EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (“Agreement”) is entered into March 22, 2007, but not to
take effect until the Effective Date (as defined in Section 1(d) below) by
and
between Xxxx Xxxx, an individual (“Executive”), and North American Scientific,
Inc., a Delaware corporation (the “Company”).
WHEREAS,
the Company desires to engage Executive as the President and Chief Executive
Officer of the Company; and
WHEREAS,
Executive desires to be employed by the Company, in such capacity, and to assume
the duties and responsibilities set forth in this Agreement;
NOW,
THEREFORE, in consideration of the mutual promises contained below, the parties
agree as follows:
1. Employment
by the Company and Term.
(a) Position.
Subject
to the terms herein, the Company agrees to employ Executive as President and
Chief Executive Officer, and Executive hereby accepts such employment. Executive
shall render such other services for the Company and entities controlled by,
under common control with or controlling, directly or indirectly, the Company,
and to successor entities and assignees of the Company (“Company Affiliates”) as
the Company may from time to time reasonably request and as shall be consistent
with the duties Executive is to perform for the Company and with Executive’s
experience. During the term of his employment with the Company, Executive will
devote his full time and use his best efforts to advance the business and
welfare of the Company, and will not engage in any other employment or business
activities for any direct or indirect remuneration that would be harmful or
detrimental to, or that may compete with, the business and affairs of the
Company, or that would interfere with the performance of his duties hereunder.
Notwithstanding the immediately preceding sentence, with prior notice to and
approval by the Company’s Board of Directors (the “Board”), which approval shall
not be unreasonably withheld, Executive may serve on the Board of Directors
for
up to two other public (or private) companies, provided that such companies
are
not, and are not reasonably likely to become, direct competitors with the
Company.
(b) Duties.
Employee
shall have the responsibilities and duties as set forth in the bylaws of the
Company and such other duties commensurate with the position of chief executive
officer of entities comparable to the Company, including responsibility for
overseeing the implementation of all resolutions adopted by the Board, general
supervision over the Company’s business and financial affairs and its other
officers, employees, agents and representatives, and such other supervisory
duties as may reasonably be assigned to him by the Board.
(c) Company
Policies. The
employment relationship between the parties shall be governed by the general
employment policies and practices of the Company, including but not limited
to
those relating to protection of confidential information and assignment of
inventions, except that when the terms of this Agreement differ from or are
in
conflict with the Company’s general employment policies or practices, this
Agreement shall control.
(d) Term.
This
Agreement shall become effective on the day Executive commences employment
with
the Company (“Effective Date”). Thereafter, Executive’s employment shall be
at-will, and either party may terminate such employment at any time, for any
reason, with or without notice, subject to the terms of Section 8 below
(“Term”). Executive acknowledges that certain provisions of this Agreement,
including without limitation Sections 9 through 13, survive termination of
employment and termination of this Agreement.
2. Compensation
and Benefits.
(a) Salary.
Effective
on the Effective Date, Executive shall receive for services rendered hereunder
a
salary at a rate of Three Hundred and Fifty Thousand Dollars ($350,000.00)
per
annum, payable in accordance with Company’s policies and practices for payment
of salary to salaried employees (the “Base Salary”). The Base Salary will be
reviewed annually by and shall be subject to adjustment at the sole discretion
of the Board or the Compensation Committee thereof.
(b) Participation
in Benefits Plans. During
the term hereof, Executive shall be entitled to participate in any group
insurance, hospitalization, medical, dental, health, accident, disability or
similar plan or program of the Company now existing or established hereafter
to
the extent that he is eligible under the general provisions thereof.
Notwithstanding the immediately foregoing, nothing herein shall preclude the
Company from terminating or modifying any such benefit plan or program.
Executive shall also participate in all fringe benefits offered generally by
the
Company to its executives.
(c) Vacation.
Executive
shall be entitled to a period of annual vacation time equal to five (5) weeks
per 12- month period, to accrue pro
rata during
the course of each such 12- month period. The days selected for Executive’s
vacation must be mutually and reasonably agreeable to Company and Executive.
