EXHIBIT 10.16
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made and entered into as of
the 4th day of December, 2000, between Concentra Managed Care, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx "Biff" Comte ("Executive").
WITNESSETH:
WHEREAS, Executive desires to be employed as Executive Vice President and
Chief Operating Officer of the Company as an integral part of the Company's
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
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its Executive Vice President and Chief Operating Officer, and Executive hereby
agrees to accept such employment, on the terms and conditions set forth herein,
for the period commencing on the date first set forth above (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,
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however, that commencing on such second anniversary date, and each anniversary
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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.
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(a) Duties as Employee of the Company. Executive shall, subject to
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the supervision of the Company's Chief Executive Officer, serve as the Company's
Executive Vice President and Chief Operatng Officer, 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
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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
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capacities in a manner acceptable to the Company and Executive.
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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.
(c) Noncompetition. Executive agrees that he will not, for a period
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of eighteen (18) months 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
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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
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Company or any of its subsidiaries or affiliates which he may then possess or
have under his control.
3. Compensation and Related Matters.
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(a) Base Salary. Executive shall receive a base salary paid by the
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Company ("Base Salary") at the annual rate of Three Hundred Fifty Thousand
Dollars ($350,000) 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 the Compensation Committee of the Board of Directors shall, in
good faith, consider granting increases 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
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addition to the Base Salary, such bonus payments, if any, as the Board of
Directors or the Compensation Committee of the Board of Directors may specify.
(c) Expenses. During the term of his employment hereunder, Executive
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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
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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 five (5) paid vacation
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days for the period from the date of this Agreement through December 31, 2000.
Executive shall be entitled to twenty (20) paid vacation days in each calendar
year commencing on or after January 1, 2001, or such additional number as may be
determined by the Board of Directors from time to
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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
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perquisites and fringe benefits appertaining generally 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.
(g) Proration. Any payments or benefits payable to Executive
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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.
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(a) Executive shall primarily perform his duties and responsibilities
hereunder at the Company's office located at 0000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx
(or at such other location within the Dallas, Texas, metropolitan area, to which
the Company may in the future relocate such principal executive office), 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 the office location described in the first sentence of this Section
4, 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.
(b) Following the Effective Date, in accordance with the Company's
standard relocation expense reimbursement policies, the Company will reimburse
Executive for reasonable relocation and moving expenses incurred by Executive in
relocating his home from Southern California to the Dallas, Texas, metropolitan
area (including the reasonable cost of temporary housing in the Dallas, Texas,
metropolitan area for up to four (4) months, real estate commissions and
customary closing costs on the sale of Executive's California home, and the
reasonable cost of moving Executive's household goods from California to Texas).
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(c) Upon Executive's written request delivered to the Company at any
time during the fourteen (14) month period following the Effective Date, the
Company will loan Executive up to Two Hundred Fifty Thousand Dollars ($250,000)
to assist Executive with the purchase of a home in the Dallas, Texas,
metropolitan area. The loan will be evidenced by written documentation in form
and substance reasonably satisfactory to the Company and Executive, will not
bear interest (although Executive understands and acknowledges that he may be
subject to imputed interest for IRS purposes), will mature on December 31, 2002,
and will be secured by any and all bonus or incentive compensation otherwise
payable to Executive by the Company and any and all gains Executive may realize
on exercise of Company stock options.
5. Termination. Executive's employment hereunder may be terminated by
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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
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death.
(b) Disability. If, as a result of Executive's incapacity due to
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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
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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 or gross
negligence in the performance of 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, or
willful or intentional misconduct of a material nature in connection with the
performance of his duties hereunder;
(3) The conviction of Executive, or the entering of a plea of
nolo contendere by Executive, with respect to a felony;
(4) Unprofessional or unethical conduct of a material nature by
Executive in connection with the performance of his duties hereunder as
determined in a xxxxx
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adjudication of any board, institution, organization or governmental agency
having any privilege or right to pass upon the conduct of Executive;
(5) Intentional, willful, or grossly negligent conduct by
Executive which is materially detrimental to the reputation, character,
business, or standing of the Company, including, without limitation, the use by
Executive of a controlled substance; or
(6) 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
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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 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 Dallas,
Texas, 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.
6. Compensation Upon Termination or Failure to Renew. Executive shall be
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entitled to the following compensation from the Company upon the termination of
his employment or upon the Company's delivery of notice pursuant to Section 1
that the Term of this Agreement shall not following any anniversary of the date
hereof be automatically extended for an additional year.
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(a) Death. If Executive's employment shall be terminated by reason of
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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 any then existing second-to-die, split-
dollar insurance policy(ies) obtained by Executive through the Company.
(b) Disability. During any period that Executive fails to perform his
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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, the (x) 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 any then existing second-to-die, split-dollar insurance policy(ies)
obtained by Executive through the Company..
(c) Cause. If Executive's employment shall be terminated for Cause,
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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.
