<PAGE>
UNITED STATES
Securities and Exchange Commission
Washington, DC 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended: January 31, 2000
Or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
0-3255
(Commission File Number)
JAYARK CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-1864519
(State or other jurisdiction of incorporation) (IRS EIN)
300 Plaza Drive, Vestal, New York 13850
(Address of principal executive offices) (Zip Code)
(607) 729-9331
(Registrant's telephone number, including area code)
Former Address: Post Office Box 741528, Houston, Texas 77274
(Former name, former address and fiscal year, if changed since last report.)
Indicate by check mark whether the registrant (1) has filed all
reports to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for
the past 90 days.
YES [X] NO [ ]
Indicate the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest practicable date:
Class Outstanding at January 31, 2000
Common Stock $0.01 Par Value 2,766,360
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Part I.
Item I.
Jayark Corporation and Subsidiaries
Consolidated Balance Sheets
<TABLE>
<CAPTION>
<S> <C> <C>
Unaudited Audited
01/31/00 04/30/99
--------- --------
Assets
Current Assets
Cash and Cash Equivalents $668,592 $209,724
Accounts Receivable-Trade, Less Allowance For
Doubtful
Accounts of $78,000 at 1/31/00 and $59,000 at 4/30/99 1,199,049 1,818,214
Inventories 353,265 337,914
Other Current Assets 98,896 46,247
--------- --------
Total Current Assets 2,319,802 2,412,099
Non Current Assets
Property & Equipment, Less Accum Depr & Amort 342,545 120,410
Excess of Cost Over Net Assets of Businesses Acquired, Less Accum
Amort of $503,000 at 1/31/00 and $485,000 at 4/30/99 324,357 247,382
--------- --------
Total Non-Current Assets 666,902 367,792
--------- --------
Total Assets $2,986,704 $2,779,891
========= ========
Liabilities
Current Liabilities
Notes Payable & Line of Credit $75,000 $0
Current Maturities of Long Term Debt 161,332 161,332
Accounts Payable 451,695 689,209
Accrued Expenses 259,124 253,796
Accrued Salaries 482,121 392,420
Accrued Interest 504,510 504,510
Other Current Liabilities 57,365 39,918
--------- --------
Total Current Liabilities 1,991,147 2,041,185
Long Term Debt 1,327,765 1,424,229
--------- --------
Total Liabilities $3,318,912 $3,465,414
========= ========
Stockholders' Equity (Deficit)
Common Stock of $.01 Par Value. Authorized
30,000,000 Shares; Issued 2,766,360 Shares at 1/31/00
and 27,663,597 Shares at 4/30/99 27,664 276,636
Additional Paid-In Capital 12,599,057 12,350,084
Deficit (12,958,929) (13,312,243)
--------- --------
Total Stockholders' Equity (Deficit) $(332,208) $(685,523)
--------- --------
Total Liabilities & Stockholders' Equity (Deficit) $2,986,704 $2,779,891
========= ========
See accompanying notes to consolidated financial statements
</TABLE>
<PAGE>
Jayark Corporation and Subsidiaries
Consolidated Statements of Operations
(Unaudited)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Three Months Ended Nine Months Ended
1/31/00 1/31/99 1/31/00 1/31/99
---------- ---------- ---------- -----------
Net Revenues $2,823,951 $3,316,028 $9,911,953 $11,624,040
Cost of Revenues 2,306,901 2,766,779 8,201,646 9,896,455
---------- ---------- ---------- -----------
Gross Margin 517,050 549,249 1,710,307 1,727,585
Selling, General and Administrative 452,134 424,422 1,273,926 1,333,992
---------- ---------- ---------- -----------
Operating Income 64,916 124,827 436,381 393,593
Other Income (Expense):
Interest Expense (27,755) (50,315) (83,067) (248,776)
Gain on Sale of Assets -- 203,432 -- 203,432
---------- ---------- ---------- -----------
Total Other Income (Expense) (27,755) 153,117 (83,067) (45,344)
Pre Tax Earnings 37,161 277,944 353,314 348,249
Provision for Income Taxes -- -- -- --
---------- ---------- ---------- -----------
Net Income $37,161 $277,944 $353,314 $348,249
========== ========== ========== ===========
Basic and Diluted Earnings per Common Share:
Net Income $.00 $.01 $.01 $.02
========== ========== ========== ===========
Weighted Average Common Shares:
Basic and Diluted 20,898,043 27,663,597 25,408,412 15,368,665
========== ========== ========== ===========
See accompanying notes to consolidated financial statements
</TABLE>
<PAGE>
Jayark Corporation and Subsidiaries
Consolidated Statement of Cash Flows
For the Nine Months Ended
(Unaudited)
<TABLE>
<CAPTION>
<S> <C> <C>
1/31/00 1/31/99
-------- --------
Cash Flows From Operating Activities:
Net Income $353,314 $348,249
Adjustments to Reconcile Earnings (Loss) to Cash
From Operating Activities:
Depreciation and Amortization of Property and Equipment 37,020 17,664
Amort of Excess of Cost Over Net Assets of Businesses Acq 18,379 16,020
Changes In Assets and Liabilities:
(Increase) Decrease in Accounts Receivable Net 619,165 30,732
(Increase) Decrease in Inventories (15,351) (164,247)
(Increase) Decrease in Other Current Assets (52,649) (11,055)
Increase (Decrease) in Accounts Payable (237,513) (487,685)
Increase (Decrease) in Accrued Expenses 5,328 (9,727)
Increase (Decrease) in Accrued Salaries 89,701 51,996
Increase (Decrease) in Accrued Interest -- 168,510
Increase (Decrease) in Other Liabilities 17,448 8,992
-------- --------
Net Cash Provided By (Used In) Operating Activities 834,842 (30,551)
Cash Flows From Investing Activities:
Purchases of Property and Equipment (259,155) (92,546)
Increase in Intangibles (95,354) --
-------- --------
Net Cash Provided By (Used In) Investing Activities (354,509) (92,546)
Cash Flows From Financing Activities:
Proceeds From Issuance of Long Term Debt 46,455 --
Proceeds From Issuance of Notes Payable 75,000 350,000
Payments of Notes Payable & Subordinated Debentures (142,920) (1,832,355)
Proceeds From Issuance of Common Stock -- 1,794,240
-------- --------
Net Cash Provided By (Used In) Financing Activities (21,465) 311,885
Net Increase (Decrease) in Cash and Cash Equivalents 458,868 188,788
Cash & Cash Equivalents at Beginning of Year 209,724 238,858
-------- --------
Cash & Cash Equivalents at End of Year $668,592 $427,646
======== ========
See accompanying notes to consolidated financial statements
</TABLE>
<PAGE>
Notes to Consolidated Financial Statements
(Unaudited)
1. Jayark Corporation ("Jayark" or "the Company") conducts its
operations through three wholly owned subsidiaries, AVES Audiovisual
Systems, Inc. ("AVES"), MED Services Corp. ("Med") and Fisher
Medical Corporation ("Fisher"), each of which constitute a business
segment for financial reporting purposes. The consolidated balance
sheet of Jayark Corporation and subsidiaries (the "Company"), as of
January 31, 2000, and the related consolidated statements of
operations and cash flows for the periods ended January 31, 2000 and
1999 are unaudited. The consolidated balance sheet as of April 30,
1999 has been derived from audited financial statements. The
consolidated financial statements should be read in conjunction with
the audited financial statements and footnotes for the year ended
April 30, 1999, included in the Company's report on Form 10-K.
2. The interim financial statements reflect all adjustments
(consisting of only normal and recurring accruals and adjustments)
which are, in the opinion of management, necessary to a fair
statement of the results for the interim periods presented. The
Company's operating results for any particular interim period may
not be indicative of results for the full year.
3. Certain reclassifications have been made in the 1999 financial
statements to conform them to and make them consistent with the
presentation used in the 2000 financial statements.
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Item 2.
Management's Discussion & Analysis of Results of Operations
Three Months Ended January 31, 2000 as compared to January 31, 1999
NET REVENUES
Consolidated Revenues of $2,824,000 for the three months ended
January 31, 2000, decreased $492,000, or 14.8%, as compared to the
same period in 1999, due to a decrease in sales at AVES. This
decrease was due to a decrease in direct sales as compared to the
prior year due to a number of one time sales opportunities in the
prior year, the dramatic drop in cost of video equipment over the
past year, and the hesitation of AVES' Broadcast customers to invest
in new broadcast equipment at this time, when this well educated
customer base knows that there is new digital equipment under
development.
COST OF REVENUES
Consolidated Cost of Revenues of $2,307,000 decreased $460,000,
or 16.6%, as compared to the same period last year. The decrease
was a result of the decrease in sales.
GROSS MARGIN
Consolidated Gross Margin of $517,000 was 18.3% of revenues, as
compared to $549,000, or 16.6%, for the same period last year.
