EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective as of
the 1st day of April, 1997 (the "Effective Date"), by and between ISOLYSER
COMPANY, INC., a Georgia corporation (hereinafter the "Company"), and XXX X. XXX
(hereinafter the "Employee").
RECITALS:
R-1. The Company develops, manufactures and markets disposable,
specialty and safety products for use in medical, industrial and commercial
markets.
R-2. The Company's markets are worldwide.
R-3. The Company maintains certain trade secrets and confidential
information which is proprietary to the Company, the disclosure or exploitation
of which would cause significant damage to the Company.
R-4. The Company desires to employ the Employee, and the Employee
desires to accept such employment, for which purposes each of the Company and
the Employee desire to enter into this Agreement to set forth and clarify
certain of the terms and conditions relevant to such employment.
NOW, THEREFORE, in consideration of the recitals, the covenants and
agreements herein contained and the benefits to be derived herefrom, the
parties, intending to be legally bound, agree as follows:
1. RECITALS. The recitals set forth above constitute part of this
Agreement and are incorporated herein by this reference.
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2. EMPLOYMENT. From and after the date hereof and for the term herein
provided, the Company agrees to employ the Employee, and the Employee accepts
such employment with the Company upon the terms and conditions hereinafter set
forth.
3. TERM. The Employee's employment shall commence on the Effective Date
and, subject to Section 8 of this Agreement, shall continue through the third
anniversary of the Effective Date.
4. DUTIES. The Employee agrees that: (a) he shall devote his full
working time and attention to the business of the Company and its affiliated
companies; and (b) he will perform all of his duties pursuant to this Agreement
faithfully and to the best of his abilities.
5. COMPENSATION. As full compensation for all services rendered by the
Employee pursuant to this Agreement and as full consideration for all of the
terms of this Agreement, the Employee shall receive from the Company during his
employment under this Agreement the base salary, bonuses and fringe benefits
described below.
(a) BASE SALARY. For all services rendered pursuant to this
Agreement, the Company shall pay or cause to be paid to the Employee an annual
base salary of $150,000. The annual salary may be increased from time to time
during the term of this Agreement in the discretion of the Company. The base
salary shall be payable in accordance with the customary practices of the
Company for payment of its employees, but in any event, in installments not less
frequently than once monthly.
(b) BONUS COMPENSATION. To the extent that the Company shall
establish, from time to time in its discretion, bonus compensation plans for the
benefit of all of its management level employees, the Employee shall be entitled
to participate in such bonus compensation plans in accordance with the terms and
provisions established by the Company.
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(c) FRINGE BENEFITS. The Company has adopted, or may from time to
time adopt, policies in respect to fringe benefits for its management level
employees in the nature of health and life insurance, holidays, vacation, sick
leave policies, disability and other matters. The Company covenants and agrees
that the Employee shall be entitled to participate in any such fringe benefit
policies adopted by the Company to the same extent that such fringe benefits
shall be available to and for the benefit of all other management level
employees.
(d) TAX WITHHOLDINGS AND OTHER DEDUCTIONS. The Company shall have
the right to deduct from the base salary and any additional compensation payable
to the Employee all amounts required to be deducted and withheld in accordance
with social security taxes and all applicable federal, state and local taxes and
charges as may now be in effect or which may be hereafter enacted or required as
charges on the compensation of the Employee. The Company shall also have the
right to offset from the base salary and any additional compensation payable to
the Employee any loan or other amounts owed to the Company by the Employee.
6. WORKING FACILITIES. The Company, at its own expense, shall furnish
the Employee with office, working space and such equipment as may be reasonably
necessary for the Employees's performance of his or her duties.
7. EXPENSES. The Employee is required as a condition of employment to
incur ordinary, necessary and reasonable expenses for the promotion of the
business of the Company and its affiliates and subsidiaries, including expenses
for entertaining, travel and similar items. The Employee is authorized to incur
reasonable expenses in connection with such business, including travel and
entertainment expenses, fees for seminars and courses, and expenses incurred in
attendance at executive meetings and conventions. If paid by the Employee, upon
presentation by the Employee of an itemized account of such expenditures in a
manner satisfactory to the Company, the Employee shall be entitled to receive
reimbursement for these
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expenses, subject to policies that may be established from time to time by the
Company. It is intended by the Company and the Employee that all expenses
incurred pursuant to this paragraph are to be ordinary and necessary business
expenses.
