THIS DOCUMENT HAS BEEN SANITIZED WITH THE DOCCLEAN MACRO!
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of the 1st day of January, 1999, between
THERAGENICS CORPORATION, a Georgia corporation (the "Company"), and BRUCE W.
SMITH (the "Executive").
INTRODUCTION
The Company and the Executive desire to enter into an employment
agreement embodying the terms and conditions of the Executive's employment.
NOW, THEREFORE, the parties agree as follows:
1. Definitions
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(a) "Affiliate" means any person, firm, corporation, partnership,
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association or entity that, directly or indirectly or through one or more
intermediaries, controls, is controlled by or is under common control with the
Company.
(b) "Applicable Period" means (i) the period of the Executive's
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employment hereunder and (ii) after termination of employment, the shorter of
the period for which the Executive receives severance pay hereunder or a two (2)
year period after termination of his employment with the Company, unless the
Executive is terminated with the Company with Cause or terminates his employment
other than for Good Reason, in which case a two (2) year period after
termination of employment with the Company shall apply.
(c) "Area" means the United States.
(d) "Board of Directors" means the Board of Directors of the Company
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(e) "Business of the Company" means any business that involves the
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manufacturing and distribution of implantable radiation devices used in the
treatment of cancer.
(f) "Cause" means the occurrence of any of the following events: (i)
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willful and continued failure (other than such failure resulting from his
incapacity during physical or mental illness) by the Executive to substantially
perform his duties with the Company or an Affiliate; (ii) conduct by the
Employee that amounts to willful misconduct or gross negligence; (iii) any act
by the Executive of fraud, misappropriation, dishonesty, embezzlement or similar
conduct against the Company or an Affiliate; (iv) commission by the Executive of
a felony or any other crime involving dishonesty; (v) the habitual and disabling
use by the Executive of alcohol or drug; or (vi) a material breach of the
Agreement by the Executive.
(g) "Change in Control" means
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(1) 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 (1), the following acquisitions shall not be
deemed to result in a Change of Control: (i) any acquisition directly from the
Company, (ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company or (iv) any acquisition by any
corporation pursuant to a transaction that complies with clauses (i), (ii) and
(iii) of Subsection (3) 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 (i) or (ii) 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
(2) individuals who as of the date hereof, constitute the
Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors; 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 of Directors; or
(3) 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 (i) 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 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, (ii) 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 (iii) 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
(4) 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 his capacity as
Executive.
(h) "Company Invention" means any Invention which is conceived by the
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Executive alone or in a joint effort with others during the period of the
Executive's employment hereunder which (i) may be reasonably expected to be used
in a product of the Company, or a product similar to a Company product, (ii)
results from work that the Executive has been assigned as part of his duties as
an employee of the Company, (iii) is in an area of technology which is the same
or substantially related to the areas of technology with which the Executive is
involved in the performance of his duties as an employee of the Company, or (iv)
is useful, or which the Executive reasonably expects may be useful, in any
manufacturing or product design process of the Company.
(i) "Competing Business" means any person, firm, corporation, joint
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venture or other business entity which is engaged in the Business of the Company
(or any aspect thereof) within the Area.
(j) "Confidential Information" means data and information relating to
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the business of the Company (which does not rise to the status of a Trade
Secret) which is or has been disclosed to the Executive or of which the
Executive became aware as a consequence of or through its relationship to the
Company and which has value to the Company and is not generally known to its
competitors. Confidential Information shall not include any data or information
that has been voluntarily disclosed to the public by the Company (except where
such public disclosure has been made by the Executive without authorization) or
that has been independently developed and disclosed by others, or that otherwise
enters the public domain through lawful means. The provisions in this Agreement
restricting the use of Confidential Information shall survive for a period of
two (2) years following termination of this Agreement.
(k) "Disability" means the inability of the Executive to perform any of
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his duties hereunder due to a physical, mental, or emotional impairment, as
determined by an independent qualified physician (who may be engaged by the
Company), for a ninety (90) consecutive day period or for an aggregate of one
hundred eighty (180) days during any three hundred sixty-five (365) day period.
