**Exhibit 10.28**

 

**EMPLOYMENT AGREEMENT**

 

THIS EMPLOYMENT AGREEMENT (the “Agreement”) is dated as of December 18, 2003 is by and between Closure Medical Corporation, a Delaware corporation (the“Company”), and Benny Ward (“Employee”). 

 

WHEREAS, theCompany and Employee desire to enter into an agreement to provide for Employee’s employment by the Company, upon the terms and conditions set forth herein; 

 

WHEREAS, the Company and Employee wish to replace in its entirety a prior employment agreement between the parties dated May 3, 2000 (the “Prior Agreement”);

 

**Terms**

 

**1. Employment.** The Company hereby employs Employee, and Employee hereby acceptssuch employment and agrees to perform his duties and responsibilities hereunder, in accordance with the terms and conditions hereinafter set forth. 

 

**1.1 Employment Term.** The term of this Agreement (the “Employment Term”) shall commence as of January 1, 2004 and shall continueuntil December 31, 2004. The Employment Term shall automatically be extended for successive one-year terms, subject to the termination provisions hereof, unless either party notifies the other, in writing, at least sixty (60) days prior to the endof the then current Employment Term that the Agreement is to be terminated. 

 

**1.2 Duties and Responsibilities.**

 

1.2.1 During the Employment Term, Employee shall serve as Vice President – Chief Financial Officer and shall perform all duties andaccept all responsibilities incidental to such position or as otherwise may be reasonably assigned to him by the Company’s Chief Executive Officer or its Board of Directors (the “Board”). 

 

1.2.2 Employee represents to the Company that, he is notsubject to, and agrees that he will not hereafter during the Employment Term become subject to, any employment agreement, non-competition covenant, non-disclosure agreement or other agreement, covenant, understanding or restriction which wouldprohibit Employee from fully performing his duties and responsibilities hereunder, or which would otherwise in any manner, directly or indirectly, limit or adversely affect the duties and responsibilities which may now or in the future be assignedto Employee by the Company’s Chief Executive Officer or the Board. 

 

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**1.3 Extent of Service.** During the Employment Term, Employee agrees to use his best effortsto carry out his duties and responsibilities under Section 1.2.1 hereof and, consistent with the other provisions of this Agreement, to devote his full time, attention and energy thereto during normal business hours. Except as provided in Section 4hereof, the foregoing shall not be construed as preventing Employee from making investments in other businesses or enterprises, provided that Employee agrees not to become engaged in any other business, charitable or community activity which maymaterially interfere with his ability to discharge his duties and responsibilities to the Company. 

 

**1.4 Base Salary.** For all the services rendered by Employee hereunder, the Company shall pay Employee an annual salary at the rate of$228,165 for each full year of the Employment Term, plus such additional amounts, if any, as may be approved by the Board or its Compensation Committee (the “Committee”) (as such amount may be increased from time to time hereunder, the“Base Salary”), payable in installments at such times as the Company customarily pays its other senior officers (but in no event less often than monthly). Employee’s Base Salary shall be reviewed by the Board or the Committee at theend of each employment year to determine if an increase is appropriate for the next employment year pursuant to its normal performance review policies for executives, taking into account Employee’s performance and increases in the cost ofliving. The Company shall be entitled to make proper withholdings from Employee’s Base Salary as required by law or agreed to by Employee. 

 

**1.5 Benefits.** During the Employment Term, Employee shall be (a) entitled to the benefits described in Exhibit 1.5 and to participatein such retirement, profit sharing, group insurance, life insurance, long-term disability, medical/dental and any other fringe benefit plans, if any, as may be authorized from time to time by the Board in its sole discretion for officers of theCompany generally, and (b) entitled to four weeks of paid vacation, in addition to customary holidays and personal days in accordance with the Company’s normal personnel policies. Accrued and unused vacation may be carried forward into thesubsequent year only if approved in writing by the Committee, Board or Chief Executive Officer of the Company. 

