EMPLOYEE EMPLOYMENT AGREEMENT

Exhibit 10.26

EMPLOYEE EMPLOYMENT AGREEMENT

THIS AGREEMENT is made as of the 1st day of January 2000, between THERAGENICS CORPORATION, a Georgia corporation (the “Company”), and Xxxxxxx X’Xxxxxx (the “Employee”).

INTRODUCTION

The Company and the Employee desire to enter into an employment agreement embodying the terms and conditions of the Employee’s employment.

NOW, THEREFORE, the parties agree as follows:

1.   Definitions

(a)     “Affiliate” means any person, firm, corporation, partnership, 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 the period of the Employee’s employment hereunder and for two (2) years after termination of his employment with the Company.

(c)     “Area” means the United States.

(d)     “Board of Directors” means the Board of Directors of the Company

(e)     “Business of the Company” means any business that involves the manufacture, production, sale, marketing, promotion, exploitation, development and distribution of radiological pharmaceutical products or implantable radiation devices used in the treatment of cancer.

(f)     “Cause” means the occurrence of any of the following events: (i) willful and continued failure (other than such failure resulting from his incapacity during physical or mental illness) by the Employee 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 Employee of fraud, misappropriation, dishonesty, embezzlement or similar conduct against the Company or an Affiliate; (iv) commission by the Employee of a felony or any other crime involving dishonesty; (v) the habitual and disabling use by the Employee of alcohol or drug; (vi) failure of any drug screening test required by the Company or an Affiliate; (vii) material violation of any policy of the Company or an Affiliate; or (viii) a material breach of the Agreement by the Employee.

(g) “Change in Control” means

(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 Employee participates in a capacity other than in his capacity as Employee.

(h)     “Company Invention” means any Invention which is conceived by the Employee alone or in a joint effort with others during the period of the Employee’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 Employee 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 Employee is involved in the performance of his duties as an employee of the Company, or (iv) is useful, or which the Employee reasonably expects may be useful, in any manufacturing or product design process of the Company.

(i)     “Competing Business” means any person, firm, corporation, joint venture or other business entity which is engaged in the Business of the Company (or any aspect thereof) within the Area.

(j)     “Confidential Information” means data and information relating to the business of the Company (which does not rise to the status of a Trade Secret) which is or has been disclosed to the Employee or of which the Employee 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 Employee 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 Employee to perform any of 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 which is not corrected by the Company within thirty (30) days after the Employee’s written notice to the Company of the same: (i) the nature of the Employee’s duties or the scope of his responsibilities are materially modified without the Employee’s written consent, (ii) the Employee is required to report to a different position without the Employee’s written consent, (iii) the Company changes the location of the Employee’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, 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 Employee has a reasonable basis to believe may be new.

(n)     “Public Offering” means the offering or sale by the Company of 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 occur of (i) the death or Disability of the Employee, (ii) the last day of the 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, 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. §§ 10-1-760-10-1-767.

(q)     “Work” means a copyrightable work of authorship, including without 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.

(a)     Employment. The Company hereby employs the Employee as its Executive Vice President of Organizational Development and the Employee accepts such employment with the Company in such capacity. The Employee shall report to the Chief Executive Officer and shall have such authority and responsibilities and perform such duties as shall reasonably be assigned to the Employee from time to time by the Chief Executive Officer of the Company.

(b)     Exclusivity. Throughout the Employee’s employment hereunder, the Employee shall devote substantially all the Employee’s time, energy and skill during regular business hours to the performance of the duties of the Employee’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.

(a)     Base Salary. In consideration for the Employee’s services hereunder, the Company shall pay to the Employee an annual base salary in the amount of $130,000 initially. The Employee’s annual base salary shall be reviewed at least annually by the Company, and the Company may increase the Employee’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 3(a) hereof, the Employee shall be entitled to discretionary annual bonuses. The maximum annual bonus shall be equal to 20% of the Employee’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 Employee’s performance. However, in the event that the Company adopts a bonus program that applies to a category of employees which includes Employee, such program will apply for the Employee, in lieu of, and notwithstanding the provisions of this Subsection (b).

