Migo,
The following is the substance of our telephone discussion last week.
As you suggested I am stating it, in my own words, as an addendum to
the agreement Terence and I worked out. To give you the complete file I am also
including copies of the original proposal I drafted and the "official" document
we signed.
The agreement Terence and I executed, May 27, 1998, is by this memo
amended as follows:
1. Section one. "EMPLOYMENT" paragraph (a) is amended to read:
"In accordance with that certain Employment Agreement
(the "Existing Agreement") dated January 3, 1994, between
Microtek Medical, Inc. ("Microtek"), a wholly owned subsidiary
of Isolyser, and Employee, as amended, Employee is employed by
Microtek and also currently serves as Executive Vice President
of Isolyser. Subject to and in accordance with the terms of
the Existing Agreement, the Existing Agreement shall remain in
effect and employee shall continue to serve as Executive Vice
President of Isolyser until December 31, 1999."
2. The contract will end December 31, 2003.
3. All other provisions of the contract remain as stated in
the original agreement.
4. This memo signed by Migo Nalbantyan and Lester J. Berry
constitutes an amendment to the original contract dated May
27, 1998 and signed by Terence Furness and Lester J. Berry.
Please sign both copies and return one for my file.
/s/ Migo Nalbantyan /s/ Lester J. Berry
- --------------------------------- ------------------------------
Migo Nalbantyan Lester J. Berry
- --------------------------------- ------------------------------
Date Date
822720v1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the ____ day of ________,
1998, but effective as of December 31, 1998 (the "Effective Date"), by ISOLYSER
COMPANY, INC., a Georgia corporation ("Isolyser"), and LESTER J. BERRY, a
Mississippi resident ("Employee").
In consideration of the mutual covenants contained in this Agreement,
Isolyser and Employee agree as follows:
1. Employment.
(a) In accordance with that certain Employment Agreement (the
"Existing Agreement") dated January 3, 1994, between Microtek Medical, Inc.
("Microtek"), a wholly-owned subsidiary of Isolyser, and Employee, as amended,
Employee is employed by Microtek and also currently serves as Executive Vice
President of Isolyser. Subject to and in accordance with the terms of the
Existing Agreement, the Existing Agreement shall remain in effect and Employee
shall continue to serve as Executive Vice President of Isolyser until December
31, 1998.
(b) Effective on the Effective Date, Employee shall no longer
serve as Executive Vice President of Isolyser and the Existing Agreement shall
terminate. Employee shall, however, continue to serve as an employee of Isolyser
through December 31, 2003 in the non-executive capacity of Vice President for
Special Projects. In such capacity, he shall assist Isolyser faithfully and
diligently to achieve its objectives from time to time as may be reasonably
requested by the President of Isolyser, and shall take no action which would be
contrary to such objectives. Employee shall not be required to perform duties at
variance to duties normally assigned to senior executive level personnel of
Isolyser. As such Vice President, Employee shall have no policy making authority
on behalf of Isolyser and shall have no authority to bind Isolyser to any
obligations. Employee 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, subject
to paragraph 3 of this Agreement. Absent mutual agreement to the contrary, the
maximum number of days Employee shall be required to serve in such capacity
shall be fifteen working days per year.
2. Compensation and Benefits. As full compensation for all services
rendered by Employee pursuant to this Agreement and as full consideration for
all terms of this Agreement, beginning as of the Effective Date and thereafter
until December 31, 2003, Employee shall be entitled to the following:
(a) Subject to Section 7(a) hereof, a base salary of $13,000
per year through and including December 31, 2003 payable so long as Employee is
not in breach of this Agreement following five days notice of any such breach by
Isolyser to Employee. Such salary shall be paid in installments consistent with
the normal practices of Isolyser, but not less frequently than monthly.
(b) Subject to Section 7(a) hereof, Employee hereby elects not
to participate in and agrees that he shall not be entitled to participate in any
and all employee benefit plans, medical insurance plans, life insurance plans,
disability income plans, retirement plans and other benefit plans (except that
Employee shall remain eligible to participate in the Company's 401(k) plan
subject to the terms of the applicable plan documents and legal requirements)
from time to time in effect for senior executives or other employees of
Isolyser. In lieu of participation in any and all such plans, Isolyser agrees
(x) that the Split Dollar Life Insurance Agreement dated as of May 25, 1994,
between Microtek and Employee shall remain in full force and effect in
accordance with its terms, and (y) to continue to provide health insurance
benefits (after payment of any other benefits available including those under
any separate retirement plans or Medicare) for Employee and his dependents
consistent with past practices up to a cost to Isolyser of $1,500 per year
through December 31, 2003 so long as Employee is not in breach of this Agreement
following five days notice of any such breach by Isolyser to Employee.
