INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "AGREEMENT") is made and entered
into as of this 17th day of September 1997, by and between Concentra Managed
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Care, Inc., a Delaware corporation (the "CORPORATION"), and Xxxxxx X Xxxxxx, a
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Massachusetts resident ("INDEMNITEE").
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RECITALS:
A. Competent and experienced persons are reluctant to serve or to
continue to serve corporations as directors or in other capacities unless
they are provided with adequate protection through insurance or
indemnification (or both) against claims and actions against them arising out
of their service to and activities on behalf of those corporations.
B. The current uncertainties relating to the availability of adequate
insurance for directors and officers have increased the difficulty for
corporations to attract and retain competent and experienced persons.
C. The Board of Directors of the Corporation has determined that the
continuation of present trends in litigation will make it more difficult to
attract and retain competent and experienced persons, that this situation is
detrimental to the best interests of the Corporation's stockholders, and that
the Corporation should act to assure its directors and officers that there
will be increased certainty of adequate protection in the future.
D. The Certificate of Incorporation of the Corporation requires the
Corporation to indemnify its directors and officers to the fullest extent
permitted by law.
E. It is reasonable, prudent, and necessary for the Corporation to
obligate itself contractually to indemnify its directors and officers to the
fullest extent permitted by applicable law in order to induce them to serve
or continue to serve the Corporation.
F. Indemnitee is willing to serve, continue to serve, and to take on
additional service for or on behalf of the Corporation on the condition that
he be indemnified to the fullest extent permitted by law.
G. Concurrently with the execution of this Agreement, Indemnitee is
agreeing to serve or to continue to serve as a director or officer of the
Corporation.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises, Indemnitee's
agreement to serve or continue to serve as a director or officer of the
Corporation, and the covenants contained in this Agreement, the Corporation
and Indemnitee hereby covenant and agree as follows:
1. CERTAIN DEFINITIONS:
(a) "ACQUIRING PERSON" means any Person other than (i) the
Corporation, (ii) any of the Corporation's Subsidiaries, (iii) any employee
benefit plan of the Corporation or of a Subsidiary of the Corporation or of a
corporation owned directly or indirectly by the stockholders of the
Corporation in substantially the same proportions as their ownership of stock
of the Corporation, (iv) any trustee or other fiduciary holding securities
under an employee benefit plan of the Corporation or of a Subsidiary of the
Corporation or of a corporation owned directly or indirectly by the
stockholders of the Corporation in substantially the same proportions as
their ownership of stock of the Corporation, or (v) any Person who, as of
January 1, 1997, was the "beneficial owner" (as hereinafter defined),
directly or indirectly, of securities of the Corporation representing twenty
percent or more of the combined voting power of the Voting Securities of the
Corporation outstanding as of such date.
(b) "CHANGE IN CONTROL" means the occurrence of any of the
following events:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "PERSON") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (x) the then outstanding shares of
Common Stock of the Corporation (the "OUTSTANDING CORPORATION COMMON STOCK")
or (y) the combined voting power of the then outstanding voting securities of
the Corporation entitled to vote generally in the election of directors (the
"OUTSTANDING CORPORATION VOTING SECURITIES"); PROVIDED, HOWEVER, that for
purposes of this Subparagraph (i), the following acquisitions shall not
constitute a Change of Control: (A) any acquisition directly from the
Corporation, (B) any acquisition by the Corporation, (C) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Corporation or any corporation controlled by the Corporation or (D) any
acquisition by any corporation pursuant to a transaction which complies with
clauses (A), (B) and (C) of paragraph (iii) below; or
(ii) Individuals who, as of the date of this Plan, constitute the
Board of Directors cease for any reason to constitute at least a majority of
the Incumbent Board;
(iii) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of the
Corporation or an acquisition of assets of another corporation (a "BUSINESS
COMBINATION"), in each case, unless, following such Business Combination, (A)
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Corporation Common Stock
and Outstanding Corporation Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50%
of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result
of such transaction owns the Corporation or all or substantially all of the
Corporation's assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
such Business Combination, of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities, as the case may be, (B) no Person
(excluding any employee benefit plan (or related trust) of the Corporation or
the corporation resulting from the Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership of
the Corporation existed prior to the Business Combination and (C) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent Board
at the time of the execution of the initial agreement, or of the action of
the Board, providing for such Business Combination; or
(iv) Approval by the stockholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
(c) "CLAIM" means any threatened, pending, or completed action,
suit, or proceeding (including, without limitation, securities laws actions,
suits, and proceedings), or any inquiry or investigation (including
discovery), whether conducted by the Corporation or any other party, that
Indemnitee in good faith believes might lead to the institution of any
action, suit, or proceeding, whether civil, criminal, administrative,
investigative, or other.
