Exhibit
10.18


 


AMENDED AND RESTATED SEVERANCE AGREEMENT


 


THIS AMENDED AND RESTATED SEVERANCE AGREEMENT (the “Agreement”)
is made this 6th day of August 2010 by and among BioHorizons Implant
Systems, Inc., (“Subsidiary”) a subsidiary of BioHorizons, Inc. (“Parent”)
(together, the “Company”) and David P. Dutil (the “Executive”).


 


WHEREAS, the Company wishes to continue to employ the
Executive and the Executive wishes to continue his employment with the Company;


 


WHEREAS, the Company is employing the Executive in the
position of Senior Vice President and General Counsel; and


 


WHEREAS, the Company and the Executive desire to set forth
in writing the terms and conditions of their agreements and understandings.


 


NOW THEREFORE, for the mutual agreements set forth herein
and other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, the parties intend to be bound and agree as follows:


 


1.             EFFECT OF TERMINATION OF EMPLOYMENT


 


1.1          In the event that the Company
terminates the Executive’s employment other than for “Cause” as defined in Section 1.2,
or the Executive resigns for “Good Reason” as defined in Section 1.3, the
Executive 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
Executive 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 Executive the Executive’s then-current base salary for a period of six (6) months
in accordance with the Company’s regular payroll practices; and (b) if the
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 six (6) months to the same extent that such
insurance is provided to persons then currently employed by the Company (the
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).


 


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 Executive has engaged in
dishonesty, gross negligence or gross misconduct which if curable, has not been
cured by the Executive 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
Executive 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 Executive’s conviction or
entry of nolo contendere to any felony or crime involving moral turpitude,
fraud or embezzlement;


 


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


 


(e)           The Executive’s material breach of
this Agreement, including but not limited to Section 4, including all
subparts, hereof.


 


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


 


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


 


(b)           The Company materially diminished
the Executive’s authority, duties or responsibilities as Senior Vice President
and General Counsel; or


 


(c)           The Company required the Executive
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 Executive for Good Reason within thirty (30) days of
receiving written notice (the “Good Reason Notice”) from the Executive 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 Executive 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 Executive’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 4 and 5, including all subparts, shall survive the termination of the
Executive’s employment.


 


2.             CHANGE IN CONTROL OF THE PARENT OR THE
SUBSIDIARY


 


2.1          If the Executive resigns for Good
Reason or the Executive’s employment is terminated by the Company within six (6) months
prior to or after a Change in Control (as defined in Section 2.2) for a
reason other than for Cause (as defined in Section 1.2), the Executive
executes and does not revoke a Release within sixty (60) days following the
Termination Date, the Release becomes binding and irrevocable at that time, and
the Executive 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 Executive the Executive’s then-current base salary for a period of six (6) months
in accordance with the Company’s regular 


 

















 


payroll
practices; and (b) if the 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 six (6) months
to the same extent that such insurance is provided to persons then currently
employed by the Company (the 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).


 


2.2          For purposes of this Agreement, a “Change
in Control” means occurrence of the following events on a date after the
Effective Date of this Agreement (i) any “Person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) becomes the “Beneficial Owner” (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Parent representing 50%
or more of the total voting power represented by the Parent’s then outstanding
voting securities (excluding for this purpose any such voting securities held
by the Parent or its affiliates or by any employee benefit plan of the Parent)
pursuant to a transaction or a series of related transactions which the Board
of Directors does not approve; or (ii) (A) A merger or consolidation
of the Parent whether or not approved by the Board of Directors, other than a
merger or consolidation which would result in the voting securities of the
Parent outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or the parent of such corporation) at least 50% of the total
voting power represented by the voting securities of the Parent or such surviving
entity or parent of such corporation, as the case may be, outstanding
immediately after such merger or consolidation; or (B) the stockholders of
the Parent approve an agreement for the sale or disposition by the Parent of
all or substantially all of the Parent’s assets (“Asset Sale”). “Asset Sale”
shall also include the occurrence of the following events on a date after the
Effective Date of this Agreement: (i) any Person becomes the Beneficial
Owner, directly or indirectly, of securities of the Subsidiary representing 50%
or more of the total voting power represented by the Subsidiary’s then
outstanding voting securities (excluding for this purpose any such voting
securities held by the Subsidiary or its affiliates or by any employee benefit
plan of the Subsidiary) pursuant to a transaction or a series of related
transactions which its Board of Directors does not approve; or (ii) (A) A
merger or consolidation of the Subsidiary whether or not approved by its Board
of Directors, other than a merger or consolidation which would result in the
voting securities of the Subsidiary outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or the parent of such
corporation) at least 50% of the total voting power represented by the voting
securities of the Subsidiary or such surviving entity or parent of such
corporation, as the case may be, outstanding immediately after such merger or
consolidation; or (B) the stockholders of the Subsidiary approve an
agreement for the sale or disposition by the Subsidiary of all or substantially
all of the Subsidiary’s assets.


