Exhibit
10.9


 


SECOND AMENDED AND RESTATED CONSULTING AGREEMENT


 


This
SECOND  AMENDED AND RESTATED CONSULTING
AGREEMENT (this “Agreement”) is entered into as of September 1, 2010 (the “Agreement
Date”) effective as of January 1, 2010 (the “Effective Date”), by and between BIOHORIZONS, INC., a Delaware corporation (on behalf of
itself and its affiliates, the “Company”), on the one hand, and CARL E. MISCH, D.D.S., an individual resident of the State
of Michigan (“Dr. Misch”), CARL E. MISCH, D.D.S.,
PC (a/k/a Advanced Implant Dentistry),
a Michigan professional corporation (the “PC”), and MISCH
IMPLANT INSTITUTE, INC., a Michigan corporation (the “Institute”),
on the other hand (Dr. Misch, the PC and the Institute are sometimes herein
collectively called the “Misch Parties” and the Misch Parties and the Company
are sometimes herein collectively called the “Parties”).


 


RECITALS:


 


Dr.
Misch is a founder and stockholder of the Company and a recognized leader in
implant dentistry, conducting his individual clinical practice through the PC. Dr.
Misch also offers professional services relating to lecturing, teaching and
consulting in his individual capacity and through the Institute.  Dr. Misch and BioHorizons Implant Systems, Inc.,
the Company’s subsidiary, are parties to an Amended and Restated Consulting
Agreement, dated as of January 1, 2005 (the “Prior Agreement”), pursuant to
which Dr. Misch provides consulting services to the Company.


 


The
Misch Parties and the Company have agreed to certain other matters regarding
their relationship and the development and ownership of certain intellectual
property, all for the mutual benefit of the Company and the Misch Parties.


 


The
Parties desire to enter into this Agreement, which amends, restates and
supersedes the Prior Agreement in its entirety.


 


NOW,
THEREFORE, in consideration of the premises and the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:


 


1.             Obligations and Duties of Dr. Misch.


 


A.            Engagement as Consultant. 
The Company hereby engages Dr. Misch to provide the consulting and other
services described in this Agreement, and Dr. Misch hereby accepts such
engagement, all upon the terms and conditions set forth herein. In such
capacity, Dr. Misch shall fulfill his duties and obligations hereunder, and
shall cause the PC and the Institute to fulfill their obligations hereunder,
all as specifically set forth below.


 


B.            Lectures.


 


(i)            During the term of this Agreement,
Dr. Misch shall be available upon reasonable advance request by the Company,
taking due account of Dr. Misch’s other time commitments, to prepare and
deliver scientific and educational presentations at professional


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


meetings and in other settings, whether live, recorded or media
presentations, including presentations directed at patients and the public, for
up to [***] hours per lecture.


 


(ii)           The Company shall pay Dr. Misch an
honorarium of $[***] per lecture given in the United States and the Company and
Dr. Misch shall negotiate in good faith the honorarium to be paid by the
Company for lectures given outside of the United States.


 


(iii)          The Company shall pay Dr. Misch a
minimum of $[***] under this Section 1B in each calendar year unless Dr. Misch
is unwilling or unable to fulfill his obligations under this Section 1B upon
reasonable request.


 


C.            Other Obligations of Dr. Misch.


 


(i)            The parties will treat any
intellectual property in any works and inventions created by Dr. Misch or under
his direction in connection with such presentations as set out in Section 6.


 


(ii)           If Dr. Misch becomes aware of any
actual or potential conflict between his responsibilities to the Company and
his responsibilities that arise from his clinical practice, his teaching or his
involvement in the Institute, Dr. Misch shall promptly disclose to the Company
all facts and other information material to such actual or potential conflict.


 


(iii)          Dr. Misch shall provide advice,
guidance and assistance to the Company in developing strategic and business
plans, budgets and projections, contacts, customer and prospect lists,
strategic alliances, and such other matters as may be reasonably requested by
the Company from time to time.


 


(iv)          Dr. Misch shall provide such other
services and assistance to the Company consistent with and similar to the
above-described services, and commensurate with his stature in the field of
implantology, as the Company may reasonably request upon reasonable notice from
time to time.


 


(v)           As a condition of receiving the
benefits and payments described in this Agreement, Dr. Misch agrees that during
the term of this Agreement, and for a period of two (2) years following the
expiration or termination of this Agreement, not to (x) disparage, criticize or
otherwise call into question the Company or any of its policies or products or (y)
make any untrue statements concerning any of the Company’s products.  Dr. Misch recognizes that, because of his
position and reputation, any comment by him may have a potential for harm to
the Company, regardless of intent; provided, however, that nothing contained
herein shall (i) restrict Dr. Misch from making any statements (A) in
connection with any legal, regulatory or administrative proceeding or
investigation or (B) as may be required by law or professional standards, (ii) restrict
Dr. Misch from exercising any rights as a stockholder of the Company.


