AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is
made and entered into as of the 24th day of May, 1996, by Isolyser Company,
Inc., a Georgia corporation (hereinafter "Isolyser"), MedSurg Industries, Inc.,
a Georgia corporation formerly known as MedSurg Acquisition Corp. (hereinafter
"MedSurg"), Creative Research and Manufacturing, Inc., a Georgia corporation
formerly known as Creative Acquisition Corp. (hereinafter "Creative Research")
(Isolyser, MedSurg and Creative Research being hereinafter collectively referred
to as the "Company"), and Xxxxxxx Xxxxxx (hereinafter "Xxxxxx").
W I T N E S S E T H:
WHEREAS, the Company and Xxxxxx entered into an Employment Agreement,
dated as of December 31, 1993 (the "Employment Agreement"); and
WHEREAS, Xxxxxx has elected to resign his position as an executive
officer of the Company and the Company has accepted such resignation; and
WHEREAS, the Company and Xxxxxx desire to amend the Employment
Agreement, upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein, the parties hereto, each intending to be legally bound, do
hereby agree as follows:
1. Change in Relationship.
(a) Upon the terms and conditions set forth in this Amendment,
Xxxxxx hereby resigns and the Company hereby accepts the resignation of Xxxxxx
as an Executive Vice President of Isolyser and the President of MedSurg and
Creative Research.
(b) Xxxxxx hereby resigns as a director of Isolyser, MedSurg
and Creative Research. Xxxxxx has concurrently executed and delivered to the
Company his letter of resignation from such directorships in the form attached
hereto at Exhibit A and incorporated herein by reference.
(c) For the balance of the term of the Employment Agreement
(namely, through December 31, 1996) and continuing thereafter until December 31,
1997, Xxxxxx shall continue as an employee of Isolyser with the title of
"Special Assistant to the Chief Executive". As such, he shall assist the Company
faithfully and diligently to achieve its business objectives as may from time to
time be requested by the president and chief executive officer of Isolyser, and
shall take no action which would be contrary to such objectives. Xxxxxx,
however, shall not be required to perform duties at variance to duties assigned
to senior executive level personnel of the Company. As such Special Assistant,
Xxxxxx shall no longer have any policy-making or staff authority on behalf of
the Company and shall have no authority to bind the Company to any obligations.
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(d) Section 4 of the Employment Agreement captioned "Duties"
is hereby deleted. Xxxxxx shall not be required to devote his full working time
and attention to the business of Isolyser, and may be engaged in other
activities, to which he shall be entitled to devote a substantial portion of his
time.
2. Compensation and Benefits. In lieu of all compensation and benefits
set forth in Sections 5 and 7 of the Employment Agreement, Xxxxxx shall be
entitled to the following:
(a) A base salary as set forth in Section 5(a) of the
Employment Agreement in the amount of $175,000 per year through and including
December 31, 1997 so long as Xxxxxx is not in breach of the Employment
Agreement, as herein amended, or Non-Compete (as hereinbelow defined), as now or
hereafter amended, following five days notice of any such breach by Isolyser to
Xxxxxx.
(b) The fringe benefits set forth in Section 5(c) of the
Employment Agreement through and including December 31, 1996. Xxxxxx
acknowledges and agrees that all such fringe benefits shall cease and terminate
at December 31, 1996 notwithstanding Xxxxxx'x continued employment as provided
in this Amendment through and including December 31, 1997, except that Xxxxxx
shall continue to be eligible for participation in the Company's group health
insurance, life insurance and disability insurance on the same basis as other
Company employees through December 31, 1997. Isolyser shall maintain, at
Isolyser's sole cost and expense, the additional life insurance policies
identified in the last three sentences of Section 5(c) of the Employment
Agreement, through and including December 31, 1996, and effective as of January
1, 1997, the Company shall assign all rights to such policies to Xxxxxx, without
charge to Xxxxxx. The Company shall have no obligation in respect to any of such
policies subsequent to December 31, 1996.
(c) The sum of $27,073.88, subject to applicable withholding,
in satisfaction of all accrued but unused paid absences due to Xxxxxx through
the date hereof. From and after the date hereof, Xxxxxx agrees that he shall no
longer accrue paid absences or be entitled to compensation for same.
(d) The obligation of the Company to pay the base salary set
forth in Section 2(a) of this Amendment is not conditional upon, and shall be
payable through December 31, 1997, notwithstanding the death or disability of
Xxxxxx.
