CRDENTIA CORP.
NOTICE OF RESTRICTED STOCK BONUS AWARD
Grantee's Name and Address: Pamela G. Atherton
14114 Dallas Parkway, Suite 600
Dallas, Texas 75254
You (the "Grantee") have been granted shares of Common Stock of the
Company (the "Award"), subject to the terms and conditions of this Notice of
Restricted Stock Bonus Award (the "Notice") and the Restricted Stock Bonus Award
Agreement (the "Agreement") attached hereto, as follows. Unless otherwise
defined herein, the terms defined in the Agreement shall have the same defined
meanings in this Notice.
Award Number 3
Date of Award May 31, 2005
Vesting Commencement Date May 31, 2005
Total Number of Shares
of Common Stock Awarded
(the "Shares") 900,000
Aggregate Fair Market
Value of the Shares $1,530,000
Vesting Schedule:
Subject to the Grantee's Continuous Service and other limitations set
forth in this Notice and the Agreement, the Shares will "vest" in accordance
with the following schedule:
In the event the average daily trading volume for the Company's Common
Stock over any consecutive thirty (30) day period equals or exceeds
100,000 shares (the "Trading Volume Goal"), then the Shares shall vest as
follows: 22,500 Shares shall vest on Wednesday of each week following the
achievement of the Trading Volume Goal for a period of forty (40) weeks
until the Shares are fully vested; provided, however, that this number of
Shares vesting each week shall be proportionally reduced in the event that
Grantee forfeits any of the Shares pursuant to the provisions set forth
below under the heading "Clawback of Shares." Subject to the foregoing, in
the event the Trading Volume Goal is achieved, the Shares shall continue
to vest in accordance with the foregoing schedule even if the average
daily trading volume for the Company's Common Stock over any consecutive
thirty (30) day period after the achievement of the Trading Volume Goal is
less than 100,000 shares.
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Notwithstanding the foregoing, 100% of the Shares shall vest on the fifth
(5th) anniversary of the Vesting Commencement Date regardless of whether
or not the Trading Volume Goal is achieved.
Clawback of Shares:
Subject to the Grantee's Continuous Service and other limitations set
forth in this Notice and the Agreement, Grantee shall forfeit 300,000 of the
Shares granted hereunder on each of June 30th, September 30th and December 31st
of 2005 (a "Clawback"), unless the Company has achieved the following amounts of
both (i) revenue and (ii) earnings before interest, taxes, depreciation and
amortization (and excluding stock compensation expense) ("EBITDA") during the
three months ending on such dates:
(a) June 30, 2005: Revenues ($11,461,423) and EBITDA ($382,551);
(b) September 30, 2005: Revenues ($12,271,029) and EBITDA ($514,406);
and
(c) December 31, 2005: Revenues ($12,495,130) and EBITDA ($516,894).
Notwithstanding the foregoing, in the event that the Company does not
achieve a certain revenue or EBIDTA threshold during the end of the first or
second quarterly period indicated above but in the second or third quarterly
period achieves an aggregate, cumulative amount of revenue or EBIDTA during such
six (6) or nine (9) month period (as the case may be) greater than or equal to
the combined quarterly targets for such periods, then Grantee and the Shares
shall not be subject to a Clawback with respect to such prior quarterly
period(s) as if the thresholds had been achieved during such period(s).
Notwithstanding the foregoing, however, such revenue and EBITDA targets must be
achieved no later than December 31, 2005.
Miscellaneous:
In the event the Grantee's Continuous Service terminates as a result of
his or her death or Disability, the Shares automatically shall become fully
vested immediately prior to the date of such termination of Continuous Service
and also not be subject to any Clawback.
During any authorized leave of absence, the vesting of the Shares as
provided in this schedule shall be suspended after the leave of absence exceeds
a period of three (3) months. Vesting of the Shares shall resume upon the
Grantee's termination of the leave of absence and return to service to the
Company or a Related Entity. The Vesting Schedule of the Shares shall be
extended by the length of the suspension.
