1
EXHIBIT 10.21
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is entered into
as of this 8th day of October, 1998, between BIOSHIELD TECHNOLOGIES, INC., a
Georgia corporation (the "COMPANY"), and DANIEL E. SWAYE, a Georgia resident
(the "EXECUTIVE").
1. Employment. The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein.
2. Term. The employment of the Executive by the Company as
provided in Section 1 will commence on October 27 1998 (the "COMMENCEMENT
DATE") and will terminate at 12:01 a.m. on October 27, 2001 (the "INITIAL
Term") unless same terminated as hereinafter provided. Thereafter, this
Agreement will be automatically renewed annually for additional one (1) year
terms (hereinafter referred to individually a "RENEWAL TERM") after the end of
the Initial Term or any Renewal Term, unless terminated as hereinafter provided
or either party notifies the other party by giving written notice to the other
party that they do not wish to renew the Agreement for a subsequent term. Such
notice must be given at least ninety (90) days before the end of the Initial
Term, or the then Renewal Term, as the case may be. The term of the Employee's
employment with the Company shall be referred to herein as the "EMPLOYMENT
PERIOD."
3. Position, Duties and Responsibilities.
(a) Position. The Executive hereby agrees to serve as
Chief Financial Officer of the Company. The Executive shall devote his best
efforts and substantially full time and attention to the performance of
services to the Business of the Company in his capacity as an officer thereof
and as may reasonably be requested by the Board. The Company retains the right
to direct the means and methods by which the Executive performs the above
services. For purposes of this Agreement, "BUSINESS" shall mean development,
marketing, and sale of surface modifying antimicrobials and biostatic products.
(b) Place of Employment. During the term of this
Agreement, the Executive shall perform the services required by this Agreement
at the Company's principal place of business in Atlanta, Georgia; provided,
however, that should the Company relocate its principal place of business to
another city or state more than fifty (50) miles from its principal place of
business as of the effective date of this Agreement and require Executive to
relocate to such principal place of business, Executive may terminate this
Agreement in accordance with Section 5(e) below.
(c) Other Activities. Except with the prior written
approval of the Board (which the Board may grant or withhold in its sole and
absolute discretion), the Executive, during the Employment Period, will not (i)
accept any other employment, (ii) serve as an officer or on the board of
directors or similar body of any other business entity (except as otherwise set
forth below) that is or may be competitive with, or that might place him in a
competing position
2
to, the Business of the Company or any of its affiliates, or (iii) engage,
directly or indirectly, in any other business activity (whether or not pursued
for pecuniary advantage) that is or may be competitive with, or that might
place him in a competing position to, the Business of the Company or any of its
affiliates. Notwithstanding the foregoing, the Company agrees that the
Executive (or affiliates of the Executive) shall be permitted (i) to undertake
the activities set forth in Section 8, (ii) to make any other passive personal
investment that is not in a business activity that is directly or indirectly
competitive with the Business of the Company, (iii) to participate in industry
organizations, and (iv) to participate in charitable or educational activities.
4. Compensation and Related Matters.
(a) Salary. During the Employment Period, the Company
shall pay the Executive a salary of not less than $130,000 annually during the
Employment Period. All salary is to be paid consistent with the standard
payroll practices of the Company (e.g., timing of payments and standard
employee deductions, such as income tax withholdings, social security), but not
less frequently than monthly with each payment being that portion of the annual
salary which is payable based upon the applicable period.
(b) Bonus. In addition to the Base Salary set forth
above, Employee shall be entitled to bonuses as indicated in the periodically
adjusted bonus guidelines that may be presented from time to time to Employee
by the President of Employer. Employee understands that Employer is under no
obligation to pay bonuses or create guidelines, and that such bonus guidelines
if adopted, will likely change, due in part to a changing emphasis of Employer
goals, focus and objectives.
(c) Business Expenses. The Company shall reimburse the
Executive in connection with the conduct of the Company's business upon
presentation of sufficient tangible evidence of such expenditures consistent
with the Company's policies as in place from time to time.
