EXHIBIT 10.1
CRDENTIA CORP.
EXECUTIVE EMPLOYMENT AGREEMENT
--------------------------------------------------------------------------------
This Executive Employment Agreement (the "AGREEMENT"), dated August 31, 2004, is
between Crdentia Corp., a Delaware corporation (the "COMPANY") and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, an individual residing at Phoenix, Arizona ("EXECUTIVE").
1. POSITION AND RESPONSIBILITIES
a. POSITION. Executive is employed by the Company to render services to
the Company in the position of Senior Vice President. Executive shall perform
such duties and responsibilities as are normally related to such position in
accordance with the standards of the industry and any additional duties now or
hereafter assigned to Executive by the Company. Executive shall abide by the
rules, regulations, and practices as adopted or modified from time to time in
the Company's sole discretion.
b. OTHER ACTIVITIES. Except upon the prior written consent of the
Company, Executive will not, during the term of this Agreement, (i) accept any
other employment, or (ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that might interfere
with Executive's duties and responsibilities hereunder or create a conflict of
interest with the Company.
c. NO CONFLICT. Executive represents and warrants that Executive's
execution of this Agreement, Executive's employment with the Company, and the
performance of Executive's proposed duties under this Agreement shall not
violate any obligations Executive may have to any other employer, person or
entity, including any obligations with respect to proprietary or confidential
information of any other person or entity.
2. COMPENSATION AND BENEFITS
a. BASE SALARY. In consideration of the services to be rendered under
this Agreement, the Company shall pay Executive a salary at the rate of One
Hundred Fifteen Thousand Dollars ($115,000) per year ("BASE SALARY"). The Base
Salary shall be paid in accordance with the Company's regularly established
payroll practice. Executive's Base Salary will be reviewed from time to time in
accordance with the established procedures of the Company for adjusting salaries
for similarly situated employees and may be adjusted in the sole discretion of
the Company; provided, however, that the Base Salary will be increased by no
less than ten percent (10%) on each yearly anniversary of the date of this
Agreement.
b. BENEFITS. Executive shall be eligible to participate in the benefits
made generally available by the Company to similarly-situated Executives, in
accordance with the benefit plans established by the Company, and as may be
amended from time to time in the Company's sole discretion.
c. BONUS PROGRAM. Executive shall be eligible to participate in the
Bonus Program made generally available to the Company's Executives ("BONUS
PROGRAM"), such participation to be in accordance with the terms of the Bonus
Program established by the Company, and as made by amended from time to time in
the Company's sole discretion.
d. EXPENSES. The Company shall reimburse Executive for reasonable
business expenses incurred in the performance of Executive's duties hereunder in
accordance with the Company's expense reimbursement guidelines.
3. AT-WILL EMPLOYMENT; TERMINATION BY COMPANY
The employment of Executive shall be "at-will" at all times from and
after the third anniversary of the date hereof. The Company may terminate
Executive's employment with the Company (i) "For Cause" (as defined below) at
any time or (ii) at any time after the third anniversary of the date hereof,
without any advance notice, for any reason or no reason at all, notwithstanding
anything to the contrary contained in or arising from any statements, policies
or practices of the Company relating to the employment, discipline or
termination of its employees. Upon and after any such termination, all
obligations of the Company under this Agreement shall cease.
4. OTHER TERMINATIONS BY COMPANY
a. TERMINATION FOR CAUSE. For purposes of this Agreement, "For Cause"
shall mean: (i) Executive commits a crime involving dishonesty, breach of trust,
or physical harm to any person; (ii) Executive willfully engages in conduct that
is in bad faith and materially injurious to the Company, including but not
limited to, misappropriation of trade secrets, fraud or embezzlement; (iii)
Executive willfully commits a material breach of this Agreement, which breach is
not cured within twenty days after written notice to Executive from the Company;
(iv) Executive willfully refuses to implement or follow a lawful policy or
directive of the Company, which breach is not cured within twenty days after
written notice to Executive from the Company; or (v) Executive engages in
misfeasance or malfeasance demonstrated by a pattern of failure to perform job
duties diligently and professionally after written notice thereof from the
Company. The Company may terminate Executive's employment For Cause at any time,
without any advance notice. The Company shall pay to Executive all compensation
to which Executive is entitled up through the date of termination, subject to
any other rights or remedies of The Company under law; and thereafter all
obligations of the Company under this Agreement shall cease.
2
b. BY DEATH. Executive's employment shall terminate automatically upon
Executive's death. The Company shall pay to Executive's beneficiaries or estate,
as appropriate, any compensation then due and owing. Thereafter all obligations
of the Company under this Agreement shall cease. Nothing in this Section shall
affect any entitlement of Executive's heirs or devisees to the benefits of any
life insurance plan or other applicable benefits.
c. BY DISABILITY. If Executive becomes eligible for the Company's long
term disability benefits or if, in the sole opinion of the Company, Executive is
unable to carry out the responsibilities and functions of the position held by
Executive by reason of any physical or mental impairment for more than ninety
consecutive days or more than one hundred and twenty days in any twelve-month
period, then, to the extent permitted by law, the Company may terminate
Executive's employment. The Company shall pay to Executive all compensation to
which Executive is entitled up through the date of termination, and thereafter
all obligations of the Company under this Agreement shall cease. Nothing in this
Section shall affect Executive's rights under any disability plan in which
Executive is a participant.
