Shares underlying any Option shall be pledged, alienated,
attached or otherwise encumbered, and any purported pledge, alienation,
attachment or encumbrance thereof shall be void and unenforceable
against
the Company or any Affiliate.
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(D)
|
For
purpose of this form, “family member” includes any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former spouse,
sibling, niece, nephew, mother in law, father-in law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, any person sharing the employee’s household (other than a
tenant or employee), a trust in which these persons have more than
fifty
percent of the beneficial interest, a foundation in which these persons
(or the employee) control the management of assets, and any other
voting
interests. Form S-8 is not available for the exercise of options
transferred for value. The following transactions are not prohibited
transfers for value:
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(i)
|
A
transfer under a domestic relations order in settlement of marital
property rights; and
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(ii)
|
A
transfer to an entity in which more than fifty percent of the voting
interests are owned by family members (or the participant) in exchange
for
an interest in the entity
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(E)
|
Restrictions:
Securities Exchange Listing. All certificates for Shares delivered
upon
the exercise of Options under the Plan shall be subject to such stop
transfer orders and other restrictions as the Committee may deem
advisable
under the Plan or the rules, regulations and other requirements of
the
Securities and Exchange Commission and any applicable federal or
state
securities laws, and the Committee may cause a legend or legends
to be
placed on such certificates to make appropriate reference to such
restrictions. If the Shares or other securities are traded on a national
securities exchange, the Company shall not be required to deliver
any
Shares covered by an Option unless and until such Shares have been
admitted for trading on such securities exchange.
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(F)
|
Termination:
Options shall terminate on the termination date set forth in the
option
except as otherwise set forth below:
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(i)
|
Any
provisions hereof notwithstanding, all vested options shall expire
on the
expiration date set forth in the option regardless of prior termination
of
relationship between the option holder and the Company.
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(ii)
|
Subject
to the provisions of subsection (iv) below, upon termination of the
employment, consultancy, or other relationship with the Company,
as the
case may be, of any Participant, an Option previously granted to
the
Participant, unless the option is vested or it is otherwise specified
by
the Committee in the Option, shall, to the extent not theretofore
exercised, terminate and become null and void on the effective date
of
termination, provided that:
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(a)
|
If
the Participant shall die while in the employ of the Company or during
a
period after termination of employment as specified in clause (ii)
below
and at a time when such Participant was titled to exercise an Option
as
herein provided, the legal representative of such Participant, or
such
person who acquired such Option by bequest or inheritance or by reason
of
the death of the Participant, may, not later than one (1) year from
the
date of death, exercise any non-vested Option which was not theretofore
exercised in respect of any or all of such number of Shares as specified
by the Committee in such Option; and
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(b)
|
With
respect to Participants who are employees, if the employment of any
employee to whom such Option shall have been granted shall terminate
by
reason of the Employee’s retirement (at such age or upon such conditions
as shall be specified by the Board of Directors), disability (as
described
in Section 22(e)(3) of the Code) or dismissal by the employer other
than
for cause (as defined below), and while such employee Participant
is
entitled to exercise such option as herein provided, such employee
Participant shall have the right to exercise any non-vested Option
held by
him (or her), to the extent not theretofore exercised, in respect
of any
or all of such number of Shares as specified by the Committee in
such
Option, at any time up to and including twelve (12) months after
the date
of such termination of employment. In the event death occurs during
the 12
month period after termination for any reason other than for cause,
the
time for such optionee’s representative to exercise such option shall
extend to one (1) year from date of death of the optionee.
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(c)
|
If
a Participant voluntarily terminates his or her employment, consultancy
or
other relationship with the Company, as the case may be, any non-vested
Option granted hereunder shall, unless otherwise
specified by the Committee in the Option, forthwith terminate upon
the
effective date of voluntary
termination with respect to any unexercised portion
thereof.
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(d)
|
If
a Participant is terminated for cause as hereinafter defined, all
non-vested options shall terminate
immediately unless otherwise specified by the Committee in the Option
or
at time of termination. Vested options shall not be cancelled upon
termination for cause except in the case of a criminal act against
the
Company involving larceny or embezzlement of Company funds or
property.
