EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as of
the 17th day of September, 1997, between Concentra Managed Care, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxxxxx ("Executive").
WITNESSETH:
WHEREAS, Executive desires to become the Senior Vice President - Marketing
and Sales of the Company and to become an integral part of its management who
participates in the decision-making process relative to short and long-term
planning and policy for the Company; and
WHEREAS, it is the desire of the Board of Directors of the Company (the
"Board of Directors") to assure itself of the management services of Executive
by directly engaging Executive as an officer of the Company and its subsidiaries
and affiliates; and
WHEREAS, Executive is desirous of committing himself to serve the Company
on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby agrees to employ Executive as
its Senior Vice President - Marketing and Sales, and Executive hereby agrees to
accept such employment, on the terms and conditions set forth herein, for the
period commencing on the date hereof (the "Effective Date") and expiring as of
11:59 p.m. on the second anniversary of the Effective Date (unless sooner
terminated as hereinafter set forth) (the "Term"); PROVIDED, HOWEVER, that
commencing on such second anniversary date, and each anniversary of the date
hereof thereafter, the Term of this Agreement shall automatically be extended
for one additional year unless at least thirty (30) days prior to each such
anniversary date, the Company or Executive shall have given notice that it or
he, as applicable, does not wish to extend this Agreement.
2. DUTIES AND RESTRICTIONS.
(a) DUTIES AS EMPLOYEE OF THE COMPANY. Executive shall, subject to
the supervision of the Company's Chief Executive Officer, serve as the Company's
Senior Vice President - Marketing and Sales with all such powers as may be set
forth in the Company's Bylaws with respect to, and/or are reasonably incident
to, such officerships.
(b) OTHER DUTIES. Executive agrees to serve as requested by the
Company as a director of the Company's subsidiaries and affiliates and in one or
more executive offices of any of the Company's subsidiaries and affiliates;
PROVIDED, that the Company indemnifies Executive for serving in any and all such
capacities in a manner acceptable to the Company and Executive. Executive
agrees that he shall not be entitled to receive any compensation for serving in
any capacities of the Company's subsidiaries and affiliates other than the
compensation to be paid to Executive by the Company pursuant to this Agreement.
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(c) NONCOMPETITION. Executive agrees that he will not, for a period
of one year following the termination of his employment with the Company, (1)
solicit the employment of, endeavor to entice away from the Company or its
subsidiaries or affiliates or otherwise interfere with any person who was an
employee of or consultant to the Company or any of its subsidiaries or
affiliates during the one year period preceding such termination, or (2) be
employed by, associated with, or have any interest in, directly or indirectly
(whether as principal, director, officer, employee, consultant, partner,
stockholder, trustee, manager, or otherwise), any occupational healthcare
company or managed care company which has a principal line of business that is
directly competitive with the Company or its subsidiaries or affiliates in any
geographical area in which the Company or its subsidiaries or affiliates engage
in business at the time of such termination or in which any of them, prior to
termination of Executive's employment, evidenced in writing its intention to
engage in business. Notwithstanding the foregoing, Executive shall not be
prohibited from owning five percent or less of the outstanding equity securities
of any entity whose equity securities are listed on a national securities
exchange or publicly traded in any over-the-counter market.
(d) CONFIDENTIALITY. Executive shall not, directly or indirectly, at
any time during or following the termination of his employment with the Company,
reveal, divulge, or make known to any person or entity, or use for Executive's
personal benefit (including, without limitation, for the purpose of soliciting
business, whether or not competitive with any business of the Company or any of
its subsidiaries or affiliates), any information acquired during the course of
employment hereunder with regard to the financial, business, or other affairs of
the Company or any of its subsidiaries or affiliates (including, without
limitation, any list or record of persons or entities with which the Company or
any of its subsidiaries or affiliates has any dealings), other than (1) material
already in the public domain, (2) information of a type not considered
confidential by persons engaged in the same business or a similar business to
that conducted by the Company, or (3) material that Executive is required to
disclose under the following circumstances: (A) in the performance by Executive
of his duties and responsibilities hereunder, reasonably necessary or
appropriate disclosure to another employee of the Company or to representatives
or agents of the Company (such as independent public accountants and legal
counsel); (B) at the express direction of any authorized governmental entity;
(C) pursuant to a subpoena or other court process; (D) as otherwise required by
law or the rules, regulations, or orders of any applicable regulatory body; or
(E) as otherwise necessary, in the opinion of counsel for Executive, to be
disclosed by Executive in connection with the prosecution of any legal action or
proceeding initiated by Executive against the Company or any subsidiary or
affiliate of the Company or the defense of any legal action or proceeding
initiated against Executive in his capacity as an employee or director of the
Company or any subsidiary or affiliate of the Company. Executive shall, at any
time requested by the Company (either during or after his employment with the
Company), promptly deliver to the Company all memoranda, notes, reports, lists,
and other documents (and all copies thereof) relating to the business of the
Company or any of its subsidiaries or affiliates which he may then possess or
have under his control.
3. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY. Executive shall receive a base salary paid by the
Company ("Base Salary") at the annual rate of Two Hundred Thousand Dollars
($200,000) during each calendar year of the Term, payable in substantially equal
monthly installments (or such other more frequent times as executives of the
Company normally are paid). In addition, the Company's Board of Directors or
Option and Compensation Committee of the Board of Directors shall, in good
faith, consider granting increases
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in the Base Salary based on such factors as Executive's performance and the
growth and/or profitability of the Company, but the Company shall have no
obligation to grant such increases in compensation.
(b) BONUS PAYMENTS. Executive shall be entitled to receive, in
addition to the Base Salary, such bonus payments, if any, as the Board of
Directors or the Option and Compensation Committee of the Board of Directors may
specify.
(c) EXPENSES. During the term of his employment hereunder, Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by him (in accordance with the policies and procedures established by
the Board of Directors for its senior executive officers) in performing services
hereunder, provided that Executive properly accounts therefor in accordance with
Company policy.
(d) OTHER BENEFITS. The Company shall not make any changes in any
employee benefit plans or other arrangements in effect on the date hereof or
subsequently in effect in which Executive currently or in the future
participates (including, without limitation, each pension and retirement plan,
supplemental pension and retirement plan, savings and profit sharing plan, stock
or unit ownership plan, stock or unit purchase plan, stock or unit option plan,
life insurance plan, medical insurance plan, disability plan, dental plan,
health-and-accident plan, or any other similar plan or arrangement) that would
adversely affect Executive's rights or benefits thereunder, unless such change
occurs pursuant to a program applicable to all executives of the Company and
does not result in a proportionately greater reduction in the rights of or
benefits to Executive as compared with any other executive of the Company.
Executive shall be entitled to participate in or receive benefits under any
employee benefit plan or other arrangement made available by the Company now or
in the future to its senior executive officers and key management employees,
subject to and on a basis consistent with the terms, conditions, and overall
administration of such plan or arrangement. Nothing paid to Executive under any
plan or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the Base Salary payable to Executive pursuant to
paragraph (a) of this Section 3.
(e) VACATIONS. Executive shall be entitled to twenty (20) paid
vacation days in each calendar year commencing on or after January 1, 1998, or
such additional number as may be determined by the Board of Directors from time
to time. For purposes of this Section 3(e), weekends shall not count as
vacation days and Executive shall also be entitled to all paid holidays given by
the Company to its senior executive officers.
(f) PERQUISITES. Executive shall be entitled to receive the
perquisites and fringe benefits appertaining to senior executive officers of the
Company in accordance with any practice established by the Board of Directors.
In the event Executive's employment hereunder is terminated (whether by
Executive or the Company) for any reason whatsoever (other than Executive's
death), then the Company shall, at Executive's written request and to the extent
permitted by the terms of such policies and applicable law, assign and convey to
Executive any life insurance policies maintained by the Company on the life of
Executive, who shall thereafter be solely responsible, at his election, to pay
all premiums payable after such assignment and conveyance to maintain the
coverage under such policies with respect to Executive. Executive shall not be
required to pay any money or other consideration to the Company upon such
assignment and conveyance, it being acknowledged and agreed by the parties
hereto that Executive's execution and delivery hereof constitute adequate and
satisfactory consideration for such assignment and conveyance.
