Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of the 1st day of May, 2006, by and between PER-SE TECHNOLOGIES, INC., a
Delaware corporation (the "Company"), and STEPHEN M. SCHEPPMANN, a resident of
the State of Georgia (the "Executive").
I. STATEMENT OF BACKGROUND INFORMATION
The Company, directly and through its direct and indirect subsidiary
corporations (hereinafter, "Subsidiaries"), provides comprehensive business
management outsourcing services to hospital-affiliated physician groups in the
specialties of radiology, anesthesiology, emergency medicine and pathology, as
well as physician groups practicing in academic settings and other large
physician groups. Services include clinical data collection, data input, medical
coding, billing, contract management, cash collections, accounts receivable
management and extensive reporting of metrics related to the physician practice,
plus physician practice management solutions delivered via an ASP model
(collectively, the "Physician Solutions Business").
In addition, the Company and its Subsidiaries provide electronic
clearinghouse services and point-of service systems for retail, mail order and
managed care pharmacies. Services include real-time processing related to claims
submission, eligibility verification, remittance advice, referral authorization,
drug formulary and inventory management, as well as claim status and tracking,
plus value-added transaction services and claims edits that perform financial
and administrative reviews of pharmacy transactions (collectively, the "Pharmacy
Solutions Business").
The Company and its Subsidiaries also provide revenue cycle and
resource management solutions to hospitals. Revenue cycle management solutions
include electronic processing of medical transactions as well as complementary
transactions, such as electronic remittance advices, real-time eligibility
verification and high-speed print and mail services, plus solutions to identify
and manage charges denied reimbursement by payers; resource management solutions
include enterprise-wide staff and patient scheduling software (collectively, the
"Hospital Solutions Business") (the Physician Solutions Business, the Pharmacy
Solutions Business and the Hospital Solutions Business are collectively referred
to herein as the "Business").
II. STATEMENT OF AGREEMENT
In consideration of the mutual covenants, promises and conditions set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Employment. The Company hereby employs Executive and Executive hereby
accepts such employment upon the terms and conditions set forth in this
Agreement.
2. Duties of Executive. Executive's title will be Executive Vice President
and Chief Financial Officer of the Company. Executive agrees to perform
and discharge such duties as may be
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assigned to Executive from time to time by the Company to the
reasonable satisfaction of the Company, such duties to be consistent
with those duties regularly and customarily assigned by the Company to
the position of Executive Vice President and Chief Financial Officer.
Executive also agrees to comply with all of the Company's policies,
standards and regulations as promulgated by the executive officers of
the Company, and to follow the lawful instructions and directives of
the Board of Directors of the Company and the Chairman, President and
Chief Executive Officer of the Company. Executive will devote
Executive's full professional and business-related time, skills and
best efforts to such duties and will not, during the term of this
Agreement, be engaged or plan to be engaged (whether or not during
normal business hours) in any other business or professional activity,
whether or not such activity is pursued for gain, profit or other
pecuniary advantage, without the prior written consent of the Chairman,
President and Chief Executive Officer of the Company, which consent
will not be unreasonably withheld. This Section will not be construed
to prevent Executive from (a) investing personal assets in businesses
which do not compete with the Company in such form or manner that will
not require any services on the part of Executive in the operation or
the affairs of the companies in which such investments are made and in
which Executive's participation is solely that of an investor; (b)
purchasing securities in any corporation whose securities are listed on
a national securities exchange or regularly traded in the
over-the-counter market, provided that Executive at no time owns,
directly or indirectly, in excess of one percent (1%) of the
outstanding stock of any class of any such corporation engaged in a
business competitive with that of the Company; or (c) participating in
conferences, preparing and publishing papers or books or teaching, so
long as the Chairman, President and Chief Executive Officer of the
Company approves such participation, preparation and publication or
teaching prior to Executive's engaging therein.
