EXHIBIT 10.106
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE EMPLOYMENT
AGREEMENT (“ Agreement ”) is made effective
as of November 1, 2008 (the “ Effective Date
”), by and between Scott Dustin (“
Executive ”) and Global Med Technologies, Inc. (the
“ Company ”).
The Company wishes to retain the
services of Executive pursuant to this Agreement, the terms and
provisions of which are set forth below.
NOW, THEREFORE, IT IS HEREBY
MUTUALLY AGREED AS FOLLOWS :
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1.
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POSITION AND DUTIES
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(a)
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During the Term (as defined in Section 3), Executive will be
employed by the Company as a Vice-President – Sales and
Marketing, the Americas, and shall be responsible for domestic
sales and marketing, shall report to the President and Chief
Operating Officer, and shall perform such other duties as from time
to time determined by the Company.
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(b)
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Executive shall serve the Company faithfully, loyally, honestly,
and to the best of Executive’s ability. Executive will devote
substantially all of Executive’s business time to the
performance of Executive’s duties for, and in the business
and affairs of, the Company.
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2.
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BASE SALARY
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Commencing on the Effective Date
and, unless terminated earlier pursuant to the terms of this
Agreement, during the remaining Term of this Agreement,
Executive’s annual base salary will be One Hundred
Twenty-Seven Thousand Fifty Dollars ($127,050), payable in
accordance with the Company’s customary payroll practices as
are in effect from time to time (“ Base Salary
”).
In addition to Executive’s
Base Salary, Executive will be eligible to participate in the
Company’s sales commission plan.
3.
TERM
The “ Initial Term
” of this Agreement shall begin on the Effective Date and
shall expire on the first (1 st ) anniversary of the
date hereof, unless sooner terminated in accordance with the
provisions of this Agreement. The Initial Term and each renewal
term thereafter shall be automatically renewed for successive one
(1) year periods, unless the Company shall have provided written
notice to Executive at least thirty (30) days prior to the
expiration of the then current term of its intent not to renew this
Agreement (each extension period following the Initial Term shall
be referred to as a “ Renewal Term ”). The
Initial Term and all Renewal Term(s), if any, shall be referred to
collectively as the “ Term ”.
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4.
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TERMINATION OF EMPLOYMENT
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(a)
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Termination without Good Reason, or Termination for
Cause.
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(i)
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If, prior to the expiration of the Term, Executive’s
employment is terminated by the Company for “ Cause
” (as defined below) or if Executive resigns from his
employment hereunder without “Good Reason” (as defined
below), Executive shall be entitled to payment of (A) his Base
Salary accrued up to and including the date of termination or
resignation, including any accrued or unused vacation time, and (B)
any unreimbursed expenses. Except to the extent required by the
terms of the benefits provided in Section 5 or applicable law,
Executive shall have no right under this Agreement or otherwise to
receive any other compensation or to participate in any other plan,
program or arrangement after such termination or resignation of
employment with respect to the year of such termination or
resignation or thereafter.
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(ii)
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Termination for “ Good Reason ” shall mean a
termination by Executive of his employment if, without
Executive’s consent, any of the following events occur: (a) a
decision by the Company to terminate its business and liquidate its
assets; (b) the Company makes a general assignment for the benefit
of creditors, files a voluntary bankruptcy petition, files a
petition or answer seeking a reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief under any law, there shall have been filed any petition or
application for the involuntary bankruptcy of the Company, or other
similar proceeding, in which an order for relief is entered or
which remains undismissed for a period of sixty (60) days or more,
or the Company seeks, consents to, or acquiesces in the appointment
of a trustee, receiver, or liquidator of the Company or any
material party of its assets; without Executive’s consent,
the Company: (c) the Company diminishes Executive’s title,
(d) the Company materially diminishes Executive’s duties, (e)
the Company assigns duties and responsibilities to Executive that
are materially inconsistent with those assigned as of the Effective
Date, (f) the Company reduces Executive’s Base Salary (not
including bonus or incentive compensation) other than any such
reduction which is part of, and generally consistent with, a
general reduction of officers’ salaries, (g) the Company
materially reduces the kind or level of employee benefits (other
than salary and incentive compensation bonus) to which the
Executive is entitled immediately prior to such reduction with the
result that the Executive’s overall benefits package (other
than salary and incentive compensation/bonus) is substantially
reduced (other than any such reduction applicable to officers of
the Company generally);or (h) the Company materially breaches this
Agreement.