(d) Stock Option Benefits. The Company agrees to grant
the Executive a non-qualified stock option to acquire up to 100,000 shares of
the Company's common stock at an exercise price of $5.00 per share pursuant to
the Company's 1997 Stock Incentive Plan (the "OPTION PLAN"). The option shall
vest in three (3) installments of 30,000 beginning on the first and second
anniversaries of the Commencement Date and 40,000 on the third anniversary of
the Commencement Date. In the event the Executive is terminated without cause
pursuant to Section 5(d) below or the Executive terminates this Agreement for
Good Cause pursuant to Section 5(e) below, then the vesting period shall be
accelerated such that any option shares that would have vested at the end of
the year in which the Date of Termination occurs (the "TERMINATION YEAR") shall
become immediately vested; provided, however, that the Executive shall exercise
all options vested upon termination no later than 180 days following Date of
Termination. The Company agrees that within a reasonable time following the
execution of this Agreement it will execute an option agreement with the
Executive (the "OPTION AGREEMENT") on these terms. Except as otherwise set
forth in this Section 4 and except with respect to the Company's obligations
under this Agreement with respect to the Option Agreement and the Option Plan,
nothing herein is intended, or shall be construed to require the Company to
institute or continue any, or any particular, plan or benefits.
(e) Health and Similar Benefits. The Executive shall be
entitled to participate in or receive health, welfare, life insurance,
long-term disability insurance and similar benefits as
3
the Company provides generally from time to time to its executives. In the
event that the Company does not provide health benefits to its executives as of
the Commencement Date then Company will reimburse Executive for the cost of
medical insurance premiums of the Executive as provided under his COBRA
benefits for a period of 120 days from the Commencement Date.
(f) Fringe Benefits. The Executive will be entitled to
fringe benefits as may be determined or granted from time-to-time by the Board.
(g) Vacation. The Executive shall be entitled to four
vacation weeks (20 business days) in each calendar year on a pro-rated basis.
The Executive will be entitled to all Company holidays.
5. Termination. The Executive's employment hereunder shall be,
or may be, as the case may be, terminated under the following circumstances:
(a) Death. The Executive's employment hereunder shall
terminate upon his death.
(b) Disability. The Executive's employment hereunder
shall terminate on the Executive's physical or mental disability or infirmity.
Disability shall be conclusively established if the Executive is unable to
perform his duties under this Agreement for more than 85 business days during
any 180 calendar day period.
(c) Cause. The Company may terminate the Executive's
employment hereunder for Cause. "CAUSE" shall mean (i) Employee's material
breach of any of the terms of this Agreement, (ii) his conviction of a crime
involving moral turpitude or constituting a felony under the laws of any state,
the District of Columbia or of the United States, or (iii) his gross
negligence, willful misconduct or fraud in the performance of his duties
hereunder.
(d) Termination for Any Reason. Subject to Section 6
hereof, the Executive hereby agrees that the Company may dismiss him at any
time under this Section 5(d) without regard (i) to any general or specific
policies (whether written or oral) of the Company relating to the employment or
termination of its employees, or (ii) to any statements made to the Executive,
whether made orally or contained in any document, pertaining to the Executive's
relationship with the Company. Notwithstanding anything to the contrary
contained herein, including Sections 2 and 4, the Executive's employment with
the Company is not for any specified term, is at will and may be terminated by
the Company at any time by delivery of a notice of termination to the
Executive, for any reason, with or without cause, without liability except with
respect to the payments provided for by Section 6.