In the event of the Grantee's change in status from Employee, Director or
Consultant to any other status of Employee, Director or Consultant, the Shares
shall continue to vest in accordance with the Vesting Schedule set forth above.
The Award shall be subject to the provisions of Section 14 of the
Agreement relating to the vesting of the Shares and the effect on any Clawback
right in the event of a Corporate Transaction.
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For purposes of this Notice and the Agreement, the term "vest" shall mean,
with respect to any Shares not subject to Clawback, that such Shares are no
longer subject to forfeiture to the Company. Shares that have not vested or
which are or may be subject to a Clawback are deemed "Restricted Shares." If the
Grantee would become vested in a fraction of a Restricted Share, such Restricted
Share shall not vest until the Grantee becomes vested in the entire Share.
Vesting shall cease upon the date of termination of the Grantee's
Continuous Service for any reason, other than death or Disability. In the event
the Grantee's Continuous Service is terminated for any reason, other than death
or Disability, any Restricted Shares held by the Grantee immediately following
such termination of Continuous Service shall be deemed reconveyed to the Company
and the Company shall thereafter be the legal and beneficial owner of the
Restricted Shares and shall have all rights and interest in or related thereto
without further action by the Grantee. The foregoing forfeiture provisions set
forth in this Notice as to Restricted Shares shall apply to the new capital
stock or other property (including cash paid other than as a regular cash
dividend) received in exchange for the Shares in consummation of any transaction
described in Section 14 of the Agreement and such stock or property shall be
deemed Additional Securities for purposes of the Agreement, but only to the
extent the Shares are at the time covered by such forfeiture provisions.
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IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice
and agree that the Award is to be governed by the terms and conditions of this
Notice and the Agreement.
Crdentia Corp.,
a Delaware corporation
By: /s/ James D. Durham
------------------------------
James D. Durham
Chief Executive Officer
THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SHALL VEST AND/OR BE
RELEASED FROM ANY CLAWBACK RIGHT, IF AT ALL, ONLY DURING THE PERIOD OF THE
GRANTEE'S CONTINUOUS SERVICE (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED
THIS AWARD OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT NOTHING IN THIS NOTICE NOR THE AGREEMENT SHALL CONFER UPON THE
GRANTEE ANY RIGHT WITH RESPECT TO CONTINUATION OF THE GRANTEE'S CONTINUOUS
SERVICE, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE'S RIGHT OR THE
COMPANY'S RIGHT TO TERMINATE THE GRANTEE'S CONTINUOUS SERVICE AT ANY TIME, WITH
OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT
UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY TO THE
CONTRARY, THE GRANTEE'S STATUS IS AT WILL.
As a condition to receiving the Shares, the Grantee agrees to refrain from
making an election pursuant to Section 83(b) of the Code with respect to the
Shares.
The Grantee acknowledges receipt of the Agreement and represents that he
or she is familiar with the terms and provisions thereof, and hereby accepts the
Award subject to all of the terms and provisions hereof and thereof. The Grantee
has reviewed this Notice and the Agreement in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Notice and
fully understands all provisions of this Notice and the Agreement. The Grantee
hereby agrees that all questions of interpretation and administration relating
to this Notice and the Agreement shall be resolved by the Board in accordance
with Section 11 of the Agreement. The Grantee further agrees to the venue
selection and waiver of a jury trial in accordance with Section 12 of the
Agreement. The Grantee further agrees to notify the Company upon any change in
the residence address indicated in this Notice.
Dated: May 31, 2005 Signed: /s/ Pamela G. Atherton
------------------------------
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AWARD NUMBER: 2
CRDENTIA CORP.
RESTRICTED STOCK BONUS AWARD AGREEMENT
1. Issuance of Shares. Crdentia Corp., a Delaware corporation (the
"Company"), hereby issues to the Grantee (the "Grantee") named in the Notice of
Restricted Stock Bonus Award (the "Notice"), the Total Number of Shares of
Common Stock Awarded set forth in the Notice (the "Shares"), subject to the
Notice and this Restricted Stock Bonus Award Agreement (the "Agreement"). All
Shares issued hereunder will be deemed issued to the Grantee as fully paid and
nonassessable shares, and the Grantee will have the right to vote the Shares at
meetings of the Company's stockholders. The Company shall pay any applicable
stock transfer taxes imposed upon the issuance of the Shares to the Grantee
hereunder.
