Exhibit 10(xxxv)
Charles Miller
EMPLOYMENT AGREEMENT
CONTENTS
1. Effective Date.................................................. 1
--------------
2. Employment...................................................... 1
----------
3. Employment Period............................................... 1
-----------------
4. Extent of Service............................................... 1
-----------------
5. Compensation and Benefits....................................... 2
-------------------------
(a) Base Salary........................................ 2
(b) Incentive and Savings Plans........................ 2
(c) Welfare Benefit Plans.............................. 3
(d) Expenses........................................... 3
(e) Fringe Benefits.................................... 3
6. Change in Control............................................... 3
-----------------
7. Termination of Employment....................................... 4
-------------------------
(a) Death, Retirement or Disability.................... 4
(b) Termination by the Company......................... 5
(c) Termination by Executive........................... 5
(d) Notice of Termination.............................. 6
(e) Date of Termination................................ 6
8. Obligations of the Company upon Termination..................... 6
-------------------------------------------
(a) Prior to a Change in Control: Termination by
Executive for Good Reason; Termination by the
Company Other Than for Poor Performance, Cause
or Disability...................................... 6
(b) Prior to Change in Control: Termination by the
Company for Poor Performance....................... 8
(c) After or in Connection with a Change in Control:
Termination by Executive for Good Reason;
Termination by the Company Other Than for Cause or
Disability......................................... 9
(d) Death, Disability or Retirement...................... 10
(e) Cause or Voluntary Termination without Good Reason... 11
9. Non-exclusivity of Rights...................................... 11
-------------------------
10. Certain Additional Payments by the Company..................... 11
------------------------------------------
11. Costs of Enforcement........................................... 14
--------------------
12. Representations and Warranties................................. 14
------------------------------
13. Restrictions on Conduct of Executive........................... 14
------------------------------------
(a) General............................................ 14
(b) Definitions........................................ 14
(c) Restrictive Covenants.............................. 16
(d) Enforcement of Restrictive Covenants............... 18
14. Arbitration.................................................... 19
-----------
15. Letter of Credit............................................... 19
----------------
16. Assignment and Successors...................................... 19
-------------------------
17. Miscellaneous.................................................. 20
-------------
(a) Waiver............................................. 20
(b) Severability....................................... 20
(c) Other Agents....................................... 20
(d) Entire Agreement................................... 20
(e) Governing Law...................................... 20
(f) Notices............................................ 21
(g) Amendments and Modifications....................... 21
-ii-
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
this ____ day of March, 2000 by and between National Data Corporation, a
Delaware corporation (the "Company"), and Charles W. Miller ("Executive"), to be
effective as of the Effective Date, as defined in Section 1.
BACKGROUND
----------
Executive currently serves as the Executive Vice President of NDC
Health Information Services, a line of business of the Company. Executive and
the Company desire to memorialize the terms of such employment in this
Agreement. In addition, the Board of Directors of the Company (the "Board"),
has determined that it is in the best interests of the Company and its
stockholders to assure that the Company will have the continued dedication of
the Executive, notwithstanding the possibility, threat or occurrence of a Change
in Control (as defined below) of the Company. As it is desired and anticipated
that Executive will continue to be employed and provide services for the
Company's successor for at least 24 months following a Change in Control, one
purpose of this Agreement is to provide Executive with compensation and benefits
arrangements which ensure that the compensation and benefits expectations of
Executive will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effective Date. The effective date of this Agreement (the
--------------
"Effective Date") is January 17, 2000.
2. Employment. Executive is hereby employed as the Executive Vice
----------
President of NDC Health Information Services, a line of business of the Company.
In such capacity, Executive shall have the responsibilities outlined on Exhibit
A to this Agreement and such other responsibilities commensurate with such
position as shall be assigned to him by the Chief Executive Officer of the
Company, in accordance with the policies and objectives established by the
Board.
3. Employment Period. Executive's employment hereunder shall begin
-----------------
on the Effective Date and continue until terminated in accordance with Section 7
hereof (the "Employment Period").
4. Extent of Service. During the Employment Period, Executive shall
-----------------
render his services to the Company (or to its successor following a Change in
Control) in conformity with professional standards, in a prudent and workmanlike
manner and in a manner
consistent with the obligations imposed on officers of corporations under
applicable law. Executive shall promote the interests of the Company and its
subsidiaries in carrying out Executive's duties and shall not deliberately take
any action which could, or fail to take any action which failure could,
reasonably be expected to have a material adverse effect upon the business of
the Company or any of its subsidiaries or any of their respective affiliates.
Executive agrees to devote his business time, attention, skill and efforts
exclusively to the faithful performance of his duties hereunder (both before and
after a Change in Control); provided, however, that it shall not be a violation
of this Agreement for Executive to (i) devote reasonable periods of time to
charitable and community activities and, with the approval of the Company,
industry or professional activities, and/or (ii) manage personal business
interests and investments, so long as such activities do not materially
interfere with the performance of Executive's responsibilities under this
Agreement. It is expressly understood and agreed that to the extent that any
such activities have been conducted by Executive prior to the date of this
Agreement (as to which activities Executive shall have given written notice to
the Company prior to the Effective Date), the continued conduct of such
activities subsequent to the Effective Date shall not thereafter be deemed to
interfere with the performance of Executive's responsibilities hereunder.
5. Compensation and Benefits.
-------------------------
(a) Base Salary. Thereafter, during the Employment Period, the
-----------
Company will pay to Executive a base salary in the amount of U.S. $310,000 per
year ("Base Salary"), less normal withholdings, payable in equal bi-weekly or
other installments as are customary under the Company's payroll practices from
time to time. The Compensation Committee of the Board shall review Executive's
Base Salary periodically and in its sole discretion, subject to approval of the
Board, may increase Executive's Base Salary from time to time. The periodic
review of Executive's salary by the Board will consider, among other things,
Executive's own performance and the Company's performance.
