Attached files
| file | filename |
|---|---|
| 10-K - FORM 10.K - THERAGENICS CORP | t67346_10k.htm |
| EX-32.1 - EXHIBIT 32.1 - THERAGENICS CORP | ex32-1.htm |
| EX-31.1 - EXHIBIT 31.1 - THERAGENICS CORP | ex31-1.htm |
| EX-23.1 - EXHIBIT 23.1 - THERAGENICS CORP | ex23-1.htm |
| EX-32.2 - EXHIBIT 32.2 - THERAGENICS CORP | ex32-2.htm |
| EX-31.2 - EXHIBIT 31.2 - THERAGENICS CORP | ex31-2.htm |
EXHIBIT 10.31
THERAGENICS
CORPORATION
CASH
INCENTIVE PLAN
SECTION
I. INTRODUCTION
1.1 Purpose. The
purpose of the Theragenics Corporation Cash Incentive Plan (the “Plan”) is to
provide cash incentive compensation to certain employees of Theragenics
Corporation (the “Company”) and its Affiliates to stimulate their efforts to
attain certain operational, strategic and other goals established by the Company
over Performance Periods established by the Company.
1.2 Effective
Date. The Plan is effective as of February 25, 2010 (the
“Effective Date”), the date it was approved by the Board of Directors of the
Company (the “Board”).
SECTION
II. ELIGIBILITY AND ADMINISTRATION
2.1 Eligibility. The
Board shall determine, or may delegate to the Compensation Committee of the
Board (the “Committee”) the authority to determine, the employees of the Company
or its Affiliates eligible to participate in programs established pursuant to
the Plan (the “Participants”). Once a person becomes a Participant in
a program pursuant to the Plan, the Participant shall remain a Participant until
any Cash Incentive Award payable pursuant to the program has been paid out or
forfeited. If employees becomes a Participant in a program pursuant
to the Plan after the first day of a Performance Period, the Board (or the
Committee if applicable) will determine the extent to which proration will apply
to determine the Participant’s Cash Incentive Award.
2.2 Administration. The
Plan and programs pursuant to the Plan shall be administered by the
Committee. The Committee shall have the power to interpret the Plan
and programs pursuant to the Plan, to prescribe, amend and rescind rules
relating to the programs, and make all other determinations necessary or
advisable for the proper administration of the programs, and any interpretation
by the Committee shall be final and binding on all parties.
2.3 Cash Incentive
Programs. The Board may establish, or may delegate to the
Committee the authority to establish, amend and terminate programs pursuant to
the Plan containing Performance Periods, performance goals and terms and
conditions of payment of Cash Incentive Awards. These programs may
include, without limitation, short-term programs and long-term cash incentive
programs.
2.4 Payment of Cash Incentive
Award. The Committee shall certify the achievement of results
pursuant to any program before any Cash Incentive Award is
paid. Except as provided in a program pursuant to the Plan or Section
2.5:
(a) the
Cash Incentive Award will be earned and accrued and payable if the Participant
is an employee of the Company or an Affiliate on the last day of the Performance
Period, regardless of whether the Participant ceases to be an employee of the
Company or an Affiliate before the payment date for any reason whatsoever,
including without limitation, a termination by the Company for Cause or
resignation by the Participant; and
(b) if
the Company or an Affiliate terminates a Participant’s employment for Cause or
the Participant resigns employment with the Company or an Affiliate before the
last day of the Performance Period, the Participant shall not receive the Cash
Incentive Award.
Any
program pursuant to the Plan may contain provisions to provide for payment of
all or part of a Cash Incentive Award if, before the last day of the Performance
Period, the Company or an Affiliate terminates the Participant’s employment
without Cause, or the Participant dies while employed by the Company or an
Affiliate, or suffers a Disability while employed by the Company or an
Affiliate.. Except as provided in a program pursuant to the Plan or
Section 2.5, any Cash Incentive Award earned by a Participant over the
Performance Period shall be paid in cash in the year following the end of the
Performance Period, but in no event after the 15th day
of the third month of such year.
