EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of this 22nd day of December, 2004, by and between Spheris Operations Inc.
(the "Company") and Xxxxx X. Xxxxxxxx ("Employee"). This Agreement shall only
become effective as of the closing date of the merger (the "Closing Date")
pursuant to the Agreement and Plan of Merger (the "Merger Agreement") among
HealthScribe, Inc. (now known as Avicis, Inc.), MTS Group Holdings, Inc. and HSI
Merger Sub, Inc. (the "Acquisition"), dated as of September 20, 2004, and shall
not become effective and shall be null and void upon any termination of the
Merger Agreement in accordance with its terms.
WITNESSETH:
WHEREAS, on November 4, 2004, Spheris, Inc. was acquired by Spheris
Holding, Inc. ("Spheris Holding") and immediately subsequent to the acquisition
of Spheris, Inc., Spheris Holding merged with and into Spheris, Inc., with
Spheris, Inc. as the surviving corporation; and
WHEREAS, subsequent to the Spheris acquisition, MTS Group Holdings,
Inc. merged into Spheris Holding and Spheris Holding merged into Spheris, Inc.;
and
WHEREAS, pursuant to the terms of the Merger Agreement, Avicis, Inc.
(formerly known as HealthScribe, Inc.) will become a wholly owned subsidiary of
Spheris, Inc. (the "Merger"), and
WHEREAS, Spheris Operations Inc. is a wholly owned subsidiary of
Spheris, Inc.; and
WHEREAS, Avicis, Inc. and Employee are parties to an employment
agreement dated December 12, 2000, as amended February 22, 2002 (the "Prior
Agreement") pursuant to which Employee serves as President and Chief Operating
Officer of Avicis, Inc.; and
WHEREAS, in connection with the above described transactions,
Employee and Avicis, Inc. intend to terminate the Prior Agreement without
further obligation to either party; and
WHEREAS, the Company desires to enter into an employment agreement
embodying the terms of Employee's employment following the closing of the Merger
and Employee desires to enter into this Agreement and to commence his employment
with the Company following the closing of the Merger, subject to the terms and
provisions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt of which is mutually acknowledged, the Company and Employee agree as
follows:
Section 1. DEFINITIONS.
(a) "Accrued Obligations" shall mean (i) all accrued but unpaid Base
Salary through the date of termination of Employee's employment, (ii) any unpaid
or unreimbursed expenses incurred in accordance with Section 7 below, and (Hi)
any benefits provided under the Company's employee benefit plans upon a
termination of employment, in accordance with the terms therein.
(b) "Annual Bonus" shall have the meaning set forth in Section 4(b).
(c) "Base Salary" shall mean the salary provided for in Section 4(a)
below or any increased salary granted to Employee pursuant to Section 4(a).
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Cause" shall mean (i) a continuing failure, neglect or refusal
by Employee to perform in any material respect his duties or responsibilities;
(H) embezzlement, theft, larceny, material fraud or other acts of dishonesty;
(iii) Employee's conviction of, admission to, or entry of pleas of no contest to
any felony or any other crime which has, or may have within the Company's
reasonable discretion, a material adverse effect on Employee's ability to carry
out his duties under this Agreement or upon the reputation of the Company; (iv)
consistent drunkenness by Employee or his illegal use of narcotics which is, or
could reasonably be expected to become, materially injurious to the reputation
or business of the Company or its affiliates or which impairs, or could
reasonably be expected to impair, the performance of Employee's duties
hereunder; or (v) Employee's material breach of this Agreement or the
Noncompetition Agreement.
(f) "Closing Date" shall have the meaning set forth in the Merger
Agreement.
(g) "Disability" shall mean any physical or mental disability or
infirmity that prevents the performance of Employee's duties hereunder for a
period of (i) ninety (90) consecutive days or (ii) one hundred twenty (120)
non-consecutive days during any twelve (12) month period. Any question as to the
existence, extent or potentiality of Employee's Disability upon which Employee
and the Company cannot agree shall be determined by a qualified, independent
physician selected by the Company and approved by Employee (which approval shall
not be unreasonably withheld). The determination of any such physician shall be
final and conclusive for all purposes of this Agreement.
(h) "Good Reason" shall mean (i) a material decrease in Employee's
position or responsibilities, (ii) a reduction in Employee's compensation or
benefits other than in connection and consistent with a general Corporation-wide
reduction, or (iii) a material breach of this Agreement by the Company.