(c)     Stock Based Compensation. Stock options or other stock-based compensation will be awarded to the Employee at the discretion of the Board of Directors, or a committee thereof, and pursuant to the Company’s stock incentive plan.

(d)     Vacation. The Employee shall be entitled to four weeks of vacation per year, to be taken at times mutually convenient to the Company and the Employee.

(e)     Licenses. The Company will reimburse the Employee for the costs associated with keeping in full force the professional licenses he possessed prior to this contract including two (2) trips per year to attend professional meetings necessary for maintaining licenses and credentials.

(f)     Financial, Tax and Estate Planning. The Company will reimburse the Employee for the cost of personal financial, tax, and estate planning and services in an amount not to exceed $4,000 per year from the date hereof.

(g)     Annual Physical. The Company will pay the expenses associated with an annual physical examination for the Employee.

(h)     Life Insurance. During the term of this Agreement, the Company will provide the Employee 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 Employee 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.

(i)     Expenses. The Employee shall be entitled to be reimbursed in accordance with the policies of the Company, as adopted and amended from time to time, for all reasonable and necessary expenses incurred by the Employee in connection with the performance of the Employee’s duties of employment hereunder; provided, however, the Employee 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.

(j)     Benefits. In addition to the benefits payable to the Employee specifically described herein, the Employee shall be entitled to such benefits as generally may be made available to 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

(a)     Term. The term of this Agreement (the “Term”) shall commence as of the date of this Agreement (the “Commencement Date”) and shall expire on the third (3rd) 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 second (2nd) 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 Employee’s employment by the Company hereunder may only be terminated before expiration of the Term (i) by mutual agreement of the Employee and the Company; (ii) by the Employee 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 Employee due to the Disability of the Employee. This Agreement shall also terminate immediately upon the death of the Employee. Notice of termination by either the Company or the Employee 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 Employee’s employment hereunder, the Company shall have no further obligation to the Employee or the Employee’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 Employee’s Disability or death. Nothing contained herein shall limit or impinge any other rights or remedies of the Company or the Employee under any other agreement or plan to which the Employee is a party or of which the Employee is a beneficiary.

(d)     Survival. The covenants of the Employee in Sections 5, 6, 7, 8 and 9 hereof shall survive the termination of this Agreement and the Employee’s employment hereunder and shall not be extinguished thereby.

(e)     Certain Terminations – not in Connection with a Change in Control. Except as set forth in Section 4(b)(i) hereof, upon termination of the Employee’s employment, more than ninety (90) days preceding or more than one (1) year after a Change in Control, by the Company without Cause or by the Employee for Good Reason, the Company shall be obligated to continue to pay the Employee his annual base salary at the time of termination of employment for one (1) year after termination of employment. 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 as set forth in Section 4(b)(i) hereof, upon termination of Employee’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 Employee for Good Reason, the Company shall be obligated to pay the Employee an amount equal to whichever of the following results in the Employee receiving a larger after-tax amount: (i) two times the Employee’s annual base salary at the time of termination of employment or (ii) if less than two times the Employee’s annual base salary at the time of termination of employment, then the largest amount that could be paid to the Employee, which will not result in a nondeductible “parachute payment” under Section 280G of the Internal Revenue Code. Such amount shall be paid to the Employee ratably over two (2) years following termination.

5.     Agreement Not to Compete and Not to Solicit Customers.

(a)     Agreement Not to Compete. The Employee agrees that commencing on 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 Employee’s own behalf, or in the service of or on behalf of others, engage in or provide organizational development services of a similar type or nature as he performs for the Company to any Competing Business. For purposes of this Section 5, the Employee acknowledges and agrees that the Business of the Company is conducted in the Area.

(b)     Agreement Not to Solicit Customers. The Employee agrees that commencing on the Commencement Date and continuing through the Applicable Period, he will not, either directly or indirectly, on the Employee’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 Employee had material contact during the Employee’s last two (2) years of employment with the Company or about whom the Employee acquired Confidential Information during the Employee’s last two (2) years of employment with the Company.

