exv10w11



 







Exhibit 10.11




EMPLOYMENT AGREEMENT




     This Employment Agreement (the “Agreement”) is made as of this 3rd day of April,
2006, by and between Replidyne, Inc., (the “Company”), and Mark Smith (“Employee”)
(collectively, the “Parties”).



     Whereas, the Company wishes to continue to employ Employee and to assure itself of
the continued services of Employee on the terms set forth herein;



     Whereas, Employee wishes to be so employed under the terms set forth herein;




     Whereas, Employee and the Company are parties to that certain Offer Letter dated
January 23, 2006;



     Whereas, the Parties desire to amend and restate the Offer Letter to reflect certain
additional and revised terms of Employee’s employment; and



     Whereas, the Parties intend that this Agreement shall supersede and replace any
similar agreements that presently exist or may have previously existed between the Parties
regarding the terms of Employee’s employment with the Company.



AGREEMENT




     Now, Therefore, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between the Parties hereto as follows:



     1. Employment. The Company will continue to employ Employee and Employee
shall continue to serve the Company in the capacity of Chief Financial Officer (“CFO”).



     2. At-Will Employment. It is understood and agreed by the Company and
Employee that this Agreement does not contain any promise or representation concerning the duration
of Employee’s employment with the Company. Employee specifically acknowledges that his employment
with the Company is at-will and may be altered or terminated by either Employee or the Company at
any time, with or without cause and/or with or without notice. The nature, terms or conditions of
Employee’s employment with the Company cannot be changed by any oral representation, custom, habit
or practice, or any other writing. In addition, that the rate of salary, any bonuses, paid time
off, other compensation, or vesting schedules are stated in units of years or months or weeks does
not alter the at-will nature of the employment, and does not mean and should not be interpreted to
mean that Employee is guaranteed employment to the end of any period of time or for any period of
time. In the event of conflict between this disclaimer and any other statement, oral or written,
present or future, concerning terms and conditions of employment, the at-will relationship
confirmed by this disclaimer shall control. This at-will status cannot be altered except in a
writing signed by Employee and approved by the Board of Directors of the Company (the “Board of
Directors”).



     3. Duties. Employee shall continue to render exclusive, full-time services
to the Company as its CFO. Employee shall report to the Chief Executive Officer (“CEO”).



 









 




Employee
shall perform services under this Agreement primarily at the Colorado office of the Company, and
from time to time at such other locations as is necessary to perform the duties of CFO under this
Agreement. Subject to the terms of this Agreement, Employee’s responsibilities, working conditions
and duties may be changed, added to or eliminated during his employment at the sole discretion of
the Company. During Employee’s employment with the Company he shall devote his best efforts and
his full business time, skill and attention to the performance of his duties on behalf of the
Company.




     4. Policies and Procedures. Employee agrees that he is subject to and will
comply with the policies and procedures of the Company, as such policies and procedures may be
modified, added to or eliminated from time to time at the sole discretion of the Company, except to
the extent any such policy or procedure specifically conflicts with the express terms of this
Agreement. Employee further agrees and acknowledges that any written or oral policies and
procedures of the Company do not constitute contracts between the Company and Employee.



     5. Base Salary. For all services rendered and to be rendered hereunder, the
Company agrees to pay to the Employee, and the Employee agrees to accept a salary of $280,000
per annum (“Base Salary”) which will be paid periodically in accordance with normal Company
payroll practices and shall be subject to such deductions or withholdings as the Company
is required to make pursuant to law, or by further agreement with the Employee. Employee’s salary
shall be subject to annual review and adjustment by the Company.



     6. Stock Options. Employee was previously granted options to purchase
800,000 shares of Company common stock. The vesting schedule and all other terms, conditions and
limitations of the options will be set forth in the Company’s 2001 Long Term Incentive Plan and in
the stock option grant notices and stock option agreements approved by the Board and entered into
by Employee.



     7. Bonus. Employee may be eligible to receive an annual performance bonus
of up to 30% of his Base Salary subject to employment taxes, withholding and deductions (“Bonus”)
based upon Employee’s achievements of certain milestones and performance objectives established by
the Company (“Variable Incentive Bonus Plan”). Except as expressly provided otherwise herein,
Employee must remain employed with the Company throughout the applicable bonus year in order to be
eligible for any Bonus. The Board of Directors, in its sole discretion, shall determine the extent
to which Employee has achieved the performance targets upon which Employee’s Bonus is based, and
the amount of Bonus to be paid to Employee, if any. Bonuses are not earned until they are approved
in writing by the Board of Directors.