(b) Incentive and Savings Plans. During the Employment Period,
---------------------------
Executive shall be entitled to participate in incentive and savings plans,
practices, policies and programs applicable generally to employees of the
Company. Certain executive programs will be made available on a selective basis
at the discretion of the Chief Executive Officer or the Compensation Committee
of the Board. Without limiting the foregoing, the following shall apply:
(i) Annual Bonus. Executive will have an annual bonus
------------
opportunity of not less than $200,000, based on 100% achievement of agreed-upon
financial objectives ("Bonus Opportunity"). The Company may determine in any
year that a portion of the Bonus Opportunity for that year will be deferred
based upon sustained results over time. The annual Bonus Opportunity and
specific performance objectives will be set forth in Executive's individual
performance and incentive plan for each year.
-2-
(ii) Incentive Awards. On or about the Effective Date
----------------
(or earlier upon Executive's hire date), the Company made a grant of restricted
stock and/or stock options to Executive as a long-term incentive for performance
and in consideration for entering into this Agreement. Further grants of
incentive awards may be made to Executive in future years.
(c) Welfare Benefit Plans. During the Employment Period,
---------------------
Executive and Executive's family shall be eligible for participation in, and
shall receive all benefits under, the welfare benefit plans, practices, policies
and programs provided by the Company (including, without limitation, medical,
prescription, dental, disability, employee life, group life, accidental death
and travel accident insurance plans and programs) ("Welfare Plans").
(d) Expenses. During the Employment Period, Executive shall be
--------
entitled to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company.
(e) Fringe Benefits. During the Employment Period, Executive
---------------
shall be entitled to fringe benefits in accordance with the plans, practices,
programs and policies of the Company.
6. Change in Control. For the purposes of this Agreement, a "Change
-----------------
in Control" shall mean:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or
more of the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that for purposes
of this subsection (a), the following acquisitions shall not constitute a Change
in Control: (i) any acquisition by a Person who is on the Effective Date the
beneficial owner of 35% or more of the Outstanding Company Voting Securities,
(ii) any acquisition directly from the Company, (iii) any acquisition by the
Company which reduces the number of Outstanding Company Voting Securities and
thereby results in any person having beneficial ownership of more than 35% of
the Outstanding Company Voting Securities, (iv) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (v) any acquisition by any corporation
pursuant to a transaction which complies with clauses (i) and (ii) of subsection
(b) of this Section 6; or
(b) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners,
-3-
respectively, of the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a result of
such transaction owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, and (ii) no Person (excluding the Company
or any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 35% or more of the combined voting power of the then
outstanding voting securities of such corporation except to the extent that such
ownership existed prior to the Business Combination; provided, however, that
(c) Notwithstanding anything in this definition to the contrary,
a restructuring and/or separation of any line of business or business unit from
the Company will not of itself constitute a Change in Control.
7. Termination of Employment.
-------------------------
(a) Death, Retirement or Disability. Executive's employment and
-------------------------------
the Employment Period shall terminate automatically upon Executive's death or
Retirement. For purposes of this Agreement, "Retirement" shall mean normal
retirement as defined in the Company's then-current retirement plan, or there is
no such retirement plan, "Retirement" shall mean voluntary termination after age
65 with ten years of service. If the Company determines in good faith that the
Disability of Executive has occurred (pursuant to the definition of Disability
set forth below), it may give to Executive written notice of its intention to
terminate Executive's employment. In such event, Executive's employment with
the Company shall terminate effective on the 30th day after receipt of such
written notice by Executive (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, Executive shall not have returned to
full-time performance of Executive's duties. For purposes of this Agreement,
"Disability" shall mean a mental or physical disability as determined by the
Board in accordance with standards and procedures similar to those under the
Company's employee long-term disability plan, if any. At any time that the
Company does not maintain such a long-term disability plan, Disability shall
mean the inability of Executive, as determined by the Board, to substantially
perform the essential functions of his regular duties and responsibilities due
to a medically determinable physical or mental illness which has lasted (or can
reasonably be expected to last) for a period of six consecutive months.
-4-
(b) Termination by the Company. The Company may terminate
--------------------------
Executive's employment for Poor Performance or with or without Cause. For
purposes of this Agreement:
"Poor Performance" shall mean the consistent failure of
Executive to meet reasonable performance expectations (other than any such
failure resulting from incapacity due to physical or mental illness); provided,
however, that termination for Poor Performance shall not be effective unless at
least 30 days prior to such termination Executive shall have received written
notice from Chief Executive Officer or the Board which specifically identifies
the manner in which the Board or the Chief Executive Officer believes that
Executive has not met performance expectations and Executive shall have failed
after receipt of such notice to resume the diligent performance of his duties to
the satisfaction of the Chief Executive Officer or the Board; and
"Cause" shall mean:
(i) the willful and continued failure of Executive to
perform substantially Executive's duties with the Company (other than any such
failure resulting from incapacity due to physical or mental illness, and
specifically excluding any failure by Executive, after reasonable efforts, to
meet performance expectations), after a written demand for substantial
performance is delivered to Executive by the President, Chief Executive Officer
or the Board of Directors of the Company which specifically identifies the
manner in which such Board or officer believes that Executive has not
substantially performed Executive's duties, or
(ii) any act of fraud, misappropriation, embezzlement or
similar dishonest or wrongful act by Executive, or
(iii) Executive's abuse of alcohol or any substance which
materially interferes with Executive's ability to perform services on behalf of
the Company, or
(iv) Executive's conviction for, or plea of guilty or nolo
contendere to, a felony.
