CRDENTIA CORP.
EXECUTIVE EMPLOYMENT AGREEMENT
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This Executive Employment Agreement (the "Agreement"), dated May 31, 2005
(the "Effective Date"), is between Crdentia Corp., a Delaware corporation (the
"Company") and James J. TerBeest ("Executive").
1. POSITION AND RESPONSIBILITIES
a. Position. Executive is employed by the Company to render services to
the Company in the position of Chief Financial Officer. 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. To the extent not inconsistent
with the express terms of this Agreement, Executive shall abide by the rules,
regulations, and practices for the Company's senior management 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 interferes 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.
d. Relocation. In furtherance of the employment relationship contemplated
by this Agreement, Executive agrees to, on or before October 31, 2005, relocate
his principal residence to Dallas, Texas.
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
Seventy Five Thousand Dollars ($175,000) 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 Company may not reduce Executive's Base
Salary unless the base salaries of all executive employees holding the position
of vice president or above are reduced by the same percentage as Executive's
Base Salary.
b. Restricted Stock. In consideration of the services to be rendered
hereunder, upon the requisite approval of the Company's board of directors,
Executive shall be granted 500,000 shares of the Company's common stock. Such
grant shall be evidenced by, and subject to the terms and conditions set forth
in, the form of Notice of Restricted Stock Bonus Award and Restricted Stock
Bonus Award Agreement which is attached hereto as Exhibit A (the "Restricted
Stock Agreement").
c. Benefits. Executive shall be eligible to participate in the healthcare
benefits made generally available by the Company to similarly-situated
executives, in accordance with the benefit policies and plans established by the
Company, and as may be amended from time to time in the Company's sole
discretion.
d. 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 at a level consistent with similarly-situated
executives and in accordance with the terms of the Bonus Program established by
the Company, and as may be amended from time to time in the Company's sole
discretion.
e. 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
a. At-Will Termination by Company. The employment of Executive shall be
"at-will" at all times. The Company may terminate Executive's employment with
the Company at any time, 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 such termination by
the Company, all obligations of the Company under this Agreement shall cease,
unless Executive's employment is terminated without Cause, in which case the
Company shall provide Executive with the severance benefits described in Section
3(b) below.
b. Severance. Except in situations where the employment of Executive is
terminated For Cause or By Disability (as defined in Section 4 below), in the
event that the Company terminates the employment of Executive at any time, or
upon Executive's death, Executive will be eligible to receive an amount, payable
in a lump sum, equal to (i) six (6) months of the Base Salary of the Executive
plus (ii) one (1) month of the Base Salary of the Executive for each month of
employment beginning on January 1, 2005 in excess of six (6) months but not to
exceed twelve (12) months. For purposes of such calculation, "Base Salary" shall
refer to the greater of (i) $175,000 per year or (ii) Executive's then current
base salary on the termination date (plus the amount of any cash bonus received
by Executive for the prior year, if any). Executive's eligibility for severance
is conditioned on Executive having first signed a release agreement in the form
attached as Exhibit B. Executive shall not be entitled to any severance payments
if Executive's employment is terminated For Cause, By Death or By Disability (as
defined in Section 4 below) or if Executive's employment is terminated by
Executive without Good Reason (in accordance with Section 5 below).
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4. OTHER TERMINATIONS BY COMPANY
a. Termination for Cause. For purposes of this Agreement, "For Cause"
shall mean: (i) Executive is indicted for or charged with a crime involving
dishonesty, breach of trust, or physical harm to any person (provided, however,
that the foregoing shall not include any misdemeanor resulting from harm caused
by Executive to another person through the operation of a motor vehicle); (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 commits a material breach
of this Agreement, which breach (if curable) is not cured within thirty 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 that
is consistent with the terms of this Agreement, which breach is not cured within
sixty (60) days after written notice to Executive from the Company; (v)
Executive engages in misfeasance or malfeasance demonstrated by a pattern of
failure to perform job duties diligently and professionally, which failure (if
curable) is not cured within sixty (60) days after written notice to Executive
from the Company; or (vi) Executive fails to relocate his principal residence as
contemplated by Section 1(d) of this Agreement. Except for the notices required
above, 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.
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 a qualified medical
doctor in Executive's municipality of residence selected by the Company but
otherwise not affiliated with the Company or its senior management, 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
(90) consecutive days or more than one hundred and twenty (120) 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 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 ninety
(90) days' 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 ninety (90) day notice period. Thereafter all
obligations of the Company shall cease.