     8. Relocation / Temporary Housing. 



          (a) Relocation Expense: Employee will be reimbursed for reasonable moving expenses incurred
upon Employee’s relocation to Colorado, including the cost of transportation of all household
goods, automobiles and members of Employee’s family. Moving services are to include packing and
un-packing services. Reimbursement is subject to the
presentation of receipts and other supporting documentation to assure the deductibility of the
expenses by the Company for federal, state and local income tax purposes. Should any expense
related to the relocation of Employee not be deductible by the Company, the Company will





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“gross-up”
said expense to the employee upon reimbursement to ensure Employee recovers “net” expenses.
Employee will be reimbursed for all expenses related to the sale and closing of the property in
Florida including a commission of up to 5% of the sale of Employee’s home. The company will also
cover the closing costs due upon Employee’s purchase of a home in Colorado. In addition, the
Company will provide Employee 5% of Employee’s base salary to cover miscellaneous moving expenses.




          (b) Temporary Living Expense. The company will provide reasonable and appropriate temporary
housing in Colorado for a period of up to 180 days from the initiation of employment. The Company
also agrees to reimburse Employee for the cost of weekly round trip airfare tickets and all other
reasonable expenses related to travel (i.e. ground transportation, parking, etc.) to Employee’s
home in Florida until Employee permanently relates to Colorado. This agreement also applies to the
reciprocal travel arrangement where Employee’s spouse may travel to Colorado on a weekly basis to
visit Employee rather than vice-versa. In addition, should Employee ‘s home in Florida not sell
after the initial six (6) months of temporary housing is provided, the Company will continue to
provide Employee with temporary living for an additional 180 days on a monthly basis, representing
a maximum of 12 months of temporary living being provided by the Company.




     9. Other Benefits. While employed by the Company as provided herein:



          (a) Employee Benefits. The Employee shall be entitled to all benefits to which other
executive officers of the Company are entitled, on terms comparable thereto, including, without
limitation, participation in pension and profit sharing plans, 401(k) plan, group insurance
policies and plans, medical, health, vision, and disability insurance policies and plans, and the
like, which may be maintained by the Company for the benefit of its executives. The Company
reserves the right to alter and amend the benefits received by Employee from time to time at the
Company’s discretion.




          (b) Expense Reimbursement. The Employee shall receive, against presentation of proper
receipts and vouchers, reimbursement for direct and reasonable out-of-pocket expenses incurred by
him in connection with the performance of his duties hereunder, according to the policies of the
Company.




          (c) Vacation. Employee will be entitled to twenty (20) vacation days, which will accrue in
monthly increments.




     10. Confidential Information, Rights and Duties.



          (a) Proprietary Information. Employee reaffirms and agrees to execute and abide by the
Company’s Proprietary Information and Inventions Agreement (the “Proprietary Information
Agreement”), attached hereto as Exhibit A.




          (b) Exclusive Property. Employee agrees that all Company-related business procured by the
Employee, and all Company-related business opportunities and plans made known to Employee while
employed by the Company, are and shall remain the permanent and exclusive property of the Company.






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          (c) Non-Competition and Non-Solicitation. Employee agrees that for a period of one year
following his last day of employment with the Company, he shall continue to comply with the
non-competition and non-solicitation obligations set forth in the Proprietary Information
Agreement.




     11. Termination. Employee and the Company each acknowledge that either
party has the right to terminate Employee’s employment with the Company at any time for any reason
whatsoever, with or with out cause or advance notice pursuant to the following:



          (a) Termination by Death or Disability. Subject to applicable state or federal law, in the
event that Employee shall die during his employment hereunder or become permanently disabled, as
evidenced by notice to the Company and Employee’s inability to carry out his job responsibilities
for a continuous period of more than six months, Employee’s employment and the Company’s obligation
to make payments hereunder shall terminate on the date of his death, or the date upon which, in the
sole determination of the Board of Directors, Employee has become permanently disabled, except that
provided Employee (or his estate) executes a release in the form attached as Exhibit B (“Release”),
the Company shall pay to Employee (or his estate), the Severance Benefits set forth in Paragraph
11(d). Vesting of all options shall cease on the date of such termination.




          (b) Voluntary Resignation by Employee. In the event that Employee voluntarily terminates his
employment with the Company, the Company’s obligation to make payments hereunder shall cease upon
such termination, except the Company shall pay Employee any salary earned but unpaid prior to
termination, any benefits accrued prior to termination, all accrued but unused vacation, and any
business expenses that were incurred but not reimbursed as of the date of termination. Vesting of
all options shall cease on the date of such termination.