(d) "EXPENSES" means all costs, expenses (including attorneys'
and expert witnesses' fees), and obligations paid or incurred in connection
with investigating, defending (including affirmative defenses and
counterclaims), being a witness in, or participating in (including on
appeal), or preparing to defend, be a witness in, or participate in, any
Claim relating to any Indemnifiable Event.
(e) "INCUMBENT BOARD" means the individuals who, as of the date of
this Agreement, constitute the Board of Directors and any other individual
who becomes a director of the Corporation after that date and whose election
or appointment by the Board of Directors or nomination for election by the
Corporation's stockholders was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Incumbent
Board.
(f) "INDEMNIFIABLE EVENT" means any event or occurrence related
to the fact that Indemnitee is or was a director, officer, employee, agent,
or fiduciary of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, trustee, agent, or fiduciary of
another corporation, partnership, joint venture, employee benefit plan,
trust, or other enterprise, or by reason of any thing done or not done by
Indemnitee in any such capacity.
For purposes of this Agreement, the Corporation agrees that Indemnitee's
service on behalf of or with respect to any Subsidiary of the Corporation
shall be deemed to be at the request of the Corporation.
(g) "PERSON" means any person or entity of any nature whatsoever,
specifically including (but not limited to) an individual, a firm, a company,
a corporation, a limited liability company, a partnership, a trust or other
entity. A Person, together with that Person's affiliates and associates (as
those terms are defined in Rule 12b-2 under the Exchange Act for purposes of
this definition only), and any Persons acting as a partnership, limited
partnership, joint venture, association, syndicate or other group (whether or
not formally organized), or otherwise acting jointly or in concert or in a
coordinated or consciously parallel manner (whether or not pursuant to any
express agreement), for the purpose of acquiring, holding, voting or
disposing of securities of the Corporation with that Person, shall be deemed
a single "Person."
(h) "POTENTIAL CHANGE IN CONTROL" shall be deemed to have
occurred if (i) the Corporation enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control; (ii) any Person
(including the Corporation) publicly announces an intention to take or to
consider taking actions that, if consummated, would constitute a Change in
Control; (iii) after the Corporation has become a reporting company under the
Exchange Act, any Acquiring Person who is or becomes the beneficial owner,
directly or indirectly, of securities of the Corporation representing 10% or
more of the combined voting power of the then outstanding Voting Securities
of the Corporation increases his beneficial ownership of such securities by
5% or more over the percentage so owned by that Person on the date hereof; or
(iv) the Board of Directors of the Corporation adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in Control
has occurred.
(i) "REVIEWING PARTY" means any appropriate person or body
consisting of a member or members of the Corporation's Board of Directors or
any other person or body appointed by the Board (including Special Counsel
referred to in Section 3) who is not a party to the particular Claim for
which Indemnitee is seeking indemnification.
(j) "SPECIAL COUNSEL" means special, independent counsel selected
by Indemnitee and approved by the Corporation (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the
Corporation or for Indemnitee within the last three years (other than as
Special Counsel under this Agreement or similar agreements).
(k) "SUBSIDIARY" means, with respect to any Person, any
corporation or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly,
by that Person.
(l) "VOTING SECURITIES" means any securities that vote generally
in the election of directors or in the selection of any other similar
governing body.
2. BASIC INDEMNIFICATION AND EXPENSE REIMBURSEMENT ARRANGEMENT.
(a) In the event Indemnitee was, is, or becomes a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant in, a Claim by reason of (or arising in part out
of) an Indemnifiable Event, the Corporation shall indemnify Indemnitee to the
fullest extent permitted by law as soon as practicable but in any event no
later than 30 days after written demand is presented to the Corporation,
against any and all Expenses, judgments, fines, penalties, and amounts paid
in settlement (including all interest, assessments, and other charges paid or
payable in connection with or in respect of such Expenses, judgments, fines,
penalties, or amounts paid in settlement) of or with respect to that Claim.