(c) An amount equal to the value of all accrued vacation due
to Employee through the Effective Date, as calculated by Isolyser's payroll
department. From and after the Effective Date of this Agreement, Employee agrees
that he shall no longer accrue paid absences or be entitled to compensation for
same.
(d) Isolyser shall reimburse Employee for all reasonable
travel and other business expenses incurred by him in the performance of his
duties and responsibilities as specifically requested by Isolyser, subject to
such requirements with respect to substantiation and documentation as may be
specified by Isolyser.
3. Protective Covenants; Remedies.
(a) Property Rights. Employee acknowledges and agrees that all
records of the accounts of customers, lists, prospect lists, prospect reports,
vendor lists, samples, desk calendars, briefcases, day timers and notebooks
provided by Isolyser or any subsidiary or affiliate of Isolyser (collectively,
the "Isolyser Group"), policy and procedure manuals, price lists, catalogs,
premises keys, written methods of pricing, lists of needs and requirements of
customers, written methods of operation of Isolyser Group and any other records
and books relating in any manner whatsoever to the customers of Isolyser Group
or its business, whether prepared by Employee or otherwise coming into
Employee's possession, are the exclusive property of Isolyser Group regardless
of who actually purchased or prepared the original book, record, list or other
property. All such books, records, lists or other property shall be immediately
returned by Employee to Isolyser upon any termination of employment.
(b) Non-Disclosure of Confidential Information. Employee
acknowledges that through formal and informal training by Isolyser Group,
Employee will become familiar with, among other things, the following:
Any scientific or technical information, design,
process, procedure, formula or improvement that is
secret and of value, and information including, but
not limited to, technical or nontechnical data,
formula, patterns, compilations, programs, devices,
methods, techniques, drawings, processes and
financial data, which Isolyser takes reasonable
efforts to protect from disclosure, and from which
Isolyser derives actual or potential economic value
due to its confidential nature (the foregoing being
hereinafter collectively referred to as the
"Confidential Information").
Employee acknowledges that use of such Confidential
Information will give Employee an unfair competitive advantage over Isolyser
Group in the event that Employee should go into competition with Isolyser Group
and agrees that during the term of this Agreement and for a period of two (2)
years subsequent to the termination of employment for any reason, Employee will
not disclose to any person, or utilize for Employee's benefit, any of the
Confidential Information. Employee acknowledges that such Confidential
Information is of special and peculiar value to Isolyser; is the property of
Isolyser Group, the product of years of experience and trial and error; is not
generally known to Isolyser Group's competitors; and is regularly used in the
operation of Isolyser Group's business. Employee acknowledges and recognizes
that applicable law prohibits disclosure of confidential information and trade
secrets indefinitely (i.e., without regard to the two year period described in
this paragraph), and Isolyser has the right to require Employee to comply with
such law in addition to Isolyser's rights under this paragraph.
(c) Non-Interference With Employees. Employee agrees not to
solicit, entice or otherwise induce any employee of Isolyser Group to leave the
employ of Isolyser Group for any reason whatsoever, and not to otherwise
interfere with any contractual or business relationship between Isolyser Group
and any of its employees for two (2) years from the termination of Employee's
employment.
(d) Inventions. Employee agrees to fully inform and disclose
to Isolyser all inventions, designs, improvements and discoveries which Employee
now has or may hereafter while employed by Isolyser obtain which either
constitute an improvement to or modification of any of the products which from
time to time are under development by Isolyser or being manufactured or marketed
by Isolyser (collectively, the "Products") or constitute an invention, design,
improvement or discovery having unique application to the Products, whether
conceived by Employee alone or with others. All such inventions, designs,
improvements and discoveries shall be the exclusive property of Isolyser.
