EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of April 13, 2000 (the "Effective Date")
by and between THERAGENICS CORPORATION, a Delaware corporation (hereinafter
called the "Company") and M. XXXXXXXXX XXXXXX, an individual residing at 0000
Xxxxxxxxx Xxxx, X.X., Xxxxxxxxx 0000, Xxxxxxx, Xxxxxxx 00000 (hereinafter called
the "Executive").
W I T N E S S E T H:
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WHEREAS, the Company and the Executive desire to enter into an
employment agreement to establish the rights and obligations of the Executive
and the Company in such employment relationship;
WHEREAS, the terms of this Agreement have been approved by the
Compensation Committee and ratified by the Board of Directors of the Company;
NOW, THEREFORE, and in consideration of the mutual covenants herein
contained, the Company and the Executive hereby mutually agree as follows:
1. Employment and Duties. The Company hereby employs the Executive, and the
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Executive hereby accepts employment with the Company upon the terms and
conditions hereinafter set forth. The Executive shall serve the Company as its
President and Chief Executive Officer. In such capacity, the Executive shall
have all powers, duties, and obligations as are normally associated with such
position. The Executive shall further perform such other duties related to the
business of the Company as may from time to time be reasonably requested of her
by the Company's Board of Directors. The Executive shall devote all of her
skills, time, and attention solely and exclusively to said position and in
furtherance of the business and interests of the Company except for:
(a) time spent in managing her personal, financial and legal
affairs and serving on corporate, civic or charitable boards or committees, in
each case only if and to the extent not substantially interfering with the
performance of her responsibilities to the Company, and;
(b) periods of vacation to which she is entitled.
Executive shall promptly notify the Company of her election or appointment to
any corporate, civic or charitable boards or committees on or after the date of
this Agreement.
2. Term of Employment. The term of employment (the "Term") shall begin on the
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Effective Date and shall expire on the third anniversary of the Effective Date,
subject, however, to prior termination or to extension, as herein provided. On
each anniversary of the Effective Date while this Agreement is in force, the
term of this Agreement shall automatically be extended so that the new term of
the Agreement expires three years from such date, unless either party notifies
the other party in writing of an intent not to renew at least ninety (90) days
prior to the applicable anniversary of the Effective Date.
3. Base Salary. Executive shall receive an initial annual base salary (the "Base
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Salary") of $300,000, which shall be reviewed annually by the Compensation
Committee of the Board (the "Compensation Committee") and which may be
increased, but not decreased, by the Company during the term of this Agreement.
(The $300,000 rate of Base Salary has been effective since January 1, 1999.)
Upon completion of its annual review of Executive's Base Salary, the
Compensation Committee of the Board shall discuss its findings, conclusions and
reasons for any action taken or not taken with the Executive. In the event that
the Company increases the Executive's initial Base Salary, the amount of the
initial Base Salary, together with any increase(s), shall be her Base Salary.
The Base Salary shall be payable in equal installments, in accordance with the
Company's regular payroll practices.
4. Bonus. For each fiscal year of the Company, ending after the date hereof and
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during which she is employed by the Company on the last day of the fiscal year,
the Executive shall be eligible to receive an annual bonus ("Annual Bonus")
under the bonus plan established by the Compensation Committee for the
Executive. The actual amount of the Annual Bonus shall be determined based on
performance goals established in writing by the Compensation Committee within
the first ninety (90) days of each fiscal year and the same shall be provided in
writing to the Executive promptly thereafter.
5. Fringe Benefits. The Company shall further provide the Executive with all
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health and life insurance coverages, sick leave and disability programs,
tax-qualified retirement plans, stock option plans, paid holidays, expense
reimbursement policies, moving and relocation policies, and such other fringe
benefits of employment as the Company may provide from time to time to actively
employed senior executives of the Company who are similarly situated.
Notwithstanding the preceding provisions of this Paragraph 5, during the term of
this Agreement (including extensions thereof) the Company shall provide the
Executive as denoted below:
(a) reimbursement for all reasonable expenses incurred by the Executive
in connection with the conduct of the Company's business on
presentation of reasonable and appropriate receipts and in accordance
with the Company's regular reimbursement policy applicable to senior
executives;
(b)a minimum of four (4) weeks of paid vacation per year; and
(c) perquisites with an annual value of up to $40,000, as requested by
Executive and approved by the Board or the Compensation Committee
thereof, provided that the Compensation Committee may not unreasonably
withhold its consent of any perquisite up to the $40,000 limit; and
(d) an individual disability insurance policy, provided at the
Company's expense in addition to the long-term disability plan
maintained by the Company generally for its employees, which provides
long-term disability payments equal to such maximum insurable amount of
the Executive's total average monthly compensation as the Compensation
Committee of the Board of Directors determines can be purchased at no
more than reasonable cost to the Company.
