Exhibit 10.15


 


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


THIS
EMPLOYMENT AGREEMENT (the “Agreement”), made this 24th day of September, 2010,
is entered into by and among BioHorizons, Inc. (“Parent”), BioHorizons
Implant Systems, Inc., a subsidiary of BioHorizons, Inc. (“Subsidiary”)
(collectively, the “Company”), and R. Steven Boggan (the “Executive”).


 


WHEREAS, Company employs Executive
as its Chief Executive Officer (“CEO”);


 


WHEREAS, Company and Executive
previously entered into an Employment Agreement dated June 23, 2006 (the “Original
Employment Agreement”);


 


WHEREAS, Company and Executive
desire to amend and restate the terms and conditions of Executive’s employment
with Company by executing this Agreement, which, upon execution, shall
supersede the Original Employment Agreement and shall govern Executive’s
employment with the Company;


 


NOW, THEREFORE, in consideration of the
mutual promises, terms, provisions, and conditions contained herein, the
parties agree as follows:


 


1.                                      Term of Employment.


 


1.1                               Executive’s employment with the Company shall
commence on June 23, 2010 (the “Commencement Date”) and shall continue
upon the terms set forth in Section 1.2 and 1.3 of this Agreement.


 


1.2                               Unless either the Executive or the Company
sooner terminates the employment as set forth herein, the term of the Executive’s
employment shall be three years from the Commencement Date (the “Initial Term”).


 


1.3                               The Initial Term shall be automatically
renewed for an additional twelve-month period unless the Company or Executive
delivers to the other, at least 60 days prior to the last day of the Initial
Term (or Agreement Term (as defined herein) as the case may be), written notice
specifying that the Executive’s employment will not be renewed at the end of
the then-applicable term of the Agreement. 
The Initial Term and any such renewal terms are hereinafter called the “Agreement
Term”.


 


2.                                      Title; Capacity.  The Company will employ Executive, and
Executive agrees to work for the Company, as its Chief Executive Officer, to perform
the duties and responsibilities inherent in such position and such other duties
and responsibilities consistent with such position as the Board of Directors of
the Company (the “Board”) shall from time to time assign to him, including but
not limited to, responsibility for all operating and nonoperating functions of
the Company, all of which functions shall report directly or indirectly to
him.  Executive shall report directly to
the Board of Directors of the Parent and shall be subject to the supervision
of, and shall have such authority as is delegated to him by, the Board of
Directors of the Parent, which authority shall be sufficient to perform his
duties hereunder.  Executive shall devote his full 


 


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business time and best
efforts in the performance of the foregoing services, provided that he may
accept other board memberships or participate in charitable and similar
organizations which are not in conflict with his primary responsibilities and
obligations to the Company.


 


3.                                      Member of the Board.  Throughout the Agreement Term, the Company
shall take all reasonable action to cause Executive to be elected to serve as a
director of the Parent.


 


4.                                      Compensation and Benefits.


 


4.1                               Salary.  The
Company shall pay Executive an annual base salary of $350,000, less applicable
payroll withholdings, which shall be payable in accordance with the Company’s
customary payroll practices.  Such base
salary shall not be reduced during the Agreement Term.  The Board of Directors of the Parent or a
committee thereof shall review the Executive’s performance not less often than
annually and shall consider the Executive for appropriate base salary increases
on the same basis as other executives of the Company.


 


4.2                               Incentive Bonus.  Executive
shall be eligible to receive a cash bonus for each year of his employment in
the amount of up to 100% of his annual base salary, less applicable payroll
withholdings, based on achievement of performance objectives approved from time
to time by the Board of Directors of the Parent or a committee thereof.  Such bonus shall be payable at such times as
bonuses are paid to other executives of the Company, but in no event later than
March 15th of the
calendar year immediately following the calendar year in which it was earned.


 


4.3                               Fringe Benefits.  Executive
shall be entitled to participate in all bonus and benefit programs that the
Company establishes and makes available to its executive employees, including
health care plans and life insurance plans. 
To the extent permitted by law and applicable benefit plans, Executive
shall be given credit for time in service with Subsidiary and shall not be
subject to any pre-existing condition limitations or similar limitations.  Executive shall also be entitled to take
fully paid vacation of 20 business days in each calendar year to be taken in
accordance with Company policy and consistent with the needs of the
business.  Executive understands that,
except when prohibited by applicable law, the Company’s benefit plans and
fringe benefits may be amended by the Company from time to time in its sole
discretion.