 


2.             Duties of the Institute.


 


A.            The Company shall be the exclusive
exhibitor for dental implants, biologics and related products for all surgical
sessions of the Institute.


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


B.            The Company shall have the right
to have up to [***] ([***]) product support specialists or other Company
representatives (“Company Representatives”) present at each session and such
Company Representatives shall be permitted to take part in all formal and
informal Institute activities.


 


C.            The Company shall have the right
to designate up to [***] ([***]) residents (“Designated Residents”) to attend
each session and such Designated Residents shall be permitted to take part in
all formal and informal Institute activities. 
The Company shall pay the Institute $[***] per Designated Resident per
year, not to exceed an annual total of $[***], which shall include all costs
associated with attendance by the Designated Residents.


 


D.            The Company shall pay the
Institute $[***] per surgical session, which shall include all costs associated
with attendance by the Company Representatives.


 


E.             Payments under this Section 2
shall not exceed $[***] per year.  In the
event that more than ten (10) surgical sessions occur in a calendar year, the
Company shall have the rights of attendance and exclusivity set forth in this Section
2 at no additional cost.


 


3.             Product Purchases.


 


A.    Process. 
The Misch Parties may order products from the Company by means of
Company-approved purchase order forms or Company-approved electronic purchase
orders or such other process that the Company shall have in place for
acceptance of orders from time to time.


 


B.    Pricing. 
The Misch Parties shall receive the Company’s Military Pricing as in
effect from time to time.  As of the
Effective Date, Military Pricing reflects the following discounts from the
Company’s published U.S. list price:


 


(i)            Implants = [***]% discount;


 


(ii)           Implant prosthetic components,
AlloDerm and MemLok = [***]% discount;


 


(iii)          MinerOss = [***]% discount.


 


C.            Terms.  All prices are FOB (Incoterms 2000)
Birmingham, Alabama and are expressed exclusive of any taxes that may
apply.  The applicable Misch Party shall
bear all applicable taxes, charges and fees, including national, federal,
state, municipal, local and other taxes (such as sales, VAT or similar taxes)
on its purchases.


 


4.             Duties of the Company.


 


A.            Expense Reimbursement. 
The Company shall promptly reimburse Dr. Misch for all reasonable
out-of-pocket expenses, including reasonable travel expenses, that he incurs in
connection with the performance of his duties under this Agreement and as to
which he submits documentation satisfactory to the Company in its reasonable
discretion.  Dr. Misch shall submit such
documentation reasonably promptly after such expenses are incurred.  Dr. Misch


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission pursuant
to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.


 

















 


shall be entitled to reimbursement for business class air travel if his
performance of his duties hereunder entails flights on which he is unable to
obtain upgrades through his frequent traveler awards or benefit programs.


 


B.            Company Trademarks and Marketing
Materials.  The Company hereby grants to Dr.
Misch and the Institute throughout the term of this Agreement a paid-up,
royalty-free license and associated commercial rights to use the Company’s
trademarks and marketing and promotional materials in connection with implant
dentistry activities, so long as such uses are truthful, accurate and used in
accordance with the Company’s Trademark Usage Guidelines and Partner Brand
Usage Guide.  Dr. Misch shall give the
Company prior notice of any use of such trademarks and materials and shall (a) promptly
make any revisions reasonably requested by the Company as necessary to maintain
the goodwill or reputation of the Company, and (b) withdraw or recall any
materials that the Company deems to be inaccurate or inappropriate.


 


C.            Recognition of Dr. Misch and the
Institute.  The Company shall use its best
efforts to promote Dr. Misch and the Institute as predominant leaders in the
field of implant dentistry and shall, as appropriate, make reference to the
high quality of educational, scientific and clinical services provided by Dr. Misch
and the Institute and the importance and scope of his scientific and clinical
contributions to the Company and the design of its products.


 


5.             Payment Terms.


 


A.            Each Party shall make the payments
due pursuant to this Agreement by check or wire transfer within 60 days from
date of invoice.  All payments not made
within 60 days will bear interest at the lower of (i) one and one-half (1.5)
percent per month or (ii) the maximum rate permitted by applicable law.  In the event that one Party must retain or
consult attorneys in order to collect, or attempt to collect, overdue accounts,
the Party who has failed to pay within the required period agrees to pay all
attorney’s fees, court costs and expenses incurred by the Party seeking
payment.  All payments shall be made in
United States Dollars.  No Party shall
have the right to set off any amounts due hereunder.


