EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is dated as of July 28, 2008 between NeedleTech Products, Inc., a
Massachusetts corporation (the “Company”), and Xxxxxx Xxxxxxxx (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, effective as of, and contingent upon, the closing of the
purchase and sale transaction contemplated by the Stock Purchase Agreement dated
as of July 16, 2008 with respect to NeedleTech Products, Inc., by and among
Theragenics Corporation, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxx, and
Rockland Trust Company as special fiduciary and trustee of the NeedleTech
Products, Inc. Employee Stock Ownership Plan.
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. For these purposes, “control” shall mean the direct or
indirect ownership of equity securities of the applicable entity possessing the
right to more than fifty percent (50%) of the combined ordinary voting power of
the outstanding voting equity securities of such entity.
(b) “Applicable
Period” means the period of
the Employee’s employment hereunder and for two (2) years after termination of
employment.
(c) “Area” means the United
States.
(d) “ Board of
Directors” means the Board
of Directors of Theragenics Corporation.
(e) “Business of
the Company” means any
business that involves the manufacture, production, sale, marketing, promotion,
exploitation, development and distribution of wound closure medical devices
(including but not limited to sutures, cassettes, and glues), cardiac pacing
cables, brachytherapy needles, brachytherapy seed spacers, brachytherapy
sleeves, palladium-l03, temporary or permanently implantable devices for use in
the treatment of cancer, restenosis or macular degeneration, vascular access
devices, specialty medical needles, needle systems and related hand-held single
use medical devices or other medical products manufactured or sold by the
Company or any of its Affiliates, but only to the extent that such devices and
products are the same as or similar to a product manufactured, produced, sold,
marketed, promoted, exploited, developed or distributed by the Company or any of
its Affiliates at any time during the period of the Employee’s employment under
this Agreement, or is in an active state of development by the Company or any of
its Affiliates as evidenced by establishment of a design history file at any
time during the period of the Employee’s employment under this
Agreement.
(f) “Cause” means the occurrence of any of the
following events: (i) willful and continued failure (other than such failure
resulting from the Employee’s incapacity during physical or mental illness) by
the Employee to substantially perform the Employee’s 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) illegal use by the Employee of alcohol or drugs; or (vi) 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 13d3 promulgated under
the Exchange Act) of voting securities of Theragenics 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 Theragenics
Corporation entitled to vote generally in the election of directors (the
“Outstanding 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 Theragenics Corporation,
(ii) any acquisition by Theragenics Corporation, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by Theragenics
Corporation or any corporation controlled by Theragenics Corporation 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 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 Theragenics Corporation,
such subsequent acquisition shall be treated as an acquisition that causes such
Person to own thirty-five percent (35%) or more of the Outstanding 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 shareholders of Theragenics
Corporation, 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
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(3) the approval by the shareholders of
Theragenics Corporation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of Theragenics
Corporation (“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
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 Theragenics Corporation or all or substantially all of
Theragenics Corporation’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 Voting
Securities, (ii) no Person (excluding any employee benefit plan (or related
trust) of Theragenics Corporation 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
Theragenics Corporation of a complete liquidation or dissolution of Theragenics
Corporation.
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 the Employee’s capacity as an 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 or prior thereto
while an employee of or consultant to the Company or an Affiliate which (i) may
be reasonably expected to be used in a product of the Company or an Affiliate,
or a product similar to a product of the Company or an Affiliate, (ii) results
from work that the Employee has been assigned as part of the Employee’s duties
as an employee of or consultant to the Company or an Affiliate, (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 the
Employee’s duties as an employee of the Company or an Affiliate, or (iv) is
useful, or which the Employee reasonably expects may be useful, in any
manufacturing or product design process of the Company or an
Affiliate.
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(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 or an Affiliate which is or
has been disclosed to the Employee or of which the Employee became aware as a
consequence of or through the Employee’s relationship to the Company or an
Affiliate and which has value to the Company or an Affiliate 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 or an Affiliate (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.
(k) “Disability” means the inability of the Employee to
perform any of the Employee’s 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 the Employee’s
responsibilities are materially modified, without the Employee’s consent, to
duties or responsibilities that are consistent with a lower level position in
the Company, (ii) the Employee is required to report, without the Employee’s
consent, to a supervisor in a different and lower level position than is set
forth in Section 2(a) in the Company, (iii) the Company changes the location of
the Employee’s place of employment, without the Employee’s consent, to more than
fifty (50) miles from its present location, (iv) a material breach of this
Agreement by the Company; provided that with respect to any of the foregoing
events, the Employee gives the Company notice of the event within thirty (30)
days of the date of the event, the Company fails to cure the event within thirty
(30) days after receipt of such notice, and the Employee resigns effective upon
not less than fourteen (14) days, and not more than thirty (30) days notice to
the Company after the expiration of the Company’s thirty (30) day cure
period.
(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) “Stock
Purchase Agreement” means
the stock purchase agreement referred to in the Introduction to this
Agreement.
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(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
relating to the business of the Company or an Affiliate, 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.
