OSTEOLOGIX, INC. EMPLOYMENT AGREEMENT
This
Employment Agreement (“Agreement”)
is
made and entered into as of September 14, 2007 by and between Osteologix, Inc.,
a Delaware corporation (the “Company”),
and
Xxxxxxx X. Xxxx (the “Employee”).
RECITALS
A. Employee
has been employed by the Company as its Chief Financial Officer beginning
September 1, 2006 under the terms of a Letter Agreement with the Company dated
August 10, 2006 (the “Offer
Letter”);
and
B. The
Company and Employee desire to enter into this Agreement to set forth certain
terms and conditions under which Employee may be eligible to receive severance
payments in the event of his employment termination.
AGREEMENT
In
consideration of the promises made herein, the Company and Employee
(collectively referred to as the “parties”)
hereby
agree as follows:
1. At-Will
Employment.
The
parties reaffirm that Employee’s employment with the Company is “at-will” and
may be terminated at any time with or without cause or notice. Employee
understands and agrees that neither his job performance nor promotions,
commendations, bonuses or the like from the Company give rise to or in any
way
serve as the basis for modification, amendment, or extension, by implication
or
otherwise, of his employment with the Company. However,
as described in this Agreement, Employee may be entitled to severance benefits
depending upon the circumstances of Employee’s termination of employment.
2. Termination.
If
Employee’s employment terminates for any reason, then the Company will pay
Employee all earned or accrued but unpaid paid time off, expense reimbursements,
wages, bonuses, and other benefits due to Employee under applicable law and
any
Company-provided plans, policies, and arrangements as then in effect as of
the
effective
date of Employee’s termination (the
“Termination
Date”).
3 Employment
Terms.
(a)
On or
before August 31, 2007, the final date of Employee’s first full year as an
employee of the Company (the period from September 1 to August 31 of the
following year is referred to as an “Employment
Year”),
the
Company will award Employee a Bonus (as defined in the Offer Letter). This
amount will be paid in accordance with the Company’s normal payroll cycle in
September 2007. On or before August 31 of each subsequent Employment Year,
the
Company will award Employee a Bonus (as defined in the Offer Letter), if earned,
which will be paid in accordance with the Company’s normal payroll cycle in the
month following the determination of the award. In the event that the Company
changes the timing of Bonus award determination for the Employee from an
Employment Year to a different term, the Employee will be awarded a pro-rated
Bonus, if earned, for any transition period(s) that do not coincide with an
Employment Year, and thereafter the Bonus award will determined and paid in
a
similar manner but based on the new bonus period rather than an Employment
Year.
(b)
Beginning the first day of the Employee’s second Employment Year, the Company
will increase the Employee’s base salary from the amount contained in the Offer
Letter to reflect performance during the first Employment Year. Beginning with
the first day of the third and following Employment Years, Employee is eligible
to receive adjustments to his base salary as determined by the Board of
Directors (or a Compensation Committee thereof). In the event that the Company
changes the timing of its salary review cycle, the Employee will be awarded
a
pro-rated adjustment for any transition period(s) that do not coincide with
an
Employment Year and thereafter will be eligible to receive adjustments to his
base salary based on the new term rather than an Employment Year. The Employee
understands that there is no obligation to increase the base salary of the
Employee at any time.
4. Severance
Benefits.
If
Employee’s employment is terminated by the Company without Cause or by Employee
for Good Reason (each as defined below), and
provided
that
Employee remains in full compliance with his material obligations to the Company
under his Offer Letter, this Agreement (including all exhibits attached hereto)
and the Separation Agreement (defined below), the Company agrees to provide
Employee with the following severance benefits:
(a) continuation
of Employee’s regular base salary for a period of six (6) months, reduced by any
and all applicable payroll withholdings and deductions. The period over which
Employee is entitled to receive continuation of regular base salary is referred
to as the “Severance
Period.”
(b) a
lump
sum payment equal to a ratable portion of Employee’s full potential annual bonus
at the percentage contained in the Offer Letter for the portion of the
Employment Year that has elapsed prior to the Termination Date (or the portion
of the transition period or new bonus cycle period that has elapsed if the
Company has changed the timing of Bonus award determination), reduced by any
and
all applicable payroll withholdings and deductions. The Employee will be
provided reasonable time prior to the Termination Date to transition information
and responsibilities to Employee’s successor, and accordingly this payment will
be contingent upon, and will not be paid until the completion of, the reasonable
transition of information and responsibilities to Employee’s successor, as
reasonably determined by the Company;
(c) provided
Employee accurately and timely elects continuation of health insurance coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, or Cal-COBRA (collectively, “COBRA”),
reimbursement for COBRA premiums paid by Employee for Employee and Employee’s
eligible dependents for
a
period of six (6) months;
(d) acceleration
of six (6) months vesting of all outstanding
equity
awards subject to vesting
granted
by the Company to the Employee;
and
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(e) extension
of the exercise term of each outstanding equity award granted by the Company
so
that Employee
may exercise such awards (including
the accelerated shares as provided in Section 4(d) above) to
Employee until the earliest of: (i) three
(3) months after the end of the Severance Period, (ii) the latest date such
each equity award could have expired by its original terms under any
circumstances, or (iii) the tenth (10th)
anniversary of the original date of grant of such equity award. The Employee
understands and acknowledges that to the extent any vested option shares are
incentive stock options such option shares shall be deemed to be nonqualified
stock options effective as of the Termination date if not exercised within
three
months of the Termination Date. The Employee understands that any shares for
which vesting is accelerated in accordance with 4(d) that are incentive stock
options shall be deemed to be nonqualified stock options regardless of when
exercised.