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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) the Company shall give Executive notice
pursuant to Section 1 prior to any anniversary of the date hereof that the Term
of this Agreement
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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 on or before the fifth day following the Date of
Termination and on the fifth day of each of the seventeen (17) months thereafter
(amounting to a total of eighteen (18) months), an amount in cash 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 (for a total of one and one-half (1 1/2)
years' Base Salary); 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 any then
existing second-to-die, split-dollar insurance policy(ies) obtained by Executive
through the Company..
(e) Mitigation. Executive shall not be required to mitigate the
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amount of any payment provided for in this Section 6 by seeking other employment
or otherwise; provided, however, that, anything herein to the contrary
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notwithstanding, in the event of the termination of Executive's employment prior
to a Change in Control (as defined in the Concentra Managed Care, Inc., 1997
Long-Term Incentive Plan, a copy of which definition is attached hereto as
Exhibit A)(but not if Executive's employment terminates after such a Change in
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Control), the amount of any payment pursuant to Section 6(d)(B) shall be reduced
by any compensation earned by Executive as the result of employment by another
employer (whether as a director, officer, employee, manager, owner, consultant,
independent contractor, advisor or otherwise) after the Date of Termination
until the end of the twelve (12) month period of clause (B) of Section 6(d)
above.
7. Other Provisions Relating to Termination.
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(a) Notice of Termination. Any termination of Executive's employment
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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
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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
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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
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
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clauses (A) through (E) of the definition of "Good Reason" in 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 giving rise
to Good Reason under 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 not be deemed a waiver of Executive's right to terminate
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his employment for Good Reason upon the occurrence of a subsequent event
described in Section 5(d) in accordance with the terms of this Agreement.
(d) Cause. In the case of any termination of Executive for Cause,
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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, Executive
has not cured the facts or circumstances giving rise to Executive's termination
for Cause, 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
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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.
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8. Successors; Binding Agreement.
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(a) Successors. This Agreement shall be binding upon, and inure to
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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
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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 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
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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
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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: To Executive's home address as reflected from time
to time in the Company's records; and
If to the Company: Concentra Managed Care, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000 - Xxxx Xxxxx
Xxxxxxx, 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. Miscellaneous. No provision of this Agreement may be modified,
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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,
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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.
11. Attorney Fees. All legal fees and costs incurred by Executive in
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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.
12. Validity. The invalidity or unenforceability of any provision or
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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.
13. Counterparts. This Agreement may be executed in several counterparts
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each of which shall be deemed to be an original, but all of which together will
constitute one and the same agreement.
14. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and supersedes in
all respects any and all prior employment agreements and/or severance protection
letters, agreements, or arrangements between Executive, on the one hand, and the
Company or any other predecessor in interest thereto or any of their respective
subsidiaries, on the other hand, which prior employment agreements and/or
severance protection letters, agreements, and arrangements, if any, are hereby
cancelled and of no further force or effect.
15. Right and Option of Company to Repurchase Shares Upon Termination of
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Employment.
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(a) In the event that, prior to an initial public offering of the
Company's equity securities, Executive's employment with the Company is
terminated for any reason, the Company shall thereupon have the right and
option, but not the obligation, to purchase from Executive all or any part of
the shares of common stock, par value $.01 per share, of the Company (the
"Shares") held by Executive as of the date Executive's employment so ceases at a
purchase price equal to the greater of (1) Sixteen and 50/100 Dollars ($16.50)
per Share, and (2) the fair market value (as hereinafter defined) of such Shares
as of the date Executive's employment so ceases.
(b) The Company may exercise the right and option provided in Section
15(a) above by giving Executive a written notice of such election to purchase at
any time within ninety (90) days after the date Executive's employment so
ceases. The closing for the purchase by the Company of any such Shares pursuant
to the provisions of said Section 15(a) shall take place at the offices of the
Company on the date specified in such written notice, which date shall be a
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business day not later than sixty (60) days after the date such notice is given.
At such closing, Executive will deliver or cause to be delivered such Shares,
duly endorsed for transfer, against payment of the applicable purchase price
therefor. Such purchase price shall be payable to Executive in cash or other
immediately available funds. To the extent the Company chooses not to exercise
such right and option under said Section 15(a) to purchase any Shares, such
Shares shall thereupon cease to be subject to the provisions of this Section 15.
(c) For the purposes of this Agreement, "fair market value" of a Share
as of any date shall mean the value of such stock as determined in good faith by
the Board of Directors of the Company on a basis consistent with the manner of
determining the fair market value of the Company's common stock for purposes of
offering the Company's common stock to equity investors.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
COMPANY:
CONCENTRA MANAGED CARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxx "Biff" Comte
-------------------------------------------
Xxxxxxx "Biff" Comte
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EXHIBIT A
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DEFINITION OF "CHANGE IN CONTROL" FROM THE
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CONCENTRA MANAGED CARE, INC. 1997 LONG-TERM INCENTIVE PLAN
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"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; or
(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 such 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 results
solely from ownership of the Corporation that 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.
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