 


B.            If at any time during the term of
this Agreement the Company has a class of shares listed on any national
securities exchange, the Company shall have the right, but not the obligation,
to make up to 25% of the payments to be made to the Misch Parties in any year
in the form of restricted stock grants (valued at the closing price on the date
of grant) or nonqualified stock options (valued at fair market value of such
options on the date of grant).  Such
equity grants would be subject to annual vesting for the lesser of four (4) years
or the remaining term of this Agreement with such vesting contingent upon the
performance by the Misch Parties of their respective obligations under this
Agreement.


 


6.             Agreements with Respect to Patents, Inventions
and Developments.  The Parties agree that the
following provisions shall govern their relationship with respect to patents,
inventions and other intellectual property developments.


 


A.            Name and Likeness. 
Dr. Misch hereby grants the Company throughout the term of this
Agreement a paid-up, royalty-free, perpetual license and associated commercial
rights to use his name and likeness in connection with implant dentistry;
provided, however, that Dr. Misch retains the rights to use his name and
likeness solely in connection with (a) the


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment pursuant
to Rule 406 of the Securities Act of 1933, as amended.


 

















 


Institute (so long as the Institute is under his control), (b) his
clinical practice, (c) his support of not-for-profit organizations and related
activities relating to implant dentistry, and (d) the publication of textbooks
and other publications in which he retains ownership of copyrights. Dr. Misch
hereby grants to the Company a paid-up, royalty-free perpetual license and
associated commercial rights to any derivative non-print media works (such as
videotapes, audiotapes, compact discs, DVDs, Blu-Rays or other non-print
media).  If Dr. Misch desires to use his
name and likeness in connection with other activities (including activities of
the Institute) not specified herein, he shall first obtain the written consent
of the Company, which shall not be unreasonably withheld. The Company shall
provide Dr. Misch with reasonable prior notice of any proposed use of his name
and likeness and shall (x) use such name and likeness truthfully and accurately
and in a manner consistent with his current high clinical stature, (y) promptly
make any revisions to any Company materials reasonably requested by Dr. Misch
as necessary to allow him to maintain his academic, professional and clinical
stature, and (z) if reasonably requested by Dr. Misch, cease using any Company
materials using his name and likeness that he reasonably deems to be inaccurate
or inappropriate.


 


B.            Definitions.  As used in the Agreement, the following terms
shall have the following meanings:


 


(i)            “Licensed
Patents” shall mean and include:


 


(a)           The following United
States Patents:


 


	
   

  	
  United
  States Patent

  Number

  	
   

  	
  Name

  	
   

  	
  Issued Date

  	
   

  
	
   

  	
  5,927,979

  	
   

  	
  Abutment-Mount
  System for Dental Implants

  	
   

  	
  07-27-1999

  	
   

  
	
   

  	
  6,068,480

  	
   

  	
  Abutment-Mount
  with Square Driving Surface

  	
   

  	
  05-30-2000

  	
   

  
	
   

  	
  6,083,004

  	
   

  	
  Abutment-Mount
  System for Dental Implants

  	
   

  	
  07-04-2000

  	
   

  
	
   

  	
  5,628,630

  	
   

  	
  Design
  Process for Skeletal Implants to Optimize Cellular Response

  	
   

  	
  05-13-1997

  	
   

  
	
   

  	
  5,823,777

  	
   

  	
  Dental
  Implants to Optimize Cellular Response

  	
   

  	
  10-20-1998

  	
   

  
	
   

  	
  5,954,504

  	
   

  	
  Design
  Process for Skeletal Implants to Optimize Cellular Response

  	
   

  	
  09-21-1999

  	
   

  
	
   

  	
  6,863,529

  	
   

  	
  Dental
  drill system and method of use

  	
   

  	
  03-08-2005

  	
   

  
	
   

  	
  6,045,361

  	
   

  	
  Ball-topped
  screw for facilitating the making of an impression of a dental implant and
  method of using the same

  	
   

  	
  04-04-2000

  	
   

  



 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


(b)           Any divisional,
continuation or substitute United States patent application which shall be
based on such United States Patents;


 


(c)           Any patents which shall
issue on any of the above described patent applications or on any improvements
thereof, and any reissues and extensions thereof; and


 


(d)           Patents and patent
applications corresponding to each of the above-described patents and patent
applications which are issued, filed, or to be filed in any and all foreign
countries, any patents (including but not limited to patents of importation,
improvement, or addition, utility models and inventors’ certificates) which
shall subsequently issue thereof, and any renewals, divisions, reissues,
continuations or extensions thereof.