          (c) Termination for Cause. In the event that Employee is terminated by the Company for Cause
(as defined below), the Company’s obligation to make payments hereunder shall cease upon the date
of receipt by Employee of written notice of such termination (the “Termination Date”), except the
Company shall pay Employee any salary earned but unpaid prior to the Termination Date, any benefits
accrued prior to termination, all accrued but unused vacation and any business expenses that were
incurred but not reimbursed as of the date of termination. Vesting of all options shall cease on
the Termination Date.




          (d) Termination by the Company without Cause or for Good Reason. In the event Employee’s
employment is terminated without Cause (as defined herein) or due to death or disability (as
provided in Section 11(a)) or Employee resigns for Good Reason (as defined herein) and upon the
execution of a Release by Employee and written acknowledgment of Employee’s continuing obligations
under the Proprietary Information Agreement, Employee shall be entitled to receive the equivalent
of twelve (12) months of his Base Salary as in effect
immediately prior to the termination date, payable on the same basis and at the same time as
previously paid and subject to employment tax withholdings and deductions, commencing on the first
regularly scheduled pay date following the Effective Date of the Release. Provided that Employee
is eligible for and timely elects continuation of his health insurance pursuant to COBRA, for a
period of twelve (12) months following a termination without Cause, the





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Company shall also
reimburse Employee for the cost of COBRA premiums to be paid in order for Employee to maintain
medical insurance coverage that is substantially equivalent to that which Employee received
immediately prior to the termination provided, however, that the Company’s obligation to pay
Employee’s COBRA premiums will cease immediately in the event Employee becomes eligible for group
health insurance during the twelve (12) month period, and Employee hereby agrees to promptly notify
the Company if he becomes eligible to be covered by group health insurance in such event (the
salary continuation and COBRA reimbursement are collectively referred to as the “Severance
Benefits”).




          (e) Definition of Cause. For purposes of this Agreement, “Cause” means (i) the Employee’s
incompetence or failure or refusal to perform satisfactorily any duties reasonably required of the
Employee by the Company (other than by reason of Disability); (ii) the Employee’s violation of any
law, rule or regulation (other than traffic violations, misdemeanors or similar offenses) or
cease-and-desist order, court order, judgment, regulatory directive or agreement; (iii) the
commission or omission of or engaging in any act or practice which constitutes a material breach of
the Employee’s fiduciary duty to the Company, involves personal dishonesty on the part of the
Employee or demonstrates a willful or continuing disregard for the best interests of the Company;
or (iv) the Employee’s engaging in dishonorable or disruptive behavior, practices or acts which
would be reasonably expected to harm or bring disrepute to the Company, its business or any of its
customers, employees or vendors.




          (f) Definition of Good Reason. For purposes of this Agreement, “Good Reason” means that one
or more of the following is undertaken without Employee’s express written consent: (i) a reduction
in Employee’s Base Salary, bonus (if any) or benefits that would substantially diminish the
aggregate value of Employee’s compensation and benefits without Employee’s consent; or (ii) the
assignment to Employee of duties that are substantially and materially inconsistent with the
position held by Employee prior to the Change in Control and that are not a reasonable advancement
of Employee’s position within the Company.




     12. Change In Control Benefits. 



          (a) Change in Control. Upon a Change in Control, the Company will accelerate vesting of the
options issued to Employee such that the shares under the options will become vested and
exercisable with respect to fifty percent (50%) of the remaining unvested shares under the options
at the time of the Change in Control. All other terms and conditions set forth in the options, the
Plan, and applicable stock option agreements shall remain in full force and effect.




          (b) Change of Control Termination. If within the thirteen (13) months immediately following a
Change in Control or the one (1) month immediately preceding a Change in Control: (i) Employee is
involuntarily terminated by the Company (or its successor
entity) other than for Cause or (ii) Employee voluntarily terminates his employment with the
Company (or its successor entity) for Good Reason (either constituting a “Change of Control
Termination”), and in each case Employee signs a Release and written acknowledgment of Employee’s
continuing obligations under the Proprietary Information Agreement, Employee shall be entitled to
receive the Severance Benefits set forth in Paragraph 11(d). In addition, the





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Company will vest
all of the shares subject to the options and such vesting shall occur upon the occurrence of the
Change of Control in the case of a Change of Control Termination occurring prior to the Change in
Control or upon termination in the case of a Change of Control Termination occurring after the
Change of Control. All other terms and conditions set forth in the options, the Plan, and the
applicable stock option agreements shall remain in full force and effect.




