EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of the 12th day of January, 1999 (the "Effective Date"), between Concentra
Managed Care, Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx
("Executive").
WITNESSETH:
WHEREAS, Executive desires to continue to serve as the President and
Chief Executive Officer of the Company and as an executive officer of various
Company subsidiaries and affiliates; 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, the execution and delivery of this Agreement have been
approved on the Effective Date by the Option and Compensation Committee of the
Board of Directors of the Company; 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 the President and Chief Executive Officer of the Company and as an executive
officer of various Company subsidiaries and affiliates, and Executive hereby
agrees to accept such employment, on the terms and conditions set forth herein,
for the period commencing on 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 Board of Directors serve as the
Company's President and Chief Executive Officer and as an executive officer of
various Company subsidiaries and affiliates, 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.
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(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.
(c) Noncompetition. Executive agrees that he will not, for a
period of two (2) years 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
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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 Four Hundred Thousand Dollars
($400,000) 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 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
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each calendar year commencing, 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.
(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 in 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
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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;
(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 and/or for Additional
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.
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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 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.
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 one (1) year following a Change
in Control (as defined in the Concentra Managed Care, Inc. 1997
Long-Term Incentive Plan) of the Company which takes place on or before
December 31, 1999, shall be deemed to have occurred for "Additional
Reason":
(A) the removal of Executive from the position of Chief
Executive Officer, or a material change in the nature
or scope of any of Executive's authorities, status,
powers, functions, duties, or responsibilities that
is generally an essential function of such position
and which is determined by Executive in good faith to
be adverse to those existing before such change;
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(B) 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;
(C) 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
(D) 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 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.
(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 two (2)
years 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
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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 two (2) years 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. 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 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, a lump sum in cash
equal to two (2) times Executive's full 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 two (2) years 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
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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.
(f) Additional Reason. If Executive shall terminate his
employment for Additional Reason, as well as for Good Reason, then, in addition
to and not in lieu of any other amounts payable by the Company to Executive
whether pursuant to Section 6(d) or otherwise (it being the intention of the
parties that, upon the occurrence of an event or events described in the
definition or "Good Reason" and "Additional Reason" in Section 5(d), Executive
may terminate this Agreement for Good Reason and for Additional Reason), then
the Company shall pay Executive as additional severance pay, on or before the
fifth day following the Date of Termination, a lump sum in cash equal to
one-half (1/2) of Executive's full annual Base Salary at the rate in effect at
the time the Notice of Termination is given (for a total of two and one-half (2
1/2) times Executive's full annual Base Salary when combined with amounts
payable pursuant to Section 6(d)(B)).
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 six (6) months in addition to the two (2) years
provided for under Section 6(d) (for a total of two and one-half (2 1/2) years)
after the Date of Termination, in each case to the extent such coverage is
available.
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
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for Good Reason and/or for Additional 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 and/or Additional Reason. Upon the occurrence
of an event described in clauses (A) through (E) of the definition of "Good
Reason" in Section 5(d), and/or upon the occurrence of an event described in
clauses (A) through (D) of the definition of "Additional Reason" in Section
5(d), Executive may terminate his employment hereunder for Good Reason and/or
Additional Reason, as applicable, 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 and/or
Additional 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 and/or Additional 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 and/or Additional Reason
shall not be deemed a waiver of Executive's right to terminate his employment
for Good Reason and/or Additional 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, 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.
------------------------------
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(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 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:
Xxxxxx X. Xxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 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.
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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. 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 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.
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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 or any predecessor in interest thereto or any of their
respective subsidiaries, on the other hand, including, without limitation, that
certain Employment Agreement, dated April 21, 1997, between the Company and
Executive.
footer b id he 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:_________________________
Xxxx X. Xxxxxxx
Chairman
EXECUTIVE:
-------------------------
Xxxxxx X. Xxxxxx
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