 


(ii)           “Licensed
Products” shall mean the following dental implants sold by the
Company and its affiliates: External, Internal, Single Stage, Tapered Internal
and 3.0 mm Implant Systems.


 


(iii)          “Net Sales”
shall mean sales minus returns, discounts and allowances, costs of goods
sold and product purchases made by the Misch Parties.


 


(iv)          “Royalty”
shall mean [***]% of worldwide Net Sales, during the term of this Agreement,
for each Licensed Patent which the Company practices in order to produce a
Licensed Product, provided that in no event will the Royalty exceed [***]% of
Net Sales of any Licensed Product even if more than two Licensed Patents are
practiced in the production of such Licensed Product.


 


(v)           “Total
Royalty” shall mean $[***] with respect to any calendar year during
the term of this Agreement.


 


C.            Patent License.


 


(i)            Dr. Misch hereby grants to the
Company, upon and subject to all the terms and conditions of this Agreement, an
exclusive worldwide license under the Licensed Patents to make, use and sell
apparatus embodying the inventions described in the Licensed Patents, for the
life of such Licensed Patents, in any and all countries, territories and
possessions where the Licensed Patents are effective.


 


(ii)           In consideration for the licenses
granted hereunder, the Company agrees, during the term of this Agreement, to
pay to Dr. Misch the Royalty based on the Company’s Net Sales of Licensed
Products up to but not in excess of the Total Royalty.  From and after the payment of the Total
Royalty by the Company, the Company shall have thereafter a paid-up,
royalty-free license to make, have made, use and sell the Licensed Products.


 


(iii)          The Royalty owed Dr. Misch shall
be calculated on a semiannual calendar basis (the “Royalty Period”) and shall
be payable no later than sixty (60) days after the


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


termination of the preceding full semi-annual period, i.e., commencing on
the first (1st) day of January and July, except that the first and
last calendar periods may be “short” depending on the Effective Date.


 


(iv)          For each Royalty Period, the
Company shall provide Dr. Misch with a written royalty statement.  Such royalty statement shall be certified as
accurate by a duly authorized officer of the Company reciting the Net Sales for
each Licensed Product.  Such statements
shall be furnished to Dr. Misch regardless of whether any Licensed Products
were sold during the Royalty Period or whether any actual Royalty was owed.


 


(v)           All payments due Dr. Misch based
upon sales in countries outside of the United States shall accrue in the
currency of the country in which the sales are made.  The Company shall utilize its best efforts to
effect United States dollar transfers with respect to such Royalties.  However, any and all loss of exchange value,
taxes, or other expenses incurred in the transfer or conversion of foreign
currency into United States dollars, and any income, remittance, or other taxes
on such Royalties required to be withheld at the source shall be the exclusive
responsibility of Dr. Misch.  In the
event that currency regulations of a country in which sales are made prohibit
the deposit or payment of royalties to Dr. Misch or its nominee, no royalty
payment shall accrue or be due and payable by the Company with respect to such
sales for so long as such restrictions prevail.


 


D.            Future Developments, Inventions
and Discoveries.


 


(i)            Disclosure of Publications
and Developments.  Dr. Misch agrees to disclose
promptly to the Company (a) any publications (“Publications”) and any
developments, concepts, ideas, inventions, processes or methods (collectively, “Developments”)
in the fields of implant technology, dentistry and oral health conceived,
published, invented, developed or reduced to practice by him or under his
supervision or control, and (b) any third-party licenses, options or
assignments covering Publications or Developments of which he is or becomes
aware.


 


(ii)           Developments. 
With respect to any Developments created on or after the Effective Date,
Dr. Misch hereby grants to the Company an exclusive right of first negotiation
to obtain the commercial rights to any such Developments.


 


(iii)          Within 30 business days after
receipt of written notice of any Development pursuant to subsection (i) above,
the Company shall respond to Dr. Misch in writing, either (a) exercising the
right of first negotiation with respect to such Development, (b) requesting an
extension of such right of first negotiation as reasonably necessary to
determine the patentability or commercial viability of such Development, or (c)
releasing the right of first negotiation with respect to such Development.


 


(iv)          If the Company does not so respond
within 30 business days (or any extension agreed upon by the parties) or
releases its right of first negotiation, Dr. Misch may proceed to commercialize
such Development on his own, with the Company or with any third party (subject
to any rights of confidentiality with respect to such Development provided for
in this Agreement).  In such event, Dr. Misch’s
name and likeness may be used in connection with


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


the commercialization of such Development and he may speak on behalf of
or endorse products based on such Development, notwithstanding any contrary
provisions of this Agreement.