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(e)
|
If
an Option granted hereunder shall be exercised by the legal representative
of a deceased or disabled Participant, or by a person who acquired
an
Option granted hereunder by bequest or inheritance or by reason of
death
of any such person, written notice of such exercise shall be accompanied
by a certified copy of letters testamentary or equivalent proof of
the
right of such legalrepresentative or other person to exercise such
Option.
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(G)
|
For
all purposes of the Plan, the term "for cause" shall mean, (i) with
respect to a Participant who is a party to a written employment or
consultancy agreement with the Company, as the case may be, which
contains
a definition of "for cause" or "cause" (or words of like import)
for
purposes of termination of employment or consultancy thereunder by
the
Company, "for cause" or "cause" as defined in the most recent of
such
agreements, or (ii) in all other cases, as determined by the Committee,
in
its reasonable discretion, that one or more of the following has
occurred:
(W) any failure or unreasonable refusal by a Participant to substantially
perform his or her employment or consultancy duties, as the case
may be,
which failure or refusal shall not have been corrected or justified
within
thirty (30) days following written notice thereof, (X) any engaging
by
such Participant in serious misconduct or, in the case of an officer
Participant, any failure or refusal by such officer Participant to
follow
the directions of the Company's Board of Directors or Chief Executive
Officer of the Company which, in either case, is injurious to the
Company
or any Affiliate, (Y) any breach by a Participant of any covenant
contained in the instrument pursuant to which an Option is granted,
or (Z)
such Participant's conviction of or entry of a plea of nolo contendere
in
respect of any felony, or of a misdemeanor which results in or is
reasonably expected to result in economic or reputational injury
to the
Company or any of its
Affiliates.
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SECTION
7
|
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|
AMENDMENT
AND TERMINATION: ADJUSTMENTS.
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||
|
Except
to the extent prohibited by applicable law and unless otherwise expressly
provided in an Option Agreement or in the Plan:
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(A)
|
Amendments
to the Plan.
The Board of Directors of the Company may amend, alter, suspend,
discontinue or terminate the Plan; provided, however, that,
notwithstanding any other provision of the Plan or any Option Agreement,
without the approval of the stockholders of the Company, no such
amendment, alteration, suspension, discontinuation or termination
shall be
made that, absent such approval:
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(i)
|
would
cause Rule 16b-3 to become unavailable with respect to the
Plan;
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(ii)
|
would
violate the rules or regulations of any national securities exchange
on
which the Shares of the Company are traded or the rules or regulations
of
the National Association of Securities Dealers, Inc. that are applicable
to the Company; or
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(iii)
|
would
cause the Company to be unable, under the Code, to grant Incentive
Stock
Options under the Plan.
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(B)
|
Amendments
to Option Grants.
The Committee may waive any conditions or rights of the Company under
any
outstanding Option grant, prospectively or retroactively. The Committee
may not amend, alter, suspend, discontinue or terminate any outstanding
Option grant, prospectively or retroactively, without the consent
of the
Participant or holder or beneficiary thereof, except as otherwise
herein
provided.
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(C)
|
Correction
of Defects, Omissions and Inconsistencies.
The Committee may correct any defect, supply any omission or reconcile
any
inconsistency in the Plan or any Option in the manner and to the
extent it
shall deem desirable to carry out the Plan.
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|
SECTION
8
|
||
|
INCOME
TAX WITHHOLDING: TAX BONUSES.
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(A)
|
Withholding.
