Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made effective as of March
3, 2000 (the "Effective Date"), between AUTOLOGOUS WOUND THERAPY, INC., a
Delaware corporation (the "Company"), and JAMES A. COUR ("Executive").
WHEREAS, the Company desires to employ Executive on the terms and
conditions hereinafter set forth;
WHEREAS, the Company recognizes that Executive's employment is critical to
the growth and success of the Company and therefore desires to assure the
Company of Executive's continued employment; and
WHEREAS, based on the foregoing, the Company and Executive wish to enter
into this agreement to come into force as of the Effective Date.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements herein contained, the Company and Executive hereby agree as
follows:
ARTICLE 1. EMPLOYMENT
A. EMPLOYMENT AND DUTIES. The Company shall employ Executive for the Term (as
hereinafter defined) as President and Chief Executive Officer. In this
capacity, Executive shall have the full authority and be responsible to manage
the operations of the Company consistent with the Company's annual and
strategic business plans, such plans to set forth guidelines related to
budgeting, capital expenditures, hiring and other initiatives, and to be
formulated by Executive and approved by the Company's Board of Directors.
Executive shall have the authority to bind the Company to contracts that are
consistent with the Executive's duties and responsibilities, subject only to
specific limitations imposed by the Company's Board of Directors. During the
Term of his employment, Executive's authority and responsibilities to manage
the operations of the Company shall not be materially diminished without his
prior consent. Executive hereby accepts such employment and agrees to render
such services on behalf of the Company. Executive shall perform his duties and
carry out his responsibilities hereunder in a diligent manner, and shall devote
his exclusive and full working time, attention and effort to the affairs of the
Company, shall use all reasonable efforts to promote the interests of the
Company and shall be just and faithful in the performance of his duties and in
carrying out his responsibilities.
B. LOCATION. The principal location for performance of Executive's services
hereunder shall be at the Company's executive offices, which are to be
re-located to north suburban Chicago, Illinois, subject to reasonable travel
requirements during the course of performing such services.
C. BOARD OF DIRECTORS. Executive agrees to accept election and to serve during
all or any part of the Term as a director of the Company and of any subsidiary
or affiliate of the Company, without any compensation therefor other than that
specified herein, if elected to any such position by the Board of Directors or
by the stockholders of the Company or of any subsidiary or
affiliate, as the case may be. The Company will use its best efforts to cause
and maintain the election of Executive to the Company's Board of Directors. In
connection therewith, the Company shall use its best efforts to include
Executive in the management slate for election as a director at every annual
meeting of shareholders of the Company at which his term as a director would
otherwise expire. Upon the termination of this Agreement or Executive's
employment hereunder for any reason, Executive shall resign from the Board and
from all other positions as an officer or director of any of the Company's
subsidiaries or affiliates.
ARTICLE 2. EMPLOYMENT TERM
The term of Executive's employment hereunder (the "Term") shall be deemed
to commence on the Effective Date and shall end on December 31, 2001, unless
sooner terminated in accordance with the terms of this Agreement; provided,
however, that the Term shall be automatically renewed and extended for
additional and successive Terms of two (2) years each at the end of each Term
(and any subsequent renewal Term thereof) unless either party gives Notice of
Termination (as hereinafter defined) to the other party no later than ninety
(90) days before the expiry of the then-current Term.
ARTICLE 3. COMPENSATION AND BENEFITS
In consideration for performing services on behalf of the Company, the
Executive shall receive the following compensation and benefits:
A. CASH COMPENSATION.
i. BASE SALARY. The Company shall pay Executive an annual salary of
Two Hundred and Twenty-Five Thousand Dollars ($225,000), payable in
bi-weekly installments, in arrears (the "Base Salary"). The Base
Salary shall be reviewed annually by the Company's Board of Directors
and may be increased, but not decreased (unless mutually agreed upon
by Executive and the Company).
ii. BONUS AND INCENTIVE PLANS. The Company shall establish, and
Executive shall be entitled to participate in, Executive Bonus
Compensation and Long-Term Incentive Programs, which shall be
substantially in accordance with the summary points contained in Part
A of Appendix I, attached hereto and made part hereof.