Notwithstanding the foregoing, the obligations of the Corporation under
Section 2(a) shall be subject to the condition that the Reviewing Party shall
not have determined (in a written opinion, in any case in which Special
Counsel referred to in Section 3 hereof is involved) that Indemnitee would
not be permitted to be indemnified under applicable law. Nothing contained
in this Agreement shall require any determination under this Section 2(a) to
made by the Reviewing Party prior to the disposition or conclusion of the
Claim against the Indemnitee; provided, however, that Expense Advances shall
continue to be made by the Corporation pursuant to and to the extent required
by the provisions of Section 2(b).
(b) If so requested by Indemnitee, the Corporation shall pay any
and all Expenses incurred by Indemnitee (or, if applicable, reimburse
Indemnitee for any and all Expenses incurred by Indemnitee and previously
paid by Indemnitee) within two business days after such request (an "EXPENSE
ADVANCE"). The Corporation shall be obligated to make or pay an Expense
Advance in advance of the final disposition or conclusion of any Claim. In
connection with any request for an Expense Advance, if requested by the
Corporation, Indemnitee or Indemnitee's counsel shall submit an affidavit
stating that the Expenses incurred were reasonable. Any dispute as to the
reasonableness of any Expense shall not delay an Expense Advance by the
Corporation, and the Corporation agrees that any such dispute shall be
resolved only upon the disposition or conclusion of the underlying Claim
against the Indemnitee. If, when, and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified with
respect to a Claim under applicable law, the Corporation shall be entitled to
be reimbursed by Indemnitee and Indemnitee hereby agrees to reimburse the
Corporation without interest (which agreement shall be an unsecured
obligation of Indemnitee) for all related Expense Advances theretofore made
or paid by the Corporation; provided, however, that if Indemnitee has
commenced legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Corporation for any Expense
Advance, and the Corporation shall be obligated to continue to make Expense
Advances, until a final judicial determination is made with respect thereto
(as to which all rights of appeal therefrom have been exhausted or lapsed).
If there has not been a Change in Control, the Reviewing Party shall be
selected by the Board of Directors of the Corporation. If there has been a
Change in Control, the Reviewing Party shall be advised by or shall be
Special Counsel referred to in Section 3 hereof, if and as Indemnitee so
requests. If there has been no determination by the Reviewing Party or if
the Reviewing Party determines
that Indemnitee substantively would not be permitted to be indemnified in
whole or in part under applicable law, Indemnitee shall have the right to
commence litigation in any court in the states of Massachusetts, Delaware, or
Texas having subject matter jurisdiction thereof and in which venue is proper
seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, and the
Corporation hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Corporation and Indemnitee.
3. CHANGE IN CONTROL. The Corporation agrees that, if there is a Change
in Control and if Indemnitee requests in writing that Special Counsel advise the
Reviewing Party or be the Reviewing Party, then the Corporation shall not deny
any indemnification payments (and Expense Advances shall continue to be paid by
the Corporation pursuant to Section 2(b)) that Indemnitee requests or demands
under this Agreement or any other agreement or law now or hereafter in effect
relating to Claims for Indemnifiable Events. The Corporation further agrees not
to request or seek reimbursement from Indemnitee of any related Expense Advances
unless, with respect to a denied indemnification payment, Special Counsel has
rendered its written opinion to the Corporation and Indemnitee that the
Corporation would not be permitted under applicable law to pay Indemnitee such
indemnification payment. The Corporation agrees to pay the reasonable fees of
Special Counsel referred to in this Section 3 and to indemnify fully Special
Counsel against any and all expenses (including attorneys' fees), claims,
liabilities, and damages arising out of or relating to this Agreement or Special
Counsel's engagement pursuant hereto.
