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EXHIBIT 10.17
EMPLOYMENT AGREEMENT
OF
KEVIN M. McNAMARA
This Employment Agreement ("Agreement") is entered into between ENVOY
Corporation, a Delaware corporation ("Company"), and Kevin M. McNamara, a
resident of Boca Raton, Florida, ("Executive"), effective as of February 1,
1996. The Company and the Executive are sometimes referred to herein as the
"Parties."
1. Introduction: The Company believes that the assurance of the
Executive's continued employment by the Company and the benefit of his business
experience are of material importance. Therefore, the Company and the
Executive intend by this Agreement to rescind any existing employment agreement
and to specify the terms and conditions of the Executive's continuing
employment relationship with the Company.
2. Employment: The Company hereby employs the Executive and the
Executive hereby accepts continuing employment with the Company upon terms and
conditions set forth herein.
3. Duties and Responsibilities:
3.1 Extent of Service: The Executive shall, during the term of
this Agreement, devote such of his entire time, attention, energies and
business efforts to his duties as an executive of the Company as are reasonably
necessary to carry out his duties specified in Paragraph 3.2 below. The
Executive shall not, during the term of this Agreement, engage in any other
business activity (whether or not such business activity is pursued for gain,
profit or other pecuniary advantage) if such business activity would impair the
Executive's ability to carry out his duties hereunder. This Paragraph 3.1,
however, shall not be construed to prevent the Executive from investing his
personal assets as a passive investor.
3.2 Position and Duties: Subject to the power of the Board of
Directors of the Company to elect and remove officers and the Power of the
stockholders to remove directors, the Executive shall serve the Company as Vice
President of Finance and Chief Financial Officer; and shall perform, faithfully
and diligently, the services and functions relating to such office or otherwise
reasonably incident to such office as may be designated from time to time by
the Board of Directors of the Company; provided that all such services and
functions shall be reasonable and within the Executive's area of expertise; and
provided further that the Executive shall be physically capable of performing
the same.
3.3 Place of Employment: During the term of this Agreement, the
Company shall maintain its principal executive offices in the Nashville,
Tennessee area, and the Executive's primary place of employment shall be at
such principal executive offices. During the term of this Agreement, the
Company will provide the Executive with a private office, an executive
secretary and other customary staff support services, all as are commensurate
with the services and functions to be performed by him hereunder.
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4. Salary and Other Benefits: Subject to the terms and conditions of
this Agreement;
4.1 Salary: As compensation for his services under and during the
term of his employment under this Agreement, the Executive shall be paid an
annual salary of not less than $175,000.00, payable in accordance with the then
current payroll policies of the Company. Such salary shall be subject to
increase by the Board of Directors of the Company (or the appropriate committee
thereof) from time to time. The annual salary payable from time to time by the
Company to the Executive pursuant to this Paragraph 4.1 is herein sometimes
referred to as his "Base Salary."
4.2 Other Benefits: As long as the Executive is employed by the
Company, the Executive shall be entitled to receive the following benefits in
addition to his base salary:
(a) The Executive shall have the right to participate in
all group benefit plans of the Company (including without limitation,
disability, accident, medical, life insurance, hospitalization and
pension), all in accordance with the Company's regular practices with
respect to its senior officers.
(b) The Executive shall be entitled to reimbursement from
the Company for reasonable out-of-pocket expenses incurred by him in
the course of the performance of his duties hereunder.
(c) In addition, the Company shall pay Executive an
annual bonus of up to 50% of Base Salary subject to performance
criteria established by the Chairman and the President.
(d) The Executive shall be entitled to such vacation,
holidays and other paid or unpaid leaves of absence as are consistent
with the Company's other officers. Executive shall be entitled to
twenty-eight (28) days of paid vacation each year. This vacation
allowance shall be cumulative from year to year, but shall be limited
to three (3) years accumulation. Executive recognizes the essential
nature of his duties and hereby agrees the maximum amount of vacation
time to be taken shall not exceed twenty-eight (28) consecutive days.
5. Term: The term of this Agreement shall be for an initial period of
two years ending on February 1, 1998, and shall thereafter automatically be
extended for an additional period of one year on a yearly basis, unless on or
before August 1, 1997 or August 1 of any subsequent year, either the Executive
or the Company gives the other party notice that the term of this Agreement
will not be so extended, in which case the term of this Agreement will end on
the end of the year designated in the notice. Notwithstanding the foregoing,
the indemnification provisions of this Agreement contained in Paragraph 10
shall survive until the expiration of the statute of limitations for assessment
of any excise tax under Section 4999 of the Code with regard to an Excess
Parachute Payment on account of the Change of Control.