iii. PARTICIPATION IN BENEFIT PLANS. The Company shall establish, and
Executive shall be entitled to participate in (and to the extent that
Executive's position, title, tenure, salary, age, health, and other
qualifications make him eligible to participate in), employee benefit
plans or programs, which shall be substantially in accordance with
the summary points contained in Part B of Appendix I. The Company
does not guarantee the continuance of any particular employee benefit
plan or program during the Term and Executive's participation in any
such plans or programs shall be subject to all terms, provisions,
rules, and regulations applicable thereto. Executive will be entitled
to twenty
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(20) days of vacation per year, to be used in accordance with the
Company's vacation policy for senior executives as may be in force
from time to time. During the existence of a Benefit Period, if any,
(as hereinafter defined), the Company will arrange to provide
Executive with welfare benefits (including life and health insurance
benefits) of substantially similar design and cost to Executive as
the welfare benefits and other employee benefits available to
Executive prior to Executive's or the Company's, as the case may be,
receipt of Notice of Termination (as hereinafter defined). In the
event that Executive shall obtain full-time employment providing
comparable welfare benefits during the Benefit Period, such benefits
as otherwise receivable hereunder by Executive shall be discontinued.
iv. EXPENSES. The Company will pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by him in
the performance of his duties under this Agreement, including first
class air travel and reasonable capital and operating expenses for an
office in Executive's home. Executive shall keep detailed and
accurate records of expenses incurred in connection with the
performance of his duties hereunder and reimbursement therefor shall
be in accordance with policies and procedures to be established from
time to time by the Company's Board of Directors.
B. STOCK WARRANTS. As a special incentive to obtain the services of
Executive, Company hereby grants Executive the option to purchase one
million (1,000,000) shares of the common stock of the Company at $7.00
per share at any time, under either periodic or accelerated exercise
terms as described below.
i. PERIODIC EXERCISE RIGHTS. Executive's option to purchase shares
shall vest and become fully and freely exercisable with respect to
the first three hundred thirty-four thousand (334,000) shares on
December 31, 2000; with respect to the next three hundred
thirty-three thousand (333,000) shares on December 31, 2001, and with
respect to the final three hundred thirty-three thousand (333,000)
shares on December 31, 2002; subject, however, to the provisions of
Sub-section (iii), of this Section (B):
ii. ACCELERATED EXERCISE RIGHTS. Notwithstanding periodic exercise
rights, all of Executive's options that are not already exercisable
in accordance with Sub-section 3(B)(i) shall become immediately
exercisable at such time that the common stock of the Company trades
at or above 37 and 5/8ths dollars per share (the "Target Price") as
quoted on the securities exchange where the Company stock is
currently being traded and during either of the two periods, chosen
at the option of the Executive:
a. the closing price for the stock is at or above the Target
Price for fifteen (15) consecutive trading days; or
b. the closing price for the stock is at or above the Target
Price for twenty (20) out of any thirty (30) consecutive trading
days.
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The determination of the Target Price during either of such periods
shall be conclusive as reported by any independent financial
reporting service, such as Reuters or Bloomberg Financial Markets.
iii POST-TERMINATION EXERCISE RIGHTS. Notwithstanding any of the
foregoing, Executive shall have the right to exercise options to
purchase any stock warrants or other stock grants given by the
Company in accordance with the following:
(a) if Executive's employment is terminated for Cause (as
defined in Article 4(A)(ii), hereunder), or in the event that
Executive voluntarily resigns his employment with the Company,
vesting of all options shall cease immediately upon the
effective date of termination or resignation;
(b) if Executive's employment is terminated by reason of
Death or Disability (as defined in Article 4(B) hereunder),
Executive's legal representatives, conservators, heirs or
assigns shall have the right to exercise all such options until
such options expire in accordance with the option plan under
which such options were granted. The rights granted under this
Sub-paragraph (iii)(b) shall apply whether or not the option was
vested at the time of Death or Disability; provided, however,
tha Executive was employed by the Company for at least twelve
(12) months after the grant of any option; or
(c) if Executive's employment is terminated for any reason
other than Death or Disability, or in the event that Executive
voluntarily resigns, then Executive shall have the right to
exercise all options that have already vested as of the
effective date of termination or resignation (or that become
vested by reason of termination or resignation) during a period
of ninety (90) days following the effective date of termination
or resignation.
iv. ISSUANCE OF REGISTERED SHARES. The Company hereby guarantees that
it will issue registered common stock (the term "registered" as
defined in the Securities and Exchange Act of 1934) to the Executive
pursuant to the exercise of his options under Sub-sections (i) -
(iii) of this Section 3(B). In the event that the Company does not
have sufficient quantities of registered shares available to satisfy
this obligation, it shall immediately take all steps necessary to
issue a registration statement and to make sufficient registered
shares available in satisfaction of this Sub-section (iv).
v. DILUTION. In the event that the Company issues new or additional
equity securities, debt securities convertible into equity, declares
a stock dividend, stock split, grants stock rights, or performs any
other action that would reasonably be expected to reduce the value of
the warrants, the Company shall immediately reduce the purchase
price, increase number of the warrants, or both, so that value of the
warrants granted to Executive remains unchanged.