(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 President and the Employee accepts such employment with the Company in
such capacity and agrees to serve as President of the Company as long as the
Employee is appointed to such position, subject to the terms and conditions
hereof. The Employee shall report to the Chief Executive Officer of Theragenics
Corporation and shall have such authority and responsibilities not inconsistent
with the Employee’s position as shall reasonably be assigned to the Employee
from time to time.
(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 $205,000. The Employee’s annual base salary
shall be reviewed at least annually by the Compensation Committee of the Board
of Directors of Theragenics Corporation (the “Compensation Committee”) and the
Board of Directors of Theragenics Corporation or the Compensation Committee may
approve an increase in 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.
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(b) Short-Term
Incentive Plan. Beginning
as of January 1, 2009, the Employee shall be entitled to participate in
short-term incentive plans or programs applicable generally to similarly
situated management employees of the Company, subject to the terms of the plan
or program and the conditions established by the Compensation Committee or the
Board of Directors of Theragenics Corporation, and subject to the Company’s or
Theragenics Corporation’s right to amend or terminate the plan or program at any
time.
(c) Stock Based
Compensation. Stock options
or other stock-based compensation will be awarded to the Employee at the
discretion of the Compensation Committee or the Board of Directors of
Theragenics Corporation, and pursuant to the stock incentive plan, of the
Company or Theragenics Corporation.
(d) Vacation. The Employee shall be entitled to
vacation in accordance with Company policy, but in no event will the Employee be
entitled to more than four (4) weeks of vacation per year. Vacation shall be
taken at times mutually convenient to the Company and the
Employee.
(e) Memberships. The Company will reimburse the Employee
for one professional membership which has a business related purpose and is
approved by the Company.
(f) Licenses. The Company will reimburse the
Employee for the costs associated with keeping in full force the professional
licenses the Employee possessed prior to the date of this Agreement, provided
that the licenses have a business-related purpose. This benefit shall include
reimbursement for costs associated with up to two (2) trips per year to attend
professional meetings necessary for maintaining the licenses and
credentials.
(g) 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 $1,000 per
year.
(h) Annual
Physical. The Company will
pay the expenses associated with an annual physical examination for the Employee
for each year during the Term.
(i) 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 the Employee’s
cost of premiums under its group term life insurance program for additional
optional coverage up to the lesser of an additional $200,000 death benefit or an
aggregate death benefit up to $450,000.
(j) Expenses. The 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.
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(k) Automobile
Allowance. The
Company will reimburse the Employee for the business use of an automobile,
including lease cost, maintenance, and repairs, not to exceed $500 per
month.
(l) 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 all similarly situated
management 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 third (3rd) anniversary of the Commencement
Date and ninety (90) days before each subsequent anniversary of the Commencement
Date, 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. 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; (iii) by the Employee without Good Reason upon not less than
thirty (30) days written prior notice to the Company; (iv) by the Company
without Cause; (v) by the Company for Cause; or (vi) 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 the
Employee’s employment hereunder, the Company and its Affiliates 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 11 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, its Affiliates 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
the Employee’s employment hereunder and shall not be extinguished
thereby.
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(e) Certain
Terminations not in Connection with a Change in Control. If either the Company
terminates the Employee’s employment without Cause or the Employee terminates
the Employee’s employment for Good Reason, and in either event a Change in
Control has not occurred within the one year preceding the termination of
employment and does not occur within ninety (90) days after the termination of
employment, the Company shall be obligated to continue to pay the Employee the
Employee’s annual base salary at the time of termination of employment for two
(2) years after termination of employment. Payments made under this Section 4(e)
shall be paid as a salary continuation on the same schedule that applied while
the Employee was employed, provided, however, that no payment hereunder shall be
paid until sixty (60) days after the Employee’s termination of employment, at
which time the Employee shall be paid a lump sum equal to the payments
accumulated to such date, and thereafter payment of the unpaid balance shall
continue on what would have otherwise been the original payment schedule for
such unpaid balance. Notwithstanding the foregoing, if the payment of severance
hereunder would fail to meet the requirements of Section 409A(a)(l) of the
Internal Revenue Code because the Employee is a “specified employee” (within the
meaning of Section 409A of the Internal Revenue Code), no payment hereunder
shall be made until six months after the Employee’s termination of employment,
at which time the Employee shall be paid a lump sum equal to what would
otherwise have been the first six months’ of such payments, and thereafter
payment of the unpaid balance shall continue on what would otherwise have been
the original payment schedule for such unpaid balance.
(f) Certain
Terminations in Connection with a Change in Control. If, within ninety (90) days
preceding or within one year following a Change in Control, either the Company
terminates the Employee’s employment without Cause or the Employee terminates
the Employee’s employment 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 (2) times the
Employee’s annual base salary at the time of termination of employment or (ii)
if less than two (2) 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. Payments made under this Section 4(f)
shall be paid as a salary continuation on the same schedule that applied while
the Employee was employed, provided, however, that no payment hereunder shall be
paid until sixty (60) days after the Employee’s termination of employment, at
which time the Employee shall be paid a lump sum equal to the payments
accumulated to such date, and thereafter payment of the unpaid balance shall
continue on what would have otherwise been the original payment schedule for
such unpaid balance. Notwithstanding the foregoing, if the payment of severance
hereunder would fail to meet the requirements of Section 409A(a)(l) of the
Internal Revenue Code because the Employee is a “specified employee” (within the
meaning of Section 409A of the Internal Revenue Code), no payment hereunder
shall be made until six months after the Employee’s termination of employment,
at which time the Employee shall be paid a lump sum equal to what would
otherwise have been the first six months’ of such payments, and thereafter
payment of the unpaid balance shall continue on what would otherwise have been
the original payment schedule for such unpaid balance.