Despite the 14.8% decrease in revenues, the Company's gross margin
only recognized a $32,000 decrease, or 5.8%, as compared to the same
period last year. This is due to the fact that the Company
experienced lower unit sales with higher profit margins that
resulted in a gross margin percentage increase as compared to the
prior year.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Consolidated Expenses of $452,000 increased $28,000 or 6.5% as
compared to the same period last year. Jayark Corporate expenses
increased $42,000 as compared to last year, despite a reduction in
the President's salary accrual, due to increased consultant fees,
professional fees and misc. fees and expenses related to the 1 for
10 Reverse Stock Split that was effective January 7, 2000. The new
subsidiary Fisher Medical Corporation incurred $33,000 in
miscellaneous operating expenses. Med's expenses decreased $39,000
primarily due to a decrease in legal fees. AVES' spending decreased
$8,000 as compared to the same period last year.
<PAGE>
OPERATING INCOME
Consolidated Operating Income of $65,000 decreased $60,000, or
47.9%, as compared to the same period last year. This decrease is a
result of the decrease in gross margin and increase in selling,
general and administrative expenses.
INTEREST EXPENSE
Consolidated Interest Expense of $28,000 decreased $23,000, or
44.8%. This decrease is primarily a result of a decrease in the
outstanding balance on the Company's line of credit.
GAIN ON SALE OF ASSETS
Consolidated Gain on Sale of Assets of $203,000 in the prior year
was a result of the termination of Med's Purchase and Sale,
Distribution and Custody Agreements with Vivax.
NET INCOME (LOSS)
Consolidated Net Income of $37,000 decreased as compared to net
income of $278,000 during the same period last year. The $241,000
decrease, or 86.6%, was primarily a result of the $203,000 gain on
sale of assets recognized in the prior year, combined with a
decrease in gross margin and an increase in selling, general and
administrative expenses as compared to the prior year.
<PAGE>
Nine Months Ended January 31, 2000 as compared to January 31, 1999
NET REVENUES
Consolidated Revenues of $9,912,000 for the nine months ended
January 31, 2000 decreased $1,712,000, or 14.7%, as compared to the
same period in 1999. Sales at AVES decreased $1,612,000 as compared
to the same period last year. This reduction was due to a decrease
in direct sales as compared to the prior year due to a number of one
time sales opportunities in the prior year, the dramatic drop in
cost of video equipment over the past year, and the hesitation of
AVES' Broadcast customers to invest in new broadcast equipment at
this time, when this well educated customer base knows that there is
new digital equipment under development. In addition to the
decrease at AVES, Med reported zero sales as compared to $100,000 in
prior year rental sales, as a result of the November 1998
termination of its distribution agreements with Vivax Medical
Corporation.
COST OF REVENUES
Consolidated Cost of Revenues of $8,202,000 decreased
$1,695,000, or 17.1%, as compared to the same period last year. The
decrease was a result of the decrease in sales.
GROSS MARGIN
Consolidated Gross Margin of $1,710,000 was 17.3% of revenues,
as compared to $1,728,000, or 14.9%, for the same period last year.
The Company experienced lower unit sales with higher profit margins
that resulted in a gross margin comparable to the prior year,
despite the decrease in revenues.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Consolidated Expenses of $1,274,000 decreased $60,000 or 4.5%
as compared to the same period last year. Jayark Corporate expenses
decreased $65,000, or 25.6%, due to a reduction in the President's
salary accrual along with decreases in professional fees and
insurance expense as compared to last year. Med's expenses
decreased $34,000, or 51.1%, from the prior year primarily as a
result of decreased professional fees. The new subsidiary Fisher
Medical Corporation incurred $33,000 in miscellaneous operating
expenses. AVES' spending increased $6,000, or .1%, as compared to
the same period last year.
OPERATING INCOME
Consolidated Operating Income of $436,000 increased $43,000, or
10.9%, as compared to the same period last year. This increase was
possible, despite the decrease in revenues, due to an increase in
the gross margin percentage along with the decrease in selling,
general and administrative expenses.
<PAGE>
INTEREST EXPENSE
Consolidated Interest Expense of $83,000 decreased $166,000, or
66.6%. This decrease was primarily a result of the decrease in
subordinated debt and notes payable attributed to the conversion of
debt in conjunction with the Rights Offering which expired on
October 30, 1998. In addition, there was a decrease on the
outstanding balance on the Company's line of credit as compared to
the prior year.
GAIN ON SALE OF ASSETS
Consolidated Gain on Sale of Assets of $203,000 in the prior year
was a result of the termination of Med's Purchase and Sale,
Distribution and Custody Agreements with Vivax.
NET INCOME (LOSS)
Consolidated Net Income of $353,000 increased $5,000, or 1.5%,
as compared to net income of $348,000 during the same period last
year. The increase was realized despite the decrease in revenues
as compared to the prior year and the gain on sale of assets in the
prior year, due to an increase in the gross margin percentage, a
decrease in selling, general and administrative expenses, and a
decrease in interest expense.
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LIQUIDITY AND CAPITAL RESOURCES
Consolidated open lines of credit available to the Company for
borrowing were $1,175,000 at January 31, 2000, and $1,250,000 at
April 30, 1999. It is the opinion of the Company's management that
operating expenses, as well as obligations coming due during the
next fiscal year, will be met primarily by cash flow generated from
operations and from available borrowing levels.
Working capital was $329,000 at January 31, 2000, compared with
$371,000 at April 30, 1999.
Net cash provided by operating activities was $834,000 in 2000 as
compared with net cash used of $31,000 in 1999.
Cash flows used in investing activities were $355,000 in 2000 as
compared to $93,000 in 1999.
Cash used by financing activities was $21,000 in 2000, compared to
cash provided of $312,000 in 1999 as a result of the issuance of
notes payable.
At a meeting of shareholders held on November 22, 1999, the
shareholders approved an amendment to Jayark's Certificate of
Incorporation providing a 1 for 10 Reverse Stock Split. On December
2, 1999, the Company filed a Certificate of Amendment with the
Delaware Secretary of State to effect the one for ten reverse stock
split. On January 7, 2000, the "Effective Time" or "Record Date",
each ten (10) issued and outstanding shares of Common Stock of the
Corporation, par value $.01 per share, were automatically converted
into one (1) validly issued, fully paid and nonassessable share of
Common Stock of the Corporation, par value $.01 per share. To avoid
the existence of fractional shares of common stock, stockholders who
would otherwise have been entitled to receive fractional shares of
common stock equal to one-half or more received one whole share. No
shares or scrip were issued to holders in respect of any fraction
less then one-half.
On January 5, 2000, the Company, through a newly formed, wholly
owned subsidiary, Fisher Medical Corporation ("Fisher"), entered
into an Asset Purchase Agreement with Fisher Medical, LLC, a company
that develops, manufactures and distributes medical supplies and
equipment for hospitals, nursing homes and individuals. Under the
terms of the agreement, Fisher purchased all of the assets of Fisher
Medical, LLC for cash of $215,000. Fisher then entered into
Employment Agreements with the two principals of Fisher Medical, LLC
to continue developing, manufacturing and distributing medical
products of Fisher. In consideration for the Employment Agreements,
the two principals also entered into Non-Disclosure and Non-
Competition Agreements. Fisher financed this purchase from the
Company's existing $1,250,000 revolving line of credit.
If Fisher can develop, manufacture and distribute medical supplies
and equipment, the income and cash flow could have a material affect
on the operating results of Jayark Corporation. There can be no
assurances that the Company will be successful in this venture.
<PAGE>
Year 2000
The Company used both internal and external resources to identify,
correct, upgrade or replace and test its IT systems and embedded
chip equipment for year 2000 compliance. To date, the Company has
not experienced any material adverse consequences associated with
the Year 2000 date change. The Company is not aware of any
remaining significant problems related to Year 2000 issues but is
continuing to monitor the status of suppliers and vendors. There
can be no assurance that the Company, or one of the entities it does
business with, will not experience a Year 2000 problem that could
have a material adverse effect on the Company.
<PAGE>
PART II. OTHER INFORMATION
ITEM 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
10(44) Asset Purchase Agreement dated January 5, 2000,
between Fisher Medical LLC and Fisher Medical Corporation.
10(45) Technology License dated January 5, 2000, between
Fisher Medical LLC and Fisher Medical Corporation.
10(46) Employment Agreement dated January 5, 2000, between
Fisher Medical Corporation and Stephen Fisher, Jr.
10(47) Non-Disclosure and Non-Competition Agreement dated
January 5, 2000, between Fisher Medical Corporation and
Stephen Fisher, Jr.
10(48) Employment Agreement dated January 5, 2000, between
Fisher Medical Corporation and Stephen Fisher, Sr.
10(49) Non-Disclosure and Non-Competition Agreement dated
January 5, 2000, between Fisher Medical Corporation and
Stephen Fisher, Sr.
(b) Report on Form 8-K.
1. Other Events
Asset Purchase Agreement between Fisher Medical
Corporation, a newly formed wholly owned subsidiary, and
Fisher Medical LLC on January 5, 2000.