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b. Termination for Good Reason. Executive's termination shall be for "Good
Reason" if Executive provides written notice to the Company of the Good Reason
within thirty (30) days of the event constituting Good Reason and provides the
Company with a period of thirty (30) days to cure the event constituting Good
Reason and the Company fails to cure the Good Reason within that period. For
purposes of this Agreement, "Good Reason" shall mean any of the following
events, if such event is effected by the Company without the consent of
Executive: (i) a change in Executive's position with the Company which
materially reduces Executive's level of responsibility; (ii) a reduction in
Executive's Base Salary, except for reductions in accordance with Section 2(a)
hereof; (iii) a relocation of Executive's principal place of employment by more
than fifty (50) miles (excluding Executive's relocation contemplated by Section
1(d) of this Agreement); or (iv) a material breach of this Agreement by the
Company. In such event Executive may terminate his employment for Good Reason,
in which case Executive will be eligible to receive an amount, payable in the
form of a lump sum, equal to (i) six (6) months of the Base Salary of the
Executive plus (ii) one (1) month of the then-current Base Salary of the
Executive for each month of employment beginning on January 1, 2005 in excess of
six (6) months but not to exceed twelve (12) months. For purposes of such
calculation, "Base Salary" shall refer to the greater of (i) $175,000 per year
or (ii) Executive's Base Salary on the termination date (plus the amount of any
cash bonus received by Executive for the prior year, if any). Executive's
eligibility for severance is conditioned on Executive having first signed a
release agreement in the form attached as Exhibit B. Thereafter all obligations
of the Company or its successor under this Agreement 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, subject to Executive's receiving reasonable and customary
compensation, 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, at the Company's
expense, in the defense of any action brought by any third party against the
Company that relates to Executive's employment by the Company.
c. Continuing Obligations. Executive understands and agrees that
Executive's obligations under Sections 6, 7, and 8 herein (including Exhibits C
and D) shall survive the termination of Executive's employment for any reason
and the termination of this Agreement.
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7. INVENTIONS AND PROPRIETARY INFORMATION; NON COMPETITION; 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 C ("Proprietary Information Agreement").
b. Non-Competition. As an inducement for the Company's entering into this
Agreement and in consideration of the Company's agreement to furnish Executive
with certain confidential and proprietary information regarding the Company
pursuant to Exhibit C, Executive covenants that commencing on the date hereof
(the "Effective Date") and for a period ending eighteen (18) months following
the termination of Executive's employment with the Company (the "Term"),
Executive shall not, directly or indirectly, manage, engage in, operate or
conduct, prepare to or plan to conduct or assist any person or entity to conduct
any business, or have any controlling interest in any business, person, firm,
corporation or other entity (as a principal, owner, agent, employee,
shareholder, officer, director, joint venturer, partner, member, security
holder, creditor, consultant or in any other capacity) whose revenue is
generated principally from a business which is competitive with the Business
anywhere in the United States (the "Territory"). As used herein, the term
"Business" shall refer to the business of the company and its subsidiaries of
operating a temporary nurse staffing company, including, without limitation, the
provision of travel and per diem temporary nurse staffing services. The
covenants set forth in this Section 7(b) shall be construed as a series of
separate covenants covering their subject matter in each of the separate states
within the Territory, and except for geographic coverage, each such separate
covenant shall be deemed identical in terms to the covenant set forth above in
this Section 7(b). To the extent that any such covenant shall be judicially
unenforceable in any one or more states in the United States, such covenant
shall not be affected with respect to each of such other states in the
Territory. Each covenant with respect to such state in the Territory shall be
construed as severable and independent.
c. Non-Solicitation; Non-Disparagement. 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 (as
previously defined), 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 or its subsidiaries 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 engaged by the Company or any of its subsidiaries (as an
agent, employee, consultant, or in any other capacity) to terminate his or her
employment, consultancy or other relationship with the Company or its
subsidiaries. In addition, Executive will not disparage the Company or any of
its stockholders, directors, employees or agents (collectively the "Company
Representatives"), and neither the Company nor the Company Representatives will
disparage Executive.
