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EXHIBIT 10.1
CRDENTIA CORP.
EXECUTIVE EMPLOYMENT AGREEMENT
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This Executive Employment Agreement (the
"AGREEMENT"), dated August 31, 2004, is
between Crdentia Corp., a Delaware
corporation (the "COMPANY") and William C.
Crocker, an individual residing at Phoenix,
Arizona ("EXECUTIVE").
1. POSITION AND RESPONSIBILITIES
a. POSITION. Executive is employed by the Company to render
services to
the Company in the position of Senior Vice
President. Executive shall perform
such duties and responsibilities as are
normally related to such position in
accordance with the standards of the
industry and any additional duties now or
hereafter assigned to Executive by the
Company. Executive shall abide by the
rules, regulations, and practices as
adopted or modified from time to time in
the Company's sole discretion.
b. OTHER ACTIVITIES. Except upon the prior written consent of
the
Company, Executive will not, during the
term of this Agreement, (i) accept any
other employment, or (ii) engage, directly
or indirectly, in any other business
activity (whether or not pursued for
pecuniary advantage) that might interfere
with Executive's duties and
responsibilities hereunder or create a conflict of
interest with the Company.
c. NO CONFLICT. Executive represents and warrants that
Executive's
execution of this Agreement, Executive's
employment with the Company, and the
performance of Executive's proposed duties
under this Agreement shall not
violate any obligations Executive may have
to any other employer, person or
entity, including any obligations with
respect to proprietary or confidential
information of any other person or
entity.
2. COMPENSATION AND BENEFITS
a. BASE SALARY. In consideration of the services to be rendered
under
this Agreement, the Company shall pay
Executive a salary at the rate of One
Hundred Fifteen Thousand Dollars ($115,000)
per year ("BASE SALARY"). The Base
Salary shall be paid in accordance with the
Company's regularly established
payroll practice. Executive's Base Salary
will be reviewed from time to time in
accordance with the established procedures
of the Company for adjusting salaries
for similarly situated employees and may be
adjusted in the sole discretion of
the Company; provided, however, that the
Base Salary will be increased by no
less than ten percent (10%) on each yearly
anniversary of the date of this
Agreement.
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b. BENEFITS. Executive shall be eligible to participate in the
benefits
made generally available by the Company to
similarly-situated Executives, in
accordance with the benefit plans
established by the Company, and as may be
amended from time to time in the Company's
sole discretion.
c. BONUS PROGRAM. Executive shall be eligible to participate in
the
Bonus Program made generally available to
the Company's Executives ("BONUS
PROGRAM"), such participation to be in
accordance with the terms of the Bonus
Program established by the Company, and as
made by amended from time to time in
the Company's sole discretion.
d. EXPENSES. The Company shall reimburse Executive for
reasonable
business expenses incurred in the
performance of Executive's duties hereunder in
accordance with the Company's expense
reimbursement guidelines.
3. AT-WILL EMPLOYMENT; TERMINATION BY
COMPANY
The employment of Executive shall be "at-will" at all times from
and
after the third anniversary of the date
hereof. The Company may terminate
Executive's employment with the Company (i)
"For Cause" (as defined below) at
any time or (ii) at any time after the
third anniversary of the date hereof,
without any advance notice, for any reason
or no reason at all, notwithstanding
anything to the contrary contained in or
arising from any statements, policies
or practices of the Company relating to the
employment, discipline or
termination of its employees. Upon and
after any such termination, all
obligations of the Company under this
Agreement shall cease.
4. OTHER TERMINATIONS BY COMPANY
a. TERMINATION FOR CAUSE. For purposes of this Agreement, "For
Cause"
shall mean: (i) Executive commits a crime
involving dishonesty, breach of trust,
or physical harm to any person; (ii)
Executive willfully engages in conduct that
is in bad faith and materially injurious to
the Company, including but not
limited to, misappropriation of trade
secrets, fraud or embezzlement; (iii)
Executive willfully commits a material
breach of this Agreement, which breach is
not cured within twenty days after written
notice to Executive from the Company;
(iv) Executive willfully refuses to
implement or follow a lawful policy or
directive of the Company, which breach is
not cured within twenty days after
written notice to Executive from the
Company; or (v) Executive engages in
misfeasance or malfeasance demonstrated by
a pattern of failure to perform job
duties diligently and professionally after
written notice thereof from the
Company. The Company may terminate
Executive's employment For Cause at any time,
without any advance notice. The Company
shall pay to Executive all compensation
to which Executive is entitled up through
the date of termination, subject to
any other rights or remedies of The Company
under law; and thereafter all
obligations of the Company under this
Agreement shall cease.