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(g) PRORATION. Any payments or benefits payable to Executive
hereunder in respect of any calendar year during which Executive is employed by
the Company for less than the entire year, unless otherwise provided in the
applicable plan or arrangement, shall be prorated in accordance with the number
of days in such calendar year during which he is so employed.
4. EXECUTIVE'S OFFICE AND RELOCATION. Executive shall primarily perform
his duties and responsibilities hereunder at the Company's offices located at
000 Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx (or at such other location within the
Boston, Massachusetts, metropolitan area, to which the Company may in the future
relocate such principal executive offices), except for reasonable required
travel on the Company's business. If the Company requests Executive to report
for the performance of his services hereunder on a regular or permanent basis at
any location or office more than thirty-five (35) miles from 000 Xxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx, and Executive agrees to such change, the Company shall
pay Executive's reasonable relocation and moving expenses, including, but not
limited to, the cost of moving his immediate family, expenses incurred while
seeking new housing (including travel by Executive's spouse) and temporary
living expenses incurred by Executive or his family for up to one hundred eighty
(180) days.
5. TERMINATION. Executive's employment hereunder may be terminated by
the Company or Executive, as applicable, without any breach of this Agreement,
only under the following circumstances.
(a) DEATH. Executive's employment hereunder shall terminate upon his
death.
(b) DISABILITY. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been unable, with reasonable
accommodation, to perform the essential functions of his duties and
responsibilities hereunder on a full time basis for one hundred eighty (180)
consecutive calendar days, and within thirty (30) days after written notice of
termination is given (which may occur before or after the end of such one
hundred eighty (180) day period) Executive shall not have returned to the
performance of his material managerial duties and responsibilities hereunder on
a full time basis, the Company may terminate Executive's employment hereunder.
(c) CAUSE. Subject to the provisions of Section 7(d), the Company
may terminate Executive's employment hereunder for Cause. For purposes of this
Agreement, the Company shall have "Cause" to terminate Executive's employment
hereunder upon:
(1) Executive's willful or intentional failure to perform
Executive's material duties and responsibilities hereunder
(other than any such failure resulting from Executive's
incapacity due to physical or mental illness or any such
actual or anticipated failure after the issuance of a Notice
of Termination for Good Reason (as hereinafter defined) by
Executive);
(2) The commission by Executive of dishonesty or fraud of a
material nature in connection with the performance of his
duties hereunder, intentional violation of law or
governmental regulation of a material nature in connection
with the performance of his duties hereunder, or willful or
intentional misconduct of a material nature in connection
with the performance of his duties hereunder;
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(3) Unprofessional or unethical conduct of a material nature by
Executive in connection with the performance of his duties
hereunder as determined in a final adjudication of any
board, institution, organization or governmental agency
having any privilege or right to pass upon the conduct of
Executive;
(4) Intentional or willful conduct by Executive which is
materially detrimental to the reputation, character,
business, or standing of the Company; or
(5) The continued breach by Executive of any of Executive's
material obligations under this Agreement.
(d) TERMINATION BY EXECUTIVE. Subject to the provisions of Section
7(c), and at his option, Executive may terminate his employment hereunder (1)
for Good Reason, or (2) if his health should become impaired to an extent that
makes the continued performance of his duties hereunder hazardous to his
physical or mental health or his life.
For purposes of this Agreement, the termination of Executive's employment
hereunder by Executive because of the occurrence of any one or more of the
following events within six (6) months following a Change in Control (as
hereinafter defined) shall be deemed to have occurred for "Good Reason":
(A) a material change in the nature or scope of Executive's
authorities, status, powers, functions, duties,
responsibilities, or reporting relationships that is
determined by Executive in good faith to be adverse to those
existing before such change;
(B) any removal by the Company of Executive from, or any failure
to reelect Executive to, the positions indicated in Section
1 hereof except in connection with termination of
Executive's employment for Cause or disability;
(C) a reduction in Executive's Base Salary or any other failure
by the Company to comply with Section 3 hereof that is not
consented to or approved by Executive;
(D) the relocation of Executive's office at which he is to
perform his duties and responsibilities hereunder to a
location outside of the Boston, Massachusetts, metropolitan
area, or a materially adverse alteration in the office space
within which Executive is to perform his duties and
responsibilities hereunder or in the secretarial and
administrative support provided to Executive; or
(E) a failure by the Company or any subsidiary or affiliate of
the Company to comply with any other material term or
provision hereof or of any other written agreement between
Executive and the Company or any such subsidiary or
affiliate.