Employee shall assist Isolyser to obtain such legal protection of all such
inventions, designs, improvements and discoveries as may be deemed desirable by
Isolyser from time to time.
(e) Non-Solicitation of Customers. Until two (2) years
following the termination of Employee's employment, Employee agrees that
Employee will not, within the world (the "Territory"), which the parties agree
has been the territory from which Employee has primarily rendered services, for
Employee's own benefit or on behalf of any other person, partnership, company or
corporation, contact any customer or customers of Isolyser Group who Employee
called upon while employed by Isolyser, for the purpose of developing,
manufacturing or selling disposable, specialty or safety products for use in the
medical, industrial or commercial markets (collectively, the "Business").
(f) Non-Competition. Until two (2) years following the
termination of Employee's employment, Employee agrees that Employee will not
within the Territory, either directly or indirectly on his own behalf or in the
service of others, in any capacity that involves duties similar to the duties of
Employee hereunder, engage in the Business.
(g) Acknowledgment Regarding Protective Covenants. Employee
acknowledges and understands that the covenants provided for in this Section are
limited to the covenants set forth herein and do not preclude Employee upon the
termination of this Agreement from obtaining gainful employment or utilizing
Employee's general business skills, and that numerous opportunities exist for
Employee to utilize such skills. Although Employee agrees that the time and area
restraints set forth herein are reasonable, nevertheless, if for any reason now
unforeseen, a court of competent jurisdiction finds that the time and/or area
restraints agreed to herein by the parties are unreasonable then the time and/or
area restraints agreed to herein shall be reduced to an area and/or duration
deemed reasonable by such court. Employee acknowledges that the Employee has
read and understands the terms of this Agreement, that the same was specifically
negotiated, and that the protective covenants agreed upon herein are necessary
for the protection of Isolyser Group's business as a result of the business
secrets that will be disclosed during the employment. Further, Employee
acknowledges that Isolyser would not enter into this Agreement without the
specifically negotiated protective covenants herein stated.
(h) Remedies. In addition to any other rights and remedies
which are available to Isolyser, with respect to any breach or violation of the
protective covenants set forth herein, it is recognized and agreed that Isolyser
shall be entitled to obtain injunctive relief which would prohibit Employee from
continuing any breach or violation of such protective covenants.
4. [Intentionally Omitted]
5. Board Services. For the remainder of Employee's incumbent term with
such organizations, Employee agrees to continue to represent Isolyser and
Microtek through his appointments on the Mississippi Science and Technology
Commission, the Mississippi State University External Research Advisory
Commission, the Ocktibiha County Hi Tech Business Development Board, and the
Mississippi School for Math and Science Foundation Board. Service on such
organizations shall not accrue against Employee's agreed days of service to
Isolyser per year.
6. Litigation and Regulatory Cooperation. Employee shall cooperate
fully with the Isolyser Group in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future against or on
behalf of the Isolyser Group which relate to events or occurrences that
transpired while Employee was employed by Isolyser or Microtek. Employee's full
cooperation in connection with such claims or actions shall include, but not be
limited to, being available to meet with counsel to prepare for discovery or
trial and to act as a witness on behalf of the Isolyser Group at mutually
convenient times. Employee shall also cooperate fully with the Isolyser Group in
connection with any examination or review of any federal or state regulatory
authority as any such examination or review relates to events or occurrences
that transpired while Employee was employed by Isolyser or Microtek.
7. Miscellaneous.
(a) This Agreement and all of the terms, provisions and
conditions hereof shall be binding upon and/or inure to the benefit of and be
enforceable by the heirs and personal representatives of Employee and Isolyser;
provided, that the salary shall no longer be payable and benefits shall no
longer accrue after Employee's death.
(b) This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall constitute one
and same agreement. This Agreement contains the full and complete agreement
between the parties relative to the subject matter hereof.
(c) All payments made and benefits provided to Employee under
this Agreement shall be net of any tax required to be withheld by Isolyser under
applicable law.
(d) This Agreement shall be governed in accordance with the
laws of the State of Georgia.
IN WITNESS WHEREOF, the parties shall cause this Agreement to be
executed and delivered as of the date first above written.
ISOLYSER COMPANY, INC.
By:___________________________________
Its:__________________________________
/s/ Lester J. Berry
--------------------------------------
Lester J. Berry
545246v2