Exhibit 10.26
EMPLOYEE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the
1st day of January 2000, between THERAGENICS CORPORATION, a Georgia
corporation (the “Company”), and Michael O’Bannon
(the “Employee”).
INTRODUCTION
The Company and the Employee
desire to enter into an employment agreement embodying the terms
and conditions of the Employee’s employment.
NOW, THEREFORE, the parties agree
as follows:
1.
Definitions
(a)
“Affiliate” means any person, firm, corporation,
partnership, association or entity that, directly or indirectly or
through one or more intermediaries, controls, is controlled by or
is under common control with the Company.
(b)
“Applicable Period” means the period of the
Employee’s employment hereunder and for two (2) years after
termination of his employment with the Company.
(c)
“Area” means the United States.
(d)
“Board of Directors” means the Board of Directors of
the Company
(e)
“Business of the Company” means any business that
involves the manufacture, production, sale, marketing, promotion,
exploitation, development and distribution of radiological
pharmaceutical products or implantable radiation devices used in
the treatment of cancer.
(f)
“Cause” means the occurrence of any of the following
events: (i) willful and continued failure (other than such
failure resulting from his incapacity during physical or mental
illness) by the Employee to substantially perform his duties with
the Company or an Affiliate; (ii) conduct by the Employee that
amounts to willful misconduct or gross negligence; (iii) any
act by the Employee of fraud, misappropriation, dishonesty,
embezzlement or similar conduct against the Company or an
Affiliate; (iv) commission by the Employee of a felony or any
other crime involving dishonesty; (v) the habitual and
disabling use by the Employee of alcohol or drug; (vi) failure of
any drug screening test required by the Company or an Affiliate;
(vii) material violation of any policy of the Company or an
Affiliate; or (viii) a material breach of the Agreement by the
Employee.
(g) “Change in
Control” means
(1) the
acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the corporation where such acquisition causes such
person to own thirty-five percent (35%) or more of the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”);
provided, however, that for purposes of this Subsection (1), the
following acquisitions shall not be deemed to result in a Change of
Control: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (iv) any acquisition by any
corporation pursuant to a transaction that complies with clauses
(i), (ii) and (iii) of Subsection (3) below; and provided, further,
that if any Person’s beneficial ownership of the Outstanding
Company Voting Securities reaches or exceeds thirty-five percent
(35%) as a result of a transaction described in clause (i) or (ii)
above, and such Person subsequently acquires beneficial ownership
of additional voting securities of the Company, such subsequent
acquisition shall be treated as an acquisition that causes such
Person to own thirty-five percent (35%) or more of the Outstanding
Company Voting Securities; or
(2)
individuals who as of the date hereof, constitute the Board of
Directors (the “Incumbent Board”) cease for any reason
to constitute at least a majority of the Board of Directors;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for
election by the Company’s shareholders, was approved by a
vote of at least two-thirds of the directors then comprising the
Incumbent Board shall be considered as though such individual were
a member of the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board of Directors; or
(3) the
approval by the shareholders of the Company of a reorganization,
merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company (“Business
Combination”) or, if consummation of such Business
Combination is subject, at the time of such approval by
shareholders, to the consent of any government or governmental
agency, the obtaining of such consent (either explicitly or
implicitly by consummation); excluding, however, such a Business
Combination pursuant to which (i) all or substantially all of the
individuals and entities who were the beneficial owners of the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 60% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors,
as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation that as a
result of such transaction owns the Company or all or substantially
all of the Company’s assets either directly or through one or
more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Voting Securities, (ii) no Person
(excluding any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, thirty-five
percent (35%) or more of, respectively, the then outstanding shares
of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that
such ownership existed prior to the Business Combination and
(iii) at least a majority of the members of the board of
directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(4)
approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, no
Change of Control shall be deemed to have occurred for purposes of
this Agreement by reason of any actions or events in which the
Employee participates in a capacity other than in his capacity as
Employee.
(h)
“Company Invention” means any Invention which is
conceived by the Employee alone or in a joint effort with others
during the period of the Employee’s employment hereunder
which (i) may be reasonably expected to be used in a product
of the Company, or a product similar to a Company product, (ii)
results from work that the Employee has been assigned as part of
his duties as an employee of the Company, (iii) is in an area of
technology which is the same or substantially related to the areas
of technology with which the Employee is involved in the
performance of his duties as an employee of the Company, or (iv) is
useful, or which the Employee reasonably expects may be useful, in
any manufacturing or product design process of the
Company.
(i)
“Competing Business” means any person, firm,
corporation, joint venture or other business entity which is
engaged in the Business of the Company (or any aspect thereof)
within the Area.
(j)
“Confidential Information” means data and information
relating to the business of the Company (which does not rise to the
status of a Trade Secret) which is or has been disclosed to the
Employee or of which the Employee became aware as a consequence of
or through its relationship to the Company and which has value to
the Company and is not generally known to its competitors.
Confidential Information shall not include any data or information
that has been voluntarily disclosed to the public by the Company
(except where such public disclosure has been made by the Employee
without authorization) or that has been independently developed and
disclosed by others, or that otherwise enters the public domain
through lawful means. The provisions in this Agreement restricting
the use of Confidential Information shall survive for a period of
two (2) years following termination of this Agreement.