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vi. EXPIRATION DATE. The options to purchase shares shall expire ten
(10) years from the date each option becomes exercisable.
ARTICLE 4. TERMINATION OF EMPLOYMENT
A. DEFINITIONS. The following terms shall have the definitions as described in
this Section A:
i. "Benefit Period" shall mean:
a. the twenty-four (24) month period commencing on the Date of
Termination which occurs in connection with a termination of
employment described in the first sentence of Section 4(E)(i);
or
b. the period consisting of the remainder, if any, of the then
current Term in which occurs a termination of employment
described in the first sentence of Section 4(E)(ii), plus the
immediately succeeding twenty-four (24) month period.
ii. "Cause" shall mean any of the following:
a. any act or failure to act (or series or combination thereof)
by Executive done with the intent to harm in any material
respect to the interests of the Company;
b. the commission by Executive of a felony involving moral
turpitude;
c. the perpetration by Executive of a dishonest act or common
law fraud against the Company or any subsidiary thereof;
d. a grossly negligent act or failure to act (or series or
combination thereof) by Executive detrimental in any material
respect to the interests of the Company;
e. the material breach by Executive of his agreements or
obligations under this Agreement; or
f. the continued refusal to follow the directives of the
President or Board of Directors that are consistent with
Executive's duties and responsibilities identified in Section
1(A) hereof.
iii. A "Change of Control" shall mean any of the following:
a. a sale of all or substantially all of the assets of the
Company;
b. the acquisition of more than eighty percent (80%) of the
Common Stock of the Company (with all classes or series thereof
treated as a single class) by any
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person or group of persons, except a Permitted Shareholder (as
hereinafter defined), acting in concert. A "Permitted
Shareholder" means a holder, as of the date the Stock Option
Plan was adopted by the Company, of Common Stock;
c. a reorganization of the Company wherein the holders of Common
Stock of the Company receive stock in another company, a merger
of the Company with another company wherein there is an eighty
percent (80%) or greater change in the ownership of the Common
Stock of the Company as a result of such merger, or any other
transaction in which the Company (other than as the parent
corporation) is consolidated for federal income tax purposes or
is eligible to be consolidated for federal income tax purposes
with another corporation;
d. in the event that the Common Stock is traded on an
established securities market, a public announcement that any
person has acquired or has the right to acquire beneficial
ownership of fifty-one percent (51%) or more of the
then-outstanding Common Stock and for this purpose the terms
"person" and "beneficial ownership" shall have the meanings
provided in Section 13(d) of the Securities and Exchange Act of
1934 or related rules promulgated by the Securities and Exchange
Commission, or the commencement of or public announcement of an
intention to make a tender offer or exchange offer for fifty-one
percent (51%) or more of the then outstanding Common Stock;
e. a majority of the Board of Directors is not comprised of
Continuing Directors. A "Continuing Director" means a director
recommended by the Board of Directors of the Company for
election as a director of the Company by the stockholders; or
f. the Board of Directors of the Company, in its sole and
absolute discretion, determines that there has been a sufficient
change in the share ownership of the Company to constitute a
change of effective ownership or control of the Company.
iv. "Good Reason" shall mean the occurrence of any one or more of the
following events during the Term:
a. the assignment to Executive of any duties inconsistent in any
respect with Executive's position (including status, offices,
title, and reporting requirements), authority, duties or other
responsibilities or any other action of the Company that results
in a diminishment in such position, authority, duties or
responsibilities, other than an insubstantial and inadvertent
action that is remedied by the Company promptly after receipt of
notice thereof given by Executive;
b. a reduction by the Company in Executive's Base Salary as in
effect on the Effective Date and as the same shall be increased
from time to time hereafter;
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c. the Company's requiring Executive to be based at a location
in excess of fifteen (15) miles from the location of Executive's
principal residence without the consent of Executive;
d. the failure by the Company to: (a) continue in effect any
material compensation or benefit plan, program, policy or
practice in which Executive was participating during the Term of
his employment or at the time of a Change of Control; or (b)
provide Executive with compensation and benefits at least equal
(in terms of benefit levels and/or reward opportunities) to
those provided for under each employee benefit plan, program,
policy and practice as in effect immediately prior to a Change
of Control (or as in effect following the Change of Control, if
greater);
e. the failure of the Company to obtain a satisfactory agreement
from any successor to the Company to assume and agree to perform
this Agreement; or
f. any purported termination by the Company of Executive's
employment that is not effected pursuant to a Notice of
Termination (as defined below).