3. Term. The term of this Agreement will be for a two (2) year period of
time, commencing as of the date hereof and expiring on the 2nd
anniversary hereof, subject to earlier termination as provided for in
Section 4 of this Agreement. This Agreement shall be automatically
renewed for successive one (1) year periods at the end of the initial
term, unless either party gives written notice to the other of its
intent not to renew this Agreement not less than ninety (90) days prior
to the expiration of the then current term. In the event such notice
not to renew is properly and timely given, this Agreement shall expire
and thereby terminate at the end of the initial term or the one-year
renewal period in which such notice is given.
4. Termination.
(a) Termination by Company for Cause. Notwithstanding anything
contained in Section 3 to the contrary, the Company may terminate this
Agreement and all of its obligations hereunder immediately if any of
the following events occur:
(i) Executive materially breaches any of the terms or
conditions set forth in this Agreement and, as to any breach
capable of cure, fails to cure such breach within ten (10)
days after Executive's receipt from the Company of written
notice of such breach (notwithstanding the foregoing, no cure
period shall be applicable to breaches by Executive of
Sections 6, 7 or 8 of this Agreement);
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(ii) Executive commits any other act materially detrimental to
the business or reputation of the Company or its Subsidiaries;
(iii) Executive commits or is convicted of any crime involving
fraud, deceit or moral turpitude; or
(iv) Executive dies or becomes mentally or physically
incapacitated or disabled so as to be unable to perform
Executive's duties under this Agreement. Without limiting the
generality of the foregoing, Executive's inability adequately
to perform services under this Agreement for a period of sixty
(60) consecutive days will be conclusive evidence of such
mental or physical incapacity or disability, unless such
inability adequately to perform services under this Agreement
is pursuant to a mental or physical incapacity or disability
covered by the Family Medical Leave Act, in which case such
sixty (60)-day period shall be extended to a one hundred and
twenty (120)-day period.
(b) Termination by Company Without Cause. Notwithstanding anything
contained in Section 3 to the contrary, the Company may terminate
Executive's employment pursuant to this Agreement without cause upon at
least thirty (30) days' prior written notice to Executive. In the event
Executive's employment with the Company is terminated by the Company
without cause, Executive shall be entitled to severance consideration
(i) by way of salary continuation at Executive's then-current monthly
salary (this severance consideration does not include the right to
receive any incentive bonus payments) for twenty four (24) months, and
(ii) in addition, during the period of salary continuation, the Company
shall pay to Executive monthly an amount equal to the difference
between the monthly cost to Executive of medical, dental and vision and
other coverage at the levels at which Executive is participating on the
date of termination and the monthly cost to Executive of COBRA
coverage, or if COBRA coverage is not available, then the full monthly
cost of such medical, dental, vision and other coverage; provided,
however, that such cost shall not exceed the normal monthly premium
related to such coverage.. Any obligation of the Company to pay
severance or any other similar benefits, whether arising herein or in
any other Section of this Agreement, shall be contingent upon Executive
entering into a full general release of Company, its Subsidiaries and
their officers, employees, agents and other related parties, in a form
reasonably satisfactory to the Company.
(c) Termination by Executive With Good Reason. Except as set forth in
Paragraph (d) below, in the event Executive elects to voluntarily
terminate his employment following the occurrence of events
constituting "Good Reason" for his voluntary termination of employment,
Executive shall be entitled to the severance consideration specified in
Paragraph 4(b), above. For purposes of this Agreement, "Good Reason" is
defined as (i) a reduction of greater than 10% in Executive's annual
base salary; (ii) a change (absent Executive's agreement) in
Executive's regular work location to a work location more than 50 miles
from Executive's existing work location in the United States
(reasonable and necessary travel on the Company's business shall not
constitute such a change); (iii) an ongoing
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assignment to any duties inconsistent in any material adverse respect
with Executive's then current position, duties or responsibilities
(including a material diminution of Executive's duties or
responsibilities or a change in the Company's reporting structure that
requires Executive to report to a subordinate of the chief executive
officer), other than an insubstantial or inadvertent act; (iv) the
failure by the Company to continue any material benefit or compensation
plan in which Executive is participating unless Executive is provided
with comparable plans or benefits; or (v) the material breach by the
Company of any of the terms and conditions set forth in this Agreement.