 

**1.6 Incentive Compensation.** Employee shall be entitled to participate in such incentive compensation or bonus plans, if any, as may beestablished from time to time in respect of each complete fiscal year during the Employment Term by the Board or the Committee in their sole discretion, the terms and provisions of which shall also be in the sole discretion of the Board or theCommittee. In addition, with respect to each calendar year during the Employment Term, Employee will be entitled to receive an annual bonus, providing the Company’s performance is no less than 80% of the revenue and EBIT targets, payable nolater than 100 days after the end of such calendar year, in a minimum amount equal to 20% of his Base Salary and a maximum amount equal to 60% of his Base Salary, based on performance milestones significant to the progress of the Company to beestablished by the Board upon the recommendation of the Committee based upon criteria to be submitted to the Committee by the end of the first calendar quarter of each year by the Chief Executive Officer. For purposes of this Agreement, an annualbonus equal to 60% of Base Salary is defined as the “Target Bonus”. 

 

**1.7 This section intentionally left blank**

 

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**1.8 Expenses.** The Company shall reimburse Employee on a timely basis for all ordinary andnecessary out-of-pocket business expenses incurred in connection with the discharge of his duties and responsibilities hereunder during the Employment Term in accordance with the Company’s expense approval procedures then in effect and uponpresentation to the Company of an itemized account and written proof of such expenses. 

 

**2. Confidential Information.** Employee recognizes and acknowledges that by reason of employment by and service to the Company, he has had and will continue to have access to financial, proprietary and other confidentialinformation of the Company and its affiliates, including, without limitation, information and knowledge pertaining to products and services offered, research ideas, methods and results, innovations, designs, ideas, plans, trade secrets, proprietaryinformation, distribution and sales methods and systems, sales and profit figures, customer and client lists, and relationships between the Company and its affiliates, distributors, customers, clients, suppliers and other who have business dealingswith the Company and its affiliates (“Confidential Information”). Employee acknowledges that such Confidential Information is a valuable and unique asset and covenants that he will not, either during or after the term of this Agreement,disclose any such Confidential Information to any person for any reason whatsoever without the prior written authorization of the Board, unless such information is in the public domain through no fault of Employee or except: (a) as may be requiredby law with prior notice to the Company; or (b) in the course of his employment hereunder and solely in furtherance of the interests of the Company and its affiliates. 

 

**3. Developments.** All developments, including inventions, whether patentable or otherwise, trade secrets, discoveries,improvements, ideas and writings which either directly or indirectly relate to or may be useful in the business of the Company or any of its affiliates (the “Developments”) which Employee, either by himself or in conjunction with any otherperson or persons, shall conceive, make, develop, acquire or acquire knowledge of during the Employment Term or at any time thereafter during which he is employed by the Company, shall become and remain the sole and exclusive property of theCompany. Employee hereby assigns, transfers and conveys, and agrees to so assign, transfer and convey, all of his right, title and interest in and to any and all such Developments and to disclose fully as soon as practicable, in writing, all suchDevelopments to the Board. At any time and from time to time, upon the request and at the expense of the Company, Employee will execute and deliver any and all instruments, documents and papers, give evidence and do any and all other acts which, inthe opinion of counsel for the Company, are or may be necessary or desirable to document such transfer or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents, trademark registrationsor copyrights under United States or foreign law with respect to any such Developments or to obtain any extension, validation, re-issue, continuance or renewal of any such patent, trademark or copyright. The Company will be responsible for thepreparation of any such instruments, documents and papers and for the prosecution of any such proceedings and will reimburse Employee for all reasonable expenses incurred by him in compliance with the provisions of this Section. 

 

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**4. Non-Competition.**

 

**4.1**During the Employment Term and for a period of two years thereafter, Employee will not, without prior writtenconsent of the Board, directly or indirectly, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent,representative, consultant or otherwise with or use or permit his name to be used in connection with, any business or enterprise engaged within any state of the United States, the District of Columbia or any foreign jurisdiction in any business thatcompetes with the business of the Company business as in effect either during the Employment Term or on the date Employee’s employment terminates, as applicable. It is recognized by Employee that the business of the Company and Employee’sconnection therewith is or will be international in scope, and that geographical limitations on this non-competition covenant and the non-solicitation covenant set forth in Section 5 are therefore not appropriate. 