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(g) Notwithstanding any other provision
hereof, the Company’s obligation to pay the severance benefit set forth in
Section 4(e) or 4(f), if applicable, will be contingent upon the Employee
executing and providing to the Company (and not revoking within the revocation
period, if any, provided pursuant to the applicable release agreement) the form
of release agreement attached hereto as Exhibit
A, Exhibit
B, or Exhibit
C, whichever is determined
by the Company to be appropriate. The Employee shall execute the release within
such period as is provided for in the applicable release agreement, following
the Company’s provision of such release agreement to the Employee in connection
with the Employee’s termination of employment.
| 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, the Employee 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, provide
services of a similar type or nature as the Employee 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 further agrees that beginning on the Commencement Date and
throughout the Applicable Period within the Area, the Employee will not,
directly or indirectly, on the Employee’s own behalf, or on behalf of any third
party, entity or business, divert, solicit, or attempt to divert or solicit to a
Competing Business for the purpose of providing products or services in
competition with the Business of the Company, any individual or entity (a) who
is a Customer at any time during the last twelve (12)-month period of the
Employee’s employment with the Company, or who was within such period a
Prospective Customer, and (b) in either case, with whom the Employee had
material contact on the Company’s or an Affiliate’s behalf. For purposes of this
Agreement, “material contact” exists between the Employee and each Customer or
actively sought Prospective Customer with whom the Employee dealt or with whom
the Employee had a business relationship on behalf of Company or an
Affiliate. For purposes of this Agreement, “Customer” means any
individual or entity from whom the Company or an Affiliate has solicited sales
or provided targeted marketing or other services, and a “Prospective Customer”
means any individual or entity the Company or an Affiliate has identified as a
potential Customer as part of any long-term or strategic
plan.
| 6. | Agreement Not to Solicit Employees. |
The Employee agrees that commencing on
the Commencement Date and continuing through the Applicable Period, the Employee
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 with whom the Employee has had material
contact during the Employee’s employment, 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.
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| 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 the Employee 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 (2) 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. and as
amended hereafter.
| 8. | Inventions. |
(a) Company
Inventions. The Employee
agrees that all Company Inventions conceived or first reduced to practice by the
Employee during the Term or prior to the Term while an employee of or consultant
of the Company, and all patent rights and copyrights to such Company Inventions
shall become and remain the property of the Company, and the Employee hereby
irrevocably and unconditionally sells, transfers, conveys, assigns and delivers
to Company (i) Employee’s entire worldwide right, title and interest in and to
the Company Inventions, any continuations, continuations-in-part, divisionals,
reissues, re-exams, or extensions thereof; together with the right to xxx for
and recover and retain damages with respect to past infringements of the Company
Inventions by third parties, both foreign and domestic, the same to be held and
enjoyed by Company for the Company’s own use and enjoyment, and for the use and
enjoyment of its successors, assigns or other legal representatives as fully and
entirely as the same would have been held and enjoyed by Employee if this
assignment had not been made, (ii) all applications for industrial property
protection, including, without limitation, all applications for patents, utility
models and designs which may heretofore have been filed or may hereafter be
filed for said inventions in any country, together with the right to file such
applications and the right to claim the same priority rights derived from said
patent applications under the patent laws of the United States, the
International Convention for the Protection of Industrial Property, or any
international agreement or the domestic laws of the country in which any such
application is filed, as may be applicable, and (iii) all forms of industrial
property protection, including, without limitation, patents, utility models and
designs which may heretofore have been granted or may hereafter be granted for
said inventions in any country and all extensions, renewals and reissues
thereof. 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 (A) 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 (B) result from any work performed by the Employee for the
Company.
-10-
(b) Prior
Inventions. If prior to the
Commencement Date the Employee conceived any Invention or acquired any ownership
interest in any Invention which (i) is the property of the Employee, or of which
the Employee is a joint owner with another person or entity, (ii) is not
described in any issued patent as of the Commencement Date, and (iii) would be a
Company Invention if such Invention were made during the Term of this Agreement,
then (A) with respect to any such Invention described in Exhibit
D attached hereto, the
Employee hereby agrees that such written description (but no rights to the
Invention) is and shall remain the property of the Company and (B) with respect
to any such Invention not described in Exhibit
D attached hereto, the
Employee hereby grants to the Company a nonexclusive, paid up, royalty-free
license to use and practice such Invention, including a license under all
patents to issue in any country which pertain to such
Invention.
