COMMITMENTS, CONTINGENCIES AND CONCENTRATIONS | 9 Months Ended |
Sep. 30, 2013 |
Commitments Contingencies And Concentrations | ' |
NOTE 9. COMMITMENTS, CONTINGENCIES AND CONCENTRATIONS | ' |
We are obligated under various operating leases for our facilities and certain equipment, most notably a lease for a manufacturing and warehouse facility in St. Petersburg, Florida that requires monthly payments of approximately $14,000 and expires on October 31, 2013. The following is a schedule of approximate future minimum lease payments under operating leases having remaining terms in excess of one year as of September 30, 2013 for the calendar years ended December 31, 2013 and 2014. (in thousands): |
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| 2013 | | | $ | 37 | | | | | | | | | | | | | | | | | | | |
| 2014 | | | | 12 | | | | | | | | | | | | | | | | | | | |
| Total | | | $ | 49 | | | | | | | | | | | | | | | | | | | |
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Rent expense approximated $117,000 and $139,000 for the nine month periods ending September 30, 2013 and 2012 respectively. |
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We have a manufacturing agreement with our Bulgarian supplier which provides for certain contingent payments on our part if we terminate our arrangement prior to July 1, 2014. The table below reflects our approximate contingent liability for the calendar years ended December 31, 2013, and 2014 (in thousands): |
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| 2013 | | | $ | 32 | | | | | | | | | | | | | | | | | | | |
| 2014 | | | | 73 | | | | | | | | | | | | | | | | | | | |
| Total | | | $ | 105 | | | | | | | | | | | | | | | | | | | |
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Other future contractual obligations for agreements with initial terms greater than one year and agreements to purchase materials in the normal course of business are summarized as follows (in thousands): |
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Description | | Years Ending December 31, |
| | 2013 | | 2014 | | 2015 | | 2016 | | 2017 | | 2018 |
Employment agreements | | $ | 242 | | | $ | 846 | | | $ | 786 | | | $ | — | | | $ | — | | | $ | — | |
Purchase commitments | | | 666 | | | | 1,901 | | | | — | | | | — | | | | — | | | | — | |
Consulting contracts | | | 18 | | | | 72 | | | | — | | | | — | | | | — | | | | — | |
Long-term debt | | | 73 | | | | 3,243 | | | | — | | | | — | | | | — | | | | — | |
Total | | $ | 999 | | | $ | 6,062 | | | $ | 786 | | | $ | — | | | $ | — | | | $ | — | |
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Livneh/Lican Development Litigation |
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In July 2012, Steven Livneh and two of his related entities, Henvil Corp. Ltd. and Lican Development Ltd., commenced a new action against the Company, Andrew Makrides, and Moshe Citronowicz in the United States District Court for the Middle District of Florida (Tampa Division). The complaint asserts, among other things, that (i) the defendants breached their obligations to the plaintiffs under a Settlement Agreement effective as of December 28, 2011, the terms of which have been disclosed in our previous filings, by allegedly failing to take certain actions that would have facilitated the plaintiffs’ marketing and sale of the Seal-N-Cut products in the People’s Republic of China (“PRC”), (ii) that defendants tortiously interfered with plaintiffs’ business relationships and expectations in PRC allegedly by, among other things, refusing to provide plaintiffs with an ICON VS generator and (iii) plaintiffs allegedly suffered damages as a result of defendants’ breaches and misrepresentations. The complaint seeks, among other things, the following: (i) compensatory damages in excess of $10 million, (ii) an order directing Bovie to provide plaintiffs with an ICON VS generator, (iii) an assignment to plaintiffs of all patents identified in the Settlement Agreement, and (iv) rescission of the Settlement Agreement. We continue to believe the allegations to be without merit, and we will continue to defend the action vigorously |
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Earlier this year, both parties moved for summary judgment. Plaintiffs moved for a judgment as to the defendants’ liability for breach of contract, leaving the decision of damages for determination later. Defendants moved for a determination that the plaintiffs could not recover their alleged lost profits in PRC as consequential damages, arguing that any such damages would be speculative and for dismissal of the tortuous interference and fraud in the inducement claims. On September 23, the Court denied all summary judgment motions. |
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Trial is scheduled for December 2013. |
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Stockholder Derivative Action |
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As previously reported, in September 2011, we were served in a purported stockholder derivative action that was filed in the United States District Court for the Middle District of Florida against the Company and certain of its present and former officers and directors. The complaint asserts, among other things, breach of fiduciary duties and bad faith in relation to the management of our business. The complaint seeks, among other things, unspecified compensatory damages and various forms of equitable relief. The allegations in the derivative action appear to be based largely on the January 10, 2011 Livneh counterclaim described above. |
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On March 29, 2012, plaintiffs amended their complaint to remove one of the plaintiffs and replace it with another. The amended complaint asserts essentially the same allegations as the original filing. We believe the allegations to be frivolous and without merit and we intend to defend the action vigorously. We are investigating whether there is a collusive connection between the derivative action and the previously settled lawsuit with Livneh. In May 2012, we, together with the individual defendants filed a motion to dismiss the plaintiff’s complaint based, in part, upon the plaintiff’s failure to make demand upon the board as required by applicable law. The motion was denied and the parties are proceeding with discovery. The parties are presently engaged in a court sanctioned mediation process. The outcome of this matter is uncertain, no range of potential loss can be estimated and accordingly no effect has given to any loss that may result from the resolution of this matter in the accompanying consolidated financial statements. |
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Keen Action |
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In connection with the previously disclosed litigation pending in the United States District Court for the Middle District of Florida between the Company and Leonard Keen, the Company’s former Vice President and General Counsel, on August 8, 2013, following a jury trial, the jury returned a verdict in favor of Mr. Keen awarding him $622,500 in severance. In addition, the jury determined that, Mr. Keen’s previously issued 110,000 stock options should be reinstated and accelerated, and that the Company must indemnify Mr. Keen for any damages or costs he suffered in his capacity as an employee of Bovie pursuant to the terms of Mr. Keen’s prior employment agreement with the Company. |
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Mr. Keen has filed a motion requesting an award of attorney’s fees pursuant to his employment agreement and Florida Law. The Company has filed its own request of statutory fees as the prevailing party on plaintiff’s dismissed Florida Whistleblower Act claim. These motions are awaiting a decision from the Court. The Company has elected not to appeal the verdict. |
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Amounts related to the verdict of this case were accrued and expensed in the second quarter ended June 30, 2013. |
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Concentrations |
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During the nine months ended September 30, 2013 we reported sales aggregating approximately $17.5 million of which the three largest customers accounted for 11.8%, 11.7%, and 10.5%. At September 30, 2013, two customers accounted for more than 10% of our accounts receivable and accounted for approximately 25.4% of our total accounts receivable in aggregate. |
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For the nine months ended September 30, 2013 and 2012 revenue was derived from the following: |
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Description | | September 30, | | September 30, | | | | | | | | | | | | | | |
2013 | 2012 | | | | | | | | | | | | | | |
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| Domestic | | | | 82.2 | % | | | 81.2 | % | | | | | | | | | | | | | | |
| Foreign | | | | 17.8 | % | | | 18.8 | % | | | | | | | | | | | | | | |