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
JAYARK CORPORATION
Registrant
/s/ David L. Koffman March 13, 2000
David L. Koffman, President
Chief Executive Officer
/s/ Robert C. Nolt March 13, 2000
Robert C. Nolt
Chief Financial Officer
<PAGE>
EXHIBITS
EXHIBIT 10(44)
ASSET PURCHASE AGREEMENT
AGREEMENT made as of January 5th, 2000 between FISHER
MEDICAL, LLC, a limited liability company having its principal
place of business at Route 311, Patterson, New York 12563
("Seller") and FISHER MEDICAL CORPORATION, a Nevada corporation
having its principal place of business at 3OO Plaza Drive,
Vestal, New York 13850 ("Buyer").
R E C I T A L S:
A. Seller is a corporation which is engaged in, among
other things, the development, manufacture and distribution of a
product known as a disposable alternating pressure mattress
system and related products ("DAPM").
B. The technology behind DAPM is based on technology
developed by Trlby Innovative of Torrington, Connecticut
("Trlby"). Seller is in the process of obtaining patents for
said technology. Copies of the patent applications are attached
hereto as Exhibit "A". Pursuant to the terms of that certain
Product Development and Technology Transfer Agreement dated
November 30, 1999 between Trlby and Seller ("Trlby License"), a
copy of which is attached hereto as Exhibit "B". Trlby has
assigned to Seller the ownership rights to Trlby's technology for
a period of twenty years with successive automatic renewals of
five years each for the therapeutic support system marketplace.
C. Seller is in the process of obtaining the
trademark "Soft Touch" for the line of mattress products and the
trademark "BioClean" for the specialized top cover material
<PAGE>
(collectively the "Trademarks"), copies of applications for said
Trademarks are attached hereto as Exhibit "C".
D. Seller desires to sell and Buyer desires to
purchase all of the assets of Seller used in connection with the
DAPM product line, and to grant Buyer an exclusive license to use
the Trlby License and the Trademarks, which, when transferred
and licensed by Seller to Buyer, will enable Buyer to conduct the
DAPM business and manufacture and sell the DAPM product line
presently conducted and sold by Seller.
NOW, THEREFORE, in consideration of the mutual
covenants contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Purchase, Sale and Description of Assets. As of the
closing date hereof, Seller will sell, transfer and deliver to
Buyer, and Buyer will purchase and take delivery from Seller,
free and clear of all liens, security interests, liabilities,
claims, obligations and encumbrances of any kind, the assets set
forth below ("Assets"):
(a) All computer software, computer
programs, computer disks, source codes and directions related to
the start-up, maintenance, repair and continuous operation of the
manufacturing process for the DAPM product line, if any.
(b) All procurement specifications, shop
drawings, mechanical drawings, engineering reports, production
schedules, and all other books, records, research files, research
notes and inventory notes relating to the DAPM product line.
<PAGE>
(c) All equipment used in the manufacture and
testing of the DAPM product line and all demonstration units,
exhibition backdrops sale literature and other promotional
materials.
(d) All customer lists and supplier lists,
including present and former customers and suppliers and their
telephone numbers and mailing addresses, contact persons and
business files used in or relating to the DAPM product line.
(e) All contracts or agreements related or
necessary to conduct the manufacture of the DAPM product line
including warranties and guaranties from suppliers, vendors,
manufacturers and subcontractors.
(f) All inventory, finished goods and raw
materials owned by Seller on the closing date.
(g) Exclusive license and use trademarks.
(h) Any and all other assets of Seller used
or required in the operation of the DAPM business, as listed on
Exhibit "D".
2. Technology License. As of the closing date Seller
will execute and deliver to Buyer an exclusive irrevocable
technology license in the form attached hereto as Exhibit "E"
("Technology License").
3. Purchase Price. The total purchase price for all
of the above is $215,000.00 payable in cash or by check at
closing.
4. Representations and Warranties of Seller. As an
<PAGE>
inducement to Buyer's entering into this Agreement and its
consummation of all of the transactions and other matters herein
contemplated, Seller represents, warrants and agrees to and with
Buyer as follows:
(a) Seller is a limited liability company duly
formed, validly existing and in good standing and has all
requisite power to carry on its business as now conducted, and is
entitled to own the Assets and to carry on its business at and in
the places where the business of Seller is conducted. The Seller
has all requisite power and all authority and approval required
to execute and deliver this Agreement and to perform fully the
Seller's obligations hereunder. Seller shall provide a copy of a
resolution authorizing the sale to Buyer at closing.
(b) Seller has filed or will file with the
appropriate federal, state and local governmental agencies all
tax returns (including, without limitations, income tax,
franchise tax, excise tax and sales tax returns) required by such
agencies to be filed by it, and has paid or will pay all taxes,
interest and penalties, if any, shown to be due by such returns.
Seller has no knowledge of any tax deficiencies or liens
whatsoever which might be or have been asserted against Seller
which would impair Seller's ability to convey the Assets to the
Buyer. Seller shall be responsible for any current or future
taxes or tax liability related to its performance of ongoing
contracts or work in progress, if any.
(c) There is no investigation, action, proceeding
or litigation pending against Seller relating to the Assets or
against the Assets or the pertaining to the items set forth in
the Technology License before any court by any person(s) or
public or private entities, or before or by any government
department, commission, board, agency or instrumentality, nor
<PAGE>
does Seller know, or have reasonable grounds to know, of any
threatened investigation, action, proceeding or any basis
therefor.
(d) There are no outstanding judgments, orders,
injunctions, settlements or decrees, whether legal or
administrative or in arbitration or other form of dispute
resolution, against Seller and Seller is not in default of any
judgment, order, injunction, settlement or decree.
(e) There are no private claims for damages or
injuries by any person(s), supplier, inventor, patent holder,
copyright holder or others, against the Seller relating to the
Assets, nor does Seller know or have reasonable grounds to
believe such claim might be asserted.
(f) The execution, delivery and consummation of
this Agreement does not conflict with or result in a breach of
the terms and conditions of any material indenture, contract or
agreement to which Seller or the Assets may be subject, or of the
Operating Agreement of Seller or of the Trlby License.
(g) Seller has not mortgaged, pledged or
subjected to lien, charge, security interest, set-off, exchange
or encumbrance any of the Assets. Between the date of this
Agreement and the closing date Seller will not do any of the
things listed herein without the prior written consent of Buyer.
(h) Seller has good and marketable title to all
the Assets. Upon sale the Assets will not be subject to any
mortgage, pledge, lien, charge, set-off, exchange, claim, royalty
or encumbrance of any nature, except as referred to herein.
<PAGE>
(i) Seller has the absolute, undisputed rights to
the Trlby License;
(ii) there exist no restrictions on the use or transfer of any
such item; (iii) there are no interferences, challenges,
proceedings or infringements suits pending or threatened with
respect to any such item; and (iv) neither Seller or Trlby has
granted a license to any other party with respect to any such
item; and (v) the Technology License will not be subject to any
other license or any option, defense, pledge, lien, charge, set-
off, exchange, claim, royalty, agreement, restriction or
encumbrance of any nature, except as referred to herein; and (vi)
The term of the Trlby License ends November 30, 2019; and (vii)
there are automatic successive extensions of the Trlby License
for a period of five years each; and (viii) the fee for the use
of the Trlby License is a 5% royalty on the Net Sales (as defined
in Paragraphs 5, 6, and 7 of the Trlby License) of products using
the Trlby technology and a monthly fee for consulting services as
set forth in Schedule C to the Trlby License.
(j) All of the Assets are and as of the closing
date will be located only at Seller's premises, will be
segregated from Seller's other assets, will be fully insured, and
will not be removed therefrom without the prior written consent
of Buyer.
(k) On the closing date all necessary action in
connection with the approval of this Agreement by Seller and the
authorization of the transactions contemplated hereby shall have
been taken and evidence of same shall be delivered to Buyer.
(l) The negotiations between the parties relative
to this Agreement and the transactions contemplated hereby have
been carried on by the parties hereto directly with one another
in such manner, and without the intervention of any third party,
<PAGE>
as not to give rise to any valid claim against any of the parties
hereto for a brokerage commission, a finder's fee or other like
payment.
(m) All lists, including customers, vendors,
suppliers and contractors, are complete, accurate and represent a
full disclosure of such information.
(n) No representation or warranty made by Seller
in this Agreement, nor any statement or certificate furnished or
to be furnished to Buyer pursuant hereto or in connection with
the transactions or other matters contemplated herein, contains
or will contain any untrue statement of a material fact, or omit
or will omit to state a material fact necessary to make the
statements contained therein not misleading.
(o) All statements contained in any certificate
or other instrument delivered by or on behalf of the Seller
pursuant to this Agreement, or in connection with any of the
transactions contemplated herein, shall also be deemed
representations and warranties by Seller hereunder. All
representations, warranties and agreements made by Seller
hereunder, or pursuant hereto, shall be enforceable against the Seller by the
Buyer and its assigns and shall not be discharged or dissolved
upon, but shall expressly survive the closing.