5. TERMINATION BY EXECUTIVE
a. AT-WILL TERMINATION BY EXECUTIVE. Executive may terminate employment
with the Company at any time for any reason or no reason at all, upon four
weeks' advance written notice. During such notice period Executive shall
continue to diligently perform all of Executive's duties hereunder. The Company
shall have the option, in its sole discretion, to make Executive's termination
effective at any time prior to the end of such notice period as long as the
Company pays Executive all compensation to which Executive is entitled up
through the last day of the four week notice period. Thereafter all obligations
of the Company shall cease.
6. TERMINATION OBLIGATIONS
a. RETURN OF PROPERTY. Executive agrees that all property (including
without limitation all equipment, tangible proprietary information, documents,
records, notes, contracts and computer-generated materials) furnished to or
created or prepared by Executive incident to Executive's employment belongs to
the Company and shall be promptly returned to the Company upon termination of
Executive's employment.
b. RESIGNATION AND COOPERATION. Upon termination of Executive's
employment, Executive shall be deemed to have resigned from all offices and
directorships then held with the Company. Following any termination of
employment, Executive shall cooperate with the Company in the winding up of
pending work on behalf of the Company and the orderly transfer of work to other
employees. Executive shall also cooperate with the Company in the defense of any
action brought by any third party against the Company that relates to
Executive's employment by the Company.
3
c. CONTINUING OBLIGATIONS. Executive understands and agrees that
Executive's obligations under Sections 6, 7, and 8 herein (including Exhibits A
and B) shall survive the termination of Executive's employment for any reason
and the termination of this Agreement.
7. INVENTIONS AND PROPRIETARY INFORMATION; PROHIBITION ON THIRD PARTY
INFORMATION
a. PROPRIETARY INFORMATION AGREEMENT. Executive agrees to sign and be
bound by the terms of the Proprietary Information and Inventions Agreement,
which is attached as Exhibit A ("PROPRIETARY INFORMATION AGREEMENT").
b. NON-SOLICITATION. Executive acknowledges that because of Executive's
position in the Company, Executive will have access to material intellectual
property and confidential information. During the term of Executive's employment
and for one year thereafter, in addition to Executive's other obligations
hereunder or under the Proprietary Information Agreement, Executive shall not,
for Executive or any third party, directly or indirectly (a) divert or attempt
to divert from the Company any business of any kind, including without
limitation the solicitation of or interference with any of its customers,
clients, members, business partners or suppliers, or (b) solicit or otherwise
induce any person employed by the Company to terminate his employment.
c. NON-DISCLOSURE OF THIRD PARTY INFORMATION. Executive represents and
warrants and covenants that Executive shall not disclose to the Company, or use,
or induce the Company to use, any proprietary information or trade secrets of
others at any time, including but not limited to any proprietary information or
trade secrets of any former employer, if any; and Executive acknowledges and
agrees that any violation of this provision shall be grounds for Executive's
immediate termination and could subject Executive to substantial civil
liabilities and criminal penalties. Executive further specifically and expressly
acknowledges that no officer or other employee or representative of the Company
has requested or instructed Executive to disclose or use any such third party
proprietary information or trade secrets.
8. ARBITRATION
Executive agrees to sign and be bound by the terms of the Arbitration Agreement,
which is attached as Exhibit B.
4
9. AMENDMENTS; WAIVERS; REMEDIES
This Agreement may not be amended or waived except by a writing signed by
Executive and by a duly authorized representative of the Company other than
Executive. Failure to exercise any right under this Agreement shall not
constitute a waiver of such right. Any waiver of any breach of this Agreement
shall not operate as a waiver of any subsequent breaches. All rights or remedies
specified for a party herein shall be cumulative and in addition to all other
rights and remedies of the party hereunder or under applicable law.
10. ASSIGNMENT; BINDING EFFECT
a. ASSIGNMENT. The performance of Executive is personal hereunder, and
Executive agrees that Executive shall have no right to assign and shall not
assign or purport to assign any rights or obligations under this Agreement. This
Agreement may be assigned or transferred by the Company; and nothing in this
Agreement shall prevent the consolidation, merger or sale of the Company or a
sale of any or all or substantially all of its assets.
b. BINDING EFFECT. Subject to the foregoing restriction on assignment
by Executive, this Agreement shall inure to the benefit of and be binding upon
each of the parties; the affiliates, officers, directors, agents, successors and
assigns of the Company; and the heirs, devisees, spouses, legal representatives
and successors of Executive.
11. NOTICES
All notices or other communications required or permitted hereunder shall be
made in writing and shall be deemed to have been duly given if delivered: (a) by
hand; (b) by a nationally recognized overnight courier service; or (c) by United
States first class registered or certified mail, return receipt requested, to
the principal address of the other party, as set forth below. The date of notice
shall be deemed to be the earlier of (i) actual receipt of notice by any
permitted means, or (ii) five business days following dispatch by overnight
delivery service or the United States Mail. Executive shall be obligated to
notify the Company in writing of any change in Executive's address. Notice of
change of address shall be effective only when done in accordance with this
paragraph.
5
Company's Notice Address:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Executive's Notice Address:
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
12. SEVERABILITY
If any provision of this Agreement shall be held by a court or arbitrator to be
invalid, unenforceable, or void, such provision shall be enforced to the fullest
extent permitted by law, and the remainder of this Agreement shall remain in
full force and effect. In the event that the time period or scope of any
provision is declared by a court or arbitrator of competent jurisdiction to
exceed the maximum time period or scope that such court or arbitrator deems
enforceable, then such court or arbitrator shall reduce the time period or scope
to the maximum time period or scope permitted by law.
