EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (as it may be amended or supplemented, this
"Agreement") is entered into as of May 5, 1997 (the "Effective Date"), by and
between International Isotopes Inc., a Texas corporation ("Company"), and Xxxx
X. Xxxxxx ("Employee").
RECITALS
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A. Company desires to employ Employee as its President and Chief
Executive Officer because of his experience and expertise and to secure his
services upon the terms and subject to the conditions set forth in this
Agreement.
B. Employee desires and is willing to accept such employment upon such
terms and subject to the conditions.
THEREFORE, for and in consideration of the foregoing and the mutual
covenants and agreements contained in this Agreement, Company and Employee agree
as follows:
1. Employment. Upon the terms and subject to the conditions contained in
this Agreement, Company hereby employs Employee; and Employee hereby accepts
such employment, upon such terms and subject to such conditions.
2. Duties and Authority.
2.1 Duties of Employee. During the term of this Agreement, Employee
will serve as Company's President and Chief Executive Officer and will
faithfully and to the best of his ability perform such duties consistent with
the position of President and Chief Executive Officer as are determined and
directed by the Board of Directors of Company, or as are necessary, in the
reasonable judgment of Employee, to carry out his duties under this Agreement.
In his capacity as President and Chief Executive Officer, Employee will be
generally responsible for the implementation of directives of, and policies and
procedures adopted by, the Board of Directors of Company and for the overall
day-to-day executive management of Company. In performing his duties under this
Agreement, Employee will fully support and cooperate with Company's efforts to
develop its markets, expand its business, and operate profitably and in
conformity with business and strategic plans approved from time to time by
Company's Board of Directors.
2.2 Direction from Board of Directors and the Chairman of the Board.
Employee will look primarily to the Board of Directors of Company for direction
and
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guidance as to the performance of Employee's duties under this Agreement;
however, to facilitate communication between Employee and the Board of Directors
of Company, Employee will report on the status of Employee's activities and the
performance of Employee's duties to the Chairman of the Board of Company at such
times as he may be requested to do so by the Chairman.
2.3 Employee's Authority. In performing his duties under this
Agreement, Employee will have such authority as is necessary for him to
implement the directives of, and policies and procedures adopted by, the Board
of Directors of Company and to oversee the management of Company's day to day
affairs; but, from time to time as thought appropriate by Employee or Company's
Chairman of the Board, Employee will discharge his duties in consultation with
and under the direction of the Chairman of the Board of Company. Without
limiting the generality of the foregoing, in exercising his authority as
President and Chief Executive Officer of Company, Employee will have the
authority for employing, dismissing, and assigning job duties and
responsibilities to Company's employees.
2.4 Election as an Officer. Company will cause Employee to be elected
to the office of President and Chief Executive Officer and Board of Directors
(as to such other offices, if any, as Company's Board of Directors determines to
be appropriate).
2.5 Time and Attention to Services. Employee will devote
substantially all of his time and attention to the performance of his duties to
Company during the term of this Agreement. Company, however, recognizes that
Employee may be engaged in other non-conflicting passive business investments
and in community activities unrelated to his duties under this Agreement that
will require some portion of his time, and Company hereby consents to Employee's
attention to such other activities so long as such activities (a) do not hinder
Employee's ability to perform his duties under this Agreement and (b) do not
represent a conflict of interest in contravention of the agreements contained in
paragraph 11 or a competitive activity in contravention of the agreements
contained in paragraph 13 of this Agreement.
3. Term and Termination.
3.1 Term. This Agreement is effective as of the Effective Date
and will continue in effect until May 5, 2002, unless it is (a) terminated in
accordance with paragraph 3.2 or (b) extended in accordance with paragraph 3.3.
3.2 Termination. This Agreement may be terminated prior to
May 5, 2002, as follows:
(a) Termination by Mutual Consent. This Agreement may be
terminated at any time by the written mutual consent of
Company and Employee.
