EXHIBIT 10.1
This agreement is made and entered into as of the 25th day of August 1999, by
Isolyser Company, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
In consideration of the mutual covenants contained in this agreement, Isolyser
and ▇▇▇▇▇▇▇▇▇ agree as follows:
1. EMPLOYMENT
(a) Effective November 1, 1999 and through October 31, 2002 ▇▇. ▇▇▇▇▇▇▇▇▇
will serve as the Consultant to the President of Orex Technologies
International (OTI) and as such shall become a consultant to and not
an employee of Isolyser. This consultancy can be terminated by ▇▇.
▇▇▇▇▇▇▇▇▇ with 90 days notice or may be extended by mutual agreement.
During this term ▇▇. ▇▇▇▇▇▇▇▇▇ shall assist Isolyser faithfully and
diligently to achieve its objectives as may be reasonably requested by
the President of OTI and will take no action which is contrary to
these objectives. As Consultant to the President of OTI, ▇▇. ▇▇▇▇▇▇▇▇▇
shall have no policy-making authority on behalf of Isolyser and shall
have no authority to bind Isolyser to any obligations. ▇▇. ▇▇▇▇▇▇▇▇▇
shall not be required to devote his full working time and attention to
Isolyser, and may be engaged in other activities subject to paragraph
3 of this agreement.
(b) ▇▇. ▇▇▇▇▇▇▇▇▇ may continue to serve on the Board of Directors and
maintain that status as long as he is duly elected to that position.
2. COMPENSATION AND BENEFITS. As full compensation for all services
rendered by ▇▇. ▇▇▇▇▇▇▇▇▇ as a consultant to Isolyser under this agreement
and as full consideration for the covenants of ▇▇. ▇▇▇▇▇▇▇▇▇ contained in
this agreement, ▇▇. ▇▇▇▇▇▇▇▇▇ shall be entitled to the following so long as
▇▇. ▇▇▇▇▇▇▇▇▇ is not in breach of this agreement and has not earlier
terminated this agreement:
(a) A consulting fee of (i) $150,000 for the year beginning November
1,1999 and ending October 31, 2000, (ii) $130,000 for the year
beginning November 1, 2000 and ending October 31, 2001, and (iii)
$35,000 for the year beginning November 1, 2001 and ending October 31,
2002.
(b) Isolyser shall be responsible for cobra payments for medical and
dental for 18 months beginning November 1, 1999 and ending April 30,
2001. It is understood that ▇▇. ▇▇▇▇▇▇▇▇▇ is only eligible for those
benefits which he is currently enrolled. At the expiration of the
Cobra benefits Isolyser will pay ▇▇. ▇▇▇▇▇▇▇▇▇ $6,500 toward the cost
of other health insurance benefits. ▇▇. ▇▇▇▇▇▇▇▇▇ acknowledges that,
except as set forth herein, he and his dependents will not participate
in any benefit plans upon becoming Consultant to the President of OTI.
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(c) ▇▇. ▇▇▇▇▇▇▇▇▇ will also be entitled to expenses not to exceed $20,000
per year for the term of the consulting agreement. Included in these
expenses will be reasonable expenditures to establish a home office.
All expenses must be approved by the CEO of Isolyser and must be in
relation to reasonable travel and other related business expense
associated with the role of Consultant to the President of OTI.
(d) Subject to ▇▇. ▇▇▇▇▇▇▇▇▇'▇ continued reelection to and service as a
member of Isolyser's Board of Directors, ▇▇. ▇▇▇▇▇▇▇▇▇ shall be
entitled to the compensation provided to "outside" members of the
Board as from time-to-time in effect per the policies as may be
established from time-to-time in the discretion of the Board of
Directors. Such policy now provides for an annual retainer of $10,000
and certain stock options.
3. PROTECTIVE COVENANTS; REMEDIES
(a) Property Rights. ▇▇. ▇▇▇▇▇▇▇▇▇ acknowledges and agrees that all
records, files and equipment either supplied by Isolyser or any of its
affiliates or subsidiaries (collectively, the "Isolyser Companies") or
relating to the business of the Isolyser Companies, whether or not
prepared by ▇▇. ▇▇▇▇▇▇▇▇▇, are the property of Isolyser and shall be
returned effective October 31, 1999. These include but are not limited
to records or books relating to the manner in which Isolyser conducts
its business. It is understood that such material that is needed for
▇▇. ▇▇▇▇▇▇▇▇▇ to perform his role as Consultant to the President of
OTI will be mutually agreed to and not subject to return to Isolyser
until the termination of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ consultancy.
