EMPLOYMENT AGREEMENT
of
THOMAS D. LOGAN
MIRION TECHNOLOGIES, INC.
EMPLOYMENT
AGREEMENT (this “ Agreement ”), entered into
this 15th day of August 2006, by and between MIRION
TECHNOLOGIES, INC., a Delaware corporation (the “
Company ”), and THOMAS D. LOGAN (“
Executive ”).
In
consideration of the mutual agreements set forth below and set
forth in the Confidentiality and Intellectual Property Agreement
attached hereto as Exhibit_A (the “ Non-Disclosure
Agreement ”), and for other good and valuable
consideration given by each party to this Agreement to the other,
the receipt and sufficiency of which are hereby acknowledged, the
Company agrees to hire Executive and Executive agrees to serve the
Company as an employee pursuant to the terms and subject to the
conditions that follow.
(a) The
Company hereby agrees to employ Executive, and Executive hereby
agrees to accept employment with the Company, upon the terms and
conditions contained in this Agreement, effective as of the date
hereof (the “ Effective Date ”).
Executive’s employment with the Company shall continue until
three (3) years from the Effective Date, subject to earlier
termination of such employment pursuant to the terms hereof (the
“ Employment Period ”).
(a) During
the Employment Period, Executive shall serve as Chief Executive
Officer of the Company (“ CEO ”).
Executive’s duties and responsibilities as CEO shall include
the day-to-day management and operation of the Company’s
business, as well as those duties customarily associated with an
officer with a similar title or as may be assigned to him from time
to time by the Board. Executive shall serve on the Board of
Directors of the Company (the “ Board ”) for
successive terms during the Employment Period. Executive shall
devote his full-time attention and energies in his employment with
the Company; provided, however, that this Agreement shall not be
interpreted as prohibiting Executive from (i) serving on the
Boards of Directors of unrelated companies or (ii) in
accordance with the policies and procedures of the Company,
managing his personal affairs or engaging in charitable or civic
activities, so long as, in each case, such activities do not
interfere in any material respect with the performance of
Executive’s duties and responsibilities hereunder.
3.
Compensation and Benefits . In consideration of
entering into this Agreement and as full compensation for
Executive’s services hereunder, during the Employment Period,
Executive shall receive the following compensation and
benefits:
(a)
Base Salary . The Executive shall receive an initial base
salary of $275,000.00 per year (“ Base Salary
”). Base Salary shall be payable in accordance with the
payroll policies from time to time in effect at the Company.
Executive’s Base Salary shall be subject to increase (but not
decrease) on an annual basis as the Board shall
determine.
(b)
Incentive Bonuses . In addition to Base Salary, during the
Employment Period, Executive shall be eligible to receive an annual
incentive bonus targeted at fifty percent (50%) of Base Salary,
with the potential to receive up to one hundred percent (100%) of
Base Salary, based on the achievement of financial and business
criteria determined by the Board in consultation with Executive,
such criteria to include, without limitation, agreed upon sales and
EBITDA targets (the “ Incentive Bonus ”).
The Incentive Bonus will be paid in cash within forty-five
(45) days after the Company’s receipt of audited
financial statements for the prior fiscal year (but in no event
later than one hundred and thirty-five (135) days after the
end of such prior fiscal year).
(c)
Vacation . Executive shall be entitled to four
(4) weeks vacation per calendar year, accrued in accordance
with the usual vacation policies in effect at the
Company.
(d)
Benefits . Executive shall participate in and be entitled to
receive, but without duplication, all benefits, including paid time
off, offered to senior executives of the Company.