(b) Termination By Company for Cause. This Agreement may be
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terminated by Company at any time for Cause by the delivery
to Employee of a written notice of termination stating the
effective date of termination and the basis upon which this
Agreement is being terminated. As used in this Agreement,
the term "Cause" means (a) a vote by the Board of Directors
of Company to effect the dissolution of Company, or (b) (i)
a material default in the performance of Employee's duties
under this Agreement, or (ii) Employee's dishonesty, willful
misconduct, breach of fiduciary duty involving personal
profit, willful violation of any law, rule, or regulation,
action (or omission) involving moral turpitude and
reflecting unfavorably upon the public image of Company or
its Affiliates, or action (or omission) abiding or abetting
a competitor, supplier or customer of Company or its
Affiliates to the material disadvantage of Company or its
Affiliates; and the term "Affiliate" means any other person
or entity who directly controls, is controlled by, or is
under common control with Company or any Affiliate of
Company (and "control" means possession, directly or
indirectly, of power to direct or cause the direction of
management or policies, whether through ownership of voting
securities or otherwise). In the event of termination for
Cause, Employee will be entitled to such salary and benefits
as have accrued under this Agreement through the effective
date of termination, but will not be entitled to any other
salary, benefits, or other compensation after such date.
(c) Termination By Company Without Cause. This Agreement may be
terminated by Company at any time without Cause by the
delivery to Employee of a written notice of termination not
less than 90 days prior to the effective date of
termination. Upon such termination, Employee will be paid
salary and benefits as provided in this Agreement through
the effective date of termination and for the period of
eighteen (18) months after such date; provided, that
Company, at its election, may pay Employee on or before the
effective date of termination a lump-sum severance payment
equal to the total cash compensation that would be payable
to Employee under this Agreement for the 32-month period
following the effective date of termination (under no
circumstances, however, will Company be obligated to pay any
bonus after the effective date of termination except for
bonus payments approved by the Board of Directors of Company
prior to the effective date of termination).
(d) Termination by Employee. This Agreement may be terminated by
Employee at any time, with or without Cause, by the delivery
to Company of a written notice of termination not less than
90 days prior to the effective date of termination. In the
event of termination by Employee, Employee will be entitled
to such salary and benefits as have accrued under this
Agreement through the effective date of termination, but
will not be entitled to any other salary, benefits, or other
compensation after such date.
(e) Termination Upon Death or Disability of Employee. This
Agreement will be terminated immediately upon the death or
permanent disability (which shall be determined in
accordance with Company's disability plan as then in effect,
or if no such plan is then in effect, as determined in good
faith by Company's Board of Directors at such time as
Employee becomes physically or mentally incapable or
properly performing his duties under this Agreement and such
incapacity will exist or can reasonably be expected to exist
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for a period of ninety days or more) of Employee. In either
such event, Employee or his beneficiary as designated in
writing to Company (or his estate, if no such beneficiary
has been designated) will be entitled to such benefits (i)
as are consistent with Company policy then if effect or (ii)
as are determined by Company's Board of Directors in its
sole discretion.
3.3 Extension of Term. The term of this Agreement may be
extended beyond May 5 2002, by the mutual agreement of Employee and Company and
on such basis as Employee and Company shall agree. Each such extension, unless
expressly agreed otherwise by Employee and Company, will be for five(5), years
commencing on January 1 of the year following the expiration of the original or
any renewal term. Mutual agreement to extend the term of this Agreement shall be
evidenced by either (a) a written agreement executed by Company and Employee or
(b) the continuation of Employee's performance of services under this Agreement
with the approval of Company and without notice of termination given by Company
or Employee. Any extended term of this Agreement may be terminated as set forth
in paragraph 3.2 above, unless otherwise agreed in writing by Company and
Employee.
4. Compensation.
4.1 Base Annual Salary. In consideration for the performance of his
duties under this Agreement, Employee will be paid a base annual salary of
$175,000, which shall be payable (less applicable withholding for federal taxes)
in bi-weekly installments or otherwise in such manner as the salaries of other
executive officers of Company are paid in accordance with Company policy.
4.2 Annual Salary Review. Company's Board of Directors will review
Employee's salary level on an annual basis and may elect, on the basis of such
review, to increase Employee's base annual salary; but any such increase in
Employee's Salary will be made solely at the discretion of Company's Board of
Directors.