2. Transfer Restrictions. The Shares issued to the Grantee hereunder may
not be sold, transferred by gift, pledged, hypothecated, or otherwise
transferred or disposed of by the Grantee prior to the date when the Shares
become vested pursuant to the Vesting Schedule and released from any Clawback as
set forth in the Notice. Any attempt to transfer Restricted Shares in violation
of this Section 2 will be null and void and will be disregarded.
3. Escrow of Stock. For purposes of facilitating the enforcement of the
provisions of this Agreement, the Grantee agrees, immediately upon receipt of
the certificate(s) for the Restricted Shares, to deliver such certificate(s),
together with an Assignment Separate from Certificate in the form attached
hereto as Exhibit A, executed in blank by the Grantee with respect to each such
stock certificate, to the Secretary or Assistant Secretary of the Company, or
their designee, to hold in escrow for so long as such Restricted Shares have not
vested pursuant to the Vesting Schedule or been released from any Clawback set
forth in the Notice, with the authority to take all such actions and to
effectuate all such transfers and/or releases as may be necessary or appropriate
to accomplish the objectives of this Agreement in accordance with the terms
hereof. The Grantee hereby acknowledges that the appointment of the Secretary or
Assistant Secretary of the Company (or their designee) as the escrow holder
hereunder with the stated authorities is a material inducement to the Company to
make this Agreement and that such appointment is coupled with an interest and is
accordingly irrevocable. The Grantee agrees that such escrow holder shall not be
liable to any party hereto (or to any other party) for any actions or omissions
unless such escrow holder is grossly negligent relative thereto. The escrow
holder may rely upon any letter, notice or other document executed by any
signature purported to be genuine and may resign at any time. Upon the vesting
of Restricted Shares and their release from any Clawback, the escrow holder
will, without further order or instruction, transmit to the Grantee the
certificate evidencing such Shares.
1
4. Additional Securities and Distributions.
(a) Any securities or cash received (other than a regular cash
dividend) as the result of ownership of the Restricted Shares (the "Additional
Securities"), including, but not by way of limitation, warrants, options and
securities received as a stock dividend or stock split, or as a result of a
recapitalization or reorganization or other similar change in the Company's
capital structure, shall be retained in escrow in the same manner and subject to
the same conditions and restrictions as the Restricted Shares with respect to
which they were issued, including, without limitation, the Vesting Schedule and
Clawback set forth in the Notice. The Grantee shall be entitled to direct the
Company to exercise any warrant or option received as Additional Securities upon
supplying the funds necessary to do so, in which event the securities so
purchased shall constitute Additional Securities, but the Grantee may not direct
the Company to sell any such warrant or option. If Additional Securities consist
of a convertible security, the Grantee may exercise any conversion right, and
any securities so acquired shall constitute Additional Securities. In the event
of any change in certificates evidencing the Shares or the Additional Securities
by reason of any recapitalization, reorganization or other transaction that
results in the creation of Additional Securities, the escrow holder is
authorized to deliver to the issuer the certificates evidencing the Shares or
the Additional Securities in exchange for the certificates of the replacement
securities.
(b) The Company shall disburse to the Grantee all regular cash
dividends with respect to the Shares and Additional Securities (whether vested
or not), less any applicable withholding obligations.
5. Taxes.
(a) No Section 83(b) Election. As a condition to receiving the
Shares, the Grantee agrees to refrain from making an election pursuant to
Section 83(b) of the Code with respect to the Shares.
(b) Tax Liability. The Grantee is ultimately liable and responsible
for all taxes owed by the Grantee in connection with the Award, regardless of
any action the Company or any Related Entity takes with respect to any tax
withholding obligations that arise in connection with the Award. Neither the
Company nor any Related Entity makes any representation or undertaking regarding
the treatment of any tax withholding in connection with the grant or vesting of
the Award or the subsequent sale of Shares subject to the Award. The Company and
its Related Entities do not commit and are under no obligation to structure the
Award to reduce or eliminate the Grantee's tax liability.