8. TERMINATION. The Employee's employment may be terminated in
accordance with the provisions of this section. The provisions for termination
are as follows:
(a) DEATH OR DISABILITY. The Employee's employment shall be
terminated upon the death or total disability of the Employee (total disability
meaning the failure of the Employee to perform his or her duties and
responsibilities hereunder in the manner and to the extent required by this
Agreement for a period of 90 consecutive days by reason of the Employee's mental
or physical disability as determined by the Company, which determination, in the
absence of a showing of bad faith, shall be conclusive upon the Employee).
(b) TERMINATION FOR CAUSE. The Employee's employment may be
terminated by the Company for cause, which for purposes of this Agreement shall
be limited solely to a determination by the Board of Directors that any of the
following has occurred: (i) the Employee's material failure or refusal to comply
with the policies, standards and regulations of the Company from time to time
reasonably established and fairly administered by the Company, (ii) a material
breach by the Employee of the terms of Section 9 of this Agreement, (iii) a
material breach by the Employee of any of the other terms of this Agreement, or
(iv) the indictment or conviction of the Employee for any felony, the conviction
of the Employee for a misdemeanor involving the misuse of funds, or the
adjudication by a court that the Employee engaged in willful misconduct in
connection with the activities of the Company.
(c) TERMINATION WITHOUT CAUSE. The Employee's employment may be
terminated by the Company without cause; provided, that, in the event of any
termination of the Employee's employment under this paragraph (c), the Employee
shall be entitled to receive the
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base salary as set forth in Section 5(a) hereof for the remaining term of this
Agreement payable at the Company's election either in a lump sum (present valued
at a discount rate of 10%) or as otherwise payable under Section 5(a). The
Company's obligation to make payments under this paragraph shall cease and
terminate in the event of any breach by the Employee of any of the provisions of
Section 9 of this Agreement. The Company may require, as a condition precedent
to making any payments under this paragraph to the Employee, that the Employee
execute a customary release and covenant not to xxx in favor of the Company. Any
payments under this Section 8(c) shall be subject to Section 5(d).
9. PROTECTIVE COVENANTS; REMEDIES.
(a) PROPERTY RIGHTS. The Employee acknowledges and agrees that all
records of the accounts of customers, lists, prospect lists, prospect reports,
vendor lists, samples, desk calendars, briefcases, day timers, notebooks,
computers, computer records and software provided by the Company or any
subsidiary or affiliate of the Company (collectively, the "Company Group"),
policy and procedure manuals, price lists, catalogs, premises keys, written
methods of pricing, lists of needs and requirements of customers, written
methods of operation of the Company Group, manufacturing techniques, financial
records and any other records and books relating in any manner whatsoever to the
customers of the Company Group or its business, whether prepared by the Employee
or otherwise coming into the Employee's possession, are the exclusive property
of the Company Group regardless of who actually purchased or prepared the
original book, record, list or other property. All such books, records, lists or
other property shall be immediately returned by the Employee to the Company upon
any termination of employment.
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(b) NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Employee
acknowledges that through formal and informal training by the Company Group, the
Employee will become familiar with, among other things, the following:
Any scientific or technical information, design, process,
procedure, formula or improvement that is secret and of value,
and information including, but not limited to, technical or
nontechnical data, formula, patterns, compilations, programs,
devices, methods, techniques, drawings, processes and
financial data, which the Company takes reasonable efforts to
protect from disclosure, and from which the Company derives
actual or potential economic value due to its confidential
nature (the foregoing being hereinafter collectively referred
to as the "Confidential Information").
The Employee acknowledges that use of such Confidential Information
will give the Employee an unfair competitive advantage over the Company Group in
the event that the Employee should go into competition with the Company Group
and agrees that during the term of this Agreement and for a period of two (2)
years subsequent to the termination of employment for any reason, the Employee
will not disclose to any person, or utilize for the Employee's benefit, any of
the Confidential Information. The Employee acknowledges that such Confidential
Information is of special and peculiar value to the Company; is the property of
the Company Group, the product of years of experience and trial and error; is
not generally known to the Company Group's competitors; and is regularly used in
the operation of the Company Group's business. The Employee 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 the Company has the right to require the
Employee to comply with such law in addition to the Company's rights under this
paragraph.
(c) NON-INTERFERENCE WITH EMPLOYEES. The Employee agrees not to
solicit, entice or otherwise induce any employee of the Company Group to leave
the employ of the
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Company Group for any reason whatsoever, and not to otherwise interfere with any
contractual or business relationship between the Company Group and any of its
employees for two (2) years from the termination of the Employee's employment.
