Exhibit 10.23


 


SEVERANCE AGREEMENT


 


THIS SEVERANCE AGREEMENT (the “Agreement”) is made
this 1st day of September 2010 by and among BioHorizons
Implant Systems, Inc., its parent BioHorizons, Inc. (together, the “Company”),
and Clark Barousse (the “Employee”).


 


WHEREAS, in consideration of the mutual covenants and
promises contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties agree as follows:


 


1.                                      EFFECT OF TERMINATION OF EMPLOYMENT


 


1.1                               In the
event that the Company terminates the Employee’s employment other than for “Cause”
as defined in Section 1.2, or the Employee resigns for “Good Reason” as defined
in Section 1.3 (regardless of whether such termination or resignation, as
applicable, occurs in the context of a “change in control” of the Company), the
Employee executes and does not revoke a full release of claims (the “Release”)
in the form and of a scope reasonably acceptable to the Company within sixty (60)
days following the effective date of the termination (the “Termination Date”),
the Release becomes binding and irrevocable at that time, and the Employee does
not breach any provision of this Agreement, the Company shall, commencing, on
the sixtieth (60th) day following the Termination Date: (a) pay to
the Employee the Employee’s then-current base salary for a period of twelve
(12) months in accordance with the Company’s regular payroll practices, and (b)
if the Employee 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 (retroactive to the Termination
Date) to the same extent that such insurance is provided to persons then
currently employed by the Company (the Employee’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).


 


1.2                               For the
purposes of Section 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 or a Committee appointed thereby that the Employee has engaged in
dishonesty, gross negligence or gross misconduct which if curable, has not been
cured by the Employee within 30 days after he has received written notice from
the Company stating with reasonable specificity the nature of such conduct;


 


(b)                                  Willful misconduct by the Employee
that materially injures the Company, whether such harm is economic or
non-economic, including, but not limited to, injury to the Company’s business
or reputation;


 


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


 


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(d)                                  The Employee’s failure to perform
the functions assigned to him by his direct supervisor, or the CEO, or the
Board of Directors; or


 


(e)                                  The Employee’s material breach of
this Agreement, including but not limited to Section 3, including all subparts,
hereof.


 


1.3                               For the
purposes of Section 1, a resignation by the Employee for “Good Reason” shall be
deemed to exist upon the occurrence of any of the following:


 


(a)                                  The Company materially diminished
the Employee’s base salary;


 


(b)                                  The Company materially diminished
the Employee’s authority, duties or responsibilities of the Employee as of the
date hereof; or


 


(c)                                  The Company required the Employee
to relocate permanently to an office more than fifty 50 miles from the Company’s
offices at which he performed services as of the date he commenced employment
with the Company.


 


Notwithstanding
the foregoing, the foregoing occurrences shall not constitute Good Reason
unless the Company has failed to cure the acts or omissions giving rise to
resignation by the Employee for Good Reason within thirty (30) days of receiving
written notice (the “Good Reason Notice”) from the Employee stating his intent
to resign his employment for Good Reason and specifying the Company’s acts or
omissions giving rise to Good Reason, and the Employee has provided the Good
Reason Notice to the Company within ninety (90) days of the dates the acts or
omissions giving rise to Good Reason first arose.  The Employee’s resignation for Good Reason
shall become effective on the thirty-first (31st) day following the date the Company receives the
Good Reason Notice.


 


1.4                               The
covenants set forth in Sections 3 and 4, including all subparts, shall survive
the termination of the Employee’s employment.