(c) Termination by Executive. Executive's employment may be
------------------------
terminated by Executive for Good Reason or no reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) without the written consent of Executive, the
assignment to Executive of any duties materially inconsistent with Executive's
position (including offices, titles and reporting requirements), authority,
duties or responsibilities as in effect on the Effective Date, or any other
action by the Company which results in a material diminution in such position,
authority, duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by
Executive;
-5-
(ii) a reduction by the Company in Executive's Base Salary and
benefits as in effect on the Effective Date or as the same may be increased from
time to time, unless a similar reduction is made in salary and benefits of
similarly-situated senior executives;
(iii) the Company's requiring Executive, without his consent, to
be based at any office or location other than in the greater metropolitan area
of the city in which his office is located at the Effective Date; or
(iv) any failure by the Company to comply with and satisfy
Section 16(c) of this Agreement.
(d) Notice of Termination. Any termination by the Company for Poor
---------------------
Performance or Cause, or by Executive for Good Reason, shall be communicated by
Notice of Termination to the other party hereto given in accordance with Section
17(f) of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so indicated
and (iii) if the Date of Termination (as defined below) is other than the date
of receipt of such notice, specifies the termination date (which date shall be
not more than 30 days after the giving of such notice). The failure by Executive
or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason, Poor Performance or
Cause shall not waive any right of Executive or the Company, respectively,
hereunder or preclude Executive or the Company, respectively, from asserting
such fact or circumstance in enforcing Executive's or the Company's rights
hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
-------------------
Executive's employment is terminated other than by reason of death, Disability
or Retirement, the date of receipt of the Notice of Termination, or any later
date specified therein (which shall not be more than 60 days after the date of
delivery of the Notice of Termination), or (ii) if Executive's employment is
terminated by reason of death, Disability or Retirement, the Date of Termination
will be the date of death or Retirement, or the Disability Effective Date, as
the case may be.
8. Obligations of the Company upon Termination.
------------------------------------------
(a) Prior to a Change in Control: Termination by Executive for Good
---------------------------------------------------------------
Reason; Termination by the Company Other Than for Poor Performance, Cause or
- ----------------------------------------------------------------------------
Disability. If, prior to a Change in Control, the Company shall terminate
- ----------
Executive's employment other than for Poor Performance, Cause or Disability, or
Executive shall terminate employment for Good Reason within a period of 90 days
after the occurrence of the event giving rise to Good Reason, then (and with
respect to the payments and benefits
-6-
described in clauses (ii) through (vii) below, only if Executive executes a
Release in substantially the form of Exhibit B hereto (the "Release")):
(i) the Company shall pay to Executive in a lump sum in cash
within 30 days after the Date of Termination the sum of (A) Executive's Base
Salary through the Date of Termination to the extent not theretofore paid, and
(B) any accrued vacation pay to the extent not theretofore paid (the sum of the
amounts described in clauses (A) and (B) shall be hereinafter referred to as the
"Accrued Obligations"); and
(ii) for the longer of six months or until Executive becomes
employed with a subsequent employer, but in no event to exceed 18 months from
the Date of Termination (the "Normal Severance Period"), the Company will
continue to pay Executive an amount equal to his monthly Base Salary, payable in
equal monthly or more frequent installments as are customary under the Company's
payroll practices from time to time; provided, however that the Company's
obligation to make or continue such payments shall cease if Executive violates
any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement)
and fails to remedy such violation to the satisfaction of the Board within 10
days of notice of such violation; and
(iii) during the Normal Severance Period, the Company shall
continue benefits to Executive and/or Executive's family at least equal to those
which would have been provided to them in accordance with the Welfare Plans
described in Section 5(c) of this Agreement if Executive's employment had not
been terminated; provided, however that the Company's obligation to provide such
benefits shall cease if Executive violates any of the Restrictive Covenants (as
defined in Section 13(a) of this Agreement) and fails to remedy such violation
to the satisfaction of the Board within 10 days of notice of such violation; and
(iv) not later than 30 days after the Date of Termination,
Executive will be paid a bonus for the year in which the Date of Termination
occurs in an amount equal to the greater of (1) 50% of his Bonus Opportunity (as
defined in Section 5(b)(i)) for such year, or (2) 100% of his Bonus Opportunity
(prorated through the Date of Termination) adjusted up or down by reference to
his year-to-date performance at the Date of Termination in relation to the prior
established performance objectives under Executive's bonus plan for such year;
provided, however that the bonus payment described in this Section 8(a)(iv)
shall be reduced by the amount (if any) of the Bonus Opportunity that Executive
had previously elected to receive in the form of restricted stock of the
Company; and
(v) all grants of restricted stock of the Company ("Restricted
Stock") held by Executive as of the Date of Termination will become immediately
vested as of the Date of Termination; and
(vi) all of Executive's options to acquire Common Stock of the
Company ("Options") that would have become vested (by lapse of time) within the
24-
-7-
month period following the Date of Termination had Executive remained employed
during such period will become immediately vested as of the Date of Termination;
and
(vii) notwithstanding the provisions of the applicable Option
agreement, all of Executive's vested but unexercised Options as of the Date of
Termination (including those with accelerated vesting pursuant to Section
8(a)(vi) above) shall remain exercisable through the earlier of (A) the original
expiration date of the Option, or (B) the 90th day following the end of the
Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to Executive any other amounts or benefits
required to be paid or provided or which Executive is eligible to receive under
any plan, program, policy or practice or contract or agreement of the Company
(such other amounts and benefits shall be hereinafter referred to as the "Other
Benefits").