(e) Voluntary Resignation. The Executive may voluntarily
resign his position and terminate his employment with the Company at any time
for any reason or for Good Cause. For purposes of this Agreement, "GOOD CAUSE"
shall mean, without the express written consent of Executive, the occurrence of
any of the following events unless such events are substantially corrected
within thirty (30) days following written notification by Executive to the
Company that he intends to terminate his employment hereunder for one of the
following reasons: (i) any material reduction or diminution in the duties,
responsibilities and status of Executive's position; (ii) a material breach by
the Company of any provision of this Agreement; (iii) a relocation by the
Company of its principal place of business to another city or state more than
fifty (50) miles
4
from its principal place of business as of the effective date of this Agreement
and the Company requires the Executive to relocate to such new principal place
of business; and (iv) the occurrence of a Change in Control. The Executive
understands, acknowledges and agrees that any voluntary resignation by him as a
result of any personal or family reasons not otherwise set forth in this
Section 5(e) shall not constitute Good Cause. As used in this Agreement,
"CHANGE OF CONTROL" means the occurrence of any of the following: (i) the
adoption of a plan relating to the liquidation or dissolution of the Company,
(ii) the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any person or group, other
than Jacques Elfersy or Timothy C. Moses or their affiliates (the
"PRINCIPALS"), becomes the "beneficial owner" (as such term is defined in Rule
13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934), directly or
indirectly, of more than eighty percent (80%) of the total voting power of the
total outstanding voting stock of the Company on a fully diluted basis or (iii)
the consummation of the first transaction (including, without limitation, any
merger or consolidation) the result of which is that any person or group, other
than the Principals, becomes the beneficial owner, directly or indirectly, of
more than eighty percent (80%) of the total voting power of the total
outstanding voting stock of the Company. If the Executive elects to resign for
any reason or for Good Cause, the Executive shall deliver written notice of
resignation to the Company (the "NOTICE OF RESIGNATION"). The Notice of
Resignation shall set forth the date such resignation shall become effective
(the "DATE OF RESIGNATION"), which date shall, in any event, be at least thirty
(30) days and no more than sixty (60) days from the date the Notice of
Resignation is delivered to the Company. At its option, the Company may reduce
such notice period to any length, upon ten (10) days written notice to the
Executive.
(f) Notice. Any termination of the Executive's employment
by the Company shall be communicated by written Notice of Termination to the
Executive. For purposes of this Agreement, a "NOTICE OF TERMINATION" shall mean
a notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
(g) "DATE OF TERMINATION" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death, (ii)
if the Executive's employment is terminated by reason of his disability, the
date that the Company declares the disability referred to in Section 5(b),
above, (iii) if the Executive's employment is terminated by the Company for
Cause pursuant to subsection 5(c) above, or without Cause by the Company
pursuant to subsection 5(d) above, the date specified in the Notice of
Termination and (iv) if the Executive voluntarily resigns pursuant to
subsection 5(e) above, the date of the Notice of Resignation.
(h) Termination Obligations.
(i) The Executive hereby acknowledges and agrees
that all Personal Property and equipment furnished to or prepared by the
Executive in the course of or incident to his employment, belongs to the
Company and shall be promptly returned to the Company upon termination of the
Employment Period. "PERSONAL PROPERTY" includes, without limitation, all books,
manuals, records, reports, notes, contracts, lists, formulae, blueprints, and
other documents, or materials, or copies thereof (including computer files),
and all other proprietary information relating to the business of the Company.
Following termination, the Executive will not retain any written or other
tangible material containing any proprietary information of the Company.
5
(ii) Upon termination of the Employment Period,
the Executive shall be deemed to have resigned from all offices then
held with the Company or any affiliate.
(iii) The representations and warranties contained
herein and the Executive's obligations under Sections 5(h), 6, 7, 8, 9
and 15 through 18 shall survive termination of the Employment Period
and the expiration of this Agreement.
(i) Release. In exchange for the Company entering into
the Agreement, the Executive agrees that, at the time of his resignation or
termination from the Company, he will execute a release acceptable to the
Company of all liability of the Company and its officers, shareholders,
employees and directors to the Executive in connection with or arising out of
his employment with the Company, except with respect to any then-vested rights
under the Company's Option Plan and except with respect to any Severance
Payments which may be payable to him under the terms of the Agreement.
6. Compensation Upon Termination.
(a) Death. If the Executive's employment shall be
terminated pursuant to Section 5(a), the Company shall pay the estate of the
Executive (the "ESTATE") his base salary payable pursuant to Section 4(a) and
benefits described in Sections 4.1(d) and 4(e) through the Date of Termination.