 


2.                                      SEPARATION FROM SERVICE


 


2.1                               The
payment provided for in Section 1.1 is intended to be an involuntary separation
pay plan, with respect to a termination without Cause and resignation for Good
Reason, pursuant to Treas. Reg. §1.409A-1(b)(9)(iii), and thus not “nonqualified
deferred compensation” subject to Section 409A of the Code.  The following interpretations apply to Section
1.1 for any other termination of employment, or if Section 1.1 is deemed to
provide benefits that are deemed to be “nonqualified deferred compensation”
with respect to a termination without Cause or resignation for Good Reason. Any
termination of the Employee’s employment under Section 1.1 of this Agreement
triggering payment of benefits 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 the Employee’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 the Employee to the Company at the
time the Employee’s employment terminates), any benefits payable under Section 1.1
that constitute deferred compensation under Section 409A of the Code shall be
delayed until after the 


 


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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 the
Employee’s part, but shall only act as a delay until such time as a “separation
from service” occurs. Further, if the Employee is a “specified employee” (as
that term is used in Section 409A of the Code and regulations and other guidance
issued thereunder) on the Termination Date and the payment of the amounts
described in Section 1.1 constitute non-qualified deferred compensation, the
payment of which would result in penalties under Section 409A of the Code, then
such payment shall be delayed until the business day following the six-month
anniversary of the Termination Date, but only to the extent necessary to avoid
such penalties under Section 409A of the Code. 
On the business day following the six-month anniversary of the
Termination Date, the Company shall pay the Employee in a lump sum the
aggregate value of the non-qualified deferred compensation that the Company
otherwise would have paid the Employee prior to that date under Section 1.1 of
this Agreement.  It is intended that each
installment of the payments and benefits provided under Section 1.1 of this
Agreement shall be treated as a separate “payment” for purposes of Section 409A
of the Code.  Neither the Company nor the
Employee 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.


 


3.                                      PROTECTED INFORMATION, NONDISCLOSURE AND
NONCOMPETITION


 


3.1                               Definition of
Protected Information


 


(a)                                  For purposes of this Agreement,
the term “Protected Information” shall mean all of the following materials and
information (whether or not reduced to writing and whether or not patentable or
protectable by copyright) which the Employee receives, receives access to,
created, conceived or developed, in whole or in part, directly or indirectly,
alone or with others and whether or not conceived or developed during regular
business hours, in connection with his employment with the Company or in the
course of his employment with the Company (in any capacity, whether executive,
managerial, planning, technical, sales, research, development, manufacturing,
Engineering, or otherwise), or through the use of any of the Company’s
facilities or resources:


 


(i)                                    Production processes, marketing techniques
and arrangements, mailing lists, purchasing information, pricing policies,
quoting procedures, financial information, customer, client and prospect names
and requirements, employee, customer, supplier and distributor data and other
materials or information relating to the Company’s business and activities and
the manner in which the Company does business;


 


(ii)                                Discoveries, concepts, plans and
ideas including, without limitation, the nature and results of research and
development activities, processes, formulas, inventions, dental implant related
materials, equipment or technology, programs, systems, manuals, reports,
drafts, techniques, “know-how,” designs, drawings and specifications;


 


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(iii)                            Any other materials or information
related to the business or activities of the Company which are not generally
known to others engaged in similar businesses or activities;


 


(iv)                               Any information and materials
received by the Company from third parties in confidence (or subject to
non-disclosure or similar covenants); and


 


(v)                                   All ideas which are derived from
or relate to the Employee’s access to or knowledge of any of the above
enumerated materials and information.


 


(b)                                  Failure to mark any of the
Protected Information as confidential, proprietary or Protected Information
shall not affect its status as part of the Protected Information under the
terms of this Agreement.


 


(c)                                  For purposes of this Agreement,
the term “Protected Information” shall not include information which is or
becomes publicly available without breach of (i) this Agreement, (ii) any other
agreement or instrument to which the Company is a party, or a beneficiary or (iii)
any duty owed to the Company by the Employee or any third party; provided, however,
that the Employee hereby acknowledges and agrees that, except as otherwise
provided in Section 3.2 hereof, if the Employee shall seek to disclose,
divulge, reveal, report, publish, transfer or use, for any purpose whatsoever,
any Protected Information, he shall have the burden of proving that any such
information shall have become publicly available without any such breach.