In
no event shall Executive’s total accrued vacation exceed eight (8) weeks.
Whenever Executive’s total accrued vacation has reached the maximum of eight (8)
weeks, Executive will stop accruing any further vacation and will only resume
accruing vacation when and to the extent the Executive’s total accrued vacation
is reduced below the maximum of eight (8) weeks.
3. Annual
Bonuses. Executive
shall be eligible to receive an annual bonus (based on the Company’s fiscal year
ending October 31) in an amount, if any, of up to 60% of his Base Salary of
each
year or portion thereof during which the Executive is employed hereunder, based
upon the achievement by the Company and/or Executive of performance
goals and objectives established annually by the Board or the Compensation
Committee thereof in consultation with the Executive (“Performance Goals”), as
determined by the Company’s Compensation Committee.
With
respect to the period which begins on the Effective Date and ends on the last
day of the fiscal year that includes the Effective Date, Executive shall be
eligible to receive a bonus in an amount no less than 30% of his annualized
Base
Salary, multiplied by a fraction, the numerator of which is the number of days
in the such period and the denominator of which is 365.
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4. Stock
Options.
(a) Grant
of Options. On
the
Effective Date, the Company shall cause to be issued to Executive options with
respect to 1,800,000 shares of common stock of the Company, such options to
be
exercisable at a price equal to the fair market value per share of Company
common stock as of the grant date, as determined under the North
American Scientific, Inc. 2006 Stock Plan (the “Company’s Stock
Plan”).
Options
with respect to 600,000
of the 1,800,000 shares shall be granted under the Company’s Stock Plan and
shall be incentive stock options (ISOs) to the maximum extent permissible and
the remainder shall be non-statutory options (NSOs) (together, “Plan Options”).
The options
with respect to the
remaining 1,200,000 shares shall be granted as a stand-alone grant outside
of
the Company’s Stock Plan and will be NSOs (“Non-Plan Options”). “Options” shall
refer to both Plan Options and Non-Plan Options.
(b) Option
Terms. Both
the
Plan Options and the Non-Plan Options shall have a term of ten (10)years, and
shall vest ratably on the monthly anniversary of the Effective Date, beginning
with the first such monthly anniversary, with
full
vesting to occur on the fourth annual anniversary of the Effective Date.
Plan
Options and Non-Plan Options shall remain exercisable until the earlier of
the
expiration of the term of the Option or (i) three (3) months following
Executive’s Termination Date (as defined below) in the case of termination for
reasons other than Cause, death or Disability (as such terms are defined below)
or (ii) 12 months following Executive’s Termination Date in the case of
termination on account of death or Disability. In the event that Executive’s
employment is terminated for Cause, all outstanding options, whether vested
or
not, shall immediately lapse.
(c) Tandem
SAR.
Each
Plan Option and each Non-Plan Option will be granted in tandem with an stock
appreciation right (SAR), which SAR shall remain outstanding until such time
as
the authorized shares of the Company have increased to at least 60,000,000.
Under the SAR, if an Option is exercised prior to the time that the authorized
shares have reached this level, the Company, in its sole discretion, may elect
to settle the exercise in cash or in shares. Once the authorized shares have
reached this level, the SAR and the Company’s ability to elect to settle in cash
shall lapse.
(d) Additional
Grant in Event of Equity Increase..
In the
event that within a period of 24 months of the Effective Date, the Company
issues additional shares of stock in connection with a transaction, the
principal purpose of which is to raise cash by the sale of its securities in
a
private placement, Executive shall be granted, as of the closing date of such
transaction, options with respect to an additional number of shares equal to
three percent (3%) of the number of shares (not including any warrants or
options) of Company common stock issued on such date in connection with such
transaction (the “Additional Options”), such Additional Options to be granted at
the fair market value (as determined under the Company’s Stock Plan) on the date
of such transaction, and to be granted subject to vesting, exercisability and
termination provisions as set forth in subparagraph (b) above, based on a grant
date which is the closing date of the transaction giving rise to the grant
of
the Additional Options, rather than the Effective Date.