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d. 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.
e. Reasonableness of Restrictions. EXECUTIVE HAS CAREFULLY READ AND
CONSIDERED THE PROVISIONS OF SECTION 7 HEREOF AND, HAVING DONE SO, HEREBY AGREES
THAT THE RESTRICTIONS SET FORTH IN SUCH SECTIONS ARE FAIR AND REASONABLE AND ARE
REASONABLY REQUIRED FOR THE PROTECTION OF THE INTERESTS OF THE COMPANY AND ITS
ASSETS AND PROPERTIES, INCLUDING, WITHOUT LIMITATION, THE BUSINESS. IF ANY
COVENANT IN SECTION 7 IS HELD TO BE UNREASONABLE, ARBITRARY, OR AGAINST PUBLIC
POLICY, SUCH COVENANT WILL BE CONSIDERED TO BE DIVISIBLE WITH RESPECT TO SCOPE,
TIME, AND GEOGRAPHIC AREA, AND SUCH LESSER SCOPE, TIME, OR GEOGRAPHIC AREA, OR
ALL OF THEM, AS A COURT OF COMPETENT JURISDICTION MAY DETERMINE TO BE
REASONABLE, NOT ARBITRARY, AND NOT AGAINST PUBLIC POLICY, WILL BE EFFECTIVE,
BINDING AND ENFORCEABLE AGAINST THE EXECUTIVE.
8. ARBITRATION
Executive agrees to sign and be bound by the terms of the Arbitration
Agreement, which is attached as Exhibit D.
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.
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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 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.
Company's Notice Address:
14111 Dallas Parkway, Suite 600
Dallas, Texas 75240
Attention: Chief Executive Officer
Executive's Notice Address:
c/o Crdentia Corp
14114 Dallas Parkway, Suite 600
Dallas, Texas 75240
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 payable to Executive under this Agreement (including, without
limitation, Executive's Base Salary and any bonuses and severance pay) shall be
paid less all applicable state and federal tax withholdings and any other
withholdings required by any applicable jurisdiction.
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14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas.
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.
16. 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.
17. 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.
18. 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
Restricted Stock Agreement attached as Exhibit A, the Proprietary Information
Agreement attached as Exhibit C and the Arbitration Agreement attached as
Exhibit D). 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.
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19. INJUNCTIVE RELIEF AND TERMINATION.
a. General. Executive acknowledges and agrees that (i) the covenants and
restrictions contained in Section 7 of this Agreement are necessary, fundamental
and required for the protection of the Business, (ii) such covenants relate to
matters which are of a special, unique and extraordinary character that gives
each of such covenants a special, unique and extraordinary value; and (iii) the
Company will suffer irreparable harm in the event that Executive breaches any of
his obligations under Section 7 hereof, and that monetary damages shall be
inadequate to compensate the Company for any such breach. Executive agrees that
in the event of any breach or threatened breach by Executive of any of the
provisions of Section 7 hereof, the Company shall be entitled to a temporary
restraining order, preliminary injunction and/or permanent injunction in order
to prevent or restrain any such breach or threatened breach by Executive, or by
any or all of Executive's agents, representatives or other persons directly or
indirectly acting for, on behalf of or with Executive, and the Company will not
be obligated to post bond or other security in seeking such relief.
b. No Limitation of Remedies. Notwithstanding the provisions set forth in
Section 19(a) above, or any other provision contained in this Agreement, the
parties hereby agree that no remedy conferred by any of the specific provisions
of this Agreement, including, without limitation, this Section 19, is intended
to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
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CRDENTIA CORP.: EXECUTIVE:
By: /s/ James D. Durham By: /s/ James J. TerBeest
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Name: James D. Durham James J. TerBeest
Title: Chief Executive Officer
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EXHIBIT A
Restricted Stock Agreement
EXHIBIT B
FORM OF GENERAL RELEASE OF CLAIMS
This General Release of Claims (hereinafter "Release") is entered into
this 31st day of May, 2005, by and between James J. TerBeest (hereinafter
"Releasor") and Crdentia Corp. (hereinafter "Releasee").
RECITALS
A. On May 31, 2005, Releasor became employed by Releasee according to the
terms and conditions of an employment agreement ("Employment Agreement").
B. On or about __________, _________, Releasee terminated the employment
of Releasor without "Cause" as that term is defined in the Employment Agreement.
C. According to the terms and conditions of the Employment Agreement,
Releasor is entitled to certain severance payments so long as Releasor executes
this General Release of any and all claims. By execution hereof, Releasor
understands and agrees that this Release is a compromise of doubtful and
disputed claims, if any, which remain untested; that there has not been a trial
or adjudication of any issue of law or fact herein; that the terms and
conditions of this Release are in no way to be construed as an admission of
liability on the part of Releasee and that Releasee denies liability and intends
merely to avoid litigation with this Release.