13. TAXES
All amounts paid under this Agreement (including without limitation Base Salary
and Severance) shall be paid less all applicable state and federal tax
withholdings and any other withholdings required by any applicable jurisdiction.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware.
15. INTERPRETATION
This Agreement shall be construed as a whole, according to its fair meaning, and
not in favor of or against any party. Sections and section headings contained in
this Agreement are for reference purposes only, and shall not affect in any
manner the meaning or interpretation of this Agreement. Whenever the context
requires, references to the singular shall include the plural and the plural the
singular.
6
16. OBLIGATIONS SURVIVE TERMINATION OF EMPLOYMENT
Executive agrees that any and all of Executive's obligations under this
agreement, including but not limited to Exhibits A and B, shall survive the
termination of employment and the termination of this Agreement.
17. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement, but all of which together shall
constitute one and the same instrument.
18. AUTHORITY
Each party represents and warrants that such party has the right, power and
authority to enter into and execute this Agreement and to perform and discharge
all of the obligations hereunder; and that this Agreement constitutes the valid
and legally binding agreement and obligation of such party and is enforceable in
accordance with its terms.
19. ENTIRE AGREEMENT
This Agreement is intended to be the final, complete, and exclusive statement of
the terms of Executive's employment by the Company and may not be contradicted
by evidence of any prior or contemporaneous statements or agreements, except for
agreements specifically referenced herein (including the Proprietary Information
Agreement attached as Exhibit A and the Arbitration Agreement attached as
Exhibit B). To the extent that the practices, policies or procedures of the
Company, now or in the future, apply to Executive and are inconsistent with the
terms of this Agreement, the provisions of this Agreement shall control. Any
subsequent change in Executive's duties, position, or compensation will not
affect the validity or scope of this Agreement.
7
20. EXECUTIVE ACKNOWLEDGEMENT
EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT LEGAL
COUNSEL CONCERNING THIS AGREEMENT, THAT EXECUTIVE HAS READ AND UNDERSTANDS THIS
AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF ITS LEGAL EFFECT, AND THAT EXECUTIVE
HAS ENTERED INTO THIS AGREEMENT FREELY BASED ON EXECUTIVE'S OWN JUDGMENT AND NOT
ON ANY REPRESENTATIONS OR PROMISES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
CRDENTIA CORP.: EXECUTIVE:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
8
EXHIBIT A
---------
PROPRIETARY RIGHTS AND INFORMATION AGREEMENT
--------------------------------------------------------------------------------
In consideration of my employment by Crdentia Corp. (the "Company") and
the mutual covenants hereof, I and the Company hereby agree to the terms and
conditions set forth in this Proprietary Rights and Information Agreement (the
"Agreement").
RECITALS
WHEREAS, my responsibilities as an employee of the Company may include
creating, making, conceiving, inventing, discovering, developing, reducing to
practice or suggesting Technology (as defined below) that relates in any manner
to the actual or reasonably anticipated business, research, development or other
activities of the Company; and
WHEREAS, my compensation as an employee of the Company takes into
account, among other things, the value of such Technology and the potential
economic benefit that may be derived therefrom by the Company;
NOW THEREFORE, I and the Company hereby agree as follows:
1. PROPRIETARY INFORMATION
a. RESTRICTIONS ON PROPRIETARY INFORMATION. I agree that, during my
employment and, as long as such information and materials constitute Proprietary
Information (as defined below) thereafter, I will hold the Proprietary
Information of the Company and its affiliates in strict confidence and will
neither use the information for the benefit of myself or any third party nor
disclose it to any third party, except to the extent necessary to carry out my
responsibilities as an employee of the Company or as specifically authorized in
writing by a duly authorized officer of the Company other than me. "PROPRIETARY
INFORMATION" means any and all information and materials, in whatever form,
whether tangible or intangible, pertaining in any manner to the business of the
Company or its affiliates, consultants, customers, business associates or
members (including its and their officers, directors, agents and employees), or
any person or entity to which the Company owes a duty of confidentiality,
whether or not labeled or identified as proprietary or confidential, and
including any copies, portions, extracts and derivatives thereof, except to the
extent that I can prove that such information or materials (i) are or become
generally known to the public through lawful means and through no act or
omission of mine; (ii) were part of my general knowledge prior to my employment
by the Company; or (iii) are disclosed to me without restriction by a third
party who rightfully possesses the information and is under no duty of
confidentiality with respect thereto. "Proprietary Information" includes but is
not limited to any and all (a) Creations and other Technology (as defined below)
and related records; (b) financial information and other information about
costs, budgets, profits, margins markets, sales, pricing, payment terms,
discounts, rebates and other concessions or incentives, forecasts, customers,
subscribers, members, and bids; (c) strategies and other plans for business,
marketing, advertisement, future development and new products, services and
concepts; (d) employee and personnel information, including, without limitation,
files and information about employee compensation and benefits.
b. LOCATION AND REPRODUCTION. I agree to maintain at my work station
and/or any other place under my control only such Proprietary Information that,
and only as long as such Proprietary Information, is necessary to carry out my
responsibilities as an employee of the Company. I agree to return to the
appropriate person or location or otherwise properly dispose of Proprietary
Information once that necessity no longer exists. I also agree not to make
copies or otherwise reproduce Proprietary Information except to the extent
necessary to carry out my responsibilities as an employee of the Company.
c. PRIOR ACTIONS AND KNOWLEDGE. Except as disclosed on Schedule A to
this Agreement, I have no knowledge of the Company's business or Proprietary
Information, other than information I have learned from the Company in the
course of being hired and employed.
d. THIRD PARTY INFORMATION. I recognize that the Company has received
and will receive confidential or proprietary information and materials from
third parties. Such information and materials shall be deemed "Proprietary
Information" for all purposes of this Agreement and I will be subject to all
limitations on use and disclosure set forth in this Agreement with respect
thereto. In addition, I shall not use or disclose any such information and
materials in any manner inconsistent with any of Company's obligations towards
such third party.