6. Stock Options. Executive received a grant of stock options on August 26, 1999
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to purchase 180,000 shares of common stock of the Company, which are incentive
stock options to the maximum extent permitted by the tax law, pursuant to the
Company's stock option plan. Subject to the requirements of Section 9 hereof,
the stock options generally vest at a rate of one-third of the total number of
shares for each year the Executive remains employed by the Company after the
Effective Date (defined in Section 2 hereof) and will be evidenced by a stock
option agreement in the standard form used by the Company for executive officers
at the time of the grant.
7. Retirement Benefit. On or before December 31, 1999 and each December 31
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thereafter, the Company will pay an annual payment of $35,000, before any taxes
that may be payable by the Executive thereon, to the Executive to be used and
invested by the Executive in her discretion to the end of producing retirement
income. Payment pursuant to this Section 7 shall be paid in cash as soon as
practicable after the year for which the payment is due, unless electively
deferred by the Executive pursuant to any deferral programs or arrangements that
the Company may make available to the Executive. Such amount will be in addition
to any employer contribution made by the Company to a tax-qualified retirement
plan on Executive's behalf.
8. Disability. During any period that the Executive fails to perform her duties
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hereunder as a result of incapacity due to a Disability ("Disability Period"),
the Executive shall continue to receive her Base Salary at the rate then in
effect for such period until her employment is terminated pursuant to Section 9;
provided, however, that payments of Base Salary made to the Executive pursuant
to this Section 8 shall be reduced by the sum of the amounts, if any, that were
payable to the Executive for such period under any disability benefit plan or
plans of the Company or the disability policy referred to in Section 5(d)
hereof.
9. Termination of Employment.
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(a) Termination of Employment by the Company. The Executive's
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employment hereunder may be terminated by the Company without any
breach of this Agreement under the following circumstances:
(i) Without Cause. The Company may terminate the
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Executive's employment hereunder without Cause.
(ii) Cause. The Company may terminate the Executive's
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employment hereunder for Cause.
(iii) Death or Disability. The Executive's employment
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hereunder shall terminate upon her death, and may be
terminated by the Company in the event of her Disability for a
continuous period of at least one-hundred eighty (180) days.
If Executive becomes subject to a Disability which is expected
to last for a continuous period of at least one hundred eighty
(180) days, the Company may appoint an acting Chief Executive
Officer of the Company during such one hundred eighty (180)
day period without any breach of this Agreement; provided,
that Executive shall be entitled to continue receiving Base
Salary and benefits under this Agreement during such one
hundred eighty (180) day period.
(b) Termination of Employment by Executive. The Executive may
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terminate her employment at any time with or without Good Reason.
(c) Notice of Termination. Any termination of the Executive's
employment by the Company hereunder, or by the Executive other than
termination upon the Executive's death, shall be communicated by
written Notice of Termination to the other party.
10. Amounts Payable Upon Termination of Employment.
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(a) Termination by the Company Without Cause or by the
Executive for Good Reason. In the event Executive's employment is
terminated by the Company without Cause or by the Executive for Good
Reason or as a result of the Term expiring as a result of the Company
giving a notice of nonrenewal pursuant to Section 2 hereof, Executive
shall be entitled to the following payments and benefits:
(i) payment of all Accrued Obligations in a lump sum in cash
as soon as practicable but no later than ninety (90) days following the
Date of Termination;
(ii) payment of an amount equal to two (2) times the
sum of current Base Salary plus Annual Bonus paid in the most
recently completed fiscal year, except in the case of a
termination within one (1) year after a Change in Control, in
which case the amount shall be equal to three (3) times the
sum of average Base Salary plus average Annual Bonus paid in
the most recently completed three (3) fiscal years;
(iii) immediate vesting of all outstanding options,
stock grants, shares of restricted stock and any other equity
incentive compensation; provided, that the stock options shall
be exercisable only until the earlier to occur of (A) five (5)
years from the date of the Executive's termination, or (B) the
date the option would have otherwise expired if the Executive
had not terminated employment; and
(iv) disability and other welfare plan benefits
(other than continued group long-term disability coverage) for
Executive and Executive's family, which are generally
available to executives of the Company, for a period of two
(2) years from the Date of Termination at the same cost to the
Executive as is charged to such executives from time to time
for comparable coverage.
