THIS SECOND AMENDMENT TO THE EMPLOYMENT AGREEMENT (hereinafter referred
to as the "Agreement") is entered into this 30th day of September, 1999, and
effective as of January 1, 1999, by and between Nu-Tec., L.T.D. (hereinafter
referred to as the "Employer'), a Colorado corporation with its executive
offices located at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx #X-0, Xxxxxxxx, Xxxxxxxx 00000,
and Xxxxxxx Xxxxxxxx (hereinafter referred to as the "Employee"). This Agreement
amends and supersedes that certain Amended Employment Agreement between the
parties dated effective as of January 1, 1996, and terminating on December 31,
2001.
WITNESSETH:
WHEREAS:
1. The Employer is engaged in the business of developing, manufacturing
and distributing radiochemical and radiopharmaceutical products.
2. The Employee has certain expertise in the above-described business.
3. The Employer desires to employ the Employee and the Employee desires
to be employed by the Employer upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Employer hereby employs, engages and hires the
Employee as the Chief Executive Officer of the Employer and the Employee hereby
accepts and agree~ to such employment, hiring and engagement and to the orders,
advice and direction of the Employer. The Employee, in his capacity as the Chief
Executive Officer of the Employer, shall manage and direct the overall programs
and activities of the Employer in the day-to-day operations of the business of
the Employer. In addition, the Employee shall have and perform such other duties
as are customarily performed by one holding such position in other businesses or
enterprises that are the same as or similar to that engaged in by the Employer,
and shall have and perform such unrelated duties and services as may be assigned
to him from time to time by the Board of Directors of the Employer. The Employee
agrees to abide by the Company policies and procedures established from time to
time by the Employer. The exact nature of the duties of the Employee shall be
more fully outlined and defined in a formal job description between the Employer
and the Employee, copies of which, as amended from time to time, shall be
attached hereto and incorporated herein by this reference. The Employee shall
accept from the Employer, as full compensation for his services, including,
without limitation, any services rendered by him as an officer or director of
the Employer or of any parent, subsidiary or affiliate of the Employer, the
compensation in the form of salary and shares of common stock, no par value per
share (hereinafter referred to as the" Common Stock"), of the Employer as
provided in Section 4 below.
2. Best Efforts of Employee. The Employee agrees that he will at all
times faithfully, industriously and to the best of his ability, experience and
talents perform to the reasonable satisfaction of the Employer all of the duties
that may be required of and from him pursuant to the express and implicit terms
of this Agreement. Such duties shall be rendered at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx #X-0, Xxxxxxxx, Xxxxxxxx 00000, and at such place or places and during
such hours as the Employer shall in good faith require or as the interest,
needs, business or opportunity of the Employer shall require.
3. Term of Employment. The term of this Agreement shall be a period of
three (3) years, commencing January 1, 1999, and terminating December 31, 2001,
subject, however, to prior termination as hereinafter provided.
4. Compensation of Employee. The Company shall pay or furnish the
Employee, and the Employee shall accept from the Company, as full compensation
for the Employee's services, including, without limitation, any services
rendered by him as an officer or director of the Employer or of any parent,
subsidiary or affiliate of the Employer, the following compensation:
a. A gross salary of $125,000 per annum, payable in equal monthly
installments once or twice per month on the first day of each month during the
term of this Agreement. New additions or changes to an original license
application not in the original application, further incentive compensation in
the minimum amount not less than $40,000 per license application will apply.
b. In the event that Employer receives major funding from
investment sources, the Board of Directors may, in its sole discretion,
determine to pay additional incentive compensation to Employee for the
performance of services not customarily performed by the President or Chief
Executive Officer of a radiopharmaceutical company, in such amounts and forms as
shall be established by it. The nature, extent, complexity and other factors in
connection with such services shall be presented to and evaluated by the Board
of Directors of the Employer at a Special Meeting of the Board of Directors
called for that purpose.