5. Buyer's Representations and Warranties. As an
inducement to Seller to enter into this Agreement and to
consummate all of the transactions and other matters herein
contemplated, Buyer represents, warrants and agrees to and with
Seller as follows:
(a) Buyer is a corporation duly organized and
validly existing under the laws of Nevada.
<PAGE>
(b) Buyer has full right, power and authority to
enter into all of the arrangements contemplated hereunder and to
purchase from Seller the Assets and enter into the Technology
License and will not, by the consummation of these transactions
and other matters herein contemplated, be in violation or breach
of any agreement, understanding or arrangement which it is a
party.
(c) No representation or warranty made by Buyer
in this Agreement, nor any statement or certificate furnished or
to be furnished to Seller pursuant hereto or in connection with
the transactions or other matters contemplated herein, contains
or will contain any untrue statement of a material fact, or omit
or will omit to state a material fact necessary to make the
statements contained therein not misleading.
(d) The negotiations relative to this Agreement
and the transactions contemplated hereby have been carried on by
the parties hereto directly with one another in such
manner, without the intervention of any third party, as not to
give rise to any valid claim against any of the parties hereto
for a brokerage commission, a finder's fee or other like payment.
(e) All statements contained in any certificate
or other instrument delivered by or on behalf of Buyer pursuant
to this Agreement, or in connection with any of the transactions
contemplated herein, shall be deemed representations and
warranties by Buyer hereunder. All representations, warranties
and agreements made by Buyer hereunder, or pursuant hereto, shall
be enforceable by Seller against Buyer, shall not be discharged
or dissolved upon, but shall expressly survive the closing.
<PAGE>
6. Conditions Precedent to Seller's Obligations. All
obligations of the Seller under this Agreement are expressly
subject to and contingent upon the fulfillment, prior to or at
the closing, of each of the following conditions precedent, any
one or more of which Seller may waive in writing for the express
purpose of closing:
(a) Buyer's representations, warranties and
agreements shall be true at the time of closing as though such
representations, warranties and agreements were made at such
time.
(b) Buyer shall have performed and complied with
all agreements, undertakings and conditions required of it under
this Agreement to be performed or complied with prior to or at
the closing.
(c) Buyer shall cause to be canceled and
delivered to Seller at closing the promissory notes more fully
described in Exhibit "F" attached hereto ("Notes").
(d) At the closing, simultaneously with the
closing of the transactions contemplated hereunder, all of the
documents to be executed as provided hereunder, shall have been
executed and delivered.
(e) Buyer shall have tendered the purchase price
to be paid hereunder.
(f) Buyer shall have entered into employment
agreements with both (i) Stephen M. Fisher, Sr. and (ii) Stephen
M. Fisher, Jr., in substantially the form attached hereto as
Exhibit "G" (collectively the "Employment Agreement").
7. Conditions Precedent to Buyer's Obligations. All
<PAGE>
obligations of the Buyer under this Agreement are expressly
subject to and contingent upon the fulfillment, prior to or at
the closing, of each of the following conditions precedent, any
one or more of which Buyer may waive in writing for the express
purpose of closing:
(a) Seller's representations, warranties and
agreements shall be true at the time of closing as though such
representations, warranties and agreements were made at such
time.
(b) Seller shall have performed and complied with
all agreements, undertakings and conditions required of it under
this Agreement to be performed or complied with prior to or at
the closing.
(c) Seller shall pay all amounts due and owing
under the Note.
(d) At closing, simultaneously with the closing
of the transactions contemplated hereunder, all of the documents
to be executed as provided hereunder, shall have been executed
and delivered.
(e) Execution of the Employment Agreement.
(f) Execution of a confidentiality and non-
compete agreement by (i) Stephen Fisher, Sr. and (ii) Stephen
Fisher, Jr., in substantially the form attached hereto as Exhibit
"H" ("Confidentiality Agreement").
(g) Consent of Trlby if required.
8. Risk of Loss. Seller assumes all risk of
destruction, loss or damage to the Assets due to fire, storm,
flood, theft or other casualty, up to the time of closing. If
<PAGE>
any such material destruction, loss or damage to the Assets
occurs and Seller cannot to Buyer's satisfaction (with the prompt
exercise of due diligence) repair and satisfactorily restore or
replace the same prior to the closing, Buyer shall have the right
to terminate this Agreement, with no further obligation or
liability to the Seller.
9. Due Diligence. Upon execution of this Agreement,
Seller shall deliver to Buyer copies of the following documents:
(i) any documents or correspondence related to the Trlby License;
(ii) all documentation related to the Trademarks; (iii) all
documentation related to the patents referenced in Recital B
above; and (iv) any other documents reasonably requested by
Buyer.
10. Closing Date. The closing date hereunder and the
transfer of ownership of the Assets and the granting of the
Technology License shall take place upon the execution of this
Agreement. At closing the parties will duly execute and deliver
all checks, instruments, assignments, documents, records,
certificates or other papers reasonably required to carry out the
terms, provisions and intention of this Agreement. Possession and
custody of the Assets will be delivered to Buyer at the closing.
At the closing Seller will execute and deliver to Buyer a bill
(or bills) of sale for all of the Assets. Such bill(s) of sale
will contain customary warranties and affidavits of title, and
will be subject to no exclusions, exceptions or provisions.
11. Compliance with Bulk Sales Law. Seller shall
fully comply with any applicable Bulk Sales Law, or applicable
provisions of the Uniform Commercial Code, to the extent it is
applicable to the transactions contemplated by this Agreement,
<PAGE>
and Seller agrees to indemnify and hold harmless Buyer from and
against any loss, cost, damage, liability or expense (including
reasonable attorneys' fees and expenses) at any time resulting
from any lien or right that any creditor or claimant may have or
may establish based on failure to comply with any applicable Bulk
Sales Law or applicable provisions of the Uniform Commercial Code
in connection with the transactions contemplated by this
Agreement. Buyer shall immediately notify in writing Seller of
any such lien or right, and Seller shall have the right to
participate, at Seller's expense, in any litigation or settlement
proceedings with respect to any such lien or right.
12. Indemnification by Seller. To the fullest extent
permitted by law, the Seller shall be solely responsible for and
hereby agrees to defend and indemnify and hold Buyer, its agents,
employees, successors and assigns free and harmless from any and
all liabilities, obligations, settlements, losses, taxes, claims,
damages, penalties, payments, actions, lawsuits, judgments,
costs, expenses or disbursements of any kind or nature whatsoever
(including reasonable attorneys' fees), which may be imposed on,
incurred by or asserted against Buyer, its agents, employees,
successors or assigns relating to or arising out of or resulting
from any breach or infringement of any patents, trademarks, trade
names, or service marks, or any applications pending therefor,
any breach or infringement of copyrights or other intellectual
property rights transferred by the Seller to the Buyer under this
Agreement. To the fullest extent permitted by law, the Seller
shall be solely responsible for and hereby agrees to defend,
indemnify and hold Buyer, its agents, employees, successors and
assigns free and harmless from any and all liabilities,
<PAGE>
obligations, settlements, losses, taxes, claims, damages,
penalties, payments, actions, lawsuits, judgments, costs,
expenses or disbursements of any kind or nature whatsoever
(including reasonable attorneys' fees) which may be imposed on,
incurred by or asserted against Buyer, its agents, employees,
successors or assigns relating to or arising out of or resulting
from the transfer and delivery of the Assets arising from any
action, inaction or occurrence prior to the date of closing.
13. Headings. The headings or captions preceding the
text of each numbered section of this Agreement are inserted as a
matter of convenience in reference only and are not in any manner
to be employed or taken into account in the construction or
enforcement of this Agreement.
14. Expenses. Each party hereto will bear the
expenses incurred by it under or in connection with this
Agreement.
15 Entire Understanding. This Agreement, the
documents to be executed hereunder, and the schedules attached
hereto constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof and supersede all prior
agreements, understandings, negotiations and discussions, whether
oral or written, of the parties pertaining to the subject matter
hereof.
16. Benefit. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
<PAGE>
17. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
18. Governing Law and Severability. The validity,
interpretation and performance of this Agreement will be
controlled by and construed under the laws of the State of New
York without reference to its conflict of laws provisions. If
any provision of this Agreement is held invalid or unenforceable
for any reason, the parties agree that such invalidity will not
affect the validity of the remaining provisions of this Agreement,
and further agree to substitute for the invalid provision a valid
provision which most closely approximates the intent and economic
effect of the invalid provision.
19. Non-Waiver. The failure of either party at any
time to require performance of the other party of any provision
of this Agreement shall not affect in any way the full right to
require such performance at any time thereafter nor will the
waiver by either party of a breach of any provision of this
Agreement be taken or held to be a waiver of the provision
itself.