          (c) Definition of Change in Control. For purposes of this Agreement, “Change of Control” of
the Company has the same definition as set forth in the Company’s 2006 Equity Incentive Plan.




     13. Code Section 409A Compliance. Because of the uncertainty of the
application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), to
payments pursuant to this Agreement, including, without limitation, payments pursuant to Sections
11 and 12 hereof, Employee agrees that if any such payments are subject to the provisions of
Section 409A of the Code by reason of this Agreement, or any part thereof, being considered a
“nonqualified deferred compensation plan” pursuant to Section 409A of the Code, then such payments
shall be made in accordance with, and this Agreement automatically shall be amended to comply with,
Section 409A of the Code, including, without limitation, any necessary delay of six (6) months
applicable to payment of deferred compensation to a “specified employee” (as defined in Section
409A(2)(B)(i) of the Code) upon separation from service. In the event that a six month delay is
required, on the first regularly scheduled pay date following the conclusion of the delay period
the Employee shall receive a lump sum payment in an amount equal to six (6) months of Employee’s
Base Salary and thereafter, any remaining Severance Benefits shall be paid on the same basis and at
the same time as previously paid and subject to employment tax withholdings and deductions.



     14. Miscellaneous.



          (a) Taxes. Employee agrees to be responsible for the payment of any taxes due on any and all
compensation, stock option, or benefit provided by the Company pursuant to this Agreement.
Employee agrees to indemnify the Company and hold the Company harmless from any and all claims or
penalties asserted against the Company for any failure to pay taxes due on any compensation, stock
option, or benefit provided by the Company pursuant to this Agreement. Employee expressly
acknowledges that the Company has not made, nor herein makes, any representation about the tax
consequences of any consideration provided by the Company to Employee pursuant to this Agreement.




          (b) Modification/Waiver. This Agreement may not be amended, modified, superseded, canceled,
renewed or expanded, or any terms or covenants hereof waived, except by a writing executed by each
of the parties hereto or, in the case of a waiver, by the party waiving
compliance. Failure of any party at any time or times to require performance of any provision
hereof shall in no manner affect his or its right at a later time to enforce the same. No waiver
by a party of a breach of any term or covenant contained in this Agreement, whether by conduct or
otherwise, in any one or more instances shall be deemed to be or construed as a further or
continuing waiver of agreement contained in the Agreement.





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          (c) Successors and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of any successor or assignee of the business of the Company. This Agreement shall not be
assignable by the Employee.




          (d) Notices. All notices given hereunder shall be given by certified mail, addressed, or
delivered by hand, to the other party at his or its address as set forth herein, or at any other
address hereafter furnished by notice given in like manner. Employee promptly shall notify Company
of any change in Employee’s address. Each notice shall be dated the date of its mailing or
delivery and shall be deemed given, delivered or completed on such date.




          (e) Governing Law; Personal Jurisdiction and Venue. This Agreement and all disputes relating
to this Agreement shall be governed in all respects by the laws of the State of Colorado as such
laws are applied to agreements between Colorado residents entered into and performed entirely in
Colorado. The Parties acknowledge that this Agreement constitutes the minimum contacts to
establish personal jurisdiction in Colorado and agree to Colorado court’s exercise of personal
jurisdiction.




          (f) Entire Agreement. This Agreement together with the Exhibits A and B attached hereto, set
forth the entire agreement and understanding of the parties hereto with regard to the employment of
the Employee by the Company and supersede any and all prior agreements, arrangements and
understandings, written or oral, pertaining to the subject matter hereof. No representation,
promise or inducement relating to the subject matter hereof has been made to a party that is not
embodied in these Agreements, and no party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.




     In Witness Whereof, the parties have each duly executed this Employment Agreement as
of the day and year first above written.



	 	 	 	 	 
	 	 	Replidyne, Inc.
	 