 


5.                                      Termination of Agreement Term.  The Agreement Term shall terminate upon the
occurrence of any of the following:


 


5.1                               Termination for Cause.  At the
election of the Company, for Cause upon written notice by the Company to
Executive.  For the purposes of this Section 5.1,
“Cause” for termination shall be deemed to exist upon the occurrence of any of
the following:


 


(a)           a good faith finding by the Board of
Directors of Parent or a committee thereof that Executive has engaged in
dishonesty, gross negligence or gross misconduct which, if curable, has not
been cured by Executive within 30 days after he shall have received written
notice from the Company stating with reasonable specificity the nature of such
conduct;


 


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(b)           a good faith finding by the Board
that Executive has engaged in conduct that materially injures the Company,
whether such harm is economic or non-economic, such as injury to the Company’s
business or reputation;


 


(c)           Executive’s conviction or plea of
nolo contendere to any felony or crime involving moral turpitude, fraud or
embezzlement; or


 


(d)           a good faith finding by the Board
that Executive has committed a material breach of this Agreement, including but
not limited to, Sections 7.1 or 7.2, which, if curable, has not been cured by
Executive within 30 days after he shall have received written notice from the
Company stating with reasonable specificity the nature of such breach.


 


5.2                               Voluntary Termination by the Company.  At
the election of the Company, without Cause, at any time upon 30 days’ prior
written notice by the Company to Executive.


 


5.3                               Death or Disability.  As of
the last day of the month following the death or determination of disability of
Executive.  As used in this Agreement,
the determination of “disability” shall occur when Executive, due to a physical
or mental disability, for a period of 90 consecutive days, or 180 days in the
aggregate whether or not consecutive, during any 360-day period, is unable to
perform the services contemplated under this Agreement.  A determination of disability shall be made
by a physician satisfactory to both Executive and the Company, provided  that
if Executive and the Company do not agree on a physician, Executive and the
Company shall each select a physician and these two together shall select a
third physician, whose determination as to disability shall be binding on all
parties.


 


5.4                               Voluntary Termination by Executive.  At
the election of Executive, upon not less than 30 days’ prior written notice by
him to the Company.


 


5.5                               Termination by Executive For Good Reason.  At
the election of Executive, if the Company has materially breached its obligations
to Executive hereunder (including, but not limited to, any material change in
the duties and responsibilities of Executive specified under Section 2
that is not expressly consented to by Executive) and such breach, if curable,
has not been cured by the Company within 30 days after Executive shall have
provided written notice to Company within 90 days of the initial existence of
the condition giving rise to the breach and stating with reasonable specificity
the nature of such breach.


 


6.                                      Effect of Termination.


 


6.1                               Termination for Cause or at the Election of
Executive.  In the event that Executive’s employment is
terminated for Cause pursuant to Section 5.1 or at the election of
Executive pursuant to Section 5.4, the Company shall have no further obligations
under this Agreement other than to pay to Executive the compensation and
benefits, including payment for accrued but untaken vacation days, otherwise
payable to him under Section 4 through the last day of his actual
employment by the Company.


 


6.2                               Termination by the Company Without Cause or by
Executive for Good Reason.  In the event that Executive’s
employment is terminated pursuant to Sections 5.2 or 5.5, (regardless of
whether such termination, as applicable, occurs in the context of a “change in 


 


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control”
of the Company), then: (a) the Company shall continue to pay Executive his
base salary for a period of twelve (12) months commencing on the thirtieth (30th) day following
the termination date; (b) if Executive exercises his right under the
Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”) to continue
participation in the Company’s health insurance plan, the Company shall pay its
normal share of the costs for such coverage for a period of twelve (12) months
to the same extent that such insurance is provided to persons then currently
employed by the Company (Executive’s co-pay, if any, shall be deducted from the
payments described in subsection (a) or, if no such payments remain to be
paid, shall be paid directly to the Company within seven (7) days of
receipt of notice of such payment due); and (c) the Company shall provide
payment for accrued but untaken vacation days and provide benefits as set forth
in Section 4.3 for the duration of such 12-month period. Executive shall
also continue to be eligible for bonuses pursuant to Section 4.2 hereof,
despite Executive’s termination, for such 12-month period; provided, however,
that in the event the Executive is terminated pursuant to Section 5.2 or
terminates employment under Section 5.5, the Executive’s bonus pursuant to
Section 4.2 for the fiscal year in which the Executive is terminated shall
be paid upon termination, and shall be equal to 100% of his target bonus,
prorated by multiplying the target bonus by the number of full or partial weeks
Executive was employed during such fiscal year divided by 52.  No payments shall be made to Executive under
this Section unless Executive first signs a release of claims in a form
satisfactory to the Company (the “Release”), and the Release is effective and
irrevocable prior to the date that is the thirtieth (30th) day following
the termination date, and Executive observes his post-employment obligations as
set forth in Section 7 below.  The
Company shall have no further obligations under this Section except as
specified herein.