In order to comply with all applicable federal or state income tax
laws or
regulations, the Company may take such action as it deems appropriate
to
ensure that all applicable federal or state payroll, withholding,
income
or other taxes, which are the sole and absolute responsibility of
a
Participant, are withheld or collected from such Participant. In
order to
assist a Participant ii! paying all or a portion of the federal and
state
taxes to be withheld or collected upon exercise of any Option, the
Committee, in its discretion and subject to such additional terms
and
conditions as it may adopt, may permit the Participant to satisfy
such tax
obligation by (i) electing to have the Company withhold a portion
of the
Shares otherwise to be delivered upon exercise of any Option with
a Fair
Market Value equal to the amount of such taxes or (ii) delivering
to the
Company Shares other than the Shares issuable upon exercise of the
applicable Option with a Fair Market Value equal to the amount of
such
taxes. The election, if any, must be made on or before the date that
the
amount of tax to be withheld is determined.
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(B)
|
Tax
Bonuses.
The Committee, in its discretion, shall have the authority, at the
time of
grant of any Option under this Plan or at any time thereafter, to
approve
cash bonuses to designated Participants to be paid upon their exercise
in
order to provide funds to pay all or a portion of federal and state
taxes
due as a result of such exercise. The Committee shall have lull authority
in its discretion to determine the amount of any such tax bonus.
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|
SECTION
9
|
||
|
GENERAL
PROVISIONS.
|
||
|
(A)
|
No
Rights to Option Grants.
No Eligible Person, Participant or other Person shall have any claim
to be
granted an Option under the Plan, and there is no obligation for
uniformity of treatment of Eligible Persons, Participants or holders
or
beneficiaries of Options granted under the Plan. The terms and conditions
of Options need not be the same with respect to any Participant or
with
respect to different Participants.
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(B)
|
Option
Agreements.
No Participant will have rights under an Option granted to such
Participant unless and until an Option Agreement shall have been
duly
executed on behalf of the Company. Each Option Agreement shall set
forth
the terms and conditions of any Option granted to a Participant consistent
with the provisions of this Plan.
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(C)
|
No
Limit on Other Compensation Arrangements.
Nothing contained in the Plan shall prevent the Company or any Affiliate
from adopting or continuing in effect other or additional compensation
arrangements, and such arrangements may be either generally applicable
or
applicable only in specific cases.
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(D)
|
No
Right to Employment.
The grant of an Option shall not be construed as giving a Participant
the
right to be retained in the employ of the Company or any Affiliate,
nor
will it affect in anyway the right of the Company or an Affiliate
to
terminate such employment at any time, with or without cause. In
addition,
the Company or an Affiliate may at any time dismiss a Participant
from
employment free from any liability or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Option Agreement.
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(E)
|
Governing
Law.
The validity, construction and effect of the Plan or any Option granted
hereunder, and any rules and regulations relating to the Plan or
any
Option granted hereunder, shall be determined in accordance with
the laws
of the State of Delaware except to the extent preempted by Federal
law.
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(i)
|
Severability.
If any provision of the Plan or any Option is or becomes or is deemed
to
be invalid, illegal or unenforceable in any jurisdiction or would
disqualify the Plan or any Option under any law deemed applicable
by the
Committee, such provision shall be construed or deemed amended to
conform
to applicable laws, or if it cannot be so construed or deemed amended
without, in the determination of the Committee, materially altering
the
purpose or intent of the Plan or the Option, such provision shall
be
stricken as to such jurisdiction or Option, and the remainder of
the Plan
or any Option shall remain in full force and effect.
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|
(G)
|
Section
Headings.
The section headings included herein are only for convenience, and
they
shall have no effect on the interpretation of the
Plan.
|
|
|
SECTION
10
|
||
|
EFFECTIVE
DATE OF THE PLAN.
|
||
|
|
||
|
The
Plan shall be effective on January 21, 2003 (the “Plan Effective Date”),
subject to approval by the Company’s stockholders within one (1) year
thereafter.
|
||
|
SECTION
11
|
||
|
TERM
OF THE PLAN.
|
||
|
Unless
the Plan shall have been discontinued or terminated as provided in
Section
7(a), the Plan shall terminate on January 20, 2013. No Option shall
be
granted after the termination of the Plan. However, unless otherwise
expressly provided in the Plan or in an applicable Option Agreement,
any
Option theretofore granted may extend beyond the termination of the
Plan,
and the authority of the Committee provided for hereunder with respect
to
the Plan and any Option grants, and the authority of the Board of
Directors of the Company to amend the Plan, shall extend beyond the
termination of the Plan.