Prior to effecting a termination for Good Reason, Executive must give
Company written notice of the claimed existence of Good Reason within
60 days of Executive becoming aware of such circumstances. Thereafter,
Company shall have 30 days, excluding the date of receipt of such
notice, to eliminate any circumstances within the scope of the notice
provided by Executive that in fact constitute Good Reason. In the event
such circumstances are not eliminated within the time provided,
Executive shall have 30 days subsequent to the running of the cure
period in which to exercise a right to resign for Good Reason on the
basis of the circumstances set forth in the subject notice.
(d) Change in Control. In the event (A) there is a Change in Control
(as defined herein) of the Company and Executive's employment is
terminated by the Company without cause within one (1) year following
any such Change in Control; (B) Executive's employment is terminated by
the Company at the request of or pursuant to an agreement with a third
party who has taken steps reasonably calculated to effect a Change in
Control; (C) Executive's employment is terminated by the Company in
connection with or in anticipation of a Change in Control; (D)
Executive voluntarily terminates his employment for Good Reason (as
defined above in Paragraph (c) above) within one (1) year following any
such Change in Control; or (E) Executive voluntarily terminates his
employment for Good Reason within one (1) year following any action
taken by the Company at the request of or pursuant to an agreement with
a third party who has taken steps reasonably calculated to effect a
Change in Control or any action taken by the Company in connection with
or in anticipation of a Change in Control, in each case which action
constitutes Good Reason, then Executive will be entitled to receive the
severance consideration specified in Paragraph 4(b), above, plus any
bonus payment to which Executive would be entitled, which will be
calculated by doubling the greater of the incentive bonus payment
earned by Executive during the year in which the Change in Control
occurs or the year immediately prior to the Change in Control
(regardless of when such amounts are received or to be received). For
purposes of this Agreement, a "Change in Control" of the Company shall
be deemed to occur upon any of the following:
(i) a consolidation or merger of the Company with or into any
other corporation, or any other entity or person, other than a
wholly-owned subsidiary of the Company, excluding any
transaction in which the shares of the Company's common stock
outstanding immediately prior to any such consolidation or
merger represents immediately thereafter more than 50% of the
combined voting power of the resulting entity after the
transaction;
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(ii) any corporate reorganization, including an exchange
offer, in which the Company shall not be the continuing or
surviving entity resulting from such reorganization, excluding
any transaction in which the number of shares of the Company's
common stock outstanding immediately prior to any such
reorganization represents immediately thereafter more than 50%
of the combined voting power of the resulting entity after the
transaction; or
(iii) the sale of a substantial portion of the Company's
assets, which shall be deemed to occur on the date that any
one person, or more than one person acting as a group,
acquires (or has acquired during the 12-month period ending on
the date of the most recent acquisition by such person or
persons) assets from the Company that (a) have a total fair
market value equal to more than 50% of the total fair market
value of all the assets of the Company immediately prior to
such acquisition or acquisitions, or (b) represents a majority
of the common stock of any (1) subsidiary of the Company, the
revenues of which, in the most recent fiscal year, represent
more than 75% of the consolidated gross revenues of the
Company and its subsidiaries. Notwithstanding the foregoing, a
transfer of assets or common stock in a subsidiary by the
Company will not be treated as a sale of a substantial portion
of the Company's assets if the assets are transferred to an
entity, 50% or more of the total value or voting power of
which is owned, directly or indirectly, by the Company.
5. Compensation and Benefits.
(a) Annual Salary. During the term of this Agreement and for all
services rendered by Executive under this Agreement, the Company will
pay Executive a base salary of Three Hundred Seventy Five Thousand
Dollars ($375,000) per annum to be paid in accordance with the
Company's regular payroll practices. Such base salary will be subject
to adjustments by any increases given in the normal course of business.
(b) Incentive Compensation. Executive shall be eligible to participate
in the Company's 2006 Senior Management Incentive Compensation Plan
(and any comparable future incentive compensation plans during the term
of this Agreement) at a participation category of up to Eighty Percent
(80%) of Executive's then current annual base salary, payable at the
discretion of the Board of Directors of the Company.