4. ESTABLISHMENT OF TRUST. In the event of a Potential Change in
Control, the Corporation shall, upon written request by Indemnitee, create a
trust for the benefit of Indemnitee (the "TRUST") and from time to time upon
written request of Indemnitee shall fund the Trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each such
request to be incurred in connection with investigating, preparing for, and
defending any Claim relating to an Indemnifiable Event, and any and all
judgments, fines, penalties, and settlement amounts (including all interest,
assessments, and other charges paid or payable in connection with or in respect
of such expenses, judgments, fines, penalties, and settlement amounts) of any
and all Claims relating to an Indemnifiable Event from time to time actually
paid or claimed, reasonably anticipated, or proposed to be paid. The amount or
amounts to be deposited in the Trust pursuant to the foregoing funding
obligation shall be determined by the Reviewing Party, in any situation in which
Special Counsel referred to in Section 3 is involved. The terms of the Trust
shall provide that, upon a Change in Control, (i) the Trust shall not be revoked
or the principal thereof invaded, without the written consent of Indemnitee;
(ii) the trustee of the Trust shall advance, within two business days of a
request by Indemnitee, any and all Expenses to Indemnitee (and Indemnitee hereby
agrees to reimburse the Trust under the circumstances in which Indemnitee would
be required to reimburse the Corporation for Expense Advances under Section 2(b)
of this Agreement); (iii) the Trust shall continue to be funded by the
Corporation in accordance with the funding obligation set forth above; (iv) the
trustee of the Trust shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this Agreement or
otherwise; and (v) all unexpended funds in that Trust shall revert to the
Corporation upon a final determination by the Reviewing Party or a court of
competent jurisdiction, as the case may be, that Indemnitee has been fully
indemnified under
the terms of this Agreement. The trustee of the Trust shall be chosen by
Indemnitee. Nothing in this Section 4 shall relieve the Corporation of any
of its obligations under this Agreement.
5. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Corporation shall
indemnify Indemnitee against any and all costs and expenses (including
attorneys' and expert witnesses' fees) and, if requested by Indemnitee, shall
(within two business days of that request) advance those costs and expenses
to Indemnitee, that are incurred by Indemnitee in connection with any claim
asserted against or action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Corporation under this Agreement or any
other agreement or provision of the Corporation's Certificate of
Incorporation or By-laws now or hereafter in effect relating to Claims for
Indemnifiable Events or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the Corporation, regardless of
whether Indemnitee ultimately is determined to be entitled to that
indemnification, advance expense payment, or insurance recovery, as the case
may be.
6. PARTIAL INDEMNITY. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for some or a portion of
the Expenses, judgments, fines, penalties, and amounts paid in settlement of a
Claim but not, however, for all of the total amount thereof, the Corporation
shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
7. CONTRIBUTION.
(a) CONTRIBUTION PAYMENT. To the extent the indemnification provided
for under any provision of this Agreement is determined (in the manner
hereinabove provided) not to be permitted under applicable law, then in the
event Indemnitee was, is, or becomes a party to or witness or other participant
in, or is threatened to be made a party to or witness or other participant in, a
Claim by reason of (or arising in part out of) an Indemnifiable Event, the
Corporation, in lieu of indemnifying Indemnitee, shall contribute to the amount
of any and all Expenses, judgments, fines, or penalties assessed against or
incurred or paid by Indemnitee on account of that Claim and any and all amounts
paid in settlement of that Claim (including all interest, assessments, and other
charges paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties, or amounts paid in settlement) for which such
indemnification is not permitted ("CONTRIBUTION AMOUNTS"), in such proportion as
is appropriate to reflect the relative fault with respect to the Indemnifiable
Event giving rise to the Contribution Amounts of Indemnitee, on the one hand,
and of the Corporation and any and all other parties (including officers and
directors of the Corporation other than Indemnitee) who may be at fault with
respect to such Indemnifiable Event (collectively, including the Corporation,
the "THIRD PARTIES") on the other hand.
(b) RELATIVE FAULT. The relative fault of the Third Parties and
the Indemnitee shall be determined (i) by reference to the relative fault of
Indemnitee as determined by the court or other governmental agency assessing
the Contribution Damages or (ii) to the extent such court or other
governmental agency does not apportion relative fault, by the Reviewing Party
(which shall include Special Counsel) after giving effect to, among other
things, the relative intent, knowledge, access to information, and
opportunity to prevent or correct the applicable Indemnifiable Event and
other relevant equitable considerations of each party. The Corporation and
Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation which does take account of the equitable
considerations referred to in this Section 7(b).