5. Conditions
to Receipt of Severance; No Duty to Mitigate.
(a) Separation
Agreement and Release of Claims.
The
receipt of any severance pursuant to this Agreement will be subject to Employee
signing and not revoking a Separation Agreement and Release of Claims (a
“Separation
Agreement”)
in
substantially the form attached hereto as Exhibit B. No severance pursuant
to
this Agreement will be paid or provided until the Separation Agreement becomes
effective.
(b) No
Duty to Mitigate.
Employee will not be required to mitigate the amount of any payment contemplated
by this Agreement, nor will any earnings that Employee may receive from any
other source reduce any such payment.
6. Confidentiality
Agreement.
Employee will execute and become a party to the Company’s standard form
Confidential Information and Invention Assignment Agreement, in the form
attached to this Agreement as Exhibit
A
(the
“Confidentiality
Agreement”).
7. Tax
Matters.
(a) Responsibility
and Withholding.
The
Employee is responsible for payment of all taxes (including any interest and
penalties) legally imposed upon him in connection with benefits provided under
this Agreement and the Company shall have no liability to the Employee or any
other party with respect to any such tax or amount unless the Company fails
to
withhold appropriate taxes in accordance with federal and state law. All
benefits and payments provided hereunder are subject to applicable tax and
other
withholdings required by law, and, to the extent such payments are to be made
in
cash, they will be made net of such withholding amounts.
(b) Section
409A.
Notwithstanding anything to the contrary in this Agreement, if Employee is
a
“specified employee” within the meaning of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”)
and
the final regulations and any guidance promulgated thereunder (“Section
409A”)
at the
time of Employee’s termination, and the severance payable to Employee, if any,
pursuant to this Agreement, when considered together with any other severance
payments or separation benefits which may be considered deferred compensation
under Section 409A (together, the “Deferred
Compensation Separation Benefits”)
will
not and could not under any circumstances, regardless of when such termination
occurs, be paid in full by March 15 of the year following Employee’s
termination, then only that portion of the Deferred Compensation Separation
Benefits which do not exceed the Section 409A Limit (as defined below) may
be
made within the first six (6) months following Employee’s termination of
employment in accordance with the payment schedule applicable to each payment
or
benefit. For
these
purposes, each severance payment is hereby designated as a separate payment
and
will not collectively be treated as a single payment. Any portion of the
Deferred Compensation Separation Benefits in excess of the Section 409A Limit
shall accrue and, to the extent such portion of the Deferred Compensation
Separation Benefits would otherwise have been payable within the first six
(6)
months following Employee’s termination of employment, will become payable on
the first payroll date that occurs on or after the date six (6) months and
one (1) day following the date of Employee’s termination of employment. All
subsequent Deferred Compensation Separation Benefits, if any, will be payable
in
accordance with the payment schedule applicable to each payment or benefit.
The
Company and the Employee agree to work together in good faith to consider
amendments to this Agreement and to take such reasonable actions which are
necessary, appropriate or desirable to avoid imposition of any additional tax
or
income recognition prior to actual payment to the Employee under Section 409A.
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8. Certain
Definitions.
(a) “Cause”
for
termination shall mean: (i) conviction or plea of nolo contendere in a
court of law of (x) any felony or (y) any misdemeanor involving
dishonesty, breach of trust, misappropriation or illegal narcotics,
(ii) commission of any act involving theft, embezzlement, fraud, dishonesty
or moral turpitude or that otherwise impairs the reputation, goodwill or
business of the Company, (iii) material breach of any of the material
provisions of this Agreement or of any other material agreement between Employee
and the Company or any of its affiliates, (iv) demonstration of gross
negligence, willful misconduct or dereliction of duty in the execution of his
duties under this Agreement or breach of his duty of loyalty to the Company
or
any of its affiliates that is materially injurious to the Company, or
(v) repeated and consistent failure to be present at work or to perform his
duties at a level consistent with his position with the Company or as directed
by the Board, which failure continues for more than thirty (30) days after
notice given to Employee, such notice to set forth in reasonable detail the
nature of such failure.
