EXHIBIT 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
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This Separation Agreement and General Release (this
"Agreement") is made and entered into by and between Xxxxxxx X. Xxxxxxxx ("Xx.
Xxxxxxxx") and Crdentia Corp., a Delaware corporation (the "Company"), with
reference to the following facts:
A. Xx. Xxxxxxxx has been employed by the Company in the
position of Chief Financial Officer and Secretary pursuant to the terms of a
certain Executive Employment Agreement dated on or about March 22, 2004 (the
"Employment Agreement").
B. The Company and Xx. Xxxxxxxx have mutually decided to end
the employment relationship with one another.
C. Xx. Xxxxxxxx and the Company each desire to settle,
compromise and resolve fully and finally any and all claims and disputes,
whether known or unknown, which exist or could exist on Xx. Xxxxxxxx'x behalf
against the Company or its Affiliates (as hereinafter defined), arising out of
Xx. Xxxxxxxx'x employment with the Company as an officer of the Company
(including, without limitation, as its Chief Financial Officer and Secretary),
and the cessation of that employment relationship.
NOW, THEREFORE, in consideration of the covenants and promises
contained herein, the parties hereto agree as follows:
1. AGREEMENT BY EMPLOYEE. Xx. Xxxxxxxx acknowledges that his
employment with the Company terminated effective as of September 10, 2004, and
in consideration for the payments and other terms set forth herein, Xx. Xxxxxxxx
voluntarily agrees to be bound by the terms of this Agreement.
2. VOLUNTARY RESIGNATION OF CORPORATE POSITIONS. Xx. Xxxxxxxx
hereby voluntarily resigns, effective as of September 10, 2004, all positions
held with the Company and its Affiliates as an officer or otherwise (including,
without limitation, the positions of Chief Financial Officer and Secretary of
the Company).
3. WAGES AND VACATION PAY. The Company shall pay to Xx.
Xxxxxxxx all of his wages and accrued and unused vacation time through September
10, 2004.
4. SEVERANCE PAYMENT. In consideration for his execution of
this Agreement, and subject to the terms and conditions of this Agreement and
the Employment Agreement, the Company agrees to pay Xx. Xxxxxxxx an amount in
cash equal to one (1) month of his Base Salary (as defined in the Employment
Agreement), which such amount shall be paid in accordance with the Company's
general payroll practices. Xx. Xxxxxxxx agrees that the severance payments
provided for herein are more than the Company is required to pay under its
normal policies and procedures, and Xx. Xxxxxxxx agrees that these payments are
fully satisfactory to him and constitute valid consideration in exchange for the
releases and commitments set forth in this Agreement.
5. STOCK OPTIONS. The parties acknowledge and agree that Xx.
Xxxxxxxx was issued a stock option award on April 8, 2004 to purchase up to
110,504 shares of the Company's Common Stock at an exercise price of $3.15 per
share (the "Option Grant"). The parties acknowledge and agree that, effective as
of the termination of Xx. Xxxxxxxx'x employment on September 10, 2004, he had
not vested in any of the shares of Common Stock underlying the Option Grant. In
consideration for Xx. Xxxxxxxx'x execution of this Agreement, the Company agrees
to: (a) accelerate Xx. Xxxxxxxx'x vesting in twenty-five percent (25%) of the
shares of Common Stock underlying the Option Grant (i.e., 27,626 shares) and (b)
provide Xx. Xxxxxxxx until September 10, 2005 in which to exercise the Option
Grant. All share numbers and calculations in this paragraph give effect to a
1-for-3 reverse split of the Company's Common Stock effected as of June 28,
2004.
6. NO FILING OF CLAIMS. Xx. Xxxxxxxx represents and warrants
that he does not presently have on file, and further represents that he will not
hereafter file, any claims, charges, grievances, actions, appeals or complaints
against the Company or its parent, subsidiaries and related entities or
corporations, or its or their past and present officers, directors,
stockholders, employees, agents, partners, attorneys, heirs, successors and
assigns (collectively, "Affiliates"), in or with any administrative, state,
federal or governmental entity, agency, board or court, or before any other
tribunal or panel of arbitrators, public or private, based upon any actions by
the Company or its Affiliates occurring prior to the date of this Agreement.