 


6.3          Termination for
Death or Disability.  In the event
that Executive’s employment is terminated by death or because of disability
pursuant to Section 5.3, the Company shall pay to Executive’s estate or to
Executive, as the case may be, compensation which would otherwise be payable to
him under Section 4.1 of this Agreement through the end of the month in
which such termination occurs, and payment for any accrued but untaken vacation
days.  Executive or his estate shall also
be eligible to receive any benefits which he or it are entitled to receive
under the various Company fringe benefit plans for the six months following
Executive’s death or disability.


 


6.4          Section 409A Compliance.  The severance benefit provided for in Section 6.2
constitutes an “involuntary separation pay plan” with respect to termination
without Cause or resignation with Good Reason pursuant to Treas. Reg.
§1.409A-1(b)(9)(iii) and thus not “nonqualified deferred compensation” subject
to Section 409A of the U.S. Tax Code (the “Code”).  If such severance benefit is deemed to
provide benefits that constitute “nonqualified deferred compensation” with
respect to a termination without Cause, resignation for Good Reason, or any
other termination of employment, then the following interpretations apply to
this Agreement:  (i) Any termination
of Executive’s employment triggering payment of the severance benefit must
constitute a “separation from service” under Section 409A(a)(2)(A)(i) of
the Code and Treas. Reg. §1.409A-1(h) before distribution of such benefits
can commence.  To the extent that the
termination of Executive’s employment does not constitute a separation of
service under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg.
§1.409A-1(h) (as the result of further services that are reasonably
anticipated to be provided by Executive to the Company at the time his
employment terminates hereunder), any payment hereunder that constitutes
non-qualified 


 


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deferred compensation
subject to Section 409A of the Code shall be delayed until after the date
of a subsequent event constituting a separation of service under Section 409A(a)(2)(A)(i) of
the Code and Treas. Reg. §1.409A-1(h). 
For purposes of clarification, this section shall not cause any
forfeiture of benefits on Executive’s part, but shall only act as a delay until
such time as a “separation from service” occurs; (ii) If Executive is a “specified
employee” (as that term is used in Section 409A of the Code and
regulations and other guidance issued thereunder) on the date his separation
from service becomes effective, any benefits payable hereunder that constitute
non-qualified deferred compensation under Section 409A of the Code shall
be delayed until the earlier of (A) the business day following the
six-month anniversary of the date his separation from service becomes
effective, and (B) the date of his death, but only to the extent necessary
to avoid such penalties under Section 409A of the Code.  On the earlier of (A) the business day
following the six-month anniversary of the date his separation from service
becomes effective, and (B) his death, the Company shall pay Executive in a
lump sum the aggregate value of the non-qualified deferred compensation that
the Company otherwise would have paid him prior to that date pursuant to this
Agreement; (iii) It is intended that the severance benefit and each
separate payment and installment thereof shall be treated as a separate “payment”
for purposes of Section 409A of the Code; and (iv) Neither the
Company nor Executive shall have the right to accelerate or defer the delivery
of any such payments or benefits except to the extent specifically permitted or
required by Section 409A of the Code.


 


7.                                      Nondisclosure and Noncompetition.


 


7.1                               Proprietary Information.


 


(a)           Executive agrees that all information
and know-how, whether or not in writing, of a private, secret or confidential
nature concerning the Company’s business or financial affairs (collectively, “Proprietary
Information”) is and shall be the exclusive property of the Company.  By way of illustration, but not limitation,
Proprietary Information may include inventions, products, processes, methods,
techniques, formulas, designs, drawings, slogans, tests, logos, ideas,
practices, projects, developments, plans, research data, financial data,
personnel data, computer programs, and customer and supplier data, or other
materials or information relating to the Company’s business and activities and
the manner in which the Company does business. 
Executive will not disclose any Proprietary Information to others
outside the Company except in the performance of his duties or use the same for
any unauthorized purposes without written approval by an officer of the
Company, either during or after his employment, unless and until such
Proprietary Information has become public knowledge or generally known within
the industry without fault by Executive, or unless otherwise required by law.


 


(b)           Executive agrees that all files,
letters, memoranda, reports, records, data, sketches, drawings, laboratory
notebooks, program listings, or other written, photographic, electronic or
other material containing Proprietary Information, whether created by Executive
or others, which shall come into his custody or possession, shall be and are
the exclusive property of the Company to be used by Executive only in the
performance of his duties for the Company.


 


(c)           Executive agrees that his obligation
not to disclose or use information, know-how and records of the types set forth
in paragraphs (a) and (b) above, also extends to such types of
information, know-how, records and tangible property of subsidiaries 


 


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and joint ventures of the
Company, customers of the Company or suppliers to the Company or other third
parties who may have disclosed or entrusted the same to the Company or to
Executive in the course of the Company’s business.