 

**4.2** The foregoing restriction shall not be construed to prohibit theownership by Employee of not more than five percent (5%) of any class of securities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Securities Exchange Act of 1934,provided that such ownership represents a passive investment and that neither the Employee nor any group of persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any ofits financial obligations, otherwise takes part in its business, other than exercising his rights as a shareholder, or seeks to do any of the foregoing. 

 

**5. No Solicitation.** Employee agrees that during the Employment Term and for a period of two years thereafter, Employee will not, either directly orindirectly, (i) call on or solicit any person, firm, corporation or other entity who or which at the time of the termination of Employee’s employment was, or within one year prior thereto had been, a customer of the Company or any of itsaffiliates or (ii) solicit the employment of any person who was employed by the Company or any of its affiliates on a full or part-time basis at the time of Employee’s termination of employment, unless such person (a) was involuntarilydischarged by the Company or such affiliate, or (b) voluntarily terminated his relationship with the Company or such affiliate prior to Employee’s termination of employment. 

 

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**6. Equitable Relief.**

 

**6.1** Employee acknowledges that the restrictions contained in Sections 2, 3, 4 and 5 hereof are reasonable andnecessary to protect the legitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such restrictions, and that any violation of any provision of those Sections may result inirreparable injury to the Company and its affiliates (each of which shall be deemed a third party beneficiary of such restriction). Employee represents that his experience and capabilities are such that the restrictions contained in Sections 4 and 5hereof will not prevent Employee from obtaining employment or otherwise earning a living at the same general level of economic benefit as anticipated by this Agreement. Employee represents and acknowledges that (a) he has been advised by the Companyto consult his own legal counsel in respect of this Agreement, and (b) that he has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with his counsel. 

 

**6.2** Employee agrees that each of the Company and its affiliates shallbe entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as to an equitable accounting of all earnings, profits and other benefits arising from any violation of Section 2, 3, 4 or 5 hereof,which rights shall be cumulative and in addition to any other rights or remedies to which the Company or any affiliate may be entitled. In the event that any provisions of Section 2, 3, 4 or 5 hereof should ever be adjudicated to exceed time,geographic, service or other limitations permitted by applicable law in any jurisdiction, then such provision shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by applicable law.

 

**6.3** Employee and the Company irrevocably andunconditionally (i) agree that any suit, action or other legal proceeding arising out of this Agreement, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief and other equitable relief,may be brought in any court of competent jurisdiction in the State of North Carolina, provided that any suit, action or other legal proceeding brought against the Company shall be brought and adjudicated in the United States District Court for theEastern District of North Carolina or, if such court will not accept jurisdiction, in any court of competent civil jurisdiction sitting in Wake County, North Carolina, (ii) consent to the jurisdiction of any such court in any such suit, action orproceeding and (iii) waive any objection which Employee or the Company may have to the laying of venue of any such suit, action or proceeding in any such court. Employee and the Company also irrevocably and unconditionally consent to the service ofany process, pleading, notices or other papers in any manner permitted by the notice provisions hereof. 

 

**6.4** Employee agrees that he will provide, and that the Company may similarly provide, a copy of Sections 2, 3, 4, and 5 of this Agreement to anybusiness or enterprise (i) which he may directly or indirectly own, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, control or control of, or (ii) with which he may be connected with as anofficer, director, employee, partner, principal, agent, representative, consultant or otherwise, or in connection with which he may use or permit his name to be used; 

 

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provided, however, that this provision shall not apply in respect of Sections 4 and 5 of this Agreement after expiration of the time periods set forththerein. 