(e)
Stock Options . The Executive will be granted non-qualified
options to purchase shares of common stock, par value $.001 per
share, of the Company (the “ Common Stock ”)
(such options are referred to herein as the “ Stock
Options ”). The Company has awarded Stock Options to
Executive to purchase 14,564 of its Common Stock at an exercise
price equal to $88.75 per share pursuant to the Stock Option
Agreement and Notice of Stock Option Grant dated as of
January 1, 2006 (the “ Stock Option Agreement
”). Stock Options, and stock issuable upon exercise thereof,
will be subject to the terms and conditions of the Company’s
2006 Stock Plan (the “ Option Plan ”). All Stock
Options granted pursuant to this Section 3(e) shall fully vest upon
a Change of Control. In the event of an initial public offering of
the Common Stock in an underwritten offering under the Securities
Act of 1933, as amended (an “ IPO ”), fifty
percent (50%) of the then unvested Stock Options granted pursuant
to this Section 3(e) shall vest and become exercisable (subject to
customary lock-ups).
(f)
“ Fully Diluted Basis ” shall mean the total
number of shares of Common Stock which are issued and outstanding
plus the total number of shares of Common Stock which would
be issued and outstanding assuming the exercise of all outstanding
options issued pursuant to the Stock Option Plan, the exercise of
all warrants or rights to purchase Common Stock and the conversion
of all outstanding securities, including the Company’s
Series A-1 Convertible Participating Preferred Stock and
Series
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A-2 Convertible
Participating Preferred Stock, par value $.001 per share
(collectively, the “ Preferred Stock
”).
(g)
Change of Control Defined . For the purposes of this
Agreement, “ Change of Control ” shall mean,
with respect to the Company, a transaction or a series of related
transactions involving:
(i) The
sale of fifty-one percent (51%) or more of the assets (based on
their fair market value) of the Company; or
(ii) The
sale by the Company or stockholders of the Company in a single
transaction or in a series of related transactions after the
Effective Date of equity securities in the Company constituting
greater than fifty percent (50%) of the voting power thereof;
or
(iii) Any
consolidation, merger or recapitalization of the Company in which
the Company is not the continuing or surviving corporation or
pursuant to which the Company’s voting stock would be
converted into cash, securities and/or other property, other than
any such transaction in which holders of the Company’s voting
stock immediately before the transaction, in the aggregate, have
(or upon conversion, exercise or similar action would have) on the
same proportionate basis that existed prior to the transaction,
more than fifty percent (50%) of the voting power of all issued and
outstanding securities of the surviving corporation after the
transaction.
For the
avoidance of doubt, the conversion of Preferred Stock into Common
Stock shall not be deemed a “ Change of Control
”.
(h)
“ Business Day ” shall mean any day of the year
on which national banking institutions in Orange County, California
and New York, New York are open to the public for conducting
business and are not required or authorized to close
4.
Reimbursement for Expenses . During the Employment
Period, Executive shall be entitled to incur on behalf of the
Company reasonable and necessary expenses in connection with his
duties in accordance with the Company’s policies and the
Company shall pay for or reimburse Executive for all such expenses
upon presentation of proper receipts therefore including, without
limitation, (a) reimbursement for air travel expenses for
coach commercial airline travel for Executive to fly to and/or from
his home to Orange County, California up to two (2) round
trips per week, including the reasonable costs of ground
transportation and parking generally associated with air travel
(such costs not to exceed $350.00 per round trip); provided
, however , should Executive elect to make such trips with
his personal aircraft, Executive will be reimbursed for the costs
associated with such travel (such costs not to exceed $350.00 per
round trip) and (b) the costs of monthly lease, insurance and
maintenance payments for an open ended lease as quoted by
Automotive Resources International for a vehicle one grade above
those provided to GDS’s field representatives generally. In
addition, until such time as a new President of Global Dosimetry
Solutions, Inc. (“ GDS ”) begins
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employment with
GDS and for sixty (60) days thereafter, Executive shall be
entitled to the costs of a moderately priced, furnished, one
bedroom apartment in Orange County, California (which apartment
shall be no further than twenty miles from the Company’s
headquarters).
5.