3. Protective Covenants. Section 10(e)of the Employment Agreement and
Section 1 of that certain Covenant and Agreement Not to Compete (the
"Non-Compete") dated December 31, 1993, by Xxxxxx and others in favor of the
Company are and shall hereby be terminated prospectively from and after the date
hereof. Xxxxxx acknowledges and agrees that the other covenants included
therein, including, without limitation, the covenants against disclosure of
confidential information and solicitation of Company employees and customers,
shall:
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(a) continue in full force and effect and are hereby ratified
and confirmed by Xxxxxx, and
(b) survive this Amendment in accordance with the terms of
such covenants and shall be binding upon Xxxxxx through December 31, 1998 (or
such longer period as may be applicable for the protection of confidential
information or trade secrets).
4. Other Matters.
(a) Section 6 of the Employment Agreement captioned "Working
Facilities" is hereby deleted.
(b) Xxxxxx acknowledges that he has submitted vouchers and
received reimbursement for all business expenses to which he is entitled
reimbursement under Section 7 of the Employment Agreement. The Company shall
have no further obligations under Section 7 of the Employment Agreement, except
the Company shall be obligated to reimburse Xxxxxx for any expenses reasonably
and necessarily incurred by him in the carrying out of any services specifically
requested of Xxxxxx by the President and Chief Executive Officer of Isolyser.
(c) This Agreement does not modify or cancel the terms and
provisions of any options (collectively, the "Stock Options") previously awarded
Xxxxxx for the purchase of common stock of Isolyser, and such options shall
remain in full force and effect without modification or amendment. The parties
acknowledge and agree that Xxxxxx'x employment by the Company shall continue
through and including December 31, 1997, and that such date, except in the event
of Xxxxxx'x death, will be the effective date for the termination of Xxxxxx'x
employment under the Stock Options.
5. Releases.
(a) In consideration of the covenants of the Company contained
in this Amendment, Xxxxxx hereby irrevocably and unconditionally releases,
waives, remises, forever discharges and agrees not to xxx the Company and/or any
and all parent companies, divisions, subsidiaries, affiliates and other related
entities of the Company, as well as each of the Company's past, present and
future owners, directors, officers, employees, and the predecessors, successors
and assigns of each of them in their personal or corporate capacities, and all
of their attorneys (collectively, the "Released Parties"), from and with respect
to any and all liabilities, actions, claims, obligations, damages, causes of
action, contracts, accounts, agreements and demands of any nature whatsoever
that Xxxxxx has, may have or may claim to have against any of the Released
Parties, whether known or unknown, liquidated or unliquidated, in law or in
equity, whether arising under any local, state or federal constitutions, laws,
rules or regulations, or under the common law or statutory law of the United
States prohibiting employment discrimination based on race, color, sex,
religion, handicap disability, national origin or any other protected category
or characteristic, including the Civil Rights Act of 1964, the Civil Rights Act
of 1986 or 1871, the National Labor Relations Act or any other federal, state or
local
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human rights, civil rights or employment discrimination statute, including any
claim arising under the AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, as amended
("ADEA"), any rules or regulations arising under such laws, and any and all
claims relating to Xxxxxx'x employment or termination thereof, including, but
not limited to, any claims under the doctrines of defamation, libel, slander,
invasion of privacy, interference with contractual relations, or implied
contracts arising from employee handbooks, policies, manuals or statements of
procedure and wrongful discharge, it being the intention of the Company and
Xxxxxx to make this release as broad and as general as the law permits to
include in addition to the foregoing all possible claims which arose or might
arise out of contract or tort under state or federal law.
(b) In consideration of the covenants of Xxxxxx contained in
this Amendment, the Company hereby irrevocably and unconditionally releases,
waives, remises, forever discharges and agrees not to xxx, or otherwise claim
payment to be due to or from Xxxxxx, his heirs or personal representatives,
arising out of Xxxxxx'x capacity as an employee, stockholder, officer or former
officer, from and with respect to any and all liabilities, actions, claims,
obligations, damages, causes of action, contracts, accounts, agreements and
demands of any nature whatsoever that the Company or any of the Company's
stockholders, officers or employees has, may have or may claim to have against
Xxxxxx, whether known or unknown, liquidated or unliquidated, in law or in
equity, whether arising under any local, state or federal constitutions, laws,
rules or regulations, or under common law or statutory law of the United States,
and any and all claims relating to Xxxxxx'x employment, including, but not
limited to, any claims under the doctrines of defamation, libel, slander,
invasion of privacy, or interference with contractual relations, it being the
intention of the Company and Xxxxxx to make this release as broad and as general
as the law permits to include in addition to the foregoing all possible claims
which arose or might arise out of contract or tort under state or federal law.