 

**7. Termination.** This Agreement shall terminate prior tothe expiration of the Employment Term upon the occurrence of any one of the following events: 

 

**7.1 Disability.** The Company may terminate this Agreement if Employee is unable fully to perform his duties and responsibilities hereunder to the full extent required by the Board by reason of illness,injury or incapacity for six (6) consecutive months, or for more than six (6) months in the aggregate during any period of twelve (12) calendar months, during which time he shall continue to be compensated as provided in Section 1 hereof. In suchevent, the Company shall have no further liability or obligation to Employee for compensation or other benefits under this Agreement except (i) as may be provided under any disability benefit plan or other employee benefit plan and program which maybe in effect and in which he participated, and (ii) Employee shall be entitled to receive a pro rata portion of the incentive compensation pursuant to Section 1.6 in respect of the year during which Employee first became disabled. The right andbenefits of Employees under any such employee benefit plans and programs will be determined in accordance with the terms and provisions of such plans and programs. Employee agrees, in the event of any dispute under this Section 7.1, to submit to aphysical examination by an independent, licensed physician selected by the Board. 

 

**7.2 Death.** This Agreement shall terminate if Employee dies during the Employment Term. In such event, the Company shall pay to Employee’s executors, legal representatives or administrators an amountequal to the installment of his Base Salary set forth in Section 1.4.1 hereof for the month in which he dies, all accrued incentive compensation pursuant to Section 1.6 and a pro rata portion of the incentive compensation pursuant to Section 1.6 inrespect of the year during which Employee died, and, thereafter, the Company shall have no further liability or obligation under this Agreement to his executors, legal representatives, administrators, heirs or assigns or any other person claimingunder or through him, except as may be provided under any employee benefit plan or compensation program which may be in effect for employees of the Company and in which he participated. The rights and benefits of Employee under any such employeebenefit plans and programs will be determined in accordance with the terms and provisions of such plans and programs. 

 

**7.3 Cause.** The Company may terminate this Agreement, at any time, for “cause”. For purposes of the Agreement, Employee’semployment may be terminated for “cause” if: (a) he engages in gross misconduct, or dishonesty (which in either case results in material harm to the Company); (b) materially fails to perform or observe any of the terms or provisions ofthis Agreement (c) fails to carry out reasonable directives of the Chief Executive Officer of the Company or the Board in accordance with Section 1.2; or (d) is convicted of a felony or is involved in substance abuse; provided, however, that“cause” shall not include bad judgment or any act or omission reasonably believed by Employee in good faith to have been in or not opposed to the best interests of the Company, and provided further, however, that in any event, Employeeshall be given written notice by the Board that the Company intends to terminate Employee’s employment for cause, which written notice shall specify the act or acts on the basis of which the Company intends so to terminate Employee’semployment, and Employee shall then 

 

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be given the opportunity, within fifteen (15) days of his receipt of such notice, to have a meeting with the Board to discuss such act or acts. If the basisof such written notice is an act or acts other than an act or acts described in clause (d) of the preceding sentence, Employee will be given seven (7) days after such meeting within which to cease or correct the performance (or nonperformance) or tocure the harm giving rise to such written notice and, upon failure of Employee within such seven (7) day period to cease or correct same, Employee’s employment by the Company shall automatically terminate hereunder for cause. If Employee ceasesor cures to the satisfaction of the Board of Directors, the Employee’s employment agreement shall continue in accordance with the terms hereof. Upon any such termination or removal, Employee shall be entitled to receive Base Salary underSection 1.4, incentive compensation under Section 1.6 and all other benefits and compensation as described herein for a period of twelve (12) months thereafter. 

 

**7.4 Change in Control Termination.**

 

7.4.1 For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if: 

 

(a) As a result of a tender offer, stock purchase, otherstock acquisition, merger, consolidation, recapitalization, reverse split, or sale or transfer of assets, any person or group (as such terms are used in and under Section 13(d) of the Exchange Act), but excluding Rolf D. Schmidt and F.W. Schmidt orany entity controlled by either or both of them, becomes the beneficial owner (as defined in Rule 13-d under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50.1% of the common stock of the Company orthe combined voting power of the Company’s then outstanding securities; 

 

(b) A liquidation or dissolution of the Company, or a sale (excluding transfers to subsidiaries) of all or substantially all of the Company’s assets occurs; or 

 

(c) During any period of two consecutive years, individualswho, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, unless the election, or the nomination for election by the Company’s shareholders, or at least two-thirds of thedirectors who were not directors at the beginning of such period was approved by a vote of at least two-thirds of the directors then still in office who were either directors at the beginning of the period or who, in connection with their electionor nomination, received the foregoing two-thirds approval. 

