EXHIBIT 10.17
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (the "Amendment") is made on
January 1, 2004 by and between Crdentia Corp., a Delaware corporation (the
"Company") and Xxxxx X. Xxxxxx ("Employee").
RECITALS
A. The Company (under its former name, Lifen, Inc.) and Employee
entered into a certain Employment Agreement dated August 14, 2002 (the
"Employment Agreement").
B. Each of the Company and Employee desire to amend and restate certain
provisions of the Employment Agreement.
In consideration of the foregoing and the promises and covenants
contained herein and other good and valuable consideration the receipt of which
is hereby acknowledged, the parties hereto agree as follows. Any capitalized
terms not otherwise defined herein shall have the meanings given such terms in
the Employment Agreement:
1. Deletion of Defined Terms in Part One. Each of the defined terms
"Option" and "Stock Option Plan" in Part I shall be deleted in its entirety.
2. Amendment and Restatement of Part Two, Section 1. The last sentence
of Part Two, Section 1 of the Employment Agreement is hereby amended and
restated in its entirety to read as follows:
"Employee's principal place of operations will be at the
Company's corporate offices in Dallas, Texas."
3. Amendment and Restatement of Part Two, Section 4(A). Part Two,
Section 4(A) of the Employment Agreement is hereby amended and restated in its
entirety to read as follows:
"A. For service in the 2004 calendar year, Employee's base
salary will be paid at the annual rate of Three Hundred Twenty Thousand
Dollars ($320,000). Thereafter, Employee's annual rate of base salary
may be subject to adjustment each calendar year by the Board."
4. Deletion of Part Two, Section 8(C). Part Two, Section 8(C) of the
Employment Agreement is hereby deleted in its entirety.
5. Deletion of Part Two, Section 9(C). Part Two, Section 9(C) of the
Employment Agreement is hereby deleted in its entirety.
6. Deletion of Part Two, Section 10. Part Two, Section 10 of the
Employment Agreement is hereby deleted in its entirety.
7. Amendment and Restatement of Part Two, Section 12. Part Two, Section
12 of the Employment Agreement and is hereby amended and restated in its
entirety to read as follows:
"12. Non-Solicitation and Non-Disparagement. During any period
for which Employee is receiving compensation payments pursuant to Part
Two, Section 4 and for eighteen (18) months thereafter, Employee will
not directly or indirectly (i) solicit any Company employee,
independent contractor or consultant to leave the Company's employ or
otherwise terminate such person's relationship with the Company for any
reason or interfere in any other manner with the employment or other
relationships at the time existing between the Company and its current
employees, independent contractors or consultants or (ii) solicit any
of the Company's customers for products or services substantially
similar to those offered by the Company. In addition, Employee 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 Employee.
8. Amendment and Restatement of Part Two, Section 13. Each reference in
Part Two, Section 13 of the Employment Agreement to "Section 14" is hereby
amended and restated in its entirety to refer to "Section 13," as applicable.
9. Amendment and Restatement of Part Two, Section 15(A). Part Two,
Section 15(A) of the Employment Agreement is hereby amended and restated in its
entirety to read as follows:
"A. The Company (or any successor entity resulting from a
Change in Control) may terminate Employee's employment under this
Agreement at any time for any reason, with or without cause, by
providing Employee with at least seven (7) days prior written notice.
However, such notice requirement will not apply in the event there is a
Termination for Cause under subsection D below. Employee may terminate
employment with the Company at any time for any reason, with or without
cause, upon at least ninety (90) days prior written notice. During such
period, Employee shall continue to diligently perform all of Employee's
duties hereunder. The Company shall have the option, in its sole
discretion, to make Employee's termination effective at any time prior
to the end of the 90 day notice period as long as the Company pays
Employee all compensation to which Employee is entitled up through the
last day of the 90 day notice period."
10. Amendment and Restatement of Part Two, Section 16. Each reference
in Part Two, Section 16 of the Employment Agreement to "Section 17" is hereby
amended and restated in its entirety to refer to "Section 16," as applicable.
