EXHIBIT 10.5
INTERNATIONAL ISOTOPES INC EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (as it may be amended or supplemented, this
"Agreement") is entered into as of February 1, 2001, by and between
International Isotopes Inc., a Texas corporation ("Company"), and Xxxxxxx
Xxxxxx.
RECITALS
A. Company desires to employ Employee as its President and CEO
because of his experience and expertise and to secure his services upon the
terms and subject to the conditions set forth in this Agreement.
B. Employee desires and is willing to accept such employment upon
such terms and subject to the conditions.
THEREFORE, for and in consideration of the foregoing and the mutual
covenants and agreements contained in this Agreement, Company and Employee agree
as follows:
1. Employment. Upon the terms and subject to the conditions
contained in this Agreement, Company hereby employs Employee; and Employee
hereby accepts such employment, upon such terms and subject to such conditions.
2. Duties and Authority.
2.1 Duties of Employee. During the term of this Agreement,
Employee will serve as Company's Chief Executive Officer of International
Isotopes and will faithfully and to the best of his ability perform such duties
consistent with the position of president and CEO as 1 are determined and
directed by the Board of Directors, or as are necessary in the reasonable
judgement of the Employee, to carry out his duties under this Agreement. In his
capacity as President and Chief Executive Officer, Employee will be generally
responsible for the implementation of directives of, and policies and procedures
adopted by the Board of Directors and for the overall day-to-day management of
duties. In performing his duties under this Agreement, Employee will fully
support and cooperate with Company's efforts to develop its markets, expand its
business, and operate profitably and in conformity with business and strategic
plans approved from time to time by Company's Board of Directors.
2.2 Direction from the Board of Directors and Chairman of the
Board. Employee will look primarily to the Board of Directors for direction and
guidance as to the performance of Employee's duties under this Agreement;
however, to facilitate communication between Employee and the Board of
Directors, Employee will report on the status of Employee's activities and the
performance of Employee's duties to the Chairman of the Board of Company at such
times as he may be requested. Employee will receive and participate in a
performance review with the Chairman of the Compensation Committee every six
months or other times if required.
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2.3 Employee's Authority. In performing his duties under this
Agreement, Employee will have such authority as is necessary for him to
implement the directives of, and policies and procedures adopted by the Board of
Directors of the Company and to oversee the management of the Company's day to
day affairs; but, from time to time as thought appropriate by Employee or
Company's Chairman of the Board, Employee will discharge his duties in
consultation with and under the direction of the Chairman of the Board of
Company. Without limiting the generality of the foregoing, in exercising his
authority as Chief Executive Officer of Company, Employee will have the
authority for employing, dismissing, and assigning job duties and
responsibilities to Company's employees.
2.4 Time and Attention to Services. Employee will devote all
of his time and attention to the performance of his duties to Company during the
term of this Agreement. Company, however, recognizes that Employee may be
engaged in other non-conflicting passive business investments and in community
activities unrelated to his duties under this Agreement that will require some
portion of his time, and Company hereby consents to Employee's attention to such
other activities so long as such activities (a) do not hinder Employee's ability
to perform his duties under this Agreement and (b) do not represent a conflict
of interest in contravention of the agreements contained in paragraph 11 or a
competitive activity in contravention of the agreements contained in paragraph
13 of this Agreement.
2.5 Election as an Officer. Company will cause Employee to be
elected to the office of Chief Executive Officer and Board of Directors (as to
such other offices, if any, as Company's Board of Directors determines to be
appropriate).
3. Term and Termination.
3.1 Term. This Agreement is effective as of the Effective Date
and will continue in effect until February 28, 2007, unless it is (a) terminated
in accordance with I paragraph 3.2 or (b) extended in accordance with paragraph
3.3.
3.2 Termination. This Agreement may be terminated prior to
February 28 2007, as follows:
(a) Termination by Mutual Consent. This Agreement may be
terminated at any time by the written mutual consent of Company and Employee.