(c) Stock Options and Other Equity-Based Compensation. In connection
with the execution of this Agreement, and subject to the approval of
the Compensation Committee of the Company's Board of Directors (the
"Compensation Committee"), the Company will grant to Executive,
effective as of the date approved by the Compensation Committee:
(i) stock options covering an aggregate of One Hundred
Thousand (100,000) shares of the Company's Common Stock,
vesting at the rate of one third (33.33%) per year over a
three-year period beginning on the date of grant, of which (a)
Twenty Five Thousand (25,000) will be granted pursuant to the
Second Amended and Restated Per-Se Technologies, Inc.
Non-Qualified Stock Option Plan, as amended (the
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"Executive Stock Option Plan"), and (b) Seventy Five Thousand
(75,000) will be granted as a non-plan inducement grant
subject in all respects to the same terms and conditions as
options granted under the Executive Stock Option Plan; and
(ii) a deferred payment in the amount of Two Hundred Thousand Dollars
($200,000), payment of which shall be deferred under the Per-Se Technologies,
Inc. Deferred Stock Unit Plan (the "DSU Plan") and represented by deferred
"stock units" (phantom stock) credited to Executive under the terms of the DSU
Plan and payable in shares of the Company's Common Stock on a 1-for-1 basis.
This bonus shall be considered an "Enhancement Bonus" under the DSU Plan and
governed by the terms and conditions applicable to such bonuses, except that the
amount thereof shall be considered unvested until the earlier of (i) the 3rd
anniversary of the date of this Agreement or (ii) a Change in Control, and then
fully vested thereafter.
.
(d) Future Grants; Long-Term Incentive Plan. Executive shall be
considered for additional grants of stock options or other equity-based
compensation in a manner that is consistent with other members of
senior management of the Company, including compensation under the
Company's proposed 2006 Long-Term Incentive Plan, which will be
submitted for approval by the stockholders of the Company at the
Company's 2006 Annual Meeting; however, nothing in this Agreement shall
give Executive a contractual right to receive such additional grants.
Further, the Company has no obligation to Executive to create parity
with any other Company employee or employees with respect to any stock
options or other equity-based compensation granted to such other
employees.
(e) Other Benefits. Executive will be entitled to such fringe benefits
as may be provided from time-to-time by the Company to members of its
senior management, including, but not limited to, participation in the
Company's 401(k) plan, group health insurance, life and disability
insurance, vacations and any other fringe benefits, in each case as now
or hereafter provided by the Company, if and when Executive meets the
eligibility requirements for any such benefit (provided that Executive
shall be entitled to not less than four (4) weeks of vacation time each
year). The Company reserves the right to change or discontinue any
employee benefit plans or programs now being offered to its employees;
provided, however, that all benefits provided for employees of the same
position and status as Executive will be provided to Executive on a
comparable basis.
(f) Business Expenses. Executive will be reimbursed for all reasonable
expenses incurred in the discharge of Executive's duties under this
Agreement pursuant to the Company's standard reimbursement policies.
(g) Withholding. The Company will deduct and withhold from the payments
made to Executive under this Agreement, state and federal income taxes,
FICA and other amounts normally withheld from compensation due
employees.
6. Non-Disclosure of Proprietary Information. Executive recognizes and
acknowledges that the Trade Secrets (as defined below) and Confidential
Information (as defined below) of the
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Company and its Subsidiaries and all physical embodiments thereof (as
they may exist from time-to-time, collectively, the "Proprietary
Information") are valuable, special and unique assets of the Company's
and its Subsidiaries' businesses. Executive further acknowledges that
access to such Proprietary Information is essential to the performance
of Executive's duties under this Agreement. Therefore, in order to
obtain access to such Proprietary Information, Executive agrees that
Executive shall hold in confidence all Proprietary Information and will
not reproduce, distribute, disclose, publish or otherwise disseminate
any Proprietary Information, in whole or in part, and will take no
action causing, or fail to take any action necessary to prevent
causing, any Proprietary Information to lose its character as
Proprietary Information, nor will Executive make use of any such
information for Executive's own purposes or for the benefit of any
person, firm, corporation, association or other entity (except the
Company and its Subsidiaries) under any circumstances.