v. "Date of Termination" shall mean the date specified in the Notice
of Termination (as hereinafter defined) (except in the case of
Executive's death, in which case Date of Termination shall be the
date of death); provided, however, that if Executive's employment is
terminated by the Company other than for Cause, the date specified in
the Notice of Termination shall be at least thirty (30) days from the
date the Notice of Termination is given to Executive and if
Executive's employment is terminated by Executive for Good Reason,
the date specified in the Notice of Termination shall not be more
than sixty (60) days from the date the Notice of Termination is given
to the Company.
vi. "Notice of Termination" shall mean a written notice either from
the Company to Executive, or Executive to the Company, that indicates
Section 2 or the specific provision of Section 4 of this Agreement
relied upon as the reason for such termination or non-renewal, the
Date of Termination, and, in reasonable detail, the facts and
circumstances claimed to provide a basis for termination or
non-renewal pursuant to Section 2 or this Section 4 of this
Agreement.
B. TERMINATION UPON DEATH OR DISABILITY. This Agreement, and Executive's
employment hereunder, shall terminate automatically and without the necessity
of any action on the part of the Company upon the death of Executive. In
addition, if at any time during the Term Executive shall become physically or
mentally disabled, whether totally or partially, so that he is unable
substantially to perform his duties and services hereunder for:
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i. a period of six (6) consecutive months; or
ii. for shorter periods aggregating six (6) months during any twelve
(12) month period;
then, the Company may at any time after the last day of the sixth consecutive
month of disability or the day on which the shorter periods of disability shall
have equaled an aggregate of six (6) months, by written notice to Executive
(but before Executive has recovered from such disability), terminate this
Agreement and Executive's employment hereunder.
C. COMPANY'S AND EXECUTIVE'S RIGHT TO TERMINATE PRIOR TO CHANGE OF CONTROL.
Prior to a Change of Control, this Agreement and Executive's employment
hereunder may be terminated at any time by the Company, with or without Cause,
upon thirty (30) days prior written notice to Executive, and by Executive, at
any time, upon thirty (30) days prior written notice to the Company. Any
termination of Executive's employment by the Company without Cause prior to a
Change of Control that occurs at the request or insistence of any person (other
than the Company) relating to such Change of Control shall be deemed to have
occurred after the Change of Control for the purposes of this Agreement.
D. COMPANY'S AND EXECUTIVE'S RIGHT TO TERMINATE FOLLOWING A CHANGE OF CONTROL.
Following a Change of Control, this Agreement and Executive's employment
hereunder may be terminated at any time:
i. by the Company, with or without Cause, upon thirty (30) days prior
written notice to Executive, or
ii. by Executive for Good Reason upon thirty (30) days prior written
notice to the Company. Executive's right to terminate his employment
pursuant to this Section 4(D) shall not be affected by incapacity due
to physical or mental illness. Executive's continued employment
following a Change of Control shall not constitute consent to, or a
waiver of, rights with respect to, any circumstance constituting Good
Reason hereunder.
E. COMPENSATION UPON TERMINATION.
i. TERMINATION PRIOR TO CHANGE OF CONTROL. In the event the Company
terminates (or elects not to renew) this Agreement without Cause, and
such termination (or non-renewal) without Cause occurs prior to any
Change of Control, Executive shall be entitled to receive his Base
Salary through the Date of Termination, the welfare benefits
described in Section 3(A)(iii) for the Benefit Period, and not later
than thirty (30) days after the Date of Termination, a lump sum
severance payment equal to the product of two (2) times the sum of
Executive's then-current Base Salary plus the arithmetic average of
payments made to Executive pursuant to the Company's Executive Bonus
Compensation Program with respect to the three (3) fiscal years
immediately preceding the fiscal year in which the Date of
Termination occurs. In addition to the foregoing, to the extent not
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otherwise required under the Company's Stock Option Plan or any award
agreement with Executive, any unvested stock option awards
theretofore awarded to Executive shall vest and become exercisable on
the Date of Termination. In the event this Agreement is terminated
(or not renewed) for any reason other than by the Company without
Cause, and such termination (or non-renewal) occurs prior to a Change
of Control, Executive shall not be entitled to the continuation of
any compensation, bonuses or benefits provided hereunder, or any
other payments following the Date of Termination, other than Base
Salary earned through such Date of Termination.