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b. BY DEATH. Executive's employment shall terminate automatically
upon
Executive's death. The Company shall pay to
Executive's beneficiaries or estate,
as appropriate, any compensation then due
and owing. Thereafter all obligations
of the Company under this Agreement shall
cease. Nothing in this Section shall
affect any entitlement of Executive's heirs
or devisees to the benefits of any
life insurance plan or other applicable
benefits.
c. BY DISABILITY. If Executive becomes eligible for the Company's
long
term disability benefits or if, in the sole
opinion of the Company, Executive is
unable to carry out the responsibilities
and functions of the position held by
Executive by reason of any physical or
mental impairment for more than ninety
consecutive days or more than one hundred
and twenty days in any twelve-month
period, then, to the extent permitted by
law, the Company may terminate
Executive's employment. The Company shall
pay to Executive all compensation to
which Executive is entitled up through the
date of termination, and thereafter
all obligations of the Company under this
Agreement shall cease. Nothing in this
Section shall affect Executive's rights
under any disability plan in which
Executive is a participant.
5. TERMINATION BY EXECUTIVE
a. AT-WILL TERMINATION BY EXECUTIVE. Executive may terminate
employment
with the Company at any time for any reason
or no reason at all, upon four
weeks' advance written notice. During such
notice period Executive shall
continue to diligently perform all of
Executive's duties hereunder. The Company
shall have the option, in its sole
discretion, to make Executive's termination
effective at any time prior to the end of
such notice period as long as the
Company pays Executive all compensation to
which Executive is entitled up
through the last day of the four week
notice period. Thereafter all obligations
of the Company shall cease.
6. TERMINATION OBLIGATIONS
a. RETURN OF PROPERTY. Executive agrees that all property
(including
without limitation all equipment, tangible
proprietary information, documents,
records, notes, contracts and
computer-generated materials) furnished to or
created or prepared by Executive incident
to Executive's employment belongs to
the Company and shall be promptly returned
to the Company upon termination of
Executive's employment.
b. RESIGNATION AND COOPERATION. Upon termination of Executive's
employment, Executive shall be deemed to
have resigned from all offices and
directorships then held with the Company.
Following any termination of
employment, Executive shall cooperate with
the Company in the winding up of
pending work on behalf of the Company and
the orderly transfer of work to other
employees. Executive shall also cooperate
with the Company in the defense of any
action brought by any third party against
the Company that relates to
Executive's employment by the Company.
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c. CONTINUING OBLIGATIONS. Executive understands and agrees
that
Executive's obligations under Sections 6,
7, and 8 herein (including Exhibits A
and B) shall survive the termination of
Executive's employment for any reason
and the termination of this Agreement.
7. INVENTIONS AND PROPRIETARY INFORMATION;
PROHIBITION ON THIRD PARTY
INFORMATION
a. PROPRIETARY INFORMATION AGREEMENT. Executive agrees to sign and
be
bound by the terms of the Proprietary
Information and Inventions Agreement,
which is attached as Exhibit A
("PROPRIETARY INFORMATION AGREEMENT").
b. NON-SOLICITATION. Executive acknowledges that because of
Executive's
position in the Company, Executive will
have access to material intellectual
property and confidential information.
During the term of Executive's employment
and for one year thereafter, in addition to
Executive's other obligations
hereunder or under the Proprietary
Information Agreement, Executive shall not,
for Executive or any third party, directly
or indirectly (a) divert or attempt
to divert from the Company any business of
any kind, including without
limitation the solicitation of or
interference with any of its customers,
clients, members, business partners or
suppliers, or (b) solicit or otherwise
induce any person employed by the Company
to terminate his employment.
c. NON-DISCLOSURE OF THIRD PARTY INFORMATION. Executive represents
and
warrants and covenants that Executive shall
not disclose to the Company, or use,
or induce the Company to use, any
proprietary information or trade secrets of
others at any time, including but not
limited to any proprietary information or
trade secrets of any former employer, if
any; and Executive acknowledges and
agrees that any violation of this provision
shall be grounds for Executive's
immediate termination and could subject
Executive to substantial civil
liabilities and criminal penalties.