8. BURDEN OF PROOF. In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified under any provision of this Agreement or to receive contribution
pursuant to Section 7 of this Agreement, the burden of proof shall be on the
Corporation to establish that Indemnitee is not so entitled.
9. NO PRESUMPTION. For purposes of this Agreement, the termination of
any claim, action, suit, or proceeding, by judgment, order, settlement (whether
with or without court approval), or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable
law.
10. ACTION OF OTHERS. The knowledge and/or actions, or failure to act, of
any director, officer, agent, or employee of the Corporation shall not be
imputed to the Indemnitee for purposes of determining the right to
indemnification under this Agreement.
11. INDEMNITEE'S INDIVIDUAL CAPACITY. The Corporation acknowledges that
the Indemnitee is undertaking to act as a director of the Corporation at the
request of the Corporation and solely in the Indemnitee's individual capacity
and not in any capacity as a director, officer, member, partner, employee,
trustee, or other representative of any other corporation, partnership,
association, business trust, trust, or similar organization or entity. The
Corporation covenants and agrees to indemnify any such organization or entity
from and against any and all judgments, fines, or penalties assessed against or
incurred or paid by such organization or entity and any and all amounts paid in
settlement (including all interest, attorneys' and expert witnesses' fees, and
other charges paid or payable in connection with such judgments, fines,
penalties, or amounts paid in settlement) with respect to any action or inaction
taken in the course of the Indemnitee's duties as a director of the Corporation.
12. NON-EXCLUSIVITY. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Corporation's By-laws
or Certificate of Incorporation or the Delaware General Corporation Law or
otherwise. To the extent that a change in the Delaware General Corporation Law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Corporation's By-laws or
Certificate of Incorporation and this Agreement, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by that change.
13. LIABILITY INSURANCE. Except as otherwise agreed to by the Corporation
and Indemnitee in a written agreement, to the extent the Corporation maintains
an insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by that policy or those policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Corporation director or officer.
14. PERIOD OF LIMITATIONS. No legal action shall be brought and no cause
of action shall be asserted by or on behalf of the Corporation or any affiliate
of the Corporation against Indemnitee or Indemnitee's spouse, heirs, executors,
or personal or legal representatives after the expiration of three years from
the date of accrual of that cause of action, and any claim or cause of action of
the Corporation or its affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within that three-year
period; provided, however, that, if any shorter period of limitations is
otherwise applicable to any such cause of action, the shorter period shall
govern.
15. AMENDMENTS. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall that waiver constitute a continuing waiver.
16. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall, subject to the conflicting rights of an insurer pursuant to
any policy contemplated by Section 13 hereof, be subrogated to the extent of
that payment to all of the rights of recovery of Indemnitee, who shall execute
all papers required and shall do everything that may be necessary to secure
those rights, including the execution of the documents necessary to enable the
Corporation effectively to bring suit to enforce those rights.
17. NO DUPLICATION OF PAYMENTS. The Corporation shall not be liable under
this Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision of the Corporation's Certificate of
Incorporation or By-laws, or otherwise) of the amounts otherwise indemnifiable
hereunder.
18. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor by purchase,
merger, consolidation, or otherwise to all or substantially all of the business
or assets of the Corporation), spouses, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as an officer or director of the Corporation or
another enterprise at the Corporation's request.
19. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, that provision shall be fully severable; this Agreement shall
be construed and enforced as if that illegal, invalid, or unenforceable
provision had never comprised a part hereof; and the remaining provisions shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of that illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Agreement a provision as similar
in terms to the illegal, invalid, or unenforceable provision as may be possible
and be legal, valid, and enforceable.
20. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in that state without giving effect to the
principles of conflicts of laws.
21. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
22. NOTICES. Whenever this Agreement requires or permits notice to be
given by one party to the other, such notice must be in writing to be effective
and shall be deemed delivered and received by the party to whom it is sent upon
actual receipt (by any means) of such notice. Receipt of a notice by any
officer of the Corporation shall be deemed receipt of such notice by the
Corporation.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
EXECUTED as of the date first written above.
CONCENTRA MANAGED CARE, INC.
By: /s/ Xxxxxxx X. Xxxx XX
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Name: Xxxxxxx X. Xxxx XX
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Title: Executive Vice President
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and General Counsel
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Indemnitee /s/ Xxxxxx X. Xxxxxx
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