(k)
“Disability” means the inability of the Employee to
perform any of his duties hereunder due to a physical, mental, or
emotional impairment, as determined by an independent qualified
physician (who may be engaged by the Company), for a ninety (90)
consecutive day period or for an aggregate of one hundred eighty
(180) days during any three hundred sixty-five (365) day
period.
(l)
“Good Reason” means the occurrence of any of the
following events which is not corrected by the Company within
thirty (30) days after the Employee’s written notice to the
Company of the same: (i) the nature of the Employee’s
duties or the scope of his responsibilities are materially modified
without the Employee’s written consent, (ii) the Employee is
required to report to a different position without the
Employee’s written consent, (iii) the Company changes
the location of the Employee’s place of employment to more
than fifty (50) miles from its present location, or (iv) a material
breach of this Agreement by the Company.
(m)
“Invention” means any discovery, whether or not
patentable, including, but not limited to, any useful process,
method, formula, technique, machine, manufacture, composition of
matter, algorithm or computer program, as well as improvements
thereto, which is new or which the Employee has a reasonable basis
to believe may be new.
(n)
“Public Offering” means the offering or sale by the
Company of equity securities pursuant to a registration statement
filed in accordance with the Securities Act of 1933, as amended, or
any comparable law then in effect, and the effective date of any
such Public Offering shall be the first day on which the securities
covered thereby may lawfully be offered and sold pursuant to such
registration statement.
(o)
“Termination Date” means the date which corresponds to
the first to occur of (i) the death or Disability of the Employee,
(ii) the last day of the Term as provided in Section 4(a) below or
(iii) the date set forth in a notice given pursuant to Section 4(b)
below.
(p)
“Trade Secrets” means information including, but not
limited to, technical or nontechnical data, formulas, patterns,
compilations, programs, devices, methods, techniques, drawings,
processes, financial data, financial plans, product plans or lists
of actual or potential customers or suppliers which
(i) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from
its disclosure or use, and (ii) is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy. The
provisions in this Agreement restricting the use of Trade Secrets
shall survive termination of this Agreement for so long as is
permitted by the Georgia Trade Secrets Act of 1990, O.C.G.A.
§§ 10-1-760-10-1-767.
(q)
“Work” means a copyrightable work of authorship,
including without limitation, any technical descriptions for
products, user’s guides, illustrations, advertising
materials, computer programs (including the contents of read only
memories) and any contribution to such materials.
2.
Terms and Conditions of Employment .
(a)
Employment. The Company hereby employs the Employee as its
Executive Vice President of Organizational Development and the
Employee accepts such employment with the Company in such capacity.
The Employee shall report to the Chief Executive Officer and shall
have such authority and responsibilities and perform such duties as
shall reasonably be assigned to the Employee from time to time by
the Chief Executive Officer of the Company.
(b)
Exclusivity. Throughout the Employee’s employment hereunder,
the Employee shall devote substantially all the Employee’s
time, energy and skill during regular business hours to the
performance of the duties of the Employee’s employment
(vacations and reasonable absences due to illness excepted), shall
faithfully and industriously perform such duties, and shall
diligently follow and implement all management policies and
decisions of the Company.
3.
Compensation.
(a) Base
Salary. In consideration for the Employee’s services
hereunder, the Company shall pay to the Employee an annual base
salary in the amount of $130,000 initially. The Employee’s
annual base salary shall be reviewed at least annually by the
Company, and the Company may increase the Employee’s annual
base salary from time to time. The Company shall pay annual base
salary in accordance with the normal payroll payment practices of
the Company and subject to such deductions and withholdings as law
or policies of the Company, from time to time in effect,
require.
(b)
Bonus. In addition to the annual base salary payable under Section
3(a) hereof, the Employee shall be entitled to discretionary annual
bonuses. The maximum annual bonus shall be equal to 20% of the
Employee’s annual base salary. The actual amount of bonus
paid annually will be determined by the Chief Executive Officer
based upon the Chief Executive Officer’s evaluation of the
Employee’s performance. However, in the event that the
Company adopts a bonus program that applies to a category of
employees which includes Employee, such program will apply for the
Employee, in lieu of, and notwithstanding the provisions of this
Subsection (b).
(c) Stock
Based Compensation. Stock options or other stock-based compensation
will be awarded to the Employee at the discretion of the Board of
Directors, or a committee thereof, and pursuant to the
Company’s stock incentive plan.
(d)
Vacation. The Employee shall be entitled to four weeks of vacation
per year, to be taken at times mutually convenient to the Company
and the Employee.
(e)
Licenses. The Company will reimburse the Employee for the costs
associated with keeping in full force the professional licenses he
possessed prior to this contract including two (2) trips per year
to attend professional meetings necessary for maintaining licenses
and credentials.
(f)
Financial, Tax and Estate Planning. The Company will reimburse the
Employee for the cost of personal financial, tax, and estate
planning and services in an amount not to exceed $4,000 per year
from the date hereof.
(g)
Annual Physical. The Company will pay the expenses associated with
an annual physical examination for the Employee.
(h) Life
Insurance. During the term of this Agreement, the Company will
provide the Employee with term life insurance coverage in
accordance with its group term life insurance program. Subject to
the availability of supplemental coverage under the terms of the
Company’s program, the Company will reimburse the Employee
for his cost of premiums under its group term life insurance
program