(b) Termination By Company for Cause. This Agreement may
be terminated by Company at any time for Cause by the delivery to Employee of a
written notice of termination stating the effective date of termination and the
basis upon which this Agreement is being terminated. As used in this Agreement,
the term "Cause" means (a) a material default in the performance of Employee's
duties under this Agreement, or (b) Employee's dishonesty, willful misconduct,
breach of fiduciary duty involving personal profit, willful violation of any
law, rule, or regulation, action (or omission) involving moral turpitude and
reflecting unfavorably upon the public image of Company or its Affiliates, or
action (or omission) abiding or abetting a competitor, supplier or customer of
Company or its Affiliates to the material disadvantage of Company or its
Affiliates; and the term "Affiliate" means any other person or entity who
directly controls, is controlled by, or is under common control with Company or
any Affiliate of Company (and "control" means possession, directly or
indirectly, of power to direct or cause the direction of management or policies,
whether through ownership of voting securities or otherwise). In the event of
termination for Cause, Employee will be entitled to such salary and benefits as
have accrued under this Agreement through the effective date of termination, but
will not be entitled to any other salary, benefits, or other compensation after
such date.
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(c) Termination By Company Without Cause. This Agreement
may be terminated by Company at any time without Cause by (a) the delivery to
Employee of a written notice of termination not less than 60 days prior to the
effective date of termination, or (b) a vote by the Board of Directors and
Shareholders to effect the sale or dissolution of Company. Upon such
termination, Employee will be paid salary and benefits as provided in this
Agreement through the effective date of termination and for the period of 24
months after such date. The Company will not be obligated to pay any bonus after
the effective date of termination except for bonus payments approved by the
Board of Directors and Compensation Committee prior to the effective date of
termination.
(d) Termination of Employee. This Agreement may be
terminated by Employee at any time, with or without Cause, by the delivery to
Company of a written notice of termination not less than 90 days prior to the
effective date of termination. In the event of termination by Employee, Employee
will be entitled to such salary and benefits as have accrued under this
Agreement through the effective date of termination, but will not be entitled to
any other salary, benefits, or other compensation after such date.
(e) Termination Upon Death or Disability of Employee.
This Agreement will be terminated immediately upon the death or permanent
disability (which shall be determined in accordance with Company's disability
plan as then in effect, or if no such plan is then in effect, as determined in
good faith by Company's Board of Directors at such time as Employee becomes
physically or mentally incapable or properly performing his duties under this
Agreement and such incapacity will exist or can reasonably be expected to exist
for a period of ninety days or more) of Employee. In either such event, Employee
or his beneficiary as designated in writing to Company (or his estate, if no
such beneficiary has been designated) will be entitled to such benefits (i) as
are consistent with Company policy then if effect or (ii) as are determined by
Company's Board of Directors in its sole discretion.
3.3 Extension of Term. At the time period thirty-six (36)
months after the effective date of this agreement, Employee and Company will
reset the terms of this agreement, and at that time decide by mutual agreement
to extend the term of the agreement. Each such extension, unless expressly
agreed otherwise by Employee and Company, will be for five years commencing on
January 1 of the year preceding the expiration of the original or any renewal
term. Mutual agreement to extend the term of this Agreement shall be evidenced
by either (a) a written agreement executed by Company and Employee or (b) the
continuation of Employee's performance of services under this Agreement with the
approval of Company and without notice of termination given by Company or
Employee. Any extended term of this Agreement may be terminated as set forth in
paragraph 3.2 above, unless otherwise agreed in writing by Company and Employee.
In the event the term of this agreement is not reset by mutual agreement by
Employee and Company, the original terms of the agreement will continue in force
and the termination date will remain February 25, 2007.
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4. Compensation.
4.1 Base Annual Salary. In consideration for the performance
of his duties under this Agreement, Employee will be paid a base annual salary
of $120,000, which shall be payable (less applicable withholding for federal
taxes) in semi-monthly installments or otherwise in such manner as the salaries
of other executive officers of Company are paid in accordance with Company
policy.
4.2 Annual Salary Review. Company's Board of Directors and
Compensation Committee will review Employee's salary level on an annual basis
and may elect, on the basis of such review, to increase Employee's base annual
salary; but any such increase in Employee's Salary will be made solely at the
discretion of Company's Board of Directors.