(c) Nothing contained in Subsection (a) or (b) of this Section
5 shall restrict or otherwise impair in any manner the rights or obligations of
any parties arising under and by virtue of (i) the Employment Agreement, as
amended by this Amendment, (ii) this Amendment, (iii) that certain Indemnity
Agreement effective as of October 20, 1994 between Isolyser and Xxxxxx, (iv) the
Stock Options, (v) the Non-Compete or (vi) any amendment or modification of any
of the foregoing.
6. Return of Property. Xxxxxx hereby warrants and represents that, as
of the date of this Amendment, Xxxxxx has delivered to the Company or its
designee (a) all keys to the Company's offices, (b) all Company credit cards in
his possession, and (c) any Company files, records or equipment kept in or
maintained by him in his office or elsewhere (including all copies thereof).
7. Workers' Compensation. Xxxxxx represents that, as of the date of
this Amendment, he has not, and agrees that he will not, make any claims under
Workers' Compensation Insurance with respect to Xxxxxx'x period of employment at
the Company.
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8. Continuing Obligations. Except as otherwise expressly modified by
this Amendment, the terms and conditions of the Employment Agreement and
Non-Compete shall continue to be in full force and effect.
9. Disclosure.
(A) XXXXXX SHOULD CAREFULLY READ AND UNDERSTAND THE TERMS,
CONDITIONS AND EFFECTS OF THIS AMENDMENT. THIS IS A LEGAL DOCUMENT, AND XXXXXX
IS ADVISED THAT HE SHOULD CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS
AMENDMENT.
(B) PURSUANT TO THE TERMS OF THE ADEA, XXXXXX IS ADVISED TO
CONSIDER THIS AMENDMENT FOR A PERIOD OF AT LEAST TWENTY-ONE (21) DAYS AFTER THE
DATE OF RECEIPT BEFORE XXXXXX EXECUTES THIS AMENDMENT. AFTER XXXXXX SIGNS THIS
AMENDMENT AND RETURNS IT TO THE COMPANY, XXXXXX HAS SEVEN (7) CALENDAR DAYS IN
WHICH TO NOTIFY THE COMPANY THAT XXXXXX HAS DECIDED TO WITHDRAW HIS ACCEPTANCE
OF THIS AMENDMENT. THIS AMENDMENT (OTHER THAN SECTION 1 WHICH IS EFFECTIVE) WILL
NOT BECOME EFFECTIVE OR ENFORCEABLE AND NO PAYMENTS WILL BE MADE HEREUNDER UNTIL
THE END OF THE SEVEN DAY REVOCATION PERIOD, AT WHICH TIME THE AMENDMENT SHALL
BECOME EFFECTIVE AND ENFORCEABLE.
10. Miscellaneous.
(a) All capitalized terms which are not defined herein shall
have the meanings set forth in the Employment Agreement.
(b) Each party agrees that he or it will refrain from any
communication to third parties which denigrates, disparages or criticizes the
other party hereto.
(c) This Agreement and all the terms, provisions and
conditions hereof shall be binding upon and inure to the benefit of and be
enforceable by the heirs and personal representatives of Xxxxxx.
(d) The Company and Xxxxxx represent that, as of the date of
execution and delivery of this Amendment by each of them, no breach of the
Employment Agreement, as amended by this Amendment, has occurred which is within
the actual knowledge of the parties so representing.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
ISOLYSER COMPANY, INC.
By:
Its:
MEDSURG INDUSTRIES, INC.
By:
Its:
CREATIVE RESEARCH AND
MANUFACTURING, INC.
By:
Its:
XXXXXXX XXXXXX
Date:
332647.1
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EXHIBIT "A"
May 24, 1996
The Board of Directors
Isolyser Company, Inc.
MedSurg Industries, Inc.
Creative Research and Manufacturing, Inc.
Gentlemen:
Effective immediately, I hereby resign as a member of the Board of
Directors.
Sincerely,
Xxxxxxx Xxxxxx
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