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As used herein, "Change in Control" shall have the meaning set forth
in the Concentra Managed Care, Inc. 1997 Long-Term Incentive Plan.
6. COMPENSATION UPON TERMINATION. Executive shall be entitled to the
following compensation from the Company upon the termination of his employment.
(a) DEATH. If Executive's employment shall be terminated by reason
of his death, the Company shall pay to such person as shall have been designated
in a notice filed with the Company prior to Executive's death, or, if no such
person shall be designated, to his estate as a death benefit, his Base Salary to
the date of his death in addition to any payments Executive's spouse,
beneficiaries, or estate may be entitled to receive pursuant to any pension or
employee benefit plan or other arrangement or life insurance policy maintained
by the Company. In addition, (x) the Company shall make payments of premiums to
continue the medical and dental insurance coverage of Executive's spouse and
children under age twenty-five (25) as in effect at and as of the date of
Executive's death (or to provide as similar coverage as possible for the same
premiums if the continuation of existing coverage is not permitted) for one (1)
year after the date of Executive's death, in each case to the extent such
coverage is available, and (y) the Company shall make a lump sum cash payment to
the appropriate insurance company(ies) in an amount sufficient to fully fund
future premium payments pursuant to Executive's then existing second-to-die,
split-dollar insurance policy(ies) obtained through the Company and/or
OccuSystems, Inc.
(b) DISABILITY. During any period that Executive fails to perform
his material managerial duties and responsibilities hereunder as a result of
incapacity due to physical or mental illness, Executive shall continue to
receive his Base Salary and any bonus payments until Executive's employment is
terminated pursuant to Section 5(b) hereof or until Executive terminates his
employment pursuant to Section 5(d)(2) hereof, whichever first occurs. After
such termination, the Company shall pay to Executive, on or before the fifth day
following the Date of Termination (as hereinafter defined) his Base Salary to
the Date of Termination. In addition, (x) the Company shall make payments of
premiums as necessary to cause Executive and Executive's spouse and children
under age twenty-five (25) to continue to be covered by the medical and dental
insurance as in effect at and as of the Date of Termination (or to provide as
similar coverage as possible for the same premiums if the continuation of
existing coverage is not permitted) for one (1) year after the Date of
Termination, in each case to the extent such coverage is available, and (y) the
Company shall make a lump sum cash payment to the appropriate insurance
company(ies) in an amount sufficient to fully fund future premium payments
pursuant to Executive's then existing second-to-die, split-dollar insurance
policy(ies) obtained through the Company and/or OccuSystems, Inc.
(c) CAUSE. If Executive's employment shall be terminated for Cause,
the Company shall pay Executive his Base Salary through the Date of Termination
at the rate in effect at the time Notice of Termination is given. Such payments
shall fully discharge the Company's obligations hereunder.
(d) BREACH BY THE COMPANY, FOR GOOD REASON, OR UPON FAILURE TO RENEW
FOLLOWING A CHANGE IN CONTROL. If (1) in breach of this Agreement, the Company
shall terminate Executive's employment (it being understood that a purported
termination of Executive's employment by the Company pursuant to any provision
of this Agreement that is disputed and finally determined not to have been
proper shall be a termination by the Company in breach of this Agreement), or
(2) Executive shall terminate his employment for Good Reason, or (3) following a
Change in Control, the Company shall give Executive notice pursuant to Section 1
prior to any anniversary of the date hereof that the
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Term of this Agreement shall not be automatically extended for an additional
year on any such anniversary date, then the Company shall pay Executive:
(A) his Base Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given;
(B) in lieu of any further salary payments to Executive for periods
subsequent to the Date of Termination, the Company shall pay as
severance pay to Executive, commencing on or before the fifth day
following the Date of Termination and on the fifth day of each of
the eleven (11) months thereafter (amounting to a total of twelve
(12) months), an amount equal to one-twelfth (1/12) of
Executive's annual Base Salary at the rate in effect at the time
the Notice of Termination is given; and
(C) all benefits payable under the terms of any employee benefit plan
or other arrangement as of the Date of Termination.