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6. Termination and Resignation: The Company shall have the right to
terminate the Executive's employment hereunder at any time and for any reason,
and upon any such termination the Executive shall be entitled to receive from
the Company prompt payment of the amount determined pursuant to the applicable
subparagraph of Paragraph 7 below. The Executive shall have the right to
terminate his employment hereunder at any time by resignation, and he shall
thereupon be entitled to receive from the Company prompt payment of the amount
determined pursuant to the applicable subparagraph of Paragraph 7 below.
7. Payments Upon Termination and Resignation:
7.1 Pro Rata Payments: If (a) the Company at any time terminates
the Executive's employment for Cause (as defined below), or (b) prior to the
occurrence of a Change In Control (as defined below) of the Company, the
Executive voluntarily resigns for any reason other than because of an uncured
material breach by the Company of any term of this Agreement, then in each case
the Executive shall be entitled to receive only his Base Salary on a pro rata
basis to the date of termination plus reimbursement of expenses through the
date of termination in accordance with Paragraph 4.2(b). If the Executive at
any time dies or becomes disabled (being the inability of the Executive to
perform his normal employment duties for the remainder of the term of this
Agreement because of either physical or mental incapacity), the Executive shall
be entitled to receive only his Base Salary plus Bonus on a pro rata basis to
the date of termination or resignation. For purposes of this Paragraph 7.1,
"pro rata" shall mean the product of the Executive's annual Base Salary and
Bonus that would have been payable had the Executive's employment not
terminated multiplied by a fraction the denominator of which is 365 and the
numerator of which is the number of days during the calendar year, that have
passed through the date of the termination of the Executive's employment.
7.2 Base Salary and Average Bonus Payment: If prior to the
occurrence of an Initial Change in Control Event (as defined below), the
Company terminates the Executive's employment because of a Discharge Event (as
defined below), or if prior to the occurrence of a Change in Control of the
Company, the Executive resigns because of the uncured material breach by the
Company of any term of this Agreement, then in each case the Executive shall be
entitled to receive a lump sum payment equal to his Base Salary and Average
Bonus (as defined below). If prior to the occurrence of an Initial Change in
Control Event the Company terminates the Executive's employment without Cause
and without a Discharge Event, then the Executive shall be entitled to receive
the greater of (a) a lump sum payment equal to his Base Salary and Average
Bonus, or (b) his Base Salary and bonuses as provided in Paragraph 4 for
the remainder of the unexpired term of this Agreement.
7.3 Multiple Base Salary Payment: If after the occurrence of an
Initial Change of Control Event of the Company, the Company terminates the
Executive's employment hereunder (a) because of a Discharge Event, or (b)
without Cause and without any Discharge Event, then in either case the Company
will pay to the Executive a lump sum termination payment equal to two (2) times
the sum of his Base Salary and his Average Bonus (as defined below)
(collectively, the "Lump Sum Payment"). If after the occurrence of a Change in
Control of the Company, (a) the Company terminates the Executive's employment
hereunder for any reason other than for
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Cause (other than his death or disability), or (b) the Executive voluntarily
resigns his employment hereunder for any reason (other than his death or
disability), then in each case the Company will pay to the Executive the Lump
Sum Payment.
7.4 Certain Definitions:
(a) "Average Bonus" shall mean that result obtained by
dividing the sum of the bonuses, if any, paid to the Executive
pursuant to Paragraph 4.2 above in respect of the two years next
preceding the year in which a Change in Control of the Company occurs
by the number of years during such two-year period in which the
Executive was entitled to receive a bonus pursuant to Paragraph 4.2
above; provided, however, that with respect to a termination of
employment that occurs prior to 1998, the Average Bonus of the
Executive shall be not less than 50% of the Base Salary of the
Executive.
(b) Termination by the Company of the Executive's
employment for "Cause" shall mean termination upon the willful
misappropriation of funds or properties of the Company or the willful
contravention of the standards referred to in the last sentence of
Paragraph 11 below. For purposes of this definition, no act, or
failure to act, on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive's action or omission
was in the best interest of the Company. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote
of not less than three-quarters of the entire membership of the Board
of Directors of the Company at a meeting of the Board duly called and
held (after reasonable notice to the Executive and an opportunity for
the Executive, together with his counsel, to be heard before the
Board) finding that in the good faith opinion of the Board the
Executive was guilty of the conduct set forth above and specifying the
particulars thereof in detail.