	 	 	 	 
	 
	 	By:	 	/s/ Kenneth J. Collins
	 
	 	 	 
	 
	 	Its:	 	Chief Executive Officer
	 
	 	 	 
	 
	 	 	 	/s/ Mark Smith
	 	 	 
	 	 	Mark Smith







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Exhibit A




MANAGER, EXECUTIVE PERSONNEL OR ASSISTANTS’

PROPRIETARY INFORMATION, INVENTIONS,

NON-COMPETITION, AND NON-SOLICITATION AGREEMENT




     This Manager, Executive Personnel or Assistants’ Proprietary Information, Inventions,
Non-competition, and Non-solicitation Agreement (“Agreement”) is made in consideration for my
employment or continued employment by Replidyne, Inc. or its subsidiaries or affiliates (the
“Company”), and the compensation now and hereafter paid to me. I hereby agree as follows:



          1. Nondisclosure.



1.1 Recognition of Company’s Rights; Nondisclosure. At all times during my employment and
thereafter, I will hold in strictest confidence and will not disclose, use, lecture upon or publish
any of the Company’s Proprietary Information (defined below), except as such disclosure, use or
publication may be required in connection with my work for the Company, or unless an officer of the
Company expressly authorizes such in writing. I will obtain Company’s written approval before
publishing or submitting for publication any material (written, verbal, or otherwise) that relates
to my work at Company and/or incorporates any Proprietary Information. I hereby assign to the
Company any rights I may have or acquire in such Proprietary Information and recognize that all
Proprietary Information shall be the sole property of the Company and its assigns.



1.2 Proprietary Information. The term “Proprietary Information” shall mean any and all
confidential and/or proprietary knowledge, data or information of the Company. By way of
illustration but not limitation, Proprietary Information includes (a) trade secrets, inventions,
mask works, ideas, processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter
collectively referred to as “Inventions”); and (b) information regarding plans for research,
development, new products, marketing and selling, business plans, budgets and unpublished financial
statements, licenses, prices and costs, suppliers and customers; and (c) information regarding the
skills and compensation of other employees of the Company. Notwithstanding the foregoing, it is
understood that, at all such times, I am free to use information which is generally known in the
trade or industry, which is not gained as result of a breach of this Agreement, and my own, skill,
knowledge, know-how and experience to whatever extent and in whichever way I wish.



1.3 Third Party Information. I understand, in addition, that the Company has received and in the
future will receive from third parties confidential or proprietary information (“Third Party
Information”) 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. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and will not disclose
to anyone (other than Company personnel who need to know such information in connection with their
work for the Company) or use, except in connection with my work for the Company, Third Party
Information unless expressly authorized by an officer of the Company in writing.



1.4 No Improper Use of Information of Prior Employers and Others. During my employment by the
Company I will not improperly use or disclose any confidential information or trade secrets, if
any, of any former employer or any other person to whom I have an obligation of confidentiality,
and I will not bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an obligation of
confidentiality unless consented to in writing by that former employer or person. I will use in
the performance of my duties only information which is generally known and used by persons with
training and experience comparable to my own, which is common knowledge in the industry or
otherwise legally in the public domain, or which is otherwise provided or developed by the Company.




          2. Assignment of Inventions.



2.1 Proprietary Rights. The term “Proprietary Rights” shall mean all trade secret,





 









 







patent, copyright, mask work and other intellectual property rights throughout the world.



2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I made prior to the
commencement of my employment with the Company are excluded from the scope of this Agreement. To
preclude any possible uncertainty, I have set forth on Exhibit A (Previous Inventions) attached
hereto a complete list of all Inventions that I have, alone or jointly with others, conceived,
developed or reduced to practice or caused to be conceived, developed or reduced to practice prior
to the commencement of my employment with the Company, that I consider to be my property or the
property of third parties and that I wish to have excluded from the scope of this Agreement
(collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would
cause me to violate any prior confidentiality agreement, I understand that I am not to list such
Prior Inventions in Exhibit A but am only to disclose a cursory name for each such invention, a
listing of the party(ies) to whom it belongs and the fact that full disclosure as to such
inventions has not been made for that reason. A space is provided on Exhibit A for such purpose.
If no such disclosure is attached, I represent that there are no Prior Inventions. If, in the
course of my employment with the Company, I incorporate a Prior Invention into a Company product,
process or machine, the Company is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of
sublicensees) to make, have made, modify, use and sell such Prior Invention. Notwithstanding the
foregoing, I agree that I will not incorporate, or permit to be incorporated, Prior Inventions in
any Company Inventions without the Company’s prior written consent.



2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I hereby assign and agree to
assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice
or first fixed in a tangible medium, as applicable) to the Company all my right, title and interest
in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not
patentable or registrable under copyright or similar statutes, made or conceived or reduced to
practice or learned by me, either alone or jointly with others, during the period of my employment
with the Company. Inventions assigned to the Company, or to a third party as directed by the
Company pursuant to this Section 2, are hereinafter referred to as “Company Inventions.”