(b) Prior to a Change in Control: Termination by the Company for Poor
-----------------------------------------------------------------
Performance. If, prior to the occurrence of a Change in Control, the Company
- -----------
shall terminate Executive's employment for Poor Performance, then (and with
respect to the payments and benefits described in clauses (ii) through (vii)
below, only if Executive executes the Release):
(i) the Company shall pay to Executive the Accrued
Obligations in a lump sum in cash within 30 days after the Date of Termination;
and
(ii) for the shorter of 12 months after the Date of
Termination or until Executive becomes employed with a subsequent employer (the
"Poor Performance Severance Period"), the Company will continue to pay Executive
an amount equal to his monthly Base Salary, payable in equal monthly or more
frequent installments as are customary under the Company's payroll practices
from time to time; provided, however that the Company's obligation to make or
continue such payments shall cease if Executive violates any of the Restrictive
Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy
such violation to the satisfaction of the Board within 10 days of notice of such
violation; and
(iii) during the Poor Performance Severance Period, the Company
shall continue benefits to Executive and/or Executive's family at least equal to
those which would have been provided to them in accordance with the Welfare
Plans described in Section 5(c) of this Agreement if Executive's employment had
not been terminated; provided, however that the Company's obligation to provide
such benefits shall cease if Executive violates any of the Restrictive Covenants
(as defined in Section 13(a) of this Agreement) and fails to remedy such
violation to the satisfaction of the Board within 10 days of notice of such
violation; and
(iv) not later than 30 days after the Date of Termination,
Executive will be paid a bonus for the year in which the Date of Termination
occurs in an amount
-8-
equal to 100% of his Bonus Opportunity (prorated through the Date of
Termination) adjusted up or down by reference to his year-to-date performance at
the Date of Termination in relation to the prior established performance
objectives under Executive's bonus plan for such year; provided, however that
the bonus payment described in this Section 8(a)(iv) shall be reduced by the
amount (if any) of the Bonus Opportunity that Executive had previously elected
to receive in the form of restricted stock of the Company; and
(v) all grants of Restricted Stock held by Executive as of
the Date of Termination that would have become vested (by lapse of time) within
the 24-month period following the Date of Termination had Executive remained
employed during such period will become immediately vested as of the Date of
Termination; and
(vi) all of Executive's Options that would have become vested
(by lapse of time) within the 24-month period following the Date of Termination
had Executive remained employed during such period will become immediately
vested and exercisable as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option
agreement, all of Executive's vested but unexercised Options as of the Date of
Termination (including those with accelerated vesting pursuant to the Section
8(b)(vi) above) shall remain exercisable through the earlier of (A) the original
expiration date of the Option, or (B) the 90th day following the end of the
later of (1) six months from the Date of Termination, or (2) the end of the Poor
Performance Severance Period; and
(viii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to Executive his Other Benefits.
(c) After or in Connection with a Change in Control: Termination by
---------------------------------------------------------------
Executive for Good Reason; Termination by the Company Other Than for Cause or
- -----------------------------------------------------------------------------
Disability. If there occurs a Change in Control and, within 36 months
- ----------
following such Change in Control (or if Executive can reasonably show that such
termination by the Company was in anticipation of the Change in Control), the
Company shall terminate Executive's employment other than for Cause or
Disability, or Executive shall terminate employment for Good Reason, then (and
with respect to the payments and benefits described in clauses (ii) through
(vii) below, only if Executive executes the Release):
(i) the Company (or its successor) shall pay to Executive the
Accrued Obligations in a lump sum in cash within 30 days after the Date of
Termination; and
(ii) for 24 months after the Date of Termination (the "Change
in Control Severance Period"), the Company (or its successor) will, as a
severance benefit, continue to pay Executive an amount equal to his monthly Base
Salary, payable in equal monthly or more frequent installments as are customary
under the Company's payroll
-9-
practices from time to time; provided, however that the Company's obligation to
make or continue such payments shall cease if Executive violates any of the
Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails
to remedy such violation to the satisfaction of the Board within 10 days of
notice of such violation; and
(iii) during the Change in Control Severance Period, the
Company shall continue benefits to Executive and/or Executive's family at least
equal to those which would have been provided to them in accordance with the
Welfare Plans described in Section 5(c) of this Agreement if Executive's
employment had not been terminated; provided, however that the Company's
obligation to provide such benefits shall cease if Executive violates any of the
Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails
to remedy such violation to the satisfaction of the Board within 10 days of
notice of such violation; and
(iv) not later than 30 days after the Date of Termination,
Executive will be paid a bonus for the year in which the Date of Termination
occurs in an amount equal to 100% of his Bonus Opportunity (as defined in
Section 5(b)(i)); provided, however that the bonus payment described in this
Section 8(c)(iv) shall be reduced by the amount (if any) of the Bonus
Opportunity that Executive had previously elected to receive in the form of
restricted stock of the Company; and
(v) all grants of Restricted Stock held by Executive as of
the Date of Termination will become immediately vested as of the Date of
Termination; and
(vi) all of Executive's Options held by Executive as of the
Date of Termination will become immediately vested and exercisable as of the
Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option
agreement, all of Executive's vested but unexercised Options as of the Date of
Termination (including those with accelerated vesting pursuant to the Section
8(c)(vi) above) shall remain exercisable through the earlier of (A) the original
expiration date of the Option, or (B) the 90th day following the end of the
Change in Control Severance Period; and
(viii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to Executive his Other Benefits.
(d) Death, Disability or Retirement. Regardless of whether or not a
-------------------------------
Change in Control shall have occurred, if Executive's employment is terminated
by reason of Executive's death, Disability or Retirement, this Agreement shall
terminate without further obligations to Executive or his estate or legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to Executive's estate or beneficiary, as applicable,
in a lump sum in cash within 30 days of the Date of
-10-
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as used in this Section 8(d) shall include, without limitation, and
Executive or his estate and/or beneficiaries shall be entitled to receive,
benefits under such plans, programs, practices and policies relating to death,
disability or retirement benefits, if any, as are applicable to Executive on the
Date of Termination.