(b) Termination by Executive Other Than for Good Reason or by
the Company for Cause. In the event that the Executive's employment is
terminated by Executive other than for Good Reason or by the Company
for Cause, the Executive shall be entitled only to the payments and
benefits set forth below:
(i) as of the Date of Termination, any Base Salary that is
accrued but unpaid, any vacation that is accrued but unused and any
business expenses that are unreimbursed; and
(ii) any other rights and benefits (if any) provided
under plans and programs of the Company (excluding any bonus
program), determined in accordance with the applicable terms
and provisions of such plans and programs.
(c) Disability. If the Executive's employment is terminated due to
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Disability, Executive shallbe entitled to the following payments and
benefits:
(i) payment of all Accrued Obligations in a lump sum in cash as
soon as practicable but no later than ninety (90) days following the Date
of Termination;
(ii) immediate vesting of all stock options granted
to the Executive one (1) year or more prior to the Date of
Termination (measured from the date of grant of each such
stock option) and immediate vesting of a prorated portion of
all stock options granted to Executive within one (1) year
prior to the Date of Termination prorated in the proportion
that the number of days expired from the date of grant of such
stock options to the Date of Termination bears to three
hundred sixty-five (365), all of which options shall be
exercisable only until the earlier to occur of (A) five (5)
years from the date of the Executive's termination, or (B) the
date the option would have otherwise expired if the Executive
had not terminated employment, and
(iii) disability and other welfare plan benefits
(other than continued group long-term disability coverage) for
Executive and Executive's family, which are generally
available to executives of the Company, for a period of two
(2) years from the Date of Termination at the same cost to the
Executive as is charged to such executives from time to time
for comparable coverage.
Notwithstanding any other provision hereof, if Executive dies
prior to the time that all payments described in this Section 10(c)
have been completed, such payments and benefits shall be paid to the
Executive's estate.
(d) Death. If the Executive's employment is terminated by death,
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the Executive's estate shall be entitled to the following payments and benefits:
(i) payment of all Accrued Obligations in a lump sum in cash
as soon as practicable but no later than ninety (90) days following the
Date of Termination; and
(ii) immediate vesting of all stock options granted
to the Executive one (1) year or more prior to the date of her
death (measured from the date of grant of each such stock
option) and immediate vesting of a prorated portion of all
stock options granted to Executive within one (1) year prior
to the date of her death prorated in the proportion that the
number of days expired from the date of grant of such stock
options to the date of her death bears to three hundred
sixty-five (365), all of, which options shall be exercisable
only until the earlier to occur of (A) five (5) years from the
date of the Executive's death, or (B) the date the option
would have otherwise expired if the Executive had not died.
(e) No Duty to Mitigate Damages. After any Date of
Termination, the Executive shall have no obligation to seek other
employment, but shall have the right to be otherwise employed, and any
compensation of any type whatsoever received by the Executive in
connection with such employment shall not be offset by the Company
against any of the obligations of the Company under this Agreement.
(f) Set-off. Notwithstanding any other provision hereof, any
item paid or payable under Section 10 of this Agreement shall be
reduced by any amount paid or payable to the Executive and the
Executive's family with respect to the same type of payment actually
made or to be made to her under any severance plan or policy now
maintained or at any time in the future maintained by the Company. For
this purpose, any payment under this Agreement or any severance plan or
policy made over time shall be discounted to present value at the
Interest Rate before reducing any payment under this Agreement by any
amount paid or payable to the Executive under such severance plan or
policy.
11. Restrictive Covenants. The Executive agrees that, during the term of
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this Agreement, including any extension thereof, and for a period of two (2)
years thereafter, she shall not, directly or indirectly:
(a) within the Area, on the Executive's own behalf, or in the
service of or on behalf of others, engage in or provide services
substantially similar to those services she provides for the Company
for a Competing Business. For purposes of this Section 11(a), the
Executive acknowledges that the Business of the Company is conducted in
the Area;
(b) on Executive's own behalf or in the service of or on
behalf of any other person or entity, solicit or divert, or attempt to
solicit or divert, to a Competing Business, any person or entity who
was an actual or actively sought prospective client or customer of the
Company, with whom the Executive had material contact during the last
two (2) years of employment with the Company or about whom the
Executive acquired Confidential Information during the Executive's last
two (2) years of employment with the Company, or any representative of
any such client or customer; and
(c) on the Executive's own behalf or in the service of or on
behalf of others, solicit, divert or hire or attempt to solicit, divert
or hire or assist anyone else in soliciting, diverting or hiring any
person who, at any time within the period commencing one year prior to
the Date of Termination and ending two (2) years after the Date of
Termination, was, is or shall be an employee of the Company (whether or
not such employment is full-time or is pursuant to a written contract
with the Company).