4.3 Bonus. In addition to the annual salary to be paid to Employee
pursuant to this Agreement, Employee will be considered for an annual bonus at
the end of each calendar or fiscal year of Company. The Board of Directors of
Company, at its discretion, will determine the amount of the bonus, if any, to
be paid to Employee after considering such factors related to the performance of
Employee and of Company during the preceding fiscal year as the Board of
Directors of Company determines to be appropriate; however, if Company meets
reasonable goals and objectives established by Company's Board of Director, and
if the Board of Directors believes, in its judgment, that Employee has performed
his duties under this Agreement in an exemplary manner, then it is anticipated
that any such bonus shall be approximately up to 50% percent of Employee's base
salary but not to exceed 10% of pretax profits. At its election, Company's Board
of Directors may elect to have any such bonus awarded (cash, Stock, annuities or
other) to Employee paid in a single payment on such date as the Board determines
(but no later than December 31 of the year next following the end of the fiscal
year for which the bonus is awarded) or in up to 12 equal
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monthly installments beginning within 30 days following the date on which the
Company's Board of Directors resolves to award the bonus.
4.4 Independent Consideration. Concurrently with the execution of
this Agreement, Company is making a payment of $100 to Employee as independent
and additional consideration ("Independent Consideration") for Employee's
agreement to comply with the provisions of paragraph 13 of this Agreement for
the Applicable Period which is defined as the term of this employment agreement
and six months thereafter.
5. Expenses and Reimbursements. Employee will be entitled to
reimbursement for reasonable out-of-pocket expenses incurred by Employee that
are directly attributable to the performance of Employee's duties under this
Agreement. Employee will adhere to Company's customary practices and procedures
with respect to incurring out-of-pocket expenses and will present such expense
statements, receipts, vouchers, or other evidence supporting expenses incurred
by Employee as Company may from time to time request.
6. Benefits. During the term of this Agreement, Employee will be entitled
to the benefits generally provided or made available to other executive officers
of Company, including, but without limitation, such group medical (including
dental) insurance and life insurance benefits as are made available to employees
of Company generally and participation in any "cafeteria" plan or retirement
plan that may be available to employees of Company (subject, however, to (I)
eligibility and (ii) modification or elimination in accordance with Company's
standard policies as in effect from time to time) and to the following specific
benefits:
(a) Relocation. Company will pay the reasonable moving expenses
incurred by Employee in connection with his relocation from Boston ,Mass to
Denton, Tx in accordance with Company's standard policy for relocation of
employees, will reimburse Employee for reasonable temporary housing expenses for
a period of up to four months following the Effective Date, and will reimburse
Employee for incidental expenses reasonably incurred in connection with
Employee's relocation.
(b) Professional Dues and Charges. During the period between the
Effective Date and the first anniversary of his membership (based on an annual
membership contract), Company will reimburse Employee for the monthly dues and
other basic monthly charges incurred by Employee for a one-year term membership
in Professional Societies or Organizations which benefit the Company or
Professional development of Employee.
(c) Cellular Phone. Company will pay the basic monthly charge for a
cellular phone.
(d) Vacation. Employee will be entitled to such vacation time as is
allotted to other executive officers of Company (but in no event less than
four(4) weeks in
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any calendar year).
(f) Sick Leave. Employee will be entitled to the benefits, and
subject to all provisions of, Company's standard policies and procedures
regarding sick leave and time off.
7. Stock Options. As a material inducement to Employee to enter into this
Agreement, Company agrees that it will grant an option (the "Option") to
Employee to purchase up to 75,000 shares of common capital stock of Company (the
"Option Shares") (on the assumption that 4,024,000 shares of Company's common
stock will be issued and outstanding at the date of grant; if such assumption
proves to be incorrect, then the number of Option Shares will be adjusted to the
number which equals NA percent of the issued and outstanding shares of Company's
common stock on the date of grant) for fair market value and otherwise on terms
to be agreed upon between Company and Employee at a later date (though in no
event later than 30 days after the Effective Date). The Option will be evidenced
by a written agreement (the "Option Agreement") acceptable to, and executed by,
Company and Employee. The Option Agreement (a) will specify the purchase price
to be paid by Employee for the Option Shares upon his exercise of the Option
(which will be the fair market value of the Option Shares as determined in good
faith by Company's Board of Directors); (b) will provide that Employee may
exercise the option over a three(3) -year period as follows: (i) as to 33.3
percent of the Option Shares, on and after May 1998, (ii) as to 33.3 percent of
the Option Shares, on and after May 1999 (iii) as to 33.4 percent of the Option
Shares, on and after May 2000 (provided, that Employee remains employed by
Company on each of such dates); (c) will provide for such restrictions on
transferability as may be reasonably required by Company; and (d) will set forth
other terms and conditions related to the Option agreed upon by Company and
Employee. The foregoing notwithstanding, Employee acknowledges that Company is
engaged in discussions with a corporation (an "Acquiring Company") that has
expressed an interest in acquiring all the outstanding capital stock of Company
with the effect of Company becoming a wholly-owned subsidiary of such Acquiring
Company; and in such event Company agrees to act in good faith in an effort to
negotiate options in favor of Employee that would provide Employee an
opportunity, by their exercise, to acquire capital stock of the Acquiring
Company of comparable value to the Option Shares (and on substantially similar
terms to the terms upon which the Option is or would otherwise be granted by
Company).
