Exhibit 10(b)
EXECUTIVE AGREEMENT
THIS AGREEMENT IS MADE this 1st day of May, 1998 between Genetic
Laboratories Wound Care, Inc., a Minnesota Corporation (hereinafter called the
"Company") and Dr. Robert A. Ersek (Medical Director) (hereinafter called the
"Executive").
1. DUTIES:
The Company hereby employs the Executive as the Medical Director
of the Company. His powers and duties in that capacity to be such
as may be determined by the Company's Board of Directors are
described below. During the term of this Agreement, the Executive
may also serve in such other offices of the Company which he may
be elected or appointed to by the Board of Directors. Although the
Executive will spend the majority of his working time in the
employ of the Company, the company recognizes that the Executive
is simultaneously employed by other companies and that the
Executive has agreed to sell his interest in any cardiovascular
products developed in the future to Bio-Vascular, Inc., for five
percent (5%) royalties on the net sales of any such product or
invention. The Company shall pay to the Executive a base salary in
bi-weekly installments set forth in Section 3 hereof.
2. TERM:
This Agreement shall be effective from the date hereof through
April 30, 2001, and may be terminated prior to said expiration
date only upon the occurrence of one or more of the following
events:
A. By mutual written agreement of the Company and the Executive;
B. By the Executive at any time upon at least 60 days prior written
notice to the Company;
C. Immediately upon the Executive's death;
D. By the Executive upon occurrence of any of the Material Employment
Changes events as set forth in Section 9 hereof, which termination
shall require the Company to pay the Severance Payment set forth
therein; or
E. At the Company's option upon the Executive's conviction of a
felony arising out of any acts or omissions of the Executive
committed during the term of this Agreement.
3. COMPENSATION:
As his base monetary compensation for his services to the Company
during the term of this Agreement in whatever capacity rendered,
the Company shall pay to the Executive in bi-weekly installments
the sum of $32,000 per year plus a bonus plan and deferred
compensation. This compensation may be increased annually on the
anniversary date of this Agreement during the term hereof at a
rate equal to the increase in the consumer price index issued by
the United States Department of Labor with July 1, 1996 acting as
the base index equal to 100 unless otherwise mutually agreed upon
by the Executive and the Company. Additional compensation based
upon the pre-tax profits of the Company may be paid annually to
the Executive as incentive pay as determined by the Board of
Directors' Compensation Committee.
4. VACATION:
The Executive shall be entitled to six (6) weeks of vacation
during each year. Said vacation is to be taken at the Executive's
discretion.
5. BENEFITS:
A. Fully paid family coverage (subject to applicable deductible
amounts and limitations) under the Company's current group medical
and dental plans or such comparable coverage as may be selected in
the future;
B. Term life insurance in an amount at least equal to and comparable
to the Executive's life insurance policy presently in force with
policy ownership and proceeds payable as the Executive shall
designate as required by state and federal law;
C. Disability insurance commensurate with such Executive insurance
presently in force, with policy ownership payable as designated by
the Executive;
6. ARBITRATION:
Any controversy or claim arising out of, or related to this
Agreement, or the breach thereof, shall be settled by arbitration
in accordance with the rules of the American Arbitration
Association and judgment upon the award rendered may be entered in
any court having jurisdiction thereof. This agreement shall be
governed by and construed in accordance with the laws of the State
of Minnesota.
7. NOTICE:
Any notice required to be given pursuant to the provisions of the
Agreement shall be in writing and delivered personally or by
registered or certified mail.
8. COVENANT NOT TO COMPETE:
The Executive agrees that during his employment by the Company and
for a period of one year after termination of the Employment
Period, he shall not, without prior written consent of the
Company, directly or indirectly, and whether as principal or as
agent, officer, director, employee, consultant, or otherwise,
alone or in association with any other person, carry on, be
engaged, concerned, or take part in, render services to, or own,
share in the earnings of or invest in the stocks, bonds or other
securities of any company engaged in the Employer's current
business or reasonably contemplated business activities provided,
however, that the Executive may invest in stocks, bonds, or other
securities of any Similar Business (but without otherwise
participating in such Similar Business) if: (i) such stocks,
bonds, or other securities are publicly traded; (ii) his
investment does not exceed, in the case of any class of the
capital stock of any one issuer, one percent (1%) of the issued
and outstanding shares, or in the case of bonds or other
securities, one percent (1%) of the aggregate principal amount
thereof issued and outstanding; and (iii) such investment would
not prevent, directly or indirectly, the transaction of business
by the Company.
9. MATERIAL EMPLOYMENT CHANGES:
The Executive shall be entitled to terminate his employment upon
at least five days prior written notice to the Company upon the
occurrence of any of the following events: (i) a change in
majority ownership or control of the Company which occurs as the
result of a merger; a sale of all or substantially all of the
Company's assets; or the acquisition of a majority of the
Company's outstanding stock by a single party or a group acting in
concert; (ii) any attempted termination of the Executive's
employment by the Company prior to expiration or not in accordance
with any termination event as set forth in Section 2; or (iii) any
material diminution of, or any adverse change occurs in the terms
or conditions of the Executive's employment duties,
responsibilities or authority, except for any isolated,
unsubstantial, inadvertent matter not occurring in bad faith,
which is remedied by the Company within 30 days of receipt of
notice by the Executive. In the event of such termination by the
Executive, the Company shall immediately pay the Executive
(without discount or offset)a Severance Payment equal to the gross
base compensation otherwise payable to the Executive over the
remaining term of the Agreement under Section 2. The Executive's
rights under this Section 9 shall not limit any other rights he
has in the event of a breach of any provision of this Agreement by
the Company.
10. RESEARCH AND INVENTIONS:
This Agreement recognizes that the Executive is simultaneously
employed by more than one company. Therefore, the Company
recognizes that the Executive is, and intends to remain, an
Executive in other public and private companies, and has entered
into other employment agreements as such. The Executive has a
history of successful medical inventions and products and the
parties agree that the Executive's base and incentive pay is
directly related to his Executive duties and not for research
leading to the invention of new products or patents. Further, the
Executive and the Company recognize the Executive's right to sell
and assign such rights to corporate entities including the Company
and companies other than the Company.
11. ASSIGNMENT:
This Agreement shall inure to the benefit of, and shall be binding
upon the Company, its successors, or assigns. In witness whereof
the parties have hereunto executed this Agreement.
12. EXPENSES:
The Company will reimburse the Executive for reasonable business
expenses incurred on behalf of the Company.
IN WITNESS WHEREOF, THE parties have hereunto executed this Agreement.
ATTEST: GENETIC LABORATORIES WOUND
CARE, INC.
/s/ Robert A. Ersek, M.D. /s/ John H. Olson
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Robert A. Ersek, M.D. John H. Olson
Medical Director Director Compensation Committee
Member
5/1/98 5/1/98
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Date Date
Notary
/s/ Rebecca J. Bierbalm 5/1/98
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