12. Ownership and Protection of Proprietary Information.
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(a) Confidentiality. All Confidential Information and Trade
Secrets and all physical embodiments thereof received or developed by
the Executive while employed by the Company are confidential to and are
and will remain the sole and exclusive property of the Company. Except
to the extent necessary to perform the duties assigned to her by the
Company, the Executive will hold such Confidential Information and
Trade Secrets in trust and strictest confidence, and will not use,
reproduce, distribute, disclose or otherwise disseminate the
Confidential Information and Trade Secrets or any physical embodiments
thereof and may in no event take any action causing or fail to take the
action necessary in order to prevent, any Confidential Information and
Trade Secrets disclosed to or developed by the Executive to lose its
character or cease to qualify as Confidential Information or Trade
Secrets.
(b) Return of Company Property. Upon request by the Company,
and in any event upon termination of the employment of the Executive
with the Company for any reason, as a prior condition to receiving any
final compensation hereunder (including payments under Section 10
hereof), the Executive will promptly deliver to the Company all
property belonging to the Company, including, without limitation, all
Confidential Information and Trade Secrets (and all embodiments
thereof) then in the Executive's custody, control or possession.
(c) Survival. The covenants of confidentiality set forth
herein will apply on and after the date hereof to any Confidential
Information and Trade Secrets disclosed by the Company or developed by
the Executive prior to or after the date hereof. The covenants
restricting the use of Confidential Information will continue and be
maintained by the Executive for a period of two (2) years following the
termination of this Agreement. The covenants restricting the use of
Trade Secrets will continue and be maintained by the Executive
following termination of this Agreement for so long as permitted by the
Georgia Trade Secrets Act of 1990, O.C.G.A. ss. 10-1-760, et seq.
13. Certain Further Payments by the Company
(a) Tax Reimbursement Payment. In the event that any amount or
benefit paid or distributed to the Executive by the Company or any
Affiliated Company, whether pursuant to this Agreement or otherwise
(collectively, the "Covered Payments"), is or becomes subject to the
tax (the "Excise Tax") imposed under Section 4999 of the Code or any
similar tax that may hereafter be imposed, the Company shall pay to the
Executive, at the time specified in Section 13(e) below, the Tax
Reimbursement Payment (as defined below). The Tax Reimbursement Payment
is defined as an amount, which when added to the Covered Payments and
reduced by any Excise Tax on the Covered Payments and any federal,
state and local income tax and Excise Tax on the Tax Reimbursement
Payment provided for by this Agreement (but without reduction for any
federal, state or local income or employment tax on such Covered
Payments), shall be equal to the sum of (i) the amount of the Covered
Payments, and (ii) an amount equal to the product of any deductions
disallowed for federal, state or local income tax purposes because of
the inclusion of the Tax Reimbursement Payment in the Executive's
adjusted gross income and the highest applicable marginal rate of
federal, state or local income taxation, respectively, for the calendar
year in which the Tax Reimbursement Payment is to be made.
(b) Determining Excise Tax. For purposes of determining
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whether any of the Covered Payments will be subject to the Excise Tax
and the amount of such Excise Tax,
(i) such Covered Payments will be treated as
"parachute payments" within the meaning of Section 280G of the
Code, and all "parachute payments" in excess of the "base
amount" (as defined under Section 280G(b)(3) of the Code)
shall be treated as subject to the Excise Tax, unless, and
except to the extent that, in the opinion of the Company's
independent certified public accountants, which, in the case
of Covered Payments made after the Change of Control Date,
shall be the Company's independent certified public
accountants appointed prior to the Change of Control Date, or
tax counsel selected by such accountants (the "Accountants"),
such Covered Payments (in whole or in part) either do not
constitute "parachute payments" or represent reasonable
compensation for services actually rendered (within the
meaning of Section 280G(b)(4) of the Code) in excess of the
"base amount", or such "parachute payments" are otherwise not
subject to such Excise Tax, and
(ii) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the
Accountants in accordance with the principles of Section 280G
of the Code.
(c) Applicable Tax Rates and Deductions. For purposes
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of determining the amount of the Tax Reimbursement Payment, the
Executive shall be deemed:
(i) to pay federal income taxes at the highest
applicable marginal rate of federal income taxation for the
calendar year in which the Tax Reimbursement Payment is to be
made,
(ii) to pay any applicable state and local income
taxes at the highest applicable marginal rate of taxation for
the calendar year in which the Tax Reimbursement Payment is to
be made, net of the maximum reduction in federal income taxes
which could be obtained from the deduction of such state or
local taxes if paid in such year (determined without regard to
limitations on deductions based upon the amount of the
Executive's adjusted gross income), and
(iii) to have otherwise allowable deductions for
federal, state and local income tax purposes at least equal to
those disallowed because of the inclusion of the Tax
Reimbursement Payment in the Executive's adjusted gross
income.