 


3.             SEPARATION FROM SERVICE


 


3.1          The payments provided for in
Sections 1.1 and 2.1 are 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 Sections 1.1 and 2.1 for any other termination of
employment, or if Sections 1.1 or 2.1 are 


 

















 


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 Executive’s employment under Sections 1.1 or 2.1 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 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 the Executive to the Company at the
time the Executive’s employment terminates), any benefits payable under
Sections 1.1 or Section 2.1 that constitute deferred compensation under 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 the Executive’s part, but shall only
act as a delay until such time as a “separation from service” occurs. Further,
if the 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
Termination Date and the payment of the amounts described in Sections 1.1 or
2.1 constitute non-qualified deferred compensation, the payment of which would
result in penalties under Section 409A of the Code, then such payments
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
Executive in a lump sum the aggregate value of the non-qualified deferred
compensation that the Company otherwise would have paid the Executive prior to
that date under Sections 1.1 or 2.1 of this Agreement. It is intended that each
installment of the payments and benefits provided under Sections 1.1 and 2.1 of
this Agreement shall be treated as a separate “payment” for purposes of Section 409A
of the Code. Neither the Company, the Subsidiary nor the 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.


 


4.             PROTECTED INFORMATION, NONDISCLOSURE AND
NONCOMPETITION


 


4.1          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 Executive 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;


 


(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 Executive’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 Executive or any third party;
provided, however, that the Executive hereby acknowledges and agrees that,
except as otherwise provided in Section 4.2 hereof, if the Executive 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.


 


4.2          Ownership of Information


 


The
Executive 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 Executive’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 Executive for the Company. The Executive agrees to disclose
immediately to the Company all Protected Information developed in whole or in
part by the Executive during the term of the Executive’s employment with the
Company and to assign to the Company any right, title 


 

















 


or
interest he may have in such Protected Information. The Executive agrees to
execute any instruments and to do all other things reasonably requested by the
Company (both during and after the Executive’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). Executive agrees that his obligation to execute written
instruments and otherwise assist the Company in securing its rights in the
Protected Information will continue after the termination of his employment for
any reason.


 


4.3          Covenants Not to Solicit or Hire Employees


 


It
is recognized and understood by the Company and the Executive 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 Executive, the Executive covenants and
agrees that, for the period commencing on the date of Executive’s termination
of employment for any reason whatsoever and ending one (1) year after the
Executive’s termination of employment with the Company, the Executive 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 Executive’s termination of employment with the Company,
whether for or on behalf of the Company or for any entity in which the
Executive 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.


 


4.4          Non-competition and Non-solicitation


 


(a)           The parties acknowledge that as
prime consideration for the obligations of the Company hereunder, the Executive
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 Executive’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 Executive’s employment with the Company 


 

















 


terminates. Notwithstanding the foregoing,
Executive’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 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 Executive’s
employment or to any prospective customers of the Company’s whom the Executive
solicited during the period of his employment. It is the intent of the
Executive 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 Executive 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.