For purposes of this Agreement, the term "Trade Secrets" means
information, without regard to form, including, but not limited to, any
technical or non-technical data, formula, pattern, compilation,
program, device, method, technique, drawing, process, financial data,
financial plan, product plan, list of actual or potential customers or
suppliers, or other information similar to any of the foregoing, which
is not commonly known by or available to the public or generally known
in the industry and (i) 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 derive economic value from
its disclosure or use, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. For
purposes of this Agreement, the term "Trade Secrets" does not include
information that Executive can show by competent proof (i) was known to
Executive and reduced to writing prior to disclosure by the Company
(but only if Executive promptly notifies the Company of Executive's
prior knowledge); (ii) was generally known to the public or generally
known in the industry at the time the Company disclosed the information
to Executive; (iii) became generally known to the public or generally
known in the industry after disclosure by the Company through no act or
omission of Executive; or (iv) was disclosed to Executive by a third
party having a bona fide right both to possess the information and to
disclose the information to Executive. The term "Confidential
Information" means any information of the Company, other than trade
secrets, which is valuable to the Company and not generally known to
competitors of the Company. The provisions of this Section 6 will apply
to Trade Secrets for so long as such information remains a trade secret
and to Confidential Information during Executive's employment with the
Company and for a period of two (2) years following any termination of
Executive's employment with the Company for whatever reason.
7.A. Non-Competition Covenant. During Executive's employment by the
Company, Executive will be a member of the Company's senior management
team and will regularly receive Proprietary Information regarding the
Business. Executive agrees that, during his employment and for a period
of two (2) years following any termination of Executive's employment
for any reason, Executive will not, directly or indirectly, on
Executive's own behalf or in the service of or on behalf of any other
individual or entity, compete within the Geographical Area (as
hereinafter defined). The term "compete" means to engage in, have
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(except as set out below) any equity or interest in, or render services
of any marketing, management, sales, or management consulting nature,
directly or indirectly, either as a proprietor, employee, agent,
independent contractor, consultant, director, officer, partner or
stockholder (other than a stockholder of a corporation listed on a
national securities exchange or whose stock is regularly traded in the
over-the-counter market, provided that Executive at no time owns,
directly or indirectly, in excess of one percent (1%) of the
outstanding stock of any class of any such corporation) any business
that provides products or services that are the same or substantially
similar to those of the Business. For purposes of this Agreement, the
term "Geographical Area" means the territory located within a fifty
(50) mile radius of the Company's headquarters location at 1145
Sanctuary Parkway, Suite 200, Alpharetta, GA 30004 or within the same
distance of each facility of the Company or a Subsidiary for which
Executive shall have management responsibility at the outset of the
term of this Agreement. Executive acknowledges and agrees that he has
the opportunity to become and is, in fact, aware of the locations of
all such facilities; Executive acknowledges that he will be active in
the management of all such facilities (including personal visits to
some or all); and that the restrictions set forth in this subparagraph
are reasonable and permit Executive to determine at the outset of the
term of this Agreement those locations falling within the coverage of
this subparagraph.
7.B. Non-Solicitation of Clients Covenant. Executive agrees that during
Executive's employment by the Company and for a period of two (2) years
following the termination of Executive's employment for whatever
reason, Executive will not, directly or indirectly, on Executive's own
behalf or in the service of or on behalf of any other individual or
entity, divert, solicit or attempt to divert or solicit any individual
or entity (i) who is a client of any Business operations for which
Executive had management responsibility during Executive's employment
with the Company ("Client"), or was actively sought thereby as a
prospective client and (ii) with whom Executive had material contact or
obtained Proprietary Information about within the last twelve (12)
months of Executive's employment by the Company, to provide to such
Clients or prospects products or services that are the same or
substantially similar to those of the Business.
7.C. Construction. The parties hereto agree that any judicial authority
construing all or any portion of this Section 7 or Section 8 below
shall sever any term of such Sections found to render such Sections
unenforceable and shall replace each such severed provision with a
provision as similar in terms to such severed provision as may be
possible and be legal, valid and enforceable. The parties agree that
the Court shall likewise enforce all non-severed provisions. It is the
intent of the parties that Sections 7 and 8 be enforced to the maximum
extent permitted by law.