 


(v)           If the Company exercises its right
of first negotiation, the Company and Dr. Misch will negotiate in good faith
the terms on which the Company will acquire, or license rights in or to, such
Development.  If the Company and Dr. Misch
do not reach agreement within 90 days (as such time may be extended in writing
by the parties), Dr. Misch may proceed to commercialize such Development on his
own, with the Company or with any third party (subject to any rights of
confidentiality with respect to such Development provided for in this
Agreement).  In such event, Dr. Misch’s
name and likeness may be used in connection with the commercialization of such
Development and he may speak on behalf of or endorse products based on such
Development, notwithstanding any contrary provisions of this Agreement.


 


E.             United States Patent Application No.
20090305189.  As of the Agreement Date, Dr. Misch
has not assigned or agreed to assign any rights under United States Patent
Application No. 20090305189 or any divisional, continuation or substitute
United States patent application based thereon or any patents which shall issue
thereon or on any improvements thereof, or any reissues and extensions thereof
or patents or patent applications corresponding to such patent application
which are issued, filed, or to be filed in any and all foreign countries.  Dr. Misch shall not make any such assignment
or agree to do so without first providing the Company with written notice and
following the procedure set forth in Section 6D.


 


F.             Retention of Rights to Certain
Written Works.  The Company agrees that all
written materials developed by Dr. Misch alone or with others, without the
assistance and support of the Company and unrelated to any Publications or
Developments assigned or licensed to the Company pursuant to this Agreement,
and any records relating thereto (collectively, “Works”) shall, as between the
Company and Dr. Misch, be the sole and exclusive property of Dr. Misch.  Without limiting the generality of the
foregoing, such Works shall not be considered to be “works made for hire” of
the Company, as such term is defined in the United States copyright laws.  Dr. Misch does not assign such Works to the
Company, and does not waive any “moral rights” or similar rights in or with
respect to any such Works.


 


7.             Compliance Matters.


 


A.            Prohibition on Referrals. 
No part of the duties of any Misch Party shall include the referral of
patients to the Company or recommending the ordering of products or services
from the Company.


 


B.            Arm’s Length Transaction. 
The Parties agree that the
compensation provided herein has been determined in arm’s length bargaining and
is consistent with fair market value in arm’s-length transactions.  Furthermore, compensation of the Misch
Parties is not and has not been determined in a manner that takes into account
the volume or value of any referrals of patients or recommending the ordering
of products or services with respect to the Company or between or among the
Parties.  At all times under this
Agreement, Dr. Misch shall be free to exercise and use his own independent
professional judgment with respect to all patient


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 






 










 


care activities and no Misch Party shall be obligated to recommend the
Company’s products to any patient.


 


C.            No Payments in Excess of Legal
Limits.  The Parties acknowledge and agree that the
compensation paid under this Agreement is intended to be consistent with
applicable law, regulation and industry guidelines, and does not exceed the
fair market value of the service to be provided to the Company under this
Agreement.  The Parties understand and
agree that the payments under this Agreement are not intended, directly or
indirectly, to induce or reward any Misch Party for ordering, using, or
recommending the Company’s products and the Misch Parties are under no
obligation under this Agreement or otherwise to make any use or to arrange for
or recommend any use of the company’s products or as a reward for past
business.


 


D.            Qualifications.  Dr. Misch represents and warrants that he has
not: (i) been convicted of any felony, any business crime, or any crime
relating to honesty or integrity; (ii) had his license to practice any licensed
profession in any state suspended, revoked, or limited; (iii) been reprimanded
or censured by any federal or state licensing or regulatory agency; or the
delivery of healthcare items or services, or (iv) been excluded from participation
in Medicare, Medicaid or another Federal Health Care Program (as defined in 42
U.S.C. § 1320a-7b(f) or been disbarred or suspended from participation in any
activity regulated by the Food and Drug Administration (“FDA”) or in any
federal procurement or non procurement program.  Dr. Misch shall promptly notify the Company if
any of these events occur.


 


E.             Compliance with Law and
Regulations.  Each Party shall comply with any
law, statute, ordinance, directive, code, regulation, rule or order of any
Federal, state or local governmental body or agency.  Dr. Misch shall be familiar with the
Indications for Use for any Company product with respect to which he may
describe, discuss, teach or train.  Dr. Misch
further agrees that all aspects of his training of others shall stay within the
Indications for Use of the product.  The
Parties will negotiate in good faith to amend this Agreement in the event that
changes in laws or regulations (or the interpretation thereof) could reasonably
be expected to prohibit or otherwise adversely affect any of the activities
contemplated by this Agreement.