7. RELEASE OF ALL CLAIMS BY XX. XXXXXXXX. In consideration for
the promises and compensation provided above, Xx. Xxxxxxxx hereby agrees to
waive, release, acquit and forever discharge the Company and its Affiliates from
any and all claims, demands, actions, charges, complaints and causes of action
(hereinafter collectively referred to as, "Claims"), of whatever nature, whether
known or unknown, which exist or may exist on Xx. Xxxxxxxx'x behalf as of the
date of this Agreement, including but not limited to any and all tort claims,
contract claims (express or implied), wage claims, bonus claims, wrongful
termination claims, public policy claims, whistleblower claims, implied covenant
of good faith and fair dealing claims, retaliation claims, statutory claims,
personal injury claims, emotional distress claims, invasion of privacy claims,
defamation claims, fraud claims, and any and all claims arising under any
federal, state or other governmental statute, law, regulation or ordinance
covering discrimination in employment, including but not limited to Title VII of
the Civil Rights Act of 1964, as amended, the Federal Age Discrimination in
Employment Act of 1967, as amended, the Americans with Disabilities Act, the
Family and Medical Leave Act and the Equal Pay Act, covering discrimination in
employment including race, color, religious creed, national origin, ancestry,
physical or mental disability, medical condition, marital status, family care
leave, pregnancy, sex, sexual orientation, age, and harassment or retaliation.
8. WAIVER OF UNKNOWN CLAIMS BY XX. XXXXXXXX. It is further
understood and agreed by Xx. Xxxxxxxx that he hereby expressly waives and
relinquishes any and all claims, rights or benefits that he may have 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 or suspect to exist in his favor at the
time of executing the release which if known by him must have
materially affected his settlement with the debtor."
In connection with such waiver and relinquishment, and notwithstanding the
foregoing provisions, Xx. Xxxxxxxx hereby expressly acknowledges that this
Agreement is intended to include, and does include in its effect, without
limitation, all such claims which he does not know or suspect to exist at the
time of the execution of this Agreement, and that this Agreement contemplates
the extinguishment of those claims. Xx. Xxxxxxxx further acknowledges,
understands and agrees that this representation and commitment is essential to
the Company and that this Agreement would not have been entered into were it not
for this representation and commitment.
9. COVENANT OF CONFIDENTIALITY. Xx. Xxxxxxxx acknowledges that
he executed the Company's Proprietary Rights and Information Agreement on or
about March 22, 2004, and that notwithstanding the termination of his
employment, he shall continue to have an obligation not to disclose or use any
"Proprietary Information" (as defined therein) obtained during the course of his
employment with the Company on the terms set forth therein.
10. NON-COMPETITION/NON-SOLICITATION. Xx. Xxxxxxxx
acknowledges and agrees that, pursuant Sections 7(a) and (b) of the Employment
Agreement, he shall have certain continuing obligations to refrain from
competing with the Company or soliciting the Company's employees or consultants,
which such obligations shall continue notwithstanding the termination of his
employment.
11. NON-ADMISSION OF LIABILITY. Xx. Xxxxxxxx acknowledges that
the Company denies any wrongdoing whatsoever in connection with Xx. Xxxxxxxx,
his employment, and the cessation of that employment, and that the severance
payment made pursuant to this Agreement is made solely for the purpose of
amicably resolving any disputes the parties have arising from the employment
relationship. Xx. Xxxxxxxx and the Company expressly understand and agree that
nothing contained in this Agreement shall constitute or be treated as an
admission of any wrongdoing or liability on the part of Xx. Xxxxxxxx or the
Company.
12. NO OTHER PAYMENTS DUE. Xx. Xxxxxxxx understands and agrees
that this Agreement is intended to and does bar all claims Xx. Xxxxxxxx has or
may have for injuries, losses, damages, wages, salaries, bonuses, commissions,
overtime pay, vacation pay, severance pay, car allowance, benefits, costs,
expenses, attorneys' fees or any similar claims that Xx. Xxxxxxxx could possibly
have against the Company or its Affiliates, and that Xx. Xxxxxxxx is not
entitled to receive and will not claim any right, benefit, or compensation other
than what is set forth above in Sections 4 and 5, above.
13. RETURN OF COMPANY PROPERTY. Xx. Xxxxxxxx agrees to
promptly return to the Company all office keys, building access cards, Company
credit cards, equipment, documents and any other materials of the Company that
he has in his possession, custody or control.