2.4 Nonassignable Inventions. I recognize that this Agreement will not be deemed to require
assignment of any invention which was developed entirely on my own time without using the Company’s
equipment, supplies, facilities, or trade secrets and neither related to the Company’s actual or
anticipated business, research or development, nor resulted from work performed by me for the
Company (“Nonassignable Inventions”).



2.5 Obligation to Keep Company Informed. During the period of my employment and for six months
after the last day of my employment with the Company, I will promptly disclose to the Company fully
and in writing all Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all patent applications
filed by me or on my behalf within a year after termination of employment. At the time of each
such disclosure, I will advise the Company in writing of any Inventions that I believe are
Nonassignable Inventions and I will at that time provide to the Company in writing all evidence
necessary to substantiate that belief. The Company will keep in confidence and will not use for
any purpose or disclose to third parties without my consent any confidential information disclosed
in writing to the Company pursuant to this Agreement relating to Inventions that have been
identified as Nonassignable Inventions.



2.6 Government or Third Party. I also agree to assign all my right, title and interest in and to
any particular Invention to a third party, including without limitation the United States, as
directed by the Company.



2.7 Works for Hire. I acknowledge that all original works of authorship which are made by me
(solely or jointly with others) within the scope of my employment and which are protectable by
copyright are “works made for hire,” pursuant to United States Copyright Act (17 U.S.C., Section
101).



2.8 Enforcement of Proprietary Rights. I will assist the Company in every proper way to obtain,
and from time to time enforce, United States and foreign Proprietary Rights relating to Company
Inventions in any and all countries. To that end I will execute, verify and deliver such documents
and perform such other acts (including appearances as a





 









 







witness) as the Company may reasonably
request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such
Proprietary Rights and
the assignment thereof. In addition, I will execute, verify and deliver assignments of such
Proprietary Rights to the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in any and all countries shall
continue beyond the termination of my employment, but the Company shall compensate me at a
reasonable rate after my termination for the time actually spent by me at the Company’s request on
such assistance.



In the
event the Company is unable for any reason, after reasonable effort,
to secure my signature on any document needed in connection with the actions specified in the preceding paragraph, I
hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, which appointment is coupled with an interest, to act for and in my
behalf to execute, verify and file any such documents and to do all other lawfully permitted acts
to further the purposes of the preceding paragraph with the same legal force and effect as if
executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature
whatsoever, which I now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.



3. No Conflicts or Solicitation. I acknowledge that during my employment I will
have access to and knowledge of Proprietary Information. I also acknowledge that during my
employment with the Company, I have held and/or will hold a management or executive position or am,
or will be, an assistant to a manager or executive. To protect the Company’s Proprietary
Information, I agree that during the period of my employment by the Company I will not, without the
Company’s express written consent, engage in any other employment or business activity directly
related to the business in which the Company is now involved or becomes involved, nor will I engage
in any other activities which conflict with my obligations to the Company. To protect the
Company’s Proprietary Information, and because of the position in the Company that I hold, I agree
that during my employment with the Company whether full-time or part-time and for a period of one
year after my last day of employment with the Company, I will not (a) directly or indirectly
solicit or induce any employee of the Company to terminate or negatively alter his or her
relationship with the Company or (b) directly or indirectly solicit the business of any client or
customer of the Company (other than on behalf of the Company) or (c) directly or indirectly induce
any client, customer, supplier, vendor, consultant or independent contractor of the Company to
terminate or negatively alter his, her or its relationship with the Company. I agree that the
geographic scope of the non-solicitation should include the “Restricted Territory” (as defined
below). If any restriction set forth in this Section is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of time or over too great
a range of activities or in too broad a geographic area, it shall be interpreted to extend only
over the maximum period of time, range of activities or geographic area as to which it may be
enforceable.



4. Covenant Not to Compete. I acknowledge that during my employment I will have
access to and knowledge of Proprietary Information. I also acknowledge that during my employment
with the Company, I have held and/or will hold a management or executive position or am, or will
be, an assistant to a manager or executive. To protect the Company’s Proprietary Information, and
because of the position in the Company that I may hold, I agree that during my employment with the
Company whether full-time or part-time and for a period of one year after my last day of employment
with the Company, I will not directly or indirectly personally participate or engage in (whether as
an employee, consultant, proprietor, partner, director or otherwise), or have any ownership
interest in, or participate in the financing, operation, management or control of, any person,
firm, corporation or business that engages in a “Restricted Business” in a “Restricted Territory”
(as defined below). It is agreed that ownership of (i) no more than one percent (1%) of the
outstanding voting stock of a publicly traded corporation, or (ii) any stock I presently own shall
not constitute a violation of this provision.