(c) A "Change in Control" shall be conclusively deemed to
have occurred if (and only if) any of the following shall have taken
place: (i) a change in control is reported by the Company in response
to either Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or Item 1 of Form 8-K promulgated under the Exchange Act; (ii)
any person (as such term is used in Section 13 (d) and 14 (d) (2) of
the Exchange Act) is or becomes the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) directly or indirectly, of
securities of the Company representing forty percent or more of the
combined voting power of the Company's then outstanding securities; or
(iii) following the election or removal of directors, a majority of
the Board consists of individuals who were not members of the Board
two years before such election or removal, unless the election of each
director who was not a director at the beginning of such two-year
period has been approved in advance by directors representing at least
a majority of the directors then in office who were directors at the
beginning of the two-year period.
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(d) The "Code" shall refer to the Internal Revenue of
1986, as amended.
(e) A "Discharge Event" shall have occurred if the
Executive shall have received a copy of a resolution duly adopted by
the affirmative vote of a majority of the members of the Compensation
Committee of the Board of Directors of the Company finding that, upon
the recommendation of and for the reasons cited by the Chairman of the
Company, the Executive is no longer discharging his duties in a manner
consistent with the effective administration of the affairs of the
Company and hence the continued employment of the Executive is no
longer in the best interest of the Company.
(f) An "Initial Change in Control Event" shall be
conclusively deemed to have occurred when any individual, group,
partnership, corporation, trust or other entity ("Person") initiates a
course of action or conduct that, in the good faith judgment of the
Board of Directors of the Company, might reasonably be expected to
lead to a Change in Control of the Company. For example and without
limiting the scope of the foregoing, an Initial Change in Control
Event would include the public announcement or other disclosure by a
Person of its intention (i) to acquire by private or open market
purchase, tender offer, exchange offer, or otherwise forty percent or
more of the combined voting power of the Company's outstanding
securities, or (ii) to solicit proxies or consents for the removal of
at least three incumbent directors or the election of at least three
persons to serve as directors of the Company in opposition to nominees
proposed by the Board of Directors of the Company.
(g) A "material breach" by the Company of this Agreement
shall include, without limitation, the removal of the Executive
without his prior written consent from the position of Vice
President - Finance or as Chief Financial Officer.
8. Acceleration of Options: Contemporaneously with the occurrence of a
Change in Control of the Company, the Board of Directors of the Company (or the
appropriate committee thereof) will accelerate all outstanding options
previously granted to the Executive under any then existing Company stock
option, stock appreciation or other employee incentive plan that are not
otherwise exercisable by the Executive at the time the Change in Control of the
Company occurs.
9. Tax Reimbursement Payment.
9.1 Notwithstanding anything to the contrary contained in this
Agreement, in any plan of the Company, or in any other agreement or
understanding, the Company will pay to the Executive, at the times herein
specified, an amount (the "Additional Amount") equal to the excise tax under
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), if
any, incurred or to be incurred by the Executive by reason of the payments
under this Agreement, acceleration of vesting of stock options, stock
appreciation rights or restricted stock granted under the Company's various
stock option, stock appreciation or other employee incentive plans, or payments
under any other plan, agreement or understanding between the Executive and the
Company, constituting Excess Parachute Payments (as defined below), plus all
excise taxes and federal, state and local income taxes incurred or to be
incurred by the Executive with respect to
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receipt of the Additional Amount. For purposes of this Agreement, the term
"Excess Parachute Payment" shall mean any payment or any portion thereof which
would be an "excess parachute payment" within the meaning of Section 280G(b) of
the Code, and which would result in the imposition of an excise tax on the
Executive under Section 4999 of the Code. Attached hereto as Exhibit A is an
example illustrating the computation of the Additional Amount.