2. CREATIONS
a. DEFINITIONS.
(1) "TECHNOLOGY" comprises all materials, information, ideas and
other subject matter, including, without limitation, works of authorship and
other creations; inventions, invention disclosures, discoveries, developments
and patent applications; know-how and trade secrets; plans, designs and
concepts; drawings, diagrams and schematics; writings, reports, notebooks, and
other information; specifications, formulas, structures and other technical or
engineering information; prototypes, systems, compositions, hardware, tools,
equipment, instruments and other devices, products and technology; processes,
methods, techniques, procedures and work in process; computer programs (in
source code, object code or any other format), applications, algorithms,
protocols, data and databases, programmable logic and documentation; and any
copies, extracts, portions, derivatives, improvements and enhancements thereof
and modifications thereto.
2
(2) "CREATIONS" means any and all Technology that (i) is created,
made, conceived, invented, discovered, developed, reduced to practice or
suggested by me, alone or together with others, at any time during my employment
by the Company or, whether during or within a reasonable time after my
employment with the Company, otherwise in connection with my activities as an
employee of, or based upon any Proprietary Information or Proprietary Rights of,
the Company, and (ii) relates in any manner to the actual or reasonably
anticipated business, research, development or other activities of the Company,
or were created, made, conceived, invented, discovered, developed, reduced to
practice or suggested using the Company's equipment, supplies, facilities, or
Proprietary Information. "Creations" shall not include (a) Technology expressly
set forth on Schedule A, and (b) other Technology to the extent that any
mandatory and non-waivable applicable law prohibits the assignment thereof as
set forth herein (such Technology described in the foregoing subclauses (a) and
(b) being the "EXCLUDED TECHNOLOGY"). I acknowledge that I have read and
understand the law(s) set forth in Appendix 1 hereto.
(3) "PROPRIETARY RIGHTS" means, throughout the world, any and all
(i) copyrights, moral rights and other personal author's rights (including,
without limitation any and all rights of paternity or attribution, integrity,
publication, withdrawal or retraction or rights to receive additional
remuneration) ("MORAL RIGHTS"), related rights (including without limitation so
called "neighboring rights" and "sui generis" rights), database rights and all
other rights associated with works of authorship (including computer programs),
creations or performances, whether published or unpublished, (ii) rights with
respect to trade secrets and know-how, (iii) patents and related rights,
inventor's certificates, design rights, industrial design rights, utility model
rights, (iv) trademark, service ▇▇▇▇ and trade dress rights and other rights
relating to source or indicia of origin, and (v) any and all other intellectual
property, industrial property, and other proprietary rights, together with (a)
all rights related to any of the foregoing, including, without limitation,
rights with respect to applications and filings for any of the foregoing, rights
with respect to registrations or renewals of any of the foregoing, and rights to
apply for, file, register, establish, maintain, extend or renew any of the
foregoing, (b) all benefits, privileges, causes of action and remedies relating
to any of the foregoing, whether before or hereafter accrued, including, without
limitation, the right to enforce and protect any of the foregoing, including to
bring legal actions against any party for all past, present and future
infringements, misappropriations or other violations of or relating to any of
the foregoing and to settle, and collect and retain the proceeds from, any such
actions, and (c) all rights to transfer and grant licenses and other rights with
respect to any and all of the foregoing in Company's sole discretion.
b. OWNERSHIP OF CREATIONS AND PROPRIETARY RIGHTS. I agree and
acknowledge that all right, title and interest with respect to all Creations and
any and all related Proprietary Rights (including all Rights to Use, as defined
below) shall solely vest in, inure to the sole benefit of, and be the sole
property of, the Company without any limitations. I agree and acknowledge that
all Creations shall be considered works made for hire and works produced in the
service of the Company within the scope of my employment.
c. ASSIGNMENT OF CREATIONS AND PROPRIETARY RIGHTS. If, notwithstanding
the foregoing, I retain any right, title or interest with respect to any
Creations or any related Proprietary Rights, I hereby assign, transfer and
convey, and agree to assign, transfer and convey, to the Company, without any
limitations or any additional remuneration, all such right, title and interest.