Bonus. In addition to the annual salary to be paid to Employee
pursuant to this Agreement, Employee will be considered for an annual bonus at
the end of each calendar or fiscal year of Company. The Board of Directors, at
its discretion, will determine the amount of the bonus, if any, to be paid to
Employee after considering such factors related to the performance of Employee
and of Company during the preceding fiscal year as the Board of Directors
determines to be appropriate.
4.4 Independent Consideration. Concurrently with the execution
of this Agreement, Company is making a payment of $100 to Employee as
independent and additional consideration ("Independent Consideration") for
Employee's agreement to comply with the provisions of paragraph 11 of this
Agreement.
5. Expenses and Reimbursements. Employee will be entitled to
reimbursement for reasonable out-of-pocket expenses incurred by Employee that
are directly attributable to the performance of Employee's duties under this
Agreement. Employee will adhere to Company's customary practices and procedures
with respect to incurring out-of-pocket expenses and will present such expense
statements, receipts, vouchers, or other evidence supporting expenses incurred
by Employee as Company may from time to time request.
6. Benefits. During the term of this Agreement, Employee will be
entitled to the benefits generally provided or made available to other executive
officers of Company, including, but without limitation, such group medical
(including dental) insurance and life insurance benefits as are made available
to employees of Company generally and participation in any "cafeteria" plan or
retirement plan that may be available to employees of Company (subject, however,
to (i) eligibility and (ii) modification or elimination in accordance with
Company's standard policies as in effect from time to time) and to the following
specific benefits:
(a) Vacation. Employee will be entitled to such vacation
time as is allotted to other executive officers of Company (but in no event less
than fifteen working days in any calendar year).
(b) Sick Leave. Employee will be entitled to the
benefits, and subject to all provisions of, Company's standard policies and
procedures regarding sick leave and time off.
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The Company will provide the employee with an equity position in the company in
the month following the 2002 annual stockholders meeting. The amount and terms
of that position will be seperatly described in an employee options agreement.
Confidentiality and Non-Disclosure. Employee acknowledges that in the
performance of his duties to Company under this Agreement he will gain a close,
personal, and special influence with Company's customers and suppliers and will
obtain and/or develop certain trade secrets and valuable, confidential
information of or pertaining to Company or its Affiliates, including, but
without limitation, information concerning the following: operations; business
opportunities; price and cost information; finances; customer names; customer
prospects, and customer lists; the terms of contracts with customers, suppliers,
and agents; business plans; marketing and sales plans; sales techniques;
manuals; letters; notebooks; procedures; reports; products; processes;
specifications; services; inventions; research and development; and other
concepts or ideas involving or relating to the business or prospective business
of Company (collectively, "Confidential Information"), which Confidential
Information has been or will be uniquely developed by or for Company or its
Affiliates and cannot be readily obtained by third parties from outside sources.
Employee accordingly agrees as follows:
(c) Detrimental Statements. For so long as this
Agreement remains in effect and for a period of 24 months after the date of
termination or expiration of this Agreement (the "Applicable Period), Employee
will not, directly or indirectly, in any individual or representative capacity
whatsoever, make any statement, oral or written, or perform any act or omission
which is or could be detrimental in any material respect to the goodwill of
Company, provided that any truthful statement made by Employee in good faith
shall not violate this subparagraph.
(d) Covenant of Confidentiality. All Confidential
Information and other information communicated to Employee by, or otherwise
belonging to, Company, its Affiliates, or their customers, whether before or
after the Effective Date, shall at all times be held in strict confidence, shall
be used only for the purpose of this Agreement, and shall not be disclosed by
Employee without the prior written consent of Company, except as may be
necessary by reason of legal, accounting, or regulatory requirements beyond the
reasonable control of Employee.
(e) Return of Lists. Books. Records. and Property. Upon
the expiration of the term or termination of this Agreement, Employee will
surrender to Company all tangible Confidential Information in the possession of
Employee, including, but without limitation, the originals and all copies of all
lists, books, and records of or pertaining to any Confidential Information, and
all other property in the possession of Employee belonging to Company or any of
its Affiliates.