(c) Prior
Patents. The Employee
represents to the Company that the Employee owns or has rights to no patents or
copyrights, individually or jointly with others, except those described in
Exhibit
D 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 for the Employee
and the Employee’s successors, heirs and assigns, but at Company’s expense,
shall execute all applications, amended specifications, deeds or other
instruments, and to do all acts necessary or proper to secure the grant of
Letters Patent in the United States and in all other countries to the Company,
with specifications and claims in such form as shall be approved by the counsel
of the Company and to vest and confirm in Company its successors and assigns,
the legal title to all such patents. 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; provided, however, that if the Employee is required to
provide such assistance after the Employee has left employment with the Company,
the Company shall pay the Employee an hourly rate for the Employee’s assistance,
which shall be determined by converting the Employee’s annual salary as in
effect upon termination of the Employee’s employment with the Company into an
hourly rate of pay. 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. Employee agrees, and Employee further
authorizes and grants a limited power of attorney to the Company or its
designee, to execute on Employee’s behalf any documents necessary to evidence
the assignments granted herein for the United States or any other country
without further notice to Employee.
-11-
| 9. | Copyrights. |
(a) Ownership
and Assignment. The
Employee acknowledges and agrees that any Works created by the Employee in the
course of the Employee’s employment during the Term or prior to the Term while
an employee of or consultant to the Company, 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 the Employee’s 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 hereby assigns to the Company all
right, title and interest to copyrights which the Employee may have in such
Works, including the right to xxx for and recover and retain damages with
respect to past infringement.
(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
D attached
hereto.
| 10. | Contracts or Other Agreements with Former Employer or Business. |
The Employee hereby represents and
warrants that the Employee 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 the
Employee 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.
-12-
| 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 the Employee 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, the Employee will forfeit any amounts owed to the
Employee under Section 4(e) or 4(f), as applicable, which have not been paid to
the Employee by the Company and the Employee shall immediately repay to the
Company all amounts previously paid to the 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,
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 or any
Affiliate against the Employee, whether predicated upon this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Employee of
any of the Employee’s rights hereunder.
-13-
| 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 Financial
Officer
|
|
|
If to the
Employee:
|
The most recent address that the
Company has on file for the
Employee.
|
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
thereof.
| 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 Agreement, or the breach thereof, shall be adjudicated
through binding arbitration before a single arbitrator in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in
Atlanta, Georgia, with the Company bearing responsibility for the filing costs
charged by the AAA for such arbitration. However the provisions of this Section
will not prevent the Company from instituting an action in a court of law under
this Agreement for specific performance of this Agreement or temporary or
permanent injunctive relief as provided in Section 11 hereof. The parties hereto
agree that the exclusive venue for any such lawsuit will be Gwinnett County,
Georgia and the Employee consents to the exercise of personal jurisdiction by
the Superior Court of Gwinnett County for the purposes of such
lawsuit.
Any party who desires to submit a claim
to arbitration in accordance with this Section shall file its demand for
arbitration with AAA within thirty (30) days of the event or incident giving
rise to the claim. A copy of said demand shall be served on the other party in
accordance with the notice provisions in Section 13 of this Agreement. The
parties agree that they shall attempt in good faith to select an arbitrator by
mutual agreement within twenty (20) days after the responding party’s receipt of
the demand for arbitration. If the parties do not agree on the selection of an
arbitrator within that timeframe, the selection shall be made pursuant to the
rules from the panels of arbitrators maintained by the AAA. If the Employee
prevails in the dispute, the Company will pay and be financially responsible for
all costs, expenses, reasonable attorneys’ fees and reasonable expenses of the
arbitrator incurred by the Employee (or the Employee’s estate in the event of
the Employee’s death) in connection with the dispute. Any award rendered by the
arbitrator shall be accompanied by a written opinion providing the reasons for
the award.
-14-
By initialing below, the Company and the
Employee indicate their agreement to this Section 14(c).
By the Company /s/
MCJ (initials of Company
representative)
By Employee /s/
RR (initials of
Employee)
The arbitrator’s award shall be final
and non-appealable. Nothing in this Subsection shall prevent the parties from
settling any dispute or controversy by mutual agreement at any
time.
(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. This Agreement
does not, however, supersede any provision of the Stock Purchase Agreement or
the Noncompetition Agreement dated July 28, 2008, between Theragenics
Corporation and the Employee.
(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.
-15-
IN WITNESS WHEREOF, the Company and the
Employee have each executed and delivered this Agreement as of the date first
shown above.
THE COMPANY
NEEDLETECH PRODUCTS,
INC.
By: /s/ M.
Xxxxxxxxx Xxxxxx
M.
Xxxxxxxxx Xxxxxx, Chairman
ATTEST:
/s/ Xxxxx X.
Xxxxx
Title: Assistant
Secretary
(CORPORATE SEAL)
THE EMPLOYEE:
/s/ Xxxxxx
Xxxxxxxx
Xxxxxx Xxxxxxxx
-16-
Employee
Under 40
EXHIBIT
A
RELEASE AGREEMENT
This Release Agreement (this
“Agreement”) is made this __ day of ___________by NeedleTech Products, Inc. (the
“Employer”) and Xxxxxx Xxxxxxxx (the “Employee”).