(b) Non-Disclosure of Confidential Information. ▇▇. ▇▇▇▇▇▇▇▇▇ acknowledges
that through his formal and informal association with Isolyser he has
and will become familiar with among other things the following:
Any scientific or technical information, design, process,
procedure, formula or improvement that is secret or of
value, and information including, but not limited to,
technical or nontechnical data, formula, patterns,
compilations, programs, devices, methods, techniques,
drawings, process and financial data, which Isolyser takes
reasonable efforts to protect from disclosure, and from
which Isolyser derives actual or potential economic value
due to its confidential nature (the foregoing hereinafter
collectively referred to as the "Confidential Information").
▇▇. ▇▇▇▇▇▇▇▇▇ acknowledges that use of such Confidential Information
will give him an unfair competitive advantage over Isolyser in the
event that he should go into competition with Isolyser and agrees that
during the course of this agreement and for a two year period
following termination of his consultancy under this agreement, ▇▇.
▇▇▇▇▇▇▇▇▇ will not disclose to any person, or utilize for his benefit,
any of the Confidential Information. ▇▇. ▇▇▇▇▇▇▇▇▇ acknowledges that
such Confidential Information is of special and particular value to
Isolyser; is the property of Isolyser, the product of years of
experience and trial and error; is not generally known to Isolyser's
competitors; and is regularly used in the operation of Isolyser's
business. ▇▇. ▇▇▇▇▇▇▇▇▇ acknowledges and recognizes that applicable
law prohibits disclosure of confidential information and trade secrets
indefinitely (i.e., without regard to the two year period described in
this paragraph), and Isolyser has the right to require ▇▇. ▇▇▇▇▇▇▇▇▇
to comply with such law in addition to Isolyser's rights under this
paragraph.
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(c) Non-Interference with Employees. ▇▇. ▇▇▇▇▇▇▇▇▇ agrees not to
directly or indirectly solicit Isolyser employees to leave
Isolyser for a period of two years following the termination of
his consultancy under this agreement unless agreed to by
Isolyser.
(d) Inventions. ▇▇. ▇▇▇▇▇▇▇▇▇ agrees to fully inform and disclose to
Isolyser all inventions, designs, improvements and discoveries
relating directly or indirectly to the Business (as defined
below) which ▇▇. ▇▇▇▇▇▇▇▇▇ now has or may have at any time while
▇▇. ▇▇▇▇▇▇▇▇▇ is either employed by Isolyser or engaged as a
consultant to Isolyser. All such inventions, designs,
improvements and discoveries shall be the exclusive property of
Isolyser. ▇▇. ▇▇▇▇▇▇▇▇▇ shall assist Isolyser to obtain such
legal protection of all inventions, designs, improvements and
discoveries as may be deemed desirable by Isolyser from time to
time.
(e) Non-Solicitation of Customers. Until the second anniversary of
the date of termination of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ consultancy under this
agreement ▇▇. ▇▇▇▇▇▇▇▇▇ agrees that he will not, within the world
(the "Territory") which the parties agree has been the territory
in which ▇▇. ▇▇▇▇▇▇▇▇▇ has rendered services, for ▇▇. ▇▇▇▇▇▇▇▇▇'▇
own benefit or on behalf of any other person, partnership,
company or corporation, contact any customers or vendors of
Isolyser who ▇▇. ▇▇▇▇▇▇▇▇▇ called upon while employed by
Isolyser, for the purpose of developing, manufacturing or selling
degradable or infection control products for use in the medical,
industrial or commercial markets as described in Isolyser's
Annual Report on Form 10-K for the year ended December 31, 1998
(collectively, the "Business").
(f) Non-Competition. Until the second anniversary of the date of
termination of ▇▇. ▇▇▇▇▇▇▇▇▇'▇ consultancy under this agreement,
▇▇. ▇▇▇▇▇▇▇▇▇ agrees that he will not directly or indirectly on
his behalf or on the behalf of others engage in the "Business" in
the Territory in any capacity that involves duties similar to the
duties ▇▇. ▇▇▇▇▇▇▇▇▇ undertakes or has undertaken for Isolyser.
(g) Acknowledgments Regarding Protective Covenants. ▇▇. ▇▇▇▇▇▇▇▇▇
acknowledges and understands that the covenants provided for in
this section are limited to the covenants set forth herein and do
not preclude ▇▇. ▇▇▇▇▇▇▇▇▇ upon the termination of this agreement
from obtaining gainful employment or utilizing his general
business skills, and that numerous opportunities exist for ▇▇.