(c) Payment of Withholding Taxes. Prior to any event in connection
with the Award (e.g., vesting or release of shares from a Clawback) that the
Company determines may result in any tax withholding obligation, whether United
States federal, state, local or non-U.S., including any employment tax
obligation (the "Tax Withholding Obligation"), the Grantee must arrange for the
satisfaction of the minimum amount of such Tax Withholding Obligation in a
manner acceptable to the Company.
2
(i) By Share Withholding. The Grantee authorizes the Company
to, upon the exercise of its sole discretion, withhold from those Shares
issuable to the Grantee the whole number of Shares sufficient to satisfy the
minimum applicable Tax Withholding Obligation. The Grantee acknowledges that the
withheld Shares may not be sufficient to satisfy the Grantee's minimum Tax
Withholding Obligation. Accordingly, the Grantee agrees to pay to the Company or
any Related Entity as soon as practicable, including through additional payroll
withholding, any amount of the Tax Withholding Obligation that is not satisfied
by the withholding of Shares described above.
(ii) By Sale of Shares. Unless the Grantee determines to
satisfy the Tax Withholding Obligation by some other means in accordance with
clause (iii) below, the Grantee's acceptance of this Award constitutes the
Grantee's instruction and authorization to the Company and any brokerage firm
determined acceptable to the Company for such purpose to sell on the Grantee's
behalf a whole number of Shares from those Shares issuable to the Grantee as the
Company determines to be appropriate to generate cash proceeds sufficient to
satisfy the minimum applicable Tax Withholding Obligation. Such Shares will be
sold on the day such Tax Withholding Obligation arises (e.g., a vesting date or
release from Clawback) or as soon thereafter as practicable. The Grantee will be
responsible for all broker's fees and other costs of sale, and the Grantee
agrees to indemnify and hold the Company harmless from any losses, costs,
damages, or expenses relating to any such sale. To the extent the proceeds of
such sale exceed the Grantee's minimum Tax Withholding Obligation, the Company
agrees to pay such excess in cash to the Grantee. The Grantee acknowledges that
the Company or its designee is under no obligation to arrange for such sale at
any particular price, and that the proceeds of any such sale may not be
sufficient to satisfy the Grantee's minimum Tax Withholding Obligation.
Accordingly, the Grantee agrees to pay to the Company or any Related Entity as
soon as practicable, including through additional payroll withholding, any
amount of the Tax Withholding Obligation that is not satisfied by the sale of
Shares described above.
(iii) By Check, Wire Transfer or Other Means. At any time not
less than five (5) business days (or such fewer number of business days as
determined by the Board) before any Tax Withholding Obligation arises (e.g., a
vesting date), the Grantee may elect to satisfy the Grantee's Tax Withholding
Obligation by delivering to the Company an amount that the Company determines is
sufficient to satisfy the Tax Withholding Obligation by (x) wire transfer to
such account as the Company may direct, (y) delivery of a certified check
payable to the Company, or (z) such other means as specified from time to time
by the Board.
6. Stop-Transfer Notices. In order to ensure compliance with the
restrictions on transfer set forth in this Agreement or the Notice, the Company
may issue appropriate "stop transfer" instructions to its transfer agent, if
any, and, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
7. Refusal to Transfer. The Company shall not be required (i) to transfer
on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.
3
8. Restrictive Legends. The Grantee understands and agrees that the
Company shall cause the legends set forth below or legends substantially
equivalent thereto, to be placed upon any certificate(s) evidencing ownership of
the Shares together with any other legends that may be required by the Company
or by state or federal securities laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE
TERMS OF THAT CERTAIN RESTRICTED STOCK BONUS AWARD AGREEMENT BETWEEN
THE COMPANY AND THE NAMED STOCKHOLDERS. THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH SUCH
AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY.