 


3.2                               Ownership of
Information


 


The
Employee covenants and agrees that all right, title and interest in any
Protected Information shall be and shall remain the exclusive property of the
Company (or third party, as the case may be) and, to the maximum extent
permitted by applicable law, shall be deemed “works made for hire” as the term
is used in the United States Copyright Act; provided, however, that the
foregoing shall not apply to any invention for which no equipment, supplies,
facility, or Protected Information of the Company was used, which was developed
entirely on the Employee’s own time, and which does not (i) relate to the
business of the Company, (ii) relate to the Company’s actual or demonstrably
anticipated research or development or (iii) result from any work performed by
the Employee for the Company.  The
Employee agrees to disclose immediately to the Company all Protected
Information developed in whole or in part by the Employee during the term of
the Employee’s employment with the Company and to assign to the Company any
right, title or interest he may have in such Protected Information.  The Employee agrees to execute any
instruments and to do all other things reasonably requested by the Company
(both during and after the Employee’s employment with the Company) in order to
secure the Company’s rights in the Protected Information, including obtaining a
patent, registering a copyright, or otherwise (and I hereby irrevocably appoint
the Company and any of its officers as my attorney in fact to undertake such
acts in my name).  Employee agrees that
his obligation to execute written instruments and otherwise assist the Company
in 


 


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securing
its rights in the Protected Information will continue after the termination of
his employment for any reason.


 


3.3                               Covenants Not to
Solicit or Hire Employees


 


It
is recognized and understood by the Company and the Employee that the employees
of the Company are an integral part of its business and that it is extremely
important for the Company to use its maximum efforts to prevent it from losing
such employees.  It is therefore
understood and agreed by both parties that, because of the nature of the
Company’s business, it is necessary to afford fair protection to the Company
from the loss of such employees. Consequently, as a material inducement to the
Company to enter into this Agreement and to continue to employ the Employee,
the Employee covenants and agrees that, for the period commencing on the date
of Employee’s termination of employment for any reason whatsoever and ending
one (1) year after the Employee’s termination of employment with the Company,
the Employee shall not, directly or indirectly, hire or engage or attempt to
hire or engage, or communicate for business purposes with any individual who
shall have been an employee of the Company at any time during the one (1) year
period prior to the date of the Employee’s termination of employment with the
Company, whether for or on behalf of the Company or for any entity in which the
Employee shall have a direct or indirect interest (or any subsidiary or
affiliate of any such entity), whether as a proprietor, partner, co-venturer,
financier, investor, or stockholder, director, officer, employer, employee,
servant, agent, representative, or otherwise.


 


3.4                               Non-competition
and Non-solicitation


 


(a)                                  The parties acknowledge that as
prime consideration for the obligations of the Company hereunder, the Employee
has agreed and represented that for and during the duration of his employment,
and during a period of one (1) year from the date of his termination of
employment for any reason whatsoever, he will not directly or indirectly:


 


(i)                                    Provide services to, own, manage,
operate, control or participate in the ownership, management or control of, or
be connected as an officer, employee, partner, director, or otherwise with, or
have any financial interest in, or aid or assist anyone else in the conduct of,
any entity or business (existing on the date that Employee’s employment with
the Company terminates and/or during the one-year period thereafter) that is or
has current plans to be in competition with the Company or any of its
subsidiaries or affiliates within any area in which the Company conducts its
business on the date that Employee’s employment with the Company
terminates.  Notwithstanding the
foregoing, Employee’s ownership of securities of a public company engaged in
competition with the Company not in excess of two percent (2%) of any class of
such securities shall not be considered a breach of the covenants set forth
herein; or


 


(ii)                                Contact, call upon, communicate,
solicit or sell or attempt to contact, call upon, communicate, solicit or sell
any services or products which are 


 


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provided by or dealt in by, the Company to any of the present customers
of the Company, to any past customers of the Company who were customers during
the period of the Employee’s employment or to any prospective customers of the
Company’s whom the Employee solicited during the period of his employment.  It is the intent of the Employee and the
Company to preserve the exclusivity of the Company’s customer relations,
special knowledge, trade secrets and experience gained or to be gained in the
future by the Employee during his association with the Company, recognizing
that if such customer relations, experience, knowledge and trade secrets were
made available to competitors of the Company, it would irreparably damage the
Company’s business.