ii. TERMINATION FOLLOWING CHANGE OF CONTROL. If this Agreement is
terminated (or not renewed)
a. by the Company without Cause; or
b. by the Executive for Good Reason during the twelve (12) month
period immediately following a Change of Control, and such
termination (or non-renewal) occurs following a Change of
Control;
then, the Executive shall be entitled to receive his full Base Salary
through the Date of Termination, the welfare benefits described in
Section 3(A)(iii) for the Benefit Period and, not later than thirty
(30) days after the Date of Termination, a lump sum severance payment
equal to the sum of the Base Salary which would otherwise have been
payable for the remainder (if any) of the then current Term, plus an
amount equal the product of two (2) times the sum of Executive's then
current annual Base Salary plus the arithmetic average of payments
made to Executive pursuant to the Company's Executive Bonus
Compensation Program with respect to the three (3) fiscal years
immediately preceding the fiscal year in which the Date of
Termination occurs.
In addition to the foregoing, to the extent not otherwise required
under the Company's Stock Option Plan or any other award agreement
with Executive, any unvested stock option awards theretofore awarded
to Executive shall vest and become immediately exercisable in full.
In the event this Agreement is terminated (or not renewed) for any
reason other than by the Company without Cause, or by Executive for
Good Reason, and such termination (or non-renewal) occurs following a
Change of Control, Executive shall not be entitled to the
continuation of any compensation, bonuses or benefits provided
hereunder, or any other payments following the Date of Termination,
other than Base Salary earned through the Date of Termination.
iii. At Executive's option to be exercised by written notice to the
Company, the severance benefits payable under this Section 4(E) shall
be paid in accordance with the Company's normal payroll procedures in
installments over a twenty-four (24) month period corresponding to
the amount of the payments instead of in a lump sum.
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iv. Anything to the contrary contained herein notwithstanding, as a
condition to Executive receiving severance benefits to be paid
pursuant to this Section 4(E), Executive shall execute and deliver to
the Company a general release in form and substance reasonably
satisfactory to the Company releasing the Company and its officers,
directors, employees and agents from all liabilities, claims and
obligations of any nature whatsoever, excepting only the Company's
obligations under this Agreement, under any Stock Option Award
Agreements, and under any other employee benefit plans or programs in
which Executive participates under Section 3 hereof, subject to all
terms and conditions of such plans or programs and this Agreement.
ARTICLE 5. EMPLOYMENT COVENANTS
A. TRADE SECRETS AND CONFIDENTIAL INFORMATION. Executive agrees that he shall,
during the course of his employment and for a period of five (5) years
thereafter, hold inviolate and keep secret all documents, materials, knowledge
or other confidential business or technical information of any nature
whatsoever disclosed to or developed by him or to which he had access as a
result of his employment (hereinafter referred to as "Confidential
Information"). Such Confidential Information shall include technical and
business information, including, but not limited to, inventions, research and
development, engineering, products, designs, manufacture, methods, systems,
improvements, trade secrets, formulas, processes, marketing, merchandising,
selling, licensing, servicing, customer lists, records or financial
information, manuals or Company strategy concerning its business, strategy or
policies. Executive agrees that all Confidential Information shall remain the
sole and absolute property of the Company. During the course of his employment,
Executive shall not use, disclose, disseminate, publish, reproduce or otherwise
make available such Confidential Information to any person, firm, corporation
or other entity, except for the purpose of conducting business on behalf of the
Company. Following the Term, Executive shall not use, disclose, disseminate,
publish, reproduce, or otherwise make available such Confidential Information
to any person, firm, corporation, or other entity. Upon termination of his
employment with the Company, Executive will leave with or deliver to the
Company all records and any compositions, articles, devices, equipment and
other items which disclose or embody Confidential Information including all
copies or specimens thereof, whether prepared by his or by others. The
foregoing restrictions on disclosure of Confidential Information shall apply so
long as the information has not properly come into the public domain through no
action of Executive.