(e) Cause or Voluntary Termination without Good Reason. Regardless
--------------------------------------------------
of whether or not a Change in Control shall have occurred, if Executive's
employment shall be terminated for Cause, or if Executive voluntarily terminates
employment without Good Reason, this Agreement shall terminate without further
obligations to Executive, other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits.
9. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
-------------------------
limit Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which Executive may qualify,
nor, subject to Section 17(d), shall anything herein limit or otherwise affect
such rights as Executive may have under any contract or agreement with the
Company. Amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
10. Certain Additional Payments by the Company.
------------------------------------------
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 10) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred by
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an additional payment
(a "Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section 10(a), if it shall be determined that Executive is entitled to a Gross-
Up Payment, but that Executive, after taking into account the Payments and the
Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000
(taking into account both income taxes and any Excise Tax) as compared to the
net after-tax proceeds to Executive resulting from an elimination of the Gross-
Up Payment and a reduction of the Payments, in the aggregate, to an amount (the
-11-
"Reduced Amount") such that the receipt of Payments would not give rise to any
Excise Tax, then no Gross-Up Payment shall be made to Executive and the
Payments, in the aggregate, shall be reduced to the Reduced Amount. In that
event, Executive shall direct which Payments are to be modified or reduced.
(b) Subject to the provisions of Section 10(c), all determinations
required to be made under this Section 10, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Arthur
Andersen LLP or such other certified public accounting firm reasonably
acceptable to the Company as may be designated by Executive (the "Accounting
Firm") which shall provide detailed supporting calculations both to the Company
and Executive within 15 business days of the receipt of notice from Executive
that there has been a Payment, or such earlier time as is requested by the
Company. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change in Control,
Executive shall appoint another nationally recognized accounting firm to make
the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 10, shall be paid by the Company to
Executive within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 10(c) and Executive thereafter
is required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies Executive in writing prior to the expiration of such
period that it desires to contest such claim, Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
-12-
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an after-
tax basis, for any Excise Tax or income tax (including interest and penalties
with respect thereto) imposed as a result of such representation and payment of
costs and expenses. Without limitation of the foregoing provisions of this
Section 10(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
Executive to pay the tax claimed and sue for a refund or contest the claim in
any permissible manner, and Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs Executive to pay such
claim and sue for a refund, the Company shall advance the amount of such payment
to Executive, on an interest-free basis and shall indemnify and hold Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for the taxable year of Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 10(c), Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to the Company's
complying with the requirements of Section 10(c)) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by Executive of an
amount advanced by the Company pursuant to Section 10(c), a determination is
made that Executive shall not be entitled to any refund with respect to such
claim and the Company does not notify Executive in writing of its intent to
contest such denial of refund prior to the expiration of 30 days after such
-13-
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
11. Costs of Enforcement. Unless otherwise provided by the arbitrator(s)
--------------------
in an arbitration proceeding pursuant to Section 14 hereof, in any action taken
in good faith relating to the enforcement of this Agreement or any provision
herein, Executive shall be entitled to be paid any and all costs and expenses
incurred by him in enforcing or establishing his rights thereunder, including,
without limitation, reasonable attorneys' fees, whether suit be brought or not,
and whether or not incurred in trial, bankruptcy or appellate proceedings, but
only if Executive is successful on at least one material issue raised in the
enforcement proceeding.
12. Representations and Warranties. Executive hereby represents and
------------------------------
warrants to the Company that Executive is not a party to, or otherwise subject
to, any covenant not to compete with any person or entity, and Executive's
execution of this Agreement and performance of his obligations hereunder will
not violate the terms or conditions of any contract or obligation, written or
oral, between Executive and any other person or entity.
13. Restrictions on Conduct of Executive.
------------------------------------
(a) General. Executive and the Company understand and agree that the
-------
purpose of the provisions of this Section 13 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Executive's post-employment competition with the Company per se, nor
------
is it intended to impair or infringe upon Executive's right to work, earn a
living, or acquire and possess property from the fruits of his labor. Executive
hereby acknowledges that the post-employment restrictions set forth in this
Section 13 are reasonable and that they do not, and will not, unduly impair his
ability to earn a living after the termination of this Agreement. Therefore,
subject to the limitations of reasonableness imposed by law, Executive shall be
subject to the restrictions set forth in this Section 13.
(b) Definitions. The following terms used in this Section 13 shall
-----------
have the meanings assigned to them below, which definitions shall apply to both
the singular and the plural forms of such terms:
"Competitive Position" means any employment with a Competitor
--------------------
in which Executive will use or is likely to use any Confidential Information or
Trade Secrets, or in which Executive has duties for such Competitor that relate
to Competitive Services and that are the same or similar to those services
actually performed by Executive for the Company;
"Competitive Services" means the provision of health information
--------------------
products and services, including, without limitation, practice management
systems, value-
-14-
added networks, information management, health management services and health-
related eCommerce.
"Competitor" means any Person engaged, wholly or in part, in
----------
Competitive Services, including without limitation, Shared Medical Systems
Corporation, McKesson HBOC, Inc., Quintiles Transnational Corporation, IMS
Health Incorporated, PDX, IDX Systems Corporation, Medical Manager Corporation,
Healtheon/WebMD Corporation and Medscape, Inc.