 


8.             Transition Period. 
The Parties acknowledge that under the Prior Agreement payments to the
Misch Parties were made based on stated amounts for an annual period paid periodically,
while under this Agreement payments to the Misch Parties will be based on
product sales and specific activities and that it is the intention of the
Parties to have this Agreement govern the relationship of the Parties for
calendar year 2010.  Within sixty (60)
days of the Agreement Date, the Company will provide Dr. Misch with an
accounting in reasonable detail of payments made between the Effective Date and
the Agreement Date and will either issue payments to the applicable Misch Party
if sums are due to one or more Misch Parties as a result of such accounting or
will issue an invoice if sums are due from one or more Misch Parties.


 


9.             Noncompetition.


 


A.            Dr. Misch agrees that during the
term of this Agreement, and for a period of two (2) years following the
expiration or termination of this Agreement, he will not become directly or
indirectly employed by or associated with (as owner, partner, manager, officer,
director, consultant or otherwise) any person, firm or entity which is or may
be in competition


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


with the Company in the design, manufacture or distribution of dental
implants or related products, wherever located (Dr. Misch hereby expressly
acknowledging that the business of the Company is conducted on a worldwide
basis).  Except as expressly provided in
this Agreement, it is the intent of Dr. Misch and the Company to preserve for
the Company exclusively the knowledge, trade secrets and experience of Dr. Misch
during the term of this Agreement, and Dr. Misch expressly acknowledges and
agrees that if such knowledge, experience and trade secrets were available to
competitors of the Company, the business of the Company would be irreparably
damaged.


 


B.            Accordingly, Dr. Misch agrees
that, in the event of any actual or threatened breach by Dr. Misch of his
covenants in this Section 9, the Company shall be entitled to seek temporary
and permanent injunctive relief without the necessity of bond, in addition to
any other remedies to which the Company may be entitled.


 


C.            Nothing in this Section 9 shall preclude
Dr. Misch from (a) pursuing his clinical practice, (b) pursuing his educational
and research activities relating to implant dentistry, including through the
Institute, (c) using third party implant products.


 


10.           Nondisclosure of Proprietary Information
and Other Confidential Information.


 


A.            As used in this Agreement, “Proprietary
Information” means any and all information, whether written, oral or in
machine-readable form, relating to the Company’s customer lists, marketing
plans, financial condition, business affairs, plans or prospects or other trade
secrets and confidential information, and any designs, drawings, slogans,
texts, logos, ideas, practices, processes, systems, products, inventions,
improvements and developments which may have been conceived or reduced to
writing, use or practice during the term of this Agreement and which use or
utilize any resources of the Company or its affiliates, whether or not
published, protected, or protectable by copyright, patent, trademark or other
legal protection, unless and until such information shall have become generally
known to the public or in the industry other than through any prohibited
disclosure of such information.


 


B.            Dr. Misch acknowledges that in
performing his duties and obligations under this Agreement he will receive
Proprietary Information which is valuable to the Company.  Dr. Misch shall maintain the confidentiality
of all such Proprietary Information unless and until such information shall
have become generally known to the public or in the industry other than through
any prohibited disclosure of such information and shall not disclose to others,
or use, such information except as may be required in the performance of his
duties hereunder or otherwise specifically authorized by the Company.


 


C.            To the extent the Company obtains
confidential or proprietary information belonging to Dr. Misch, the PC or the
Institute which is not assigned or licensed to the Company pursuant to this
Agreement, the Company shall maintain the confidentiality of such information
unless and until such information shall have become generally known to the
public or in the industry other than through any prohibited disclosure of such
information.


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


D.            Dr. Misch shall take all
reasonable steps (and the Company shall cooperate as reasonably requested in
connection therewith) to ensure that all persons and entities associated with
his work under this Agreement through the Institute, the PC or his other
activities relating to implant dentistry are advised of the confidential and
proprietary nature of any information of the Company to which they have access
and are made aware of the obligations of confidentiality, exclusivity and
non-competition set forth under this Agreement.


 


E.             The Company shall take all
reasonable steps (and Dr. Misch shall cooperate as reasonably requested in
connection therewith) to ensure that all persons and entities associated with
the Company’s work under this Agreement are advised of the confidential and
proprietary nature of any information of the Misch Parties to which they have
access and are made aware of the obligations of confidentiality and exclusivity
set forth under this Agreement.


 


F.             Notwithstanding any other
provision of this Agreement, the Company may disclose the contents of this
Agreement in connection with filings made by the Company with the Securities
and Exchange Commission (“SEC”) and may file this agreement as an exhibit to
any such SEC filing.  The Company will
seek confidential treatment of the contents of this Agreement to the extent
permitted by the SEC based on advice of counsel to the Company.


 


G.            Except as otherwise specifically
provided in this Agreement, the obligations of the parties under this Section 10
shall survive and continue in full force and effect for three years following
the termination or expiration of this Agreement.


