Exhibit 10.16


 


 


SEPARATION
AGREEMENT AND RELEASE OF ALL CLAIMS


This Separation Agreement and Release of All Claims
(“Agreement”) is made and entered into by and between Alan Edrick (“Employee”)
and North American Scientific, Inc. (“Company”).


WHEREAS Employee has been employed by the Company as
its Chief Financial Officer since 1998 and has also served as Senior Vice
President since 2001; and


WHEREAS Employee and Company entered into an
employment agreement dated September 29, 1999 (“Employment Agreement”);
and


WHEREAS the parties wish to resolve amicably all
matters between them;


NOW, THEREFORE, in consideration of the promises
herein contained, IT IS AGREED AS FOLLOWS:


1.     Resignation.  Employee resigns his employment with the
Company effective on the date he executes this Agreement (“Separation Date”).


2.               Monetary Consideration.


a.             Severance
and Separation Pay.  The Company
hereby agrees to pay Employee the total gross amount of six hundred thousand
dollars ($600,000.00), less all legally required and previously authorized
deductions, as and for severance and separation pay (“Separation Pay”).  The Separation Pay shall be paid to Employee
as follows: three hundred thousand dollars ($300,000.00) within ten (10)
business days of Employee’s provision to the Company of an executed copy of
this Agreement, and three hundred thousand dollars ($300,000.00) in thirty-six
equal installments paid on the Company’s regular payroll dates commencing
immediately on or after the Separation Date.


b.             COBRA.  The
parties acknowledge that Employee has been provided with health  benefits
through the Company’s health plan(s) covering eligible active employees and
their eligible dependents and that such health benefits continue through
February 29, 2004.  The parties further
acknowledge and agree that, following his separation from the Company, Employee
is entitled to purchase  continuation coverage under the Company’s
health planpursuant to the provisions of the Consolidated Omnibus  Budget
Reconciliation Act, 29 U.S.C. §1161, et seq. (“COBRA  Continuation Coverage”) for
himself and his dependents, if such dependents were previously covered by the
plan.  Consistent with its obligations
under the law, the Company will provide Employee with notice of his right to
elect COBRA Continuation Coverage due to his resignation from employment and
the terms of such coverage (“Notice”). 
Provided that Employee completes and timely returns all necessary COBRA
Continuation Coverage election materials and complies with all terms and
regulations pertaining to COBRA, the Company agrees to pay directly to the
provider the premiums for Employee’s and, as applicable, his dependents’  COBRA
Continuation Coverage for the period from March 1, 2004 through February 28,
2005 for coverage at the same level in which Employee and, as applicable, his
dependents were enrolled as of the Separation Date.  For purposes of this Agreement, the amounts paid for COBRA
Continuation Coverage for Employee and, as applicable, his dependents shall be
referred to as the “COBRA Payments.”  In
the event and on the date that Employee’s right to COBRA Continuation Coverage
terminates prior to February 28, 2005 for any reason, including because
Employee becomes covered under another group health plan without any
preexisting condition limitations or exclusions, the Company’s obligation to
pay Employee’s premiums for COBRA

















 


 Continuation Coverage shall also  cease.  Employee agrees to immediately  notify
the Company if Employeebecomes covered under another group health plan prior to
February 28, 2005.


3.     Final
Wages, Vacation Pay, Expenses Reimbursement.  Employee acknowledges that he has received
(1) his salary through February 6, 2004, less all legally required and
previously authorized deductions (“Final Pay”); and (2) his accrued, unused vacation
pay in the amount of $23,192.40 (“Vacation Pay”).  The Company agrees to reimburse Employee for all reasonable
business expenses incurred prior to the Separation Date.  Employee agrees that he will advise the
Company of any outstanding expenses incurred in connection with his employment
with the Company within thirty (30) business days of the Separation Date, and
the Company agrees that it will reimburse Employee for any properly submitted,
appropriate business-related expenses within thirty (30) business days of
receipt thereof from Employee.  Employee
acknowledges and agrees that, except as specifically provided in paragraphs 2
and 3 herein, he has received all compensation for work performed up to and
including the Separation Date, including all regular wages, vacation pay, and
bonuses.