14. NON-DISPARAGEMENT. Each of Xx. Xxxxxxxx and the Company
hereby agrees that he and it (including its executive officers and directors)
will not disparage or in any way criticize the other party, its respective
Affiliates and/or their respective officers, managers, supervisors, employees,
investors, products, services, or technology at any time in the future. Nothing
contained in this Section is intended to prevent either party from testifying
truthfully in any legal proceeding.
15. OWNERSHIP OF CLAIMS. Each party represents and warrants
that such party is the sole and lawful owner of all rights, title and interest
in and to all released matters, claims and demands referred to herein. Each
party further represents and warrants that there has been no assignment or other
transfer of any interest in any such matters, claims or demands which each party
may have against the other party.
16. CHOICE OF LAW. This Agreement, in all respects, shall be
interpreted, enforced and governed by and under the laws of the State of Texas.
17. SUCCESSORS AND ASSIGNS. The parties expressly acknowledge
and agree that this Agreement and all of its terms shall be binding upon Xx.
Xxxxxxxx'x and the Company's respective representatives, heirs, executors,
administrators, successors and assigns.
18. ATTORNEY'S FEES. In the event that any party to this
Agreement asserts a claim for breach of this Agreement or seeks to enforce its
terms, the prevailing party in any such proceeding shall be entitled to recover
costs and reasonable attorney's fees.
19. HEADINGS. The headings in each paragraph herein are for
convenience of reference only and shall be of no legal effect in the
interpretation of the terms hereof.
20. INTEGRATION. This Agreement constitutes a single,
integrated, written contract, expressing the entire agreement between the
parties. In this regard, Xx. Xxxxxxxx represents and warrants that he is not
relying on any promises or representations which do not appear written herein.
Xx. Xxxxxxxx further understands and agrees that this Agreement can be amended
or modified only by a written agreement, signed by all of the parties hereto.
21. TIME FOR CONSIDERATION/REVOCATION OF THIS AGREEMENT. Xx.
Xxxxxxxx acknowledges that he is hereby given twenty-one (21) days from receipt
of this Agreement to consider signing this Agreement (through October 1, 2004)
(the "Expiration Date"), that he is advised to consult with an attorney before
signing this Agreement, and that he has the right to revoke this Agreement for a
period of seven (7) days after it is executed by him. In the event that Xx.
Xxxxxxxx chooses not to sign this Agreement on or before the Expiration Date, or
chooses to revoke this Agreement once signed, Employee will not receive any
consideration he would not be otherwise be entitled to received in the absence
of this Agreement. Xx. Xxxxxxxx understands that any revocation of this
Agreement must be made in writing and delivered to the Company at 00000 Xxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 within such seven (7) day period.
22. EFFECTIVE DATE. This Agreement shall become effective and
binding upon the parties eight (8) days after Xx. Xxxxxxxx'x execution thereof,
so long as he has not revoked it within the time period and in the manner
specified in Section 21, above.
23. VOLUNTARY AGREEMENT. Xx. Xxxxxxxx understands and agrees
that he may be waiving significant legal rights by signing this Agreement. Xx.
Xxxxxxxx understands that the Company has been represented in the preparation,
negotiation and execution of this Agreement by Xxxxxxxx & Xxxxxxxx LLP, counsel
to the Company, and that Xxxxxxxx & Xxxxxxxx LLP has not represented Xx.
Xxxxxxxx in the preparation, negotiation and execution of this Agreement. Xx.
Xxxxxxxx represents that he has been advised by legal counsel of his choice
regarding this Agreement, and represents that he has entered into this Agreement
voluntarily, with a full understanding of and in agreement with all of its
terms.
THE SIGNATORIES HAVE CAREFULLY READ THIS ENTIRE AGREEMENT. THE
SIGNATORIES HAVE CONSULTED WITH LEGAL COUNSEL OF THEIR CHOICE REGARDING THIS
AGREEMENT. THE SIGNATORIES FULLY UNDERSTAND THE FINAL AND BINDING EFFECT OF THIS
AGREEMENT. THE SIGNATORIES ARE SIGNING THIS AGREEMENT VOLUNTARILY.
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IN WITNESS WHEREOF, the parties hereto have executed this
Separation Agreement and General Release on the dates indicated below.
DATED: September 15, 2004 XXXXXXX X. XXXXXXXX
By: /S/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
DATED: September 10, 2004 CRDENTIA CORP.
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Its: President