Introduction
Employee and the Employer entered into
an Employment Agreement dated ______ (the “Severance Agreement”) which provides
certain severance benefits.
The Severance Agreement requires that as
a condition to the payment of severance benefits under the Severance Agreement
(the “Severance Benefits”), the Employee must provide a release and agree to
certain other conditions.
NOW, THEREFORE, the parties agree as
follows:
1. The effective date of this Agreement
shall be the date on which Employee signs this Agreement (“the Effective Date”),
at which time this Agreement shall be fully effective and enforceable. Employee
has been offered twenty-one (21) days from receipt of this Agreement within
which to consider this Agreement. Employee understands that the Employee may
sign this Agreement at any time before the expiration of the twenty-one (21) day
review. To the degree Employee chooses not to wait twenty-one (21) days to
execute this Agreement, it is because Employee freely and unilaterally chooses
to execute this Agreement before that time.
2. In exchange for Employee’s execution of
this Agreement and in full and complete settlement of any and all claims, the
Employer will provide Employee with the Severance Benefits.
3. The release given by Employee in this
Agreement is given solely in exchange for the consideration set forth in this
Agreement and such consideration is in addition to anything of value that
Employee was entitled to receive prior to entering into this
Agreement.
Employee has been advised to consult an
attorney prior to entering into this Agreement.
By entering into this Agreement,
Employee does not waive rights or claims that may arise after the date this
Agreement is executed.
4. This Agreement shall in no way be
construed as an admission by the Employer that it has acted wrongfully with
respect to Employee or any other person or that Employee has any rights
whatsoever against the Employer. The Employer specifically disclaims any
liability to or wrongful acts against Employee or any other person on the part
of itself, its employees or its agents.
5. As a material inducement to the Employer
to enter into this Agreement, Employee hereby irrevocably releases the Employer
and each of the owners, stockholders, predecessors, successors, directors,
officers, employees, representatives, attorneys, and affiliates (and agents,
directors, officers, employees, representatives and attorneys of such
affiliates) of the Employer, and all persons acting by, through, under or in
concert with them (collectively “Releasees”), from any and all charges, claims,
liabilities, agreements, damages, causes of action, suits, costs, losses, debts
and expenses (including attorneys’ fees and costs actually incurred) of any
nature whatsoever, known or unknown, including, but not limited to, rights
arising out of alleged violations of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, or any tort, or any
legal restrictions on the Employer’s right to terminate employees, or any
federal, state or other governmental statute, regulation, or ordinance,
including, without limitation: (1) Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act of 1991 (race, color, religion, sex, and
national origin discrimination); (2) the Employee Retirement Income Security Act
(“ERISA”); (3) 42 U.S.C. § 1981 (discrimination); (4) the Americans with
Disabilities Act (disability discrimination); (5) the Equal Pay Act; (6)
Executive Order 11246 (race, color, religion, sex, and national origin
discrimination); (7) Executive Order 11141 (age discrimination); (8) Section 503
of the Rehabilitation Act of 1973 (disability discrimination); (9) negligence;
(10) negligent hiring and/or negligent retention; (11) intentional or negligent
infliction of emotional distress or outrage; (12) defamation; (13) interference
with employment; (14) wrongful discharge; (15) invasion of privacy; or (16)
violation of any other legal or contractual duty arising under the laws of the
State of Georgia or the laws of the United States (“Claim” or “Claims”), which
Employee now has, or claims to have, or which Employee at any time heretofore
had, or claimed to have, or which Employee at any time hereinafter may have, or
claim to have, against each or any of the Releasees, in each case as to acts or
omissions by each or any of the Releasees occurring up to and including the
Effective Date. Employee covenants and agrees not to institute, or participate
in any way in anyone else’s actions involved in instituting any action against
any of the Releasees with respect to any Claim released
herein.
Notwithstanding the foregoing, this
Agreement shall not release any claims the Employee has (i) to any unpaid
benefits under any employee benefit plan (within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
(ii) to Employee’s right to exercise vested stock options, if any, pursuant to
any stock option agreements provided by the Employer to
Employee.
6. The Employer and Employee agree that the
terms of this Agreement shall be final and binding and that this Agreement shall
be interpreted, enforced and governed under the laws of the State of Georgia.
The provisions of this Agreement can be severed, and if any part of this
Agreement is found to be unenforceable, the remainder of this Agreement will
continue to be valid and effective.
7. This Agreement sets forth the entire
agreement between the Employer and Employee and fully supersedes any and all
prior agreements or understandings, written and/or oral, between the Employer
and Employee pertaining to the subject matter of this
Agreement.
-2-
8. Employee is solely responsible for the
payment of any fees incurred as the result of an attorney reviewing this
agreement.
Your signature below indicates your
understanding and agreement with all of the terms in this
Agreement.
Please take this Agreement home and
carefully consider all of its provisions before signing it. Again, you are free
and encouraged to discuss the contents and advisability of signing this
Agreement with an attorney of your choosing.