6.     Agreement Not to Solicit Employees.

The Employee agrees that commencing on the Commencement Date and continuing through the Applicable Period, he will not, either directly or indirectly, on the Employee’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.

(a)     Confidentiality. All Confidential Information and Trade Secrets and all physical embodiments thereof received or developed by the Employee 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 Employee 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 Employee to lose its character or cease to qualify as Confidential Information or Trade Secrets.

(b)     Return of Company Property. Upon request by the Company, and in any event upon termination of the employment of the Employee 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 Employee 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 Employee’s custody, control or possession.

(c)     Survival. The covenants of confidentiality set forth herein will apply on and after the date hereof to any Confidential Information and Trade Secrets disclosed by the Company or developed by the Employee prior to or after the date hereof. The covenants restricting the use of Confidential Information will continue and be maintained by the Employee 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 Employee following termination of this Agreement for so long as permitted by the Georgia Trade Secrets Act of 1990, O.C.G.A. § 10-1-760, et seq.

8.     Inventions.

(a)     Company Inventions. The Employee agrees that all Company Inventions conceived or first reduced to practice by the Employee 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 Employee hereby irrevocably assigns to the Company all of his rights to all Company Inventions. If the Employee 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 Employee 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 Employee 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 Employee for the Company. 

(b)     Prior Inventions. The Employee represents to the Company that the Employee has not conceived or acquired ownership interest in any Inventions, except those described in Exhibit C hereto, and that the Employee will not incorporate, or permit to be incorporated any Inventions listed in Exhibit C hereto in any Company process, Company product, or Company Inventions without the Company’s prior written consent. If the Employee incorporates an Invention listed in Exhibit C into a Company product, Company process, or Company Invention (with or without the Company’s consent), the Employee hereby grants to the Company a nonexclusive, paid up, royalty-free, irrevocable, world-wide license (with rights to sublicense through multiple tiers of sub-licensees) to make, have, modify, use, sell, copy and create derivative works of, such Inventions. 

(c)     Prior Patents. The Employee represents to the Company that the Employee owns no patents or copyrights, individually or jointly with others, except those described in Exhibit A attached hereto.

(d)     Patent Applications. The Employee agrees that should the Company 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 Employee was an inventor, the Employee will execute all necessary truthful papers, including formal assignments to the Company relating to such patent applications. The Employee 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.

(a)     Ownership and Assignment. The Employee acknowledges and agrees that any Works created by the Employee 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 Employee within the scope of his employment hereunder shall be the property of the Company.  The Employee 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 Employee will assign and hereby does assign to the Company all right, title and interest to copyrights which the Employee may have in such Works.

(b)     Registration. The Employee agrees to disclose to the Company all 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 Employee claims no ownership rights in any Works, except as described in Exhibit A attached hereto.

10.     Contracts or Other Agreements with Former Employer or Business.

The Employee 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 Employee has been associated, which on its face prohibits the Employee 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 Employee’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 Employee hereby further represents and warrants that he has not executed any agreement with any other party which, on its face, purports to require the Employee to assign any Work or any Invention created, conceived or first reduced to practice by the Employee during a period of time which extends through the Commencement Date except as previously disclosed in writing to the Company.

11.     Remedies.

(a)     The Employee 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 Employee 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 Employee 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 Employee of any of such covenants or agreements.

(b)     In addition to any other rights the Company may have pursuant to this Agreement, if Employee breaches any of his obligations under Sections 5, 6, 7, 8 or 9 or, directly or indirectly, on the Employee’s own behalf or in the service of or on behalf of others, engages in or provides managerial, supervisory, sales, marketing, financial, management information, administrative or consulting services or assistance (collectively “Prohibited Services”) to, or owns (other than ownership of less than five percent (5%) of the outstanding voting securities of an entity whose voting securities are traded on a national securities exchange or quoted on the National Association of Securities Dealers, Inc. Automated Quotation System) a beneficial or legal interest in, any Competing Business within the Area during the Applicable Period, Employee will forfeit any amounts owed to Employee under Section 4(e) or 4(f), as applicable, which have not been paid to Employee by the Company and Employee shall immediately repay to the Company all amounts previously paid to Employee pursuant to Section 4(e) or 4(f), as applicable.