4.     Benefit/Stock
Option/Stock Purchase Plans. 
Except as otherwise provided in this
Agreement, Employee’s rights and responsibilities under the Company’s employee
benefit plans shall be governed by the terms of the applicable plans to the
extent consistent with applicable law. 
Except as otherwise provided in this section, Employee’s rights and
entitlements, if any, with respect to unexercised stock options granted to
Employee shall be governed by the terms of the North American Scientific, Inc.
Amended and Restated 1996 Stock Option Plan and the Employee’s stock option
agreements thereunder (collectively referred to as the “Option Documents”);
provided, however that the parties agree that all unvested stock options granted
to Employee will become vested and nonforfeitable on the Separation Date and
all unexercised stock options will terminate 90 days after the Separation
Date.  Notwithstanding anything in the
Option Documents to the contrary, upon exercise of the outstanding options,
Employee or any other person then entitled to exercise shall receive
unrestricted Company Common Stock, free of any legend.  The Company acknowledges that Employee is
not and will not be subject to any restricted trading periods.  The Company agrees to cause the stock
certificate to be issued within 72 hours upon the receipt by the Company of a
written notice of exercise and the full purchase price from the Employee or, at
the Employee’s election, notice of exercise from OptionsLink, if permitted by
securities law


5.     Mutual
Release.  The parties
mutually, irrevocably and unconditionally waive, release and forever discharge
each other from all claims for relief, causes of action, and liabilities, known
or unknown, that each party has or may have against the other, individually
and/or collectively, arising out of, relating to, or resulting from any events
occurring prior to the execution of this Agreement including, but not limited
to, any claims for relief, causes of action, or liabilities arising out of,
relating to or resulting from Employee’s employment with the Company, or the
cessation of that employment prior to the date of execution of this
Agreement.  Employee expressly agrees
that, solely for purposes of this paragraph, the Company shall include the
Company’s affiliated entities, including without limitation any and all parent
and subsidiary entities and including without limitation North American
Scientific, Inc., and their past and present partners, directors, employees,
agents, attorneys, accountants, representatives, successors, and assigns.  The parties further agree not to bring,
continue, assist in, provide information for, or maintain any legal proceedings
of any nature whatsoever against each other before any court, administrative
agency, arbitrator or any other tribunal or forum by reason of or related to
any allegations, claims, liabilities and/or causes of action; provided,
however, that the parties acknowledge that the other may be required to respond
to subpoena(s) to the extent required by law and each party agrees that he/it
will give prompt written notice to the other at such time that such 


 


2

















 


involvement is requested.  The parties further agree that if any agency or court assumes
jurisdiction of any complaint, claim or action against the other on his/its
behalf, regarding him/it, or based upon information provided by him/it, that
he/it will direct that agency or court to withdraw from the matter or dismiss
the matter with prejudice.  The parties warrant and represent that it/he is
not aware of any action it/he has taken which would result in any material
liability against the other.


6.     Indemnity
of Employee.  The Company
agrees to indemnify, defend, and hold Employee, et al. harmless with respect to
any actual or potential obligation, claim, demand, deficiency, levy, fine,
penalty, interest, assessment, execution, judgment, recovery, dispute, lawsuit,
subpoena or grievance (collectively “Disputes”) by any individual or entity
arising out or resulting from actions taken by Employee in connection with his
employment with the Company which were either authorized by any officer or
director of the Company, or were within the course and scope of Employee’s
authority within the Company.  The
Company specifically agrees that it intends this indemnification provision to
exceed the scope of that provided by California Labor Code § 2802 and
California Corporations Code § 317, and any provisions in the Company’s
bylaws or other official records. 
Employee agrees to cooperate fully and without reservation (except in
the event of a conflict of interest between Employee and the Company) in any
Disputes initiated or currently in progress against the Company or against
Employee as a representative for the Company, even if the Employee is not named
as a party.  Such cooperation shall
include, without limitation, making himself available, upon reasonable notice,
to the Company and its counsel to provide information relating to such Disputes
and appearing for depositions, trial, settlement negotiations, or other
activities in defense of the Disputes as requested by the Company and/or its
counsel.  The Company shall reimburse
Employee for any expenses reasonably incurred which are directly related to
fulfilling his duties under this paragraph. 
In the event that Employee’s services are required under this paragraph,
the Company hereby agrees to compensate Employee for his time at a rate of $100
per hour.


