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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
this 27th day of July, 1998, by and between MEDAPHIS CORPORATION, a Delaware
corporation (the "Company"), and WAYNE A. TANNER a resident of the State of
Georgia (the "Executive").
Statement of Background Information
The Company renders to hospitals, physicians, and/or other healthcare
organizations and providers: (a) billing services, accounts receivable
management services, collection services, electronic claims services, financial
management services, and practice and facilities management services; (b)
eligibility verification and certification for Medicaid, Medicare and other
healthcare assistance programs; (c) filing and other medical claims
securitization services; (d) medical coverage information services; and (e)
medical and insurance claims monitoring and tracking services (collectively the
"Processing Business").
The Company also: (a) develops, markets and licenses to hospitals,
integrated healthcare delivery systems, and other healthcare providers and other
end users (collectively "Providers"), (i) strategic, operational and financial
information systems and services and decision support tools for healthcare
providers, (ii) software systems which provide claims and reimbursement services
and electronic claims processing, and (iii) software applications which assist
Providers with automated scheduling and resource management (the items discussed
in Sections (a)(i), (a)(ii) and (a)(iii) of this paragraph are referred to as
"Systems"), which Systems include, but are not limited to, nurse scheduling and
management information systems, operating room patient scheduling and surgery
information systems, enterprise wide patient scheduling and resource management
systems, enterprise-wide employee scheduling and management information systems
and related software interfaces to other information systems; and (b) provides
to Providers installation and support services related to the Company's Systems
(the "Systems Business").
The Company also renders professional services with respect to the
development of computer software, algorithms, design, documentation, and related
materials, and the development, design, deployment, and operation of local and
wide area computer networks, all in conjunction with the sale, design,
deployment, operation and maintenance of custom computer processing systems for
improvement of operational efficiency or functionality through the use of image
storage and processing, work flow technology, optical character recognition or
other related technologies (the "System Integration Business") (the Processing
Business, the Systems Business, the Systems Integration
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Business and any other distinct business segment in which the Company engages
during Executive's employment are collectively referred to herein as the
"Business").
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 Medaphis Corporation and Executive will
report directly to the Chief Operating Officer of the Company.
Executive agrees to perform and discharge such other duties as may be
assigned to Executive from time to time by the Company to the
reasonable satisfaction of the Company, and such duties will be
consistent with those duties regularly and customarily assigned by the
Company to the position of Executive Vice President and Chief Financial
Officer of Medaphis Corporation. Executive also agrees to comply with
all of the Company's policies, standards and regulations as promulgated
by the officers of the Company, and to follow the instructions and
directives of the Board of Directors, the Chairman and the 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
(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 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 Chief Executive Officer of
the Company approves such participation, preparation and publication or
teaching prior to Executive's engaging therein.
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3. Term. The term of this Agreement will be for a three (3) year period of
time, commencing as of September 1, 1998 and expiring on August 31,
2001, 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 three-year
term, unless either party gives notice to the other of its intent to
terminate this Agreement not less than ninety (90) days prior to
commencement of any such one-year renewal period. In the event such
notice to terminate is properly and timely given, this Agreement shall
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 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);
(ii) Executive commits any other act materially detrimental to
the business or reputation of the Company;
(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.
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(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 elect a severance
consideration equal to (i) two (2) years of salary continuation (this
severance consideration does not include the right to receive any
incentive bonus payments) at Executive's then current salary level, or
(ii) Executive's then-current monthly salary (this severance
consideration does not include the right to receive any incentive bonus
payments) multiplied by the number of months remaining in the initial
term hereof, as specified in Section 3, above. In addition, the Company
shall provide benefit continuation to the extent that Executive remains
eligible to participate in the applicable benefit pursuant to the terms
of the respective benefit plan after termination and shall pay to
Executive monthly an amount equal to the difference between the cost to
Executive of medical, dental and vision coverage at the levels at which
Executive is participating on the date of termination and the cost to
Executive of COBRA coverage for the lesser of (x) eighteen (18) months
and (y) the number of months remaining in the initial term hereof as
specified in Section 3, above.
(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 elect a severance consideration equal to
(i) two (2) years of salary continuation (this severance consideration
does not include the right to receive any incentive bonus payments) at
Executive's then current salary level, or (ii) Executive's then-current
monthly salary (this severance consideration does not include the right
to receive any incentive bonus payments) multiplied by the number of
months remaining in the initial term hereof, as specified in Section 3,
above. In addition, the Company shall provide benefit continuation to
the extent that Executive remains eligible to participate in the
applicable benefit pursuant to the terms of the respective benefit plan
after termination and shall pay to Executive monthly an amount equal to
the difference between the cost to Executive of medical, dental and
vision coverage at the levels at which Executive is participating on
the date of termination and the cost to Executive of COBRA coverage for
the lesser of (x) eighteen (18) months and (y) the number of months
remaining in the initial term hereof as specified in Section 3, above.