9.2 All determinations required to be made regarding the
Additional Amount, including whether payment of any Additional Amount is
required and the amount of any Additional Amount, shall be made by the
independent accounting firm which is advising the Company (the "Accounting
Firm"), which shall provide detailed support calculations to the Company and
the Executive on or before the last day of the calendar year during which
occurs the Change of Control (the "Change of Control Year"). In computing
taxes, the Accounting Firm shall use the highest marginal federal, state and
local income tax rates applicable to single taxpayers for the year in which the
Additional Amount is to be paid (unless, within 30 days after the occurrence of
the Change in Control the Executive specifies in writing to the Company his
marginal tax rate) and shall assume the full deductibility of state and local
income taxes for purposes of computing federal income tax liability. The
portion of the Additional Amount based on the excise tax as determined by the
Accounting Firm to be due for the Change of Control Year shall be paid to the
Executive no later than March 1 immediately following the end of the Change of
Control Year. The portion of the Additional Amount based on the excise tax as
determined by the Accounting Firm to be due for each calendar year following
the Change of Control Year shall be paid to the Executive on or before March 1
immediately following the end of each such calendar year. If the Company
determines that the excise tax for any year will be different from the amount
originally calculated in the report of the Accounting Firm delivered at the end
of the Change of Control Year, then the Company shall provide to the Executive
detailed support calculations by the Accounting Firm specifying the basis for
the change in the Additional Amount.
10. Indemnification.
10.1 If the Executive shall have to institute litigation brought in
good faith to enforce any of his rights under the Agreement, the Company shall
indemnify the Executive for his reasonable attorney's fees and disbursements
incurred in any such litigation.
10.2 In the event that an excise tax is ever assessed by the
Internal Revenue Service against the Executive (or if the Company and the
Executive mutually agree that an excise tax is payable) by reason of the
payment under this Agreement, acceleration of vesting of stock options, stock
appreciation rights or restricted stock granted under the Company's stock
option, stock appreciation or other employee incentive plans, or payments under
any other plan, agreement or understanding between the Executive and the
Company, constituting Excess Parachute Payments, and if such excise tax was not
included in the determination by the Accounting Firm of the Additional Amount
that has been actually paid to the Executive, the Company agrees to indemnify
the Executive by paying to the Executive the amount of such excise tax,
together with any interest and penalties, including reasonable legal and
accounting fees and other out-of-pocket expenses incurred by the Executive,
attributable to the failure to say such excise tax by the date it was
originally due, plus all federal, state and local income taxes incurred with
respect to payment of
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the excise tax calculated in a manner analogous to Exhibit A. Upon Executive's
receipt from the Internal Revenue Service ("IRS") of any deficiency notice,
notice of assessment or any other written communication relating to the excise
tax on Excess Parachute Payment, Executive shall give notice thereof to the
Company within ten business days of receipt thereof. In the event of any
dispute concerning the potential excise tax (including any administrative
proceedings within the IRS or court proceedings), the Company, as the
indemnifying party, shall be entitled to assume the defense of such a dispute
or proceeding, no compromise or settlement of such claim may be effected
without the Company's and Executive's mutual consent (which consents shall not
be unreasonably withheld) and the Company shall have no liability with respect
to any compromise or settlement of such claims effected without its consent.
In addition, in the event the Company assumes defense of any proceeding, the
Executive shall not be entitled to indemnification for outside legal fees and
expenses independently incurred by Executive. This indemnification obligation
shall survive the termination of the Agreement and shall apply to all such
excise taxes on Excess Parachute Payments, whether due before or after
termination of employment.
10.3 If the excise tax for any year which is actually imposed on
the Executive is finally determined to be less than the amount taken into
account in the calculation of the Additional Amount that was paid to the
Executive pursuant to Paragraph 9, then the Executive shall repay to the
Company, at the time that the amount of such reduction in excise tax is finally
determined, the portion of the Additional Amount attributable to such reduction
(including the portion of the Additional Amount attributable to the excise tax
and federal and state income taxes imposed on the Additional Amount being
repaid by the Executive, to the extent that such repayment results in a
reduction in such excise tax, federal or state income tax), plus interest on
the amount of such repayment at the rate provided in section 1274(b)(2)(B) of
the Code.
11. Preservation of Business; Fiduciary Responsibility: The Executive
shall use his best efforts to preserve the business and organization of the
Company, to keep available to the Company the services of present employees and
to preserve the business relations of the Company with suppliers, distributors,
customers and others. The Executive shall not commit any act, or in any way
assist others to commit any act, which would injure the Company. So long as
the Executive is employed by the Company, the Executive shall observe and
fulfill proper standards of fiduciary responsibility attendant upon his service
and office.