5. Reasonable
Business Expenses and Support. Executive
shall be reimbursed for documented and reasonable business expenses in
connection with the performance of his duties hereunder. Executive shall be
furnished reasonable office space, assistance and facilities suitable to and
appropriate for his position and responsibilities.
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6. Living
and Related Travel Expenses. Upon
submission of itemized expense statements in the manner specified by the Company
with respect to travel and business expenses, Executive shall be entitled to
reimbursement of up to $40,000, in the aggregate, for reasonable out-of-pocket
living and related travel expenses incurred during the period prior to the
time
that Executive relocates to the Los
Angeles, California
area.
7. Legal
Expenses. All
reasonable legal fees and expenses (not to exceed $2,500.00) incurred by
Executive in connection with his negotiations to become affiliated with the
Company, including the negotiation and preparation of this Agreement, shall
be
paid by the Company.
8. Termination
of Employment. The
date
on which Executive’s employment by the Company ceases for any reason, whether
voluntary or involuntary, shall be defined herein as the “Termination Date.”
Except as specifically provided below, upon the Executive’s termination of
employment for any reason, the Company shall pay to Executive (i) Base Salary
earned by Executive through the Termination Date and unpaid at such date, plus
(ii) credit for any vacation earned by Executive but not taken at the date
of
Executive’s termination, plus (iii) all other amounts earned by Executive and
unpaid as of such termination date.
(a) Termination
By Company for Reasons other than Cause, Death or Disability; Termination by
Executive for Good Reason.
If the
Company terminates Executive’s employment for any reason other than Executive’s
death, Disability or Cause, or (b) Executive resigns for Good Reason, the
Company will continue to pay Executive his Base Salary in effect on the
Termination Date for a period ending 12 months following the Termination Date,
such payments to be made in accordance with the Company’s standard payroll
practices for salaried employees.
(i) Definition
of Cause. “Cause”
means the occurrence or existence of any of the following with respect to
Executive, as determined by a majority of the disinterested directors of the
Board: (a) gross negligence or willful misconduct in the performance of
Executive’s duties; (b) willful, material and repeated breach by Executive of
any of his material obligations hereunder which remains uncured after the lapse
of 15 days following the date that the Company has given Executive written
notice thereof; (c) any act of misappropriation, embezzlement, intentional
fraud
or similar conduct involving the Company or any of its Affiliates; (d) the
violation of any federal, state or local law or any act of moral turpitude
which
has a material adverse impact on the business, reputation or operation of the
Company or on Executive’s ability to perform his duties under this Agreement;
(e) intentional infliction of any damage of a material nature to the business
or
any property of the Company or any of its Affiliates; or (f) the repeated
non—prescription abuse of any controlled substance or the repeated abuse of
alcohol or any other non—controlled substance which, in any case described in
this clause, the Board reasonably determines has a material adverse impact
on
the Executive’s ability to serve in his capacity as an officer or employee of
the Company or it Affiliates.
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(ii) Definition
of Resignation for Good Reason.
A
“Resignation for Good Reason” shall mean a termination of the employment
relationship by Executive after (i) an unwarranted material diminution by the
Company in Executive’s position or responsibilities without Executive’s consent,
or (ii) a reduction in Executive’s Base Salary, provided that within 30 days of
any such alleged diminution or reduction, Executive provides the Company with
written notice of the basis for his claim that he has Good Reason to terminate
his employment and a period of at least 15 days to cure.
(iii) Definition
of Disability.“Disability”
means
an accident, illness, injury or other medical condition that
renders Executive unable to perform the essential functions of his position,
even with reasonable accommodation, which is expected to result in a prolonged
absence from employment, as defined by and determined by the Board.