(l) "Good Reason" means the occurrence of any of the following events
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which is not corrected by the Company within thirty (30) days after the
Executive's written notice to the Company of the same: (i) the nature of the
Executive's duties or the scope of his responsibilities are materially modified
without the Executive's written consent, (ii) the Executive is required to
report to a different position without the Executive's written consent, (iii)
the Company changes the location of the Executive's place of employment to more
than fifty (50) miles from its present location, or (iv) a material breach of
this Agreement by the Company.
(m) "Invention" means any discovery, whether or not patentable,
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including, but not limited to, any useful process, method, formula, technique,
machine, manufacture, composition of matter, algorithm or computer program, as
well as improvements thereto, which is new or which the Executive has a
reasonable basis to believe may be new.
(n) "Public Offering" means the offering or sale by the Company of
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equity securities pursuant to a registration statement filed in accordance with
the Securities Act of 1933, as amended, or any comparable law then in effect,
and the effective date of any such Public Offering shall be the first day on
which the securities covered thereby may lawfully be offered and sold pursuant
to such registration statement.
(o) "Termination Date" means the date which corresponds to the first to
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Term as provided in Section 4(a) below or (iii) the date set forth in a notice
given pursuant to Section 4(b) below.
(p) "Trade Secrets" means information including, but not limited to,
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technical or nontechnical data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data, financial
plans, product plans or lists of actual or potential customers or suppliers
which (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. The provisions in this Agreement restricting the use of Trade Secrets
shall survive termination of this Agreement for so long as is permitted by the
Georgia Trade Secrets Act of 1990, O.C.G.A. ss.ss. 10-1-760-10-1-767.
(q) "Work" means a copyrightable work of authorship, including without
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limitation, any technical descriptions for products, user's guides,
illustrations, advertising materials, computer programs (including the contents
of read only memories) and any contribution to such materials.
2. Terms and Conditions of Employment.
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(a) Employment. The Company hereby employs the Executive as its
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Executive Vice President and Chief Financial Officer and the Executive accepts
such employment with the Company in such capacity, and agrees to serve as
Secretary and Treasurer as long as he is appointed to such positions, subject to
the terms and conditions hereof. The Executive shall report to the Chief
Executive Officer and the Board of Directors and shall have such authority and
responsibilities and perform such duties as shall reasonably be assigned to the
Executive from time to time by the Chief Executive Officer of the Company.
(b) Exclusivity. Throughout the Executive's employment hereunder, the
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Executive shall devote substantially all the Executive's time, energy and skill
during regular business hours to the performance of the duties of the
Executive's employment (vacations and reasonable absences due to illness
excepted), shall faithfully and industriously perform such duties, and shall
diligently follow and implement all management policies and decisions of the
Company.
3. Compensation.
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(a) Base Salary. In consideration for the Executive's services
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hereunder, the Company shall pay to the Executive an annual base salary in the
amount of $150,000 initially. The Executive's annual base salary shall be
reviewed at least annually by the Company, and the Company may increase the
Executive's annual base salary from time to time. The Company shall pay annual
base salary in accordance with the normal payroll payment practices of the
Company and subject to such deductions and withholdings as law or policies of
the Company, from time to time in effect, require.
(b) Bonus. In addition to the annual base salary payable under Section
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3(a) hereof, the Executive shall be entitled to discretionary annual bonuses.
The maximum annual bonus shall be equal to 20% of the Executive's annual base
salary. The actual amount of bonus paid annually will be determined by the Chief
Executive Officer based upon the Chief Executive Officer's evaluation of the
Executive's performance. However, in the event that the Company adopts a bonus
program that applies generally to executive officers, such program will apply
for the Executive notwithstanding the provisions of this Subsection (b).
(c) Stock Based Compensation. Stock options or other stock-based
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compensation will be awarded to the Executive at the discretion of the Board
of Directors, or a committee thereof, and pursuant to the Company's stock
incentive plan.
(d) Vacation. The Executive shall be entitled to four weeks of
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vacation per year, to be taken at times mutually convenient to the Company
and the Executive.
(e) Automobile. The Company will provide the Executive with the use of
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a Company-owned leased vehicle or, in the alternative, the Company may choose to
provide the Executive with a car allowance of at least $400 per month, net of
federal, state and social security taxes.
(f) Memberships. The Company will reimburse the Executive for one club
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membership which has a business related purpose and is approved by the Company.