12. Restrictive Covenants:
12.1 Covenants Against Competition: Executive acknowledges that
(a) the business of the Company and its affiliates is as described in the
Company's annual report on Form 10-K as filed with the Securities and Exchange
Commission for its fiscal year ended December 31, 1995, and thereafter as
described in each successive annual report on Form 10-K filed by the Company
(the "Company Business"); and (b) Executive's work for the Company will bring
him into close contact with many confidential matters not readily available to
the public.
12.2 Non-Compete: During the term of this Agreement (including any
renewal periods as provided in Paragraph 5) and for a period of 12 months
following the termination of
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Executive's employment with the Company under this Agreement, whether
Executive's employment terminates pursuant to the provisions of Paragraph 6 of
this Agreement or otherwise (collectively, the "Restricted Period"), Executive
covenants and agrees that he will not, without the express approval of the
Board of Directors, directly or indirectly anywhere in the continental United
States engage in any business directly or indirectly, as an individual,
partner, shareholder, officer, director, principal, agent, employee, trustee,
consultant or in any other relationship or capacity, if such business is
competitive directly or indirectly, with the Company Business and substantially
injurious to the Company's financial interests; provided, however, that
Executive may own, directly or indirectly, solely as an investment, securities
of any entity if Executive (a) is not a controlling person with respect to such
entity and (b) does not, directly or indirectly, own five percent or more of
any class of the securities of such entity.
12.3 Trade Secrets; Confidential Information: Executive covenants
and agrees that at all times during and after the Restricted Period, he shall
keep secret and not disclose to others or appropriate to his own use or the use
of others any trade secrets, or secret or confidential information or knowledge
pertaining to the Company Business or the affairs of the Company or any of its
affiliates including without limitation trade know-how, trade secrets,
consultant contracts, customer lists, pricing policies, operational methods,
marketing plans or strategies, product development techniques or plans,
business acquisition plans, new personnel acquisition plans, technical
processes, designs and design projects, inventions and research projects;
provided, however, that the following shall not constitute a breach or
violation of this Paragraph: any disclosure made by the Executive in the
course of his employment by the Company as provided in this Agreement, or any
disclosure reasonably believed by Executive to be compelled by law or legal
process. Information shall not be deemed confidential or secret for purposes
of this Agreement if it is generally known in the industry.
12.4 Employees of the Company: During the Restricted Period,
Executive shall not directly or indirectly hire away or solicit to hire away
from the Company or any of its affiliates any employee of the Company or its
affiliates.
12.5 Property of the Company: All memoranda, notes, lists, records
and other documents (and all copies thereof) made or compiled by Executive or
made available to Executive during his employment by the Company concerning the
business or affairs of the Company or any of its affiliates, other than any of
such which may also pertain personally to Executive, shall be the exclusive
property of the Company and shall be delivered to the Company promptly upon the
termination of Executive's employment with the Company or at any other time on
request by the Board of Directors of the Company or such affiliates.
12.6 Rights and Remedies Upon Breach: If Executive breaches, or
threatens to commit a breach of, any of the provisions of Paragraphs 12.2
through 12.5 of this Agreement (collectively, the "Restrictive Covenants") the
Company shall have the following rights and remedies, each of which shall be
independent of the other and severally enforceable, and all of which shall be
in addition to, and not in lieu of, any other rights and remedies available to
the Company: (a) the right and remedy to have any of the Restrictive Covenants
specifically enforced by any court having jurisdiction and in Tennessee by an
arbitration panel as provided in Paragraph
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15 of this Agreement, it being hereby acknowledged and agreed by Executive that
any such breach or threatened breach will cause irreparable injury to the
Company and that money damages will 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 a result of any
transactions constituting a breach of any of the Restrictive Covenants, and
Executive shall account for and pay over such benefits to the Company.
12.7 Severability of Covenants: If it is determined that any of
the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions. If it is
determined that any of the Restrictive Covenants, or any part thereof, is
unenforceable because of the duration of such provision, the geographical area
covered thereby, or any other determination of unreasonableness of the
provision, the arbitration panel making such determination shall have the power
to reduce the duration, area or scope of such provision and, in its reduced
form, such provision shall then be enforceable and shall be enforced.