 

7.4.2 After the occurrence of a Change in Control, Employee shall be entitled to receive payment and benefits pursuant to this Agreement if, after the occurrence of a Change in Control, his employment with the Companyis terminated under any of the following circumstances: (a) the Company terminates Employee’s employment for reasons other than “Cause,” “Disability,” or death; or (b) the Employee terminates his employment with the Companyfor “Good Reason.” For purposes of this Agreement, “Good Reason” shall mean the occurrence after a Change in Control of any of the following events or conditions: (i) an adverse change in the Employee’s status, title,position or responsibilities from that in effect immediately prior to the Change in Control; (ii) a reduction in the Employee’s salary; (iii) the failure by the 

 

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Company (or any successor entity) to cover Employee under benefit plans that, in the aggregate, either provide substantially similar benefits to Employeeand/or his family and dependents at a substantially similar total cost to Employee as were in effect immediately prior to the Change in Control; (iv) the Company’s requiring the Employee to relocate beyond a twenty-five (25) mile radius fromRaleigh, North Carolina; (v) any purported termination of Employee’s employment for cause or disability without grounds therefor; (vi) any material breach by the Company of any provision of this Agreement; (vii) the failure of the Company toobtain an agreement, satisfactory to the Employee, from any successor or assign of the Company to assume and agree to perform this Agreement; or (viii) Employee’s termination of employment with the Company for any reason other than death duringthe twelfth month following the month during which the Change in Control occurs. 

 

7.4.3 In the event that Employee’s employment with the Company terminates under any of the circumstances described in Section 7.4.2above, Employee shall be entitled to receive all of the following: (a) All accrued compensation and any prorata incentive compensation Employee may have earned up to the date of termination; (b) A lump sum cash payment equal to twotimes the sum of (i) Employee’s then current annual salary and (ii) Employee’s Target Bonus for the year in which the Change in Control occurs. The Company shall maintain in full force and effect, for two (2) years after the date oftermination, all benefit plans and programs in which Employee was entitled to participate immediately prior to the date of termination, provided that Employee’s continued participation is possible under the general terms and provisions of suchplans and programs. Employee’s continued participation in such plans and programs shall be at no greater cost to Employee than the cost he bore for such participation immediately prior to the date of termination. If Employee’sparticipation in any such plan or program is barred, the Company shall arrange upon comparable terms, and at no greater cost to Employee than the cost he bore for such plans and programs prior to the date of termination, to provide Employee withbenefits substantially similar to those which he is entitled to receive under any such plan or program. If the Company maintains a supplemental benefits plan or deferred compensation plan, all benefits will be fully vested and will be paid toEmployee immediately upon the date of termination unless Employee elects deferral of such. 

 

**7.5 Increase in Payments Upon Change of Control.**

 

(a) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment or distributionby the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute an “excess parachute payment” withinthe meaning of Section 280G of the Code, the Company shall pay Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by Employee after deduction of any excise tax imposed under Section 4999 of the Code,and any federal, state and local income tax, employment tax and excise tax imposed upon the Gross-Up Payment, shall be equal to the Payment. For purposes of determining the amount of the Gross-Up Payment, unless Employee specifies that other ratesapply, Employee shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxesat the highest marginal rate of taxation in the state and locality of Employee’s residence on 

 

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Employee’s Termination Date, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes.

 

(b) All determinations to be made under thisSection 7.5 shall be made by a nationally recognized independent public accounting firm mutually acceptable to the Company and Employee (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculationsboth to the Company and Employee within 20 days after Employee’s Termination Date. Any such determination by the Accounting Firm shall be binding upon the Company and Employee. Within 10 days after the Accounting Firm’s determination, theCompany shall pay the Gross-Up payment to Employee. 