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(f) Right to Injunctive Relief. Employee acknowledges
that a violation or attempted violation on his part of any agreement in this
paragraph 9 will cause irreparable damage to Company and to its Affiliates, and
accordingly Employee agrees that Company shall be entitled as a matter of right
to an injunction, out of any court of competent jurisdiction, restraining any
violation or further violation of such agreements by Employee; and such right to
an injunction shall be cumulative and in addition to whatever other remedies
Company may have.
(g) Survival of Terms. The terms and agreements set
forth in this paragraph 9 shall survive the expiration of the term or
termination of this Agreement regardless of the reason. The existence of any
claim of Employee, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Company of the agreements contained
in this paragraph 9.
(h) Separate Non-Disclosure Agreement. If after the
Effective Date Company so requests, Employee will enter into a separate
non-disclosure agreement the provisions of which are substantially the same as
those contained in this paragraph 9.
7. Proprietary Information. Employee agrees to promptly and freely
disclose to Company in writing any and all ideas, conceptions, inventions,
improvements, suggestions for improvements, discoveries, formulae, processes,
designs, software, hardware, circuitry, diagrams, copyrights, trade secrets, and
any other proprietary information (collectively, "Proprietary Information"),
whether patentable or not, which are conceived, developed, and made or acquired
by Employee, alone or jointly with others, during the period of his employment
by Company or using Company's time, data, facilities, and/or materials, and
which are related to the products, business, or activities of Company or which
Employee conceives, develops, makes, or acquires as a result of his employment
by Company, and Employee agrees to assign and hereby does assign all of his
right, title, and interest therein to Company. Whenever requested to do so by
Company, Employee will execute applications, assignments, or other instruments,
which Company deems necessary to apply for and obtain letters patent or
copyrights of the United States or any foreign country, to otherwise protect
Company's interest in any Proprietary Information, or to vest title to any
Proprietary Information in Company. These obligations shall continue beyond the
expiration or termination of Employee's employment, regardless of the reason for
such termination, with respect to any Proprietary Information conceived,
developed, made, or acquired by Employee during the period of his employment and
shall be binding upon Employee's assigns, executors, administrators, and other
legal representatives.
8. Conflict of Interest. In keeping with Employee's fiduciary
duties to Company, Employee agrees that while employed by Company he will not,
acting along or in conjunction with others, directly or indirectly, become
involved in a conflict of interest or, upon discovery thereof, allow a conflict
of interest to continue. Moreover, Employee agrees that he will immediately
disclose to the Board of Directors any facts, which might involve any reasonable
possibility of a conflict of interest. It is agreed that any direct or indirect
interest in, connection with, or benefit from any outside activities, where such
interest might in any way adversely affect Company, involves a possible conflict
of interest. Circumstances in which a conflict of interest on the part of
Employee might arise, and which must be reported immediately by Employee to the
Board of Directors, include, but are not limited to, the following: (a)
ownership of a material interest in any supplier, contractor, subcontractor,
customer, or other entity with which Company does business;
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(b) acting in any capacity, including director, officer, partner, consultant,
employee, distributor, agent, or the like, for a supplier, contractor,
subcontractor, customer, or other entity with which Company does business; (c)
accepting, directly or indirectly, payment, service, or loans from a supplier,
contractor, subcontractor, customer, or other entity with which Company does
business, including, but not limited to, gifts, trips, entertainment, or other
favors of more than a nominal value; (d) misuse of Company's information or
facilities to which Employee has access in a manner which will be detrimental to
Company's interest, such as utilization for Employee's own benefit of know-how,
inventions, or information developed through Company's business activities; (e)
disclosure or other misuse of Confidential Information of any kind obtained
through Employee's connection with Company; (0the ownership, directly or
indirectly, of a material interest in an enterprise in competition with Company,
or acting as an owner, director, principal, officer, partner, consultant,
employee, agent, servant, or otherwise of any enterprise which is in competition
with Company; and (g) appropriation of a Corporate Opportunity, as defined in
paragraph 11 of this Agreement.