9. Entire Agreement: Governing Law. The Notice and this Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and the Grantee with respect to the subject matter
hereof, and may not be modified adversely to the Grantee's interest except by
means of a writing signed by the Company and the Grantee. These agreements are
to be construed in accordance with and governed by 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 duties of the parties. Should any provision
of the Notice or this Agreement be determined to be illegal or unenforceable,
the other provisions shall nevertheless remain effective and shall remain
enforceable.
10. Headings. The captions used in this Agreement are inserted for
convenience and shall not be deemed a part of this Agreement for construction or
interpretation.
11. Administration and Interpretation. Any question or dispute regarding
the administration or interpretation of the Notice or this Agreement shall be
submitted by the Grantee or by the Company to the Board. The resolution of such
question or dispute by the Board shall be final and binding on all persons.
12. Venue and Waiver of Jury Trial. The parties agree that any suit,
action, or proceeding arising out of or relating to the Notice or this Agreement
shall be brought in the United States District Court for the Northern District
of Texas (or should such court lack jurisdiction to hear such action, suit or
proceeding, in a Texas state court in the County of Dallas) and that the parties
shall submit to the jurisdiction of such court. The parties irrevocably waive,
to the fullest extent permitted by law, any objection the party may have to the
laying of venue for any such suit, action or proceeding brought in such court.
THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL
OF ANY SUCH SUIT, ACTION OR PROCEEDING. If any one or more provisions of this
Section 12 shall for any reason be held invalid or unenforceable, it is the
specific intent of the parties that such provisions shall be modified to the
minimum extent necessary to make it or its application valid and enforceable.
4
13. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery, upon
deposit for delivery by an internationally recognized express mail courier
service or upon deposit in the United States mail by certified mail (if the
parties are within the United States), with postage and fees prepaid, addressed
to the other party at its address as shown in these instruments, or to such
other address as such party may designate in writing from time to time to the
other party.
14. Corporate Transaction.
(a) In the event of a Corporate Transaction and for the portion of
the Award that is neither Assumed nor Replaced, (i) such portion of the Award
shall automatically become fully vested for all of the Shares at the time
represented by such portion of the Award and released from any Clawback,
immediately prior to the specified effective date of such Corporate Transaction,
provided that the Grantee's Continuous Service has not terminated prior to such
date and (ii) the Award shall be subject to the terms of the agreement
implementing the Corporate Transaction between the Company and the successor
entity or Parent thereof and the Grantee shall be deemed to have agreed to the
terms of such agreement applicable to the Award.
(b) In the event of a Corporate Transaction and for the portion of
the Award that is Assumed or Replaced, then the Award (if Assumed), the
replacement award (if Replaced), or the cash incentive program (if Replaced)
automatically shall become fully vested and released from any Clawback,
exercisable and payable for all of the Shares at the time represented by such
Assumed or Replaced portion of the Award, immediately upon termination of the
Grantee's Continuous Service if such Continuous Service is terminated, within
five (5) years after the Corporate Transaction, by the successor company, the
Company or a Related Entity without Cause or voluntarily by the Grantee with
Good Reason. Notwithstanding the foregoing, if upon the consummation of a
Corporate Transaction the Award is Replaced, the Award shall terminate and any
Restricted Shares held by the Grantee shall be deemed reconveyed to the Company
as if the Grantee's Continuous Service had terminated immediately prior to the
effective date of such Corporate Transaction.
15. Definitions. As used herein, the following definitions shall apply:
(a) "Applicable Laws" means the legal requirements applicable to the
issuance of Awards, if any, under applicable provisions of federal securities
laws, state corporate and securities laws, the Code, the rules of any applicable
stock exchange or national market system, and the rules of any non-U.S.
jurisdiction applicable to Awards granted to residents therein.
(b) "Assumed" means that pursuant to a Corporate Transaction either
(i) the Award is expressly affirmed by the Company or (ii) the contractual
rights and obligations represented by the Award are expressly assumed (and not
simply by operation of law) by the successor entity or its Parent in connection
with the Corporate Transaction with appropriate adjustments to the number and
type of securities of the successor entity or its Parent subject to the Award
and the exercise or purchase price thereof which at least preserves the
compensation element of the Award existing at the time of the Corporate
Transaction as determined in accordance with the instruments evidencing the
agreement to assume the Award.