AGREEMENT
NOW THEREFORE FOR MUTUAL CONSIDERATION, the receipt and sufficiency of which the
parties hereto acknowledge, the parties agree as follows:
1. Except for claims arising under any Stock Option Agreements between
Releasor and Releasee ("Stock Option Agreements"), Releasor does hereby
unconditionally, irrevocably and absolutely release and discharge Releasee, and
its affiliates, owners, directors, officers, employees, agents, attorneys, heir,
representatives, legatees, stockholders, insurers, divisions, successors and/or
assigns and any related holding, parent or subsidiary corporations, from any and
all loss, liability, claims, costs (including, without limitation, attorneys'
fees), demands, causes of action, or suits of any type, whether in law and/or in
equity, related directly or indirectly or in any way connected with any
transaction, affairs or occurrences between them and arising on or prior to the
date hereof, including, but not limited to, Releasor's employment with Releasee,
the termination of said employment and claims of emotional or physical distress
related to such employment or termination. This Release specifically applies to
any claims for age discrimination in employment, including any claims arising
under the Age Discrimination In Employment Act or any other statutes or laws
that govern discrimination in employment.
2. Releasor irrevocably and absolutely agrees that he will not prosecute
nor allow to be prosecuted on his behalf in any administrative agency, whether
federal or state, or in any court, whether federal or state, any claim or demand
of any type related to the matter released above, it being an intention of the
parties that with the execution by Releasor of this Release, Releasee, its
owners, officers, directors, employees, agents, attorneys, heirs,
representatives, legatees, successors and/or assigns and any related holding,
parent and subsidiary corporations will be absolutely, unconditionally and
forever discharged of and from all obligations to or on behalf of Releasor
related in any way to the matter discharged herein.
3. Releasor agrees that all matters relative to this Release and
compromise in relation thereto shall remain confidential. Accordingly, Releasor
hereby agrees that, with the exception of Releasor's counsel, spouse and tax
advisor, Releasor shall not discuss, disclose or reveal to any other persons,
entities or organizations, whether within or outside of the State of Texas, the
fact of settlement and/or terms and conditions of settlement and of this
Release, including the amount paid to settle Releasor's claims. Similarly,
Releasor shall not make, issue, disseminate, publish, print or announce any news
release, public statement or announcement with respect to these matters, or any
aspect thereof, the reasons therefore and the terms of this Release. Further, in
keeping with the spirit of this Release, Releasor shall, upon the execution of
this Release, cease and desist from taking any further action in opposition to
Releasee, respecting its past employment policies and practices and shall never
reapply for employment with Releasor; provided, however, that nothing herein
shall be deemed to preclude Releasor from giving statements, affidavits,
depositions, testimony, declarations or other disclosures required by or
pursuant to legal process.
4. Releasor does expressly waive all of the benefits and rights granted to
him pursuant to any applicable law or regulation to the effect that:
A general release does not extend to claims which the creditor does
not know of or suspect to exist in his favor at the time of
executing the release, which if known by his must have materially
affected his settlement with the debtor.
5. Releasor does certify that he has read all of this Release, and that he
fully understands all of the same. Except for claims under the Stock Option
Agreements, Releasor hereby expressly agrees that this Release shall extend and
apply to all unknown, unsuspected and unanticipated injuries and damages, as
well as those that are now known.
6. Releasor further declares and represents that no promise, inducement or
agreement not herein expressed has been made to him and that this Release
contains the full and entire agreement between and among the parties, and that
the terms of this Release are contractual and not a mere recital.
7. The validity, interpretation, and performance of this Release shall be
construed and interpreted according to the laws of the State of Texas.
8. This Release may be pleaded as a full and complete defense and may be
used as the basis for an injunction against any action, suit or proceeding that
may be prosecuted, instituted or attempted by either party in breach thereof.
9. If any provision of this Release, or part thereof, is held invalid,
void or voidable as against the public policy or otherwise, the invalidity shall
not affect other provisions, or parts thereof, which may be given effect without
the invalid provision or part. To this extent, the provisions, and parts
thereof, of this Release are declared to be severable.
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10. As part of this Release, Releasor agrees to indemnify and hold
harmless Releasee against any claim by any state or the Internal Revenue Service
for Releasor's income and other taxes payable as a result of the consideration
being paid by Releasee pursuant to this Release or the Employment Agreement. It
is understood that the extent of Releasor's obligation would be to pay all sums
due to either agency as income tax and his/her portion of social security taxes
related to this Release, plus any applicable penalty and/or interest relating to
failure to timely pay the tax. It is the intention of all parties to this
Release that the severance payments made to Releasor are proper and in
accordance with all laws. However, should there be a different determination by
any state or the Internal Revenue Service, Releasor will be obligated based on
the terms of this paragraph.