2.5 Change in
Control. Except as otherwise provided in any program pursuant
to the Plan, if a Change in Control occurs during the Performance Period while
the Participant is an employee of the Company or an Affiliate, the Participant
shall be paid on the date of the Change in Control the full value of the Cash
Incentive Award determined as if the Company had performed at the target
performance level for the duration of the Performance Period and the Participant
had remained employed for the duration of the Performance Period.
SECTION
III. DEFINITIONS
3.1 “Affiliate”
means:
(a) Any
Subsidiary or Parent,
(b) An
entity that directly or through one or more intermediaries controls, is
controlled by, or is under common control with the Company, as determined by the
Company, or
(c) Any
entity in which the Company has such a significant interest that the Company
determines it should be deemed an “Affiliate,” as determined in the sole
discretion of the Company.
3.2 “Cash Incentive Award”
means a cash award pursuant to a program established pursuant to the
Plan.
3.3 “Cause” shall have the
meaning set forth in the employment agreement then in effect between the
Participant and the Company or, if there is none, then Cause shall mean 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 Participant to substantially perform his duties with
the Company or an affiliate; (ii) conduct by the Participant that amounts to
willful misconduct or gross negligence; (iii) any act by the Participant of
fraud, misappropriation, dishonesty, embezzlement or similar conduct against the
Company or an affiliate; (iv) commission by the Participant of a felony or
any other crime involving dishonesty; or (v) illegal use by the Participant
of alcohol or drugs.
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3.4 “Change in Control”
means any one of the following events which occurs following the first day of a
Performance Period:
(a) 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 (a), the following acquisitions shall not be
deemed to result in a Change in 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 (c) 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
(b) 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
(c) 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 sixty percent (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
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(d) approval
by the shareholders of the Company of a complete liquidation or dissolution of
the Company.
Notwithstanding
the foregoing, no Change in Control shall be deemed to have occurred for
purposes of this Agreement by reason of any actions or events in which the
Participant participates in a capacity other than in his capacity as an employee
of the Company or an affiliate.
3.5 “Disability” shall
have the meaning set forth in the employment agreement then in effect between
the Participant and the Company or, if there is none, Disability shall mean the
inability of the Participant to perform any of his duties for the Company and
its affiliates 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.
3.6 “Parent” means any
corporation (other than the Company) in an unbroken chain of corporations ending
with the Company if each of the corporations other than the Company owns stock
possessing more than 50% of the total combined voting power of all classes of
stock in one of the other corporations in such chain. A Parent shall
include any entity other than a corporation to the extent permissible under
Section 424(f) or regulations and rulings thereunder.
3.7 “Performance Period”
shall mean the period established pursuant to the applicable cash incentive
program pursuant to the Plan.
3.8 “Subsidiary” means any
corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company if each of the corporations other than the last
corporation in the unbroken chain owns stock possessing more than 50% of the
total combined voting power of all classes of stock in one of the other
corporations in the chain. A “Subsidiary” shall include any entity
other than a corporation to the extent permissible under Section 424(f) or
regulations or rulings thereunder.
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SECTION
IV. MISCELLANEOUS
4.1 Taxes. The
Company shall withhold the amount of taxes, which in the determination of the
Company are required to be withheld under federal, state and local laws and all
other applicable payroll withholding with respect to any amount payable under
the Plan.
4.2 No Right to Continued
Employment. Neither the establishment of the Plan, nor the
participation in the Plan or any payment thereunder shall be deemed to
constitute an express or implied contract of employment of any Participant for
any period of time or in any way abridge the rights of the Company or an
Affiliate to determine the terms and conditions of employment or to terminate
the employment of any Participant with or without cause at any
time.
4.3 Choice of
Law. The laws of the State of Delaware shall govern the Plan,
to the extent not preempted by federal law, without reference to the principles
of conflict of laws.
4.4 Termination of
Plan. The Board may amend or terminate the Plan at any
time.
| THERAGENICS CORPORATION | |||
|
|
By:
|
/s/ Bruce W. Smith | |
| Title: | Secretary | ||
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