(d) Subsequent Events. In the event that the Excise Tax is
subsequently determined by the Accountants to be less than the amount
taken into account hereunder in calculating the Tax Reimbursement
Payment made, the Executive shall repay to the Company, at the time
that the amount of such reduction in the Excise Tax is finally
determined, the portion of such prior Tax Reimbursement Payment that
has been paid to the Executive or to federal, state or local tax
authorities on the Executive's behalf and that would not have been paid
if such Excise Tax had been applied in initially calculating such Tax
Reimbursement Payment, plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding
the foregoing, in the event any portion of the Tax Reimbursement
Payment to be refunded to the Company has been paid to any federal,
state or local tax authority, repayment thereof shall not be required
until an actual refund or credit of such portion has been made to the
Executive, and interest payable to the Company shall not exceed
interest received or credited to the Executive by such tax authority
for the period it held such portion. The Executive and the Company
shall mutually agree upon the course of action to be pursued (and the
method of allocating the expenses thereof) if the Executive's good
faith claim for a refund or credit is denied.
In the event that the Excise Tax is later determined by the
Accountants to exceed the amount taken into account hereunder at the
time the Tax Reimbursement Payment is made (including, but not limited
to, by reason of any payment the existence or amount of which cannot be
determined at the time of the Tax Reimbursement Payment), the Company
shall make an additional Tax Reimbursement Payment in respect of such
excess (which Tax Reimbursement Payment shall include any interest or
penalty payable with respect to such excess) at the time that the
amount of such excess is finally determined.
(e) Date of Payment. The portion of the Tax Reimbursement
Payment attributable to a Covered Payment shall be paid to the
Executive within ten (10) business days following the payment of the
Covered Payment. If the amount of such Tax Reimbursement Payment (or
portion thereof) cannot be finally determined on or before the date on
which payment is due, the Company shall pay to the Executive an amount
estimated in good faith by the Accountants to be the minimum amount of
such Tax Reimbursement Payment and shall pay the remainder of such Tax
Reimbursement Payment (which Tax Reimbursement Payment shall include
interest at the rate provided in Section 1274(b)(2)(B) of the Code) as
soon as the amount thereof can be determined, but in no event later
than forty-five (45) calendar days after payment of the related Covered
Payment. In the event that the amount of the estimated Tax
Reimbursement Payment exceeds the amount subsequently determined to
have been due, such excess shall be repaid or refunded pursuant to the
provisions of Section 13(d) above.
14. Acknowledgement; Remedies.
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(a) Executive has carefully considered the nature and extent
of the restrictions upon her and the rights and remedies conferred to
the Company under Sections 11 and 12 of this Agreement, and hereby
acknowledges and agrees that the same are reasonable in time, necessary
to protect the business, interests and properties of the Company, are
designed to eliminate competition which would be unfair to the Company,
do not stifle the inherent skill and experience of Executive, would not
operate as a bar to Executive's sole means of support, are fully
required to protect the legitimate interests of the Company and do not
confer a benefit upon the Company disproportionate to the detriment of
Executive.
(b) In the event of any violation of the provisions of
Sections 11 or 12 of this Agreement by Executive, the parties hereby
recognize and acknowledge that remedy at law will be inadequate and the
Company may suffer irreparable injury. Accordingly, Executive consents
to injunctive and other appropriate equitable relief upon the
institution of proceedings therefor by the Company in order to protect
the Company's rights under such Sections. Such relief shall be in
addition to any other relief to which the Company may be entitled at
law or in equity. In addition, any breach of the covenants contained in
Sections 11 or 12 hereof shall be treated the same as a termination by
the Company for Cause and shall entitle the Company to cease the
provision of any welfare plan benefits being afforded to the Executive
or her family after the termination of her employment with the Company,
cease any payments to be made to the Executive pursuant to this
Agreement in connection with such termination (other than accrued and
unpaid Base Salary and vacation) or recover from the Executive any
payments made to the Executive under this Agreement in respect of such
termination (other than accrued Base Salary and vacation). In no event
shall such actions preclude the Company from any equitable relief to
which it may otherwise be entitled and such remedies shall be
cumulative.
15. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or program provided by the Company or any of its
Affiliated Companies and for which the Executive may qualify, nor shall anything
herein limit or otherwise prejudice such rights as the Executive may have under
any other agreements with the Company or any Affiliated Companies, including,
but not limited to stock option or restricted stock agreements. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan or program of the Company or any Affiliated Companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan or program.