(b) “Good
Reason”
shall
mean Employee’s voluntary termination, upon thirty (30) days prior written
notice to the Company, within ninety (90) days following the occurrence of
one
of the following events without Employee’s consent:
(i)
breach hereof by the Company of its obligations under this Agreement not
remedied within thirty (30) days’ written notice by Employee to the Company;
(ii) a material diminution in the Employee’s authority or title within the
Company as in effect immediately prior to such reduction,
(iii) any
reduction by the Company in Employee’s compensation or benefits other than a
change in benefits (such as a change in health insurance provider) that is
made
to all employees, (iv) a
material change in the geographic location at which Employee must perform
services (in other words, the relocation of Employee or functions performed
by
Employee to a facility that is more than thirty-five (35) miles from the current
location where the Employee performs services), (v) a change in control of
the
Company, (v) a request by the Board or another senior officer of the Company
for
the employee to perform any illegal act, to certify false financial statements
or make false claims in a filing with the SEC, or perform an act that impairs
the reputation or goodwill of the Employee, (vi) a material breach of any
of the material provisions of this Agreement or of any other material agreement
between Employee and the Company or any of its affiliates
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(c) “Section
409A Limit”
shall
mean the lesser of two (2) times: (i) Employee’s
annualized compensation based upon the annual rate of pay paid to Employee
during the Company’s taxable year preceding the Company’s taxable year of
Employee’s termination of employment as determined under the relevant
paragraph(s) of Treasury Regulation 1.409A and any Internal Revenue Service
guidance issued with respect thereto; or (ii) the annual compensation limit
pursuant to Section 401(a)(17) of the Code for the year in which Employee’s
employment is terminated.
9. Time
and Efforts. The
Employee shall devote substantially all of his full business time and his best
efforts, business judgment, skill and knowledge to the interests of the Company;
however, the Employee shall be entitled to serve as a strategic advisor or
on
the board of directors of one other company, provided that it is not in the
business of developing drugs for osteoporosis, osteonecrosis or arthritis and
such service does not interfere with Employee’s duties to the
Company.
10. Non-Confidentiality
of Agreement.
The
Parties acknowledge that this Agreement shall be filed as an exhibit to the
Company’s Form 8-K to be filed with the Securities and Exchange Commission.
11. Entire
Agreement; Severability; No Oral Modification.
This
Agreement, together with the Offer Letter, any agreements representing any
outstanding equity awards from the Company, the Indemnification Agreement and
the Confidentiality Agreement, represent the entire agreement and understanding
between the Company and Employee and supersede and replace any and all prior
agreements and understandings concerning Employee’s relationship with the
Company and his compensation by the Company. In the event that any provision
in
this Agreement becomes or is declared by a court of competent jurisdiction
to be
illegal, unenforceable or void, this Agreement shall continue in full force
and
effect without said provision. This Agreement may only be amended in writing
signed by Employee and the Company.
12. Arbitration. Any dispute
or claim arising out of or in connection with this Agreement shall be finally
settled by binding arbitration in San Francisco County, California in accordance
with the rules of the American Arbitration Association pursuant to its National
Rules for the Resolution of Employment Disputes. The arbitrator shall apply
California law, without reference to rules of conflicts of law or rules of
statutory arbitration, to the resolution of any dispute. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply to any court
of
competent jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this
arbitration provision. This Section 10 shall not apply to the Confidentiality
Agreement or the Indemnification Agreement.
13. Governing
Law.
This
Agreement shall be governed by the laws of the State of California, without
regard to its conflicts of law provisions.
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14. Assignment.
This
Agreement will be binding upon and inure to the benefit of the Employee, the
Company and any successor of the Company. Any such successor of the Company
will
be deemed substituted for the Company under the terms of this Agreement for
all
purposes. For this purpose, “successor” means any person, firm, corporation or
other business entity which at any time, whether by purchase, merger or
otherwise, directly or indirectly acquires all or substantially all of the
assets or business of the Company.
15. Counterparts.
This
Agreement may be executed in counterparts, and each counterpart shall have
the
same force and effect as an original and shall constitute an effective, binding
agreement on the part of each of the undersigned.
16. Voluntary
Execution of Agreement.
Employee acknowledges that he has had the opportunity to discuss this matter
with and obtain advice from his private attorney, has had sufficient time to,
and has carefully read and fully understands all the provisions of this
Agreement, and is knowingly and voluntarily entering into this
Agreement.
IN
WITNESS WHEREOF, the Parties have executed this Employment Agreement on the
respective dates set forth below.
| OSTEOLOGIX, INC. | |||
| Dated as of __________, 2007 | By: | ||
|
|
|||
| Title: | |||
|
|
|||
| XXXXXXX X. XXXX, an individual | |||
| Dated as of __________, 2007 |
|
||
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EXHIBIT
A
CONFIDENTIALITY
AGREEMENT
CONFIDENTIAL
INFORMATION AND
INVENTION
ASSIGNMENT AGREEMENT
As
a
condition of my becoming employed (or my employment being continued) by
Osteologix, Inc., a
Delaware corporation (the
“Company”),
and
in consideration of my employment relationship with the Company and my receipt
of the compensation now and hereafter paid to me by the Company, I agree to
the
following:
1. Employment
Relationship.
I
understand and acknowledge that this Agreement does not alter, amend or expand
upon (i) any rights I may have to continue in the employ of, or (ii) the
duration of my employment relationship with, the Company under any existing
agreements between the Company and me, including but not limited to my
Employment Agreement with the Company dated September 14, 2007, or under
applicable law. Any employment relationship between the Company and me, whether
commenced prior to or upon the date of this Agreement, shall be referred to
herein as the “Relationship.”
2. Duties.
I will
perform for the Company such duties as may be designated by the Company from
time to time. During the Relationship, I will devote my best efforts to the
interests of the Company and will not engage in other employment or in any
activities detrimental to the best interests of the Company without the prior
written consent of the Company.