4.1 Reasonable. I agree and acknowledge that the time limitation on the restrictions in this
paragraph, combined with the geographic scope, is reasonable. I also acknowledge and agree that
this paragraph is reasonably necessary for the protection of Company’s Proprietary Information as
defined in paragraph 1.2 herein, that through my employment I shall receive adequate consideration
for any loss of opportunity associated with the provisions herein, and that these provisions
provide a reasonable way of protecting Company’s business value which will be imparted to me. If
any restriction set forth in this





 









 







paragraph 4 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too great a range of
activities or in too broad a geographic area, it shall be interpreted to extend only over the
maximum period
of time, range of activities or geographic area as to which it may be enforceable.



4.2 As used herein, the terms:




     (i) “Restricted Business” shall mean the design, development, marketing, commercialization or
sales of any anti-infective products, anti-bacterials, or other biopharmaceutical products that
directly compete in the marketplace with any such product then sold by the Company or then in
development by the Company and projected to be sold within one (1) year of my last day of
employment with the Company.



     (ii) “Restricted Territory” shall mean any state, county, or locality in the United States in
which the Company conducts business and any other country, city, state, jurisdiction, or territory
in which the Company does business.


5. Records. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by the Company) of all
Proprietary Information developed by me and all Inventions made by me during the period of my
employment at the Company, which records shall be available to and remain the sole property of the
Company at all times.



6. No Conflicting Obligation. I represent that my performance of all the terms
of this Agreement and as an employee of the Company does not and will not breach any agreement to
keep in confidence information acquired by me in confidence or in trust prior to my employment by
the Company. I have not entered into, and I agree I will not enter into, any agreement either
written or oral in conflict herewith.



7. Return Of Company Materials. When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications, devices, formulas,
and documents, together with all copies thereof, and any other material containing or disclosing
any Company Inventions, Third Party Information or Proprietary Information of the Company. 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.



8. Legal And Equitable Remedies.  Because my services are personal and unique and
because I may have access to and become acquainted with the Proprietary Information of the Company,
the Company shall have the right to enforce this Agreement and any of its provisions by injunction,
specific performance or other equitable relief, without bond and without prejudice to any other
rights and remedies that the Company may have for a breach of this Agreement.



9. Notices. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the party shall
specify in writing. Such notice shall be deemed given upon personal delivery to the appropriate
address or if sent by certified or registered mail, three days after the date of mailing.



10. Notification Of New Employer. In the event that I leave the employ of the
Company, I hereby consent to the notification of my new employer of my rights and obligations under
this Agreement.



11. General Provisions.



11.1 Governing Law; Consent to Personal Jurisdiction and Exclusive Forum. This Agreement will be
governed by and construed according to the laws of the State of Colorado without regard to
conflicts of law principles. I hereby expressly understand and consent that my employment is a
transaction of business in the State of Colorado and constitutes the minimum contacts necessary to
make me subject to the personal jurisdiction of the federal courts located in the State of
Colorado, and the state courts located in the County of Boulder County, Colorado, for any lawsuit
filed against me by Company arising from or related to this Agreement. I agree and acknowledge
that any controversy arising out of or relating to this Agreement or the breach thereof, or any
claim or action to enforce this Agreement or portion thereof, or any controversy or claim requiring
interpretation of this Agreement must be brought in a forum located within the State of Colorado.



11.2 Severability. In case any one or more of the provisions contained in this Agreement shall,
for any reason, be held to be invalid, illegal or





 









 







unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this Agreement, and this
Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
If moreover, any one or more of the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.



11.3 Successors and Assigns. This Agreement will be binding upon my heirs, executors,
administrators and other legal representatives and will be for the benefit of the Company, its
successors, and its assigns.



11.4 Survival. The provisions of this Agreement shall survive the termination of my employment and
the assignment of this Agreement by the Company to any successor in interest or other assignee.



11.5 No Employment Rights. I agree and understand that my employment is at-will which means I or
the company each have the right to terminate my employment at will, with or without advanced notice
and with or without cause. I further agree and understand that nothing in this Agreement shall
confer any right with respect to continuation of employment by the Company, nor shall it interfere
in any way with my right or the Company’s right to terminate my employment at any time, with or
without cause.



11.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any
preceding or succeeding breach. No waiver by the Company of any right under this Agreement shall
be construed as a waiver of any other right. The Company shall not be required to give notice to
enforce strict adherence to all terms of this Agreement.