8. Non-Solicitation of Employees Covenant. Executive further agrees and
represents that during Executive's employment by the Company and for a
period of one (1) year following any termination of Executive's
employment for whatever reason, Executive will not, directly or
indirectly, on Executive's own behalf or in the service of, or on
behalf of any other individual or entity, divert or solicit, or attempt
to divert or solicit, to or for any individual or entity which is
engaged in providing products or services that are the same or
substantially
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similar to those of the Business, any person employed by the Company or
a Subsidiary, whether or not such employee is a full-time employee or
temporary employee, whether or not such employee is employed pursuant
to written agreement and whether or not such employee is employed for a
determined period or at-will, provided Executive had material contact
with such employee within the last twelve (12) months of Executive's
employment.
9. Existing Restrictive Covenants. Executive represents and warrants that
Executive's employment with the Company does not and will not breach
any agreement which Executive has with any former employer or other
individual or entity to keep in confidence confidential information or
not to compete with any such former employer. Executive will not
disclose to the Company or use on its behalf any confidential
information of any other party required to be kept confidential by
Executive.
10. Return of Proprietary Information. Executive acknowledges that as a
result of Executive's employment with the Company, Executive will come
into the possession and control of Proprietary Information, such as
proprietary documents, drawings, specifications, manuals, notes,
computer programs, or other proprietary material. Executive
acknowledges, warrants and agrees that Executive will return to the
Company all such items and any copies or excerpts thereof, in any form
or medium, and any other properties, files or documents obtained as a
result of Executive's employment with the Company, immediately upon the
termination of Executive's employment with the Company.
11. Proprietary Rights. During the course of Executive's employment with
the Company, Executive may make, develop or conceive of useful
processes, machines, compositions of matter, computer software,
algorithms, works of authorship expressing such algorithm, or any other
discovery, idea, concept, document or improvement which relates to or
is useful to the Business (the "Inventions"), whether or not subject to
copyright or patent protection, and which may or may not be considered
Proprietary Information. Executive acknowledges and agrees that all
such Inventions will be "works made for hire" under United States
copyright law and will otherwise be and remain the sole and exclusive
property of the Company. Executive also hereby assigns and agrees to
assign to the Company, in perpetuity, all right, title and interest
Executive may have in and to such Inventions, including without
limitation, all copyrights, and the right to apply for any form of
patent, utility model, industrial design or similar proprietary right
recognized by any state, country or jurisdiction. Executive further
agrees, at the Company's request and expense, to do all things and sign
all documents or instruments necessary, in the opinion of the Company,
to eliminate any ambiguity as to the ownership of, and rights of the
Company to, such Inventions, including filing copyright and patent
registrations and defending and enforcing in litigation or otherwise
all such rights.
Executive will not be obligated to assign to the Company any Invention
made by Executive while in the Company's employ which does not relate
to any business or activity in which the Company is or may reasonably
be expected to become engaged, except that Executive is so obligated if
the same relates to or is based on Proprietary Information to which
Executive will have had access during and by virtue of Executive's
employment or which arises out of work assigned to Executive by the
Company. Executive will not be obligated to assign any
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Invention which may be wholly conceived by Executive after Executive
leaves the employ of the Company, except that Executive is so obligated
if such Invention involves the utilization of Proprietary Information
obtained while in the employ of the Company. Executive is not obligated
to assign any Invention which relates to or would be useful in any
business or activities in which the Company is engaged if such
Invention was conceived and reduced to practice by Executive prior to
Executive's employment with the Company.
12. Remedies. Executive agrees and acknowledges that the violation of any
of the covenants or agreements contained in Sections 6, 7, 8, 9, 10 and
11 of this Agreement would cause irreparable injury to the Company,
that the remedy at law for any such violation or threatened violation
thereof would be inadequate, and that the Company will be entitled, in
addition to any other remedy, to temporary and permanent injunctive or
other equitable relief without the necessity of proving actual damages
or posting a bond. Executive further agrees and acknowledges that, for
the purpose of such covenants and agreements and any such remedy, the
Subsidiaries of the Company shall be express third-party beneficiaries
with a protectable interest and independent right to enforce such
provisions in order to protect the business interests of such
Subsidiaries.