▇▇▇▇▇▇▇▇▇ to utilize such skills. Although ▇▇. ▇▇▇▇▇▇▇▇▇ agrees
that the time and area restraints set forth herein are
reasonable, nevertheless, if for any reason now unforeseen, a
court of competent jurisdiction finds that the time and/or area
restraints agreed to by the parties are unreasonable then the
time and/or area restraints agreed to herein shall be reduced to
an area and/or duration deemed reasonable by such court. ▇▇.
▇▇▇▇▇▇▇▇▇ acknowledges that he has read and understands the terms
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of this agreement, that the same was specifically negotiated, and
that the protective covenants agreed upon herein are necessary
for the protection of Isolyser's business as a result of the
business secrets disclosed during the employment and consultancy
of ▇▇. ▇▇▇▇▇▇▇▇▇. Further, ▇▇. ▇▇▇▇▇▇▇▇▇ acknowledges that
Isolyser would not enter into this Agreement without the
specifically negotiated protective covenants herein stated.
(h) Remedies. In addition to any other rights and remedies which are
available to Isolyser with respect to any breach or violation of
the protective covenants set forth herein, it is recognized and
agreed that Isolyser shall be entitled to obtain injunctive
relief which would prohibit ▇▇. ▇▇▇▇▇▇▇▇▇ from continuing any
breach or violation of such protective covenants.
4. Resignation. Effective November 1, 1999, ▇▇. ▇▇▇▇▇▇▇▇▇ hereby resigns
as Executive Vice President and Secretary of Isolyser and from all
offices of ▇▇. ▇▇▇▇▇▇▇▇▇ with any other of the Isolyser Companies,
including any position of ▇▇. ▇▇▇▇▇▇▇▇▇ as a director of any
subsidiary of Isolyser. 5. Disclosure. ▇▇. ▇▇▇▇▇▇▇▇▇ should carefully
read and understand the terms, conditions and effects of this
agreement. This is a legal document, and ▇▇. ▇▇▇▇▇▇▇▇▇ is advised that
he should consult with an attorney before signing this agreement.
6. Litigation and Regulatory Cooperation. ▇▇. ▇▇▇▇▇▇▇▇▇ shall cooperate
fully with Isolyser in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future against
or on behalf of Isolyser which relate to events or occurrences that
transpired while ▇▇. ▇▇▇▇▇▇▇▇▇ was employed by or served as a
consultant to Isolyser. ▇▇. ▇▇▇▇▇▇▇▇▇'▇ full cooperation in connection
to such claims or actions shall include, but not be limited to, being
available to meet with counsel to prepare for discovery or trial and
to act as a witness on behalf of Isolyser at mutually convenient
times. ▇▇. ▇▇▇▇▇▇▇▇▇ shall also cooperate fully with Isolyser in
connection with any examination or review of any federal or state
regulatory authority as such examination or review relates to events
or occurrences that transpired while Isolyser employed ▇▇. ▇▇▇▇▇▇▇▇▇.
The obligations under this paragraph shall continue, to the extent
required, following the expiration of this agreement. To the extent
that ▇▇. ▇▇▇▇▇▇▇▇▇ is required to provide services under this
paragraph subsequent to the expiration of this agreement, Isolyser
will reimburse ▇▇. ▇▇▇▇▇▇▇▇▇ for reasonable expenses in connection
with the performance of his duties under this paragraph and pay a
consulting fee of $50 per hour.
7. Miscellaneous.
(a) All the payments made and benefits provided to ▇▇. ▇▇▇▇▇▇▇▇▇
under this agreement shall be net of any tax required to be
withheld by Isolyser under applicable law.
(b) This agreement shall be governed in accordance with the laws of
the State of Georgia.
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(c) This agreement contains the full and entire agreement between the
parties. Nothing contained herein shall restrict, alter or amend
that certain Indemnity Agreement effective as of October 20,
1994, between Isolyser and ▇▇. ▇▇▇▇▇▇▇▇▇.
(d) The salary and other benefits set forth in this agreement shall
no longer accrue or be payable after ▇▇. ▇▇▇▇▇▇▇▇▇'▇ death. As
this agreement is for the personal services of ▇▇. ▇▇▇▇▇▇▇▇▇, it
is not assignable by him. The terms of this agreement are binding
upon and for the benefit of Isolyser and its successors and
assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date stated above.
ISOLYSER COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Its: President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