Executive further specifically and expressly
acknowledges that no officer or other
employee or representative of the Company
has requested or instructed Executive to
disclose or use any such third party
proprietary information or trade
secrets.
8. ARBITRATION
Executive agrees to sign and be bound by
the terms of the Arbitration Agreement,
which is attached as Exhibit B.
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9. AMENDMENTS; WAIVERS; REMEDIES
This Agreement may not be amended or waived
except by a writing signed by
Executive and by a duly authorized
representative of the Company other than
Executive. Failure to exercise any right
under this Agreement shall not
constitute a waiver of such right. Any
waiver of any breach of this Agreement
shall not operate as a waiver of any
subsequent breaches. All rights or remedies
specified for a party herein shall be
cumulative and in addition to all other
rights and remedies of the party hereunder
or under applicable law.
10. ASSIGNMENT; BINDING EFFECT
a. ASSIGNMENT. The performance of Executive is personal hereunder,
and
Executive agrees that Executive shall have
no right to assign and shall not
assign or purport to assign any rights or
obligations under this Agreement. This
Agreement may be assigned or transferred by
the Company; and nothing in this
Agreement shall prevent the consolidation,
merger or sale of the Company or a
sale of any or all or substantially all of
its assets.
b. BINDING EFFECT. Subject to the foregoing restriction on
assignment
by Executive, this Agreement shall inure to
the benefit of and be binding upon
each of the parties; the affiliates,
officers, directors, agents, successors and
assigns of the Company; and the heirs,
devisees, spouses, legal representatives
and successors of Executive.
11. NOTICES
All notices or other communications
required or permitted hereunder shall be
made in writing and shall be deemed to have
been duly given if delivered: (a) by
hand; (b) by a nationally recognized
overnight courier service; or (c) by United
States first class registered or certified
mail, return receipt requested, to
the principal address of the other party,
as set forth below. The date of notice
shall be deemed to be the earlier of (i)
actual receipt of notice by any
permitted means, or (ii) five business days
following dispatch by overnight
delivery service or the United States Mail.
Executive shall be obligated to
notify the Company in writing of any change
in Executive's address. Notice of
change of address shall be effective only
when done in accordance with this
paragraph.
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Company's Notice Address:
14114 Dallas Parkway, Suite 600
Dallas, TX 75240
Attn: Chief Executive Officer
Executive's Notice Address:
10371 N. 124th Street
Scottsdale, Arizona 85259
12. SEVERABILITY
If any provision of this Agreement shall be
held by a court or arbitrator to be
invalid, unenforceable, or void, such
provision shall be enforced to the fullest
extent permitted by law, and the remainder
of this Agreement shall remain in
full force and effect. In the event that
the time period or scope of any
provision is declared by a court or
arbitrator of competent jurisdiction to
exceed the maximum time period or scope
that such court or arbitrator deems
enforceable, then such court or arbitrator
shall reduce the time period or scope
to the maximum time period or scope
permitted by law.
13. TAXES
All amounts paid under this Agreement
(including without limitation Base Salary
and Severance) shall be paid less all
applicable state and federal tax
withholdings and any other withholdings
required by any applicable jurisdiction.
14. GOVERNING LAW
This Agreement shall be governed by and
construed in accordance with the laws of
the State of Delaware.
15. INTERPRETATION
This Agreement shall be construed as a
whole, according to its fair meaning, and
not in favor of or against any party.
Sections and section headings contained in
this Agreement are for reference purposes
only, and shall not affect in any
manner the meaning or interpretation of
this Agreement. Whenever the context
requires, references to the singular shall
include the plural and the plural the
singular.
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16. OBLIGATIONS SURVIVE TERMINATION OF
EMPLOYMENT
Executive agrees that any and all of
Executive's obligations under this
agreement, including but not limited to
Exhibits A and B, shall survive the
termination of employment and the
termination of this Agreement.