16. Full Settlement. Except as provided in Section 14, the Company's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including, without limitation, any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive or others whether
by reason of the subsequent employment of the Executive or otherwise. In no
event shall the Executive be obligated to seek other employment by way of
mitigation of the amounts payable to the Executive under any of the provisions
of this Agreement. In the event that the Executive shall in good faith give a
Notice of Termination for Good Reason and it shall thereafter be determined that
Good Reason did not take place, the employment of the Executive shall, unless
the Company and the Executive shall otherwise mutually agree, be deemed to have
terminated, at the date of giving such purported Notice of Termination, by
mutual consent of the Company and the Executive and, except as provided in the
last preceding sentence, the Executive shall be entitled to receive only those
payments and benefits which she would have been entitled to receive at such date
had she terminated her employment voluntarily at such date under this Agreement.
17. Definitions.
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(a) "Accountants" shall have the meaning set forth in
Section 13(b).
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(b) "Accrued Obligations" shall mean (i) the Executive's full
Base Salary through the Date of Termination, (ii) any unpaid but
accrued Annual Bonus, (iii) the product of the Annual Bonus paid to the
Executive for the last full fiscal year of the Company and a fraction,
the numerator of which is the number of days in the current fiscal year
of the Company through the Date of Termination, and the denominator of
which is 365, (iv) any compensation previously deferred by the
Executive (together with any accrued earnings thereon) and not yet paid
by the Company and any accrued vacation pay for the current year not
yet paid by the Company, (v) any amounts or benefits owing to the
Executive or to the Executive's beneficiaries under the then applicable
employee benefit plans or policies of the Company and (vi) any amounts
owing to the Executive for reimbursement of expenses properly incurred
by the Executive prior to the Date of Termination and which are
reimbursable in accordance with the reimbursement policy of the Company
described in Section 5(a).
(c) "Affiliated Company" shall mean any company
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controlling, controlled by or under common control with the Company.
(d) "Annual Bonus" shall have the meaning set forth in
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Section 4.
(e) "Area" shall mean the United States.
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(f) "Base Salary" shall have the meaning set forth in
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Section 3.
(g) "Board" shall mean the Board of Directors of the
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Company.
(h) "Business of the Company" shall mean any business that
involves the manufacture, production, sale, marketing, promotion,
exploitation, development or distribution of radiological devices used
in the treatment of cancer or implantable devices used in the treatment
of cancer.
(i) "Cause" shall mean either:
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(i) any act that constitutes, on the part of
the Executive, fraud or dishonesty that directly results in
material injury to the Company or an act that constitutes a
felony;
(ii) Executive's conduct as the President and Chief
Executive Officer of the Company is grossly inappropriate and
demonstrably likely to lead to material injury to the Company,
as determined by the Board reasonably and in good faith; or
(iii) the Executive otherwise materially breaches
this Agreement;
provided, however, that in the case of Clause (ii) or (iii)
above, such conduct shall not constitute Cause unless the Board shall
have delivered to the Executive notice setting forth with specificity
(A) the conduct deemed to qualify as Cause, (B) reasonable action that
would remedy such objection, and (C) a reasonable time (not less than
thirty (30) days) within which the Executive may take such remedial
action, and the Executive shall not have taken such specified remedial
action within such specified reasonable time.
(j) A "Change of Control" means:
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(i) the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
voting securities of the corporation where such acquisition
causes such person to own thirty-five percent (35%) or more of
the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this
Subsection (i), the following acquisitions shall not be deemed
to result in a Change of Control: (A) any acquisition directly
from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (D) any acquisition by any
corporation pursuant to a transaction that complies with
clauses (A), (B) and (C) of Subsection (iii) below; and
provided, further, that if any Person's beneficial ownership
of the Outstanding Company Voting Securities reaches or
exceeds thirty-five percent (35%) as a result of a transaction
described in clause (A) or (B) above, and such Person
subsequently acquires beneficial ownership of additional
voting securities of the Company, such subsequent acquisition
shall be treated as an acquisition that causes such Person to
own thirty-five percent (35%) or more of the Outstanding
Company Voting Securities; or
(ii) individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination
for election, by the Company's shareholders, was approved by a
vote of at least two-thirds of the directors then comprising
the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or
removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board;
(iii) the approval by the shareholders of the Company
of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company ("Business Combination") or, if consummation of such
Business Combination is subject, at the time of such approval
by shareholders, to the consent of any government or
governmental agency, the obtaining of such consent (either
explicitly or implicitly by consummation); excluding, however,
such a Business Combination pursuant to which (A) all or
substantially all of the individuals and entities who were the
beneficial owners of the Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially
own, directly or indirectly, more than sixty percent (60%) of,
respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation,
a corporation that as a result of such transaction owns the
Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination of the
Outstanding Company Voting Securities, (B) no Person
(excluding any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly,
thirty-five percent (35%) or more of, respectively, the then
outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed
prior to the Business Combination and (C) at least a majority
of the members of the board of directors of the corporation
resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) approval by the shareholders of the
Company of a complete liquidation or dissolution of the
Company.