3. At-Will
Relationship.
I
understand and acknowledge that the Relationship is and shall continue to be
at-will, as defined under applicable law, meaning that either I or the Company
may terminate the Relationship at any time for any reason or no reason, without
further obligation or liability, except as provided in my Employment Agreement
with the Company dated September 14, 2007.
4. Confidential
Information.
(a) Company
Information.
I agree
at all times during the Relationship and thereafter, to hold in strictest
confidence, and not to use, except for the benefit of the Company to the extent
necessary to perform my obligations to the Company under the Relationship,
or to
disclose to any person, firm, corporation or other entity without written
authorization of the President, Chief Executive Officer, Board of Directors
or
other person(s) performing any similar function, of the Company, any
Confidential Information of the Company which I obtain or create. I further
agree not to make copies of such Confidential Information except as authorized
by the Company or necessary to perform job responsibilities. I understand that
“Confidential
Information”
means
any Company proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
suppliers, customer lists and customers (including, but not limited to,
customers of the Company on whom I called or with whom I became acquainted
during the Relationship), prices and costs, markets, software, developments,
inventions, laboratory notebooks, processes, formulas, technology, designs,
drawings, engineering, hardware configuration information, marketing, licenses,
finances, budgets or other business information disclosed to me by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment or created by me during the Relationship, whether or
not
during working hours. I understand that Confidential Information includes,
but
is not limited to, information pertaining to any aspect of the Company’s
business which is either information not known by actual or potential
competitors of the Company or other third parties not under confidentiality
obligations to the Company, or is otherwise proprietary information of the
Company or its customers or suppliers, whether of a technical nature or
otherwise. I further understand that Confidential Information does not include
any of the foregoing items which has become publicly and widely known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) Prior
Obligations.
I
represent that my performance of all terms of this Agreement as an employee
of
the Company has not breached and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by me prior
or
subsequent to the commencement of the Relationship, and I will not disclose
to
the Company or use any inventions, confidential or non-public proprietary
information or material belonging to any current or former client or employer
or
any other party. I will not induce the Company to use any inventions,
confidential or non-public proprietary information, or material belonging to
any
current or former client or employer or any other party.
(c) Third
Party Information.
I
recognize that the Company has received and in the future will receive
confidential or proprietary information from third parties subject to a duty
on
the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. I agree to hold all such confidential
or proprietary information in the strictest confidence and not to disclose
it to
any person, firm or corporation or to use it except as necessary in carrying
out
my work for the Company consistent with the Company’s agreement with such third
party.
5. Inventions.
(a) Inventions
Retained and Licensed.
I have
attached hereto, as Exhibit
A,
a list
describing with particularity all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to
the
commencement of the Relationship (collectively referred to as “Prior
Inventions”),
which
belong solely to me or belong to me jointly with another, which relate in any
way to any of the Company’s proposed businesses, products or research and
development, and which are not assigned to the Company hereunder; or, if no
such
list is attached, I represent that there are no such Prior Inventions. If,
in
the course of the Relationship, I incorporate into a Company product, process
or
machine a Prior Invention owned by me or in which I have an interest, the
Company is hereby granted and shall have a non-exclusive, royalty-free,
irrevocable, perpetual, worldwide license (with the right to sublicense) to
make, have made, copy, modify, make derivative works of, use, sell and otherwise
distribute such Prior Invention as part of or in connection with such product,
process or machine.
(b) Assignment
of Inventions.
I agree
that I will promptly make full written disclosure to the Company, will hold
in
trust for the sole right and benefit of the Company, and hereby assign to the
Company, or its designee, all my right, title and interest throughout the world
in and to any and all inventions, original works of authorship, developments,
concepts, know-how, improvements or trade secrets, whether or not patentable
or
registrable under copyright or similar laws, which I may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, during the Relationship (collectively referred to as
“Inventions”),
except as provided in Section 5(e) below. I further acknowledge that all
Inventions which are made by me (solely or jointly with others) within the
scope
of and during the Relationship are “works
made for hire”
(to
the
greatest extent permitted by applicable law) and are compensated by my salary,
unless regulated otherwise by the mandatory law of the state of
California.
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(c) Maintenance
of Records.
I agree
to keep and maintain adequate and current written records of all Inventions
made
by me (solely or jointly with others) during the Relationship. The records
may
be in the form of notes, sketches, drawings, flow charts, electronic data or
recordings, laboratory notebooks, and any other format. The records will be
available to and remain the sole property of the Company at all times. I agree
not to remove such records from the Company’s place of business except as
expressly permitted by Company policy which may, from time to time, be revised
at the sole election of the Company for the purpose of furthering the Company’s
business. I agree to return all such records (including any copies thereof)
to
the Company at the time of termination of the Relationship as provided for
in
Section 6.
(d) Patent
and Copyright Rights.