(g) Financial, Tax and Estate Planning. The Company will reimburse the
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Executive for the cost of personal financial, tax, and estate planning and
services in an amount not to exceed $4000 per year from the date hereof.
(h) Annual Physical. The Company will pay the expenses associated
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with an annual physical examination for the Executive.
(i) Life Insurance. During the term of this Agreement, the Company
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will provide the Executive with term life insurance coverage in accordance
with its group term life insurance program. Subject to the availability of
supplemental coverage under the terms of the Company's program, the Company
will reimburse the Executive for his cost of premiums under its group term
life insurance program for additional optional coverage up to the lesser
of an additional$200,000 death benefit or an aggregate death benefit up to
$450,000.
(j) Expenses. The Executive shall be entitled to be reimbursed in
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accordance with the policies of the Company, as adopted and amended from time
to time, for all reasonable and necessary expenses incurred by the Executive
in connection with the performance of the Executive's duties of employment
hereunder; provided, however, the Executive shall, as a condition of such
reimbursement, submit verification of the nature and amount of such expenses in
accordance with the reimbursement policies from time to time adopted by the
Company.
(k) Benefits. In addition to the benefits payable to the Executive
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specifically described herein, the Executive shall be entitled to such benefits
as generally may be made available to executive employees of the Company from
time to time; provided, however, that nothing contained herein shall require the
establishment or continuation of any particular plan or program.
4. Term, Termination and Termination Payments.
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(a) Term. The term of this Agreement (the "Term") shall commence as of
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the date of this Agreement (the "Commencement Date") and shall expire on the
fifth (5th) anniversary of the Commencement Date with automatic extensions for
successive additional one-year terms, as provided herein. Ninety (90) days
before the end of the fourth (4th) year and ninety (90) days before the end of
each year thereafter, the Agreement is extended for an additional one year
period unless either party gives prior notice of termination. In the event prior
notice of termination is given, this Agreement shall terminate at the end of the
remaining Term then in effect.
(b) Termination. This Agreement and the Executive's employment by the
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Company hereunder may only be terminated before expiration of the Term (i) by
mutual agreement of the Executive and the Company; (ii) by the Executive with
Good Reason upon not less than two (2) weeks prior notice to the Company; (iii)
by the Company without Cause; (iv) by the Company for Cause, or (v) by the
Company or the Executive due to the Disability of the Executive. This Agreement
shall also terminate immediately upon the death of the Executive. Notice of
termination by either the Company or the Executive shall be given in writing and
shall specify the basis for termination and the effective date of termination.
(c) Effect of Termination. Upon termination of this Agreement and the
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Executive's employment hereunder, the Company shall have no further obligation
to the Executive or the Executive's estate with respect to this Agreement,
except for payment of salary and bonus amounts, if any, accrued pursuant to
Section 3(a) or 3(b) hereof and unpaid at the Termination Date, and termination
payments, if any, set forth in Section 4(e) or 4(f) hereof, as applicable,
subject to the provisions of Section 12 hereof. Neither Section 4(e) nor 4(f)
applies to a Termination due to the Executive's Disability or death. Nothing
contained herein shall limit or impinge any other rights or remedies of the
Company or the Executive under any other agreement or plan to which the
Executive is a party or of which the Executive is a beneficiary.
(d) Survival. The covenants of the Executive in Sections 5, 6, 7, 8 and
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9 hereof shall survive the termination of this Agreement and the Executive's
employment hereunder and shall not be extinguished thereby.
(e) Certain Terminations not in Connection with a Change in Control.
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Except as set forth in Section 4(b)(i) hereof, upon termination of the
Executive's employment by the Company without Cause or by the Executive for Good
Reason, the Company shall be obligated to continue to pay the Executive his
annual base salary at the time of termination of employment for the remaining
Term of this Agreement or until two (2) years after such termination (whichever
occurs first). Payments made under this Section 4(e) shall be paid as a salary
continuation.