 


3.5                               Tolling


 


If
the Employee violates the restrictions set out in Sections 3.3 and 3.4, the
period during which the prohibitions set forth therein shall apply shall be
extended one (1) day for each day in which a violation occurs, and if suit is
brought to enforce the Company’s rights under Sections 3.3 or 3.4, and the
Company establishes one or more violations by the Employee, the Company shall
be entitled to an injunction restraining the Employee from further violations
for a period of one (1) year from the date of the final decree less only such
number of days that the Employee has not violated the covenants set forth in
Sections 3.3 or 3.4.


 


3.6                               Injunctive
Relief, Damages and Attorneys’ Fees


 


The
Employee understands and agrees that the Company shall suffer irreparable harm
in the event that the Employee breaches any of his obligations under this
Agreement and that monetary damages shall be inadequate to compensate the
Company for such breach. Accordingly, the Employee agrees that, in the event of
a breach or threatened breach by the Employee of any of the provisions of this
Agreement, the Company, in addition to and not in limitation of any other
rights, remedies or damages available to the Company at law or in equity, shall
be entitled to a temporary restraining order, preliminary injunction and
permanent injunction in order to prevent or to restrain any such breach by the
Employee, or by any or all of the Employee’s partners, co-venturers, employers,
employees, servants, agents, representatives and any and all persons directly
or indirectly acting for, on behalf or with the Employee.  The Employee further agrees that, in the event
he breaches or threatens to breach of any of the provisions of this Agreement,
the Company shall be entitled to recover all costs, including a reasonable
attorney’s fee, incurred in enforcing or attempting to enforce this Agreement.


 


3.7                               Materials


 


All
notes, data, tapes, reference items, sketches, drawings, memoranda, records,
and other materials in any way relating to any of the Protected Information or
to the Company’s business shall belong exclusively to the Company and the
Employee agrees to turn over to the Company all copies of such materials in the
Employee’s possession or under the Employee’s control at the request of the
Company or, in the absence of such a request, 


 


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within
three business days of the termination of Employee’s employment with the
Company.


 


3.8                               Accounting for
Profits; Indemnification


 


The
Employee covenants and agrees that, if he shall violate any of his covenants or
agreements under this Agreement, the Company shall be entitled to an accounting
and repayment of all profits, compensation, royalties, commissions,
remunerations or benefits which the Employee directly or indirectly shall have
realized or may realize relating to, growing out of or in connection with any
such violation; such remedy shall he in addition to and not in limitation of
any injunctive relief or other rights or remedies to which employer is or may
be entitled at law or in equity or otherwise under this Agreement.  The Employee hereby agrees to defend,
indemnify and hold harmless the Company against and in respect of, (i) any and
all losses and damages resulting from, of any warranty, covenant or agreement
made or contained in this Agreement; and (ii) any and all actions, suits,
proceedings, claims, demands, judgments, costs and expenses (including
reasonable attorneys’ fees) incident to the foregoing.


 


4.                                      REASONABLENESS OF RESTRICTIONS;
SEVERABILITY


 


4.1                               EMPLOYEE
HAS CAREFULLY READ AND CONSIDERED THE PROVISIONS OF SECTION 3, INCLUDING ALL
SUBPARTS, AND HAVING DONE SO, AGREES THAT THE RESTRICTIONS SET FORTH IN SUCH SECTION
ARE FAIR AND REASONABLE AND ARE REASONABLY REQUIRED FOR THE PROTECTION OF THE
INTERESTS OF THE COMPANY AND ITS BUSINESS, OFFICERS, DIRECTORS, AND
EMPLOYEES.  The Employee further agrees
that the restrictions set forth in this Agreement shall not impair his ability
to secure employment within the field or fields of his choice including,
without limitation. those areas in which the Employee is, is to be or has been
employed by the Company.