(d) NON-SOLICITATION OF CUSTOMERS. Until the latter of (i) the third
anniversary of the Effective Date of this Agreement and (ii) the date that is
two (2) years subsequent to the termination hereof for any reason other than
under Section 8(c) of this Agreement, the Employee agrees that the Employee will
not, within the United States of America (the "Territory"), which the parties
agree shall be the territory from which the Employee shall primarily render
services, for the Employee's own benefit or on behalf of any other person,
partnership, company or corporation, contact any customer or customers of the
Company Group who the Employee called upon while employed by the Company, for
the purpose of developing, manufacturing or selling disposable, specialty or
safety products for use in the medical, industrial or commercial markets
(collectively, the "Business").
(e) NON-COMPETITION. Until the latter of (i) the third anniversary
of the Effective Date of this Agreement and (ii) the date that is two (2) years
subsequent to the termination hereof for any reason other than under Section
8(c) of this Agreement, the Employee agrees that the Employee will not within
the Territory, either directly or indirectly on his own behalf or in the service
of others, in any capacity that involves duties similar to the duties of the
Employee hereunder, engage in the Business.
(f) ACKNOWLEDGMENT REGARDING PROTECTIVE COVENANTS. The Employee
acknowledges that the Employee has read and understands the terms of this
Agreement, that the same was specifically negotiated, and that the protective
covenants agreed upon herein are necessary for the protection of the Company
Group's business as a result of the business secrets that will be disclosed
during the employment. Further, the Employee acknowledges that the
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Company would not employ the Employee without the specifically negotiated
protective covenants herein stated.
(g) REMEDIES. In addition to any other rights and remedies which are
available to the Company, with respect to any breach or violation of the
protective covenants set forth herein, it is recognized and agreed that the
Company shall be entitled to obtain injunctive relief which would prohibit the
Employee from continuing any breach or violation of such protective covenants.
10. DISPUTES. Any controversy or claim arising out of or relating to
the employment relationship between the Company and the Employee shall be
settled by arbitration in accordance with the laws of the State of Georgia by
three arbitrators, one of whom shall be appointed by the Company, one by the
Employee and the third by the first two arbitrators. If the first two
arbitrators cannot agree on the appointment of a third arbitrator, then the
third arbitrator shall be appointed by the American Arbitration Association in
the City of Atlanta, Georgia. Such arbitration shall be conducted in the City of
Atlanta, Georgia in accordance with the rules of the American Arbitration
Association, except as otherwise provided in this paragraph. Judgment upon the
award entered by the arbitrators may be entered in a court having jurisdiction
thereof. The party or parties against whom an arbitration award shall be entered
shall pay the other party's reasonable attorneys' fees and reasonable costs and
expenses in connection with the enforcement of its rights under this Agreement
unless and to the extent the arbitrators determine that under the circumstances
recovery by the prevailing party of all or any part of such fees and costs would
be unjust.
11. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and personally delivered or sent by registered or
certified mail, return receipt
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requested, in the case of the Company, to the principal office of the Company,
and in the case of the Employee, to the Employee's last known residence address.
12. CONSTRUCTION. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Georgia. The waiver by any party hereto
of a breach of any of the provisions of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by any party.
13. MODIFICATION; ASSIGNMENT. This Agreement may not be changed except
by written agreement duly executed by the parties hereto. The rights and
obligations of the Company under this Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the Company. This Agreement,
being for the personal services of the Employee, shall not be assignable or
subject to anticipation by the Employee.
14. SEVERABILITY. Each provision of this Agreement shall be considered
severable. If for any reason any provisions herein are determined to be invalid
or unenforceable, this Agreement shall be construed in all respects as though
such invalid or unenforceable provisions were omitted, and such invalidity or
unenforceability shall not impair or otherwise affect the validity of the other
provisions of this Agreement. Moreover, the parties agree to replace such
invalid provision with a substitute provision that will correspond to the
original intent of the parties.
15. NUMBER OF AGREEMENTS. This Agreement may be executed in any number
of counterparts, each one of which shall be deemed an original.
16. PRONOUNS. The use of any word in any gender shall be deemed to
include any other gender and the use of any word in the singular shall be deemed
to include the plural where the context requires.
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17. HEADINGS. The section headings used in this Agreement are for
convenience only and are not to be controlling with respect to the contents
thereof.
18. ENTIRE AGREEMENT. This Agreement contains the complete and
exclusive statement of the terms and conditions of the Employee's employment by
the Company, and there exists no other inducement or consideration between the
Company and the Employee relative to the employment contemplated by this
Agreement. All prior agreements relative to the subject matter of this Agreement
are terminated.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first set forth above.
ISOLYSER COMPANY, INC.
By:___________________________ ___________________________________
Its:_______________________ XXX X. XXX
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