3
The rights assigned, transferred and conveyed hereunder shall include, without
limitation, (i) all rights to publish, copy, reproduce, adapt, modify,
translate, prepare derivatives based upon, distribute, rent, lease, lend,
transmit, broadcast, publicly perform, publicly display, otherwise communicate
or make available to the public, record, store on any medium, make, sell, offer
to sell, import, practice any method in connection with and otherwise use or
exploit for any purpose, throughout the world, by any and all means and in any
form or medium whatsoever, the Creations and any other Technology that is the
subject of, embodies or uses, or is made using, any Proprietary Rights relating
to the Creations, and (ii) all rights to transfer and grant licenses and other
rights with respect to any and all of the foregoing rights, and to authorize any
third party to exercise any of the foregoing rights, in the Company's sole
discretion (all such rights described in subclauses (i) and (ii) above being
"Rights to Use").
d. LICENSE OF RIGHTS. If, notwithstanding the foregoing, I retain any
right, title or interest with respect to any Creations or any related
Proprietary Rights, I hereby grant, and agree to grant, to the Company, without
any limitations or any additional remuneration, the worldwide, exclusive,
perpetual, irrevocable, transferable, freely sublicenseable, right and license
under all my right, title and interest with respect to such Creations, any other
Technology that is the subject of, embodies or uses, or is made using, any
Proprietary Rights relating to such Creations, and any and all related
Proprietary Rights, including all Rights to Use.
e. MORAL RIGHTS. If, notwithstanding the foregoing, I retain any Moral
Rights with respect to any Creations or any other Technology that is the subject
of, embodies or uses, or is made using, any Proprietary Rights relating to the
Creations, I hereby waive all such Moral Rights. I acknowledge that the
Creations and the related Proprietary Rights may have substantial economic
value, that any and all proceeds resulting from use and exploitation thereof
shall solely belong to the Company, and that the salary and other compensation I
receive from the Company for my employment with the Company includes fair and
adequate consideration for all assignments, licenses and waivers hereunder. To
the extent, if any, that any Moral Rights are not waivable under applicable law,
I hereby promise and covenant not to institute, support, maintain or permit any
action or proceeding on the basis of, or otherwise assert any Moral Rights with
respect to, any Creations or any other Technology that is the subject of,
embodies or uses, or is made using, any Proprietary Rights relating to the
Creations, or any Moral Rights relating thereto in any forum. I hereby authorize
the Company to publish the Creations and any other Technology that is the
subject of, embodies or uses, or is made using, any Proprietary Rights relating
to the Creations, in the Company's sole discretion with or without attributing
any of the foregoing to me or identifying me in connection therewith and
regardless of the effect on such Creations and such other Technology or my
relationship thereto.
f. EXCLUDED TECHNOLOGY. I hereby grant and agree to grant to the
Company a first right to negotiate a license with respect to all Excluded
Technology and all related Proprietary Rights and to negotiate in good faith
such a license if the Company so requests within ninety (90) days after my
disclosure of such Excluded Technology or related Proprietary Rights.
4
g. COOPERATION. At the Company's request and expense, I will, during
the term of my employment and thereafter, cooperate with and assist the Company,
and perform such further acts and execute, acknowledge and deliver to the
Company such further documents, as the Company may deem necessary or advisable
in order to obtain, establish, perfect, maintain, evidence, enforce or otherwise
protect any of the rights, title and interests assigned, transferred, conveyed,
or licensed (or intended to be assigned, transferred, conveyed, or licensed) to
the Company under this Agreement, or otherwise carry out the intent and
accomplish the purposes of this Agreement. Such cooperation and assistance shall
include, without limitation, any execution of an assignment, transfer,
conveyance, license or waiver of, or any covenant not to institute, support,
maintain or permit any action or assert any, rights, and cooperation and
assistance in any proceedings before any government authorities or other legal
proceedings, including being named a party for purposes thereof. Without
limiting the generality of the foregoing, to the extent permitted by applicable
law, I hereby appoint the Company as my attorney-in-fact (which appointment is
coupled with an interest), with full power of substitution and delegation, with
the right (but not the obligation) to perform any such acts and to execute,
acknowledge and deliver any such documents on my behalf, provided that the
Company shall not exercise such right unless I fail to perform such act or
execute, acknowledge or deliver such document within five (5) business days
after the Company's written request therefor. In addition, I agree to maintain
adequate and current written records regarding all Creations, and the creation,
making, conception, invention, discovery, development, reduction to practice or
suggestion thereof. Such records shall be the sole property of the Company and
hereby assign, and agree to assign, all my right, title and interest, if any,
with respect to such records to the Company.
h. DISCLOSURE. I agree to maintain current and accurate written records
with respect to all Creations and to disclose to the Company, promptly after the
earliest of their creation, making, conception, invention, discovery,
development, reduction to practice or suggestion, all Creations and pertinent
records. I will further promptly notify the Company, in confidence, of any and
all Technology created, made, conceived, invented, discovered, developed,
reduced to practice or suggested by me (i) that I believe to be Excluded
Technology, and/or (ii) during the one-year period following termination of my
employment, so as to enable the Company to determine whether such Technology is
a Creation subject to this Agreement.
i. POST TERMINATION PERIOD. I agree that any Technology created,
conceived, invented, discovered, developed, reduced to practice or suggested by
me (alone or together with others) within one (1) year after my termination of
employment with the Company shall be deemed a Creation based upon any
Proprietary Information or Proprietary Rights of the Company. I can rebut the
above presumption if I prove that such Technology is not based upon any
Proprietary Information or Proprietary Rights of the Company.
5
3. FORMER OR CONFLICTING AGREEMENTS; NO USE OF THIRD PARTY TECHNOLOGY
a. FORMER AGREEMENTS. I represent and warrant that my performance of
the terms of this Agreement will not breach any agreement to keep in confidence
proprietary information acquired by me prior to my employment by the Company. I
have listed in Schedule A all other agreements concerning proprietary
information, proprietary rights, inventions or other creations to which I am a
party and (i) attached copies of any such agreements in my possession, or (ii),
to the extent that I am bound by legal obligations prohibiting the disclosure of
copies of such agreements to the Company, summarized the relevant terms thereof.