 


7.2                               Noncompetition and Nonsolicitation.


 


(a)           During the Employment Period and for
a period of twelve (12) months after the termination of Executive’s employment
with the Company for any reason, Executive will not directly or indirectly,
absent the Company’s prior written approval, render services of a business,
professional or commercial nature to any other person or entity that competes
with the Company in the same geographical area where the Company does business
at the time this covenant is in effect (or where the Company has made, as of
the effective date of termination, active plans to do business), whether such
services are for compensation or otherwise, whether alone or in conjunction
with others, as an employee, as
a partner, or as a shareholder (other than as the holder of not more than 1% of
the combined voting power of the outstanding stock of a public company),
officer or director of any corporation or other business entity, or as a
trustee, fiduciary or in any other similar representative capacity.


 


(b)           During the Employment Period and for
a period of twelve (12) months after the termination of Executive’s employment
for any reason, Executive will not, directly, recruit, solicit or induce, or
attempt to recruit, solicit or induce any employee or employees of the Company
to terminate their employment with, or otherwise cease their relationship with,
the Company.


 


(c)           During the Employment Period and for
a period of twelve (12) months after termination of Executive’s employment for
any reason, Executive will not, directly or indirectly, solicit, divert or take
away, or attempt to solicit, divert or take away, the business or patronage of
any of the clients, customers or accounts, or prospective clients, customers or
accounts, of the Company.


 


7.3                               If any restriction set forth in this Section 7
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.


 


7.4                               The restrictions contained in this Section 7
are necessary for the protection of the business and goodwill of the Company
and are considered by Executive to be reasonable for such purpose.  Executive agrees that any breach of this Section 7
will cause the Company substantial and irrevocable damage and therefore, in the
event of any such breach, in addition to such other remedies which may be
available, the Company shall have the right to seek specific performance and
injunctive relief.


 


7.5                               Other Agreements. 
Executive represents that his performance of all the terms of this
Agreement as an employee of the Company does not and will not breach any (i) agreement
to keep in confidence proprietary information, knowledge or data acquired by
him in confidence or in trust prior to his employment with the Company or (ii) agreement
to refrain 


 


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from
competing, directly or indirectly, with the business of any previous employer
or any other party.


 


8.                                      Notices.  All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon (a) the
date of receipt, if sent by personal delivery (including delivery by reputable
overnight courier), or (b) the date of receipt or refusal, if deposited in
the United States Post Office, by registered or certified mail, postage prepaid
and return receipt requested, or (c) by facsimile transmission at the
address of record of Executive or the Company, or at such other place as may
from time to time be designated by either party in writing.


 


9.                                      Entire Agreement.  This Agreement, and those documents
referenced herein, constitute the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written or oral
relating to the subject matter of this Agreement.  This Agreement supersedes all prior
agreements with the Company or its predecessors relating to Executive’s
employment, including but not limited to Executive’s Original Employment
Agreement with the Company.


 


10.                               Amendment.  This Agreement may be amended or modified
only by a written instrument executed by both the Company and Executive.


 


11.                               Governing Law.  This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the State of Alabama,
applied without giving effect to any conflicts-of-law priniciples.  The parties hereby consent to the
non-exclusive personal jurisdiction of the state and federal courts located in
Jefferson County, Alabama with respect to any suit or action filed in
connection with this Agreement.


 


12.                               Assumption by Successors.  Any successor of the Company shall succeed to
all of the Company’s duties, obligations, rights and benefits hereunder.  The obligations of Executive are personal and
shall not be assigned by him.


 


13.                               Survival.  Sections 7, 11, 14, and 15 of this Agreement
shall survive the termination of the Agreement and the Executive’s employment.


 


14.                               Miscellaneous.


 


14.1        No Waiver.  No delay or omission by a party in exercising
any right under this Agreement shall operate as a waiver of that or any other
right.  A waiver or consent given by a
party on any one occasion shall be effective only in that instance and shall
not be construed as a bar or waiver of any right on any other occasion.


 


14.2        Severability.  In case any provision of this Agreement shall
be invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.


 


15.                               Jury Waiver. Executive and the
Company each waive any right to a jury trial in any action arising out of or
relating to a breach or alleged breach of this Agreement.


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year set forth above.


 


	
   

  	
   

  	
  /s/
  R. Steven Boggan

  
	
   

  	
   

  	
  R.
  Steven Boggan

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
  Sept.
  24, 2010

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BIOHORIZONS, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  David P. Dutil

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Its:
  Senior Vice President and General Counsel

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
  Sept.
  24, 2010

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BIOHORIZONS
  IMPLANT SYSTEMS, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  David P. Dutil

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Its:
  Senior Vice President and General Counsel

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
  Sept.
  24, 2010

  	
   

  	
   

  
						



 


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