 


11.           Term and Termination.


 


A.            This Agreement shall continue in full force and effect until
December 31, 2015 or until earlier terminated in accordance with the provisions
hereof.


 


B.            The Company may terminate this Agreement immediately upon
written notice to Dr. Misch and be released from all obligations other than
those which expressly survive termination of this Agreement, upon the
occurrence of any of the following events:


 


(i)            Dr. Misch breaches in any material
respect any of his covenants and obligations hereunder and such breach is not
cured to the reasonable satisfaction of the Company within 30 days after
written notice by the Company of such breach, or Dr. Misch otherwise engages in
any act or omission in the course of his engagement hereunder which is, in the
reasonable judgment of the Company, likely to expose the company to legal
liability or penalties of any kind.


 


(ii)           Dr. Misch breaches the covenant
set forth in Section 1.C(v).


 


(iii)          Dr. Misch dies or becomes, in the
good faith judgment of the Company, disabled and unable to fulfill his
obligations under this Agreement for a period of 180 days or more within any
period of 365 consecutive days during the term of this Agreement.


 


(iv)          Dr. Misch discontinues the
clinical practice of dentistry.


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


(v)           In the good faith judgment of the
Company, any other event or occurrence, including any act or omission of Dr. Misch,
substantially and materially impairs Dr. Misch’s ability to provide all or any
substantial part of the services he is specifically required to render under
this Agreement and such material impairment is not cured to the reasonable
satisfaction of the Company within 30 days after written notice by the Company
thereof.


 


C.            Dr. Misch may terminate this Agreement immediately upon
written notice to the Company, and be released from all obligations other than
those which expressly survive termination of this Agreement, upon the
occurrence of any of the following events:


 


(i)            The Company breaches in any
material respect any of its covenants and obligations hereunder and such breach
is not cured to the reasonable satisfaction of Dr. Misch within 30 days after
written notice by Dr. Misch of such breach.


 


(ii)           The Company, without the prior
written consent of Dr. Misch, (a) liquidates or dissolves, (b) makes any
assignment for the benefit of creditors, applies for or consents to the
appointment of a receiver or files a voluntary petition in bankruptcy, or (c) has
a receiver involuntarily appointed or has an involuntarily petition in
bankruptcy filed with respect to it unless such appointment or petition is
vacated or stayed within 120 days.


 


D.            In the event that the
Institute ceases operations or ceases to be under the control of Dr. Misch, the
Company may (i) terminate this Agreement in its entirety or (ii) terminate this
Agreement solely with respect to the Institute, without terminating this
Agreement as to Dr. Misch.


 


12.           Indemnification and Warranties.


 


(a)           Indemnification by the
Company.  The
Company shall defend, indemnify and hold Dr. Misch harmless from and against
any and all claims, damages, suits actions, losses, costs and liability of any
kind whatsoever (collectively, “Losses”) arising from any act or omission of
the Company; provided, however, that such indemnification will not be
applicable to the extent that any such Losses arise from or by reason of (i) the
gross negligence or willful misconduct of Dr. Misch or (ii) Dr. Misch’s acts or
omissions outside the scope of this Agreement, including, but not limited to,
his clinical practice and his activities with the Institute.


 


(b)           Indemnification by Dr. Misch.  Dr. Misch shall defend, indemnify and hold
the Company (including its stockholders, officers, directors, employees and
agents) harmless from and against any and all Losses arising from any act or
omission of any Misch Party, including, but not limited to, Dr. Misch’s
clinical practice and his activities with the Institute; provided, however that
such indemnification will not be applicable to the extent that any such Losses
arise from or by reason of the gross negligence or willful misconduct of the
Company.


 


(c)           No Conflicts; Authority.  Each of the Company, on the one hand, and the
Misch Parties, on the other hand, represents and warrants to the other that
such Party or Parties has fully disclosed to the other any outstanding
obligations, agreements, commitments, liabilities or encumbrances affecting the
disclosing Party’s ability to enter into and perform this Agreement


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


and that such Party has the full authority and
legal right (and, as applicable, has taken all required corporate action) to
enter into and perform its obligations under this Agreement.


 


13.           Independent Contractor Status. 
Nothing in this Agreement is intended to create, nor shall anything in
this agreement be construed to create, any employment relationship between the
Company and Dr. Misch or any partnership, joint venture or similar relationship
between the Company and the PC or the Institute.  Dr. Misch, the PC and the Institute are
independent contractors with respect to the Company.  Dr. Misch shall be solely responsible for
paying all income, Social Security, Medicare and unemployment taxes or charges
applicable to fees or other payments made to him by the Company and shall indemnify,
defend and hold the Company harmless from and against any liability arising
from the Company’s failure to pay or withhold for any such taxes or
charges.  The Institute shall be solely
responsible for paying all income and other taxes or charges applicable to fees
or other payments made to it by the Company and shall indemnify, defend and
hold the Company harmless from and against any liability arising from the
Company’s failure to pay or withhold for any such taxes or charges.