8. Resources and Support.
8.1 Secretarial Support. Company will employ an experienced secretary
selected by Company, and acceptable to Employee, and will assign such secretary
to provide secretarial support to Employee (alone or in a sharing arrangement
with another executive officer of Company) during the term of this Agreement.
8.2 Computer Support. Company will provide Employee and his secretary
with compatible computers and such other computer equipment and software as
Company and Employee shall mutually determine.
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9. Confidentiality and Non-Disclosure. Employee acknowledges that in the
performance of his duties to Company under this Agreement he will gain a close,
personal, and special influence with Company's customers and suppliers and will
obtain and/or develop certain trade secrets and valuable, confidential
information of or pertaining to Company or its Affiliates, including, but
without limitation, information concerning the following: operations; business
opportunities; price and cost information; finances; customer names; customer
prospects, and customer lists; the terms of contracts with customers, suppliers,
and agents; business plans; marketing and sales plans; sales techniques;
manuals; letters; notebooks; procedures; reports; products; processes;
specifications; services; inventions; research and development; and other
concepts or ideas involving or relating to the business or prospective business
of Company (collectively, "Confidential Information"), which Confidential
Information has been or will be uniquely developed by or for Company or its
Affiliates and cannot be readily obtained by third parties from outside sources.
Employee accordingly agrees as follows:
(a) Detrimental Statements. For so long as this Agreement remains in
effect and for a period of 24 months after the date of termination or expiration
of this Agreement (the "Applicable Period"), Employee will not, directly or
indirectly, in any individual or representative capacity whatsoever, make any
statement, oral or written, or perform any act or omission which is or could be
detrimental in any material respect to the goodwill of Company, provided that
any truthful statement made by Employee in good faith shall not violate this
subparagraph.
(b) Covenant of Confidentiality. All Confidential Information and
other information communicated to Employee by, or otherwise belonging to,
Company, its Affiliates, or their customers, whether before or after the
Effective Date, shall at all times be held in strict confidence, shall be used
only for the purpose of this Agreement, and shall not be disclosed by Employee
without the prior written consent of Company, except as may be necessary by
reason of legal, accounting, or regulatory requirements beyond the reasonable
control of Employee.
(c) Return of Lists, Books, Records, and Property. Upon the
expiration of the term or termination of this Agreement, Employee will surrender
to Company all tangible Confidential Information in the possession of Employee,
including, but without limitation, the originals and all copies of all lists,
books, and records of or pertaining to any Confidential Information, and all
other property in the possession of Employee belonging to Company or any of its
Affiliates.
(d) Right to Injunctive Relief. Employee acknowledges that a
violation or attempted violation on his part of any agreement in this paragraph
9 will cause irreparable damage to Company and to its Affiliates, and
accordingly Employee agrees that Company shall be entitled as a matter of right
to an injunction, out of any court of competent jurisdiction, restraining any
violation or further violation of such agreements by Employee;
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and such right to an injunction shall be cumulative and in addition to whatever
other remedies Company may have.
(e) Survival of Terms. The terms and agreements set forth in this
paragraph 9 shall survive the expiration of the term or termination of this
Agreement regardless of the reason. The existence of any claim of Employee,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by Company of the agreements contained in this
paragraph 9.
(f) Separate Non-Disclosure Agreement. If after the Effective Date
Company so requests, Employee will enter into a separate non-disclosure
agreement the provisions of which are substantially the same as those contained
in this paragraph 9.