(b) Control
Termination. In
the
event of a Control Termination (as defined below), the Company will (i) continue
to pay Executive his Base Salary in effect on the Termination Date for a period
ending 12 months following the Termination Date (the “Change of Control Benefit
Period”), such payments to be made in accordance with the Company’s standard
payroll practices for salaried employees, and (ii) continue
Executive’s group health benefits which the Employer maintains, from time to
time, for its senior executives and their families, under the same terms and
conditions, including payment of any required employee contributions therefor,
as may generally apply (including any limitation or termination of coverage
of
non-spouse dependents after a stated age), to the extent such can be continued
under the terms of the governing plans) for the Change in Control Benefit
Period;.
In
addition, Executive shall, as of the date of the Control Termination, become
fully vested in any unvested Options previously granted to him.
(i) Definition
of Control Termination.
The
term “Control Termination” shall mean: (i) a termination of this Agreement and
Executive’s employment by the Company or the Executive immediately prior to or
concurrent with a Change of Control (as defined below) if Executive is not
employed by the successor entity after such Change in Control; or (ii)
resignation by the Executive within 90 days after a “Change of Control” of the
Company upon the occurrence of an event that constitutes “Good
Reason”.
(ii) Definition
of Change in Control.
The
term “Change of Control” shall mean a change in control of the Company of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities and Exchange
Act
of 1934 (the “Act”) or, if Item 6(e) is no longer in effect, any regulations
issued by the Securities and Exchange Commission pursuant to the Act which
serve
similar purposes; provided that, without limitation, such a change in control
shall be deemed to have occurred if and when either
(A) (i) any
“person” (as such term is used in sections 13(d) and 14(d) of the Act) is or
becomes a “beneficial owner” (as such term is defined in Rule 13d-3 promulgated
under the Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company’s then
outstanding securities entitled to vote with respect to the election of its
Board of Directors, and
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(ii) as
the
result of the foregoing transaction or events, individuals who were members
of
the Board immediately prior to any such transaction or event shall not
constitute a majority of the Board of Directors following such transaction
or
event; or
(B) any
sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company.
(c) Release
of Claims. The
payment of any severance payments or benefits under Section 8 of this Agreement
shall be subject to Executive signing an agreement reconfirming his
post—employment obligations contained in this Agreement and releasing the
Company and all related parties from any claims, such agreement to be prepared
by the Company or its designee.
(d) Compliance
With IRC Section 409A.
Notwithstanding anything contained hereunder, Executive agrees that if necessary
to comply with section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), as determined by the Company in its reasonable discretion, any and
all payments under this Section 8 will be deferred until six (6) months after
the Termination Date, and any amounts that would otherwise would have been
paid
during such six (6)-month period will be paid instead as a lump sum at the
end
of the such six (6)-month period.
9. Gross
Up Payments.
(a) Parachute
Payments.
To the
extent that any amount payable to Executive (hereunder or otherwise) alone
or
together with other compensation constitutes a “parachute payment” within the
meaning of section 280G of the Code that would result in some or all of the
compensation owed being characterized as “excess parachute payments” (as defined
under section 280G of the Code), and would, therefore, be subject to an excise
tax under section 4999 of the Code (the “Excise Tax”), the Company shall pay to
the Executive, at the time specified below, an additional amount (the “Parachute
Gross-Up Payment”), such that the net amount retained by Executive, after
deduction of the Excise Tax and any federal, state and local income tax,
including the Excise Tax on the Gross-Up Payment and any interest, penalties
or
additions to tax payable by the Executive with respect thereto, shall be equal
to the total present value (using the applicable federal rate as defined in
section 1274(d) of the Code) of the compensation in the nature of parachute
payments at the time such payments are to be made.
(b) Non-Qualified
Deferred Compensation.