To the best of my knowledge, there is no other contract between me and any other
person or entity that is in conflict with this Agreement or concerns proprietary
information, proprietary rights, inventions or other creations.
b. PROHIBITION ON USE OF THIRD PARTY INFORMATION. I represent and
warrant and covenant that I will not disclose to the Company, or use in
connection with my activities as an employee of the Company, or induce the
Company to use, any proprietary or confidential information or trade secrets, or
any other Technology that is the subject of Proprietary Rights, of myself or any
third party at any time, including but not limited to any proprietary or
confidential information or trade secrets or such Technology of any former
employer, if any. I acknowledge and agree that any violation of this provision
may be grounds for my termination and could subject me to substantial civil
liabilities and criminal penalties. I further specifically and expressly
acknowledge that no officer or other employee or representative of the Company
has requested or instructed me to disclose or use any such third party
proprietary or confidential information or trade secrets. Without limiting the
generality of the foregoing, in the event that I disclose or use in connection
with my activities as an employee of the Company, or induce the Company to use,
any proprietary or confidential information or trade secrets, or any other
Technology that is the subject of Proprietary Rights, with respect to which I
have any right, title or interest, I hereby grant, and agree to grant, to the
Company, without any limitations or any additional remuneration, the worldwide,
non-exclusive, perpetual, irrevocable, transferable, freely sublicenseable,
right and license under all such right, title and interest with respect thereto,
including all Rights to Use.
4. TERMINATION
a. RETURN OF THE COMPANY'S PROPERTY. I agree to promptly return to the
Company upon termination of my employment all Proprietary Information and all
personal property furnished to or prepared by me in the course of or incident to
my employment. Following my termination, I will not retain any written or other
tangible material containing any Proprietary Information or other information
pertaining to any Creations.
b. TERMINATION CERTIFICATE. In the event of the termination of my
employment, I agree, if requested by the Company, to sign and deliver the
Termination Certificate attached as Schedule B.
c. SUBSEQUENT EMPLOYERS. I agree that after the termination of my
employment with the Company, I will not enter into any agreement that would
cause me to violate any of my obligations under this Agreement and will inform
any subsequent employers of my obligations under this Agreement.
6
d. SURVIVAL. The terms and conditions of this Agreement and my
obligations hereunder shall survive any termination of my employment with the
company and any expiration or termination of any employment or other agreement
between the Company and me, and such terms and conditions shall remain in full
force and effect as set forth herein.
5. NO IMPLIED EMPLOYMENT RIGHTS
I recognize that nothing in this Agreement shall be construed to imply
that my employment is guaranteed for any period of time. Unless stated in a
written agreement signed by a duly authorized officer of the Company, my
employment is for an indefinite duration and at-will, and either the Company or
I can terminate our employment relationship at any time, without notice (except
where required in my employment agreement with the Company) and for any reason
or no reason, with or without cause.
6. REMEDIES
I recognize that nothing in this Agreement is intended to limit any
remedy of the Company under any law concerning trade secrets or other
Proprietary Rights. I recognize that my violation of this Agreement could cause
the Company irreparable harm and acknowledge that the Company may have the right
to apply to any court of competent jurisdiction for an order restraining any
breach or threatened breach of this Agreement.
7. ASSIGNMENT
I acknowledge and agree that my obligations hereunder are personal, and
that I shall have no right to assign, transfer or delegate and shall not assign,
transfer or delegate or purport to assign, transfer or delegate this Agreement
or any of my rights or obligations hereunder. This Agreement and any rights and
obligations of the Company hereunder may be freely assigned, transferred or
delegated by the Company. Any assignment, transfer or delegation in violation of
this Article 7. shall be null and void. Subject to the foregoing restrictions on
assignments, transfers and delegations, this Agreement shall inure to the
benefit of the Company and its affiliates, officers, directors, agents,
successors and assigns; and shall be binding on me and my heirs, devisees,
spouses, agents, legal representatives and successors.
8. GOVERNING LAW
This Agreement is to be governed by and construed in accordance with
the internal laws of the State of Texas without giving effect to any choice of
law rule that would cause the application of the laws of any jurisdiction other
than the internal laws of the State of Texas to the rights and obligations of
the parties hereunder, and, to the extent federal law is applicable, the laws of
the United States of America without giving effect to any choice of law rule
that would cause the application of the laws of any other country.
7
9. SEVERABILITY
If any provision of this Agreement, or the application thereof to any
person, place or circumstance, shall be held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, such provision
shall be enforced to the maximum extent possible so as to effect the intent of
the parties, or, if incapable of such enforcement, shall be deemed to be deleted
from this Agreement, and the remainder of this Agreement and such provisions as
applied to other persons, places and circumstances shall remain in full force
and effect.
10. AMENDMENT; WAIVERS
This Agreement may not be amended or waived except by a writing signed
by me and by a duly authorized representative of the Company other than me.
Failure to exercise any right under this Agreement shall not constitute a waiver
of such right. Any waiver of any breach of this Agreement shall not operate as a
waiver of any subsequent breaches. All rights or remedies specified for a party
herein shall be cumulative and in addition to all other rights and remedies of
the party hereunder or under applicable law.
