EMPLOYMENT AGREEMENT
EXHIBIT
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the "Agreement") is dated as of August 21, 2007 between
Galt Medical Corp., a Texas corporation (the "Company") and Xxxxxxx Xxxx
(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. 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 one
(1) year 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, the manufacture, sale, and distribution of vascular
access 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
(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.
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 and provided 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) "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.
(o) "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.
(p) "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 of Galt Medical
Corp. and the Employee accepts such employment with the Company in such capacity
and agrees to serve as President of Galt Medical Corp. as long as the Employee
is appointed to such position, subject to the terms and conditions hereof.
The
Employee shall report to the Chairman and the Board of Directors of the Company
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.
(b) Short-Term
Incentive Plan. Beginning as of January 1, 2008 but as determined in
February, 2008 by the Compensation Committee, 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.
(k) 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 second
(2nd) anniversary of the Commencement Date, with automatic extensions for
successive additional one-year terms, as provided herein. Ninety (90) days
before the second (2nd) 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.
(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 one (1) year 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) one (1)
times the Employee's annual base salary at the time of termination of employment
or (ii) if less than one (1) 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.
(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 to 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 (i) with whom the Employee dealt on
behalf of Company or an Affiliate; (ii) whose dealings with Company or an
Affiliate were coordinated or supervised by the Employee; or (iii) about whom
the Employee obtained Confidential Information in the course of the Employee's
providing services to 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.
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, a.c.G.A. § 10-1760, 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 (a) 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, (b) 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 (c) 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 (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. 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.
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.
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. 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.
By
initialing below, the Company and the Employee indicate their agreement to
this
Section 14(c).
By
the Company:/s/
BWS (initials of
Company representative)
By
Employee: /s/
ML
(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.
(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:
|
|
|
GALT
MEDICAL CORP.
|
|
|
By:
/s/ Xxxxx X. Xxxxx
|
|
|
Title:
Assistant Secretary
|
|
|
ATTEST:
|
|
|
/s/
Xxxx X. Xxxxxx
|
|
|
Title:
Notary Public
|
|
|
(CORPORATE
SEAL)
|
|
|
THE
EMPLOYEE:
|
|
|
/s/
Xxxxxxx Xxxx
|
|
Employee
Under
40
EXHIBIT
A
This
Release Agreement (this
"Agreement") is made this __ day
of by
Galt
Medical Corp. (the "Employer") and_______________________(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"), (ii) to Employee's right to exercise
vested
stock options, if any, pursuant to any stock option agreements provided
by
the Employer to Employee, or (iii) under the Stock Purchase Agreement
(and
its exhibits) identified in the introduction to the Severance
Agreement.
|
|
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.
|
|
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
|
|||
|
GALT
MEDICAL CORP.
|
|||
|
By:
_________________________
|
|||
|
Title:
________________________
|
Employee
40
and
over
EXHIBIT
B
This
Release Agreement (this
"Agreement") is made this _____ day of______________ by
Galt
Medical Corp. (the "Employer") and ______________________________________ (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"), (ii) to Employee's right to exercise
vested
stock options, if any, pursuant to any stock option agreements provided
by
the Employer to Employee, or (iii) under the Stock Purchase Agreement
(and
its exhibits) identified in the introduction to the Severance
Agreement.
|
|
|
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.
|
|
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
|
|||
|
GALT
MEDICAL CORP.
|
|||
|
By:
__________________________
|
|||
|
Title:
_________________________
|
Employee
40 and over
Group
of
terminations
EXHIBIT
C
This
Release Agreement (this
"Agreement") is made this _______day of_____________ by
Galt
Medical Corp. (the "Employer") and ___________________________________(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.
|
|
|
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.
|
|
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"), (ii) to Employee's right to exercise
vested
stock options, if any, pursuant to any stock option agreements provided
by
the Employer to Employee, or (iii) under the Stock Purchase Agreement
(and
its exhibits) identified in the introduction to the Severance
Agreement.
|
|
|
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.
IN
WITNESS WHEREOF, Employee and Employer have executed this Agreement effective
as
of the date first written above.
| EMPLOYEE | |||
|
|
|||
|
Print
Name
|
|||
| Signature | |||
|
Date
Signed
|
|||
|
GALT
MEDICAL CORP.
|
|||
|
By:
__________________________
|
|||
|
Title:
_________________________
|
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''.]
|