(i) "Merger Agreement" shall mean that certain Agreement and Plan of
Merger by and among HealthScribe, Inc. (now known as Avicis, Inc.), MTS Group
Holdings, Inc. and HSI Merger Sub, Inc., dated September 20, 2004.
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(j) "Noncompetition Agreement" shall mean that certain Confidential
Information, Non-Competition and Invention Assignment Agreement, dated as of the
date first above written.
(k) "Non-Renewal Notice" shall have the meaning set forth in Section
2 hereof.
(l) "Pro Rata Bonus" shall mean an amount equal to the product of
(i) the sum of the Annual Bonuses paid or payable to Employee with respect to
the two fiscal years immediately preceding his termination of employment,
divided by two, where the Annual Bonus for fiscal year 2004 shall equal the
annual bonus paid to Employee for such fiscal year in connection with his prior
employment with Avicis, Inc. (which amount shall in no event exceed 50% of
Employee's Base Salary on the date hereof); and (H) a fraction, (x) the
numerator of which shall be the number of months Employee worked in the fiscal
year Employee's employment is terminated or this Agreement expires by counting
from the first day of the fiscal year during which Employee's employment is
terminated or this Agreement expires and ending on the last day of the month in
which Employee's employment is terminated or this Agreement expires and (y) the
denominator of which shall be twelve.
(m) "Severance Term" shall mean the period specified in Section
8(d)(ii) below.
(n) "Special Severance Period" shall mean the period specified in
Section 8(g) below.
(o) "Term of Employment" shall mean the period specified in Section
2 below.
Section 2. ACCEPTANCE AND TERM OF EMPLOYMENT.
The Company agrees to employ Employee and Employee agrees to serve
the Company on the terms and conditions set forth herein. Unless sooner
terminated as provided in Section 8 hereof, the Term of Employment shall
commence on the Closing Date and shall continue until the second anniversary of
the Closing Date. Subject to Section 8 hereof, the Term of Employment shall be
extended automatically without further action by either party by one additional
year first on the second anniversary of the Closing Date, and on each succeeding
anniversary thereafter, unless, not later than ninety (90) days prior to the end
of the Term of Employment (including any prior extension thereof), either the
Company or Employee shall have notified the other in writing of its intention
not to renew this Agreement (a "Non-Renewal Notice"). Once the Company or
Employee has delivered a Non-Renewal Notice to the other, Employee's employment
hereunder shall terminate on the close of the business on the last day of the
Term of Employment.
Section 3. POSITION, DUTIES AND RESPONSIBILITIES.
(a) During the Term of Employment, Employee shall be employed and
serve as the Chief Operating Officer of the Company (together with such other
position or positions consistent with Employee's title as the Chief Executive
Officer of Spheris, Inc. and/or board of
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directors of Spheris, Inc. shall specify from time to time) and shall have such
duties typically associated with such title. Employee shall report to the Chief
Executive Officer. Employee also agrees to serve as an officer and/or director
of any subsidiary of the Company without additional compensation. During the
Term of Employment, Employee shall serve as an officer of Spheris, Inc.
(b) Employee shall devote his full business time, attention, skill
and reasonable best efforts to the performance of his duties under this
Agreement and shall not engage in any other business or occupation during the
Term of Employment without the written permission of the Board, including,
without limitation, any activity that (x) conflicts with the interests of the
Company, (y) interferes with the proper and efficient performance of his duties
for the Company, or (z) interferes with the exercise of his judgment in the
Company's best interests. Notwithstanding the foregoing, nothing herein shall
preclude Employee from (i) serving, with the prior written consent of the Board,
as a member of the board of directors or advisory boards (or their equivalents
in the case of a non-corporate entity) of non-competing businesses and
charitable organizations, (H) engaging in charitable activities and community
affairs, and (Hi) managing his personal investments and affairs; provided,
however, that the activities set out in clauses (i), (H) and (Hi) shall be
limited by Employee so as not to materially interfere, individually or in the
aggregate, with the performance of his duties and responsibilities hereunder.
Section 4. COMPENSATION. During the Term of Employment, Employee
shall be entitled to the following compensation:
(a) Base Salary. Employee shall be paid an annualized Base Salary,
payable in accordance with the regular payroll practices of the Company, of not
less than $227,000, with increases, if any, as may be approved in writing by the
Board.