 

(c) Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but nolater than 10 business days after Employee knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the30-day period following the date on which Employee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee in writing prior to theexpiration of such period that it desires to contest such claim, Employee shall: (a) give the Company any information reasonably requested by the Company relating to such claim, (b) take such action in connection with contesting such claim as theCompany shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (c) cooperate with the Company in good faithin order to contest such claim effectively, and, (d) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interestand penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any excise tax, income tax or employment tax, including interest and penalties, with respect thereto, imposed as aresult of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 7.5, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursueor forego any and all administrative appeals, proceedings, hearing and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and sue for a refund or contest theclaim in any permissible manner, and Employee agrees to prosecute such contest to a termination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine. If theCompany directs Employee to pay such claim and sue for a refund, the Company shall advance the amount of such payment to Employee, on an interest-free basis and shall indemnify and hold Employee harmless, on an after-tax basis, from any excise tax,income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance. Any extension of the statute of limitations relating topayment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due shall be limited solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect towhich a Gross-Up Payment would be payable hereunder, and Employee shall be 

 

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entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 

 

(d) In the event that Employee’s employment with theCompany terminates under any of the circumstances described in 7.4.2 above, all stock options with respect to stock of Company that are held by Executive shall become fully vested as of the date of Executive’s termination (if not already vestedand exercisable pursuant to the terms of the applicable plan or option agreement) and Executive shall have two years from the date of termination to exercise said options. 

 

(e) If, after the receipt by Employee of an amount advanced by the Company pursuant to this Section,Employee becomes entitled to receive any refund with respect to such claim, Employee shall (subject to the Company’s complying with the requirements of subsection (b)) promptly pay to the Company the amount of such refund, together with anyinterest paid or credited thereon after taxes applicable thereto. If, after the receipt by Employee of an amount advanced by the Company pursuant to this Section, a determination is made that Employee shall not be entitled to any refund with respectto such claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaidand the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 

 

(f) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 7.5 shall be bornesolely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 7.5, except for claims, damages orexpenses resulting from the gross negligence or willful misconduct of the Accounting Firm. 

 

**7.6 Other Terminations.**

 

7.6.1 Employee may terminate this Agreement upon ten (10) days’ prior written notice to the Company if the Company fails to fulfill any of the material terms and provisions hereof including the failure to payEmployee any amounts payable hereunder within ten (10) business days after the same shall be due and payable. In the event of such termination, Employee shall be entitled to receive payment of his Base Salary, all incentive compensation pursuant toSection 1.6 and all other benefits and compensation to which he would have been entitled under this Agreement until the end of the Employment term. 

 

7.6.2 Employee may voluntarily terminate this Agreement upon thirty (30) days’ prior written notice for any reason; provided,however, that no further payments shall be due under this Agreement in that event except that Employee shall be entitled to all accrued compensation and a prorata portion of all incentive compensation for the year in which terminationoccurs, and any benefits due under any compensation or benefit plan including those listed in Section 1 hereof provided by the Company for officers generally or otherwise. 

 

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**8. Working Facilities.** The Employee shall be provided with an office and such other facilities and servicesas may be suitable to Employee’s position in accordance with manpower plan approved by the Board. 

 

**9. Location.** Employee shall not be required, without his consent, to render services at any place other than the area of Raleigh, North Carolina; however; Employee may be asked to travel in connectionwith the Company’s business as reasonably appropriate for the performance of his duties. 

 

**10. Professional Dues and Continuing Education.** The Company agrees to reimburse the Employee for reasonable professional dues and continuing education expenses necessary to maintain applicablecertifications upon approval by the Company’s Chief Executive Officer or the Board. 

 

**11. Indemnification.** The Company shall indemnify the Employee, to the maximum extent permitted by applicable law, against all costs, charges and expenses incurred or sustained by him in connection withany action, suit or proceeding to which he may be a party or in which he may be a witness by reason of his being an officer, director or employee of the Company or of any subsidiary or affiliate of the Company. 

 

**12. Survival.** Notwithstanding the termination of this Agreement, theCompany’s obligations under Sections 1.4, 1.5, 1.6, 1.7, 1.8, 6.3, 7 and 11 and Employee’s obligations under Sections 2, 3, 4, 5, 6, and 7 shall survive and remain in full force and effect. 

 

**13. Governing Law.** This Agreement shall be governed by and interpreted underthe laws of the State of North Carolina without giving effect to any conflict of law provisions. 