To the
extent that any amount or benefit payable to Executive hereunder is determined
to be includible in gross income under section 409A of the Code, and regulations
thereunder and would, therefore, be subject to under section 409A(a)(1)(B)
of
the Code (the “Additional Amounts”), the Company shall pay to the Executive, at
the time specified below, an additional amount (the “409A Gross-Up Payment”),
such that the net amount or benefit retained by Executive, after deduction
of
the Additional Amount and any federal, state and local income tax on such 409A
Gross-Up Payment, including any Additional Amount on the 409A Gross-Up Payment
and any interest, penalties or additions to tax payable by the Executive with
respect thereto, shall be equal to the compensation in the nature of
non-qualified deferred compensation subject to section 409A, at the time such
payments or benefit become includible in gross income under section 409A of
the
Code.
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(c) Determinations.
Unless
the Company and the Executive otherwise agree in writing, any determination
required under this Section 9 shall be made in writing by nationally recognized
independent public accountants agreed to by the Company and Executive (the
“Accounting Firm”), whose determination shall be conclusive and binding upon
Executive and the Company for all purposes. For purposes of determining the
amount of any Parachute Gross-Up Payment and any 409A Gross-Up Payment
(collectively, the “Gross-Up Payments” and each a “Gross-Up Payment”), and
unless otherwise agreed by the Company, the Executive and the Accounting Firm,
the Executive shall be deemed to pay federal income taxes at the highest
marginal rates of taxation applicable to individuals as are in effect in the
calendar year in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rates of taxation applicable to individuals
as are in effect in the state and locality of the Executive’s residence, and/or
any other state or locality that may be applicable, in the calendar year in
which the Gross-Up Payment is to be made, net of the maximum reduction in
federal income taxes that can be obtained from deduction of such state and
local
taxes, taking into account any limitations applicable to individuals subject
to
federal income tax at the highest marginal rates. For purposes of making the
calculations required by this Section 9, the Accounting Firm may rely on
reasonable, good faith interpretations concerning the application of sections
280G and 4999 of the Code and section 409A of the Code. The Company and the
Executive shall furnish to the Accounting Firm such information and documents
as
the Accounting Firm may reasonably request in order to make a determination
hereunder.
(d) Time
of Payment.
The
Gross-Up Payments provided for in Section 9(a) and (b) above shall be made
upon
the earlier of (i) (A) the payment to the Executive of compensation in the
nature of a parachute payment, in the case of a Parachute Gross-Up Payment,
or
(B) the day on which an amount becomes non-qualified deferred compensation
subject to section 409A of the Code and includible in Executive’s gross income,
in the case of a 409A Gross-Up Payment, or (ii) the imposition upon the
Executive or payment by the Executive of any Excise Tax or Additional Amounts,
as the case may be.
(e) Adjustments.
If it
is established pursuant to a final determination of a court or an Internal
Revenue Service proceeding that the Excise Tax and/or
Additional Amounts is
less
than the amount taken into account under Section 9(a) and/or (b) above, the
Executive shall repay to the Company within thirty (30) days of Executive’s
receipt of notice of such final determination the portion of the Gross-Up
Payment attributable to such reduction (plus the portion of the Gross-Up Payment
attributable to any Excise Tax and/or Additional Amounts and federal, state
and
local income taxes imposed on the Gross-Up Payment being repaid by the
Executive, if such repayment results in a reduction in Excise Tax and/or
Additional Amounts or a federal, state and local income tax deduction) plus
any
interest received by the Executive on the amount of such repayment. If it is
established pursuant to a final determination of a court or an Internal Revenue
Service proceeding that the Excise Tax and/or Additional Amounts exceeds the
amount taken into account under Section 9(a) or (b) above (including by reason
of any payment the existence or amount of which cannot be determined at the
time
of the Gross-Up Payment), the Company shall make any additional Gross-Up Payment
in respect of such excess within thirty (30) days of the Company’s receipt of
notice of such final determination.
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(f) Limitation.
No
Gross-Up Payment shall be made in respect to any regular income taxes or
employment taxes except to the extent attributable to such taxes on a Gross-Up
Payment.