 


4.2                               It is
the intent of the parties to enter into a reasonable-competition agreement,
among other things, for the maximum period and the maximum extent enforceable
under the laws of the State of Alabama, including, without limitation, Section 8-1-1
of the Alabama Code, and if its said geographic or temporal restrictions should
be deemed unreasonable by a court of competent jurisdiction, the parties intend
that such court should, in light of the facts and circumstances, reform this
Agreement specifying the maximum permissible scope (in time, location and
subject matter).


 


4.3                               The
provisions of this Agreement shall be deemed severable and shall be construed
to the fullest extent allowable under the applicable law.  The invalidity or unenforceability of any one
or more of the provisions hereof shall not affect the validity and
enforceability of the other provisions hereof. 
The Employee agrees that the breach or alleged breach by the Company of (i)
any covenant contained in another agreement (if any) between the Company and the
Employee or (ii) any obligation owed to the Employee by the Company, shall not
affect the validity or enforceability of the covenants and agreements of the
Employee set forth in this Agreement.


 


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5.                                      NO PRIOR AGREEMENTS


 


The
Employee represents that his performance of all the terms of this Agreement and
any services to be rendered as an employee of the Company, do not and shall not
breach any fiduciary or other duty or any covenant, agreement or understanding
(including, without limitation, any agreement relating to any proprietary
information, knowledge or data acquired by the Employee in confidence, trust or
otherwise prior to the Employee’s employment by the Company) to which the
Employee is a party or by the terms of which the Employee may he bound.  The Employee covenants and agrees that he
shall not disclose to the Company, or induce the Company to use, any, such
proprietary information, knowledge or data belonging to any previous employer
or others.  The Employee further
covenants and agrees not to enter into any agreement or understanding, either
written or oral, in conflict with the provisions of this Agreement.


 


6.                                      EMPLOYMENT AT WILL


 


Nothing
in this Agreement shall be construed as constituting a commitment, guarantee,
agreement or understanding of any kind or nature that the Company shall
continue to employee the Employee, nor shall this Agreement affect in any way
the right of the Employee to terminate his employment with the Company at any
time and for any reason whatsoever.  Both
the Employee and the Company acknowledge that the Employee’s employment is
strictly “at will”.


 


7.                                      BURDEN AND BENEFIT


 


7.1                               This
Agreement shall be binding upon, and shall inure to the benefit of, the Company
and the Employee, and their respective heirs, personal and legal
representatives, successors and assigns. 
As used in this Agreement, the term the “Company”, shall also include
any corporation or entity which is a parent, subsidiary or affiliate of the
Company.  The Employee hereby consents to
the enforcement of any and all of the provisions of this Agreement by or for
the benefit of the Company and any such other corporation or entity as to any
Protected Information.


 


7.2                               The
Company shall be entitled to assign this Agreement, in whole or in part, at any
time without restrictions.  The Employee
may not assign this Agreement or any part hereof without the prior written
consent of the President of the Company. 
This consent may he withheld by the Company for any reason it deems
appropriate.


 


8.                                      GOVERNING LAW


 


8.1                               In view
of the fact that the principal office of the Company is located in Birmingham,
Alabama, and that the Agreement was negotiated, accepted and executed in the
State of Alabama, it is understood and agreed that the construction and
interpretation of this Agreement shall at all times and in all respects be
governed by the laws of the State of Alabama.