17. COUNTERPARTS
This Agreement may be executed in any
number of counterparts, each of which
shall be deemed an original of this
Agreement, but all of which together shall
constitute one and the same instrument.
18. AUTHORITY
Each party represents and warrants that
such party has the right, power and
authority to enter into and execute this
Agreement and to perform and discharge
all of the obligations hereunder; and that
this Agreement constitutes the valid
and legally binding agreement and
obligation of such party and is enforceable in
accordance with its terms.
19. ENTIRE AGREEMENT
This Agreement is intended to be the final,
complete, and exclusive statement of
the terms of Executive's employment by the
Company and may not be contradicted
by evidence of any prior or contemporaneous
statements or agreements, except for
agreements specifically referenced herein
(including the Proprietary Information
Agreement attached as Exhibit A and the
Arbitration Agreement attached as
Exhibit B). To the extent that the
practices, policies or procedures of the
Company, now or in the future, apply to
Executive and are inconsistent with the
terms of this Agreement, the provisions of
this Agreement shall control. Any
subsequent change in Executive's duties,
position, or compensation will not
affect the validity or scope of this
Agreement.
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20. EXECUTIVE ACKNOWLEDGEMENT
EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS
HAD THE OPPORTUNITY TO CONSULT LEGAL
COUNSEL CONCERNING THIS AGREEMENT, THAT
EXECUTIVE HAS READ AND UNDERSTANDS THIS
AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF
ITS LEGAL EFFECT, AND THAT EXECUTIVE
HAS ENTERED INTO THIS AGREEMENT FREELY
BASED ON EXECUTIVE'S OWN JUDGMENT AND NOT
ON ANY REPRESENTATIONS OR PROMISES OTHER
THAN THOSE CONTAINED IN THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have duly
executed this Agreement as of the date
first written above.
CRDENTIA CORP.:
EXECUTIVE:
By: /s/ James D. Durham
By: /s/ William C. Crocker
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Name: James D. Durham
Name: William C. Crocker
Title: Chief Executive Officer
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EXHIBIT A
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PROPRIETARY RIGHTS AND INFORMATION AGREEMENT
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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.
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b. LOCATION AND REPRODUCTION. I agree to maintain at my work
station
and/or any other place under my control
only such Proprietary Information that,
and only as long as such Proprietary
Information, is necessary to carry out my
responsibilities as an employee of the
Company. I agree to return to the
appropriate person or location or otherwise
properly dispose of Proprietary
Information once that necessity no longer
exists. I also agree not to make
copies or otherwise reproduce Proprietary
Information except to the extent
necessary to carry out my responsibilities
as an employee of the Company.
c. PRIOR ACTIONS AND KNOWLEDGE. Except as disclosed on Schedule A
to
this Agreement, I have no knowledge of the
Company's business or Proprietary
Information, other than information I have
learned from the Company in the
course of being hired and employed.
d. THIRD PARTY INFORMATION. I recognize that the Company has
received
and will receive confidential or
proprietary information and materials from
third parties. Such information and
materials shall be deemed "Proprietary
Information" for all purposes of this
Agreement and I will be subject to all
limitations on use and disclosure set forth
in this Agreement with respect
thereto. In addition, I shall not use or
disclose any such information and
materials in any manner inconsistent with
any of Company's obligations towards
such third party.
2. CREATIONS
a. DEFINITIONS.
(1)
"TECHNOLOGY" comprises all materials, information, ideas and
other subject matter, including, without
limitation, works of authorship and
other creations; inventions, invention
disclosures, discoveries, developments
and patent applications; know-how and trade
secrets; plans, designs and
concepts; drawings, diagrams and
schematics; writings, reports, notebooks, and
other information; specifications,
formulas, structures and other technical or
engineering information; prototypes,
systems, compositions, hardware, tools,
equipment, instruments and other devices,
products and technology; processes,
methods, techniques, procedures and work in
process; computer programs (in
source code, object code or any other
format), applications, algorithms,
protocols, data and databases, programmable
logic and documentation; and any
copies, extracts, portions, derivatives,
improvements and enhancements thereof
and modifications thereto.
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(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 Compa