10. Proprietary
Information Obligations. During
the term of employment under the Agreement, Executive will have access to and
become acquainted with the Company’s and the Company Affiliates’ confidential
and proprietary information, including, but not limited to, information or
plans
regarding the Company’s and Company Affiliates’ customer relationships;
personnel, sales, marketing, and financial operations and methods; trade
secrets; business plans; research and development; formulas; devices; secret
inventions; processes; and other compilations of information, records, and
specifications (collectively “Proprietary Information”). Executive shall not
disclose any of the Company’s or the Company’s Affiliates’ Proprietary
Information directly or indirectly, or use it in any way, either during the
term
of this Agreement or at any time thereafter, except as required in the course
of
his employment for the Company or as authorized in writing by the Company.
All
files, records, documents, computer—recorded information, drawings,
specifications, equipment and similar items relating to the business of the
Company or the Company’s Affiliates, whether prepared by Executive or otherwise
coming into his possession, shall remain the exclusive property of the Company
or the Company’s Affiliates, as the case may be, and shall not be removed from
the premises of the Company under any circumstances whatsoever without the
prior
written consent of the Company, except when (and only for the period) necessary
to carry out Executive’s duties hereunder, and if removed shall be immediately
returned to the Company upon any termination of his employment or at any other
time that the Company may request; provided, however, that Executive may retain
copies of documents reasonably available to the Company’s shareholders generally
and any documents that were personally owned, which copies and the information
contained therein Executive agrees not to use for any business purpose.
Notwithstanding the foregoing, Proprietary Information shall not include
information which is or becomes generally public knowledge except through
disclosure by the Executive in violation of this Agreement or the wrongful
act
of any third party, and (ii) information that may be required to be disclosed
by
applicable law.
11. Non—Solicitation.
From
the
Execution Date of this Agreement through the date one (1)year after the
Termination Date, Executive will not on his own behalf or on behalf of an other
person or entity, without the express written consent of the Board, solicit
or
attempt to solicit, induce or encourage any then current employee, customer,
business relation, service provider or representative of the Company to
terminate or modify his, her or its employment or business relationship with
the
Company.
12. Inventions.
Executive
will, during the period of his employment, disclose to the Company promptly
and
fully all Inventions made or conceived by the Executive (either solely or
jointly with others), including but not limited to Inventions which relate
to
the business of the Company or Company Affiliates or the Company’s or the
Company Affiliates’ actual or anticipate research or development, or result from
work performed by him for the Company or the Company Affiliates. All Inventions
and all records related to Inventions, whether or not patentable, shall be
and
remain the sole and exclusive property of the Company. “Inventions” means all
inventions, discoveries, processes, improvements, designs, developments, and
ideas, and all know—how related thereto. Executive hereby assigns and agrees to
assign to the Company or its designee all of his rights to Inventions and any
patents, trademarks, or copyrights which may be issued with respect to
Inventions. Executive further acknowledges that all work shall be work made
for
hire. During and after the term of this Agreement, Executive agrees to assist
the Company, without charge to the Company but at its request and expense,
to
obtain and retain rights in Inventions, and will execute all appropriate related
documents at the request of the Company or its designee.
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Executive
understands that this Section 12 shall not apply to any invention for which
no
equipment, supplies, facilities, trade secret, or other confidential information
of the Company or Company Affiliates was used and which was developed entirely
on his own time, and does not relate to the business of the Company or Company
Affiliates, its actual or anticipated research, and does not result from any
work performed by him for the Company or Company Affiliates.
13. Deliveries
to Company.
(a) Executive
shall promptly notify the Board of any claims that he has against the Company
during the term of this Agreement.