10. Proprietary Information. Employee agrees to promptly and freely
disclose to Company in writing any and all ideas, conceptions, inventions,
improvements, suggestions for improvements, discoveries, formulae, processes,
designs, software, hardware, circuitry, diagrams, copyrights, trade secrets, and
any other proprietary information (collectively, "Proprietary Information"),
whether patentable or not, which are conceived, developed, and made or acquired
by Employee, alone or jointly with others, during the period of his employment
by Company or using Company's time, data, facilities, and/or materials, and
which are related to the products, business, or activities of Company or which
Employee conceives, develops, makes, or acquires as a result of his employment
by Company, and Employee agrees to assign and hereby does assign all of his
right, title, and interest therein to Company. Whenever requested to do so by
Company, Employee will execute applications, assignments, or other instruments
which Company deems necessary to apply for and obtain letters patent or
copyrights of the United States or any foreign country, to otherwise protect
Company's interest in any Proprietary Information, or to vest title to any
Proprietary Information in Company. These obligations shall continue beyond the
expiration or termination of Employee's employment, regardless of the reason for
such termination, with respect to any Proprietary Information conceived,
developed, made, or acquired by Employee during the period of his employment and
shall be binding upon Employee's assigns, executors, administrators, and other
legal representatives.
11. Conflict of Interest. In keeping with Employee's fiduciary duties to
Company, Employee agrees that while employed by Company he will not, acting
along or in conjunction with others, directly or indirectly, become involved in
a conflict of interest or, upon discovery thereof, allow a conflict of interest
to continue. Moreover, Employee agrees that he will immediately disclose to the
Board of Directors of Company any facts which might involve any reasonable
possibility of a conflict of interest. It is agreed that any direct or indirect
interest in, connection with, or benefit from any outside activities, where such
interest might in any way adversely affect Company, involves a possible conflict
of interest. Circumstances in which a conflict of interest on the part of
Employee might arise, and which must be reported immediately by Employee to the
Board of Directors of Company, include,
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but are not limited to, the following: (a) ownership of a material interest in
any supplier, contractor, subcontractor, customer, or other entity with which
Company does business; (b) acting in any capacity, including director, officer,
partner, consultant, employee, distributor, agent, or the like, for a supplier,
contractor, subcontractor, customer, or other entity with which Company does
business; (c) accepting, directly or indirectly, payment, service, or loans from
a supplier, contractor, subcontractor, customer, or other entity with which
Company does business, including, but not limited to, gifts, trips,
entertainment, or other favors of more than a nominal value; (d) misuse of
Company's information or facilities to which Employee has access in a manner
which will be detrimental to Company's interest, such as utilization for
Employee's own benefit of know-how, inventions, or information developed through
Company's business activities; (e) disclosure or other misuse of Confidential
Information of any kind obtained through Employee's connection with Company; (f)
the ownership, directly or indirectly, of a material interest in an enterprise
in competition with Company, or acting as an owner, director, principal,
officer, partner, consultant, employee, agent, servant, or otherwise of any
enterprise which is in competition with Company; and (g) appropriation of a
Corporate Opportunity, as defined in paragraph 12 of this Agreement. Company
acknowledges that Employee has disclosed that he has a financial interest as a
shareholder of E. I. Du Pont ("Du Pont"), a corporation that engages in certain
manufacturing activities that could be in competition with certain activities of
the Company. Company and Employee agree to act in good faith in a mutual effort
to resolve any conflicts of interest that may result from Employee's involvement
with Du Pont ; however, while Company is committed to an effort to resolve any
such conflicts in a manner that is fair and reasonable to Company and Employee,
Company waives no rights under this Agreement in the event such efforts shall
prove to be unsuccessful and Employee acknowledges that Company is under no
obligation to waive any such rights.
12. Corporate Opportunities. Employee acknowledges that during the course
of his employment by Company he may be offered or become aware of business or
investment opportunities in which Company may or might have an interest (a
"Corporate Opportunity") and that he has a duty to advise Company of any such
Corporate Opportunities before acting upon them. Accordingly, Employee agrees
(a) that he will disclose to Company's Board of Directors any Corporate
Opportunity offered to Employee or of which Employee becomes aware, and (b) that
he will not act upon any Corporate Opportunity for his own benefit or for the
benefit of any person or entity other than Company without first obtaining the
consent or approval of Company's Board of Directors (whose consent or approval
may be granted or denied solely at the discretion of Company's Board of
Directors).