"Confidential Information" means all information regarding the
------------------------
Company, its activities, business or clients that is the subject of reasonable
efforts by the Company to maintain its confidentiality and that is not generally
disclosed by practice or authority to persons not employed by the Company, but
that does not rise to the level of a Trade Secret. "Confidential Information"
shall include, but is not limited to, financial plans and data concerning the
Company; management planning information; business plans; operational methods;
market studies; marketing plans or strategies; product development techniques or
plans; lists of current or prospective customers; details of customer contracts;
current and anticipated customer requirements; past, current and planned
research and development; business acquisition plans; and new personnel
acquisition plans. "Confidential Information" shall not include information that
has become generally available to the public by the act of one who has the right
to disclose such information without violating any right or privilege of the
Company. This definition shall not limit any definition of "confidential
information" or any equivalent term under state or federal law.
"Determination Date" means the date of termination of
------------------
Executive's employment with the Company for any reason whatsoever or any earlier
date of an alleged breach of the Restrictive Covenants by Executive.
"Person" means any individual or any corporation, partnership,
------
joint venture, limited liability company, association or other entity or
enterprise.
"Principal or Representative" means a principal, owner, partner,
---------------------------
shareholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant.
"Protected Customers" means any Person to whom NDC Health
-------------------
Information Services has sold its products or services or solicited to sell its
products or services during the twelve (12) months prior to the Determination
Date.
"Protected Employees" means employees of the Company who were
-------------------
employed by the Company at any time within six (6) months prior to the
Determination Date.
-15-
"Restricted Period" means the Employment Period and a period
-----------------
extending two (2) years from the termination of Executive's employment with the
Company.
"Restricted Territory" means the States of California, Florida,
--------------------
Georgia, Illinois, Massachusetts, New Jersey, New York, Pennsylvania and Texas,
plus Canada, the United Kingdom and South America.
"Restrictive Covenants" means the restrictive covenants
---------------------
contained in Section 13(c) hereof.
"Trade Secret" means all information, without regard to form,
------------
including, but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, distribution lists or a
list of actual or potential customers, advertisers or suppliers which is not
commonly known by or available to the public and which information: (A) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (B) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. Without
limiting the foregoing, Trade Secret means any item of Confidential Information
that constitutes a "trade secret(s)" under the common law or applicable state
law.
(c) Restrictive Covenants.
---------------------
(i) Restriction on Disclosure and Use of Confidential
-------------------------------------------------
Information and Trade Secrets. Executive understands and agrees that the
- -----------------------------
Confidential Information and Trade Secrets constitute valuable assets of the
Company and its affiliated entities, and may not be converted to Executive's own
use. Accordingly, Executive hereby agrees that Executive shall not, directly or
indirectly, at any time during the Restricted Period reveal, divulge, or
disclose to any Person not expressly authorized by the Company any Confidential
Information, and Executive shall not, directly or indirectly, at any time during
the Restricted Period use or make use of any Confidential Information in
connection with any business activity other than that of the Company. Throughout
the term of this Agreement and at all times after the date that this Agreement
terminates for any reason, Executive shall not directly or indirectly transmit
or disclose any Trade Secret of the Company to any Person, and shall not make
use of any such Trade Secret, directly or indirectly, for himself or for others,
without the prior written consent of the Company. The parties acknowledge and
agree that this Agreement is not intended to, and does not, alter either the
Company's rights or Executive's obligations under any state or federal statutory
or common law regarding trade secrets and unfair trade practices.
Anything herein to the contrary notwithstanding, Executive shall
not be restricted from disclosing or using Confidential Information that is
required to be disclosed by law, court order or other legal process; provided,
however, that in the event
-16-
disclosure is required by law, Executive shall provide the Company with prompt
notice of such requirement so that the Company may seek an appropriate
protective order prior to any such required disclosure by Executive.
(ii) Nonsolicitation of Protected Employees. Executive
--------------------------------------
understands
and agrees that the relationship between the Company and each of its Protected
Employees constitutes a valuable asset of the Company and may not be converted
to Executive's own use. Accordingly, Executive hereby agrees that during the
Restricted Period Executive shall not directly or indirectly on Executive's own
behalf or as a Principal or Representative of any Person or otherwise solicit or
induce any Protected Employee to terminate his or her employment relationship
with the Company or to enter into employment with any other Person.
(iii) Restriction on Relationships with Protected Customers.
-----------------------------------------------------
Executive understands and agrees that the relationship between the Company and
each of its Protected Customers constitutes a valuable asset of the Company and
may not be converted to Executive's own use. Accordingly, Executive hereby
agrees that, during the Restricted Period, Executive shall not, without the
prior written consent of the Company, directly or indirectly, on Executive's own
behalf or as a Principal or Representative of any Person, solicit, divert, take
away or attempt to solicit, divert or take away a Protected Customer for the
purpose of providing or selling Competitive Services; provided, however, that
the prohibition of this covenant shall apply only to Protected Customers with
whom Executive had Material Contact on the Company's behalf during the twelve
(12) months immediately preceding the termination of his employment hereunder.
For purposes of this Agreement, Executive had "Material Contact" with a
Protected Customer if (a) he had business dealings with the Protected Customer
on the Company's behalf; (b) he was responsible for supervising or coordinating
the dealings between the Company and the Protected Customer; or (c) he obtained
Trade Secrets or Confidential Information about the customer as a result of his
association with the Company.