20. Notices. Any notice, request, demand or other
communication required or permitted under this Agreement will be
deemed to be properly given and effective if given in writing:
(a) Upon delivery, if given in person with a signed
receipt; or
(b) By telegram, telex or fax provided
<PAGE>
confirmation thereof is sent to the party being notified within
three (3) days of same; or
(c) If given by registered or certified mail,
postage prepaid, return receipt requested, or overnight carrier,
on the date of delivery specified in the receipt therefor, all
such notices will be addressed to the party at its address set
forth above or to such other address as the parties may from time
to time designate in writing.
IN WITNESS WHEREOF, Seller and Buyer have caused this
Agreement to be executed by their respective officers.
SELLER:
FISHER MEDICAL LLC
By: /s/ Stephen Fisher
Name/Title: Managing Member
BUYER:
FISHER MEDICAL CORPORATION
By: /s/ David L. Koffman
Name/Title: Vice President
<PAGE>
EXHIBIT "A"
(Copies of patent applications)
To be delivered after Closing.
<PAGE>
EXHIBIT "B"
(Copy of Trlby License)
<PAGE>
EXHIBIT "C"
(Copies of Trademark applications)
<PAGE>
EXHIBIT "D"
(List of Assets)
<PAGE>
EXHIBIT "E"
(Form of License)
<PAGE>
EXHIBIT "F"
(List of Notes)
DATE OF NOTE AMOUNT
March 10, 1999 $25,000
June 29, 1999 $35,000
August 26, 1999 $25,000
September 14, 1999 $15,000
October 4, 1999 $25,000
November 3, 1999 $15,000
November 18, 1999 $10,000
December 9, 1999 $50,000
(Interest has accrued on the Notes in the amount of $15,000.00)
<PAGE>
EXHIBIT "G"
(Form of Employment Agreement)
<PAGE>
EXHIBIT "H"
(Form of Confidentiality and Non-Disclosure Agreement)
<PAGE>
EXHIBIT 10(45)
TECHNOLOGY LICENSE
This Technology License ("License") is made this 5th day of
January, 2000 between FISHER MEDICAL LLC, a Limited Liability
Company having its principal place of business at 1283 Route
311, Patterson, New York 12563 ("Licensor") and FISHER MEDICAL
CORPORATION, a Nevada corporation having its principal place of
business at 300 Plaza Drive, Vestal, New York 13850 ("Licensee").
R E C I T A L S:
Licensor and Licensee are parties to that certain Asset
Purchase Agreement dated of even date herewith ("Agreement").
Pursuant to the terms of the Agreement, Licensor has agreed
to convey to Licensee all of the assets of Licensor used in
connection with the development, manufacture and distribution of
a product know as disposable alternating pressure mattress system
("DAPM").
The technology behind DAPM is based on technology developed
by Trlby Innovative of Torrington Connecticut ("Trlby").
Trlby has assigned Licensor all rights, title and interest
in and to the Trlby's technology for use in the therapeutic
support system marketplace under a 20 year agreement with
automatic five year extensions, a copy of which is attached
hereto as Exhibit "A" ("Trlby License).
Licensor is in the process of obtaining a patent on the
technology (collectively "Patent") and the trademark "SoftTouch"
for the line of mattress products and "BioClean" for the
specialized top cover material ("Trademarks").
<PAGE>
Licensor desires to grant and Licensee desires to acquire
the exclusive right to use the Trlby License, the Patent and the
Trademarks and any and all other trademarks, patents or
technology associated with the DAPM.
NOW, THEREFORE, in consideration of the mutual
covenants contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Exclusive License. The Licensor hereby irrevocably
grants to the Licensee the exclusive right and license, in the
United States of America and its territories and in any and all
international markets, to manufacture, have manufactured, use,
sell and have sold products containing the improvements covered
by the aforesaid: (a) Trlby License, (b) Patent and (c)
Trademarks.
2. Term. The term of this License Agreement shall be five
(5) years ("Initial Term") with an option by Licensee to extend
the term for an additional five (5) year period ("Option Term").
Licensee shall exercise its option to extend in writing to
Licensor 30 days prior to the expiration of the Initial Term. In
addition, Licensee shall have the right to exercise or cause
Licensor to exercise any extension rights under the Trlby
License.
3. Payments to Licensor. Licensee agrees to pay the
following sums:
(a) Licensee shall pay to Licensor on a quarterly basis a royalty
fee equal to five percent (5%) of the Gross Income received for
the prior quarter with respect to the sale rental of DAPM
("Licensor Royalty"); and (b) Licensee shall pay directly to
Trlby royalties as set forth in Paragraphs 5, 6 and 7 of the
Trlby License ("Trlby Royalty") (the Licensor Royalty and Trlby
Royalty may be collectively referred to herein as "Royalties");
<PAGE>
and (c) Licensee shall pay directly to Trlby the fee for
consulting services in accordance with Schedule C of the Trlby
License ("Consulting Fee"); and (d) Licensee shall pay to
Licensor a fee ("Fee") payable as follows: (i) an amount equal to
twenty percent (20%) of the Accumulated Net Earnings of Licensee
payable to Licensor upon the exercise by Licensee to extend this
License and commencement of the Option Term or (ii) in the event
that the assets of Licensee are sold to a third party and this
Technology License is sold to said party as part of the
transaction, then Licensor shall be paid a fee equal to twenty
percent of the Net Sale Price in the transaction.
4. Fees and Defaults. Licensor warrants and
represents that all fees and other charges due for the Trlby
License and Trademarks have been paid in full as of the date
hereof. At Licensee's request, Licensor shall obtain an estoppel
certificate from Trlby in form reasonably acceptable to Licensee.
Licensor shall promptly notify Licensee in writing of any and all
fees or other charges due for the Trlby License or the Trademarks
and provide Licensee with original invoices or similar
documentation before the same shall be due and payable. Licensee
shall have the option and right to pay such fees and expenses as
may be necessary to keep the Trlby License and Trademarks in full
force and effect during the term hereof. In addition Licensor
shall provide Licensee with copies of all notices of default and
Licensee shall have the option, in its sole and absolute
discretion to cure such defaults.
5. Definitions. The following defined terms
contained herein shall have the meanings as set forth below:
Gross Income shall mean payments received for sale or
rental to customers (excluding any shipping and insurance
charges, sales or transaction taxes, or third party handling
charges) less any credits, returns, price reductions, trade
discounts, sales commissions, rebates or returned checks.
<PAGE>
Accumulated Net Earnings shall mean the net income of
Licensee after taxes calculated on a GAP basis less interest
payments of the Fee payment, Consulting Fee, Royalties and
administrative fees.
Net Sale Price shall mean the sale price in a sale as
defined in paragraph (3)(c)(ii) above less closing costs,
attorneys' fees, outstanding debt and payment of the Fee).
6. Indemnity. The Licensor shall indemnify the
Licensee against all damages, costs and expenses, including but
not limited to reasonable attorneys' fees, as a result of the
infringement by Licensee of any Patents by the manufacture or
sale of DAPM products containing the patented improvements
covered by this License Agreement. This indemnity shall survive
the expiration or earlier termination of this License Agreement.
7. Notices. Any notice, request, demand or other
communication required or permitted under this Agreement will be
deemed to be properly given and effective if given in writing:
(a) Upon delivery, if given in person with a
signed receipt; or
(b) By telegram, telex or fax provided
confirmation thereof is sent to the party being notified within
three (3) days of same; or
(c) If given by registered or certified mail,
postage prepaid, return receipt requested, or overnight carrier,
on the date of delivery specified in the receipt therefor, all
such notices will be addressed to the party at its address set
forth above or to such other address as the parties may from time
to time designate in writing.
8. Headings. The headings or captions preceding the
<PAGE>
text of each numbered section of this Agreement are inserted as a
matter of convenience in reference only and are not in any manner
to be employed or taken into account in the construction or
enforcement of this Agreement.
9. Expenses. Each party hereto will bear the
expenses incurred by it under or in connection with this
Agreement.
10. Entire Understanding. This Agreement constitutes
the entire agreement between the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or
written, of the parties pertaining to the subject matter hereof.
11. Benefit. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
12. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
13. Governing Law and Severability. The validity,
interpretation and performance of this Agreement will be
controlled by and construed under the laws of the State of New
York without reference to its conflict of laws provisions. If
any provision of this Agreement is held invalid or unenforceable
for any reason, the parties agree that such invalidity will not
affect the validity of the remaining provisions of this
Agreement, and further agree to substitute for the invalid
provision a valid provision which most closely approximates the
intent and economic effect of the invalid provision.
14. Non-Waiver. The failure of either party at any
<PAGE>
time to require performance of the other party of any provision
of this Agreement shall not affect in any way the full right to
require such performance at any time thereafter nor will the
waiver by either party of a breach of any provision of this
Agreement be taken or held to be a waiver of the provision
itself.
IN WITNESS WHEREOF, the parties have executed this
Technology License.