(f) Certain Terminations in Connection with a Change in Control. Except
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as set forth in Section 4(b)(i) hereof, upon termination of Executive's
employment, within ninety (90) days preceding or within one (1) year after a
Change in Control, by the Company without Cause or by the Executive for Good
Reason, the Company shall be obligated to pay the Executive an amount equal to
whichever of the following results in the Executive receiving a larger after-tax
amount: (i) two times the Executive's annual base salary at the time of
termination of employment or (ii) if less than two times the Executive's annual
base salary at the time of Termination of employment, then the largest amount
that could be paid to the Executive, which will not result in a nondeductible
"parachute payment" under Section 280G of the Internal Revenue Code. Such amount
shall be paid to the Executive ratably over two (2) years following termination.
5. Agreement Not to Compete and Not to Solicit Customers.
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(a) Agreement Not to Compete. The Executive agrees that commencing on
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the Commencement Date and continuing through the Applicable Period, he will not
(except on behalf of or with the prior written consent of the Company, which
consent may be withheld in Company's sole discretion), within the Area, either
directly or indirectly, on the Executive's own behalf, or in the service of or
on behalf of others, engage in or provide financial management services of a
similar type or nature as he performs for the Company to any Competing Business.
For purposes of this Section 5, the Executive acknowledges and agrees that the
Business of the Company is conducted in the Area.
(b) Agreement Not to Solicit Customers. The Executive agrees that
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commencing on the Commencement Date and continuing through the Applicable
Period, or he will not, either directly or indirectly, on the Executive's own
behalf or in the service of or on behalf of others, solicit or divert, or
attempt to solicit or divert, to a Competing Business, any individual or entity
which was an actual or actively sought prospective client or customer of the
Company and with whom the Executive had material contact during the Executive's
last two year(s) of employment with the Company.
6. Agreement Not to Solicit Employees.
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The Executive agrees that commencing on the Commencement Date and
continuing through the Applicable Period, he will not, either directly or
indirectly, 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, to any
Competing Business in the Area any person employed by the Company or an
Affiliate, whether or not such employee is a full-time employee or a temporary
employee of the Company or an Affiliate and whether or not such employment is
pursuant to written agreement and whether or not such employment is for a
determined period or is at will.
7. Ownership and Protection of Proprietary Information.
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(a) Confidentiality. All Confidential Information and Trade Secrets and
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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 him 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
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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 pursuant to Section 4(e) or 4(f) 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
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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 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.
8. Inventions.
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(a) Company Inventions. The Executive agrees that all Company
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Inventions conceived or first reduced to practice by the Executive during the
Term of this Agreement, and all patent rights and copyrights to such Company
Inventions shall become and remain the property of the Company, and the
Executive hereby irrevocably assigns to the Company all of his rights to all
Company Inventions. If the Executive conceives an Invention during the Term of
this Agreement for which there is a reasonable basis to believe that the
conceived Invention is a Company Invention, the Executive shall promptly provide
a written description of the conceived Invention to the Company adequate to
allow evaluation thereof for a determination by the Company as to whether the
Invention is a Company Invention. Notwithstanding the foregoing, the provisions
of this Section 8(a) shall not apply to any Invention that the Executive may
develop without using the Company's equipment, supplies, facilities, or trade
secret information, except for any Inventions that either (i) relate at the time
of conception or reduction to practice of the Invention to the Business of the
Company, or to actual or demonstrably anticipated research or development of the
Company; or (ii) result from any work performed by the Executive for the
Company.
(b) Prior Inventions. If prior to the Commencement Date the Executive
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conceived any Invention or acquired any ownership interest in any Invention
which (i) is the property of the Executive, or of which the Executive is a joint
owner with another person or entity, (ii) is not described in any issued patent
as of the Commencement Date, and (iii) would be a Company Invention if such
Invention were made during the Term of this Agreement, then (A) with respect to
any such Invention described in Exhibit A attached hereto, the Executive hereby
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agrees that such written description (but no rights to the Invention) is and
shall remain the property of the Company and (B) with respect to any such
Invention not described in Exhibit A attached hereto, the Executive hereby
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grants to the Company a nonexclusive, paid up, royalty-free license to use and
practice such Invention, including a license under all patents to issue in any
country which pertain to such Invention.
(c) Prior Patents. The Executive represents to the Company that the
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Executive owns no patents or copyrights, individually or jointly with others,
except those described in Exhibit A attached hereto.