(iv) Noncompetition with the Company. The parties acknowledge:
-------------------------------
(A) that Executive's services under this Agreement require special expertise and
talent in the provision of Competitive Services and that Executive will have
substantial contacts with customers, suppliers, advertisers and vendors of the
Company; (B) that pursuant to this Agreement, Executive will be placed in a
position of trust and responsibility and he will have access to a substantial
amount of Confidential Information and Trade Secrets and that the Company is
placing him in such position and giving him access to such information in
reliance upon his agreement not to compete with the Company during the
Restricted Period; (C) that due to his management duties, Executive will be the
repository of a substantial portion of the goodwill of the Company and would
have an unfair advantage in competing with the Company; (D) that due to
Executive's special experience and talent, the loss of Executive's services to
the Company under this Agreement cannot reasonably or adequately be compensated
solely by damages in an action at law; (E) that Executive is capable of
competing with the Company; and (F) that Executive is capable of obtaining
gainful, lucrative and desirable employment that does not violate the
-17-
restrictions contained in this Agreement. In consideration of the compensation
and benefits being paid and to be paid by the Company to Executive hereunder,
Executive hereby agrees that, during the Restricted Period, Executive will not,
without prior written consent of the Company, directly or indirectly seek or
obtain a Competitive Position in the Restricted Territory with a Competitor;
provided, however, that the provisions of this Agreement shall not be deemed to
prohibit the ownership by Executive of any securities of the Company or its
affiliated entities or not more than five percent (5%) of any class of
securities of any corporation having a class of securities registered pursuant
to the Securities Exchange Act of 1934, as amended.
(d) Enforcement of Restrictive Covenants.
------------------------------------
(i) Rights and Remedies Upon Breach. In the event Executive
-------------------------------
breaches, or threatens to commit a breach of, any of the provisions of the
Restrictive Covenants, the Company shall have the following rights and remedies,
which shall be independent of any others and severally enforceable, and shall be
in addition to, and not in lieu of, any other rights and remedies available to
the Company at law or in equity:
(A) the right and remedy to enjoin, preliminarily and
permanently, Executive from violating or threatening to violate the Restrictive
Covenants and to have the Restrictive Covenants specifically enforced by any
court of competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to the
Company and that money damages would not provide an adequate remedy to the
Company; and
(B) the right and remedy to require Executive to account
for and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Executive as the result of
any transactions constituting a breach of the Restrictive Covenants.
(ii) Severability of Covenants. Executive acknowledges and
-------------------------
agrees that the Restrictive Covenants are reasonable and valid in time and scope
and in all other respects. The covenants set forth in this Agreement shall be
considered and construed as separate and independent covenants. Should any part
or provision of any covenant be held invalid, void or unenforceable in any court
of competent jurisdiction, such invalidity, voidness or unenforceability shall
not render invalid, void or unenforceable any other part or provision of this
Agreement. If any portion of the foregoing provisions is found to be invalid or
unenforceable by a court of competent jurisdiction because its duration, the
territory, the definition of activities or the definition of information covered
is considered to be invalid or unreasonable in scope, the invalid or
unreasonable term shall be redefined, or a new enforceable term provided, such
that the intent of the Company and Executive in agreeing to the provisions of
this Agreement will not be impaired and the provision in question shall be
enforceable to the fullest extent of the applicable laws.
-18-
14. Arbitration. Any claim or dispute arising under this Agreement (other
-----------
than under Section 13) shall be subject to arbitration, and prior to commencing
any court action, the parties agree that they shall arbitrate all such
controversies. The arbitration shall be conducted in Atlanta, Georgia, in
accordance with the Employment Dispute Rules of the American Arbitration
Association and the Federal Arbitration Act, 9 U.S.C. (S)1, et. seq. The
arbitrator(s) shall be authorized to award both liquidated and actual damages,
in addition to injunctive relief, but no punitive damages. The arbitrator(s) may
also award attorney's fees and costs, without regard to any restriction on the
amount of such award under Georgia or other applicable law. Such an award shall
be binding and conclusive upon the parties hereto, subject to 9 U.S.C. (S)10.
Each party shall have the right to have the award made the judgment of a court
of competent jurisdiction.
Initials of parties as to this Section 14:
Company (by R.A.Y.): _________
Executive: _________
15. Letter of Credit. In order to ensure the payment of the severance
----------------
benefit provided for in Section 8(c)(ii) of this Agreement, immediately
following the commencement of any action by a third party with the aim of
effecting a Change in Control of the Company, or the publicly-announced threat
by a third party to commence any such action, the Company shall establish an
irrevocable standby Letter of Credit issued by a national banking association in
favor of Executive in the amount of the severance payment that would have been
paid to Executive under Section 8(c)(ii) if the Date of Termination had occurred
on the date of commencement, or publicly-announced threat of commencement, of
such action by the third party. Such Letter of Credit shall provide that the
issuer thereof, subject only to Executive's written certification to such issuer
that Executive is entitled to payment of the severance benefit pursuant to
Section 8(c)(ii) of this Agreement and that the Company shall have failed to
commence payment of such benefit to Executive, shall have the unconditional
obligation to pay the amount of such Letter of Credit to Executive in 24 equal
monthly installments commencing on the first day of the month following the Date
of Termination. In the event that subsequent to commencement of such installment
payments to Executive pursuant to such Letter of Credit (i) the Company and
Executive shall mutually agree that Executive shall not have been entitled to
payment of the severance benefit pursuant to Section 8(c)(ii) of this Agreement
or (ii) a court of competent jurisdiction shall finally adjudge Executive not to
have been entitled to payment of such severance benefit and such judgment shall
have been affirmed on appeal or shall not have been appealed within any time
period specified for the filing of an appeal, Executive shall promptly pay to
the Company the total amount previously paid to Executive by the issuer of such
Letter of Credit and no further payment shall be made to Executive pursuant to
such Letter of Credit.
16. Assignment and Successors.
-------------------------
-19-
(a) This Agreement is personal to Executive and without the prior
written consent of the Company shall not be assignable by Executive otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
17. Miscellaneous.
-------------
(a) Waiver. Failure of either party to insist, in one or more
------
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part
------------
thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
------------
limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this Agreement
----------------
contains the entire agreement between the Company and Executive with respect to
the subject matter hereof and, from and after the Effective Date, this Agreement
shall supersede any other agreement between the parties with respect to the
subject matter hereof.