I agree
to assist the Company, or its designee, at its expense, in every proper way
to
secure the Company’s, or its designee’s, rights
in
the Inventions and any copyrights, patents, trademarks, mask work rights, moral
rights, or other intellectual property rights relating thereto in any and all
countries, including the disclosure to the Company or its designee of all
pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments, recordations, and all other
instruments which the Company or its designee shall deem necessary in order
to
apply for, obtain, maintain and transfer such rights, or if not transferable,
waive such rights, and in order to assign and convey to the Company or its
designee, and any successors, assigns and nominees the sole and exclusive
rights, title and interest in and to such Inventions, and any copyrights,
patents, mask work rights or other intellectual property rights relating
thereto. I further agree that my obligation to execute or cause to be executed,
when it is in my power to do so, any such instrument or papers shall continue
after the termination of this Agreement until the expiration of the last such
intellectual property right to expire in any country of the world. If the
Company or its designee is unable because of my mental or physical incapacity
or
unavailability or for any other reason to secure my signature to apply for
or to
pursue any application for any United States or foreign patents, copyright,
mask
works or other registrations covering Inventions or original works of authorship
assigned to the Company or its designee as above, then I hereby irrevocably
designate and appoint the Company and
its
duly authorized officers and agents as my agent and attorney in fact, to act
for
and in my behalf and stead to execute and file any such applications and to
do
all other lawfully permitted acts to further the application for, prosecution,
issuance, maintenance or transfer of letters patent, copyright or other
registrations thereon with the same legal force and effect as if originally
executed by me. I hereby waive and irrevocably quitclaim to the Company or
its
designee any and all claims, of any nature whatsoever, which I now or hereafter
have for infringement of any and all proprietary rights assigned to the Company
or such designee.
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(e) Exception
to Assignments.
I
understand that the provisions of this Agreement requiring assignment of
Inventions to the Company do
not
apply to any invention which qualifies fully under the provisions of California
Labor Code Section 2870 (attached hereto as Exhibit B).
I will
advise the Company promptly in writing of any inventions that I believe meet
such provisions and are not otherwise disclosed on Exhibit A.
6. Company
Property; Returning Company Documents.
I
acknowledge and agree that I have no expectation of privacy with respect to
the
Company’s telecommunications, networking or information processing systems
(including, without limitation, stored company files, e-mail messages and voice
messages) and that my activity and any files or messages on or using any of
those systems may be monitored at any time without notice. I further agree
that
any property situated on the Company’s premises and owned by the Company,
including disks and other storage media, filing cabinets or other work areas,
is
subject to inspection by Company personnel at any time with or without notice.
I
agree that, at the time of termination of the Relationship, I will deliver
to
the Company (and will not keep in my possession, recreate or deliver to anyone
else) any and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, laboratory
notebooks, materials, flow charts, equipment, other documents or property,
or
reproductions of any of the aforementioned items developed by me pursuant to
the
Relationship or otherwise belonging to the Company, its successors or assigns.
In the event of the termination of the Relationship, I agree to sign and deliver
the “Termination
Certification”
attached hereto as Exhibit C;
however, my failure to sign and deliver the Termination Certificate shall in
no
way diminish my continuing obligations under this Agreement.
7. Notification
to Other Parties.
(a) Employees.
In
the
event that I leave the employ of the Company, I hereby consent to notification
by the Company to my new employer about my rights and obligations under this
Agreement.
(b) Consultants.
I hereby
grant consent to notification by the Company to any other parties besides the
Company with whom I maintain a consulting relationship, including parties with
whom such relationship commences after the effective date of this Agreement,
about my rights and obligations under this Agreement.
8. Solicitation
of Employees, Consultants and Other Parties.
I agree
that during the Relationship and for a period of twenty-four (24) months
immediately following the termination of the Relationship for any reason,
whether with or without cause, I shall not either directly or indirectly
solicit, induce, recruit or encourage any of the Company’s employees or
consultants to terminate their relationship with the Company, or attempt to
solicit, induce, recruit, encourage or take away employees or consultants of
the
Company, either for myself or for any other person or entity. Further, during
the Relationship and at any time following termination of the Relationship
for
any reason, with or without cause, I shall not use any Confidential Information
of the Company to attempt to negatively influence any of the Company’s clients
or customers from purchasing Company products or services or to solicit or
influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of products and/or
services to any person, firm, corporation, institution or other entity in
competition with the business of the Company.
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9. Representations
and Covenants.
(a) Facilitation
of Agreement.
I
agree
to execute promptly any proper oath or verify any proper document required
to
carry out the terms of this Agreement upon the Company’s written request to do
so.
(b) Conflicts.
I
represent that my performance of all the terms of this Agreement does not and
will not breach any agreement I have entered into, or will enter into with
any
third party, including without limitation any agreement to keep in confidence
proprietary information acquired by me in confidence or in trust prior to
commencement of my Relationship with the Company. I agree not to enter into
any
written or oral agreement that conflicts with the provisions of this
Agreement.
(c) Voluntary
Execution.
I
certify
and acknowledge that I have carefully read all of the provisions of this
Agreement and that I understand and will fully and faithfully comply with such
provisions.
10. General
Provisions.
(a) Governing
Law.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of California, without giving effect to
the
principles of conflict of laws.
(b) Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the Company
and me relating to the subject matter herein and merges all prior discussions
between us. No modification or amendment to this Agreement, nor any waiver
of
any rights under this Agreement, will be effective unless in writing signed
by
both parties. Any subsequent change or changes in my duties, obligations, rights
or compensation will not affect the validity or scope of this
Agreement.
(c) Severability.