B. TRANSFER OF INVENTIONS. Executive, for himself and his heirs and
representatives, will promptly communicate and disclose to the Company, and
upon request will, without additional compensation, execute all papers
reasonably necessary to assign to the Company or the Company's nominees, free
of encumbrance or restrictions, all inventions, discoveries, improvements,
whether patentable or not, conceived or originated by Executive solely or
jointly with others, at the Company's expense or at the Company's facilities,
or at the Company's request, or in the course of his employment, or based on
knowledge or information obtained through his employment during the Term. All
such assignments shall include the patent rights in this and all foreign
countries. Notwithstanding the foregoing, this Section 5(B) shall not apply to
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any invention for which no equipment, supplies, facilities or trade secret
information of the Company was used and which was developed entirely on
Executive's own time; and
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i. that does not relate:
a. directly to the business of the Company, or
b. to the Company's actual or demonstrably anticipated research
or development; or
ii. that does not result from any work performed by Executive for the
Company.
C. EXCLUSIVITY OF EMPLOYMENT. During the Term, Executive shall not directly or
indirectly engage in any activity competitive with or adverse to the Company's
business or welfare or render a material level of services of a business,
professional or commercial nature to any other person or firm, whether for
compensation or otherwise, except for serving as a director of another firm.
D. COVENANT NOT TO COMPETE. Executive agrees to be bound and abide by the
following covenants not to compete:
i. TERM AND SCOPE. During his employment with the Company and for a
period of two (2) years after the Term, Executive will not render to
any Conflicting Organization (as hereinafter defined), services,
directly or indirectly, anywhere in the world in connection with any
Conflicting Product, except that Executive may accept employment with
a large Conflicting Organization whose business is diversified (and
which has separate and distinct divisions) if Executive first
certifies to the Board of Directors in writing that he has provided a
copy of Section 5 of this Agreement to such prospective employer,
that such prospective employer is a separate and distinct division of
the Conflicting Organization and that Executive will not render
services directly or indirectly in respect of any Conflicting Product
(as hereinafter defined). Such two-year time period shall be tolled
during any period that Executive is engaged in activity in violation
of this covenant.
ii. JUDICIAL ACTION. Executive and the Company agree that, if the
period of time or the scope of the restrictive covenant not to
compete contained in this Section 5(D) shall be adjudged unreasonable
in any court proceeding, then the period of time and/or scope shall
be reduced accordingly, so that this covenant may be enforced in such
scope and during such period of time as is judged by the court to be
reasonable. In the event of a breach or violation of this Section
5(D) by Executive, the parties agree than in addition to all other
remedies, the Company shall be entitled to equitable relief for
specific performance, and Executive hereby agrees and acknowledges
that the Company has no adequate remedy at law for the breach of the
covenants contained herein.
iii. DEFINITIONS. For purposes of the covenants contained in this
Section 5(D), the following terms shall have the following meanings:
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a. "Conflicting Product" means any product, method or process,
system or service of any person or organization other than the
Company, in existence or under development at the time
Executive's employment with the Company terminates, that is the
same as or substantially or directly competes with a product,
method or process, system or service of or provided by the
Company or any of its affiliates or about which Executive
acquires Confidential Information.
b. "Conflicting Organization" means any person or organization
which is engaged in or about to become engaged in, research on
or development, production, marketing, licensing, selling or
servicing of a Conflicting Product.
iv. DISCLOSURE TO PROSPECTIVE EMPLOYERS. Executive will disclose to
any prospective employer, prior to accepting employment, the
existence of Section 5 of this Agreement. The obligation imposed by
this Section 5(D) shall terminate two (2) years after termination of
Executive's employment with the Company; provided, however, the
running of such two-year period shall be tolled to the extent the
covenant not to compete contained in Section 5(D) hereof is tolled.
ARTICLE 6. MISCELLANEOUS
A. NOTICES. Any notice required or permitted to be delivered hereunder shall be
in writing and shall be deemed to be delivered on the earlier of
i. the date received; or
ii. the date of delivery, refusal or non-delivery indicated on the
return receipt, if deposited in a United States Postal Service
depository, postage prepaid, sent registered or certified mail,
return receipt requested, addressed to the party to receive the same
at the address of such party set forth below:
If to the Company: If to the Executive:
Autologous Wound Therapy, Inc. James A. Cour
1523 Bowman Road, Suite A c/o Michael J. Caywood, Esq.
Little Rock, Arkansas Dresser, Dresser, Gilbert & Haas, PC
72211 USA 112 South Monroe Street
Sturgis, Michigan
49091 USA
A Party may change its address from time to time by Notice addressed
to the other Party.