Termination . Executive’s employment
relationship with the Company hereunder may be terminated as
follows:
(a) Automatically
in the event of the death of Executive;
(b) At
the option of the Company, by written notice to Executive or his
personal representative in the event of the Permanent Disability of
Executive. As used herein, the term “ Permanent
Disability ” shall mean a physical or mental incapacity
or disability as a result of which Executive has been unable to
render the services required hereunder (A) for one hundred
eighty (180) days in any twelve (12) month period or
(B) for a period of one hundred twenty (120) successive
days;
(c) At
the option of the Company for Cause (as defined in Section
6(e));
(d) At
the option of the Company at any time without Cause, subject to the
Company’s obligations under Section 6(c) hereof;
(e) At
the option of Executive other than for Good Reason (as defined in
Section 6(f)), on sixty (60) days prior written notice to
the Company; or
(f) At
the option of Executive for Good Reason, on thirty (30) days
prior written notice to the Company.
(a)
Death . Upon the termination of Executive’s employment
due to death, Executive or his legal representatives shall be
entitled to receive from the Company (i) an amount equal to
Base Salary payable through the date of termination, plus
(ii) a pro rata portion of Executive’s Incentive Bonus,
if any, for the applicable period during the fiscal year in which
termination occurs (which portion of the Incentive Bonus shall be
reasonably determined by the Board as of the date of termination of
employment), payable at the same time as such payment would be made
during Executive’s regular employment with the Company, plus
(iii) the continuation of health benefits for
Executive’s family for one (1) year. Executive or his
legal representatives shall also be entitled to any accrued and
unpaid vacation pay or other benefits which may be owing in
accordance with Company policies.
(b)
Permanent Disability . Upon the termination of
Executive’s employment due to Permanent Disability, Executive
or his legal representatives shall be entitled to receive from the
Company (i) an amount equal to Base Salary payable
through
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the date of
termination, plus (ii) a pro rata portion of Executive’s
Incentive Bonus, if any, for the applicable period during the
fiscal year in which termination occurs (which portion of the
Incentive Bonus shall be reasonably determined by the Board as of
the date of termination of employment), payable at the same time as
such payment would be made during Executive’s regular
employment with the Company, plus (iii) the continuation of
health benefits for Executive’s family for one (1) year.
Executive or his legal representatives shall also be entitled to
any accrued and unpaid vacation pay or other benefits which may be
owing in accordance with Company policies.
(c)
Termination Without Cause or by Executive for Good Reason .
If Executive’s employment has been terminated by the Company
at any time during the Employment Period without Cause or by
Executive for Good Reason, Executive shall be entitled to an amount
equal to the sum of:
(i) Base
Salary through the date of termination, plus;
(ii) Base
Salary for the Severance Period (as defined in Section 6(g)),
payable in accordance with the usual payroll policies in effect at
the Company as if Executive was employed at the time (any payments
made pursuant to this agreement during the Severance Period shall
be in lieu of any severance payments generally paid by the Company
to its employees, including pursuant to any plan or policy of the
Company), plus;
(iii) a
pro rata portion of Executive’s Incentive Bonus, if any, for
the applicable period during the fiscal year in which termination
occurs (which portion of such bonus shall be reasonably determined
by the Board), payable at the same time as such payment would be
made while Executive was employed or acting as a consultant, as the
case may be, with the Company, plus;
(iv) any
accrued and unpaid vacation pay, unreimbursed expenses or other
benefits which may be applicable to and owing in accordance with
Company policies or applicable law, plus;
(v) continuation
of all health benefits offered to senior executives of the Company
for the Severance Period.
The
Company agrees that if the Executive’s employment with the
Company is terminated without Cause or by the Executive for Good
Reason, the Executive is not required to seek other employment or
to attempt in any way to reduce any amount payable to the Executive
by the Company pursuant to this Agreement.