LICENSOR:
FISHER MEDICAL LLC
By: /s/ Stephen Fisher
Name/Title: Managing Member
LICENSEE:
FISHER MEDICAL CORPORATION
By: /s/ David L. Koffman
Name/Title: Vice President
<PAGE>
EXHIBIT 10(46)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into
as of January 5, 2000 between FISHER MEDICAL CORPORATION, a
Nevada corporation (the "Company"), and Stephen M. Fisher,
Jr.(the "Employee");
1. Employment. The Employee shall be employed by the
Company in a capacity to be determine by the Company. Employee
shall be responsible for oversight of all operations and the
development of short term and long term business plans, in
addition to such other duties and responsibilities as the Board
of Directors of the Company (the "Board") shall designate as are
not inconsistent with the Employee's position with the Company.
2. Term. This Agreement shall be for the period
commencing on the date hereof (the "Effective Date") and ending
five years from the Effective Date; subject to an automatic
extension of five additional years if that certain Technology
License between Fisher Medical LLC and the Company is extended
for an additional five year term.
3. Salary. The Company agrees to pay the Employee during
the term of this Agreement an annual base salary at the rate of
$60,000 per year, payable in conformance with the Company's
standard payroll practices. Participation in bonus, retirement,
and other employee benefit plans and in fringe benefits shall not
reduce the base salary payable to the Employee under this Section
3.
4. Bonuses. At the end of each fiscal year of the
Company, Employee shall receive an annual bonus, which shall be
paid in an amount to be established by the Company based upon the
year end performance of the Company.
5. Participation in Retirement and Employee Benefit Plans.
The Employee shall be entitled to participate in any plan of the
Company relating to stock options, stock purchases, pension,
thrift, profit sharing, life insurance, medical coverage,
education or other retirement or employee benefits that the
Company may adopt or maintain from time to time for the benefit
of its executive employees. In addition, the Employee shall be
entitled to participate in any other fringe benefits that become
applicable to the Company's executive employees. Nothing in this
Agreement shall limit the Company's ability to adopt, terminate
or amend any such benefits at any time; provided however, the
aggregate amount of benefits provided to the Employee shall not
be decreased from the amount being provided on the date hereof.
6. Expenses. Employee shall be entitled to reimbursement
for all reasonable and necessary business expenses he incurs in
connection with fulfilling his duties hereunder, subject to
Employee providing Company with written documentation of such
expenses.
<PAGE>
7. Termination. The Employee's employment may be
terminated under the following circumstances:
(a) Death. The Employee's employment hereunder shall
terminate upon his death.
(b) Disability. The Employee's employment hereunder may be
terminated by the Company if, as a result of physical
or mental illness or incapacity, the Employee is unable
to or fails to perform the essential functions of his
position (despite reasonable accommodation from the
Company) (i) for a period of 3 consecutive months, (ii)
for a period of 6 months in any 12 month period, or
(iii) at such earlier time as the Employee submits
satisfactory medical evidence that he has a physical or
mental illness or incapacity that will likely prevent
him from returning to the performance of his work
duties for 6 months or longer. All time periods
contained in this Section shall be in addition to any
state or federally required leaves of absence for
serious medical conditions. Termination by the Company
of the Employee's employment for "Disability" shall
mean termination pursuant to this Section.
(c) Cause. The Company may terminate Employee's employment
for Cause. For purposes of this Agreement, "Cause"
shall mean (1) a willful or grossly negligent failure
by the Employee to substantially perform his duties
with the Company (other than any such failure resulting
from his incapacity due to physical or mental illness
or incapacity as determined by the Board); (2)
Employee's habitual drunkenness or the commission of a
felony; (3) the commission of any material act of
dishonesty against the Company; or (4) the willful
engaging by the Employee in conduct that is materially
injurious to the Company.
(d) Date of Termination, Etc.. "Date of Termination" shall
mean (1) if the Employee's employment is terminated by
his death, the date of his death; (2) if the Employee's
employment is terminated by the Company for Disability,
thirty (30) days after Notice of Termination is given;
(3) if the Employee's employment is terminated by the
Company for Cause, the date specified in the Notice of
Termination (which shall not be less than 10 days from
the date such Notice of Termination is given), and (4)
if the Employee's employment is terminated for any
other reason, the date specified in the Notice of
Termination.
8. Termination by Employee.
If Employee voluntarily elects to terminate this
Agreement for any reason, he shall give the Company at least
sixty (60) days= prior written notice of his decision to
<PAGE>
terminate. At the end of such sixty (60) days, all rights,
duties and obligation of both parties under the Agreement shall
cease.
9. Compensation Upon Disability, Termination. The
Employee shall be entitled to the following benefits during a
Disability Period (as defined below), or upon termination of his
employment, as the case may be, provided that such period of
termination occurs during the term of this Agreement:
(a) During the period that the Employee is unable to or
fails to perform his full-time duties with the Company
as a result of incapacity due to physical or mental
illness or incapacity as determined by the Board (a
"Disability Period"), he shall continue to receive his
base salary at the rate in effect at the commencement
of any such period, together with all compensation
payable to him under the Company's disability plan or
program or other similar plan during such period, until
his employment is terminated.
(b) If the Employee's employment is terminated by the
Company for Cause the Company shall pay him his full
base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given,
plus all other amounts to which he is entitled under
any compensation plan of the Company, and the Company
shall have no further obligations to him under this
Agreement.
10. No Assignments.
(a) This Agreement is personal to each of the parties
hereto. No party may assign or delegate any rights or
obligations hereunder without first obtaining the
written consent of the other party hereto.
(b) If the Employee should die, payments due to the
Employee at the time of his death hereunder shall be
paid in accordance with the terms of this Agreement to
his devisee, legatee or other designee or, if there is
no such designee, to his estate, unless otherwise
provided herein. There shall be no death benefits
hereunder.
11. Notice. For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be
in writing and shall be deemed to have been duly given when
delivered or mailed by United States certified or registered
mail, return receipt requested, postage prepaid, to the
appropriate address set forth on the signature page hereto.
<PAGE>
12. Noncompetition. The Employee agrees to execute a Non-
Disclosure and Non-Competition Agreement in form reasonably
acceptable to Company.
13. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by the Employee
and such officer as may be specifically designated by the Board.
No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made
by either party that are not expressly set forth in this
Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of
the State of New York without regard to its conflicts of law
principles.
EMPLOYER:
FISHER MEDICAL CORPORATION
By: /s/ David L. Koffman
Name/Title: Vice President
EMPLOYEE:
/s/ Stephen M. Fisher, Jr.
<PAGE>
EXHIBIT 10(47)
NON-DISCLOSURE AND NON-COMPETITION
AGREEMENT
1. Background. Fisher Medical Corporation ("Company") has
acquired the assets of Fisher Medical, LLC ("LLC"). The
undersigned employee ("Employee") was a principal of the LLC and
is now an employee of the Company. Company is a Nevada
corporation which is engaged in, among other things, the
development, manufacture and distribution of a product known as a
disposable alternating pressure mattress system and related
products ("DAPM"). The Company agrees to employ the Employee
expressly subject to and conditioned upon the terms and
conditions set forth in this Agreement, and said terms and
conditions are a material condition of Employee's employment.
2. Disclosure of Confidential Information. The Employee
acknowledges that, upon execution of this Agreement and by reason
of his involvement with or employment by Fisher Medical LLC or
the Company, the Employee may have or will have knowledge of
trade secrets, confidential and proprietary information of the
Company ("Confidential Information").
3. Covenants, Agreements, Representations and Warranties of
the Employee. In consideration of Employee's employment with the
Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Employee covenants, agrees, represents and warrants as follows:
1. All of the Confidential Information is a valuable asset of
the Company and is, will be, and shall at all times remain, the sole and
exclusive property of the Company.
2. The Employee shall, at all times, hold the
Confidential Information as secret.
3. The Employee shall neither directly nor indirectly cause or
permit the exploitation, copying or summarizing of any of the Confidential
Information, except in the performance of Employee's duties for the Company
or as otherwise directed by the Company.
4. The Employee understands that the Company intends to sell
and distribute its products at various points throughout the United States
and abroad, and that the Employee must maintain and preserve all of the
Confidential Information and knowledge thereof as unavailable to the Company's
competitors, the industry and the general public in order to protect the
Company's business, competitive position and good will.
<PAGE>
5. The Company derives its competitive advantage in the market
place by maintaining the Confidential Information and knowledge thereof as
secret and unavailable to the Company's competitors and the public.
6. Upon termination of the Employee's employment with the Company,
with or without cause, the Employee shall immediately deliver or cause to be
delivered to the Company all of the Confidential Information in the Employee's
possession or control including, without limitation, originals and copies of
books, catalogs, sales brochures, customer lists, prospect lists, price lists,
employee manuals, operations manuals and other documents reflecting or
referencing the Confidential Information, as well as all other materials
furnished to or acquired by the Employee as a result of or during the course of
the Employee's employmentby or association with the Company or by
Fisher Medical, LLC.