Notwithstanding the foregoing, no Change of Control shall be
deemed to have occurred for purposes of this Agreement by reason of any
actions or events in which the Executive participates in a capacity
other than in her capacity as Executive (or as a director of the
Company or a Subsidiary, where applicable).
(k) "Change of Control Date" shall mean the date on which a
Change of Control shall be deemed to have occurred.
(l) "Code" shall mean the Internal Revenue Code of 1986,
----
as amended.
(m) "Company Information" means Confidential Information
-------------------
and Trade Secrets.
(n) "Competing Business" means any person, firm, corporation,
joint venture or other business entity which is engaged in the Business
of the Company (or any aspect thereof) within the Area.
(o) "Confidential Information" means confidential data and
confidential information relating to the business of the Company (which
does not rise to the status of a trade secret under applicable law)
which is or has been disclosed to Executive or of which Executive
became aware as a consequence of or through her employment with the
Company and which has value to the Company and is not generally known
to its competitors and which is designated by the Company as
confidential. Confidential Information shall not include any data or
information that (i) has been voluntarily disclosed to the general
public by the Company; (ii) has been independently developed and
disclosed to the general public by others; or (iii) otherwise enters
the public domain through lawful means.
(p) "Date of Termination" shall mean
-------------------
(i) If the Executive's employment is terminated
by her death, the date of her death.
(ii) If the Executive's employment is terminated by
the Company as a result of Disability pursuant to Paragraph
9(a)(i), the date that is thirty (30) days after Notice of
Termination is given; provided, the Executive shall not have
returned to the performance of her duties on a full-time basis
during such thirty (30) day period.
(iii) If the Executive terminates her employment for
Good Reason pursuant to Paragraph 9(b), the date that is ten
(10) days after Notice of Termination is given (provided that
the Company does not cure the event which gives the Executive
Good Reason during the ten (10) day period).
(iv) If the Executive terminates her employment other
than for Good Reason, the date that is two (2) weeks after
Notice of Termination is given; provided, in the sole
discretion of the Company, such date may be any earlier date
after Notice of Termination is given.
(v) If the Executive's employment is terminated by
the Company without Cause pursuant to Section 9(a)(iii), the
date that is two (2) weeks after Notice of Termination is
given.
(vi) If the Executive's employment is terminated by
the Company for Cause pursuant to Paragraph 9(a)(ii), the date
on which the Notice of Termination is given.
(q) "Disability" shall mean physical or mental illness which
would entitle the Executive to receive full long-term disability
benefits under the Company's long-term disability plan on terms
substantially similar to those of the long-term disability plan as in
effect on the date of this Agreement.
(r) "Excise Tax" shall have the meaning as set forth in
----------
Section 13(a).
(s) "Good Reason" shall mean the occurrence of one of the
following events which occurs without the Executive's consent (provided
the Company does not cure such event on a retroactive basis to the
extent possible within ten (10) days following its receipt of the
Executive's Notice of Termination):
(i) The Executive's title, position, authority or
responsibilities (including reporting responsibilities and
authority) are changed in a materially adverse manner.
(ii) The Executive's base salary is reduced for any
reason other than in connection with the termination of her
employment.
(iii) For any reason other than in connection with
the termination of the Executive's employment, the Company
materially reduces any fringe benefit provided to the
Executive under Section 5 below the level of such fringe
benefit provided generally to other actively employed
similarly situated executives of the Company. Notwithstanding
the foregoing, if the Company agrees to fully compensate the
Executive for any such material reduction for a period ending
on the earlier to occur of (A) the date such fringe benefit is
no longer provided to other actively employed similarly
situated executives of the Company or (B) four (4) years, then
such event shall not constitute Good Reason.
(iv) A change of over fifty (50) miles in either the
Executive's principal place of employment or the headquarters
of the Company from its present location.
(v) The Company otherwise materially breaches,
or is unable to perform its obligations
under this Agreement.
(vi) The occurrence of a Change of Control.
Notwithstanding the foregoing, the occurrence of one of the
events in Paragraphs (i) through (vi) hereof shall not be considered
Good Reason for the Executive's termination, unless the Executive
delivers a Notice of Termination pursuant to Paragraph 9(c) hereof,
within sixty (60) days after the Executive has actual notice of the
occurrence of any of the events listed in Paragraphs (i) through (vi)
hereof.