(d)
Termination for Cause or by Executive other than for Good
Reason . Except for Base Salary through the pay period in which
his employment was terminated and any accrued and unpaid vacation
pay or other benefits which may be owing in accordance with Company
policies or applicable law, Executive shall not be entitled to
receive severance or other pay or compensation of any kind from the
Company
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after the last
date of employment with the Company upon the termination of his
employment hereunder by the Company for Cause pursuant to Section
5(c) or upon Executive’s termination of employment by the
Company for other than Good Reason.
(e)
Cause Defined . For purposes of this Agreement, the term
“ Cause ” shall mean that Executive:
(i) committed
or engaged in an act of fraud, embezzlement, sexual harassment,
dishonesty or theft in connection with Executive’s duties for
the Company or any subsidiary of the Company;
(ii) materially
breached or defaulted under his agreements or obligations under
this Agreement or the Non-Disclosure Agreement or any similar
agreement with the Company or any subsidiary of the Company (which
breach or default, if reasonably capable of cure, is not cured
within two (2) Business Days after written notice thereof is
received by Executive or, if reasonably capable of cure but not
within two (2) Business Days, the Executive shall not have
commenced cure in good faith within such two (2) Business Days
and completed such cure as promptly as reasonably practical
thereafter);
(iii) is
convicted of, or pleads nolo contendere with respect to, a
felony; or
(iv) engaged
in an act of gross negligence or willful failure to perform his
duties or responsibilities, including the failure to follow in any
material respect a direction or written policy of the Board (which
breach or default, if reasonably capable of cure, is not cured
within five (5) Business Days after written notice thereof or,
if reasonably capable of cure but not within five (5) Business
Days, the Executive shall not have commenced cure in good faith
within such five (5) Business Days and completed such cure as
promptly as reasonably practical thereafter).
(f)
Good Reason Defined . For purposes of this Agreement, the
term “Good Reason” shall mean in the absence of the
written consent of Executive:
(i) a
reduction in Executive’s Base Salary by the Company, a
material reduction or discontinuance of any material incentive
compensation or expense reimbursement plan or the taking of any
action with the purpose of materially adversely affecting the
Executive’s participation in benefits under any fringe
benefit provided to Executive; provided , that the actions
referred to in this Section (i) above (other than with respect
to a reduction in base salary) shall not constitute “good
reason” if such actions were taken by a Company as part of an
overall plan by the Company and made applicable to the same extent
to all employees of the Company;
(ii) a
diminution in Executive’s title or position or a significant
diminution in Executive’s authorities, duties or
responsibilities with respect to the Company, in each case, from
those contemplated in Section 2 (other than isolated
actions
6
not taken in
bad faith and remedied by the Company within the cure period set
forth below;
(iii) the
requirement by the Company that Executive be based in an office
which is more than twenty-five (25) miles from the
Company’s headquarters at Bishop Ranch 8, 3000 Executive
Parkway Suite 518, San Ramon, CA or be required to relocate;
or
(iv) any
failure by the Company to comply with any material provision of
this Agreement, any stock option agreement or other material
agreement between the Executive and the Company.
Notwithstanding
the foregoing, in the event that Executive provides written notice
of termination for Good Reason in reliance upon any of the
circumstances contained in Section 6(e), the Company shall
have the opportunity to cure such circumstances within fifteen
(15) days of receipt of such notice. If Executive does not
deliver to the Company a notice of termination within the ninety
(90) day period after Executive has knowledge that an event
constituting Good Reason has occurred, such event will no longer
constitute Good Reason.
(g)
Severance Period Defined . For purposes of this Agreement,
“ Severance Period ” shall mean the period, if
any, beginning on the date of termination of Executive’s
employment as described in Section 6(c) and ending on the date
which is twelve (12) months thereafter. Any severance payments
made pursuant to this agreement shall be in lieu of any severance
payments generally paid by the Company to its employees.
(h)
Condition to Payment . All payments and benefits due to
Executive under this Section 6 which are not otherwise
required by law shall be contingent upon (i) execution by
Executive (or Executive’s beneficiary or estate) of a general
release of all claims, in substantially the form attached hereto as
Exhibit B and (ii) compliance by Executive with
his obligations under the Stockholders Agreement among the Company
and the stockholders party thereto dated as of December 22,
2005 (as amended from time to time, the “ Stockholders
Agreement ”).