11. It is understood that this Release is not an admission of any
liability by any person, firm association or corporation but is in compromise of
any disputed claim.
12. Releasor represents, acknowledges and agrees that Releasee has advised
his, in writing, to discuss this Release with an attorney, and that to the
extent, if any, that Releasor has desired, Releasor has done so; that Releasee
has given Releasor twenty-one (21) days to review and consider this Release
before signing it, and Releasor understands that he may use as much of this
twenty-one (21) day period as he wishes prior to signing; that no promise,
representation, warranty or agreements not contained herein have been made by or
with anyone to cause his to sign this Release; that he has read this Release in
its entirety, and fully understands and is aware of its meaning, intent,
contents and legal effect; and that he is executing this Release voluntarily,
and free of any duress or coercion.
13. The parties acknowledge that for a period of seven (7) days following
the execution of this Release, Releasor may revoke the Release, and the Release
shall not become effective or enforceable until the revocation period has
expired.
14. This Release shall become effective eight (8) days after it is signed
by Releasor and Releasee, and in the event the parties do not sign on the same
date, then this Release shall become effective eight (8) days after the date it
is signed by Releasor.
15. Releasor has read the foregoing Release and knows its contents and
fully understands it. Releasor acknowledges that he has fully discussed this
Release with his attorney.
16. Releasor has read the foregoing Release and knows its contents and
fully understands it. Releasor further acknowledges that he has been offered the
opportunity to discuss this Release and its contents with his attorney. Releasor
acknowledges that he has fully discussed this Release with his attorney or has
voluntarily chosen to sign this Release without consulting his attorney, fully
understanding the consequences of this Release.
3
IN WITNESS WHEREOF, the undersigned have executed this Release on the
dates shown below at 14111 Dallas Parkway, Suite 600, Dallas, Texas 75240.
RELEASOR:
- ---------------------------------
James J. TerBeest
Dated:
---------------------------
RELEASEE:
CRDENTIA CORP.
- ---------------------------------
By: James D. Durham
Its: Chief Executive Officer
Dated:
---------------------------
EXHIBIT C
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.
e. Interference with Business. I acknowledge that because of my position
in the Company, I will have access to the Company's Proprietary Information. I
agree that during my employment with the Company and for a period of one (1)
year after termination of my employment with the Company, I shall not directly
or indirectly (i) divert or attempt to divert from the Company (or any
affiliate) 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 (ii) solicit, induce, recruit or encourage any
person employed by the Company to terminate his or her employment.
2
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) "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 mark and trade dress rights and other rights
3
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. 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").
4
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.
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,
5
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.
6
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.
7
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.
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.
8
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.
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.
9
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.
10
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.
By: /s/ James J. TerBeest By: /s/ James D. Durham
------------------------------ ------------------------------
Name: James J. TerBeest By: James D. Durham
Title: Chief Executive Officer
Date: May 31, 2005 Date: May 31, 2005
- --------------------------------------------------------------------------------
11
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.
James J. TerBeest
- -----------------
Name of Employee
/s/ James J. TerBeest
- ---------------------------------
Signature
12
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 mark 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:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
13
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: May 31, 2005
James J. TerBeest
-----------------
Employee Name
/s/ James J. TerBeest
---------------------------------
Employee Signature
14
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
15
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:
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[generally describe the projects]
Date:
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Employee Name
---------------------------------
Employee Signature
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EXHIBIT D
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, the Americans with
Disabilities Act, and the California Fair Employment and Housing 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. Nothing in this Agreement, however, precludes a
party from filing an administrative charge before an agency that has
jurisdiction over an arbitrable claim. Moreover, nothing in this Agreement
prohibits either party from seeking provisional relief.
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 Texas, 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 at-will employment status. Accordingly,
Employee understands that the Company may terminate Employee's employment, as
well as discipline or demote Employee, at any time, with or without prior
notice, and with or without cause. The parties also understand that Employee is
free to leave the Company at any time and for any reason, with or without cause
and with or without advance notice.
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.
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.
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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.
Employee: James J. TerBeest
/s/ James J. TerBeest
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Date: May 31, 2005
Crdentia Corp.
/s/ James D. Durham
- -------------------------------------
By: James D. Durham
Its: Chief Executive Officer
Date: May 31, 2005
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