(t) "Interest Rate" shall mean the interest rate payable on
one-year Treasury Bills in effect on the day that is thirty (30)
business days (days other than Saturday, Sunday or legal holidays in
the City of New York) prior to the Date of Termination.
(u) "Notice of Termination" shall mean a notice that shall
indicate the specific termination provision in this Agreement relied
upon, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
(v) "Subsidiary" shall mean any majority owned subsidiary
----------
of the Company.
(w) "Tax Reimbursement Payment" shall have the meaning
-------------------------
set forth in Section 13(a).
(x) "Trade Secrets" means information of the Company, without
regard to form, including, but not limited to, technical or
nontechnical data, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, financial data, financial
plans, product or service plans or lists of actual or potential
customers or suppliers which is not commonly known by or available to
the public and which information (i) derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use; and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
18. Assignment and Survivorship of Benefits. The rights and obligations
of the Company under this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and assigns of the Company. If the Company shall at
any time be merged or consolidated into, or with, any other company, or if
substantially all of the assets of the Company are transferred to another
company, then the provisions of this Agreement shall be binding upon and inure
to the benefit of the company resulting from such merger or consolidation or to
which such assets have been transferred, and this provision shall apply in the
event of any subsequent merger, consolidation, or transfer.
19. Notices. Any notice given to either party to this Agreement shall
be in writing, and shall be deemed to have been given when delivered personally
or sent by certified mail, postage prepaid, return receipt requested, duly
addressed to the party concerned, at the address indicated below or to such
changed address as such party may subsequently give notice of:
If to the Company:
Theragenics Corporation
0000 Xxxxxxx Xxxxxxxxxx Xxx
Xxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
If to the Executive:
M. Xxxxxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxx, X.X.
Apartment 1804
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Lightmas & Xxxx
Suite 1150
The Peachtree
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Esq.
20. Indemnification. The Executive shall be indemnified by the
---------------
Company, to the extent provided in the case of officers under the Company's
Certificate of Incorporation or Bylaws.
21. Taxes. Anything in this Agreement to the contrary notwithstanding,
all payments required to be made hereunder by the Company to the Executive shall
be subject to withholding of such amounts relating to taxes as the Company may
reasonably determine that it should withhold pursuant to any applicable law or
regulations. In lieu of withholding such amounts, in whole or in part, however,
the Company may, in its sole discretion, accept other provision for payment of
taxes, provided that it is satisfied that all requirements of the law affecting
its responsibilities to withhold such taxes have been satisfied.
22. Enforcement of Rights. All legal and other fees and expenses,
including, without limitation, any arbitration expenses, incurred by the
Executive in connection with seeking to obtain or enforce any right or benefit
provided for in this Agreement, or in otherwise pursuing any right or claim,
shall be paid by the Company, to the extent permitted by law, provided that the
Executive is successful in whole or in part as to such claims as the result of
litigation, arbitration, or settlement.
In the event that the Company refuses or otherwise fails to make a
payment when due and it is ultimately decided that the Executive is entitled to
such payment, such payment shall be increased to reflect an interest equivalent
for the period of delay, compounded annually, equal to four (4) percentage
points over the Interest Rate in effect as of the date the payment was first
due.
23. Governing Law/Captions/Severance. This Agreement shall be construed
in accordance with, and pursuant to, the laws of the State of Georgia. The
captions of this Agreement shall not be part of the provisions hereof, and shall
have no force or effect. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. Except as otherwise specifically provided in this
paragraph, the failure of either party to insist in any instance on the strict
performance of any provision of this Agreement or to exercise any right
hereunder shall not constitute a waiver of such provision or right in any other
instance.
24. Entire Agreement/Amendment. This instrument contains the entire
agreement of the parties relating to the subject matter hereof, and the parties
have made no agreement, representations, or warranties relating to the subject
matter of this Agreement that are not set forth herein. This Agreement may be
amended at any time by written agreement of both parties, but it shall not be
amended by oral agreement. This Agreement terminates any and all prior
Agreements relating to the terms of Executive's employment including, but not
limited to, the agreement between the parties hereto dated August 1, 1996,
notwithstanding any provisions therein which would purport to apply after the
term of that agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESSETH WHEREOF, the parties have executed this Agreement on the
date first above written.
THERAGENICS CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------
ATTEST: Title: Executive Vice President, Secretary,
------------------------------------
/s/ Xxxxxx X. Xxxxxx Treasurer and Chief Financial Officer
--------------------- -------------------------------------
Title: Assistant Secretary
[CORPORATE SEAL]
EXECUTIVE:
/s/ M. Xxxxxxxxx Xxxxxx
-----------------------
M. XXXXXXXXX XXXXXX