 


8.2                               Without
prejudice to the Company’s right to bring suit in the courts of any
jurisdiction, any proceeding to enforce the provisions of this Agreement or the
declaration of any rights arising from the provisions of this Agreement shall
only be 


 


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brought by the Employee
and may be brought by the Company in the Circuit Court of Jefferson County,
Alabama or, if federal jurisdictional requirements can be met, the United
States District Court for the Northern District of Alabama.  The Employee hereby waives any present or
future objection to such venue and irrevocably consents and submits to the
non-exclusive jurisdiction in personam of such courts.


 


8.3                               THE
COMPANY AND THE EMPLOYEE HEREBY EXPRESSLY AND KNOWINGLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER THE
COMPANY OR THE EMPLOYEE AGAINST THE OTHER WITH RESPECT TO THIS AGREEMENT AND
ITS SUBJECT MATTER.


 


9.                                      EFFECTIVE DATE


 


The
Effective Date of this Agreement is the date the Agreement is fully executed by
both the Company and the Employee.


 


10.                               ENTIRE AGREEMENT


 


This
Agreement contains the entire agreement and understanding by and between the
Company and the Employee with respect to the terms and conditions of the
Employee’s employment with the Company (including but not limited to the
compensation to be paid to the Employee during his employment and any payments
that may be owed to the Employee upon a “change in control” and/or termination
of employment), and no representations, promises, agreement or understanding,
written or oral, not herein contained shall be of any force or effect
(including, but not limited to, the Employee’s May 15, 2008 offer letter with
the Company and July 29, 2008 employment agreement with the Company, both of
which shall be superseded by this Agreement and be of no further force or
effect).  No change or modification
hereof shall be valid or binding unless the same is in writing and signed by
the party intended to be bound.  No
waiver of any provision of this Agreement shall be valid unless the same is in
writing and signed by the party against whom such waiver is sought to be
enforced, moreover, no valid waiver or any provision of this Agreement at any
time shall be deemed a waiver of any other provision of this Agreement at such
time or shall be deemed a valid waiver of such provision at any other time.


 


11.                               AMENDMENT


 


This
Agreement may be amended, modified or supplemented only by written instrument
executed by both the Company and the Employee.


 


12.                               HEADINGS


 


The
Headings and other captions in this Agreement are for convenience and reference
only and shall not be used in interpreting, construing or enforcing any of the
provisions of this Agreement.


 


13.                               COUNTERPART


 


This
Agreement may be executed in several counterparts, each of which shall he
deemed to be an original but all of which together shall constitute one in the
same instrument.


 


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14.                               SURVIVAL


 


Except
as otherwise provided herein, all provisions to this Agreement shall survive
the termination of the Employee’s employment with the Company.


 


READ THIS AGREEMENT CAREFULLY. BY SIGNING BELOW, THE PARTIES
ACKNOWLEDGE THAT:  (1) EACH HAS REVIEWED
THIS AGREEMENT FULLY AND CAREFULLY; (2) EACH HAS HAD AN OPPORTUNITY TO ASK
QUESTIONS ABOUT ITS CONTENT; AND, (3) EACH HAS BEEN ADVISED BY COUNSEL OF HIS
OR ITS OWN CHOOSING OR HAS DECIDED NOT TO RETAIN HIS OR ITS OWN COUNSEL.


 


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


 


	
  Employee:

  	
   

  	
  BioHorizons,
  Inc.:

  
	
   

  	
   

  	
   

  
	
  /s/
  Clark Barousse 

  	
   

  	
  /s/
  Andrea G. McCaskey 

  
	
  Name:

  	
   

  	
  Andrea
  G. McCaskey 

  
	
   

  	
   

  	
  Vice-President
  , Human Resources

  
	
   

  	
   

  	
   

  
	
  09/01/10
  

  	
   

  	
  09/01/10
  

  
	
  Date

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BioHorizons
  Implant Systems, Inc.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Andrea G. McCaskey 

  
	
   

  	
   

  	
  Andrea
  G. McCaskey 

  
	
   

  	
   

  	
  Vice-President
  , Human Resources

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  09/01/10
  

  
	
   

  	
   

  	
  Date

  



 


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