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(iii)
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Termination for “ Cause ” shall mean a
termination of Executive’s employment with the Company
because of (A) a plea of guilty or nolo contendere , or
conviction for, the commission of a felony offense by Executive,
(B) the involvement by Executive as a party to any litigation or
regulatory proceeding or in any other circumstance known to the
general public that, in the good faith determination of the Board
of Directors of the Company, is reasonably certain to subject
Executive, the Company or its affiliates to disrepute, ridicule,
contempt or scandal or that is reasonably certain to reflect
unfavorably upon the reputation of Executive, the Company or its
affiliates or the Company’s products or technologies, except
that this subsection (iii)(B) does not apply to claims that
Executive may bring against the Company that are protected by law;
(C) the willful failure to perform in any material respect
Executive’s duties; (D) an intentional act of fraud,
embezzlement, theft or a dishonest act against the Company or its
affiliates; (E) a material breach by Executive of the terms and
provisions of the Agreement; or (F) a violation by Executive of a
fiduciary duty or duty of loyalty to the Company.
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(iv)
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Termination by Executive of his employment for Good Reason shall
be communicated by delivery to the Company of a written notice from
the Executive stating that Executive is terminating the employment
for Good Reason, specifying the particulars thereof and the
effective date of such termination. In the event of a termination
for Good Reason under Section 4(a)(ii)(c),(d),(e),(f),(g) or (h),
the Company shall have thirty (30) days from the date of receipt of
such notice to effect a cure of the actions constituting Good
Reason. Upon a cure or correction thereof within such thirty (30)
day cure period by the Company to the reasonable satisfaction of
Executive, the action shall no longer constitute Good Reason for
purposes of this Agreement.
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(v)
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Termination of Executive’s employment for Cause shall be
communicated by delivery to Executive of a written notice from the
Company stating that Executive will be terminated for Cause,
specifying the particulars thereof and the effective date of such
termination. In the event of a termination for Cause under Section
4(a)(iii)(E) or (F), Executive shall have thirty (30) days from the
date of receipt of such notice to effect a cure of the actions
constituting Cause. Upon a cure or correction thereof within such
thirty (30) day cure period by Executive to the reasonable
satisfaction of the Company, the action shall no longer constitute
Cause for purposes of this Agreement. Executive shall not be
entitled to a cure period for a repeated breach of the same Section
of this Agreement.
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(vi)
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The date of a resignation by Executive without Good Reason shall
be the date specified in a written notice of resignation from
Executive to the Company, provided
that , Executive shall provide at least ninety (90)
days’ advance written notice of his resignation.