In addition, (x) the Company shall make payments of premiums as necessary
to cause Executive and Executive's spouse and children under age twenty-five
(25) to continue to be covered by the medical and dental insurance as in effect
at and as of the Date of Termination (or to provide as similar coverage as
possible for the same premiums if the continuation of existing coverage is not
permitted) for one (1) year after the Date of Termination, in each case to the
extent such coverage is available, and (y) the Company shall make a lump sum
cash payment to the appropriate insurance company(ies) in an amount sufficient
to fully fund future premium payments pursuant to Executive's then existing
second-to-die, split-dollar insurance policy(ies) obtained through the Company
and/or OccuSystems, Inc.
(e) MITIGATION. Executive shall not be required to mitigate the amount of
any payment provided for in this Section 6 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section 6 be
reduced by any compensation earned by Executive as the result of employment by
another employer after the Date of Termination, or otherwise.
7. OTHER PROVISIONS RELATING TO TERMINATION.
(a) NOTICE OF TERMINATION. Any termination of Executive's employment
by the Company or by Executive (other than termination because of the death of
Executive) shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which 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 Executive's
employment under the provision so indicated.
(b) DATE OF TERMINATION. For purposes of this Agreement, "Date of
Termination" shall mean: (1) if Executive's employment is terminated by his
death, the date of his death; (2) if Executive's employment is terminated
because of a disability pursuant to Section 5(b), then thirty (30) days after
Notice of Termination is given (provided that Executive shall not have returned
to the performance of his duties on a full-time basis during such thirty (30)
day period); (3) if Executive's employment is terminated by the Company for
Cause or by Executive for Good Reason, then, subject to Sections 7(c) and 7(d),
the date specified in the Notice of Termination; (4) if the Company gives
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Executive notice pursuant to Section 1 prior to any anniversary of the date
hereof that the Term of this Agreement shall not be automatically extended for
an additional year on any such anniversary date, the date upon which the Term
expires; and (5) if Executive's employment is terminated for any other reason,
the date on which a Notice of Termination is given.
(c) GOOD REASON. Upon the occurrence of an event described in
clauses (A) through (E) of Section 5(d), Executive may terminate his employment
hereunder for Good Reason within one hundred eighty (180) days thereafter by
giving a Notice of Termination to the Company to that effect. If the effect of
the occurrence of the event described in clauses (A) through (E) of Section 5(d)
may be cured, the Company shall have the opportunity to cure any such effect for
a period of thirty (30) days following receipt of Executive's Notice of
Termination. If the Company fails to cure any such effect, the termination for
Good Reason shall become effective on the date specified in Executive's Notice
of Termination. If Executive does not give such Notice of Termination to the
Company, then this Agreement will remain in effect; PROVIDED, HOWEVER, that the
failure of Executive to terminate this Agreement for Good Reason shall not be
deemed a waiver of Executive's right to terminate his employment for Good Reason
upon the occurrence of a subsequent event described in clauses (A) through (E)
of Section 5(d) in accordance with the terms of this Agreement.
(d) CAUSE. In the case of any termination of Executive for Cause,
the Company will give Executive a Notice of Termination describing in reasonable
detail, the facts or circumstances giving rise to Executive's termination (and,
if applicable, the action required to cure same) and will permit Executive
thirty (30) days to cure such failure to comply or perform. Cause for
Executive's termination will not be deemed to exist until the expiration of the
foregoing cure period, so long as Executive continues to use his best efforts
during the cure period to cure such failure. If within thirty (30) days
following Executive's receipt of a Notice of Termination for Cause (1) Executive
delivers written notice to the Company denying that Cause exists, the question
of the existence or nonexistence of Cause will be submitted for arbitration in
accordance with Section 10; or (2) if Executive has not cured the facts or
circumstances giving rise to Executive's termination for Cause and shall not
have delivered a notice pursuant to clause (1) of this Section 7(d), then
Executive's termination for Cause shall be effective as of the date specified in
the Notice of Termination.