5
(c) "Award" means the sale of Restricted Shares hereunder.
(d) "Board" means the Board of Directors of the Company and shall
include any committee of the Board or Officer of the Company to which the Board
has delegated its authority under this Agreement.
(e) "Cause" means, with respect to the termination by the Company or
a Related Entity of the Grantee's Continuous Service, that such termination is
for "Cause" as such term is expressly defined in a then-effective written
agreement between the Grantee and the Company or such Related Entity, or in the
absence of such then-effective written agreement and definition, is based on, in
the determination of the Board, the Grantee's: (i) performance of any act or
failure to perform any act in bad faith and to the detriment of the Company or a
Related Entity; (ii) dishonesty, intentional misconduct or material breach of
any agreement with the Company or a Related Entity; or (iii) commission of a
crime involving dishonesty, breach of trust, or physical or emotional harm to
any person.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Common Stock" means the common stock of the Company.
(h) "Company" means Crdentia Corp., a Delaware corporation.
(i) "Consultant" means any person (other than an Employee or a
Director, solely with respect to rendering services in such person's capacity as
a Director) who is engaged by the Company or any Related Entity to render
consulting or advisory services to the Company or such Related Entity.
(j) "Continuous Service" means that the provision of services to the
Company or a Related Entity in any capacity of Employee, Director or Consultant,
is not interrupted or terminated. In jurisdictions requiring notice in advance
of an effective termination as an Employee, Director or Consultant, Continuous
Service shall be deemed terminated upon the actual cessation of providing
services to the Company or a Related Entity notwithstanding any required notice
period that must be fulfilled before a termination as an Employee, Director or
Consultant can be effective under Applicable Laws. The Grantee's Continuous
Service shall be deemed to have terminated either upon an actual termination of
Continuous Service or upon the entity for which the Grantee provides services
ceasing to be a Related Entity. Continuous Service shall not be considered
interrupted in the case of (i) any approved leave of absence, (ii) transfers
among the Company, any Related Entity, or any successor, in any capacity of
Employee, Director or Consultant, or (iii) any change in status as long as the
individual remains in the service of the Company or a Related Entity in any
capacity of Employee, Director or Consultant (except as otherwise provided in
the Award Agreement). An approved leave of absence shall include sick leave,
military leave, or any other authorized personal leave.
6
(k) "Corporate Transaction" means any of the following transactions,
provided, however, that the Board shall determine under parts (iv) and (v)
whether multiple transactions are related, and its determination shall be final,
binding and conclusive:
(i) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose of which is to
change the state in which the Company is incorporated;
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the capital stock of
the Company's subsidiary corporations);
(iii) the complete liquidation or dissolution of the Company;
(iv) any reverse merger or series of related transactions
culminating in a reverse merger (including, but not limited to, a tender offer
followed by a reverse merger) in which the Company is the surviving entity but
(A) the shares of Common Stock outstanding immediately prior to such merger are
converted or exchanged by virtue of the merger into other property, whether in
the form of securities, cash or otherwise, or (B) in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Company's outstanding securities are transferred to a person or persons
different from those who held such securities immediately prior to such merger
or the initial transaction culminating in such merger, but excluding any such
transaction or series of related transactions that the Board determines shall
not be a Corporate Transaction; or
(v) acquisition in a single or series of related transactions
by any person or related group of persons (other than the Company or by a
Company-sponsored employee benefit plan) of beneficial ownership (within the
meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than
fifty percent (50%) of the total combined voting power of the Company's
outstanding securities but excluding any such transaction or series of related
transactions that the Board determines shall not be a Corporate Transaction.
(l) "Director" means a member of the Board or the board of directors
of any Related Entity.