|
||
|
IN
WITNESS WHEREOF, this Plan has been executed at Melville New York
on the
21st day of January, 2003 and amended March 17, 2006.
|
||
|
BOVIE
MEDICAL CORPORATION
|
||
|
By
/s/Andrew
Makrides
|
||
|
Andrew
Makrides, President and Chief Executive Officer
|
||
|
1.
|
Grant
of Option.
Pursuant to and subject to the terms and conditions of the Plan,
the
Company grants to the Optionee the right and option (the "Option")
to
purchase at $.__ per share on the terms and conditions hereinafter
set
forth all or any part of an aggregate of________shares (the "Shares")
of
the currently authorized and unissued Common Stock, par value $.OO1
per
share. Subject to the terms of the Plan, the Option shall be exercisable,
in whole or in part, during the period commencing with the date on
which
it is granted and ending on ________ , 20___.
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|
|
Nothing
contained herein shall be construed to limit or restrict the right
of the
Company or a parent or subsidiary corporation of the Company to terminate
the Optionee’s services for the Company.
|
||
|
2.
|
Vesting
of Option.
The option granted hereby shall vest at the rate of 20% of the amount
of
the grant for each year of employment up to a total of five years
at which
time the option becomes fully vested. Each Optionee is able to apply
his
(her) prior years of employment in order to achieve immediate vesting
of a
portion or all of the options granted hereby, depending upon the
total
years of prior employment. Accordingly, if an Optionee has been employed
by the Company for three years at the time he (she) receive this
option,
then a total of 60% of this option is deemed fully vested to the
extent of
60% of such option. For each additional year employed, an additional
20%
of the option granted hereby shall vest until a total of 5 years
of
employment (including employment prior to the grant of this option)
will
have occurred. At that time, the option will be deemed fully
vested.
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|
|
3.
|
Exercisability
of Option.
All options granted under the plan shall be exercisable during the
term of
the option provided the option is fully vested or the Optionee is
employed
by the Company at the time of exercise. In the event the option is
not
fully vested or the Optionee is no longer an employee of the Company
at
the time of exercise, then the provisions of paragraph 5 shall apply.
|
|
|
4.
|
Method
of Exercise.
The Option may be exercised pursuant thereto by written notice to
the
Company stating the number of shares with respect to which the option
is
being exercised, together with payment in full, (a) in cash or certified
check; (b) or acknowledgement of cancellation of the Company’s
indebtedness to the Optionee for services or otherwise; or (c) any
combination of the foregoing. If requested by the Board of Directors,
prior to the delivery of any Shares, the Optionee shall supply the
Board
of Directors with a representation that the Shares are not being
acquired
with a view to unlawful distribution and will be sold or otherwise
disposed of only in accordance with applicable federal and state
statutes,
rules and regulations.
|
|
|
As
soon after the notice of exercise as the Company is reasonably able
to
comply, the Company shall, without payment of any transfer or issue
tax by
the Optionee, deliver to the Optionee or any such other person, at
the
main office of the company or such other place as shall be mutually
acceptable, a certificate or certificates for the Shares being purchased
upon exercise of the Option. Notwithstanding the foregoing, the Company
shall have the right to postpone the time of delivery of the Shares
for
such period as may be required for it with reasonable diligence to
comply
with any applicable listing requirements of any national securities
exchange or any federal, state or local law. The Optionee may exercise
the
Option for less than the total number of Shares for which the Option
is
then exercisable, provided that a partial exercise may not be for
fewer
than 100 Shares, unless the remaining shares exercisable under the
Option
is for less than 100 Shares. The Option may be exercisable for whole
Shares only.
|
||
|
5.
|
Termination
of Option.The
Option shall terminate and expire immediately as to the total number
of
remaining unexercised option shares at the expiration date of the
option.