(d) Patent Applications. The Executive agrees that should the Company
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elect to file an application for patent protection, either in the United States
or in any foreign country, on a Company Invention of which the Executive was an
inventor, the Executive will execute all necessary truthful papers, including
formal assignments to the Company relating to such patent applications. The
Executive further agrees to cooperate with any attorneys or other persons
designated by the Company by explaining the nature of any Company Invention for
which the Company elects to file an application for patent protection, reviewing
applications and other papers and providing any other cooperation reasonably
required for orderly prosecution of such patent applications. The Company shall
be responsible for all expenses incurred for the preparation and prosecution of
all patent applications on Company Inventions filed by the Company.
9. Copyrights.
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(a) Ownership and Assignment. The Executive acknowledges and agrees
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that any Works created by the Executive in the course of his employment
hereunder are subject to the "Work for Hire" provisions contained in Sections
101 and 201 of the United States Copyright Law, Title 17 of the United States
Code, and that all right, title and interest to copyrights in all Works which
have been or will be prepared by the Executive within the scope of his
employment hereunder shall be the property of the Company. The Executive further
acknowledges and agrees that, to the extent the provisions of Title 17 of the
United States Code do not vest in the Company the copyrights to any Works, the
Executive will assign and hereby does assign to the Company all right, title and
interest to copyrights which the Executive may have in such Works.
(b) Registration. The Executive agrees to disclose to the Company all
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Works referred to in the immediately preceding paragraph and execute and deliver
all applications for registration, registrations, and other documents relating
to the copyrights to the Works and provide such additional assistance, as the
Company may deem necessary and desirable to secure the Company's title to the
copyrights in the Works. The Company shall be responsible for all expenses
incurred in connection with the registration of all such copyrights.
(c) Prior Works. The Executive claims no ownership rights in any
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Works, except as described in Exhibit A attached hereto.
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10. Contracts or Other Agreements with Former Employer or Business.
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The Executive hereby represents and warrants that he is not subject to
any employment agreement or similar document, except as previously disclosed and
delivered to the Company, with a former employer or any business with which the
Executive has been associated, which on its face prohibits the Executive during
a period of time which extends through the Commencement Date from any of the
following: (i) competing with, or in any way participating in a business which
competes with the Executive's former employer or business; (ii) soliciting
personnel of such former employer or business to leave such former employer's
employment or to leave such business; or (iii) soliciting customers of such
former employer or business on behalf of another business. The Executive hereby
further represents and warrants that he has not executed any agreement with any
other party which, on its face, purports to require the Executive to assign any
Work or any Invention created, conceived or first reduced to practice by the
Executive during a period of time which extends through the Commencement Date
except as previously disclosed in writing to the Company.
11. Remedies.
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The Executive agrees that the covenants and agreements contained in
Sections 5, 6, 7, 8 and 9 hereof are of the essence of this Agreement; that each
of such covenants is reasonable and necessary to protect and preserve the
interests and properties of the Company and the Business of the Company; that
the Company is engaged in and throughout the Area in the Business of the
Company; that the Executive has access to and knowledge of the Company's
business and financial plans; that irreparable loss and damage will be suffered
by the Company should the Executive breach any of such covenants and agreements;
that each of such covenants and agreements is separate, distinct and severable
not only from the other of such covenants and agreements but also from the other
and remaining provisions of this Agreement; that the unenforceability of any
such covenant or agreement shall not affect the validity or enforceability of
any other such covenant or agreements or any other provision or provisions of
this Agreement; and that, in addition to other remedies available to it, the
Company shall be entitled to specific performance of this Agreement and to both
temporary and permanent injunctions to prevent a breach or contemplated breach
by the Executive of any of such covenants or agreements.
12. No Set-Off.
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The existence of any claim, demand, action or cause of action by the
Executive against the Company, or any Affiliate of the Company, whether
predicated upon this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Company of any of its rights hereunder. The existence of
any claim, demand, action or cause of action by the Company against the
Executive, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Executive of any of his rights
hereunder; provided, however, that the Company shall have the right to
discontinue payments to the Executive under Section 4(e) or 4(f) hereof, as
applicable, if the Executive should breach any of his obligations under Sections
5, 6, 7, 8 or 9 hereof.