If one
or more of the provisions in this Agreement are deemed void by law, then the
remaining provisions will continue in full force and effect.
(d) Successors
and Assigns.
This
Agreement will be binding upon my heirs, executors, administrators and other
legal representatives, and my successors and assigns, and will be for the
benefit of the Company, its successors, and its assigns.
(e) Survival.
The
provisions of this Agreement shall survive the termination of the Relationship
and the assignment of this Agreement by the Company to any successor in interest
or other assignee.
(f) Remedies.
I
acknowledge and agree that violation of this Agreement by me may cause the
Company irreparable harm, and therefore agree that the Company will be entitled
to seek extraordinary relief in court, including but not limited to temporary
restraining orders, preliminary injunctions and permanent injunctions without
the necessity of posting a bond or other security and in addition to and without
prejudice to any other rights or remedies that the Company may have for a breach
of this Agreement.
-6-
(g) ADVICE
OF COUNSEL.
I
ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY TO
SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD
ALL
OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE
CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION
HEREOF.
[Signature
Page Follows]
-7-
The
parties have executed this Agreement on the respective dates set forth
below:
| COMPANY: | EMPLOYEE: | ||
| OSTEOLOGIX, INC. | ____________________, an Individual: | ||
| By: | |||
|
|
Signature |
||
| Name: | |||
|
|
|||
| Title: | |||
|
|
|||
| Date: | Date: | ||
|
Address:
|
Address:
|
||
-8-
EXHIBIT
A
LIST
OF PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
EXCLUDED
UNDER SECTION 5
|
Title
|
Date
|
Identifying
Number
or
Brief Description
|
||
| ___ No inventions or improvements | |||
| ___ Additional Sheets Attached | |||
| Signature of Employee/Consultant:________________________ | |||
| Print Name of Employee/Consultant:_______________________ | |||
| Date:_______________________________________________ | |||
EXHIBIT
B
Section
2870 of the California Labor Code is as follows:
(a) 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.
(b) To
the
extent a provision in an employment agreement purports to require an employee
to
assign an invention otherwise excluded from being required to be assigned under
subdivision (a), the provision is against the public policy of this state and
is
unenforceable.
EXHIBIT
C
TERMINATION
CERTIFICATION
This
is
to certify that I do not have in my possession, nor have I failed to return,
any
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, laboratory notebooks, flow
charts, materials, equipment, other documents or property, or copies or
reproductions of any aforementioned items belonging to Osteologix, Inc., its
subsidiaries, affiliates, successors or assigns (together the “Company”).
I
further
certify that I have complied with all the terms of the Company’s Confidential
Information and Invention Assignment Agreement signed by me, including the
reporting of any inventions and original works of authorship (as defined
therein), conceived or made by me (solely or jointly with others) covered by
that agreement.
I
further
agree that, in compliance with the Confidential Information and Invention
Assignment Agreement, I will preserve as confidential all trade secrets,
confidential knowledge, data or other proprietary information relating to
products, processes, know-how, designs, formulas, developmental or experimental
work, computer programs, data bases, other original works of authorship,
customer lists, business plans, financial information or other subject matter
pertaining to any business of the Company or any of its employees, clients,
consultants or licensees.
I
further
agree that for twenty-four (24) months from the date of this Certificate, I
shall not either directly or indirectly solicit, induce, recruit or encourage
any of the Company’s employees or consultants to terminate their relationship
with the Company, or attempt to solicit, induce, recruit, encourage or take
away
employees or consultants of the Company, either for myself or for any other
person or entity. Further, I shall not at any time use any Confidential
Information of the Company to negatively influence any of the Company’s clients
or customers from purchasing Company products or services or to solicit or
influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of products and/or
services to any person, firm, corporation, institution or other entity in
competition with the business of the Company.
| Date:_____________________________________ | |||
|
(Employee’s Signature) |
|||
|
(Type/Print Employee’s Name) |
|||
EXHIBIT
B
SEPARATION
AGREEMENT
EXHIBIT
B
SEPARATION
AND GENERAL RELEASE AGREEMENT
In
consideration of the severance benefits offered to me by Osteologix, Inc.,
a
Delaware corporation (the “Company”)
in
full satisfaction of the Company’s obligations to me under the terms of the
Employment Agreement dated September 14, 2007 between myself and the Company
(the “Employment
Agreement”),
and
in connection with the termination of my employment, I agree to the following
release (this “Release”).
Capitalized terms not separately defined in this Release are the same as those
contained in the Employment Agreement.
1. Release
of Claims from Employee to the Company.