7.     Express
Waiver of Unknown Claims. 
Except as expressly provided hereinabove, the parties expressly waive
and relinquish all rights and benefits afforded by Section 1542 of the
Civil Code of the State of California, and do so understanding and
acknowledging the significance and consequence of such specific waiver of
Section 1542.  Section 1542 of
the Civil Code of the State of California states as follows:


“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”


8.     No Claims
Filed.  Employee
represents that he has not filed any claim, charge, suit, complaint, action, or
cause of action based upon, arising out of or relating to any claim, demand or
cause of action released herein.


9.     Nondisparagement
and Confidentiality. 
Employee agrees that he will not, at any time in the future, disparage
or discredit the Company, its officers, directors or Director of Legal Affairs
in any communication.  The Company
agrees that it will not, at any time in the future, disparage or discredit
Employee in any communication; provided, however, that the parties further agree that this nondisparagement provision shall apply
as to the Company only with respect to statements made by the corporate entity,
its officers, directors or Director of Legal Affairs.  The parties acknowledge that this Agreement shall be filed with
the Securities Exchange Commission and that it is, therefore, a


 


3

















matter of public record.  The Company further agrees that the
following language shall be used in any communication by the Company, its
officers, directors or Director of Legal Affairs regarding Employee’s departure
from the Company: “Alan Edrick, its Senior Vice President and Chief Financial
Officer, has resigned to pursue other opportunities.”


10.   Verification
of Employment.  In
response to any inquiry from a prospective employer of Employee, the Company’s
Director of Human Resources (or an individual of comparable title and
responsibilities) will respond in accordance with the Company’s policy.  The Company acknowledges that its policy
with respect to responding to such inquiries regarding any former employee is
to provide only an employee’s dates of employment and the last position that
employee held with the Company.


11.   Non-Solicitation
of Employees.  Employee
agrees that, for a period of 12 months following the Separation Date, he will
not directly or indirectly, either on his own behalf or on behalf of any other
person or entity, attempt to persuade or otherwise solicit any person who is an
employee of the Company as of the Separation Date to terminate such employment
and become an employee or consultant of any other company, person or
entity.  Nothing in this provision or
otherwise in this Agreement shall prevent or limit Employee from providing a
personal recommendation or reference to any current or former employee of the
Company.


12.   Return of
Company Property. 
Employee represents and warrants that he has returned to the Company all
property, documents, and duplicates and copies thereof, which are the property
of the Company, that are in Employee’s knowing possession, including without
limitation equipment, papers, blueprints, microfilms, computer disks, files,
booklets, manuals, and customer lists. 
The parties expressly agree that this provision was not intended to
apply to any insignificant materials including Company t-shirts or other
branding items or to Company property the possession of which Employee is not
actively aware as of the date of execution of this Agreement.  The Company expressly agrees that Employee
may retain the Company computer which is in Employee’s home; Employee
represents and warrants that he has deleted or destroyed all Company documents
or other materials in that computer.


13.   Transitional
Assistance.  Employee
agrees to provide reasonable assistance to the Company in transitioning his
duties and responsibilities.  Such
assistance shall be provided at a mutually acceptable time and location or by
telephone, shall not exceed thirty-six (36) hours total, and shall not continue
past three (3) months from the Separation Date.


14.   Assignment.  The parties represent that they have not
heretofore assigned or transferred, or purported to assign or transfer, to any
person or entity, any claim or any portion thereof, or interest therein, and
agree to indemnify, to defend and to hold each other harmless from and against
any and all claims based on or arising out of any such assignment or transfer,
or purported assignment or transfer, of any claims or any portion thereof or
interest therein.