9. Corporate Opportunities. Employee acknowledges that during the
course of his employment by Company he may be offered or become aware of
business or investment opportunities in which Company may or might have an
interest (a "Corporate Opportunity") and that he has a duty to advise Company of
any such Corporate Opportunities before acting upon them. Accordingly, Employee
agrees (a) that he will disclose to Company's Board of Directors any Corporate
Opportunity offered to Employee or of which Employee becomes aware, and (b) that
he will not act upon any Corporate Opportunity for his own benefit or for the
benefit of any person or entity other than Company without first obtaining the
consent or approval of Company's Board of Directors (whose consent or approval
may be granted or denied solely at the discretion of Company's Board of
Directors).
10. Non-Competition.
10.1 Covenant Not to Compete. As an ancillary covenant to the
terms and conditions set forth elsewhere in this Agreement, and in particular
the covenants set forth in paragraph 9, paragraph 10, and paragraph 11 above,
and in consideration of the mutual promises set forth in this Agreement and
other good and valuable consideration received and to be received, including,
but without limitation, the Independent Consideration, which has been paid to
Employee in consideration of Employee's agreement to comply with the terms and
conditions of this paragraph 12, Employee agrees that, during the term of this
Agreement, and throughout the Applicable Period, Employee will not, directly or
indirectly, own or become employed by or otherwise provide consulting services
to, any business competitive with Company prior to the date of termination of
this Agreement in any country in which Company commences business while this
Agreement remains in effect. Employee understands that the current business
activities of Company and its Affiliates include the production of high quality
radioisotopes, pharmaceutical grade radiochemicals, finished
radiopharmaceuticals and diagnostic ant therapeutic medical products and that
Company and its Affiliates have plans to expand the scope of such activities and
the geographic area of operations of Company and its Affiliates in the near
future with the direct involvement of Employee, therefore, Employee agrees that
the limitations as to time, geographical area, and scope of activity contained
in this covenant do not impose a greater restraint than is necessary to protect
the goodwill and other business interests of Company. If any provision of this
covenant is found to be invalid in part or in whole, Company may elect, but
shall not be required, to have such provision reformed, whether as to time, area
covered, or otherwise, as and to the extent required for its validity under
applicable law and, as so reformed, such provision shall be enforceable.
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10.2 Right to Injunctive Relief. Employee acknowledges that a
violation or attempted violation on his part of any agreement in this paragraph
13 will cause irreparable damage to Company and its Affiliates, and accordingly
Employee agrees that Company shall be entitled as a manner of right to an
injunction, out of any court of competent jurisdiction, restraining any
violation or further violation of such agreements by Employee; such right to an
injunction, however, shall be cumulative and in addition to whatever other
remedies Company may have. Furthermore, Employee shall be entitled to seek a
declaratory judgment regarding any conduct or enterprise to determine whether or
not such conduct or violation is violative of the terms of this Agreement;
provided however, that no suit shall be filed until Employee has given Company
at least 15 days to respond to Employee's written request for permission to
undertake certain requested acts. The terms and agreements set forth in this
paragraph 13 shall survive the expiration of the term or termination of this
Agreement for any reason. The existence of any claim of Employee, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by Company of the agreements contained in this paragraph 12.
10.3 Separate Non-Competition Agreement. If after the Effective
Date Company so requests, Employee will enter into a separate non-competition
agreement the provisions of which are substantially the same as those contained
in this paragraph 12.