On
behalf of myself, my heirs, executors, administrators, successors, and assigns,
I hereby fully and forever release and discharge the Company, its current,
former and future parents, subsidiaries, affiliated companies, related entities,
employee benefit plans, and their fiduciaries, predecessors, successors,
officers, directors, shareholders, agents, employees and assigns (collectively,
the “Releasees”)
from
any and all claims, causes of action, and liabilities (including attorneys’ fees
and expenses) up through the date of my execution of this Release. The claims
subject to this Release include, but are not limited to:
(a) any
and
all claims relating to or arising from my employment relationship with the
Company and/or the termination of that relationship;
(b) any
and
all claims relating to, or arising from, any right to purchase, or actual
purchase of shares of stock of the Company;
(c) any
and
all claims for wrongful discharge of employment; breach of con-tract, express
or
implied; breach of the implied covenant of good faith and fair dealing;
negligent or intentional infliction of emotional distress; negligent or
intentional misrepresentation; negligent or intentional interference with
contract or prospective economic advantage; negligence; and
defamation;
(d) any
and
all claims for violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans
with Disabilities Act of 1990, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, The Worker Adjustment and Retraining
Notification Act, Older Workers Benefit Protection Act; the California Fair
Employment and Housing Act, and Labor Code section 201, et
seq.
and
section 970, et
seq.;
and
(e) any
and
all claims arising out of any other laws and regulations relating to employment
or employment discrimination.
I
agree
that this Release set forth above shall be and remain in effect in all respects
as a complete general release as to the matters released. Notwithstanding the
foregoing, I understand that nothing in this Release shall prohibit me from
exercising legal rights that are, as a matter of law, not subject to waiver
such
as: (a) my rights under applicable workers’ compensation laws; (b) my right, if
any, to seek unemployment benefits; and (c) my right to file a charge with
a
government agency such as but not limited to the Equal Opportunity Commission
(EEOC), the National Labor Relations Board, the Department of Labor, the
California Department of Fair Employment and Housing, or other applicable state
agency. To the fullest extent permitted by law, any dispute regarding the scope
of this general release shall be resolved through binding arbitration pursuant
to Section 5 below.
1A. Release
of Claims from the Company to Employee.
For
good and valuable consideration, including the Release of Claims from the
Employee to the Company set forth in paragraph 1 above, the Releasees hereby
generally release Employee and his heirs, executors, successors and assigns
from
any and all claims, causes of action, and liabilities (including attorneys’ fees
and expenses) up through the date of the execution of this Release, including
all claims relating to Employee’s employment with the Company and events that
may have occurred during the course of the Employee’s employment with the
Company. Notwithstanding the foregoing, this paragraph shall not include a
release or waiver of any claim arising from or relating to any criminal or
fraudulent conduct by the Employee during the course of Employee’s
employment.
2. Acknowledgment
of Waiver of Claims under ADEA.
I
further acknowledge that I am waiving and releasing any rights I may have under
the Age Discrimination in Employment Act of 1967 (“ADEA”)
as
amended, including but not limited by the Older Workers’ Benefit Protection Act
(“OWBPA”),
with
the exception of any claim that I may have as to the validity of this Release
under the ADEA as amended by the OWBPA, and that this waiver and release is
knowing and voluntary. This waiver and release does not apply to any rights
or
claims that may arise under ADEA, as amended by the OWBPA, after the date of
execution of this Release. I acknowledge that the consideration given for this
Release is in addition to anything of value to which I was already entitled.
I
further acknowledge that I have been advised by this writing that (a) I
should consult with an attorney prior
to
executing this Release; (b) I have at least twenty-one (21) days within
which to consider this Release; and (c) I have seven (7) days following the
execution of this Release to revoke it (the “Revocation
Period”).
I
understand communication of any such revocation shall be provided in writing
to
the Company and mailed by certified or registered mail with return receipt
requested and shall be addressed to the Company at its principal corporate
offices to the attention of its President. This Release shall not be effective
until the Revocation Period has expired. Nothing in this Release prevents or
precludes me from challenging or seeking a determination in good faith of the
validity of this waiver under the ADEA, nor does it impose any condition
precedent, penalties or costs for doing so, unless specifically authorized
by
federal law.
3. Civil
Code Section 1542.
I
further represent that I am not aware of any claim other than the claims that
are released by this Release, and I further waive any rights under Section
1542
of the Civil Code of the State of California or any similar state statute.
I
acknowledge that I am familiar with the provisions of California Civil Code
Section 1542, which provides as follows: “A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which, if known to him or her, must have materially affected his or her
settlement with the debtor.”
4. Covenants.
(a) Resignation
from Positions.
I agree
to resign from all positions I hold with the Company effective as of the date
of
termination of my employment with the Company (the “Termination
Date”).
(b) Return
of Property; Nondisclosure of Confidential Information.
As part
of my existing and continuing obligations to the Company, I have returned to
the
Company all Company documents (and all copies thereof) and other Company
property that I have had in my possession at any time, including but not limited
to Company files, notes, drawings, records, business plans and forecasts,
financial information, specification, computer-recorded information, tangible
property (including, but not limited to, computers, laptops, pagers, etc.),
credit cards, entry cards, identification badges and keys; and any materials
of
any kind which contain or embody any proprietary or confidential information
of
the Company (and all reproductions thereof).
(c) No
Admission of Liability; Non-Disparagement.
I
understand and agree that this Release shall not be construed at any time as
an
admission of liability or wrongdoing by either the Company or myself. I agree
that I will not make any negative or disparaging statements or comments, either
as fact or as opinion, about the Company, its employees, officers, directors,
products or services, business, technologies, market position or performance.
The Company likewise agrees that none of its employees, officers or directors
will make any negative or disparaging statements or comments, either as fact
or
as opinion, about me, including my performance as an officer, director and/or
employee of the Company. Nothing in this paragraph shall prohibit me or the
Company from providing truthful information in response to a subpoena or other
legal process.