13. Notices. Any notice or under this Agreement shall be in writing and
shall be sufficient if sent by hand delivery, registered or certified
mail, or commercial overnight delivery service addressed to the
respective parties as follows:
If to the Company: If to Executive:
Per-Se Technologies, Inc. Stephen M. Scheppmann
1145 Sanctuary Parkway 3610 Schooner Ridge
Suite 200 Alpharetta, GA 30005
Alpharetta, GA 30004
Attn: Chief Executive Officer
copy to: General Counsel
or such other address or agent as may be hereafter designated in
writing by either party hereto. All such notices shall be deemed given
on the date personally delivered (if by hand delivery) or when
deposited for mail delivery. All notices sent by other forms of
delivery will be effective upon receipt.
14. Severability. Subject to the application of Section 7(C) to the
interpretation of Sections 7 and 8, in case one or more of the
provisions contained in this Agreement is for any reason held to be
invalid, illegal or unenforceable in any respect, the parties agree
that it is their intent that the same will not affect any other
provision in this Agreement, and this Agreement will be construed as if
such invalid or illegal or unenforceable provision had never been
contained herein. It is the intent of the parties that this Agreement
be enforced to the maximum extent permitted by law.
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15. Entire Agreement. This Agreement embodies the entire agreement of the
parties relating to the subject matter of this Agreement and supersedes
all prior agreements, oral or written, regarding the subject matter
hereof. No amendment or modification of this Agreement will be valid or
binding upon the parties unless made in writing and signed by the
parties.
16. Binding Effect. This Agreement will be binding upon the parties and
their respective heirs, representatives, successors, transferees and
permitted assigns.
17. Assignment. This Agreement is one for personal services and will not be
assigned by Executive. The Company may assign this Agreement to any of
its subsidiaries or affiliated companies, provided that the parent or
any subsidiary or affiliate fulfills the obligations of the Company
under this Agreement.
18. Governing Law. This Agreement is entered into and will be interpreted
and enforced pursuant to the laws of the State of Georgia, and any and
all disputes arising under the terms of this Agreement shall be
resolved in a court of competent jurisdiction in the State of Georgia,
the parties consenting to personal jurisdiction and venue of the courts
of such State. Notwithstanding the foregoing, any dispute related to
enforcement or interpretation of Section 7 or Section 8 of this
Agreement shall be resolved in a court of competent jurisdiction
located in the state of residence of the Executive as set out above,
and the parties hereby consent to the personal jurisdiction and venue
of the courts of such State; such courts shall serve as the exclusive
forum for resolution of any such disputes.
19. Indemnification. Executive shall be entitled to indemnification by the
Company as provided for in the Company's Restated Certificate of
Incorporation and Restated By-laws, as amended, and to such greater
extent, if any, as may in the future be provided by the Company to its
executive officers pursuant to separate indemnification agreements.
20. Surviving Terms. Sections 6, 7, 8, 9, 10, 11 and 12 of this Agreement
shall survive any termination of this Agreement.
21. Conditions Precedent. This Agreement shall not be effective until duly
executed by Executive and by the Chairman, President and Chief
Executive Officer of the Company.
22. Code Section 409A. Notwithstanding anything in the Agreement to the
contrary, to the extent that any amount or benefit that would
constitute "deferred compensation" for purposes of Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code") would otherwise
be payable or distributable under the Agreement by reason of the
Executive's separation from service, then, to the extent necessary to
comply with Code Section 409A (as determined by the Company acting in
good faith), such amount or benefit will not be payable or
distributable to Executive by reason of such circumstance until the six
(6) month anniversary of such separation from service.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANY: EXECUTIVE:
By: /s/ PHILIP M. PEAD /s/ STEPHEN M. SCHEPPMANN
----------------------------- -------------------------
Philip M. Pead Stephen M. Scheppmann
Chairman, President
and Chief Executive Officer
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EXHIBIT A
INVENTIONS
Executive represents that there are no Inventions.
SMS
--------------------
Executive's Initials
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