 


14.           Successors and Assigns. 
This Agreement is personal to Dr. Misch and the Institute, and neither Dr.
Misch nor the Institute may assign or delegate any duties or obligations
hereunder without the express prior written consent of the Company.  This Agreement shall be binding on, and shall
inure to the benefit of, any successor by merger or consolidation to the
Company or any entity to which the Company sells all or substantially all of
its assets.


 


15.           Dispute Resolution. 
In the event of any dispute or controversy concerning the interpretation
or performance of this Agreement, the parties shall make good faith, diligent
efforts to resolve such dispute or controversy without litigation.  If such efforts are unavailing, prior to
commencing litigation the parties will submit such dispute or controversy to
nonbinding mediation under the commercial mediation rules of the American
Arbitration Association before a single mediator selected by the American
Arbitration Association and reasonably acceptable to the Company and Dr. Misch.  Unless otherwise agreed by the parties and
the mediator, such mediation shall take place in Birmingham, Alabama.


 


16.           Notices.  All notices
required under this Agreement shall be deemed to have been properly given if
sent to the Party to which such notice is directed at such Party’s address as
shown on the signature pages hereof (provided, however, that notice delivered
to Dr. Misch shall be deemed to constitute notice to the Institute and the PC
as well) and sent by hand delivery, commercial overnight courier or United
States registered or certified first class mail, postage prepaid and return
receipt requested.  All such notices
shall be deemed to have been given on the date of receipt or refusal.  Any Party may change the address for notices
to such Party by written notice to the other parties.


 


17.           Governing Law. 
This Agreement shall be governed by, and construed and interpreted in
accordance with the laws of the State of Alabama, applied without giving effect
to any conflicts-of-law principles.


 


18.           Interpretation of Agreement. 
Both parties have participated fully and equally in the negotiation and
drafting of this Agreement, have had a full and adequate opportunity to review
this Agreement and consult with their respective counsel concerning its terms
and


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


ramifications, and intend that this Agreement is to be interpreted
according to its provisions.  No rule of
construction shall be applied which creates any inference in favor of or
against any Party by reason of such Party’s role in drafting and negotiating
this Agreement.


 


19.           Amendments.  This
Agreement shall not be modified or amended except by a written amendment signed
by all parties.


 


20.           Entire Agreement. 
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes any and all prior or
contemporaneous understandings, negotiations or agreements with respect
thereto, whether written or oral, including, but not limited to, the Prior
Agreement, which is hereby amended, restated and superseded in its entirety by
this Agreement.


 


21.           Captions; Counterparts. 
The captions and headings used in this Agreement are for convenience of
reference only and shall not be considered in construing or interpreting this
Agreement.  This Agreement may be signed
in any number of counterparts, each of which shall be deemed to be an original
and all of which taken together shall be deemed to constitute one and the same
Agreement.


 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

















 


IN
WITNESS WHEREOF, the undersigned parties, with full authority, have executed
this Agreement as of the day and year first above written, intending to be
legally bound thereby.


 


	
   

  	
  BIOHORIZONS,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Steven Boggan

  
	
   

  	
   

  	
  R.
  Steven Boggan

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  2300
  Riverchase Center

  
	
   

  	
   

  	
  Birmingham,
  AL 35244

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Carl E. Misch

  
	
   

  	
  Carl
  E. Misch, D.D.S., an individual

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  3781
  Indian Trail

  
	
   

  	
   

  	
  Orchard
  Lake, MI 48324

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MISCH
  IMPLANT INSTITUTE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Carl E. Misch

  
	
   

  	
   

  	
  Carl
  E. Misch, D.D.S.

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  16231
  W. 14 Mile Rd.

  
	
   

  	
   

  	
  Beverly
  Hills, MI 48025

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CARL
  E. MISCH, D.D.S., P.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Carl E. Misch

  
	
   

  	
   

  	
  Carl
  E. Misch, D.D.S.

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  16231
  W. 14 Mile Rd.

  
	
   

  	
   

  	
  Beverly
  Hills, MI 48025

  
					



 


Portions of this Exhibit were
omitted and have been filed separately with the Secretary of the Commission
pursuant to the Registrant’s application requesting confidential treatment
pursuant to Rule 406 of the Securities Act of 1933, as amended.