13. Notice.
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All notices, requests, demands and other communications required
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or if mailed, by United States certified or registered mail, prepaid
to the party to which the same is directed at the following addresses (or at
such other addresses as shall be given in writing by the parties to one
another):
If to the Company: Theragenics Corporation
5325 Oakbrook Parkway
Norcross, Georgia 30093
Attn: Chief Executive Officer
If to the Executive: Bruce W. Smith
3848 Woodrose Court
Lithonia, GA 30058
Notices delivered in person shall be effective on the date of delivery. Notices
delivered by mail as aforesaid shall be effective upon the third calendar day
subsequent to the postmark date hereof.
14. Miscellaneous.
(a) Assignment. Neither this Agreement nor any right of the parties
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hereunder may be assigned or delegated by any party hereto without the prior
written consent of the other party.
(b) Waiver. The waiver by the Company of any breach of this Agreement
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by the Executive shall not be effective unless in writing, and no such waiver
shall constitute the waiver of the same or another breach on a subsequent
occasion.
(c) Arbitration. Any controversy or claim arising out of or relating to
-----------
this contract, or the breach thereof, shall be settled by binding arbitration in
accordance with Commercial Arbitration Rules of the American Arbitration
Association in Atlanta, Georgia. However, the provisions of this Subsection (c)
shall not prevent the Company from instituting an action under this Agreement
for specific performance of this Agreement or injunctive relief as provided in
Section 11 hereof. In the event the Executive prevails in the arbitration, the
Company agrees to reimburse the Executive for all reasonable attorney's fees and
expenses of arbitration.
(d) Applicable Law. This Agreement shall be construed and enforced
--------------
under and in accordance with the laws of the State of Georgia.
(e) Entire Agreement. This Agreement embodies the entire agreement of
----------------
the parties hereto relating to the subject matter hereof and supersedes all oral
agreements, and to the extent inconsistent with the terms hereof, all other
written agreements.
(f) Amendment. This Agreement may not be modified, amended,
---------
supplemented or terminated except by a written instrument executed by the
parties hereto.
(g) Severability. Each of the covenants and agreements hereinabove
------------
contained shall be deemed separate, severable and independent covenants, and in
the event that any covenant shall be declared invalid by any court of competent
jurisdiction, such invalidity shall not in any manner affect or impair the
validity or enforceability of any other part or provision of such covenant or of
any other covenant contained herein.
(h) Captions and Section Headings. Except as set forth in Section 1
-------------------------------
hereof, captions and section headings used herein are for convenience only and
are not a part of this Agreement and shall not be used in construing it.
[Signatures on Following Page]
IN WITNESS WHEREOF, the Company and the Executive have each executed
and delivered this Agreement as of the date first shown above.
THE COMPANY:
THERAGENICS CORPORATION
By: /s/ M. Christine Jacobs
------------------------
M. CHRISTINE JACOBS
Title: Chairman and CEO
ATTEST:
/s/ Ronald A. Warren
- --------------------
RONALD A. WARREN
Title: Asst Secretary
[CORPORATE SEAL]
EXECUTIVE:
/s/ Bruce W. Smith
------------------
BRUCE W. SMITH
Exhibit A
---------
Inventions, Patents and Copyrights
1. Previously Conceived Inventions
-------------------------------
[DESCRIBE ANY INVENTIONS WHICH THE EXECUTIVE DEVELOPED OR
HAS AN OWNERSHIP INTEREST IN. IF NONE, INSERT "NONE".
Note: With respect to any such Inventions not described
herein, the Company shall have a nonexclusive, paid up,
royalty-free license to use and practice such Invention,
including a license under all patents to issue in any
country which pertain to such Invention.]
NONE
2. Patents
-------
[LIST OR DESCRIBE ALL PATENTS WHICH THE EXECUTIVE OWNS
INDIVIDUALLY, WITH OTHERS, OR FOR WHICH APPLICATIONS ARE
PENDING. IF NONE, INSERT "NONE".]
NONE
3. Copyrights
----------
[DESCRIBE ANY WORKS FOR WHICH THE EXECUTIVE CLAIMS THE
COPYRIGHT EITHER INDIVIDUALLY OR WITH OTHERS. IF NONE,
INSERT "NONE".]
NONE