(d) No
Cooperation on Litigation.
I agree
that I will not counsel or assist any attorneys or their clients in the
presentation or prosecution of any disputes, differences, grievances, claims,
charges, or complaints by any third party against the Company and/or any
officer, director, employee, agent, representative, stockholder or attorney
of
the Company acting in capacity for the Company, unless under a subpoena or
other
court order to do so.
(e) Continued
Availability.
If
requested by the Company, following the Termination Date and the transition
of
my responsibilities to a successor, the Company and I will enter into a
consulting agreement covering a period of six
(6)
months
from the Termination Date. In the consulting agreement I will agree to make
myself reasonably available, as reasonably requested by the Company, to assist
with transition matters, the Company’s public filings, or other matters relating
to projects or events occurring while I was employed by the Company and with
which I was directly involved. The consulting agreement will not contain
provisions that could reasonably be expected to interfere with my employment
at
another company, provided such employment is on terms that are customary for
similar positions.
(f) Compliance
with Xxxxxxx Xxxxxxx Policy.
I
acknowledge that I may have continuing compliance obligations following the
Termination Date under the Company’s xxxxxxx xxxxxxx policy.
5. Arbitration.
Any
controversy or any claim arising out of or relating to the interpretation,
enforceability or breach of this Release shall be settled by binding arbitration
to be conducted in San Francisco County, California, in accordance with the
Employment Arbitration Rules and Mediation Procedures of the American
Arbitration Association; provided, however, that the arbitrator shall allow
the
discovery authorized by California Code of Civil Procedure section 1283.05
or
any other discovery required by law in arbitration proceedings. To the extent
that any of the Employment Arbitration Rules and Mediation Procedures or
anything in this Agreement conflicts with any arbitration procedures required
by
applicable law, the arbitration procedures required by applicable law shall
govern. The arbitrator will apply California law, without reference to rules
of
conflicts of law or rules of statutory arbitration, to the resolution of any
dispute. The Company shall pay the costs of the arbitration proceeding, provided
however that the Company and I shall, unless otherwise determined by the
arbitrator, bear my or its own attorneys’ fees and expenses. The arbitration
decision shall be final, conclusive and binding on me and the Company and any
arbitration award or decision may be entered in any court having jurisdiction.
Notwithstanding the foregoing, the Company or I may apply to any court of
competent jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this Section 5, without breach of the arbitration
provision. The Company and I also agree that nothing in this Agreement relieves
either of us from any obligation we may have to exhaust certain administrative
remedies before arbitrating any claims or disputes under this Agreement. the
Company and I further agree that the arbitrator shall not be empowered to add
to, subtract from, or modify, alter or amend the terms of this Release. Any
applicable arbitration rules or policies shall be interpreted in a manner so
as
to ensure their enforceability under applicable state or federal
law.
6. Entire
Agreement.
In
executing this Release, I acknowledge that I have not relied upon any statement
made by the Company, or any of its representatives or employees, with regard
to
this Release unless the representation is specifically included herein.
Furthermore, this Release contains our entire understanding regarding
eligibility for and the payment of severance benefits and supersedes any or
all
prior representation and agreement regarding the subject matter of this Release.
However, this Release does not modify, amend or supersede written Company
agreements that are consistent with enforceable provisions of this Agreement
such as the Employment Agreement, the Indemnification Agreement (as defined
in
the Employment Agreement), the CIIAs and any stock, stock option and/or stock
purchase agreements between the Company and me. Once effective and enforceable,
this agreement can only be changed by another written agreement signed by me
and
an authorized representative of the Company.
7. Severability.
Should
any provision of this Release be determined by an arbitrator or court of
competent jurisdiction to be wholly or partially invalid or unenforceable,
the
legality, validity and enforceability of the remaining parts, terms, or
provisions are intended to remain in full force and effect. Specifically, should
a court, arbitrator, or agency conclude that a particular claim may not be
released as a matter of law, it is the intention of the parties that the general
release and the waiver of unknown claims above shall otherwise remain effective
to release any and all other claims. I acknowledge that I have obtained
sufficient information to intelligently exercise my own judgment regarding
the
terms of this Release before executing this Release.
[SIGNATURE
PAGE FOLLOWS]
EMPLOYEE’S
ACCEPTANCE OF RELEASE
BEFORE
SIGNING MY NAME TO THIS RELEASE, I STATE THE FOLLOWING: I HAVE READ THIS
RELEASE, I UNDERSTAND IT AND I KNOW THAT I AM GIVING UP IMPORTANT RIGHTS. I
HAVE
CONTAINED SUFFICIENT INFORMATION TO INTELLIGENTLY EXERCISE MY OWN JUDGMENT.
I
HAVE BEEN ADVISED THAT I SHOULD CONSULT WITH AN ATTORNEY BEFORE SIGNING IT,
AND
I HAVE SIGNED THIS RELEASE KNOWINGLY AND VOLUNTARILY.
| Date delivered to employee _____________, __________. | |||
| Executed this ______ day of _______________, ________. | |||
|
Employee Signature |
|||
|
Employee Name (Please Print) |
|||
[SIGNATURE
PAGE TO GENERAL RELEASE AGREEMENT]