At the Estate's expense, the Executive's dependents shall also be entitled to
any continuation of health insurance coverage rights under any applicable law.
(b) Disability. If the Executive's employment shall be
terminated by reason of disability pursuant to Section 5(b), the Executive
shall receive his base salary payable pursuant to Section 4(a) and benefits
described in Sections 4(d) and 4(e) up to the Date of Termination and for 90
days thereafter; provided, however, that payments so made to the Executive
during the disability shall be reduced by the sum of the amounts, if any,
payable to the Executive at or prior to the time of any such payment under any
disability benefit plan of the Company. At the Executive's own expense, the
Executive and his dependents shall also be entitled to any continuation of
health insurance coverage rights under any applicable law.
(c) Cause. If the Executive's employment shall be
terminated for Cause pursuant to Section 5(c) hereof, the Company shall pay the
Executive his base salary pursuant to Section 4(a) through the Date of
Termination. At the Executive's own expense, the Executive and his dependents
shall also be entitled to any continuation of health insurance coverage rights
under any applicable law.
(d) Other Terminations by the Company. If the Company
shall terminate the Executive's employment without cause pursuant to Section
5(d) hereof, the Company shall pay the Executive his then current base salary
at the Date of Termination pursuant to Section 4(a) for a period of the lesser
of (i) the remaining unexpired term of this Agreement or (ii) nine (9) months
from the Date of Termination (the "SEVERANCE PAYMENT"). The Company shall pay
on behalf of the Executive the cost of any continuation of the then existing
health insurance coverage of the Executive for a period of the lesser of (i)
the remaining unexpired term of this Agreement, (ii) nine (9) months from the
Date of Termination or (iii) until the Executive obtains Full Time Employment
(the "SEVERANCE BENEFIT"). For purposes of this Agreement, "FULL TIME
EMPLOYMENT" shall mean employment at a subsequent full time employer or in
connection with
6
a full time consulting practice or other self-employment or any full time
venture founded by the Executive.
(e) Voluntary Resignation. If the Executive terminates
his employment with the Company pursuant to Section 5(e) hereof for Good Cause,
the Company shall pay the Executive his Severance Payment and Severance
Benefit.
(f) If the Executive terminates his employment with the
Company pursuant to Section 5(e) hereof without Good Cause, the Company shall
have no obligation to pay the Severance Payment or Severance Benefit or
otherwise compensate the Executive following the Date of Resignation.
(g) In the event of any Termination pursuant to Section
5, the Executive shall be entitled to retain any and all options to purchase
capital stock of the Company granted to the Executive pursuant to the terms and
conditions of the Option Agreement that have vested, either by passage of time
or by virtue of acceleration pursuant to Section 4(c), as of the Date of
Termination.
(h) Any Severance Payment made pursuant to this Section 6
shall be payable in accordance with the regular pay schedule for the Company
over the required duration set forth in Sections 6(a) through 6(e).
(i) The continuing obligation of the Company to make the
Severance Payment to the Executive is expressly conditioned upon the Executive
complying and continuing to comply with his obligations and covenants under
Sections 7 and 8 of this Agreement following termination of employment with the
Company.
7. Confidentiality and Non-Solicitation Covenants.
(a) Confidentiality. In addition to the agreements set
forth in Section 5(h)(i), the Executive hereby agrees that the Executive will
not, during the Employment Period or at any time thereafter directly or
indirectly disclose or make available to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever, any
Confidential Information (as defined below). The Executive agrees that, upon
termination of his employment with the Company, all Confidential Information in
his possession that is in written or other tangible form (together with all
copies or duplicates thereof, including computer files) shall be returned to
the Company and shall not be retained by the Executive or furnished to any
third party, in any form except as provided herein; provided, however, that the
Executive shall not be obligated to treat as confidential, or return to the
Company copies of any Confidential Information that (i) was publicly known at
the time of disclosure to the Executive, (ii) becomes publicly known or
available thereafter other than by any means in violation of this Agreement or
any other duty owed to the Company by any person or entity or (iii) is lawfully
disclosed to the Executive by a third party. As used in this Agreement the term
"CONFIDENTIAL INFORMATION" means: information disclosed to the Executive or
known by the Executive as a consequence of or through his relationship with the
Company, about the owners, customers, employees, business methods, public
relations methods, organization, procedures or finances, including, without
limitation, information of or relating to owner or customer lists of the
Company and its affiliates.