15.   Representations.  The parties agree that, in executing this
Agreement, neither of them has relied upon any representation or statement not
set forth herein made by the other or by the other’s agents, representatives,
or attorneys with regard to the subject matter, basis for, or effect of this
Agreement or otherwise.


16.   Binding
on Succession.  This
Agreement shall be binding upon the Employee and the Company and upon their
heirs, administrators, representatives, executors, successors, and assigns, and



 


 


4

















 


shall inure to the benefit of each other party, and each
of them, and to their heirs, administrators, representatives, executors,
successors, and assigns.


17.   Interpretation.  This Agreement is made and entered into in
the State of California and shall in all respects be interpreted, enforced, and
governed under the laws of California applicable to the making and enforcement
of contracts.  The language of all parts
of this Agreement shall in all cases be construed as a whole, according to its
fair meaning, and not strictly for or against any of the parties.  It is agreed that this Agreement shall be
construed with the understanding that both parties were responsible for
drafting it.


18.   Severability.  The parties agree that if any provision of
this Agreement is declared or determined by any court of competent jurisdiction
to be illegal, invalid, or unenforceable, the legality, validity, and
enforceability of the remaining parts, terms, or provisions shall not be
affected thereby, and said illegal, unenforceable or invalid part, term, or
provision shall be deemed not to be part of this Agreement.


19.   Entire
Agreement and Continuing Validity of Employee Confidentiality Portion of
Employment Agreement. 
Except as provided herein, this Agreement sets forth the entire
agreement between the parties relating to the rights herein and the obligations
herein assumed, and supersedes any and all previous negotiations, agreements
and/or understandings of any kind relating to the subject matter hereof;
provided, however, that the following shall remain in effect: Section 7 of
the Employment Agreement; the North American Scientific, Inc. Amended and
Restated 1996 Stock Option Plan, including Employee’s stock option agreements
thereunder, as further amended by this Agreement; and the Company’s health
plan, as amended by this Agreement.  Any
oral representations or modifications concerning this Agreement shall be of no
force or effect.  This Agreement can be
modified only in the form of a writing signed by both parties hereto.  Any waiver of one or more provisions of the
Agreement shall not constitute a waiver of any of the remaining provisions
hereto.


20.   No Fault.  By entering into this Agreement, the
Employee and the Company are winding up and settling matters between them
without any admission of liability or wrongful act, and nothing contained
herein shall be construed as an admission of wrongdoing or liability by either
the Employee or the Company.


21.   Enforcement.
 This Agreement shall be
interpreted, enforced and governed by the laws of the State of California.


22.   Counterparts.  This Agreement may be executed in one or
more counterparts.  All executed
counterparts and each of them shall be deemed to be one and the same instrument
at such time as counterparts are executed that shall, in total, contain the
signatures of all the parties hereto.


23.   Additional
Documents.  The Employee
and the Company agree to cooperate fully and to execute any and all
supplementary documents and to take all additional actions that may be
necessary or appropriate to give full force and effect to the basic terms and
intent of this Agreement.


24.   Attorney
Advice.  The parties
acknowledge that they are aware of their right to consult an attorney and that
each has been advised to consult with an attorney prior to signing this
agreement and that each has had sufficient time to do so, if desired.


 


5

















 


25.   Understanding
of Agreement.  The
parties acknowledges that they have carefully read this Agreement, that they
fully understand its final and binding effect, that the only promises made to
the parties to sign this Agreement are those stated above, and that the parties
are signing this Agreement voluntarily.


HAVING READ the foregoing, consisting of this and five
(5) other typewritten pages, the parties hereby voluntarily affix their
signatures and execute this Agreement.


 


DATED:  February ___, 2004                                                                                                                                                                                                                                                      

By:  Alan Edrick


DATED:  February ___, 2004                                                                                                                                      North American Scientific, Inc.


                                                                                                                                                                                                                                                                                                                                                                                                                

By:  L. Michael Curtrer

Title:  President & Chief Executive
Officer


 


6