11.7 Entire Agreement. The obligations pursuant to Sections 1 through 4 and Sections 6 and 7
(including all subparts) of this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant if no other agreement
governs nondisclosure and assignment of inventions during such period. This Agreement is the
final, complete and exclusive agreement of the parties with respect to the subject matter hereof
and supersedes and merges all prior discussions between us. No modification of or amendment to
this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes in my duties,
salary or compensation will not affect the validity or scope of this
Agreement.




     This Agreement shall be effective as of the first day of my employment with the Company,
namely:                     , 2006.



     I have read this Agreement carefully and understand its terms. I have completely filled
out exhibit a to this Agreement.



Dated:                                        




	 	 	 
	 	 	 
	Signature
	 	 
	 
	 	 
	 	 	 
	Printed Name
	 	 
	 
	 	 
	Accepted and agreed to:
	 	 
	 
	 	 
	 	 	 






 









 








EXHIBIT A




	 	 	 	 	 
	TO:

	 	Replidyne, Inc.
	 	 
	 
	 	 	 	 
	FROM:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	DATE:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	SUBJECT:

	 	Previous Inventions	 	 






     1. Except as listed in Section 2 below, the following is a complete list of all inventions or
improvements relevant to the subject matter of my employment by Replidyne, Inc. (the “Company”)
that have been made or conceived or first reduced to practice by me alone or jointly with others
prior to my engagement by the Company:



	 	 	 
	o

	 	No inventions or improvements.
	 
	 	 
	o

	 	See below:
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	o

	 	Additional sheets attached.






     2. Due to a prior confidentiality agreement, I cannot complete the disclosure under Section 1
above with respect to inventions or improvements generally listed below, the proprietary rights and
duty of confidentiality with respect to which I owe to the following party(ies):



	 	 	 	 	 	 	 
	 	 	Invention or Improvement	 	Party(ies)	 	Relationship
	1.
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 
	2.
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 
	3.
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 






	o

	 	Additional sheets attached.






 









 








Exhibit B




RELEASE



In exchange for the consideration provided to me by this Agreement that I am not otherwise entitled
to receive, I hereby generally and completely release the Company and its directors, officers,
employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and
subsidiary entities, insurers, affiliates, and assigns from any and all claims, liabilities and
obligations, both known and unknown, that arise out of or are in any way related to events, acts,
conduct, or omissions related to my employment with the Company or the termination of that
employment, including, but not limited to: (1) all claims related to my compensation or benefits
from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements,
severance pay, fringe benefits, stock, stock options, or any other ownership interests in the
Company; (2) all claims for breach of contract, wrongful termination, and breach of the implied
covenant of good faith and fair dealing; (3) all tort claims, including claims for fraud,
defamation, emotional distress, and discharge in violation of public policy; and (4) all federal,
state, and local statutory claims, including claims for discrimination, harassment, retaliation,
attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended),
the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment
Act of 1967 (as amended) (“ADEA”), and the Colorado state law (as amended). Notwithstanding the
foregoing, nothing contained in this Release is intended to release the Company from any claim
arising out of or with regard to: (i) any payment to be made to me by the Company in connection the
termination of employment as contemplated by the Employment Agreement, or (ii) any statutory
obligation that the Company may have with regard to the continuation of benefits.



[IF APPLICABLE] ADEA Waiver and Release. I acknowledge that I am knowingly and voluntarily waiving
and releasing any rights I may have under the ADEA, as amended. I also acknowledge that the
consideration given for the waiver and release in the preceding paragraph hereof is in addition to
anything of value to which I was already entitled. I further acknowledge that I have been advised
by this writing, as required by the ADEA, that: (a) my waiver and release does not apply to any
rights or claims that may arise after the execution date of this Agreement; (b) I have been advised
that I have the right to consult with an attorney prior to executing this Agreement; (c) I have
been given twenty-one (21) days to consider this Agreement; (d) I have seven (7) days following the
execution of this Agreement by the parties to revoke the Agreement; and (e) this Agreement will not
be effective until the date upon which the revocation period has expired, which will be the eighth
day after this Agreement is executed by you, provided that the Company has also executed this
Agreement by that date (“Effective Date”). The parties acknowledge and agree that revocation by
you of the ADEA Waiver and Release is not effective to revoke your waiver or release of any other
claims pursuant to this Agreement.




	 	 	 	 	 	 	 
	By:

	 	 	 	Date: