JOINT VENTURE
AGREEMENT
This JOINT
VENTURE AGREEMENT is made as of the 25` h day
of February 2000 by and between BOVIE MEDICAL CORPORATION, a
Delaware corporation, having its principal place of business
located at 1700 30 th Avenue North, St. Petersburg Florida 33110
(hereinafter, “BOVIE”) and JUMP AGENTUR FUER
ELEKTROTECHNIK GMBH, a German corporation having its principal
place of business located at Ernst-Abbe Str. 25, 72770 Reutlinger,
Germany (hereinafter, “JUMP”). BOVIE and JUMP are,
unless otherwise specifically identified, each referred to as a
“Venturer” and, collectively, the
“Venturers.”
WITNESSETH:
WHEREAS , JUMP and BOVIE together wish to create a joint
venture limited liability partnership to provide uni-polar low
temperature plasma technology for application and use in the
medical industry (the "Technology"), research and funding for the
development of commercially viable surgical and medical products to
be manufactured and marketed for their mutual benefit;
and
WHEREAS, pursuant to the terms hereof, JUMP is the
assignee of JUMP Technologies Limited (HK) which is the registered
owner of patents (including the US patent# _________) for the
Technology, and JUMP is granting an exclusive world-wide license to
the joint venture (as hereinafter defined) to produce and market
any surgical and medical devices utilizing the Technology. During
the term of the venture, JUMP shall continue research and
development initially for the production of two commercial
prototypes far dermatology and general surgery, the technical
requirements of which shall be agreed upon by the Venturers;
and
WHEREAS, BOVIE shall advance $200,000 to the
Partnership to cover costs of further research and development for
the production of two commercial prototypes for dermatology and
general surgery, and shall make available its facilities in Florida
for development, manufacturing and marketing of the products of the
joint venture pursuant to the terms hereof and shall be responsible
to expend its best efforts to secure all necessary financing for
the research, development and marketing of the products estimated
to be an amount up to $1,500,000.
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants and
conditions herein contained, the Venturers HEREBY AGREE AS
FOLLOWS:
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Formation of the
Venture.
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1.1.
Formation . The Venturers do hereby form the joint venture
as a limited liability company, for the purposes hereinafter set
forth, under the laws of the State of Delaware. Each of the Venturers agrees to execute and
file, promptly after the date hereof, with the appropriate Delaware
state and local offices a11 necessary fictitious name certificates,
and all documents necessary to qualify the joint venture to conduct
business in the States of New York and Florida.
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Name .
The name of the joint venture shall be Unipolar Plasma
Technologies. LLC., a Delaware limited liability company (the
"Venture").
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Principal
Office . The principal
office of the Venture shall be located at St. Petersburg, Florida
or at such other location within or without the State of Florida as
may hereafter be agreed to by the Venturers.
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Term .
The term of the Venture shall be from the date hereof until the
later of (a) February 17, 2020, or (b) such later date as may be
mutually agreed between the Venturers (the "Term").
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Purposes . The purposes of the Venture are to develop,
manufacture and market uni-polar low temperature plasma products
for application and use in the medical industry utilizing the
Technology for the mutual benefit of the Venturers.
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Authority of
the Venture . In order to
carry out its purposes consistently with and subject to the
provisions of the Joint Venture Agreement and all applicable laws,
the Venture is empowered and authorized to do any and all things
necessary, appropriate, proper, advisable, incidental to or
convenient for the performance and accomplishment of its
purposes.
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Authority to
Grant License . JUMP
covenants that it is the assignee of the patents for the Technology
(from JUNM Technologies, Limited (HK), an affiliate) and has full
authority and right to grant the exclusive license thereto to the
Venture.
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Grant of
License . JUMP does
hereby grant to the Venture for the Term hereof, an exclusive
worldwide license to develop, manufacture and market any and all
surgical and medical products utilizing the Technology and the
underlying patents therefore.
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Management of the Venture
.
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BOVIE shall be
responsible for the day-to-day management of the manufacturing,
marketing and financing the Venture and JUMP shall be responsible
for research and development. All decisions relating to the overall
management, operations or policies of the Venture shall be
unanimously agreed to by the Venturers in the manner set forth in
Section 2.1(c) hereof. Except as provided in the first sentence of
this Section 2.1(a) and Section 2.1(b) hereof, neither the Venture
nor either Venturer shall enter into, approve, or commit the
Venture to any contract or arrangement including, without
limitation, any letter of intent or similar document, nor incur any
obligation or liability including, without limitation, the
borrowing of funds, without the unanimous approval of the Venturers
in the manner set forth in Section 2.1(c) hereof.
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b)
All Venture funds shall be
maintained in such Venture bank accounts as shall be agreed upon by
the Venturers; provided , however , that each
independent facility created as a part of the Venture shall
maintain an independent bank account. Withdrawals therefrom in excess of $5,000,
unless otherwise specifically provided in an approved budget, shall
be made only upon the joint signature of the Venturers in the
manner set forth in Section 2.1(c) hereof.
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Exhibit
A hereto designates those
persons (“Designees") authorized to act on behalf of each
Venturer, and each person shall have full authority to act
individually on behalf of such Venturer. The Designees shall under
no circumstances be deemed to be general partners or agents of the
Venture. The Designees shall make all decisions, on behalf of the
Venturers, regarding the day to day management of the Venture. All
decisions of the Venture, and all withdrawals from Venture bank
accounts, shall be made by the written approval of at least one of
BOVIE Designees and one of JUMP Designees. In the event of a
deadlock concerning the overall operation, management and policies
of the Venture (e.g., BOVIE and JUMP cannot come to an agreement on
a particular policy concerning the Venture), and after having made
attempts to reconcile and/or resolve the dispute between the
Venturers, the deadlock shall be resolved by submitting the dispute
for resolution to a private alternative dispute resolution ("ADR")
firm, the costs of which shall be borne equally by the
Venturers.
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Each Venturer
may, at its will at any time and from time to time, remove and
replace any of its Designees by a writing delivered to the other
Venturer which is signed by at least a majority of the other
Designees of the Venturer which appointed the replaced Designee or
by an executive officer of such Venturer.
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The Designees
may unanimously delegate to one or more of them (and give any such
individual a title) the power and authority to conduct various
activities relating to the business of the Venture, on such terms
and subject to such conditions as the Designees shall determine,
subject always to the control of the Designees and the Venturers as
set forth herein.
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All title to
the property held by the Venture shall be held in its Partnership
name; all business of the Venture shall be effected in its
Partnership name; all contracts and obligations of the Venture
shall be executed in its Partnership name; and all monies received
by the Venture shall be deposited in a bank account or accounts in
its Partnership name.
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Accountants . The independent accountants for the Venture
shall be Bloom & Company, 50 Clinton Street, Suite 502,
Hempstead, NY 11550, unless otherwise agreed by the
Venturers.
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Business
Plan; Budgets . The
business plan for the Venture shall be consistent with the purpose
of the Venture as set forth above in Section 1.5 and shall be
prepared and implemented by BOVIE in consultation with JUMP;
provide d, however , that BOVIE shall be responsible
to deliver a written, formal business plan to JUMP upon its
request. All the budgetary determinations for the Venture shall be
unanimously made by the Venturers as set forth in Section 2.1 (c
hereof.
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Confidential
Information . Each of the
Venturers and the Designees shall use such confidential information
as may relate to the Venture only in connection with the business
of the Venture and for no other purpose, and shall hold all of such
confidential information strictly confidential. The foregoing
obligation of confidentiality shall not apply to information which
is in the public domain of which is already known to the recipient
from a source not known by the recipient to be under any obligation
of confidentiality to the disclosing Venturer.
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Future
Business Opportunities .
BOVIE and JUMP expressly acknowledge the very limited nature and
purpose of the Venture as set forth in Section 1.5 and,
accordingly, during the Term hereof and thereafter, BOVIE and JUMP
may pursue any corporate and/or business opportunity outside the
specific, limited purposes of the Venture as herein set forth which
shall not conflict with the purposes herein expressed.
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Employees;
Compensation of the Venturers . BOVIE shall be compensated for the
manufacturing hereunder in an amount equal to its costs and JUMP
shall be compensated for its costs of research and development
hereunder in an amount of U$200,000 for the production of two
commercial prototypes for dermatology and general surgery, and in
such amounts to be determined by the Venturers for its costs of
farther research and development for production of other devices
than the aforementioned two utilizing the Technology. The Venture
will have its own employees and payroll, and as the Venture
develops, it shall hire a program manager. Such employees and any
persons who perform services for the Venture shall be compensated
by the Venture in such amounts as may be determined by the
Venturers; provided , however , during
the initial stages of the Venture, none of the officers, directors
and/or principal shareholders of either JUMP or BOVLE shall be
employed by the Venture. As a consequence thereof, except for
manufacturing compensation to BOVIE and development and research
compensation to JUMP, none of such persons nor the Venturers shall
receive any salaries or other compensation for their respective
services to and/or on behalf of the Venture.
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Key
Employee . JUMP covenants
and represents that German Bekker, employee of JUMP shall remain
employed and available for the duration of research and development
of the Technology or a minimum of three years.
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Books,
Records and Reports; Inspection . The Venture shall maintain its own independent
books and records, which books and records shall be maintained for
the Venture by BOVIE. These books and records shall be readily
available for inspection by either of the Venturers upon reasonable
advance written notice thereof to the other. To the extent of
performance of these respective responsibilities hereunder, JUMP
and BOVIE shall provide each other with monthly reports (each a
"Reports" and, collectively, the “Report”), including
status of operations and internally prepared financial statements
(which shall not be audited or prepared by the Venture's
independent accountants).
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Capital Contributions and
Loans
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Initial
Capital . Within 30 days
following the execution and delivery of this Agreement by each of
the Venturers, BOVIE shall advance $200,000 to the capital of the
Venture to cover costs of JUMP's research and development in Moscow
for production
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