(b) Annual Bonus. Employee shall be eligible for an annual
discretionary incentive bonus award determined by the Board in respect of each
fiscal year during the Term of Employment (the "Annual Bonus"). The target
Annual Bonus for each such year shall be 50% of Employee's annual Base Salary
for such year, although the actual Annual Bonus amount may be less than or
greater than the target Annual Bonus depending upon the degree of attainment of
individual and Company performance criteria established by the Board for such
year. Employee shall receive the Annual Bonus in respect of any year at the same
time as bonuses are paid to other executive officers of the Company, but in no
event later than ninety (90) days after the end of the fiscal year for which the
bonus is payable.
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Section 5. EMPLOYEE BENEFITS.
During the Term of Employment, Employee shall be entitled to
participate in health, insurance, retirement and other benefits provided to
other senior executives of the Company. Employee shall also be entitled to the
same number of holidays, vacation, sick days (or the same amount of paid time
off, as applicable) and other benefits as are generally allowed to senior
executives of the Company in accordance with the Company policy in effect from
time to time.
Section 6. KEY-MAN INSURANCE.
At any time during the Term of Employment, the Company shall have
the right to insure the life of Employee for the sole benefit of the Company, in
such amounts, and with such terms, as it may determine. All premiums payable
thereon shall be the obligation of the Company. Employee shall have no interest
in any such policy, but agrees to cooperate with the Company in taking out such
insurance by submitting to physical examinations, supplying all information
required by the insurance company, and executing all necessary documents,
provided that no financial obligation is imposed on Employee by any such
documents.
Section 7. REIMBURSEMENT OF BUSINESS EXPENSES.
Employee is authorized to incur reasonable business expenses in
carrying out his duties and responsibilities under this Agreement and the
Company shall promptly reimburse him for all business expenses incurred in
connection with carrying out the business of the Company, subject to
documentation in accordance with the Company's policy, as in effect from time to
time.
Section 8. TERMINATION OF EMPLOYMENT.
(a) General. The Term of Employment shall terminate earlier than as
provided in Section 2 hereof upon the earliest to occur of (i) Employee's death,
(H) a termination by reason of a Disability, (Hi) a termination by the Company
with or without Cause, or (iv) a termination by Employee with or without Good
Reason. Upon any termination of Employee's employment for any reason, except as
may otherwise be requested by the Company, Employee shall resign from any and
all directorships, committee memberships or any other positions Employee holds
with the Company or any of its affiliates.
(b) Termination due to Death or Disability. Employee's employment
shall terminate automatically upon his death. The Company may terminate
Employee's employment immediately upon the occurrence of a Disability, such
termination to be effective upon Employee's receipt of written notice of such
termination. In the event Employee's employment is terminated due to his death
or Disability, Employee or his estate or his beneficiaries, as the case may be,
shall be entitled to:
(i) The Accrued Obligations; and
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(ii) Any unpaid Annual Bonus in respect to any completed
fiscal year which has ended prior to the date of such termination, which
amount shall be paid at such time Annual Bonus amounts are paid to other
senior executives; and
(iii) An amount equal to the Pro Rata Bonus, which amount
shall be paid in a lump-sum as soon as practicable following the date of
such termination.
Following such termination of Employee's employment by the reason of death or
Disability, except as set forth in this Section 8(b), Employee shall have no
further rights to any compensation or any other benefits under this Agreement.
(c) Termination by the Company for Cause.
(i) A termination for Cause shall not take effect unless the
provisions of this subsection (i) are complied with. Employee shall be
given not less than two (2) weeks written notice by the Board of the
intention to terminate him for Cause, such notice to state in detail the
particular act or acts or failure or failures to act that constitute the
grounds on which the proposed termination for Cause is based and to be
delivered within six (6) months of the occurrence of such act, acts,
failures or failures to act. Employee shall have two (2) weeks after the
date that such written notice has been given to Employee in which to cure
such conduct, to the extent such cure is possible. If he fails to cure
such conduct, the termination shall be effective on the date immediately
following the expiration of the two (2) weeks notice period. During any
cure period provided hereunder, the Board may, in its sole and absolute
discretion, prohibit Employee from entering the premises of the Company or
otherwise performing his duties hereunder.