PLEASE READ CAREFULLY. THIS AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. YOU ARE STRONGLY ADVISED TO
CONSULT WITH AN ATTORNEY BEFORE EXECUTING THIS DOCUMENT.
IN WITNESS WHEREOF, Employee and
Employer have executed this Agreement effective as of the date first written
above.
| EMPLOYEE | ||
| Print Name | ||
| Signature | ||
| Date Signed | ||
| NEEDLETECH PRODUCTS, INC. | ||
| By: | ||
| Title: | ||
-3-
Employee
40 and
Over
EXHIBIT B
RELEASE AGREEMENT
This Release Agreement (this
“Agreement”) is made this _____ day of______________ by NeedleTech Products,
Inc. (the “Employer”) and Xxxxxx Xxxxxxxx (the “Employee”).
Introduction
Employee and the Employer entered into
an Employment Agreement dated __________________ (the “Severance Agreement”)
which provides certain severance benefits.
The Severance Agreement requires that as
a condition to the payment of severance benefits under the Severance Agreement
(the “Severance Benefits”), the Employee must provide a release and agree to
certain other conditions.
NOW, THEREFORE, the parties agree as
follows:
1. Employee has been offered twenty-one
(21) days from receipt of this Agreement within which to consider this
Agreement. The effective date of this Agreement shall be the date eight (8) days
after the date on which Employee signs this Agreement (“the Effective Date”).
For a period of seven (7) days following Employee’s execution of this Agreement,
Employee may revoke this Agreement, and this Agreement shall not become
effective or enforceable until such seven (7) day period has expired. Employee
must communicate the desire to revoke this Agreement in writing. Employee
understands that the Employee may sign the Agreement at any time before the
expiration of the twenty-one (21) day review period. To the degree Employee
chooses not to wait twenty-one (21) days to execute this Agreement, it is
because Employee freely and unilaterally chooses to execute this Agreement
before that time. Employee’s signing of the Agreement triggers the commencement
of the seven (7) day revocation period.
2. In exchange for Employee’s execution of
this Agreement and in full and complete settlement of any and all claims, the
Employer will provide Employee with the Severance Benefits.
3. Employee acknowledges and agrees that
this Agreement is in compliance with the Age Discrimination in Employment Act
and the Older Workers Benefit Protection Act and that the releases set forth in
this Agreement shall be applicable, without limitation, to any claims brought
under these Acts.
The release given by Employee in this
Agreement is given solely in exchange for the consideration set forth in this
Agreement and such consideration is in addition to anything of value that
Employee was entitled to receive prior to entering into this
Agreement.
Employee has been advised to consult an
attorney prior to entering into this Agreement, and this provision of the
Agreement satisfies the requirement of the Older Workers Benefit Protection Act
that Employee be so advised in writing.
By entering into this Agreement,
Employee does not waive rights or claims that may arise after the date this
Agreement is executed.
4. This Agreement shall in no way be
construed as an admission by the Employer that it has acted wrongfully with
respect to Employee or any other person or that Employee has any rights
whatsoever against the Employer. The Employer specifically disclaims any
liability to or wrongful acts against Employee or any other person on the part
of itself, its employees or its agents.
5. As a material inducement to the Employer
to enter into this Agreement, Employee hereby irrevocably releases the Employer
and each of the owners, stockholders, predecessors, successors, directors,
officers, employees, representatives, attorneys, and affiliates (and agents,
directors, officers, employees, representatives and attorneys of such
affiliates) of the Employer, and all persons acting by, through, under or in
concert with them (collectively “Releasees”), from any and all charges, claims,
liabilities, agreements, damages, causes of action, suits, costs, losses, debts
and expenses (including attorneys’ fees and costs actually incurred) of any
nature whatsoever, known or unknown, including, but not limited to, rights
arising out of alleged violations of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, or any tort, or any
legal restrictions on the Employer’s right to terminate employees, or any
federal, state or other governmental statute, regulation, or ordinance,
including, without limitation: (1) Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act of 1991 (race, color, religion, sex, and
national origin discrimination); (2) the Employee Retirement Income Security Act
(“ERISA”); (3) 42 U.S.C. § 1981 (discrimination); (4) the Americans with
Disabilities Act (disability discrimination); (5) the Age Discrimination in
Employment Act; (6) the Older Workers Benefit Protection Act; (7) the Equal Pay
Act; (8) Executive Order 11246 (race, color, religion, sex, and national origin
discrimination); (9) Executive Order 11141 (age discrimination); (10) Section
503 of the Rehabilitation Act of 1973 (disability discrimination); (11)
negligence; (12) negligent hiring and/or negligent retention; (13) intentional
or negligent infliction of emotional distress or outrage; (14) defamation; (15)
interference with employment; (16) wrongful discharge; (17) invasion of privacy;
or (18) violation of any other legal or contractual duty arising under the laws
of the State of Georgia or the laws of the United States (“Claim” or “Claims”),
which Employee now has, or claims to have, or which Employee at any time
heretofore had, or claimed to have, or which Employee at any time hereinafter
may have, or claim to have, against each or any of the Releasees, in each case
as to acts or omissions by each or any of the Releasees occurring up to and
including the Effective Date. Employee covenants and agrees not to institute, or
participate in any way in anyone else’s actions involved in instituting, any
action against any of the Releasees with respect to any Claim released
herein.