7. For the greater of a period of one year after termination of
the Employee's employment with the Company, with or without cause, or so long
as the Licence is in full force and effect, the Employee shall not directly
or indirectly (i) interfere with the relationship of the Company and any of its
customers, employees, agents, representatives or suppliers and (ii) directly or
indirectly, individually or in combination or association with any other person
or entity, divulge or disclose to any third party any of the Confidential
Information without, in each instance, the prior written consent of the Company.
8. For the greater of a period of one year after the termination
of the Employee's employment with the Company, with or without cause, or
as long as the License is in full force and effect, the Employee shall not
directly or indirectly own, manage, operate, be employed by, participate or be
connected in any manner with the ownership, management or control of, any
business similar to the type of business in which the Company is engaged as
of the date of such termination, within any of the geographic locations in
which the Company is operating or proposes to operate.
9. The restrictions and limitations contained in this paragraph 3
are reasonable in scope and duration and are necessary to protect the Company's
proprietary interest in its Confidential Information and to preserve for the
Company, the competitive advantage derived from maintaining that Confidential
Information as secret.
10. In the event that any of the restrictions and limitations
contained in this paragraph 3 are deemed to exceed the time or geographic
limitations permitted by applicable law, then such provisions shall be reformed
to the maximum time and geographic limits permitted by applicable law.
<PAGE>
11. The Employee shall deal with the Confidential Information
strictly in accordance with the terms of this Agreement.
12. The Employee's representations and warranties set forth herein
shall be revived continuously throughout the Employee's employment by the
Company.
13. The Company is materially relying upon each of the Employee's
covenants, agreements, representations and warranties in employing Employee.
4. Remedies. The Employee acknowledges and agrees that it is
impossible to measure in money, the damages which will accrue to
the Company if the Employee shall breach or be in default of any
of the Employee's covenants, agreements, representations or
warranties set forth in this Agreement. Accordingly, if any
action or proceeding is instituted by or on behalf of the Company
to enforce any term of this Agreement, the Employee hereby waives
any claim or defense thereto that Company has an adequate remedy
at law or that the Company has not been, or is not being,
irreparably injured thereby. The rights and remedies of the
Company pursuant to this paragraph 4 are cumulative, in addition
to, and shall not be deemed to exclude any other right or remedy
which the Company may have pursuant to this Agreement or
otherwise at law or in equity.
5. Attorneys' Fees. If the Employee breaches or defaults in
the performance of the covenants, agreements, representations or
warranties described in this Agreement, then in addition to any
and all rights and remedies which the Company may have against
the Employee, the Employee will also be liable to pay the Company
its court costs and reasonable attorneys' fees incurred in
enforcing the covenants, agreements, representations and
warranties hereunder.
6. Construction. This Agreement shall be construed and
enforced pursuant to the laws of the State of New York.
A. If any provision or clause of this Agreement is
held to be invalid by a court of competent jurisdiction, then
such provision or clause shall be severed here from without
affecting any other portion of the Agreement, the balance of
which shall remain in full force and effect; provided, however,
that if such provision or clause may be modified so as to be
valid as a matter of law, then the provision or clause shall be
deemed to be modified so as to be enforceable to the maximum
extent permitted by law.
B. The headings and titles of the paragraphs of this
Agreement are for convenience purposes only, and are not intended
to define, limit or construe the contents of the various
paragraphs.
<PAGE>
C. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof and
supersedes all prior agreements of the parties, whether oral or
written.
D. No provision of this Agreement may be modified
except by a written instrument duly signed and acknowledged by
each of the parties hereto.
Dated: January 5, 2000 FISHER MEDICAL CORPORATION
By: /s/ David L. Koffman
Name/Title: Vice President
EMPLOYEE
By: /s/ Stephen M. Fisher, Jr.
<PAGE>
EXHIBIT 10(48)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into
as of January 5, 2000 between FISHER MEDICAL CORPORATION, a
Nevada corporation (the "Company"), and Stephen M. Fisher,
Sr.(the "Employee");
1. Employment. The Employee shall be employed by the
Company in a capacity to be determine by the Company. Employee
shall be responsible for oversight of all operations and the
development of short term and long term business plans, in
addition to such other duties and responsibilities as the Board
of Directors of the Company (the "Board") shall designate as are
not inconsistent with the Employee's position with the Company.
2. Term. This Agreement shall be for the period
commencing on the date hereof (the "Effective Date") and ending
five years from the Effective Date; subject to an automatic
extension of five additional years if that certain Technology
License between Fisher Medical LLC and the Company is extended
for an additional five year term.
3. Salary. The Company agrees to pay the Employee during
the term of this Agreement an annual base salary at the rate of
$120,000 per year, payable in conformance with the Company's
standard payroll practices. Participation in bonus, retirement,
and other employee benefit plans and in fringe benefits shall not
reduce the base salary payable to the Employee under this Section
3.
4. Bonuses. At the end of each fiscal year of the
Company, Employee shall receive an annual bonus, which shall be
paid in an amount to be established by the Company based upon the
year end performance of the Company.
5. Participation in Retirement and Employee Benefit Plans.
The Employee shall be entitled to participate in any plan of the
Company relating to stock options, stock purchases, pension,
thrift, profit sharing, life insurance, medical coverage,
education or other retirement or employee benefits that the
Company may adopt or maintain from time to time for the benefit
of its executive employees. In addition, the Employee shall be
entitled to participate in any other fringe benefits that become
applicable to the Company's executive employees. Nothing in this
Agreement shall limit the Company's ability to adopt, terminate
or amend any such benefits at any time; provided however, the
aggregate amount of benefits provided to the Employee shall not
be decreased from the amount being provided on the date hereof.
6. Expenses. Employee shall be entitled to reimbursement
for all reasonable and necessary business expenses he incurs in
connection with fulfilling his duties hereunder, subject to
Employee providing Company with written documentation of such
expenses.
<PAGE>
7. Termination. The Employee's employment may be
terminated under the following circumstances:
(a) Death. The Employee's employment hereunder shall
terminate upon his death.
(b) Disability. The Employee's employment hereunder may be
terminated by the Company if, as a result of physical
or mental illness or incapacity, the Employee is unable
to or fails to perform the essential functions of his
position (despite reasonable accommodation from the
Company) (i) for a period of 3 consecutive months, (ii)
for a period of 6 months in any 12 month period, or
(iii) at such earlier time as the Employee submits
satisfactory medical evidence that he has a physical or
mental illness or incapacity that will likely prevent
him from returning to the performance of his work
duties for 6 months or longer. All time periods
contained in this Section shall be in addition to any
state or federally required leaves of absence for
serious medical conditions. Termination by the Company
of the Employee's employment for "Disability" shall
mean termination pursuant to this Section.
(c) Cause. The Company may terminate Employee's employment
for Cause. For purposes of this Agreement, "Cause"
shall mean (1) a willful or grossly negligent failure
by the Employee to substantially perform his duties
with the Company (other than any such failure resulting
from his incapacity due to physical or mental illness
or incapacity as determined by the Board); (2)
Employee's habitual drunkenness or the commission of a
felony; (3) the commission of any material act of
dishonesty against the Company; or (4) the willful
engaging by the Employee in conduct that is materially
injurious to the Company.
(d) Date of Termination, Etc.. "Date of Termination" shall
mean (1) if the Employee's employment is terminated by
his death, the date of his death; (2) if the Employee's
employment is terminated by the Company for Disability,
thirty (30) days after Notice of Termination is given;
(3) if the Employee's employment is terminated by the
Company for Cause, the date specified in the Notice of
Termination (which shall not be less than 10 days from
the date such Notice of Termination is given), and (4)
if the Employee's employment is terminated for any
other reason, the date specified in the Notice of
Termination.
8. Termination by Employee.
If Employee voluntarily elects to terminate this
Agreement for any reason, he shall give the Company at least
sixty (60) days' prior written notice of his decision to
<PAGE>
terminate. At the end of such sixty (60) days, all rights,
duties and obligation of both parties under the Agreement shall
cease.
9. Compensation Upon Disability, Termination. The
Employee shall be entitled to the following benefits during a
Disability Period (as defined below), or upon termination of his
employment, as the case may be, provided that such period of
termination occurs during the term of this Agreement:
(a) During the period that the Employee is unable to or
fails to perform his full-time duties with the Company
as a result of incapacity due to physical or mental
illness or incapacity as determined by the Board (a
"Disability Period"), he shall continue to receive his
base salary at the rate in effect at the commencement
of any such period, together with all compensation
payable to him under the Company's disability plan or
program or other similar plan during such period, until
his employment is terminated.
(b) If the Employee's employment is terminated by the
Company for Cause the Company shall pay him his full
base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given,
plus all other amounts to which he is entitled under
any compensation plan of the Company, and the Company
shall have no further obligations to him under this
Agreement.
10. No Assignments.
(a) This Agreement is personal to each of the parties
hereto. No party may assign or delegate any rights or
obligations hereunder without first obtaining the
written consent of the other party hereto.