11. INTERPRETATION AND LANGUAGE
This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. Sections and section headings
contained in this Agreement are for reference purposes only, and shall not
affect in any manner the meaning of interpretation of this Agreement. Whenever
the context requires, references to the singular shall include the plural and
the plural the singular and any gender shall include any other gender. This
Agreement is in the English language only, which language shall be controlling
in all respects, and all versions hereof in any other language shall be for
accommodation only and shall not be binding upon the parties. I acknowledge that
I understand all the terms and conditions of this Agreement.
12. ENTIRE AGREEMENT
This Agreement, including all exhibits hereto, constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and supersedes all prior and contemporaneous correspondence,
negotiations, agreements and understandings among the parties, both oral and
written, regarding such subject matter. I acknowledge that the Company has not
made, and that I have not relied on, any representations or warranties
concerning the subject matter of this Agreement other than those expressly set
forth herein, if any.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
8
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY NOTED ON SCHEDULE A TO THIS AGREEMENT (1) ANY PROPRIETARY INFORMATION
AND TECHNOLOGY, AND (2) ANY PROPRIETARY RIGHTS AND ANY RELATED RIGHTS THAT I
DESIRE TO EXCLUDE FROM THIS AGREEMENT.
EMPLOYEE CRDENTIA CORP.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
Date: August 31, 2004 Date: August 31, 2004
9
APPENDIX 1
I acknowledge and understand that nothing in this Agreement shall be
construed to assign or offer to assign any of my rights in any invention which
qualifies fully under the following provisions:
Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either: (1) relate at the time of conception or reduction to
practice of the invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or (2) result from any work
performed by the employee for the employer.
I further acknowledge and understand that the foregoing exclusion shall
not apply to the extent that full title to certain patents and inventions is
required to be in the United States, as required by contracts between the
employer and the United States or any of its agencies.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name of Employee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Signature
10
SCHEDULE A
EMPLOYEE'S DISCLOSURE
1. PROPRIETARY INFORMATION. Except as set forth below, I
acknowledge that at this time I know nothing about the business or Proprietary
Information of the Company, other than information I have learned from the
Company in the course of being hired:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
2. PREVIOUSLY CREATED TECHNOLOGY. Except as set forth below, there
are no (i) materials, information, ideas and other subject matter, including,
without limitation, works of authorship and other creations; inventions,
invention disclosures, discoveries, developments and patent applications;
know-how and trade secrets; plans, designs and concepts; drawings, diagrams and
schematics; writings, reports, notebooks, and other information; specifications,
formulas, structures and other technical or engineering information; prototypes,
systems, compositions, hardware, tools, equipment, instruments and other
devices, products and technology; processes, methods, techniques, procedures and
work in process; computer programs (in source code, object code or any other
format), applications, algorithms, protocols, data and databases, programmable
logic and documentation; and any copies, extracts, portions, derivatives,
improvements and enhancements thereof and modifications thereto, created, made,
conceived, invented, discovered, developed, reduced to practice or suggested by
me, alone or together with others; and (ii) copyrights, moral rights and other
personal author's rights (including, without limitation any and all rights of
paternity or attribution, integrity, publication, withdrawal or retraction or
rights to receive additional remuneration), related rights (including without
limitation so called "neighboring rights" and "sui generis" rights), database
rights and all other rights associated with works of authorship (including
computer programs), creations or performances, whether published or unpublished;
rights with respect to trade secrets and know-how; patents and related rights,
inventor's certificates, design rights, industrial design rights, utility model
rights; trademark, service ▇▇▇▇ and trade dress rights and other rights relating
to source or indicia of origin; and any and all other intellectual property,
industrial property, and other proprietary rights; that I wish to exclude from
the operation of this Agreement:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
11
3. PRIOR AGREEMENTS. Except as set forth below, I am aware of no
prior agreements between me and any other person or entity concerning
proprietary information, technology or proprietary rights (of the nature
described in Section 2 above) (attach copies, or summary of terms, of all
agreements in your possession):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Date: August 31, 2004
▇▇▇▇▇▇▇ ▇. Crockcer
-----------------------------------
Employee Name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Employee Signature
12
SCHEDULE B
TERMINATION CERTIFICATE CONCERNING
COMPANY PROPRIETARY INFORMATION
-------------------------------
This is to certify that I have returned all property of Crdentia Corp.,
(the "Company"), including, without limitation, all materials, information,
ideas and other subject matter, including, without limitation, works of
authorship and other creations; inventions, invention disclosures, discoveries,
developments and patent applications; know-how and trade secrets; plans, designs
and concepts; drawings, diagrams and schematics; writings, reports, notebooks,
and other information; specifications, formulas, structures and other technical
or engineering information; prototypes, systems, compositions, hardware, tools,
equipment, instruments and other devices, products and technology; processes,
methods, techniques, procedures and work in process; computer programs (in
source code, object code or any other format), applications, algorithms,
protocols, data and databases, programmable logic and documentation; and any
copies, extracts, portions, derivatives, improvements and enhancements thereof
and modifications thereto, and any other Proprietary Information, furnished to
or created, made, conceived, invented, discovered, developed, reduced to
practice or suggested by me, alone or together with others in the course of or
incident to my employment with the Company, and that I did not make or
distribute any copies of the foregoing.