(i)
Survival . This Section 6 shall survive any termination
or expiration of this Agreement.
7.
Non-Disclosure Agreement . Simultaneous with the
execution and delivery of this Agreement, the Company and the
Executive shall execute and deliver the Non-Disclosure Agreement
incorporated herein by reference. The Non-Disclosure Agreement
shall survive any termination of this Agreement in accordance with
the terms of the Non-Disclosure Agreement.
8.
Indemnification . The Company will indemnify
Executive, in his capacity as an officer and/or director of the
Company, to the fullest extent permitted by the laws of
7
the State of
Delaware, in effect at that time, or the certificate of
incorporation and by-laws of the Company, whichever affords the
greater protection to Executive not withstanding termination
hereof. This Section 8 shall survive any termination or
expiration of this Agreement.
9.
Withholding Taxes . Executive acknowledges and agrees
that the Company may directly or indirectly withhold from any
payments under this Agreement all federal, state, city or other
taxes that will be required pursuant to any law or governmental
regulation.
10.
Effect of Prior Agreements . This Agreement, together
with (a) the Non-Disclosure Agreement, (b) the
Stockholders Agreement, (c) the Stock Option Agreement and
(e) the Amended and Restated Call Option Agreement between the
Executive and ACAS, dated as of the date hereof, constitute the
sole and entire agreements and understandings between Executive and
the Company with respect to the matters covered hereby and thereby,
and there are no other promises, agreements, representations,
warranties or other statements between Executive and the Company in
respect to such matters not expressly set forth in these
agreements. These agreements supersede all prior and
contemporaneous agreements, understandings or other arrangements,
whether written or oral, concerning the subject matter thereof,
including, without limitation, the Consulting Agreement between
Dosimetry Acquisitions (U.S.), Inc. and Executive dated
April 19, 2004 and the Employment Agreement between GDS and
Executive dated April 19, 2004, each of which shall be deemed
terminated and of no further force or effect as of the Effective
Date.
11.
Notices . Any notice required, permitted, or desired
to be given pursuant to any of the provisions of this Agreement
shall be deemed to have been sufficiently given or served for all
purposes when telecopied, when delivered by hand or received by
registered or certified mail, postage prepaid, or by nationally
reorganized overnight courier service addressed to the party to
receive such notice at the following address or any other address
substituted therefor by notice pursuant to these
provisions:
Mirion
Technologies, Inc.
c/o American Capital Strategies, Ltd.
505 Fifth Avenue, 26th Floor
New York, New York 10017
Attention: Robert Klein, Managing Director and Principal
Dustin
Smith, Vice President
Fax: (212) 213-2060
8
American
Capital Strategies, Ltd.
2 Bethesda Metro Center, 14th Floor
Bethesda, Maryland 20814
Attention: Compliance Officer
Fax: (301) 654-6714
If
to Executive, at his address as set forth in the records of the
Company.
12.
Assignability . The duties and obligations of
Executive may not be delegated and Executive may not, without the
Company’s written consent thereto, assign, transfer, convey,
pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any interest herein, provided that any rights to
compensation or benefits hereunder shall accrue for the benefit of
and may be enforced by Executive’s estate or legal
representatives, heirs and successors. Any such attempted
delegation or disposition shall be null and void and without
effect. The Company and Executive agree that this Agreement and all
of the Company’s rights and obligations hereunder may be
assigned or transferred by the Company to and may be assumed by and
become binding upon and may inure to the benefit of any successor
to the Company. The term “successor” shall mean (with
respect to the Company or any of its subsidiaries) any other
corporation or other business entity which, by merger,
consolidation, purchase of the assets, or otherwise, acquires all
or a material part of its assets. Any assignment by the Company of
its rights or obligations hereunder to any successor to the Company
shall not be a termination of employment for purposes of this
Agreement. The Company agrees to provide Executive prior written
notice of any transaction with any successor and, if such successor
succeeds to the business of the Company by purchase of assets, to
provide the Executive evidence of the assumption of this
Agreement.
