AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.11C
AMENDMENT
TO EMPLOYMENT AGREEMENT
THIS AMENDMENT (the “Amendment”) is
dated December 31, 2008, between THERAGENICS CORPORATION, a Delaware corporation
(the “Company”) and M. XXXXXXXXX XXXXXX, an individual resident of Georgia (the
“Executive”).
INTRODUCTION:
The Company and the Executive entered
into that certain employment agreement dated April 13, 2000, as amended
(the “Employment Agreement”). The parties hereto now desire to amend
the Employment Agreement to comply with Section 409A of the Internal Revenue
Code.
NOW, THEREFORE, and in
consideration of the Executive’s continued employment with the Company, the
Company and the Executive hereby mutually agree that the Employment Agreement is
amended as follows:
1. By adding the
following to the end of Section 9(c):
“(i) If
the Company wishes to terminate the Executive’s employment as a result of a
Disability, the Company must provide the written Notice of Termination at least
thirty (30) days in advance of the Date of Termination.
(ii)
If the Executive wishes to terminate her employment for Good Reason, the
Executive must give written Notice of Termination at least ten (10) days before
the Date of Termination; provided, however, that if the Company cures the event
within such ten (10) day period, the Executive may not resign for Good
Reason.
(iii) If
the Executive wishes to terminate her employment without Good Reason, the
Executive must give written Notice of Termination at least two (2) weeks before
the Date of Termination; provided, in the sole discretion of the Company, the
Company may waive such notice.
(iv) If
the Company wishes to terminate the Executive’s employment without Cause, the
Company must give the Executive written Notice of Termination at least two (2)
weeks before the Date of Termination.
(v) If
the Company wishes to terminate the Executive’s employment for Cause, the
Company may terminate the Executive’s employment as soon as the Notice of
Termination is given.”
2.
By deleting the existing language of Section 10(a)(i), 10(c)(i) and 10(d)(i) and
inserting in lieu thereof the following language:
“payment of all Accrued
Obligations;”
3.
By adding the following to the end of Section 10(a)(ii) before the
semicolon:
“, which
sum shall be payable in one lump sum in cash as soon as practicable but no later
than ninety (90) days following the Date of Termination, provided, however, that
if the Executive is a ‘specified employee’ within the meaning of Code Section
409A, then to the extent required to avoid a tax under Code Section 409(A),
payment shall be delayed until six (6) months after the Date of Termination, and
provided further, that any payment made after the Date of Termination will be
increased by interest at the applicable federal rate under Code Section 1274(d)
from the Date of Termination until the date of payment”.
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4.
By deleting the existing language of Sections 10(a)(iv) and 10(c)(iii) and
adding in lieu thereof the following language:
“two (2) times the annual amount that
the Company most recently paid to Executive to allow Executive to purchase
supplemental long-term disability insurance and the related tax gross-up thereon
paid by the Company, payable at the same time as the payment in Section
10(a)(ii) (with interest as provided in Section 10(a)(ii)), and continued group
health (including dental) plan coverage (other than under a flexible spending
arrangement) for Executive (and Executive’s spouse and eligible dependents to
the extent they were covered before the Date of Termination) which is generally
available to executive officers 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
other executive officers of the Company from time to time for comparable
coverage; provided, however, that the Company may require the Executive to make
an election pursuant to COBRA to continue such group health plan coverage, and
provided that if any group health plan is a self-insured health plan subject to
Section 105(h) of the Internal Revenue Code or the plan is an insured plan and
the insurer does not consent to continuing coverage after the COBRA continuation
coverage period, the Company will in lieu of such coverage in the case of a
self-insured plan or in lieu of such coverage after the COBRA continuation
period in the case of an insured plan, pay Executive a dollar amount equal to
the excess of the COBRA premium over the premium that would be paid by an
actively employed executive officer for the same group health plan coverage,
plus a tax gross-up equal to seventy five percent (75%) of such dollar amount,
and in such event, such amount will be paid on a monthly basis as and when COBRA
premiums are or would be due, except that if the Executive is a ‘specified
employee’ within the meaning of Code Section 409A, to the extent required to
avoid a tax under Code Section 409A, all payments will be delayed until six (6)
months following the Date of Termination.”
5.
By adding the following to the end of the last sentence of Section 13(d), the
end of the first sentence of section 13(e), and the end of the second sentence
of Section 13(e):
“provided,
however, that payment will be made no later than the end of the next year
following the year in which Executive remits the related taxes.”
6.
By deleting the existing language of Section 17(b) therefrom and inserting in
lieu thereof the following:
“ ‘Accrued Obligations’
shall mean:
(i)
the Executive’s full Base Salary through the Date of Termination, which shall be
payable in accordance with the Company’s ordinary payroll
practices,
(ii) any
unpaid but accrued Annual Bonus, which shall be paid in accordance with the
timing requirements of the applicable bonus plan or the Company’s normal timing
for paying bonuses,
(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
dominator of which is 365, which shall be payable as soon as practicable but no
later than ninety (90) days following the Date of Termination, provided,
however, that if the Executive is a ‘specified employee’ within the meaning of
Code Section 409A, then to the extent required to avoid a tax under Code Section
409A, payment shall be delayed until six (6) months after the Date of
Termination, except in the event of death, and provided further that the payment
will be increased by interest at the applicable federal rate under Code Section
1274(d) from the Date of Termination to the date of payment,
(iv) any
compensation previously deferred by the Executive (together with accrued
earnings thereon) and not yet paid by the Company, payable at the time and in
accordance with the provisions of the applicable plan or agreement,
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(v) any
accrued vacation pay for the current year not yet paid by the Company, payable
as soon as practicable but no later than ninety (90) days following the Date of
Termination, provided, however, that if the Executive is a ‘specified employee’
within the meaning of Code Section 409A, then to the extent required to avoid a
tax under Code Section 409A, payment shall be delayed until six (6) months after
the Date of Termination, except in the event of death, and provided further that
the payment will be increased by interest at the applicable federal rate under
Code Section 1274(d) from the Date of Termination to the date of
payment,
(vi) 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,
payable in accordance with the terms of such plans or policies, and
(vii) 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), payable in accordance with the Company’s policy.”
7.
By deleting the existing language of Section 17(p) and inserting in lieu thereof
the following:
“ ‘Date of Termination’
shall mean the date of the Executive’s ‘separation from service’ within the
meaning of Code Section 409A.”
8.
By adding the following new Section 17(y):
“ ‘Code’ means the
Internal Revenue Code of 1986, as amended.”
9.
By adding the following new Section 17(z):
“ ‘Termination of
employment’ and similar terms shall refer solely to a ‘separation from
service’ within the meaning of Code Section 409A.”
Except as specifically amended hereby,
the Employment Agreement shall remain in full force and effect as prior to this
Amendment.
IN WITNESS WHEREOF, the parties have
caused this Amendment as of the day and year first above written.
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THERAGENICS
CORPORATION:
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By:
/s/ Xxxxx X.
Xxxxx
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Print
Name: Xxxxx X.
Xxxxx
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Title:
Secretary
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M.
XXXXXXXXX XXXXXX:
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/s/ M. Xxxxxxxxx
Xxxxxx
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