5. Prior Non-Payment or Underpayment of Compensation. Employer is a
start-up company and has, from time to time prior to the execution of this
Agreement been unable to pay Employee all compensation due to Employee under the
previous Agreements. Employee hereby waives his right to any and all
compensation due to Employee under the previous Agreements (whether such
compensation was due under the original form of this Agreement, or under the
First Amended form) for calendar years prior to 1999, but unpaid during such
period. Employee and Employer mutually acknowledge that any amounts of
compensation waived by Employee under this paragraph may be considered by the
Board of Directors of Employee in establishing any additional incentive
compensation paid to Employee under paragraph 4.b. above.
6. Termination.
a. This Agreement may be terminated by the Employee upon sixty
(60) days' prior written notice to the Employer. If the Employee shall so
terminate this Agreement, the Employee shall be entitled to be paid only through
the date of such termination.
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b. (1) The Employer, by a majority vote of the Board of Directors,
may terminate this Agreement at any time for cause, as defined below, without
notice to the Employee and with pay only through the date of such termination.
(2) Sufficient cause for termination by the Employer shall be
a determination made in good faith and based upon reasonable grounds that the
Employee: (a) has failed to properly perform his material duties hereunder, or
has been substantially absent from employment for material amounts of time; (b)
has engaged in habitual drunkenness or abusive drugs rendering the Employee
unable to carry our his duties in a responsible manner; (c) has committed an act
with the intent to defraud or hinder the Employer; or (d) has been negligent in
the performance of the duties owed by the Employee to the Employer,
(3) As soon as may be practicable after the termination of
the Employee by the Employer for cause, the Board of Directors of the Employer
shall make an investigation of, and allow the Employee an opportunity to discuss
with the Board of Directors, the relevant facts with respect thereto. If the
Board of Directors of the Employer shall determine that the Employee has been
terminated without cause, the Employee shall be reinstated in the position which
he held prior to the termination and shall receive any compensation accrued or
payable during the period of his termination. In such event, any accrued
benefits shall be payable to the Employee as if the Employee had not been
terminated.
(4) Any conduct of the Employee which shall constitute cause
for termination under the terms of subsection b. (2) of this Section 6 and any
breach or evasion of any of the terms of this Agreement by either party hereto
will result in immediate and irreparable injury to the injured party and will
authorize recourse to injunction and/or specific performance as well as to all
other legal or equitable remedies to which such injured panty may be entitled
hereunder.
c. If the Employee shall die during the term of this Agreement,
this Agreement and the Employee's employment hereunder shall terminate
immediately upon the Employee's death, provided that the Employee shall be
entitled to his salary hereunder to the last day of the sixth month following
the month in which such death occurs.
d. (1) Notwithstanding anything in this Agreement to the contrary,
the Employer is hereby given the option to terminate this Agreement and the
Employee's employment hereunder in the event that the Employee, during the term
hereof, shall become permanently disabled as defined in subsection d.(2) of this
Section 6 below. Such option may be exercised by the Employer at any time after
the Employee becomes permanently disabled by giving written notice of
termination to the Employee. This Agreement and the Employee's employment shall
terminate one hundred eighty (180) days after such notice, provided that the
Employee shall be entitled to the compensation as provided in Section 4. hereof
to the last day of the month in which such termination occurs.
(2)For purposes of this Agreement, the Employee shall be deemed to have
become permanently disabled if, because of ill health, physical or mental
disability or for other causes beyond his control, he shall have been unable or
unwilling or shall duties hereunder on seventy-five per cent (75%) of the days
during a period of four (4)consecutive months, irrespective of whether or not
such days are consecutive.
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7. Extent of Service: Self-Dealing. The Employee shall devote his full,
normal working time, attention and energy to the business of the Employer and,
as assigned by the Board of Directors of the Employer, to the business of
corporations affiliated with the Employer, and shall not during the term of this
Agreement be engaged in any other business activity which conflicts with the
Employee's obligations under this Agreement. The foregoing shall not be
construed as preventing the Employee from making investments in businesses or
enterprises provided such investments do not require any services on the part of
the Employee in the management, operation or affairs of such businesses or
enterprises.
The Employee shall cooperate with, assist and furnish information upon
request to the President or the Board of Directors of the Employer or of the
directors or affiliates of the Employer and the auditors and legal counsel for
the Employer or its affiliates. The provisions of this Section 6 shall survive
termination of this Agreement with respect to matters arising during the period
of employment of the Employee by the Employer.