13. Notice: All notices, requests, demands and other communications given
under or by reason of this Agreement shall be in writing and shall be deemed
given when delivered in person or when mailed, by certified mail (return
receipt requested), postage prepaid, addressed as follows (or to such other
address as a party may specify by notice pursuant to this provision):
(a) To the Company:
ENVOY Corporation
15 Century Boulevard, Suite 600
Two Lakeview Place
Nashville, Tennessee 37214
(b) Kevin McNamara
6313 Wescates Court
Brentwood, TN 37027
14. Controlling Law and Performability: The execution, validity,
interpretation and performance of this Agreement shall be governed by the law
of the State of Tennessee.
15. Arbitration: Any dispute or controversy arising under or in
connection with this Agreement shall be settled by arbitration in Nashville,
Tennessee. In the proceeding the Executive shall select one arbitrator, the
Company shall select one arbitrator and the two arbitrators so selected shall
select a third arbitrator. The decision of a majority of the arbitrators shall
be binding on the Executive and the Company. Should one party fail to select
an arbitrator within five days after notice of the appointment of an arbitrator
by the other party or should the two arbitrators selected by the Executive and
the Company fail to select an arbitrator within ten days after the date of the
appointment of the last of such two arbitrators, any person sitting as a Judge
of the United States District Court for the Middle District of Tennessee,
Nashville Division,
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upon application of the Executive or the Company, shall appoint an arbitrator
to fill such space with the same force and effect as though such arbitrator had
been appointed in accordance with the first sentence of this Paragraph 15. Any
arbitration proceeding pursuant to this Paragraph 15 shall be conducted in
accordance with the rules of the American Arbitration Association. Judgment
may be entered on the arbitrators' award in any court having jurisdiction.
16. Expenses: The Company will pay or reimburse the Executive for all
costs and expenses (including arbitration and court costs and attorneys' fees)
incurred by the Executive as a result of any claim, action or proceeding
arising out of, or challenging the validity, advisability or enforceability of
this Agreement or any provision thereof.
17. No Obligation to Mitigate: The Executive shall not be required to
mitigate the amount of any payment provided for in Paragraph 7 by seeking other
employment or otherwise, nor shall the amount of any payment provided for in
Paragraph 7 be reduced by any compensation earned by the Executive as a result
of employment by another employer or otherwise.
18. Additional Instruments: The Parties shall execute and deliver any and
all additional instruments and agreements that may be necessary or proper to
carry out the purposes of this Agreement.
19. Entire Agreement and Amendments: This Agreement contains the entire
agreement of the Parties relating to the matters contained herein and
supersedes all prior agreements and understandings, oral or written, between
the Parties with respect to the subject matter hereof; provided, however, that
nothing herein shall affect in any respect the rights and obligations of the
Company and the Executive under any Incentive Agreements implemented prior to
the date of this Agreement and not expressly referred to herein. This
Agreement may be changed only by an agreement in writing signed by the Party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
20. Separability: If any provision of the Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by the decision of any arbitrator or by decree of a
court of last resort, the Parties shall promptly meet and negotiate substitute
provisions for those rendered or declared illegal or unenforceable to preserve
the original intent of this Agreement to the extent legally possible, but all
other provisions of this Agreement shall remain in full force and effect.
21. Assignments: The Company may assign (whether by operation of law or
otherwise) this Agreement only with the written consent of the Executive, which
consent shall not be withheld unreasonably, and in the event of an assignment
of this Agreement, all covenants, conditions and provisions hereunder shall
inure to the benefit of and be enforceable against the Company's successors and
assigns. The rights and obligations of Executive under this Agreement are
personal to him, and no such rights, benefits or obligations shall be subject
to voluntary or involuntary alienation, assignment or transfer.
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22. Effect of Agreement: Subject to the provisions of Paragraph 21 with
respect to assignments, this Agreement shall be binding upon the Executive and
his heirs, executors, administrators, legal representatives and assigns and
upon the Company and respective successors and assigns.
23. Execution: This Agreement may be executed in multiple counterparts
each of which shall be deemed an original and all of which shall constitute one
and the same instrument.
24. Waiver of Breach: The waiver by either Party of a breach of any
provision of the Agreement by the other Party shall not operate or be construed
as a waiver by such Party of any subsequent breach by such other Party.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
June 11, 1996.
ENVOY CORPORATION
By: /s/ W. Marvin Gresham
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Name: W. Marvin Gresham
Title: Chairman of the Compensation Committee
EXECUTIVE
By: /s/ Kevin M. McNamara
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Name: Kevin M. McNamara
Title: Vice President of Finance
and Chief Financial Officer
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