12.     No Set-Off.

The existence of any claim, demand, action or cause of action by the Employee 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 Employee, whether predicated upon this Agreement or otherwise, shall not constitute a defense to the enforcement by the Employee of any of his rights hereunder.

13.     Notice.

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
	0000 Xxxxxxx Xxxxxxxxxx Xxx
	Xxxxxx, Xxxxxxx 00000
	Attn:  Chief Executive Officer
If to the Employee:	Xxxxxxx X'Xxxxxx
	0000 X. Xxxxxxxxxxxx Xxxxx X.X.
	Xxxxxxx, Xxxxxxx 00000

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 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 by the Employee 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 Employee prevails in the arbitration, the Company agrees to reimburse the Employee 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.

IN WITNESS WHEREOF, the Company and the Employee have each executed and delivered this Agreement as of the date first shown above.

THE COMPANY

THERAGENICS CORPORATION

By:    /s/ M. Xxxxxxxxx Xxxxxx

Title:  Pres. CEO, Chairman

ATTEST:

/s/  Xxxxx X. Xxxxx

Title:  Executive Vice President

Secretary, Treasurer

[CORPORATE SEAL]

EMPLOYEE:  /s/  R. Xxxxxxx X'Xxxxxx

Exhibit A

Inventions, Patents and Copyrights

1. Previously Conceived Inventions

[DESCRIBE ANY INVENTIONS WHICH THE EMPLOYEE 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.]

System for Measurement of Motility in the Gastrointestinal Tract (Design by Xxxxxxx Xxxxxx and R. Xxxxxxx X'Xxxxxx)

General Purpose Device for Multi-Channel EEG Biofeedback (Design by Xxxxxxx Xxxxxx and R. Xxxxxxx X'Xxxxxx)

Device for Measurement and Training of Cerebral Blood Flow (Design by R. Xxxxxxx X’Xxxxxx)

Device for Training Attention and Readiness in Psychomotor Tasks (Design by R. Xxxxxxx X’Xxxxxx)

System for Prediction of Accuracy of Recall from Memory (Design by R. Xxxxxxx X’Xxxxxx)

2. Patents

[LIST OR DESCRIBE ALL PATENTS WHICH THE EMPLOYEE
OWNS INDIVIDUALLY, WITH OTHERS, OR FOR WHICH APPLICATIONS ARE PENDING. IF NONE, INSERT "NONE".]

NONE

3. Copyrights

[DESCRIBE ANY WORKS FOR WHICH THE EMPLOYEE CLAIMS THE COPYRIGHT EITHER INDIVIDUALLY OR WITH
OTHERS. IF NONE, INSERT "NONE".]

Business Activity Checklist Guide (Copyright, 1987, R. Xxxxxxx X’Xxxxxx)

Honesty and Integrity Testing: A Practical Guide (Copyright, 1989, Applied Information Resources)
Executive Insight System (includes software, questionnaires, training manuals, feedback reports, and seminar)(Copyright, 1993, R. Xxxxxxx X'Xxxxxx)
Management Insight System (includes software, questionnaires, training manuals, feedback reports, and seminar)(Copyright, 1995, R. Xxxxxxx X'Xxxxxx)
Precision Interviewing (includes training manuals and seminar)(Copyright, 1995, R. Xxxxxxx X’Xxxxxx, Ph.D.)

Untitled General Purpose Software for Administration and Scoring of Multi-Rater Questionaires (Copyright, 1997, R. Xxxxxxx X'Xxxxxx)

Copyrights for Training and Organizational Development Materials Created Prior to R. Xxxxxxx X’Xxxxxx’x Full Time Employment with Theragenics and Later Adapted for Theragenics Use.

Future Books, Articles, and Case Studies Falling into the Area of Psychology or Organizational Development.