(ii) In the event the Company terminates Employee's employment
for Cause, he shall be entitled only to the Accrued Obligations. Following
such termination of Employee's employment for Cause, except as set forth
in this Section 8(c)(ii), Employee shall have no further rights to any
compensation or any other benefits under this Agreement.
(d) Termination by the Company without Cause or Termination by
Employee with Good Reason. The Company may terminate Employee's employment
without Cause, effective upon Employee's receipt of written notice of such
termination. Employee may terminate his employment with Good Reason by providing
the Company thirty (30) days' written notice setting forth in reasonable
specificity the event that constitutes Good Reason, within six (6) months of the
occurrence of such event. In the event Employee's employment is terminated by
the Company without Cause (other than due to death or Disability or in
connection with a termination during the Special Severance Period), or by the
Employee with Good Reason, Employee shall be entitled to:
(i) The Accrued Obligations;
(ii) Continuation of Base Salary for a period of twelve (12)
months following the date of such termination (the "Severance Term"),
payable in accordance with the Company's payroll practices;
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(iii) Any unpaid Annual Bonus in respect to any completed
fiscal year which has ended prior to the date of such termination, which
amount shall be paid at such time Annual Bonus amounts are paid to other
senior executives;
(iv) An amount equal to the Pro Rata Bonus, which amount shall
be paid in substantially equal installments during the Severance Term at
the same time as payments are made with respect to Base Salary pursuant to
subsection (ii) above; and
(v) Should Employee be eligible for and elect to continue his
health insurance pursuant to COBRA following the date of such termination,
payment of COBRA premiums in excess of the cost of such health insurance
coverage for active employees of the Company until the earlier of: (A)
expiration of the Severance Term, or (B) the date Employee commences
employment with any person or entity and, thus, is eligible for health
insurance benefits.
Notwithstanding the foregoing, the payments and benefits described in
subsections (H), (iii), (iv) or (v) above shall immediately terminate, and the
Company shall have no further obligations to Employee with respect thereto, in
the event that Employee materially breaches any provision of the Noncompetition
Agreement.
Following such termination of Employee's employment by the Company
without Cause or by Employee with Good Reason, except as set forth in this
Section 8(d), Employee shall have no further rights to any compensation or any
other benefits under this Agreement.
(e) Termination by Employee. Employee may resign from his employment
by providing the Company thirty (30) days' written notice of such resignation.
In the event of a termination of employment by Employee under this Section 8(e),
Employee shall be entitled only to the Accrued Obligations. In the event of
termination of Employee's employment under this subsection (e), the Company may,
in its sole and absolute discretion, prohibit Employee from entering the
premises of the Company for all or any portion of the notice period (which in no
event shall be treated as a termination without Cause), provided that the
Company shall continue to pay to Employee his then current Base Salary and
continue benefits provided pursuant to Section 5 for the duration of the notice
period. Following such termination of Employee's employment by reason of
Employee's resignation, except as set forth in this Section 8(e), Employee shall
have no further rights to any compensation or any other benefits under this
Agreement.
(f) Expiration of the Term of Employment. Notwithstanding anything
herein to the contrary, (i) in no event shall delivery of a Non-Renewal Notice
by the Company in and of itself constitute a termination without Cause; and (ii)
in no event shall delivery of a Non-Renewal Notice by Employee constitute an
event pursuant to which the Company may terminate Employee's employment for
Cause or constitute a termination by employee subject to Section 8(e). Upon such
expiration of the Term of Employment, Employee shall be entitled to:
(i) The Accrued Obligations; and
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(ii) Any unpaid Annual Bonus in respect to any completed
fiscal year which has ended prior to the date of such termination, which
amount shall be paid at such time Annual Bonus amounts are paid to other
senior executives.
Notwithstanding the foregoing, in the event that the expiration of the Term of
Employment is as a result of the Company's delivery of a Non-Renewal Notice, in
lieu of the payments and benefits described in subsections (i) and (H) above,
the Employee shall be entitled to the same payments and benefits as provided in
Section 8(d) above for a termination without Cause. Following such termination
of Employee's employment upon expiration of the Term of Employment, except as
set forth in this Section 8(f), Employee shall have no further rights to any
compensation or any other benefits under this Agreement.
