ex10-1.htm


    
      

    

    Exhibit
10.1

    


    THERAGENICS
CORPORATION

    2009
LONG-TERM

    CASH
INCENTIVE PLAN

    


    SECTION
I.  INTRODUCTION

    


    1.1           Purpose.  The
purpose of the Theragenics Corporation 2009 Long-Term Cash Incentive Plan (the
“Plan”) set forth below is to provide cash incentive compensation to certain
employees of Theragenics Corporation (the “Company”) and its affiliates to
stimulate their efforts to attain certain cumulative revenue and EBITDA (as
defined in Section 4.2) goals of the Company over the period beginning on
January 1, 2009 and ending on December 31,
2011.

    


    1.2           Effective
Date.  This Plan is effective as of February 26, 2009 (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, in its sole discretion, the employees of the Company or
its Affiliates eligible to participate in the Plan (the
“Participants”).  As of the Effective Date, the Participants are set
forth in Exhibit
A.  The Board may designate additional Participants during the
Performance Period.  Once a person becomes a Participant in the Plan,
the Participant shall remain a Participant until any Cash Incentive Award
payable hereunder has been paid out or forfeited.

    


    2.2            Administration.  The
Plan shall be administered by the Compensation Committee of the Board (the
“Committee”).

    


    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 an award of either or both a cumulative revenue cash award pursuant to
Section 4.1 hereof and a cumulative EBIDTA cash award pursuant to Section 4.2
hereof, but if Section 5.1 or 5.2 applies, as adjusted pursuant
thereto.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    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.

    


    3.4           “Change in Control”
means any one of the following events which occurs following the Grant
Date:

    


    (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

    


    
      
        
        

      

      
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    (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

    


    (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 50% or more 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 three-consecutive-year period beginning January 1, 2009 and ending on December
31, 2011.

    


    
      
        
        

      

      
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    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 50% or more 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.

    


    IV.   CASH
INCENTIVE AWARD

    


    4.1           Amount of Cumulative Revenue
Cash Award.  The cumulative revenue cash award payable at the
end of the Performance Period shall be determined based upon the performance
level of the Company over the Performance Period according to the following
schedule:

    


    
      
        
          
            
              
                
                  
                    
                      	
                              Performance Level

                              of the Company

                            	
                              Cumulative 

                              Revenue

                            	
                              Award 

                              Amount

                            
	
                              Maximum
      Performance 

                              Level

                            	
                              Revenue
      level 

                              associated
      with 

                              maximum*

                            	
                              1xTarget

                            
	
                              Target
      Performance

                              Level

                            	
                              Revenue
      level 

                              associated
      with 

                              target*

                            	
                              .5xTarget

                            
	
                              Threshold
      Performance 

                              Level

                            	
                              Revenue
      level 

                              associated
      with 

                              threshold*

                            	
                              .25xTarget

                            


                    

                  

                

              

            

          

        

      

    

    


    For
purposes of the above schedule, “Cumulative Revenue” means the Company’s
cumulative revenue for the Performance Period determined from the Company’s
audited financial statements.  No cumulative revenue cash award is
payable if the Cumulative Revenue is less than the Threshold Level.

     

    * Cash
award payable will be determined by linear interpolation for Cumulative Revenue
between (revenue level associated with maximum) and (revenue level associated
with target) or between (revenue level associated with target) and (revenue
level associated with threshold).

    


    4.2           Amount of Cumulative
Earnings Before Interest, Taxes, Amortization and Depreciation (EBITDA)
Award.  The EBITDA award payable at the end of the Performance
Period shall be determined based upon the performance level of the Company over
the Performance Period according to the following schedule:

    


    
      
        
        

      

      
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                              Performance Level

                              of the Company

                            	
                              Cumulative 

                              EBITDA

                            	
                              Award 

                              Amount

                            
	
                              Maximum
      Performance 

                              Level

                            	
                              EBITDA
      level 

                              associated
      with 

                              maximum**

                            	
                              1xTarget

                            
	
                              Target
      Performance

                              Level

                            	
                              EBITDA
      level 

                              associated
      with 

                              target**

                            	
                              .5xTarget

                            
	
                              Threshold
      Performance 

                              Level

                            	
                              EBITDA
      level 

                              associated
      with 

                              threshold**

                            	
                              .25xTarget

                            


                    

                  

                

              

            

          

        

      

    

    


    For
purposes of the above schedule, “EBITDA” means the Company’s net earnings plus
interest expense, taxes, depreciation, amortization (including share based
compensation) and other non operating expense, less interest income and other
income, for the Performance Period and determined from the Company’s audited
financial statements.  No EBITDA award is payable if the Cumulative
EBITDA is less than the Threshold Level.