For purposes of this Agreement, "Good Reason" is defined as (w) a
reduction of greater than 10% in Executive's annual base salary; (x) a
change in Executive's work location to a work location more than 50
miles from Executive's existing work location, except for required
travel on the Company's
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business to an extent consistent with Executive's then present business
travel obligations; (y) an assignment to any duties inconsistent in any
material adverse respect with Executive's current position, duties or
responsibilities, other than an insubstantial and inadvertent act that
is remedied by the Company promptly after receipt of notice thereof
given by Executive; or (z) the failure by the Company to continue any
material benefit or compensation plan in which Executive is
participating unless Executive is provided with comparable benefits.
(d) Change in Control. In the event there is a Change in Control (as
defined herein) of Medaphis Corporation, Executive will be entitled to
receive a severance payment equal to two (2) years of "Cash
Compensation" (defined as the sum of Executive's then current base
salary and the incentive bonus payment received by Executive during the
year immediately prior to the Change in Control), if (A) Executive's
employment is terminated by the Company without cause within one (1)
year following any such Change in Control; (B) if 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) if Executive's employment
is terminated by the Company in connection with or in anticipation of a
Change in Control; (D) if Executive voluntarily terminates his
employment for Good Reason (as defined above in Paragraph (c)) within
one (1) year following any such Change in Control; or (E) if 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. For
purposes of this Agreement, a "Change in Control" of Medaphis
Corporation shall be deemed to occur upon any of the following:
(i) a consolidation or merger of Medaphis Corporation with or
into any other corporation, or any other entity or person,
other than a wholly-owned subsidiary of Medaphis Corporation,
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;
(ii) any corporate reorganization, including an exchange
offer, in which Medaphis Corporation shall not be the
continuing or surviving entity resulting from such
reorganization, excluding any transaction in which the shares
of the Company's common stock outstanding immediately prior to
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any such reorganization represents immediately thereafter more
than 50% of the combined voting power of the resulting entity
after the transaction; or
(iii) the failure for any reason of individuals who constitute
the Incumbent Board to continue to constitute at least a
majority of the Board. For purposes of this Section 4 (d), the
term "Board" shall mean the Board of Directors of the Company
and the term "Incumbent Board" shall mean the members of the
Board as of the date hereof and any person becoming a member
of the Board hereafter whose election or nomination is by a
vote of at least a majority of the directors then comprising
the Incumbent Board (other than an election or nomination of
an individual whose initial assumption of office is in
connection with an actual or threatened election contest
relating to the election of the directors of the Company, as
such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as
amended).
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 Two Hundred Fifty Thousand Dollars
($250,000.00) per annum to be paid in accordance with the Company's
regular payroll practices, provided, however, that such payments shall
be made no less frequently than in equal monthly installments. Such
base salary will be subject to adjustments in the normal course of
business.
b) Incentive Compensation. Executive shall be eligible to participate
in the 1998 Medaphis Corporation and its Subsidiary Corporations
Incentive Compensation Plan (and any comparable future incentive
compensation plans during the term of this Agreement) at a
participation category of up to 80% of Executive's then current annual
base salary, payable at the discretion of the Board of Directors of the
Company. Executive's incentive compensation shall be guaranteed at the
eighty percent (80%) level for the first twelve (12) months of
employment, pro-rated between 1998 and 1999 based on the number of
months Executive is employed by the Company during each respective
fiscal year.
c) Stock Options. Effective as of September 1, 1998, or as soon as
reasonably practicable thereafter and subject to the approval of the
Compensation Committee of the Board of Directors of Medaphis
Corporation, the Company will cause Medaphis to issue to Executive,
effective as of the date approved by the Compensation Committee of the
Board of Directors of Medaphis Corporation,
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options to purchase Two Hundred Thousand (200,000) shares of Medaphis
Common Stock pursuant to the terms and conditions of the Amended and
Restated Medaphis Corporation Non-Qualified Stock Option Plan ("Stock
Option Plan"), as amended. Such options will vest at the rate of
thirty-three and one-third percent (33.33%) per year for a three-year
period beginning on the starting date of this Agreement, subject to the
terms and conditions of the Stock Option Plan. Such options shall vest
in full immediately upon the occurrence of certain change in control
events outlined in the Stock Option Plan. Executive shall be considered
for additional grants of options to purchase shares of Medaphis common
stock in a manner that is consistent with other senior officers of the
Company. Except as expressly set forth herein, nothing in this
Agreement shall give rise to a contractual right to Executive to
receive grants of additional stock options of Medaphis. Further,
Medaphis has no obligation to Executive to create parity with any other
Medaphis executives with respect to any options granted to such other
executives.
d) Other Benefits. Executive will be entitled to such fringe benefits
as may be provided from time-to-time by the Company to its Executives,
including, but not limited to, loan arrangements to facilitate the
purchase of common stock of the Company, financial counseling services,
group health insurance, life and disability insurance, vacations and
any other fringe benefits, in each case as now or hereafter provided by
the Company to its Executives, if and when Executive meets the
eligibility requirements for any such benefit. 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 Executives of the same position and status as
Executive will be provided to Executive on an equal basis.
e) 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.
f) 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.
g) Golf Club Membership. The Company will pay for Executive's
membership initiation fee to join a golf club of Employee's choice,
such choice subject to the approval of the Company, which fee shall not
exceed $35,000, or, at the Company's option, the Company will name
Executive as a designated representative under a Company-held corporate
membership.