(g) Special Severance Provision. Notwithstanding any provision
herein to the contrary, and in lieu of any other severance payments provided in
Section 8 herein, in the event that (i) Employee's employment is terminated by
the Company without Cause at any time during the period prior to the first
anniversary of the Closing Date, (ii) Employee's employment is terminated by the
Employee with Good Reason at any time during the period prior to the first
anniversary of the Closing Date, or (Hi) Employee's employment is terminated by
the Company without Cause or by reason of Employee's voluntary resignation, in
each case, at any time during the one month period following the first
anniversary of the Closing Date, (all three periods collectively referred to as
the "Special Severance Period"), Employee shall be paid, as soon as practicable
following the effective date of termination, an amount equal to the sum of:
(i) The Accrued Obligations;
(ii) Any unpaid Annual Bonus in respect to any completed
fiscal year which has ended prior to the date of such termination, which
amount shall be paid at such time Annual Bonus amounts are paid to other
senior executives;
(iii) A lump sum payment of $476,700; and
(iv) If Employee elects to continue coverage under the
Company's medical/dental vision plan pursuant to COBRA, the Company shall
continue to pay the amount in excess of the cost of such health insurance
coverage for active employees until the earlier of (x) the expiration of
the eighteen (18) month period following the date of termination or (y)
the date Employee commences employment with another employer to the extent
such employer offers such coverage, at the same or better terms, to its
employees and to the extent that Employee does not have to continue
coverage under the applicable plan of the Company due to a pre-existing
condition for which Employee is not covered under the new employer's plan.
For purposes of this subsection (g) only, "Cause" shall be deemed to mean: (i)
Employee's embezzlement, theft, larceny, or fraud, in each case, which results
in material economic harm to the Company; (ii) Employee's conviction of,
admission to, or entry of pleas of no contest to any felony or any other crime
which has, or may have within the Company's reasonable discretion, a material
adverse effect on Employee's ability to carry out his duties under this
Agreement or upon the reputation of the Company; or (iii) following a thirty
(30) day cure period after receipt
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of written notice by Employee, Employee's uncured material breach of the
Noncompetition Agreement.
(h) Release. Notwithstanding any provision herein to the contrary,
the Company may require that, prior to payment of any amount or provision of any
benefit pursuant to Section 8(d), 8W) or 8(g) above (including by reason of a
termination of employment as a result of the Company's delivery of a Non-Renewal
Notice pursuant to Section 8(1) above), Employee shall have executed a customary
general release in favor of the Company and its affiliates and related parties
in such form as is reasonably required by the Company, and any waiting periods
contained in such release shall have expired.
Section 9. NONCOMPETITION AGREEMENT.
As a condition of Employee's employment hereunder, contemporaneously
herewith, the Employee shall execute the Noncompetition Agreement. Employee
represents and warrants to the Company that he will continue to comply with the
obligations provided thereunder, and acknowledges that the provisions of the
Noncompetition Agreement shall survive any termination of his employment
hereunder.
Section 10. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE.
Employee represents that:
(a) Employee is entering into this Agreement voluntarily and that
his employment hereunder and compliance with the terms and conditions hereof
will not conflict with or result in the breach by him of any agreement to which
he is a party or by which he may be bound;
(b) he has not violated, and in connection with his employment with
the Company will not violate, any non-solicitation or other similar covenant or
agreement by which he is or may be bound; and
(c) in connection with his employment with the Company he will not
use any confidential or proprietary information he may have obtained in
connection with employment with any prior employer (other than Avicis, Inc.).
Section 11. TAXES.
The Company may withhold from any payments made under this Agreement
all applicable taxes, including but not limited to income, employment and social
insurance taxes, as shall be required by law.
Section 12. SET OFF; MITIGATION.
The Company's obligation to pay Employee the amounts provided and to
make the arrangements provided hereunder shall be subject to set-off,
counterclaim or recoupment of amounts ascertainable to a sum certain owed by
Employee to the Company or its affiliates; provided, however, that the Company's
right to set-off counterclaim or recoupment hereunder
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shall not apply to the payments provided under Section 8(g) of this Agreement.
Employee shall not be required to mitigate the amount of any payment provided
for pursuant to this Agreement by seeking other employment or otherwise and the
amount of any payment provided for pursuant to this Agreement shall not be
reduced by any compensation earned as a result of Employee's other employment or
otherwise.
Section 13. DISPUTE RESOLUTION.