I further certify that I have reviewed the Company's Proprietary
Information and Rights Agreement ("Agreement") signed by me and that I have
complied with and will continue to comply with each and all of its terms and
conditions, including without limitation: (i) materials, information, ideas and
other subject matter, including, without limitation, works of authorship and
other creations; inventions, invention disclosures, discoveries, developments
and patent applications; know-how and trade secrets; plans, designs and
concepts; drawings, diagrams and schematics; writings, reports, notebooks, and
other information; specifications, formulas, structures and other technical or
engineering information; prototypes, systems, compositions, hardware, tools,
equipment, instruments and other devices, products and technology; processes,
methods, techniques, procedures and work in process; computer programs (in
source code, object code or any other format), applications, algorithms,
protocols, data and databases, programmable logic and documentation; and any
copies, extracts, portions, derivatives, improvements and enhancements thereof
and modifications thereto, created, made, conceived, invented, discovered,
developed, reduced to practice or suggested by me, alone or together with
others, created, made, conceived, invented, discovered, developed, reduced to
practice or suggested by me, alone or together with others, and covered by the
Agreement and (ii) the restrictions on use and disclosure of all Proprietary
Information (as defined in the Agreement) of the Company. This certificate in no
manner limits my responsibilities or the Company's rights under the Agreement.
On termination of my employment with the Company, I will be employed by
_____________________ [Name of New Employer] [in the ______________ division]
and I will be working in connection with the following projects:
13
[generally describe the projects]
Date:
-----------------------------------
Employee Name
-----------------------------------
Employee Signature
14
EXHIBIT B
---------
ARBITRATION AGREEMENT
--------------------------------------------------------------------------------
The Company and Employee hereby agree that, to the fullest extent permitted by
law, any and all claims or controversies between them (or between Employee and
any present or former officer, director, agent, or employee of the Company or
any parent, subsidiary, or other entity affiliated with the Company) relating in
any manner to the employment or the termination of employment of Employee shall
be resolved by final and binding arbitration. Except as specifically provided
herein, any arbitration proceeding shall be conducted in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association ("the AAA Rules").
Claims subject to arbitration shall include, without limitation: contract
claims, tort claims, claims relating to compensation and stock options, as well
as claims based on any federal, state, or local law, statute, or regulation,
including but not limited to any claims arising under Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act and the Americans
with Disabilities Act. However, claims for unemployment benefits, workers'
compensation claims, and claims under the National Labor Relations Act shall not
be subject to arbitration.
A neutral and impartial arbitrator shall be chosen by mutual agreement of the
parties; however, if the parties are unable to agree upon an arbitrator within a
reasonable period of time, then a neutral and impartial arbitrator shall be
appointed in accordance with the arbitrator nomination and selection procedure
set forth in the AAA Rules. The arbitrator shall prepare a written decision
containing the essential findings and conclusions on which the award is based so
as to ensure meaningful judicial review of the decision. The arbitrator shall
apply the same substantive law, with the same statutes of limitations and same
remedies, that would apply if the claims were brought in a court of law.
Either the Company or Employee may bring an action in court to compel
arbitration under this Agreement and to enforce an arbitration award. Otherwise,
neither party shall initiate or prosecute any lawsuit of claim in any way
related to any arbitrable claim, including without limitation any claim as to
the making, existence, validity, or enforceability of the agreement to
arbitrate. Nothing in this Agreement, however, precludes a party from filing an
administrative charge before an agency that has jurisdiction over an arbitrable
claim.
All arbitration hearings under this Agreement shall be conducted in Dallas,
Texas, unless otherwise agreed by the parties. The arbitration provisions of
this Arbitration Agreement shall be governed by the Federal Arbitration Act. In
all other respects, this Arbitration Agreement shall be construed in accordance
with the laws of the State of Delaware, without reference to conflicts of law
principles.
Each party shall pay its own costs and attorney's fees, unless a party prevails
on a statutory claim, and the statute provides that the prevailing party is
entitled to payment of its attorneys' fees. In that case, the arbitrator may
award reasonable attorneys' fees and costs to the prevailing party as provided
by law.
This Agreement does not alter Employee's employment status set forth in that
certain Executive Employment Agreement dated August 31, 2004 between Company and
Employee.
If any provision of this Agreement shall be held by a court or the arbitrator to
be invalid, unenforceable, or void, such provision shall be enforced to the
fullest extent permitted by law, and the remainder of this Agreement shall
remain in full force and effect. The parties' obligations under this Agreement
shall survive the termination of Employee's employment with the Company and the
expiration of this Agreement.
The Company and Employee understand and agree that this Arbitration Agreement
contains a full and complete statement of any agreements and understandings
regarding resolution of disputes between the parties, and the parties agree that
this Arbitration Agreement supersedes all previous agreements, whether written
or oral, express or implied, relating to the subjects covered in this agreement.
The parties also agree that the terms of this Arbitration Agreement cannot be
revoked or modified except in a written document signed by both Employee and an
officer of the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
THE PARTIES ALSO UNDERSTAND AND AGREE THAT THIS AGREEMENT CONSTITUTES A WAIVER
OF THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIMS OR CONTROVERSIES COVERED BY THIS
AGREEMENT. THE PARTIES AGREE THAT NONE OF THOSE CLAIMS OR CONTROVERSIES SHALL BE
RESOLVED BY A JURY TRIAL.
THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY TO
DISCUSS THIS AGREEMENT WITH THEIR LEGAL COUNSEL AND HAVE AVAILED THEMSELVES OF
THAT OPPORTUNITY TO THE EXTENT THEY WISH TO DO SO.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Date: August 31, 2004
--------------------------------------------------------
Signed: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------------
Employee
Crdentia Corp., a Delaware corporation
Date: August 31, 2004
--------------------------------------------------------
Signed: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------------
Company
3