8. Disclosures of Information. The Employee recognizes and acknowledges
that he has and will have access to certain confidential information of the
Employer and its affiliates, such as data accumulation and analysis of
technology, specifications, intellectual property, applications for
radiochemical and radiopharmaceutical products, lists of clients or customers,
know-how and other proprietary information, that are valuable, special and
unique assets and property of the Employer and such affiliates. The Employee
will not, after the term of his employment, disclose, without the prior written
consent or authorization of the Employer, any of such information to any firm,
person, corporation, association, enterprise or other entity. In the event a
third party seeks to compel disclosure of confidential information by the
Employee by judicial or administrative process, the Employee shall promptly
notify the Employer of such occurrence and furnish to the Employer a copy of the
demand, summons, subpoena or other process served upon the Employee to compel
such disclosure, and will permit the Employer to assume, at the Employer's
expense but with the Employee's cooperation, defense of the disclosure demand.
Upon termination of the Employee's employment by the Employer, the
Employee shall neither take or retain any proprietary papers, customer lists,
manuals, files or other documents or copies thereof belonging to the Employer or
any of its affiliates.
The provisions of this Section 8, shall survive the termination of
this Agreement. In the event of a breach or threatened breach by the Employee of
the provisions of this Section 8, the Employer shall be entitled to an
injunction restraining the Employee from disclosing, in whole or in part, such
confidential information. Nothing herein shall be construed as prohibiting the
Employer from pursuing any other remedies available to the Employer for such
breach or threatened breach, including the recovery of damages from the
Employees.
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9. Vacation. The Employee shall be entitled to a vacation of six (6)
weeks per year, plus customary local holidays, during the term of this
Agreement. The Employee shall be entitled to receive all compensation payable
hereunder in full during the period of any vacation.
10. Other Benefits. The Employee shall be entitled to all other
benefits contained in the approved Company benefit plan(s) offered to all
employees, subject to the provisions of such plan(s). This plan includes
holidays, sick leave and other benefits.
11. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by registered
or certified mail to his last known address, in the case of the Employee, or to
the principal executives offices of the Company, in the case of the Employer.
12. Waiver of Breach. Any waiver by the Employer of a breach of any
provision of this Agreement by the Employee shall not operate or be construed as
a waiver of any subsequent breach by the Employee.
13. Assignment. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Employer.
14. Applicable Law. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special proceedings
here under be construed in accordance with and pursuant to the laws of the State
of Colorado and that in any action, special proceeding or other proceeding that
may be brought arising out Of, in connection with or by reason of this
Agreement, the laws of the State of Colorado shall be applicable and shall
govern to the exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be instituted.
15. Severability. All agreements and covenants contained herein are
severable, and in the event any of them, with the exception of those contained
in Sections ~ and 4 hereof, shall be held to be invalid by any competent court,
this Agreement shall be interpreted as if such invalid agreements or covenants
were not contained herein.
16. Entire Agreement. This Agreement constitutes and embodies the
entire understanding and agreement of the parties and supersedes and replaces
all prior understandings, agreements and negotiations between the parties,
provided that nothing herein shall be deemed to restrict or limit the common law
duties of the Employee to the Employer.
17. Waiver and Modification. Any waiver, alteration or modification of
any of the provisions of this Agreement shall be valid only if made in writing
and signed by the parties hereto. Each party hereto, from time to time, may
waive any of his or its rights hereunder without effecting a waiver with respect
to any subsequent occurrences or transactions hereof
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18. Captions and Paragraph Heading. Captions and paragraph headings
used herein are for convenience only, are not a part hereof and shall not be
used in construing this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxxx
--------------------
Xxxxxxx X Xxxxxxxx
EMPLOYER
NU-TEC, L.T.D.
Attest:
/s/ Xxxxx X. Xxxxx, Secretary By: /s/Xxxxxxx X. Xxxxxxxx
----------------------------- ----------------------
Xxxxx X. Xxxxx, Secretary Xxxxxxx X. Xxxxxxxx
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