Any controversy arising out of or relating to this Agreement or the
breach hereof (other than claims arising under the Noncompetition Agreement)
shall be settled by binding arbitration in accordance with the Employment
Dispute Resolution Rules of the American Arbitration Association and judgment
upon the award rendered may be entered in any court having jurisdiction thereof.
The arbitrator shall be selected by mutual agreement of the Company and
Employee, or if the Company and Employee are unable to agree on an arbitrator,
the arbitrator shall be appointed by the American Arbitration Association. The
costs of any such arbitration proceedings, including all reasonable legal fees,
disbursements, and other costs paid or incurred by the prevailing party arising
out of or resulting from such proceedings, shall be reimbursed by the
non-prevailing party. Any award made by such arbitrator shall be final, binding
and conclusive on the parties for all purposes, and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof.
Section 14. SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES.
(a) The Company. This Agreement shall inure to the benefit of and be
enforceable by, and may be assigned by the Company to, any purchaser of all or
substantially all of the Company's business or assets, any successor to the
Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise). The Company will require any such
purchaser, successor or assignee to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such purchase, succession or assignment had taken
place.
(b) Employee. Employee's rights and obligations under this Agreement
shall not be transferable by Employee by assignment or otherwise, without the
prior written consent of the Company; provided, however, that if Employee shall
die, all amounts then payable to Employee hereunder shall be paid in accordance
with the terms of this Agreement to Employee's devisee, legatee or other
designee or, if there be no such designee, to Employee's estate.
(c) No Third-Party Beneficiaries. Except as set forth in subsection
(b) above, nothing expressed or referred to in this Agreement will be construed
to give any person other than Company and Employee any legal or equitable right,
remedy or claim under or with respect to this Agreement or any provision of this
Agreement.
Section 15. WAIVER AND AMENDMENTS.
Any waiver, alteration, amendment or modification of any of the
terms of this Agreement shall be valid only if made in writing and signed by the
parties hereto; provided, however, that any such waiver, alteration, amendment
or modification is consented to on the Company's behalf by the Board. No waiver
by either of the parties hereto of their rights
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hereunder shall be deemed to constitute a waiver with respect to any subsequent
occurrences or transactions hereunder unless such waiver specifically states
that it is to be construed as a continuing waiver.
Section 16. SEVERABILITY AND GOVERNING LAW.
If any covenants or such other provisions of this Agreement are
found to be invalid or unenforceable by a final determination of a court of
competent jurisdiction: (a) the remaining terms and provisions hereof shall be
unimpaired, and (b) the invalid or unenforceable term or provision hereof shall
be deemed replaced by a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE (WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 17. NOTICES.
(a) Every notice or other communication relating to this Agreement
shall be in writing, and shall be mailed to or delivered to the party for whom
it is intended at such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided, provided that,
unless and until some other address be so designated, all notices or
communications by Employee to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or communications by
the Company to Employee may be given to Employee personally or may be mailed to
Employee at Employee's last known address, as reflected in the Company's
records.
(b) Any notice so addressed shall be deemed to be given: (i) if
delivered by hand, on the date of such delivery; (ii) if mailed by courier or by
overnight mail, on the first business day following the date of such mailing;
and (iii) if mailed by registered or certified mail, on the third business day
after the date of such mailing.
Section 18. SECTION HEADINGS.
The headings of the sections and subsections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
thereof, affect the meaning or interpretation of this Agreement or of any term
or provision hereof.
Section 19. ENTIRE AGREEMENT.
This Agreement, together with the Noncompetition Agreement,
constitutes the entire understanding and agreement of the parties hereto
regarding the employment of Employee. This Agreement supersedes all prior
negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement.
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Section 20. SURVIVAL OF OPERATIVE SECTIONS.
Upon any termination of Employee's employment, the provisions of
Section 8 through Section 21 of this Agreement shall survive to the extent
necessary to give effect to the provisions thereof.
Section 21. COUNTERPARTS.
This Agreement may be executed in two or more counterparts,
(including by facsimile), each of which shall be deemed to be an original but
all of which together shall constitute one and the same instrument. The
execution of this Agreement may be by actual or facsimile signature.
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[Signatures to appear on the following page.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
SPHERIS OPERATIONS INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Title: President & CEO
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/s/ Xxxxx X. Xxxxxxxx
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