Notwithstanding the foregoing, this
Agreement shall not release any claims the Employee has (i) to any unpaid
benefits under any employee benefit plan (within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
(ii) to Employee’s right to exercise vested stock options, if any, pursuant to
any stock option agreements provided by the Employer to
Employee.
6. The Employer and Employee agree that the
terms of this Agreement shall be final and binding and that this Agreement shall
be interpreted, enforced and governed under the laws of the State of Georgia.
The provisions of this Agreement can be severed, and if any part of this
Agreement is found to be unenforceable, the remainder of this Agreement will
continue to be valid and effective.
-2-
7. This Agreement sets forth the entire
agreement between the Employer and Employee and fully supersedes any and all
prior agreements or understandings, written and/or oral, between the Employer
and Employee pertaining to the subject matter of this
Agreement.
8. Employee is solely responsible for the
payment of any fees incurred as the result of an attorney reviewing this
agreement.
Your signature below indicates your
understanding and agreement with all of the terms in this
Agreement.
Please take this Agreement home and
carefully consider all of its provisions before signing it. You may take up to
twenty-one (21) days to decide whether you want to accept and sign this
Agreement. Also, if you sign this Agreement, you will then have an additional
seven (7) days in which to revoke your acceptance of this
Agreement after you have signed it. This
Agreement will not be effective or enforceable, nor will any consideration be
paid, until after the seven (7) day revocation period has expired. Again, you
are free and encouraged to discuss the contents and advisability of signing this
Agreement with an attorney of your choosing.
PLEASE READ CAREFULLY. THIS AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. YOU ARE STRONGLY ADVISED TO
CONSULT WITH AN ATTORNEY BEFORE EXECUTING THIS DOCUMENT.
IN WITNESS WHEREOF, Employee and
Employer have executed this Agreement effective as of the date first written
above.
| EMPLOYEE | ||
| Print Name | ||
| Signature | ||
| Date Signed | ||
| NEEDLETECH PRODUCTS, INC. | ||
| By: | ||
| Title: | ||
-3-
Employee 40 and over -
Group of
terminations
EXHIBIT
C
RELEASE AGREEMENT
This Release Agreement (this
“Agreement”) is made this _______day of_____________ by NeedleTech Products,
Inc. (the “Employer”) and Xxxxxx Xxxxxxxx (the “Employee”).
Introduction
Employee and the Employer entered into
an Employment Agreement dated ______________ (the “Severance Agreement”) which
provides certain severance benefits.
The Severance Agreement requires that as
a condition to the payment of severance benefits under the Severance Agreement
(the “Severance Benefits”), the Employee must provide a release and agree to
certain other conditions.
NOW, THEREFORE, the parties agree as
follows:
1. Employee has been offered forty-five
(45) days from receipt of this Agreement within which to consider this
Agreement. The effective date of this Agreement shall be the date eight (8) days
after the date on which Employee signs this Agreement (“the Effective Date”).
For a period of seven (7) days following Employee’s execution of this Agreement,
Employee may revoke this Agreement, and this Agreement shall not become
effective or enforceable until such seven (7) day period has expired. Employee
must communicate the desire to revoke this Agreement in writing. Employee
understands that the Employee may sign the Agreement at any time before the
expiration of the forty-five (45) day review period. To the degree Employee
chooses not to wait forty-five (45) days to execute this Agreement, it is
because Employee freely and unilaterally chooses to execute this Agreement
before that time. Employee’s signing of the Agreement triggers the commencement
of the seven (7) day revocation period.
2. In exchange for Employee’s execution of
this Agreement and in full and complete settlement of any and all claims, the
Employer will provide Employee with the Severance Benefits.
3. Employee acknowledges and agrees that
this Agreement is in compliance with the Age Discrimination in Employment Act
and the Older Workers Benefit Protection Act and that the releases set forth in
this Agreement shall be applicable, without limitation, to any claims brought
under these Acts.
The release given by Employee in this
Agreement is given solely in exchange for the consideration set forth in this
Agreement and such consideration is in addition to anything of value that
Employee was entitled to receive prior to entering into this
Agreement.
-1-
Employee has been advised to consult an
attorney prior to entering into this Agreement, and this provision of the
Agreement satisfies the requirement of the Older Workers Benefit Protection Act
that Employee be so advised in writing.
By entering into this Agreement,
Employee does not waive rights or claims that may arise after the date this
Agreement is executed.
4. The Employer has
[Employer to describe
class, unit, or group of individuals covered by termination program, any
eligibility factors, and time limits applicable] and such employees comprise
the “Decisional Unit.” Attached as “Attachment 1” to this Agreement is a list of
ages and job titles of persons in the Decisional Unit who were and who were not
selected for termination and the offer of consideration for signing the
Agreement.
5. This Agreement shall in no way be
construed as an admission by the Employer that it has acted wrongfully with
respect to Employee or any other person or that Employee has any rights
whatsoever against the Employer. The Employer specifically disclaims any
liability to or wrongful acts against Employee or any other person on the part
of itself, its employees or its agents.