(m) "Disability" means as such term is expressly defined in a
then-effective written agreement between the Grantee and the Company or such
Related Entity, or in the absence of such then-effective written agreement and
definition, as defined under the long-term disability policy of the Company or
the Related Entity to which the Grantee provides services regardless of whether
the Grantee is covered by such policy. In the absence of a written agreement
containing a definition of disability and if the Company or the Related Entity
to which the Grantee provides service does not have a long-term disability plan
in place, "Disability" means that a Grantee is unable to carry out the
responsibilities and functions of the position held by the Grantee by reason of
any medically determinable physical or mental impairment for a period of not
less than ninety (90) consecutive days. A Grantee will not be considered to have
incurred a Disability unless he or she furnishes proof of such impairment
sufficient to satisfy the Board in its discretion.
7
(n) "Employee" means any person, including an Officer or Director,
who is in the employ of the Company or any Related Entity, subject to the
control and direction of the Company or any Related Entity as to both the work
to be performed and the manner and method of performance. The payment of a
director's fee by the Company or a Related Entity shall not be sufficient to
constitute "employment" by the Company.
(o) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(p) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on one or more established
stock exchanges or national market systems, including without limitation The
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market,
its Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on the principal exchange or
system on which the Common Stock is listed (as determined by the Board) on the
date of determination (or, if no closing sales price or closing bid was reported
on that date, as applicable, on the last trading date such closing sales price
or closing bid was reported), as reported in The Wall Street Journal or such
other source as the Board deems reliable;
(ii) If the Common Stock is regularly quoted on an automated
quotation system (including the OTC Bulletin Board) or by a recognized
securities dealer, its Fair Market Value shall be the closing sales price for
such stock as quoted on such system or by such securities dealer on the date of
determination, but if selling prices are not reported, the Fair Market Value of
a share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the date of determination (or, if no such prices
were reported on that date, on the last date such prices were reported), as
reported in The Wall Street Journal or such other source as the Board deems
reliable; or
(iii) In the absence of an established market for the Common
Stock of the type described in (i) and (ii), above, the Fair Market Value
thereof shall be determined by the Board in good faith.
(q) "Good Reason" means the occurrence of any of the following
events or conditions unless consented to by the Grantee (and the Grantee shall
be deemed to have consented to any such event or condition unless the Grantee
provides written notice of the Grantee's non-acquiescence within 30 days of the
effective time of such event or condition):
(i) a reduction in the Grantee's base salary to a level below
that in effect at any time within the preceding six (6) months; or
(ii) requiring the Grantee to be based at any place outside a
45-mile radius from the Grantee's job location except for reasonably required
travel on business.
(r) "Officer" means a person who is an officer of the Company or a
Related Entity within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder.
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(s) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(t) "Related Entity" means any Parent or Subsidiary of the Company
and any business, corporation, partnership, limited liability company or other
entity in which the Company or a Parent or a Subsidiary of the Company holds a
substantial ownership interest, directly or indirectly.
(u) "Replaced" means that pursuant to a Corporate Transaction the
Award is replaced with a comparable stock award or a cash incentive program of
the Company, the successor entity (if applicable) or Parent of either of them
which preserves the compensation element of such Award existing at the time of
the Corporate Transaction and provides for subsequent payout in accordance with
the same (or a more favorable) vesting schedule applicable to such Award. The
determination of Award comparability shall be made by the Board and its
determination shall be final, binding and conclusive.
(v) "Share" means a share of the Common Stock.
(w) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
END OF AGREEMENT
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EXHIBIT A
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, Pamela G. Atherton hereby sells, assigns and
transfers unto _______________________, _______ shares of the Common Stock of
Crdentia Corp., a Delaware corporation (the "Company"), standing in his name on
the books of, the Company represented by Certificate No. __ herewith, and does
hereby irrevocably constitute and appoint the Secretary of the Company attorney
to transfer the said stock in the books of the Company with full power of
substitution.
DATED:
------------
/s/ Pamela G. Atherton
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[PLEASE SIGN THIS DOCUMENT BUT DO NOT DATE IT. THE DATE AND INFORMATION OF THE
TRANSFEREE WILL BE COMPLETED IF AND WHEN THE SHARES ARE ASSIGNED.]
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