 

**14. Notices.** All notices and other communications hereunder or in connection herewith shall be in writing and shall be deemed to have been given when delivered by hand or reputable express deliveryservice, mailed by certified or registered mail, return receipt requested, or sent by fax to the party as follows (provided that notice of change of address shall be deemed given only when received): 

 

If to the Company, to:
 
Closure Medical Corporation

5250 Greens DairyRoad

Raleigh, North Carolina 27616

Fax: (919)876-7874

Attn: Daniel A. Pelak, CEO

If to Employee, to:
 
Benny Ward

1705 Point O’Woods Court

Raleigh, North Carolina 27604

 

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or to such other names or addresses as the Company or Employee, as the case may be, shall designate bynotice to the other person in the manner specified in this Section. 

 

**15.Miscellaneous.**

 

15.1 This Agreement supersedes allprior agreements (including the Prior Agreement) and sets forth the entire understanding among the parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended or terminated except upon written amendmentapproved by the Board and executed on the Company’s behalf by a duly authorized officer. 

 

15.2 All of the terms of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, executors, administrators, legal representatives, successors and assigns of theparties hereto, (including without limitation, any person, partnership, company or corporation which may acquire substantially all of the Company’s assets or business or with or into which the Company may be merged, liquidated, consolidated orotherwise combined), except that the duties and responsibilities of Employee hereunder are of a personal nature and shall not be assignable or delegatable in whole or in part by Employee. 

 

15.3 If any provision of this Agreement or application thereof to anyone or any circumstances is held invalid orunenforceable in any jurisdiction, the remainder of this Agreement, and the application of such provision to such person or entity or such circumstance in any other jurisdiction or to other persons, entities or circumstances in any jurisdiction,shall not be affected thereby, and to this end the provisions of this Agreement are severable. 

 

15.4 No remedy conferred upon the Company or Employee by this Agreement is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to any other remedygiven hereunder or now or hereafter existing at law or in equity. No delay or omission by the Company or Employee exercising any right, remedy or power hereunder or existing at law or in equity shall be construed as a waiver thereof, and any suchright, remedy or power may be exercised by the Company or Employee from time to time and as often as may be deemed expedient or necessary by the Company or Employee in its sole discretion. 

 

15.5 All section headings are for convenience only. This Agreement may beexecuted in several counterparts, each of which shall be original. It shall not be necessary in marking proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts. 

 

15.6 If either party should file a lawsuit against the other to enforce anyright such party has hereunder, the prevailing party shall also be entitled to recover a reasonable attorney’s fee and costs of suit in addition to other relief awarded such prevailing party. 

 

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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date firstabove written. 

 
CLOSURE MEDICAL CORPORATIONBy: 
DANIEL A. PELAK
    
Daniel A. Pelak, President and C.E.O.
BENNY WARD
Benny Ward, V.P. of Finance and C.F.O.

 

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**EXHIBIT 1.5**

 

**Employee’s Benefits**

 

MEDICAL/DENTAL INSURANCE. The Company will provide, at no charge, medical and dental insurance for Employee and his dependents.

 

LIFE INSURANCE. The Company will provide life insurance based uponEmployee’s salary or position. The amount of an employee’s coverage is four times annual salary. 

 

ACCIDENTAL DEATH AND DISMEMBERMENT (AD&D) INSURANCE. The Company will provide AD&D insurance for Employee. This program pays a benefit if Employee dies or is seriously injured as a direct result of anaccident. The benefits received vary according to the nature of the injury and the Employee’s salary or position. 

 

SALARY CONTINUATIONS. Salary continuation takes effect after Employee has been absent from work for more than three continuous weeks due to medical reasons.Employee earns one month of salary continuation at normal pay up to a maximum of six months or until LTD insurance begins, whichever occurs first. Certification by a physician is required prior to any salary continuation payment. 

 

LONG-TERM DISABILITY. Employee is eligible for long-term disability (LTD) after beingaccepted by insurance company. LTD payments begin after six months of disability and are based on a certain portion of normal pay up to a certain maximum dollar amount per month. 

 

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