13. Non-Competition.
13.1 Covenant Not to Compete. As an ancillary covenant to the terms
and conditions set forth elsewhere in this Agreement, and in particular the
covenants set forth in paragraph 9, paragraph 10, and paragraph 11 above, and in
consideration of the mutual promises set forth in this Agreement and other good
and valuable consideration received and
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to be received, including, but without limitation, the Independent
Consideration, which has been paid to Employee in consideration of Employee's
agreement to comply with the terms and conditions of this paragraph 13, Employee
agrees that, during the term of this Agreement, and throughout the Applicable
Period (term of employment agreement and six months thereafter), Employee will
not, directly or indirectly, own or become employed by or otherwise provide
consulting services to, any business engaged or planning to become engaged in
the business of providing or marketing of radioisotopes or medical
instrumentation or any business competitive with Company prior to the date of
termination of this Agreement, in the U. S. and any other country in which
Company commences business while this Agreement remains in effect. Employee
understands that the current business activities of Company and its Affiliates
include manufacturing radioisotopes and medical instrumentation and that Company
and its Affiliates have plans to expand the scope of such activities and the
geographic area of operations of Company and its Affiliates in the near future
with the direct involvement of Employee, therefore, Employee agrees that the
limitations as to time, geographical area, and scope of activity contained in
this covenant do not impose a greater restraint than is necessary to protect the
goodwill and other business interests of Company. If any provision of this
covenant is found to be invalid in part or in whole, Company may elect, but
shall not be required, to have such provision reformed, whether as to time, area
covered, or otherwise, as and to the extent required for its validity under
applicable law and, as so reformed, such provision shall be enforceable.
13.2 Right to Injunctive Relief. Employee acknowledges that a
violation or attempted violation on his part of any agreement in this paragraph
13 will cause irreparable damage to Company and its Affiliates, and accordingly
Employee agrees that Company shall be entitled as a manner of right to an
injunction, out of any court of competent jurisdiction, restraining any
violation or further violation of such agreements by Employee; such right to an
injunction, however, shall be cumulative and in addition to whatever other
remedies Company may have. Furthermore, Employee shall be entitled to seek a
declaratory judgment regarding any conduct or enterprise to determine whether or
not such conduct or violation is violative of the terms of this Agreement;
provided however, that no suit shall be filed until Employee has given Company
at least 15 days to respond to Employee's written request for permission to
undertake certain requested acts. The terms and agreements set forth in this
paragraph 13 shall survive the expiration of the term or termination of this
Agreement for any reason. The existence of any claim of Employee, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by Company of the agreements contained in this paragraph 13.13.3
Separate Non-Competition Agreement. If after the Effective Date Company so
requests, Employee will enter into a separate non-competition agreement the
provisions of which are substantially the same as those contained in this
paragraph 13.
13.3 Separate Non-Competition Agreement. If after the Effective Date
Company so requests, Employee will enter into a separate non-competition
agreement the provisions of which are substantially the same as those contained
in this paragraph 13.