(b) Upon
termination of this Agreement and Executive’s employment for any reason, and
except as specifically provided herein or as consented to by the Board in
writing, Executive shall deliver to the Company (i) all the books, records,
documents, Proprietary Information, scientific and technical documents,
chemicals, devices, data and information, and all other assets of the Company
as
prepared by him or others, whether in written, computerized, machine readable,
model, sample, or other form capable of physical delivery(collectively “Books
and Records”), without making copies of any such Book and Records whether for
his own use or for any other purpose; (ii) all other property of the Company
or
relating to the Company's employees, suppliers, customers, and business,
including but not limited to keys or key cards to Company property, Company
credit cards, cell phones, computers, supplier and customer lists, etc., (iii)
a
written acknowledgement that Executive has no claims of any kind against the
Company; and (iv) his resignation from any office and/or directorship he may
hold in the Company or its affiliates.
14. Miscellaneous.
(a) Notices.
Any
notices provided hereunder must be in writing and shall be deemed effective
upon
the earlier of immediately upon personal delivery (including personal delivery
by reputable delivery service, telecopy or telex), or the fourth day after
mailing by first class mail to the recipient at the address indicated
below:
To
the
Company:
North
American Scientific, Inc
00000
Xxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Board of Directors
9
To
Executive:
Xxxx
Xxxx
0000
Xxxx
Xxxxxxxx Xxxxx
Xxxxxxxx,
Xxxxxxx 00000
or
to
such address or to the attention of such other person as the recipient party
will have specified by prior written notice to the sending party.
(b) Taxes
and Deductions. All
payments made to Executive by the Company will be subject to withholding of
income and employment taxes and other lawful deductions, as applicable.
(c) Severability.
Any
provision of this Agreement which is deemed invalid, illegal or unenforceable
in
any jurisdiction shall, as to that jurisdiction and subject to this paragraph
be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provisions of this Agreement
invalid, illegal, or unenforceable because its scope is considered excessive,
such covenant shall be modified so that the scope of the covenant is reduced
only to the minimum extent necessary to render the modified covenant valid,
legal and enforceable.
(d) Entire
Agreement. This
document constitutes the final, complete, and exclusive embodiment of the entire
agreement and understanding between the parties related to the subject matter
hereof and supersedes and preempts any prior or contemporaneous understandings,
agreements, or representations by or between the parties, written or
oral.
(e) Counterparts.
This
Agreement may be executed on separate counterparts, any one of which need not
contain signatures of more than one party, but all of which taken together
will
constitute one and the same agreement.
(f) Successors
and Assigns. This
Agreement is intended to bind and inure to the benefit of and be enforceable
by
Executive and the Company, and their respective successors and assigns, except
that Executive may not assign any of his duties hereunder and he may not assign
any of his rights hereunder without the prior written consent of the
Board.
(g) Amendments.
No
amendments or other modifications to this Agreement may be made except by
writing and signed by both parties. No amendment or waiver of this Agreement
requires the consent of any individual, partnership, corporation or other entity
not a party to this Agreement. Nothing in this Agreement, express or implied,
is
intended to confer upon any third person any rights or remedies under or by
reason of this Agreement.
(h) Section
409A. Except
with respect to payments made pursuant to Section 8 of the Agreement which
are
intended to comply with the provisions of section 409A of the Code, this
Agreement is not intended to provide for an elective deferral of compensation
that would be subject to section 409A thereof, and the Company reserves the
right to unilaterally amend or modify this Agreement to ensure that payments
are
either not subject to section 409A or comply therewith, as the case may be
(which amendment may be retroactive to the extent permitted under section 409A
of the Code). Notwithstanding the foregoing, the Company makes no
representations that payments hereunder are not subject to section 409A of
the
Code.
10
(i) Choice
of Law. All
questions concerning the construction, validity and interpretation of this
Agreement will be governed by the laws of the State of California without giving
effect to principles of conflicts of law.
IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date it is last executed below by either party.
| NORTH AMERICAN SCIENTIFIC, INC. | XXXX XXXX | |||
| By: |
/s/Xxxx
X. Xxxxxx
|
/s/Xxxx X. Xxxx | ||
|
Chairman
|
||||
| Date: |
3/22/07
|
Date: |
3/22/07
|
|
11