    


    **  Cash
award payable will be determined by linear interpolation for Cumulative EBITDA
between (EBITDA level associated with maximum) and (EBITDA level associated with
target) or between
(EBITDA level associated with target) and (EBITDA level associated with
threshold).

    


    4.3           Determination of
“Target.”  For purposes of calculating the award amount under
Sections 4.1 and 4.2, “Target” shall be determined by the Board for each
Participant; provided that, in the case of the employees who are Participants as
of the Effective Date, the Targets are set forth on Exhibit
A.

    


    4.4           Additional
Participants.  If employees other than those listed on Exhibit A hereto
become Participants in the Plan, the Board will determine whether any form of
proration will apply to determine his or her Cash Incentive Award.

     

    4.5           Payment of Cash Incentive
Award.  The Committee shall certify the cumulative revenue and
EBITDA results before any Cash Incentive Award is paid.  Except as
provided in Sections 5.1 and 5.2, 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.  Except as provided in Sections 5.1 and 5.2, 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.

    


    
      
        
        

      

      
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    V.   TERMINATION
OF EMPLOYMENT

     

           
5.1           Termination of
Employment.  If the Company or an Affiliate terminates the
Participant’s employment for Cause or the Participant resigns his employment
(except as provided below) with the Company or an Affiliate before the last day
of the Performance Period, the Participant shall not receive the 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 (each, a “Payment
Event”), the amount of the Cash Incentive Award will be determined as of the end
of the year in which the Payment Event occurs based on the following methodology
unless otherwise determined by the Board of Directors of the Company (or a
committee thereof):  Notwithstanding Sections 4.1 and 4.2, Cumulative
Revenue and Cumulative EBITDA for the Performance Period will be projected by
assuming that cumulative revenue and cumulative EBITDA for the period from the
beginning of the Performance Period through the end of the year in which the
Payment Event occurs continues at the same average rate through the end of the
Performance Period.  (For example, if a Participant dies in 2010 and
cumulative revenue from January 1, 2009 through December 31, 2010, is $50,
Cumulative Revenue for the Performance Period will be projected to be $75,
unless otherwise determined by the Board of Directors of the Company (or a
committee thereof).)  The amount of the Cash Incentive Award to which
the Participant is entitled shall be prorated in the same proportion that the
number of days elapsed from the beginning of the Performance Period through the
date the Participant ceases to be an employee of the Company or an Affiliate
bears to the total number of days in the Performance Period.  The
amount of the Cash Incentive Award to which the Participant is entitled shall be
paid in cash in the year following the year in which such Payment Event occurs,
but in no event later than the 15th day of
the third month of such year.

     

            5.2           Change in
Control.  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.

    


    VI.   MISCELLANEOUS

     

           
6.1           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.

     

           
6.2           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.

     

           
6.3           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.

    


    
      
        
          
            
              
                
                  
                    
                      	 	THERAGENICS
      CORPORATION	 
	 	 	 	 
	
                               

                            	
                              By:
      

                            	/s/ Francis
      J. Tarallo	 
	 	 	 	 
	 	Title:	Chief
      Financial Officer	 


                    

                  

                

              

            

          

        

      

    

     

    
      
        
        

      

      
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    EXHIBIT
A

     

     

    
      
        
          
            	
                    Participants

                  	 	
                    Target

                  	 
	 
      	 	 	 
	
                    M.
      Christine Jacobs

                  	 	
                    $

                  	235,000	 
	 
      	 	 	 	 
	
                    Francis
      J. Tarallo

                  	 	
                    $

                  	220,000	 
	 
      	 	 	 	 
	
                    Bruce
      W. Smith

                  	 	
                    $

                  	220,000	 
	 
      	 	 	 	 
	
                    Michael
      F. Lang

                  	 	
                    $

                  	175,000	 
	 
      	 	 	 	 
	
                    Ronald
      Routhier

                  	 	
                    $

                  	175,000	 
	 
      	 	 	 	 
	
                    Russell
      Small

                  	 	
                    $

                  	175,000	 
	 
      	 	 	 	 
	
                    Janet
      Zeman

                  	 	
                    $

                  	175,000	 
	 
      	 	 	 	 
	
                    Michael
      O’Bannon

                  	 	
                    $

                  	115,000