14. Indemnification. Company, shall, and does hereby, indemnify and agree
to hold Employee harmless to the fullest extent provided to officers and
directors of Company under the Charter of Company's First Amended and Restated
Charter, as amended from time
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to time (the "Charter Indemnification"); provided that (a) Employee shall be
entitled to all benefits provided to directors of Company under the Charter
Indemnification, whether or not Employee is, or at any time is elected, a
director of Company; (b) any determination of indemnification made under the
Charter Indemnification with respect to Employee shall be made by special legal
counsel selected by the mutual agreement of Company's Board of Directors and
Employee (or, if Company's Board of Directors and Employee cannot agree, then by
Company, but in such case, such legal counsel must be a partner or shareholder
in a law firm headquartered in the State of Texas and having no fewer than 100
lawyers); and (c) if for any reason the Charter Indemnification has been
terminated or is otherwise inapplicable to Employee, Employee shall be entitled
to indemnification to the fullest extent that a corporation may grant
indemnification to a director, officer, and employee under the Texas Business
Corporation Act, as the same exists or as it may hereafter be amended ("TBCA"),
if Employee was, or is threatened to be made a named defendant or respondent in
a preceding (as hereinafter defined) because Employee (i) is or was an employee
of Company or an Affiliate of Company as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or in a similar position in a partnership,
joint venture, sole proprietorship, trust, employee benefit plan, or other
enterprise in which Employee serves on behalf of Company or at Company's
request. In the event of Employee's death such right shall inure to the benefit
of Employee's heirs, successors, and assigns. The indemnification granted to
Employee hereunder is a contract right and shall survive the expiration of the
term or termination of this Agreement and Company shall be obligated to
indemnify Employee pursuant to and in accordance with this paragraph 14
regardless of whether this Agreement shall have expired or shall have been
terminated. The rights conferred above shall not be exclusive of any other right
which Employee may have or hereafter acquire under any statute, bylaw,
resolution of shareholders or directors, agreement or otherwise. As used in this
paragraph, the term "proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether a civil, criminal, or administrative
proceeding or an arbitration or investigation, any appeal in any such action,
suit, or proceeding, and any inquiry or investigation that could lead to such an
action, suit, or proceeding.
15. Company's Right of Offset. Should Employee at any time be indebted to
Company, or otherwise obligated to pay money to Company for any reason, Company,
at its election, may offset amounts otherwise payable to Employee under this
Agreement, including, but without limitation, salary and bonus payments, against
any such indebtedness or amounts due from Employee to Company.
16. Miscellaneous.
16.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS.
16.2 Entirety and Amendments. This Agreement embodies the entire agreement
between the parties and supersedes all prior agreements and understandings
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relating to the subject matter hereof. This Agreement may be amended or modified
only in writing executed by Employee and the Chairman of the Board of Directors
of Company or another officer of Company expressly authorized by Company's Board
of Directors.
16.3 Notices. Any notice or other communication hereunder must be in
writing to be effective and shall be deemed to have been given when personally
delivered to Employee or Company or, if mailed, on the third day after it is
enclosed in an envelope and sent certified mail/return receipt requested in the
United States mail. Either party may from time to time change its address for
notification purposes by giving the other party written notice of the new
address and the date upon which it will become effective. The address for each
party for notices hereunder is as follows:
Employee: Xxxx X. Xxxxxx
00 Xxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Company: International Isotopes Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
16.4 Attorney's Fees. In the event that either party is required to
obtain the services of an attorney in order to enforce any right or obligation
hereunder, the prevailing party shall be entitled to recover reasonable
attorney's fees and court costs from the other party.
16.5 Assignability; Binding Nature. Neither this Agreement nor any
right, duty, obligation, or interest hereunder may be assigned or delegated by
one party hereto without the prior written consent of the other party hereto.
This Agreement is binding upon Company and Employee and their respective
successors, heirs and assigns. Notwithstanding anything to the contrary herein,
the rights and obligations of Employer hereunder may be assigned by Employer to
any Affiliate of Employer or any entity that succeeds to all or substantially
all of the assets of Employer or such Affiliate through merger, consolidation,
liquidation, acquisition of assets, or otherwise.
16.6 Headings. The headings of paragraphs contained in this Agreement
are for convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
16.7 Severability. If, but only to the extent that, any provision of
this Agreement is declared or found to be illegal, unenforceable, or void, then
both Company and Employee shall be relieved of all obligations arising under
such provision, it being the intent and agreement of Company and Employee that
this Agreement shall be deemed amended by modifying such provision to the extent
necessary to make it legal and
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enforceable while preserving its intent. If such amendment is not possible,
another provision that is legal and enforceable and achieves the same objective
shall be substituted therefor. If the remainder of this Agreement is not
affected by such declaration or finding and is capable of substantial
performance by both Company and Employee, then the remainder shall be enforced
to the extent permitted by law.
16.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be part of the same instrument.
Executed as of the Effective Date set forth above by:
International Isotopes Inc.
By: /s/ Xxx Xxx Xxxxxx /s/ Xxxx X. Xxxxxx
---------------------------------- ---------------------------------
Xxx Xxx Xxxxxx Xxxx X. Xxxxxx
Title: Chairman Title: President & CEO
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Date: 4-8-97 Date: 4/10/97
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