EXHIBIT 10.16
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "AGREEMENT") is made and entered
into as of this ___ day of _______________ 1997, by and between Concentra
Managed Care, Inc., a Delaware corporation (the "CORPORATION"), and
_____________________, a ____________ resident ("INDEMNITEE").
RECITALS:
A. Competent and experienced persons are reluctant to serve or to
continue to serve corporations as directors or in other capacities unless
they are provided with adequate protection through insurance or
indemnification (or both) against claims and actions against them arising out
of their service to and activities on behalf of those corporations.
B. The current uncertainties relating to the availability of adequate
insurance for directors and officers have increased the difficulty for
corporations to attract and retain competent and experienced persons.
C. The Board of Directors of the Corporation has determined that the
continuation of present trends in litigation will make it more difficult to
attract and retain competent and experienced persons, that this situation is
detrimental to the best interests of the Corporation's stockholders, and that
the Corporation should act to assure its directors and officers that there
will be increased certainty of adequate protection in the future.
D. The Certificate of Incorporation of the Corporation requires the
Corporation to indemnify its directors and officers to the fullest extent
permitted by law.
E. It is reasonable, prudent, and necessary for the Corporation to
obligate itself contractually to indemnify its directors and officers to the
fullest extent permitted by applicable law in order to induce them to serve
or continue to serve the Corporation.
F. Indemnitee is willing to serve, continue to serve, and to take on
additional service for or on behalf of the Corporation on the condition that
he be indemnified to the fullest extent permitted by law.
G. Concurrently with the execution of this Agreement, Indemnitee is
agreeing to serve or to continue to serve as a director or officer of the
Corporation.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises, Indemnitee's
agreement to serve or continue to serve as a director or officer of the
Corporation, and the covenants contained in this Agreement, the Corporation
and Indemnitee hereby covenant and agree as follows:
1. CERTAIN DEFINITIONS:
(a) "ACQUIRING PERSON" means any Person other than (i) the
Corporation, (ii) any of the Corporation's Subsidiaries, (iii) any employee
benefit plan of the Corporation or of a Subsidiary of the Corporation or of a
corporation owned directly or indirectly by the stockholders of the
Corporation in substantially the same proportions as their ownership of stock
of the Corporation, (iv) any trustee or other fiduciary holding securities
under an employee benefit plan of the Corporation or of a Subsidiary of the
Corporation or of a corporation owned directly or indirectly by the
stockholders of the Corporation in substantially the same proportions as
their ownership of stock of the Corporation, or (v) any Person who, as of
January 1, 1997, was the "beneficial owner" (as hereinafter defined),
directly or indirectly, of securities of the Corporation representing twenty
percent or more of the combined voting power of the Voting Securities of the
Corporation outstanding as of such date.
(b) "CHANGE IN CONTROL" means the occurrence of any of the
following events:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "PERSON") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (x) the then outstanding shares of
Common Stock of the Corporation (the "OUTSTANDING CORPORATION COMMON STOCK")
or (y) the combined voting power of the then outstanding voting securities of
the Corporation entitled to vote generally in the election of directors (the
"OUTSTANDING CORPORATION VOTING SECURITIES"); provided, however, that for
purposes of this Subparagraph (i), the following acquisitions shall not
constitute a Change of Control: (A) any acquisition directly from the
Corporation, (B) any acquisition by the Corporation, (C) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Corporation or any corporation controlled by the Corporation or (D) any
acquisition by any corporation pursuant to a transaction which complies with
clauses (A), (B) and (C) of paragraph (iii) below; or
(ii) Individuals who, as of the date of this Plan, constitute the
Board of Directors cease for any reason to constitute at least a majority of
the Incumbent Board;
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(iii) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of the
Corporation or an acquisition of assets of another corporation (a "BUSINESS
COMBINATION"), in each case, unless, following such Business Combination, (A)
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Corporation Common Stock
and Outstanding Corporation Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50%
of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the
Corporation or all or substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination, of the Outstanding Corporation Common Stock and Outstanding
Corporation Voting Securities, as the case may be, (B) no Person (excluding
any employee benefit plan (or related trust) of the Corporation or the
corporation resulting from the Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership of
the Corporation existed prior to the Business Combination and (C) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent Board
at the time of the execution of the initial agreement, or of the action of
the Board, providing for such Business Combination; or
(iv) Approval by the stockholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
(c) "CLAIM" means any threatened, pending, or completed action,
suit, or proceeding (including, without limitation, securities laws actions,
suits, and proceedings), or any inquiry or investigation (including
discovery), whether conducted by the Corporation or any other party, that
Indemnitee in good faith believes might lead to the institution of any
action, suit, or proceeding, whether civil, criminal, administrative,
investigative, or other.