(b) If the Employee should die, payments due to the
Employee at the time of his death hereunder shall be
paid in accordance with the terms of this Agreement to
his devisee, legatee or other designee or, if there is
no such designee, to his estate, unless otherwise
provided herein. There shall be no death benefits
hereunder.
11. Notice. For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be
in writing and shall be deemed to have been duly given when
delivered or mailed by United States certified or registered
mail, return receipt requested, postage prepaid, to the
appropriate address set forth on the signature page hereto.
<PAGE>
12. Noncompetition. The Employee agrees to execute a Non-
Disclosure and Non-Competition Agreement in form reasonably
acceptable to Company.
13. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing and signed by the Employee
and such officer as may be specifically designated by the Board.
No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made
by either party that are not expressly set forth in this
Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of
the State of New York without regard to its conflicts of law
principles.
EMPLOYER:
FISHER MEDICAL CORPORATION
By: /s/ David L. Koffman
Name/Title: Vice President
EMPLOYEE:
/s/ Stephen M. Fisher, Sr.
<PAGE>
EXHIBIT 10(49)
NON-DISCLOSURE AND NON-COMPETITION
AGREEMENT
1. Background. Fisher Medical Corporation ("Company") has
acquired the assets of Fisher Medical, LLC ("LLC"). The
undersigned employee ("Employee") was a principal of the LLC and
is now an employee of the Company. Company is a Nevada
corporation which is engaged in, among other things, the
development, manufacture and distribution of a product known as a
disposable alternating pressure mattress system and related
products ("DAPM"). The Company agrees to employ the Employee
expressly subject to and conditioned upon the terms and
conditions set forth in this Agreement, and said terms and
conditions are a material condition of Employee's employment.
2. Disclosure of Confidential Information. The Employee
acknowledges that, upon execution of this Agreement and by reason
of his involvement with or employment by Fisher Medical LLC or
the Company, the Employee may have or will have knowledge of
trade secrets, confidential and proprietary information of the
Company ("Confidential Information").
3. Covenants, Agreements, Representations and Warranties of
the Employee. In consideration of Employee's employment with the
Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Employee covenants, agrees, represents and warrants as follows:
1. All of the Confidential Information is a valuable asset of the
Company and is, will be, and shall at all times remain, the sole and exclusive
property of the Company.
2. The Employee shall, at all times, hold the Confidential
Information as secret.
3. The Employee shall neither directly nor indirectly cause or
permit the exploitation, copying or summarizing of any of the Confidential
Information, except in the performance of Employee's duties for the Company
or as otherwise directed by the Company.
4. The Employee understands that the Company intends to sell and
distribute its products at various points throughout the United States and
abroad, and that the Employee must maintain and preserve all of the
Confidential Information and knowledge thereof as unavailable to the Company's
competitors, the industry and the general public in order to protect the
Company's business, competitive position and good will.
<PAGE>
5. The Company derives its competitive advantage in the market
place by maintaining the Confidential Information and knowledge thereof as
secret and unavailable to the Company's competitors and the public.
6. Upon termination of the Employee's employment with the Company,
with or without cause, the Employee shall immediately deliver or cause to be
delivered to the Company all of the Confidential Information in the Employee's
possession or control including, without limitation, originals and copies of
books, catalogs, sales brochures, customer lists, prospect lists, price lists,
employee manuals, operations manuals and other documents reflecting or
referencing the Confidential Information, as well as all other materials
furnished to or acquired by the Employee as a result of or during the course of
the Employee's employment by or association with the Company or by Fisher
Medical, LLC.
7. For the greater of a period of one year after termination of the
Employee's employment with the Company, with or without cause, or so long as
the Licence is in full force and effect, the Employee shall not directly or
indirectly (i) interfere with the relationship of the Company and any of its
customers, employees, agents, representatives or suppliers and (ii) directly or
indirectly, individually or in combination or association with any other person
or entity, divulge or disclose to any third party any of the Confidential
Information without, in each instance, the prior written consent of the Company.
8. For the greater of a period of one year after the termination of
the Employee's employment with the Company, with or without cause, or as long
as the License is in full force and effect, the Employee shall not directly or
indirectly own, manage, operate, be employed by, participate or be connected
in any manner with the ownership, management or control of, any business
similar to the type of business in which the Company is engaged as of the date
of such termination, within any of the geographic locations in which the
Company is operating or proposes to operate.
9. The restrictions and limitations contained in this paragraph 3 are
reasonable in scope and duration and are necessary to protect the Company's
proprietary interest in its Confidential Information and to preserve for the
Company, the competitive advantage derived from maintaining that Confidential
Information as secret.
10. In the event that any of the restrictions and limitations
contained in this paragraph 3 are deemed to exceed the time or geographic
limitations permitted by applicable law, then such provisions shall be reformed
to the maximum time and geographic limits permitted by applicable law.
<PAGE>
11. The Employee shall deal with the Confidential Information
strictly in accordance with the terms of this Agreement.
12. The Employee's representations and warranties set forth herein
shall be revived continuously throughout the Employee's employment by the
Company.
13. The Company is materially relying upon each of the Employee's
covenants, agreements, representations and warranties in employing Employee.
4. Remedies. The Employee acknowledges and agrees that it is
impossible to measure in money, the damages which will accrue to
the Company if the Employee shall breach or be in default of any
of the Employee's covenants, agreements, representations or
warranties set forth in this Agreement. Accordingly, if any
action or proceeding is instituted by or on behalf of the Company
to enforce any term of this Agreement, the Employee hereby waives
any claim or defense thereto that Company has an adequate remedy
at law or that the Company has not been, or is not being,
irreparably injured thereby. The rights and remedies of the
Company pursuant to this paragraph 4 are cumulative, in addition
to, and shall not be deemed to exclude any other right or remedy
which the Company may have pursuant to this Agreement or
otherwise at law or in equity.
5. Attorneys' Fees. If the Employee breaches or defaults in
the performance of the covenants, agreements, representations or
warranties described in this Agreement, then in addition to any
and all rights and remedies which the Company may have against
the Employee, the Employee will also be liable to pay the Company
its court costs and reasonable attorneys' fees incurred in
enforcing the covenants, agreements, representations and
warranties hereunder.
6. Construction. This Agreement shall be construed and
enforced pursuant to the laws of the State of New York.
A. If any provision or clause of this Agreement is
held to be invalid by a court of competent jurisdiction, then
such provision or clause shall be severed here from without
affecting any other portion of the Agreement, the balance of
which shall remain in full force and effect; provided, however,
that if such provision or clause may be modified so as to be
valid as a matter of law, then the provision or clause shall be
deemed to be modified so as to be enforceable to the maximum
extent permitted by law.
B. The headings and titles of the paragraphs of this
Agreement are for convenience purposes only, and are not intended
to define, limit or construe the contents of the various
paragraphs.
<PAGE>
C. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof and
supersedes all prior agreements of the parties, whether oral or
written.
D. No provision of this Agreement may be modified
except by a written instrument duly signed and acknowledged by
each of the parties hereto.
Dated: January 5, 2000 FISHER MEDICAL CORPORATION
By:/s/ David L. Koffman
Name/Title: Vice President
EMPLOYEE
By: /s/ Stephen M. Fisher, Sr.
<PAGE>
[ARTICLE] 5
[CIK] 0000053260
[NAME] JAYARK CORPORATION
[MULTIPLIER] 1000
<TABLE>
<S> <C> <C>
[PERIOD-TYPE] 3-MOS 9-MOS
[FISCAL-YEAR-END] APR-30-2000 APR-30-2000
[PERIOD-START] NOV-01-1999 MAY-01-1999
[PERIOD-END] JAN-31-2000 JAN-31-2000
[CASH] 669 669
[SECURITIES] 0 0
[RECEIVABLES] 1,277 1,277
[ALLOWANCES] (78) (78)
[INVENTORY] 353 353
[CURRENT-ASSETS] 2,320 2,320
[PP&E] 689 689
[DEPRECIATION] (346) (346)
[TOTAL-ASSETS] 2,987 2,987
[CURRENT-LIABILITIES] 1,991 1,991
[BONDS] 0 0
[PREFERRED-MANDATORY] 0 0
[PREFERRED] 0 0
[COMMON] 28 28
[OTHER-SE] (360) (360)
[TOTAL-LIABILITY-AND-EQUITY] 2,987 2,987
[SALES] 2,824 9,912
[TOTAL-REVENUES] 2,824 9,912
[CGS] 2,307 8,202
[TOTAL-COSTS] 2,307 8,202
[OTHER-EXPENSES] 452 1,274
[LOSS-PROVISION] 0 0
[INTEREST-EXPENSE] 28 83
[INCOME-PRETAX] 37 353
[INCOME-TAX] 0 0
[INCOME-CONTINUING] 37 353
[DISCONTINUED] 0 0
[EXTRAORDINARY] 0 0
[CHANGES] 0 0
[NET-INCOME] 37 353
[EPS-BASIC] .00 .01
[EPS-DILUTED] .00 .01
</TABLE>