B. HEADINGS. The headings of the articles and sections of this Agreement are
inserted for convenience only and shall not be deemed a part of or affect the
construction or interpretation of any provision hereof.
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C. MODIFICATIONS & WAIVER. No modification of any provision of this Agreement
or waiver of any right or remedy herein provided shall be effective for any
purpose unless specifically set forth in a writing signed by the party to be
bound thereby. No waiver of any right or remedy in respect of any occurrence or
event on one occasion shall be deemed a waiver of such right or remedy in
respect of such occurrence or event on any other occasion.
D. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes all other
agreements; oral or written, heretofore made with respect thereto.
E. SEVERABILITY. Any provision of this Agreement prohibited by or unlawful or
unenforceable under any applicable law of any jurisdiction shall as to such
jurisdiction be ineffective without affecting any other provision hereof. To
the full extent, however, that the provisions of such applicable law may be
waived, they are hereby waived, to the end that this Employment Agreement be
deemed to be a valid and binding agreement enforceable in accordance with its
terms.
F. GOVERNING LAW AND JURISDICTION. This Agreement shall be deemed to have been
entered into by the parties in the State of Illinois and shall be continued and
enforced in accordance with the laws of that State. Any disputes arising under
the terms and conditions of this Agreement shall be resolved in a court of
competent jurisdiction of that State and the parties hereto irrevocably submit
to such jurisdiction.
G. ASSIGNMENTS. The Company shall have the right to assign this Agreement and
to delegate all rights, duties and obligations hereunder to any entity that
controls the Company, that the Company controls or that may be the result of
the merger, consolidation, acquisition or reorganization of the Company and
another entity. Executive agrees that this Agreement is personal to him and his
rights and interest hereunder may not be assigned, nor may his obligations and
duties hereunder be delegated (except as to delegation in the normal course of
operation of the Company), and any attempted assignment or delegation in
violation of this provision shall be void. Notwithstanding any of the
foregoing, all of Executive's rights and interest hereunder shall be assignable
to Executive's legal representatives, executors or conservators in the event of
Executive's Death or Disability.
H. ATTORNEY FEES. In the event of litigation between the parties, to enforce
their respective rights under this Agreement, the prevailing party shall be
entitled to receive from the non-prevailing party reimbursement of the
prevailing party's reasonable attorney's fees and costs at all levels of trial
and appeal.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
Executive Autologous Wound Therapy, Inc.
/s/ James Cour By: /s/ Dennis G. Hendren
---------------- ----------------------------
James A. Cour Title: President/CEO
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APPENDIX I
Part A - Bonus and Incentive Plans
1. ANNUAL BONUS. In addition to Executive's Base Salary, the Company shall
pay to the Executive an annual bonus in an initial amount of Seventy-Five
Thousand Dollars ($75,000). The bonus shall be payable depending on the
achievement of the Executive and the Company of a specified list of
performance and payment criteria to be agreed to between the Executive and
the Company and approved by the Company's Board of Directors. In
accordance with the Executive's annual salary review, the Executive's
annual bonus shall be reviewed and increased by the Company's Board of
Directors as may be appropriate.
2. LONG TERM INCENTIVE PROGRAM. During the Term of Executive's employment by
the Company, Executive shall be entitled to participate in the Company's
Executive Long Term Incentive Program which will be established by the
Company's Board of Director's in accordance with a strategic plan
developed for the Company and on appropriate terms and conditions.
Part B - Employee Benefit Plans and Programs
1. INSURANCE PROGRAM. The Company shall establish for the benefit of the
Executive an insurance program, which shall include, among other things,
life, health, dental and long-term disability coverage. Such insurance
program shall be no less competitive than similar benefit programs that
are established for other health care companies or comparable industries.
2. PENSION OR PROFIT-SHARING PROGRAMS. In addition to the insurance program,
the Company shall establish a suitable pension, (401(k)) or other profit
sharing program, which shall be no less competitive than similar pension
or profit-sharing programs that are established for other health care
companies or comparable industries.
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