(e) Governing Law. Except to the extent preempted by federal law,
-------------
and without regard to conflict of laws principles, (i) the laws of the State of
Florida shall govern the rights and obligations of the parties under Section 13
hereof, and (ii) the laws
-20-
of the State of Georgia shall govern this Agreement in all other respects, in
each case, whether as to its validity, construction, capacity, performance or
otherwise.
(f) Notices. All notices, requests, demands and other
-------
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered or three days after mailing if
mailed, first class, certified mail, postage prepaid:
To Company: National Data Corporation
National Data Plaza
Atlanta, Georgia 30329-2010
To Executive: Charles W. Miller
____________________
____________________
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
----------------------------
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Employment Agreement as of the date first above written.
NATIONAL DATA CORPORATION
By: /s/ Robert A. Yellowlees
---------------------------
Robert A. Yellowlees
Chief Executive Officer
EXECUTIVE:
/s/ Charles W. Miller
--------------------------------
Charles W. Miller
-21-
EXHIBIT A
Description of Responsibilities
-------------------------------
Executive's responsibilities will include, but not be limited to,
overseeing operations in the Health Information Services line of business of the
Company following the spinoff of eCommerce.
EXHIBIT B
Form of Release
---------------
This Release is granted effective as of the ____ day of _____, ____, by
Charles W. Miller ("Executive") in favor of National Data Corporation (the
"Company"). This is the Release referred to that certain Employment Agreement
dated as of March __, 2000 by and between the Company and Executive (the
"Employment Agreement"). Executive gives this Release in consideration of the
Company's promises and covenants as recited in the Employment Agreement, with
respect to which this Release is an integral part.
1. Release of the Company. Executive, for himself, his successors,
assigns, attorneys, and all those entitled to assert his rights, now and forever
hereby releases and discharges the Company and its respective officers,
directors, stockholders, trustees, employees, agents, parent corporations,
subsidiaries, affiliates, estates, successors, assigns and attorneys ("the
Released Parties"), from any and all claims, actions, causes of action, sums of
money due, suits, debts, liens, covenants, contracts, obligations, costs,
expenses, damages, judgments, agreements, promises, demands, claims for
attorney's fees and costs, or liabilities whatsoever, in law or in equity, which
Executive ever had or now has against the Released Parties, including any claims
arising by reason of or in any way connected with any employment relationship
which existed between the Company or any of its parents, subsidiaries,
affiliates, or predecessors, and Executive. It is understood and agreed that
this Release is intended to cover all actions, causes of action, claims or
demands for any damage, loss or injury, which may be traced either directly or
indirectly to the aforesaid employment relationship, or the termination of that
relationship, that Executive has, had or purports to have, from the beginning of
time to the date of this Release, whether known or unknown, that now exists, no
matter how remotely they may be related to the aforesaid employment relationship
including but not limited to claims for employment discrimination under federal
or state law, except as provided in Paragraph 2; claims arising under Title VII
of the Civil Rights Act, 42 U.S.C. (S) 2000(e), et seq. or the Americans With
-- ----
Disabilities Act, 42 U.S.C. (S) 12101 et seq.; claims for statutory or common
-- ----
law wrongful discharge, including any claims arising under the Fair Labor
Standards Act, 29 U.S.C. (S) 201 et seq.; claims for attorney's fees, expenses
-- ----
and costs; claims for defamation; claims for wages or vacation pay; claims for
benefits, including any claims arising under the Executive Retirement Income
Security Act, 29 U.S.C. (S) 1001, et seq.; and provided, however, that nothing
-- ----
herein shall release the Company of its obligations to Executive under the
Employment Agreement or any other contractual obligations between the Company or
its affiliates and Executive, or any indemnification obligations to Executive
under the Company's bylaws, certificate of incorporation, Delaware law or
otherwise.
2. Release of Claims Under Age Discrimination in Employment Act. Without
------------------------------------------------------------
limiting the generality of the foregoing, Executive agrees that by executing
this Release, he has released and waived any and all claims he has or may have
as of the date of this Release for age discrimination under the Age
Discrimination in Employment Act, 29 U.S.C. (S) 621, et seq. It is understood
------
that Executive is advised to consult with an attorney prior to executing this
Release; that he in fact has consulted a knowledgeable,
competent attorney regarding this Release; that he may, before executing this
Release, consider this Release for a period of twenty-one (21) calendar days;
and that the consideration he receives for this Release is in addition to
amounts to which he was already entitled. It is further understood that this
Release is not effective until seven (7) calendar days after the execution of
this Release and that Executive may revoke this Release within seven (7)
calendar days from the date of execution hereof.
Executive agrees that he has carefully read this Release and is signing it
voluntarily. Executive acknowledges that he has had twenty one (21) days from
receipt of this Release to review it prior to signing or that, if Executive is
signing this Release prior to the expiration of such 21-day period, Executive is
waiving his right to review the Release for such full 21-day period prior to
signing it. Executive has the right to revoke this release within seven (7) days
following the date of its execution by him. However, if Executive revokes this
Release within such seven (7) day period, no severance benefit will be payable
to him under the Employment Agreement and he shall return to the Company any
such payment received prior to that date.
EXECUTIVE HAS CAREFULLY READ THIS RELEASE AND ACKNOWLEDGES THAT IT
CONSTITUTES A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AGAINST THE
COMPANY UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. EXECUTIVE ACKNOWLEDGES
THAT HE HAS HAD A FULL OPPORTUNITY TO CONSULT WITH AN ATTORNEY OR OTHER ADVISOR
OF HIS CHOOSING CONCERNING HIS EXECUTION OF THIS RELEASE AND THAT HE IS SIGNING
THIS RELEASE VOLUNTARILY AND WITH THE FULL INTENT OF RELEASING THE COMPANY FROM
ALL SUCH CLAIMS.
-2-