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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 Company and its affiliates 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 affiliates' 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, except in connection
with performing duties assigned to him by the Company, Executive shall
hold in confidence all Proprietary Information and will not reproduce,
use, 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) 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 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 at the time the Company disclosed the information to
Executive; (iii) became generally known to the public 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 data or 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
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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 executive
management team. Executive agrees that during his employment and for a
period of two (2) years 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, compete with the Company within the
Geographical Area (as hereinafter defined). The term "compete" means to
engage in, have any equity or profit interest in, make any loan to or
for the benefit of, or render services of any marketing, management,
sales, administrative, supervisory or consulting nature, directly or
indirectly, on Executive's own behalf or in the service of or on behalf
of any other individual or entity, 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
which provides Business products or services, provided that nothing in
this Agreement will preclude Executive from rendering legal services in
the role of outside counsel on behalf of any entity, including those
entities that compete with the Company, following the termination of
his employment with the Company. For purposes of this Agreement, the
term "Geographical Area" means the territory located within a
seventy-five (75) mile radius of any Company facility for which
Executive exercised managerial control or provided legal services on
behalf of the Company.
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 the Company at any time during the six
(6)-month period prior to Executive's termination of employment with
the Company ("Client"), or was actively sought by the Company as a
prospective client, and (ii) with whom Executive had material contact
while employed by the Company, to provide Business services or products
to such Clients or prospects.
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C. Construction. The parties hereto agree that any judicial authority
construing all or any portion of this Section 7 or Section 8 below may,
if it chooses, sever any portion of the Geographical Area, client base,
prospective relationship or prospect list or any prohibited business
activity from the coverage of such Section and to apply the provisions
of such Section to the remaining portion of the Geographical Area, the
client base or the prospective relationship or prospect list, or the
remaining business activities not so severed by such judicial
authority. In addition, it is the intent of the parties that the
judicial authority may, if it chooses, 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. It is
the intent of the parties that Sections 7 and 8 be enforced to the
maximum extent permitted by law. In the event that any provision of
either such Section is determined not to be specifically enforceable,
the Company shall nevertheless be entitled to bring an action to seek
to recover monetary damages as a result of the breach of such provision
by Executive.
8. Non-Solicitation of Employees Covenant. Executive further agrees and
represents that during Executive's employment by the Company and for a
period of two (2) years 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 Business services or products, any person employed
by the Company, whether or not such employee is a full-time employee or
temporary employee of the Company, 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.
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 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 may 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
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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 Company's Business (the "Inventions"), whether or not
subject to copyright or patent protection, and which may or may not be
considered Proprietary Information. Executive acknowledges that all
such Inventions will be "works made for hire" under United States
copyright law and will 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 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
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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.
13. Notices. Any notice or communication under this Agreement will be in
writing and sent by registered or certified mail addressed to the
respective parties as follows:
If to the Company: If to Executive:
2840 Mt. Wilkinson Parkway Wayne A. Tanner
Suite 300 P.O. Box 1411
Atlanta, GA 30339 Monroe, GA 30655
Attn: Chief Executive Officer
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 or mailed.
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.
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 its
parent company or
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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. The parties
hereto hereby agree that the appropriate forum and venue for any
disputes between any of the parties hereto arising out of this
Agreement shall be any federal court in the state where the Company has
its principal place of business and each of the parties hereto hereby
submits to the personal jurisdiction of any such court. The foregoing
shall not limit the rights of any party to obtain execution of judgment
in any other jurisdiction. The parties further agree, to the extent
permitted by law, that a final and unappealable judgment against either
of them in any action or proceeding contemplated above shall be
conclusive and may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified
exemplified copy of which shall be conclusive evidence of the fact and
amount of such judgment.
19. Indemnification. Executive shall be entitled to the indemnification and
exculpation offered through and set forth in the Company's Charter and
By-laws.
20. Surviving Terms. Sections 6, 7, 8, 9, 10, 11 and 12 of this Agreement
shall survive termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANY: EXECUTIVE:
By: /s/ David E. McDowell /s/ Wayne A. Tanner
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David E. McDowell, Chairman and Wayne A. Tanner
Chief Executive Officer
/s/ Allen W. Ritchie
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Allen W. Ritchie, President and
Chief Operating Officer
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EXHIBIT A
INVENTIONS
Executive represents that there are no Inventions.
WT
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Executive's Initials
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