 


4.5          Tolling


 


If
the Executive violates the restrictions set out in Sections 4.3 and 4.4, 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 4.3 or 4.4, and the
Company establishes one or more violations by the Executive, the Company shall
he entitled to an injunction restraining the Executive 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 Executive has not violated the covenants set forth
in Sections 4.3 or 4.4.


 


4.6          Injunctive Relief, Damages and Attorneys’
Fees


 


The
Executive understands and agrees that the Company shall suffer irreparable harm
in the event that the Executive breaches any of his obligations under this
Agreement and that monetary damages shall be inadequate to compensate the
Company for such breach. Accordingly, the Executive agrees that, in the event
of a breach or threatened breach by the Executive 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
Executive, or by any or all of the Executive’s partners, co-venturers,
employers, employees, servants, agents, representatives and any and all persons
directly or indirectly acting for, on behalf or with the Executive. The
Executive 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.


 

















 


4.7          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
Executive agrees to turn over to the Company all copies of such materials in the
Executive’s possession or under the Executive’s control at the request of the
Company or, in the absence of such a request, within three business days of the
termination of Executive’s employment with the Company.


 


4.8          Accounting for Profits; Indemnification


 


The
Executive 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 Executive 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
Executive 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.


 


5.             REASONABLENESS OF RESTRICTIONS;
SEVERABILITY


 


5.1          EXECUTIVE HAS CAREFULLY READ AND
CONSIDERED THE PROVISIONS OF SECTION 4, 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 Executive
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 Executive is, is
to be or has been employed by the Company.


 


5.2          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).


 


5.3          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
Executive 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
Executive or (ii) any obligation owed to the Executive by the Company,
shall not affect the validity or enforceability of the covenants and agreements
of the Executive set forth in this Agreement.


 


6.             NO PRIOR AGREEMENTS


 


The
Executive 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 Executive in
confidence, trust or otherwise prior to the Executive’s employment by the
Company) to which the Executive is a party or by the terms of which the
Executive may he bound. The Executive 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 Executive further covenants and agrees not to enter into any agreement or
understanding, either written or oral, in conflict with the provisions of this
Agreement.


 


7.             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 Executive, nor shall this Agreement affect in any way
the right of the Executive to terminate his employment with the Company at any
time and for any reason whatsoever. Both the Executive and the Company
acknowledge that the Executive’s employment is strictly “at will”.


 


8.             BURDEN AND BENEFIT


 


8.1          This Agreement shall be binding
upon, and shall inure to the benefit of, the Company and the Executive, 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 Executive 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.


 


8.2          The Company shall be entitled to
assign this Agreement, in whole or in part, at any time without restrictions.
The Executive 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.


 


9.             GOVERNING LAW


 


9.1          In view of the fact that the
principal office of BioHorizons, Inc. 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.


 


9.2          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 brought by the
Executive 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 Executive
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.


 


9.3          THE COMPANY AND THE EXECUTIVE
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
EXECUTIVE AGAINST THE OTHER WITH RESPECT TO THIS AGREEMENT AND ITS SUBJECT
MATTER.


 


10.          EFFECTIVE DATE


 


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


 


11.          ENTIRE AGREEMENT


 


This
Agreement contains the entire agreement and understanding by and between the
Company and the Executive with respect to the subject matter herein, and no
representations, promises, agreement or understanding, written or oral, not
herein contained shall be of any 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.


 


12.          AMENDMENT


 


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


 


13.          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.


 

















 


14.          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.


 


15.          SURVIVAL


 


Except
as otherwise provided herein, all provisions to this Agreement shall survive
the termination of the Executive’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.


 


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


 


	
  Executive:

  	
   

  	
  BioHorizons, Inc.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  David P. Dutil

  	
   

  	
  /s/
  Andrea G. McCaskey

  
	
  David
  P. Dutil

  	
   

  	
  Andrea
  G. McCaskey

  
	
  SVP
  and General Counsel

  	
   

  	
  Vice-President,
  Human Resources

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  August 6,
  2010

  	
   

  	
  August 
  9, 2010

  
	
  Date

  	
   

  	
  Date