(e) INTEREST. Until paid, all past due amounts required to be paid
by the Company under any provision of this Agreement shall bear interest at the
highest non-usurious rate permitted by applicable federal, state, or local law.
8. SUCCESSORS; BINDING AGREEMENT.
(a) SUCCESSORS. This Agreement shall be binding upon, and inure to
the benefit of, the Company, Executive, and their respective successors,
assigns, personal and legal representatives, executors, administrators, heirs,
distributees, devisees, and legatees, as applicable.
(b) ASSUMPTION. The Company will require any successor (whether
direct or indirect, by purchase of securities, merger, consolidation, sale of
assets, or otherwise) to all or substantially all of the business or assets of
the Company, by an agreement in form and substance reasonably satisfactory to
Executive, to expressly assume this Agreement and to 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 succession had taken place. Failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle Executive to
compensation from the
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Company in the same amount and on the same terms as he would be entitled to
hereunder if he terminated his employment for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination.
(c) CERTAIN PAYMENTS. If Executive should die while any amounts
would still be payable to him hereunder if he had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to Executive's devisee, legatee, or other designee or,
if there be no such designee, to Executive's estate.
9. NOTICE. For purposes of this Agreement, all notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when (a) delivered personally, (b) sent by
facsimile or similar electronic device and confirmed, (c) delivered by overnight
express, or (d) if sent by any other means, upon receipt. Notices and all other
communications provided for in this Agreement shall be addressed as follows:
If to Executive:
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
If to the Company:
Concentra Managed Care, Inc.
000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
Concentra Managed Care, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000 - Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith.
10. DISPUTES. In the event any dispute or controversy arises under this
Agreement and is not resolved by mutual written agreement between Executive and
the Company within thirty (30) days after notice of the dispute is first given,
then, upon the written request of Executive or the Company, such dispute or
controversy shall be submitted to arbitration, which arbitration shall be
conducted in accordance with the rules of the American Arbitration Association.
Judgment may be entered thereon and the results of arbitration will be binding
and conclusive on the parties hereto. Any arbitrator's award or finding or any
judgment or verdict thereon will be final and unappealable. All parties agree
that venue for arbitration will be in the city specified in Section 4, and that
any arbitration commenced in any other venue will be transferred to such venue,
upon the written request of any party to this Agreement. The prevailing party
will be entitled to reimbursement for reasonable attorneys fees, costs, or other
expenses pertaining to the arbitration and the enforcement thereof and such
attorneys fees, costs, or other expenses shall become a part of any award,
judgment, or verdict. All arbitrations will have three
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individuals acting as arbitrators: one arbitrator will be selected by
Executive, one arbitrator will be selected by the Company, and the two
arbitrators so selected will select a third arbitrator. Any arbitrator
selected by a party will not be affiliated with, associated with, or related
to the party selecting that arbitrator in any matter whatsoever. The
decision of the majority of the arbitrators will be binding on all parties.
11. MISCELLANEOUS. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in a written instrument signed by Executive and the Company. No waiver by
either party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Delaware, excluding any choice-of-law
provisions thereof.
12. ATTORNEY FEES. Except as otherwise provided in Section 10, all legal
fees and costs incurred by Executive in connection with the resolution of any
dispute or controversy under or in connection with this Agreement shall be
reimbursed by the Company to Executive as bills for such services are presented
by Executive to the Company, unless such dispute or controversy is found to have
been brought not in good faith or without merit by a court of competent
jurisdiction.
13. VALIDITY. 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.
14. 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 agreement.
15. ENTIRE AGREEMENT; EFFECTIVENESS. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes any and all prior employment agreements and/or severance
protection letters, agreements, or arrangements between Executive, on the one
hand, and the Company, CRA Managed Care, Inc., or any other predecessor in
interest thereto or any of their respective subsidiaries, on the other hand.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
COMPANY:
CONCENTRA MANAGED CARE, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Xxxxxxx Xxxxxxxx
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