7
(b) Non-Solicitation. In the event of termination for any
reason other than pursuant to Section 5(d) or Section 5(e) if termination is
for "GOOD CAUSE", the Executive agrees that during the Employment Period and
for one (1) year thereafter the Executive will not, either on his own account
or jointly with or as a manager, agent, officer, employee, consultant, partner,
joint venturer, owner or shareholder or otherwise on behalf of any other
person, firm or corporation, (i) carry on or be engaged or interested directly
or indirectly in, or solicit, the manufacture or sale of goods or provision of
services to any person, firm or corporation which, at any time during the
Employment Period has been or is a customer of or in the habit of dealing with
the Company in its Business, (ii) endeavor directly or indirectly to canvas or
solicit in competition with Company or to interfere with the supply of orders
for goods or services from or by any person, firm or corporation which during
the Employment Period has been or is a supplier of goods or services to Company
or (iii) directly or indirectly solicit or attempt to solicit away from Company
any of its officers or employees or offer employment to any person who, on or
during the six (6) months immediately preceding the date of such solicitation
or offer, is or was an officer or employee of Company.
8. Covenant Not to Compete.
(a) The Executive agrees that during the Employment
Period he will devote substantially full-time to the Business of the Company
and not engage in any type of business in competition with the Business of the
Company. Subject to such full-time requirement and the restrictions set forth
below in this Section 8 and Section 3(c) above, the Executive shall be
permitted to continue his existing business investments and activities and may
pursue additional business investments; provided, however, that the Executive
shall not serve as officer or director of any public company resulting from
such business investments. The Executive agrees that he shall not (i) invest
in, manage, consult or participate in any way in any other business in
competition with the Business (in either an active or passive manner), (ii)
participate in or advise any business wherein activities similar to the
Business are a relevant business segment or (iii) act for or on behalf of any
business that intends to enter or participate in the activities similar to the
Business, in each case unless the independent members of the Company's Board of
Directors determine that such action is in the best interest of the Company.
Notwithstanding the foregoing, the Executive may purchase stock as a
stockholder in any publicly traded company, including any company which is
involved in activities similar to the Business; provided, however, that the
Executive does not own (together or separately or through his affiliates) more
than 5% of any company (other than the Company) in such business.
(b) The provisions of this Section 8 shall survive for
one (1) year following any termination of employment, except in the event of
termination pursuant to Section 5(d) or Section 5(e) herein.
9. Injunctive Relief and Enforcement. In the event of breach by
the Executive of the terms of Sections 5(h), 5(i), 7 or 8, and only following
mediation or attempted mediation as set forth in Section 16 below (unless the
Company is suffering irreparable injury, in which case Section 16 will not
prevent the Company from seeking injunctive relief against the Executive in any
court or forum), the Company shall be entitled to institute legal proceedings
to enforce the specific performance of this Agreement by the Executive and to
enjoin the Executive from any further violation of Sections 5(h), 5(i), 7 or 8
and to exercise such remedies cumulatively or in conjunction with all other
rights and remedies provided by law and not otherwise limited by this
Agreement. The Executive acknowledges, however, that the remedies at law for
any breach by
8
him of the provisions of Sections 5(h), 5(i), 7 or 8 may be inadequate. In
addition, in the event the agreements set forth in Sections 5(h), 5(i), 7 or 8
shall be determined by any court of competent jurisdiction to be unenforceable
by reason of extending for too great a period of time or over too great a
geographical area or by reason of being too extensive in any other respect,
each such agreement shall be interpreted to extend over the maximum period of
time for which it may be enforceable and to the maximum extent in all other
respects as to which it may be enforceable, and enforced as so interpreted, all
as determined by such court in such action.