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(b)
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Payments Upon a Termination Without Cause, Termination with
Good Reason or Non-Renewal of Agreement. If the Company
terminates Executive’s employment for any reason other than
Disability, Death or Cause (such termination hereinafter referred
to as “ Termination Without Cause ”) or the
Company fails to renew this Agreement after the expiration of the
Initial Term or any Renewal Term thereafter, or Executive
terminates his employment for “Good Reason”, Executive
shall be entitled to (A) continuation of benefits for the remainder
of the Initial Term or the then current Renewal Term, if any, and
(B) payment of any unreimbursed expenses. In addition, subject to
Executive’s execution and delivery of a release in the form
then deemed appropriate by the Company, Executive shall be entitled
to severance consisting of continuation of his Base Salary at the
rate in effect on the date of the termination or non-renewal, from
the date of such termination or non-renewal up to the earlier of
(i) the date Executive elects to engage or cause others to engage
in a Competing Business (defined below) or (ii) six (6) months
following the date of the termination or non-renewal. The date of
termination of employment for Termination Without Cause shall be
the date specified in the written notice of termination provided by
the Company to Executive. The date of termination for Good Reason
shall be the date of expiration of the cure period set forth in
Section 4(a)(iv) hereof. Except as specifically set forth above,
Executive covenants and agrees that he shall not be entitled to any
other form of severance benefits from the Company, including,
without limitation, benefits otherwise payable under the
Company’s regular severance policies, if any, in the event
his employment ends for any reason and, except with respect to
obligations of the Company expressly provided for herein, Executive
unconditionally releases the Company and its subsidiaries and
affiliates, and their respective directors, officers, employees and
stockholders, or any of them, from any and all claims, liabilities,
or obligations under any severance arrangements of the Company or
any of its subsidiaries or affiliates. A “ Competing
Business ” shall mean and refer to a business involving
the design, development, marketing and/or support of information
management software products for blood banks, hospitals,
centralized transfusion services or other health care related
facilities.
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(c)
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Termination due to Disability. In the event of
Executive’s Disability, the Company shall be entitled to
terminate his employment. In the case that the Company terminates
Executive’s employment due to Disability, Executive shall be
entitled to his Base Salary, including any accrued but unused
vacation time, up to and including the date of termination as well
as any unpaid expense reimbursements. As used in this Section 4(c),
the term “ Disability ” shall mean the
Company’s determination that due to physical or mental
illness or incapacity, whether total or partial, Executive is
substantially unable (with or without a reasonable accommodation)
to perform his duties hereunder for a period of thirty (30)
consecutive days or shorter periods aggregating sixty (60) days
during any period of one hundred eighty (180) consecutive days.
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(d)
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Death. This Agreement shall terminate automatically on
Executive’s death. Any Base Salary, including any accrued but
unused vacation time, earned by Executive for services rendered
prior to Executive’s death and any unpaid expense
reimbursements shall be paid to Executive’s surviving spouse,
or if Executive does not leave a surviving spouse, to
Executive’s estate. No other benefits shall be payable to
Executive’s estate or heirs pursuant to this Agreement, but
amounts may be payable pursuant to any life insurance or other
benefit plans maintained in whole or in part by the Company for the
benefit of Executive, his estate or heirs.
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(e)
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Timing of Payments . Notwithstanding any other provision
with respect to the timing of payments under this Section 4, if, at
the time of Executive’s termination, Executive is deemed to
be a “specified employee” (within the meaning of
Section 409A of the Internal Revenue Code (the “ Code
”), and any successor statute, regulation and guidance
thereto) of the Company, then only to the extent necessary to
comply with the requirements of Section 409A of the Code, any
payments to which Executive may become entitled under this Section
4 which are subject to Section 409A of the Code (and not otherwise
exempt from its application) will be withheld until the first (1
st ) business day of the seventh (7 th )
month following the termination of Executive’s employment
with the Company, at which time Executive shall be paid an
aggregate amount equal to six (6) months of payments otherwise due
to Executive under the terms of this Section 4.After the first
business day of the seventh (7 th ) month following the
termination of Executive’s employment and continuing each
month thereafter, Executive shall be paid the regular payments
otherwise due to Executive in accordance with the terms of the
applicable provision of Section 4.
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5.
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BENEFITS
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(a)
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Executive will be entitled to participate in all employee
benefit plans which may be instituted by the Company in its sole
discretion, subject to restrictions. The foregoing shall not be
construed to limit the ability of the Company to amend, modify or
terminate any such benefit plans, policies or programs at any time
and from time to time.
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(b)
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Executive’s vacation is to accrue on a pro-rata basis as
required by California law and to be taken in accordance with
Company’s standard vacation policies. Unused vacation shall
accrue in accordance with then-current Company policies. The
Company’s paid holidays are in addition to the
above-referenced vacation time.
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(c)
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In addition to the compensation and benefits provided a
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