11. Addition of Section 17 to Part Two. Part Two of the Employment
Agreement is hereby amended to add a Section 17 which shall read as follows:
A. Non-Competition. As an inducement for the Company's
entering into this Agreement and in consideration of the Company's
agreement to furnish Employee with certain confidential and proprietary
information regarding the Company pursuant to Part Two, Section 13 of
this Agreement, Employee covenants that commencing on the date hereof
(the "Effective Date") and for a period ending eighteen (18) months
following the termination of Employee's employment with the Company
(the "Term"), the Employee shall not, directly or indirectly, manage,
engage in, operate or conduct, prepare to or plan to conduct or assist
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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;
provided, however, that the term "Business" shall not include the
business of operating a temporary nurse staffing company which is
directly reimbursed by Medicare, Medicaid or any successor federal
program, which such business and its operations shall not be considered
competitive with the Business for the purpose of this Section 17. The
covenants set forth in this Section 17 shall be construed as a series
of separate covenants covering their subject matter in each of the
separate states with 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 17. 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."
12. Addition of Section 18 to Part Two. Part Two of the Employment
Agreement is hereby amended to add a Section 18 which shall read as follows:
"18. Injunctive Relief and Termination.
A. General. Employee acknowledges and agrees that (i) the
covenants and restrictions contained in Part Two, Section 17 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 Employee
breaches any of his obligations under Part Two, Section 17 hereof, and
that monetary damages shall be inadequate to compensate the Company for
any such breach. Employee agrees that in the event of any breach or
threatened breach by Employee of any of the provisions of Part Two,
Section 17 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
Employee, or by any or all of Employee's agents, representatives or
other persons directly or indirectly acting for, on behalf of or with
Employee, 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 18(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 18, is intended to be exclusive of any other
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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."
13. Addition of Section 19 to Part Two. Part Two of the Employment
Agreement is hereby amended to add a Section 19 which shall read as follows:
"19. Reasonableness of Restrictions. EMPLOYEE HAS CAREFULLY
READ AND CONSIDERED THE PROVISIONS OF PART TWO, SECTION 17 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 PART TWO, SECTION 17 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 EMPLOYEE."
14. Amendment and Restatement of Part Three, Section 4. Part Three,
Section 4 of the Employment Agreement is hereby amended and restated in its
entirety to read as follows:
"4. Miscellaneous. The provisions of this Agreement will be
construed and interpreted under the laws of the State of Texas. This
Agreement incorporates the entire Agreement between Employee and the
Company relating to the terms of his employment and the subject of
severance benefits and supersedes all prior agreements and
understandings with respect to such subject matter. This Agreement may
only be amended by written instrument signed by Employee and an
authorized officer of the Company."
15. Amendment and Restatement of Part Three, Section 5. Part Three,
Section 5 of the Employment Agreement is hereby amended and restated in its
entirety to read as follows:
"5. Arbitration. Any controversy which may arise between
Employee and the Company with respect to the construction,
interpretation or application of any of the terms, provisions,
covenants or conditions of this Agreement or any claim arising from or
relating to this Agreement will be submitted to final and binding
arbitration in Dallas, Texas in accordance with the rules of the
American Arbitration Association then in effect. Notwithstanding the
foregoing, either party may, at its option, seek injunctive relief in a
court of competent jurisdiction for any claim or controversy arising
out of or related to the unauthorized use, disclosure, or
misappropriation of the confidential and/or proprietary information of
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the other party or other breach of the nonsolicitation,
nondisparagement, or noncompetition provisions set forth in Part Two,
Sections 12, 13, 14 and 17 above."
16. Effect of Amendment. Except as expressly amended, restated or
consented to in this Amendment, the Employment Agreement shall continue in full
force and effect. In the event of any conflict between the terms of this
Amendment and the Employment Agreement, the terms of this Amendment shall govern
and control.
17. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas.
18. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. Severability. If one or more provisions of this Amendment are held
to be unenforceable under applicable law, such provision shall be excluded from
this Amendment and the balance of the Amendment shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
20. Entire Agreement. This Amendment, together with the Employment
Agreement and the agreements executed pursuant hereto and thereto, constitutes
the full and entire understanding and agreement between the parties with regard
to the subjects hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
COMPANY:
CRDENTIA CORP.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chairman of the Compensation Committee
EMPLOYEE:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
SIGNATURE PAGE TO AMENDMENT TO EMPLOYMENT AGREEMENT
