EXHIBIT 10.49
AMENDMENT NO. 2 TO
EMPLOYMENT AGREEMENT
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This is an Amendment dated February 23, 2001 (the "Amendment") to the
Employment Agreement (as hereinafter defined) by and between SELECT MEDICAL
CORPORATION, a Delaware corporation (the "Employer"), and XXXXXXXX X. XXXX an
individual (the "Employee").
Background
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A. The Employer and the Employee executed and delivered that certain
Employment Agreement dated as of March 1, 2000 and that certain Amendment No. 1
to Employment Agreement dated as of August 8, 2000 (as amended, the "Employment
Agreement"). The Employer and the Employee now desire to further amend the
Employment Agreement as hereinafter provided.
B. Accordingly, and intended to be legally bound hereby, the Employer
and the Employee agree as follows:
1. The portion of the first sentence of Section 5.01(a) of the
Employment Agreement which appears before clause (A) is hereby amended and
restated as follows:
"(a) Certain Terminations Following a Change of Control. If, during the
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Term, there should be a Change of Control (as defined in Section 5.02), and
(i) within the one-year period immediately following the Change of Control,
the Employee makes a good faith determination that she is unable to perform
her services effectively or there is any significant adverse change in her
authority or responsibilities, as performed, or her title as in effect,
immediately prior to such Change of Control, or (ii) within the five-year
period immediately following the Change in Control, (w) the Employee's
employment with the Employer is terminated by the Employer without cause as
defined in Section 2.02(b), (x) there is a reduction by the Employer in the
Employee's compensation from that in effect prior to such Change of
Control, (y) the Employer has required the Employee to be based at an
office or location more than 25 miles from Mechanicsburg, PA, or (z) the
Employer has failed to comply with and satisfy Section 7.01 of this
Agreement, then on or before the Employee's last day of providing services
hereunder, in lieu of any other rights to cash compensation she may have
under this Agreement which have not accrued by such date, including any
compensation pursuant to Section 2.02(d),"
2. The Employment Agreement is hereby amended by the addition of the
following new Section 5.03 in its entirety, to be inserted immediately after
Section 5.02:
"5.03. Claims Procedure. Any claim for benefits under Article 5 of this
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Agreement by the Employee shall be made in writing and sent to the Employer at
its principal offices in Mechanicsburg, Pennsylvania, or such other place as
the Employer shall hereafter designate in writing. If the Employee, or any
beneficiary following the Employee's death (collectively, the "Claimant"),
believes she has been denied any benefits or payments under Article 5 of this
Agreement, either in total or in an amount less than the full benefit or payment
to which the Claimant would normally be entitled, the Employer shall advise the
Claimant in writing of the amount of the benefit, or payment, if any, and the
specific reasons for the denial within thirty (30) days of the receipt of the
Claimant's claim. The Employer shall also furnish the Claimant at that time with
a written notice containing:
(A) A specific reference to pertinent provisions of this Agreement;
(B) A description of any additional material of information necessary for
the Claimant to perfect the claim if possible, and an explanation of why
such material or information is needed; and
(C) An explanation of the claim review procedure set forth in this Section
5.03.
Within sixty (60) days of receipt of the information described above, the
Claimant shall, if further review is desired, file a written request of
reconsideration of the Employer's decision with the Appeal Committee. The Appeal
Committee shall consist of those individuals who were serving as the
Compensation Committee of the Board of Directors of the Employer immediately
prior to the Change of Control. The Appeal Committee shall select from its
membership a chairperson and a secretary and may adopt such rules and procedures
as it deems necessary to carry out its functions. In the event any individual
is unable to serve on the Appeal Committee, then the chairperson of the Appeal
Committee shall appoint a successor provided such successor must have been a
member of the Board of Directors of the Employer prior to the Change of Control
("Prior board Member"). So long as the Claimant's request for review is pending
with the Appeal Committee (including such 60-day period), the Claimant, or her
duly authorized representative, may review pertinent documents and may submit
issues and comments in writing to the Appeal Committee. A final and binding
decision shall be made by the Appeal Committee within thirty (30) days of the
filing by the Claimant of the request for reconsideration. The Appeal
Committee's decision shall be conveyed to the Claimant in writing and shall
include specific reasons for the decision and specific references to the
pertinent provisions of this Agreement on which the decision is based. The
Appeal Committee shall discharge its duties under this claims procedure in
accordance with the fiduciary standards of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and in doing so, to the extent
permitted by law, shall be indemnified and held harmless by the Employer (to the
extent not indemnified or saved harmless under any liability insurance or other
indemnification arrangement with the Employer) for or against all liability to
which the Appeal Committee may be subjected by reason of any act done in good
faith with respect to the adjudication of any claim under Article 5 of this
Agreement, including reasonable expenses. Notwithstanding anything to the
contrary herein contained, the Claimant shall be entitled to submit her claim
for
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determination to any court having competent jurisdiction regardless of whether
she has first exercised her right to have the Employer's decision reconsidered
by the Appeal Committee."
3. Except as amended hereby, the Employment Agreement shall continue in
effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
SELECT MEDICAL CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx,
President
/s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
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