11. Indemnification. Company, shall, and does hereby, indemnify and
agree to hold Employee harmless to the fullest extent provided to officers and
directors of Company under Article VII of Company's First Amended and Restated
Bylaws, as amended from time to time (the "Bylaws Indemnification"); provided
that (a) Employee shall be entitled to all benefits provided to directors of
Company under the Bylaws Indemnification, whether or not Employee is, or at any
time is elected, a director of Company; (b) any determination of indemnification
made under the Bylaws Indemnification with respect to Employee shall be made by
special legal counsel selected by the mutual agreement of Company's Board of
Directors and Employee (or, if Company's Board of Directors and Employee cannot
agree, then by Company, but in such case, such legal counsel must be a partner
or shareholder in a law firm headquartered in the State of Idaho or Texas and
having no fewer than 100 lawyers); and (c) if for any reason the Bylaws
Indemnification has been terminated or is otherwise inapplicable to Employee,
Employee shall be entitled to indemnification to the fullest extent that a
corporation may grant indemnification to a director, officer, and employee under
the Texas Business Corporation Act, as the same exists or as it may hereafter be
amended ("TBCA"), if Employee was, or is threatened to be made a named defendant
or respondent in a preceding (as hereinafter defined) because Employee (i) is or
was an employee of Company or an Affiliate of Company as a director, officer,
partner, venturer, proprietor, trustee, employee, agent, or in a similar
position in a partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or other enterprise in which Employee serves on behalf of Company
or at Company's request. In the event of Employee's death such right shall inure
to the benefit of Employee's heirs, successors, and assigns. The indemnification
granted to Employee hereunder is a contract right and shall survive the
expiration of the term or termination of this Agreement and Company shall be
obligated to indemnify Employee pursuant to and in accordance with this
paragraph 13 regardless of whether this Agreement shall have expired or shall
have been terminated. The rights conferred above shall not be exclusive of any
other right which Employee may have or hereafter acquire under any statute,
bylaw, resolution of shareholders or directors, agreement or otherwise. As used
in this paragraph, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether a civil, criminal, or
administrative proceeding or an arbitration or investigation, any appeal in any
such action, suit, or proceeding, and any inquiry or investigation that could
lead to such an action, suit, or proceeding.
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12. Company's Right of Offset. Should Employee at any time be
indebted to Company, or otherwise obligated to pay money to Company for any
reason, Company, at its election, may offset amounts otherwise payable to
Employee under this Agreement, including, but without limitation, salary and
bonus payments, against any such indebtedness or amounts due from Employee to
Company.
13. Miscellaneous.
13.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF IDAHO.
13.2 Entirety and Amendments. This Agreement embodies the
entire agreement between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof This Agreement may be
amended or modified only in writing executed by Employee and the Chairman of the
Board or another officer of the Company expressly authorized by Company's Board
of Directors.
13.3 Notices. Any notice or other communication hereunder must
be in writing to be effective and shall be deemed to have been given when
personally delivered to Employee or Company or, if mailed, on the third day
after it is enclosed in an envelope and sent certified mail/return receipt
requested in the United States mail. Either party may from time to time change
its address for notification purposes by giving the other party written notice
of the new address and the date upon which it will become effective. The address
for each party for notices hereunder is as follows:
Employee: Xxxxxxx Xxxxxx
Company: International Isotopes Inc.
13.4 Attorney's Fees. In the event that either party is
required to obtain the services of an attorney in order to enforce any right or
obligation hereunder, the prevailing party shall be entitled to recover
reasonable attorney's fees and court costs from the other party.
13.5 Assignability; Binding Nature. Neither this Agreement nor
any right, duty, obligation, or interest hereunder may be assigned or delegated
by one party hereto without the prior written consent of the other party hereto.
This Agreement is binding upon Company and Employee and their respective
successors, heirs and assigns
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13.6 Headings. The headings of paragraphs contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
13.7 Severability. If, but only to the extent that, any
provision of this Agreement is declared or found to be illegal, unenforceable,
or void, then both Company and Employee shall be relieved of all obligations
arising under such provision, it being the intent and agreement of Company and
Employee that this Agreement shall be deemed amended by modifying such provision
to the extent necessary to make it legal and enforceable while preserving its
intent. If such amendment is not possible, another provision that is legal and
enforceable and achieves the same objective shall be substituted therefor. If
the remainder of this Agreement is not affected by such declaration or finding
and is capable of substantial performance by both Company and Employee, then the
remainder shall be enforced to the extent permitted by law.
13.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be part of the same
instrument.
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Executed as of the Effective Date set forth above by:
INTERNATIONAL ISOTOPES INC.
By: /S/ /S/
------------------------- -------------------------
Name Employee's Name
Title: Chairman of the Board Title: President & CEO
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Date: 23 Feb 2002 Date: Feb 23, 2002
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