In addition, the option shall automatically terminate upon the earlier
of
the following:
|
|
|
|
||
|
(i)
|
Subject
to the provisions of Section 6 subparagraph (viii) (B) (iv) of the
plan,
as amended, immediately upon termination of the Optionee’s employment with
the Company for cause (as defined under the Plan) unless the option
is
vested;
|
|
|
(ii)
|
If
the option is not vested, at the expiration of twelve (12) months
after of
termination of the Optionee’s employment by the Company for any other
reason, as such term is defined under the Plan; provided, that if
the
Optionee dies within such twelve-month period, subclause (iii) below
shall
apply; or
|
|
|
(iii)
|
At
the expiration of twelve (12) months after the date of death of the
Optionee, if the Option is not vested.
|
|
|
(iv)
|
On
the effective date of voluntary termination with the Company by the
Participant if the Option is not vested.
|
|
|
(v)
|
All
vested options, as defined in the Plan, shall expire upon the expiration
date set forth in Paragraph 1 hereof.
|
|
|
6.
|
Adjustments.
If
there is any change in the capitalization of the Company affecting
in any
manner the number or kind of outstanding shares of Common Stock of
the
Company, whether by stock dividend, stock split, reclassification
or
recapitalization of such stock, or because the Company has merged
or
consolidated with one or more other corporations (and provided the
Option
does not thereby terminate pursuant to Section 5 hereof), then the
number
and kind of shares then subject to the Option and the price to be
paid
therefore shall be appropriately adjusted by the Board of Directors;
provided,
however,
that in no event shall any such adjustment result in the Company's
being
required to sell or issue any fractional shares. Any such adjustment
shall
be made without change in the aggregate purchase price applicable
to the
unexercised portion of the option, but with an appropriate adjustment
to
the price of each Share or other unit of security covered by this
Option.
|
|
|
7.
|
Cessation
of Corporate Existence.
Notwithstanding any other provision of this Option, upon the dissolution
or liquidation of the Company, the reorganization, merger or consolidation
of the Company with one or more corporations as a result of which
the
Company is not the surviving corporation, or the sale of substantially
all
the assets of the Company or of more than 50% of the then outstanding
stock of the Company to another corporation or other entity, the
option
granted hereunder shall terminate; provided, however, that: (i) each
option for which no option has been tendered by the surviving corporation
in accordance with all of the terms of provision (ii) immediately
below
shall, within five days before the effective date of such dissolution
or
liquidation, merger or consolidation or sale of assets in which the
Company is not the surviving corporation or sale of stock, become
fully
exercisable; or (ii) in its sole and absolute discretion, the surviving
corporation may, but shall not be so obligated to, tender to any
Optionee,
an option to purchase shares of the surviving corporation, and such
new
option or options shall contain such terms and provisions as shall
be
required substantially to preserve the rights and benefits of this
option.
|
|
8.
|
Non-Transferability.
The Option is not assignable or transferable by the Optionee, either
voluntarily or by operation of law, otherwise than by gift to family
members, a domestic relations order, by will or by the laws of descent
and
distribution, and is exercisable, during the Optionee's lifetime,
only by
the Optionee. Upon any attempted transfer of this Option contrary
to the
provisions hereof or the underlying Plan, the Board of Directors
may, at
its discretion, terminate this option.
|
|
9.
|
No
Stockholder Rights.
The Optionee or other person entitled to exercise this option shall
have
no rights or privileges as a stockholder with respect to any Shares
subject hereto until the Optionee or such person has become the holder
of
record of such Shares, and no adjustment (except such adjustment
as may be
effected pursuant to the provisions of Section 4 hereof) shall be
made for
dividends or distributions of rights in respect of such Shares if
the
record date is prior to the date on which the Optionee or such person
becomes the holder of record.
|
|
Executed
by the Company as of this _____ day of _______________,
2006.
|
|
|
Bovie
Medical Corporation a Delaware corporation
|
|
|
By:___________________________
|
Date:
______________________
|