Exhibit 10.3
BONUS AND OTHER AGREEMENT
This bonus and other agreement (the "Agreement") is entered into between
Crdentia Corp., a Delaware corporation (the "Company") and Xxxxx X. Xxxxxx
(the "Executive") (together the "Parties") as of December 31, 2003.
The Parties hereby agree as follows:
1. As part of the consideration for entering into this Agreement and
as part of the consideration for receipt of an option to purchase 7,000,000
shares of Company common stock at an exercise price of $0.10 per share under
the terms of a stock option plan and award agreement dated December 31, 2003
the Executive hereby agrees to relinquish the Executive's right to purchase
additional shares of common stock of the Company (the "Purchase Options")
that accrue to the Executive after the date of this Agreement pursuant to
Section 1.3 of the Lifen, Inc. Common Stock Purchase Agreement dated May 15,
2002 (the "Stock Purchase Agreement") in connection with all Acquisitions
(as defined in the Stock Purchase Agreement) that occur either before or
after the date of this Agreement and such future Purchase Options shall be
terminated and of no further force or effect as of the date of this
Agreement. The Executive shall retain all such Purchase Options held by
the Executive as of the date of this Agreement which shall be governed by
the terms of the Stock Purchase Agreement as modified by this Agreement.
For clarity, Executive shall have the right to exercise Purchase Options to
acquire 2,767,278 shares of Company common stock and no more.
2. The Executive shall be entitled to receive bonus payments on
December 31, 2006 in the amount of $540,000 and on January 4, 2007 in the
amount of $540,000. The payment of the bonuses shall not be affected by
the termination for any reason (including death or disability) of the
Executive's employment or service to the Company prior to December 31, 2006
or January 4, 2007.
3. The third sentence of Section 1.3 of the Stock Purchase Agreement
provides as follows:
"Each Investor's right to purchase these additional shares of Common
Stock shall expire one year after the Vesting Expiration Date (the
"Expiration Date")."
As applied to the Executive and not any other Investor (as defined in the
Stock Purchase Agreement), the third sentence of Section 1.3 of the Stock
Purchase Agreement shall be amended and restated as follows:
"The Executive's right to purchase these additional shares of Common
Stock shall expire fifteen years after the Vesting Expiration Date (the
"Expiration Date")."
4. This Agreement constitutes the entire agreement of the Parties with
respect to the subject matter hereof and supersedes in their entirety all
prior undertakings and agreements of the Parties with respect to the
subject matter hereof, and may not be modified except by means of a writing
signed by the Company and the Executive. Nothing in this Agreement is
intended to confer any rights or remedies on any persons other than the
Parties.
5. The Agreement is to be construed in accordance with and governed by
the internal laws of the State of Texas without giving effect to any choice
of law rule that would cause the application of the laws of any jurisdiction
other than the internal laws of the State of Texas to the rights and duties
of the Parties. Should any provision of this Agreement be determined to be
illegal or unenforceable, such provision shall be enforced to the fullest
extent allowed by law and the other provisions shall nevertheless remain
effective and shall remain enforceable.
6. This Agreement is personal to the Executive and shall not be
assignable by the Executive other than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives. This Agreement shall
inure to the benefit of and be binding upon the Company and its successors
and assigns. The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. "Company" means the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid that
assumes and agrees to perform this Agreement by operation of law or
otherwise.
7. The Company may withhold from any amounts payable under this
Agreement such United States federal, state or local or foreign taxes as
shall be required to be withheld pursuant to any applicable law, regulation
or rule.
8. The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder shall not be
deemed to be a waiver of such provision or right or any other provision or
right of this Agreement.
9. The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the
Executive and the Company, the employment of the Executive by the Company
is "at will" and the Executive's employment may be terminated by either the
Executive or the Company at any time.
10. The Parties agree that any suit, action, or proceeding arising out
of or relating to this Agreement shall be brought in the United States
District Court for the Northern District of Texas (or should such court
lack jurisdiction to hear such action, suit or proceeding, in a Texas
state court in the County of Dallas) and that the Parties shall submit to
the jurisdiction of such court. The Parties irrevocably waive, to the
fullest extent permitted by law, any objection the Party may have to the
laying of venue for any such suit, action or proceeding brought in such
court. THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE
TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR PROCEEDING. In addition to
the recovery of costs as provided by applicable law, the prevailing Party
in any such suit, action or proceeding shall be entitled to recover
reasonable attorneys' fees and expenses. If any one or more provisions of
this Section 10 shall for any reason be held invalid or unenforceable, it
is the specific intent of the Parties that such provisions shall be
modified to the minimum extent necessary to make it or its application
valid and enforceable.
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11. This Agreement may be executed in one or more counterparts.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from the Board, the Company has caused these
presents to be executed in its name on its behalf, all as of the day and
year first above written.
CRDENTIA CORP.,
a Delaware corporation
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Director and
Chair of the Compensation Committee
EXECUTIVE
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
[COUNTERPART SIGNATURE PAGE TO BONUS AND OTHER AGREEMENT,
DATED 12/31/2003]