6. As a material inducement to the Employer
to enter into this Agreement, Employee hereby irrevocably releases the Employer
and each of the owners, stockholders, predecessors, successors, directors,
officers, employees, representatives, attorneys, and affiliates (and agents,
directors, officers, employees, representatives and. attorneys of such
affiliates) of the Employer, and all persons acting by, through, under or in
concert with them (collectively “Releasees”), from any and all charges, claims,
liabilities, agreements, damages, causes of action, suits, costs, losses, debts
and expenses (including attorneys’ fees and costs actually incurred) of any
nature whatsoever, known or unknown, including, but not limited to, rights
arising out of alleged violations of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, or any tort, or any
legal restrictions on the Employer’s right to terminate employees, or any
federal, state or other governmental statute, regulation, or ordinance,
including, without limitation: (1) Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act of 1991 (race, color, religion, sex, and
national origin discrimination); (2) the Employee Retirement Income Security Act
(“ERISA”); (3) 42 U.S.C. § 1981 (discrimination); (4) the Americans with
Disabilities Act (disability discrimination); (5) the Age Discrimination in
Employment Act; (6) the Older Workers Benefit Protection Act; (7) the Equal Pay
Act; (8) Executive Order 11246 (race, color, religion, sex, and national origin
discrimination); (9) Executive Order 11141 (age discrimination); (10) Section
503 of the Rehabilitation Act. of 1973 (disability discrimination); (11)
negligence; (12) negligent hiring and/or negligent retention; (13) intentional
or negligent infliction of emotional distress or outrage; (14) defamation; (15)
interference with employment; (16) wrongful discharge; (17) invasion of privacy;
or (18) violation of any other legal or contractual duty arising under the laws
of the State of Georgia or the laws of the United States (“Claim” or “Claims”),
which Employee now has, or claims to have, or which Employee at any time
heretofore had, or claimed to have, or which Employee at any time hereinafter
may have, or claim to have, against each or any of the Releasees, in each case
as to acts or omissions by each or any of the Releasees occurring up to and
including the Effective Date. Employee covenants and agrees not to institute, or
participate in any way in anyone else’s actions involved in instituting, any
action against any of the Releasees with respect to any Claim released
herein.
-2-
Notwithstanding the foregoing, this
Agreement shall not release any claims the Employee has (i) to any unpaid
benefits under any employee benefit plan (within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
(ii) to Employee’s right to exercise vested stock options, if any, pursuant to
any stock option agreements provided by the Employer to
Employee.
7. The Employer and Employee agree that the
terms of this Agreement shall be final and binding and that this Agreement shall
be interpreted, enforced and governed under the laws of the State of Georgia.
The provisions of this Agreement can be severed, and if any part of this
Agreement is found to be unenforceable, the remainder of this Agreement will
continue to be valid and effective.
8. This Agreement sets forth the entire
agreement between the Employer and Employee and fully supersedes any and all
prior agreements or understandings, written and/or oral, between the Employer
and Employee pertaining to the subject matter of this
Agreement.
9. Employee is solely responsible for the
payment of any fees incurred as the result of an attorney reviewing this
agreement.
Your signature below indicates your
understanding and agreement with all of the terms in this
Agreement.
Please take this Agreement home and
carefully consider all of its provisions before signing it. You may take up to
forty-five (45) days to decide whether you want to accept and sign this
Agreement. Also, if you sign this Agreement, you will then have an additional
seven (7) days in which to revoke your acceptance of this Agreement after you
have signed it. This Agreement will not be effective or enforceable, nor will
any consideration be paid, until after the seven (7) day revocation period has
expired. Again, you are free and encouraged to discuss the contents and
advisability of signing this Agreement with an attorney of your
choosing.
PLEASE READ CAREFULLY. THIS AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. YOU ARE STRONGLY ADVISED TO
CONSULT WITH AN ATTORNEY BEFORE EXECUTING THIS DOCUMENT.
-3-
IN WITNESS WHEREOF, Employee and
Employer have executed this Agreement effective as of the date first written
above.
| EMPLOYEE | ||
| Print Name | ||
| Signature | ||
| Date Signed | ||
| NEEDLETECH PRODUCTS, INC. | ||
| By: | ||
| Title: | ||
-4-
ATTACHMENT I
Employees
Comprising the “Decisional Unit”
|
Job Title:
|
Age:
|
Participating:
|
Not
Participating:
|
Exhibit
D
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.]
2. Patents
[LIST OR DESCRIBE ALL PATENTS WHICH THE
EMPLOYEE OWNS INDIVIDUALLY, WITH OTHERS, OR FOR WHICH APPLICATIONS ARE PENDING.
IF NONE, INSERT ‘‘NONE’’.]
3. Copyrights
[DESCRIBE ANY WORKS FOR WHICH THE
EMPLOYEE CLAIMS THE COPYRIGHT EITHER INDIVIDUALLY OR WITH OTHERS. IF NONE,
INSERT ‘‘NONE’’.]