13.
Modification . This Agreement may not be modified or
amended except in writing signed by the parties. No term or
condition of this Agreement will be deemed to have been waived
except in writing by the party charged with waiver. A waiver will
operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other
than that which is specifically waived.
14.
Governing Law . This Agreement has been executed and
delivered in the State of California and its validity,
interpretation, performance and enforcement will be governed by the
laws of that state applicable to contacts made and to be performed
entirely within that state.
15.
Severability . All provisions of this Agreement are
intended to be severable. In the event any provision or restriction
contained herein is held to be invalid or unenforceable in any
respect, in whole or in part, such finding will in no way affect
the validity or enforceability of any other provision of this
Agreement. The parties hereto further agree that any such invalid
or unenforceable provision will be deemed modified so that it will
be enforced to the greatest extent permissible under law, and to
the extent
9
that any court
of competent jurisdiction determines any restriction herein to be
unreasonable in any respect, such court may limit this Agreement to
render it reasonable in the light of the circumstances in which it
was entered into and specifically enforce this Agreement as
limited.
16. No
Waiver . No course of dealing or any delay on the part of
the Company or Executive in exercising any rights hereunder shall
operate as a waiver of any such rights. No waiver of any default or
breach of this Agreement shall be deemed a continuing waiver of any
other breach or default.
17.
Counterparts . This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an
original by the party executing the same but all of which together
will constitute one and the same instrument.
18.
Binding Arbitration .
(a)
Generally . Executive and the Company hereby agree that any
controversy or claim arising out of or relating to this Agreement,
the employment relationship between Executive and the Company, or
the termination thereof, including the arbitrability of any
controversy or claim, which cannot be settled by mutual agreement
will be finally settled by binding arbitration in accordance with
the Federal Arbitration Act (or if not applicable, the applicable
state arbitration law) as follows: Any party who is aggrieved will
deliver a notice to the other party setting forth the specific
points in dispute. Any points remaining in dispute twenty
(20) days after the giving of such notice may, upon ten
(10) days’ notice to the other party, be submitted to
arbitration in Orange County, California, to the American
Arbitration Association, before a single arbitrator appointed in
accordance with the Commercial Dispute Resolution Procedures and
Rules of the American Arbitration Association, as such procedures
and rules may be amended from time to time and modified only as
herein expressly provided. The arbitrator may enter a default
decision against any party who fails to participate in the
arbitration proceedings. Notwithstanding the foregoing, any
controversy or claim arising out of or relating to the
Non-Disclosure Agreement shall not be subject to this
Section 18 and shall be resolved only in accordance with
provisions of the Non-Disclosure Agreement.
(b)
Binding Effect . The decision of the arbitrator on the
points in dispute will be final, unappealable and binding, and
judgment on the award may be entered in any court having
jurisdiction thereof. The parties agree that this provision has
been adopted by the parties to rapidly and inexpensively resolve
any disputes between them and that this provision will be grounds
for dismissal of any court action commenced by either party with
respect to this Agreement, other than post-arbitration actions
seeking to enforce an arbitration award. In the event that any
court determines that this arbitration procedure is not binding, or
otherwise allows any litigation regarding a dispute, claim, or
controversy covered by this Agreement to proceed, the parties
hereto hereby waive any and all right to a trial by jury in or with
respect to such litigation.
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(c)
Fees and Expenses . Except as otherwise provided in this
Agreement or by law, the arbitrator will be authorized to apportion
its fees and expenses and the reasonable attorneys’ fees and
expenses of either party as the arbitrator deems appropriate. In
the absence of any such apportionment, the fees and expenses of the
arbitrator will be borne equally by each party, and each party will
bear the fees and expenses
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