10. Notice. For the purposes of this Agreement, notices, demands
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when personally delivered when
transmitted by telecopy with receipt confirmed, or one day after delivery to an
overnight air courier guaranteeing next day delivery, addressed as follows:
If to the Executive: Daniel E. Swaye
1220 Northcliff Trace
Roswell, Georgia 30076
If to the Company: BioShield Technologies, Inc.
4405 International Boulevard
Suite B-109
Norcross, Georgia 30093
Attention: Timothy C. Moses
With a copy to: Schreeder, Wheeler & Flint, LLP
127 Peachtree Street, N.E.
Suite 1600
Atlanta, Georgia 30303
Attention: Edward H. Brown, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect; provided, however, that if any one or more of the terms
contained in Sections 5(h), 7 or 8 hereto shall for any reason be held to be
excessively broad with regard to time, duration, geographic scope or activity,
that term shall not be deleted but shall be reformed and constructed in a
manner to enable it to be enforced to the extent compatible with applicable
law.
12. Assignment. This Agreement may not be assigned by the
Executive, but may, subject to the provisions of Section 5(e), be assigned by
the Company to any successor to its Business and will inure to the benefit and
be binding upon any such successor.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
9
14. Headings. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
15. Choice of Law. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with the laws of the
State of Georgia, except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
16. LIMITATION ON LIABILITIES. IF EITHER THE EXECUTIVE OR THE
COMPANY IS AWARDED ANY DAMAGES AS COMPENSATION FOR ANY BREACH OR ACTION RELATED
TO THIS AGREEMENT, A BREACH OF ANY COVENANT CONTAINED IN THIS AGREEMENT
(WHETHER EXPRESS OR IMPLIED BY EITHER LAW OR FACT), OR ANY OTHER CAUSE OF
ACTION BASED IN WHOLE OR IN PART ON ANY BREACH OF ANY PROVISION OF THIS
AGREEMENT, SUCH DAMAGES SHALL BE LIMITED TO CONTRACTUAL DAMAGES AND SHALL
EXCLUDE (I) PUNITIVE DAMAGES, AND (II) CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES
(E.G., LOST PROFITS AND OTHER INDIRECT OR SPECULATIVE DAMAGES). THE MAXIMUM
AMOUNT OF DAMAGES THAT THE EXECUTIVE MAY RECOVER FOR ANY REASON SHALL BE THE
AMOUNT EQUAL TO ALL AMOUNTS OWED (BUT NOT YET PAID) TO THE EXECUTIVE PURSUANT
TO THIS AGREEMENT THROUGH ITS NATURAL TERM OR THROUGH ANY SEVERANCE PERIOD,
PLUS INTEREST ON ANY DELAYED PAYMENT AT THE MAXIMUM RATE PER ANNUM ALLOWABLE BY
APPLICABLE LAW FROM AND AFTER THE DATE(S) THAT SUCH PAYMENTS WERE DUE.
17. Entire Agreement. This Agreement contains the entire agreement
and understanding between the Company and the Executive with respect to the
employment of the Executive by the Company as contemplated hereby, and no
representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. This Agreement shall not be
changed unless in writing and signed by both the Executive and the Company (by
duly adopted resolution of its Board of Directors).
18. The Executive's Acknowledgment. The Executive acknowledges (a)
that he has had the opportunity to consult with independent counsel of his own
choice concerning this Agreement, and (b) that he has read and understands the
Agreement, is fully aware of its legal effect, and has entered into it freely
based on his own judgment.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date and year first above written.
BIOSHIELD TECHNOLOGIES, INC.
By: /s/ Jacques Elfersy
-----------------------------------
Title: Sr. Vice Pres.
--------------------------------
10
"EXECUTIVE"
/s/ Daniel E. Swaye
--------------------------------------
Daniel E. Swaye
Signed, sealed and delivered this 19 day
of November, 1998.
/s/ Ashley Meeks [SEAL]
--------------------------------
NOTARY PUBLIC
Notary Public, Rockdale County, Georgia
My Commission Expires April 27, 2001