(d) "EXPENSES" means all costs, expenses (including attorneys'
and expert witnesses' fees), and obligations paid or incurred in connection
with investigating, defending (including affirmative defenses and
counterclaims), being a witness in, or participating in (including on
appeal), or preparing to defend, be a witness in, or participate in, any
Claim relating to any Indemnifiable Event.
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(e) "INCUMBENT BOARD" means the individuals who, as of the date of
this Agreement, constitute the Board of Directors and any other individual
who becomes a director of the Corporation after that date and whose election
or appointment by the Board of Directors or nomination for election by the
Corporation's stockholders was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Incumbent
Board.
(f) "INDEMNIFIABLE EVENT" means any event or occurrence related
to the fact that Indemnitee is or was a director, officer, employee, agent,
or fiduciary of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, trustee, agent, or fiduciary of
another corporation, partnership, joint venture, employee benefit plan,
trust, or other enterprise, or by reason of any thing done or not done by
Indemnitee in any such capacity. For purposes of this Agreement, the
Corporation agrees that Indemnitee's service on behalf of or with respect to
any Subsidiary of the Corporation shall be deemed to be at the request of the
Corporation.
(g) "PERSON" means any person or entity of any nature whatsoever,
specifically including (but not limited to) an individual, a firm, a company,
a corporation, a limited liability company, a partnership, a trust or other
entity. A Person, together with that Person's affiliates and associates (as
those terms are defined in Rule 12b-2 under the Exchange Act for purposes of
this definition only), and any Persons acting as a partnership, limited
partnership, joint venture, association, syndicate or other group (whether or
not formally organized), or otherwise acting jointly or in concert or in a
coordinated or consciously parallel manner (whether or not pursuant to any
express agreement), for the purpose of acquiring, holding, voting or
disposing of securities of the Corporation with that Person, shall be deemed
a single "Person."
(h) "POTENTIAL CHANGE IN CONTROL" shall be deemed to have
occurred if (i) the Corporation enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control; (ii) any Person
(including the Corporation) publicly announces an intention to take or to
consider taking actions that, if consummated, would constitute a Change in
Control; (iii) after the Corporation has become a reporting company under the
Exchange Act, any Acquiring Person who is or becomes the beneficial owner,
directly or indirectly, of securities of the Corporation representing 10% or
more of the combined voting power of the then outstanding Voting Securities
of the Corporation increases his beneficial ownership of such securities by
5% or more over the percentage so owned by that Person on the date hereof; or
(iv) the Board of Directors of the Corporation adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in Control
has occurred.
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(i) "REVIEWING PARTY" means any appropriate person or body
consisting of a member or members of the Corporation's Board of Directors or
any other person or body appointed by the Board (including Special Counsel
referred to in Section 3) who is not a party to the particular Claim for
which Indemnitee is seeking indemnification.
(j) "SPECIAL COUNSEL" means special, independent counsel selected
by Indemnitee and approved by the Corporation (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the
Corporation or for Indemnitee within the last three years (other than as
Special Counsel under this Agreement or similar agreements).
(k) "SUBSIDIARY" means, with respect to any Person, any
corporation or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly,
by that Person.
(l) "VOTING SECURITIES" means any securities that vote generally
in the election of directors or in the selection of any other similar
governing body.
2. BASIC INDEMNIFICATION AND EXPENSE REIMBURSEMENT ARRANGEMENT.
(a) In the event Indemnitee was, is, or becomes a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant in, a Claim by reason of (or arising in part out
of) an Indemnifiable Event, the Corporation shall indemnify Indemnitee to the
fullest extent permitted by law as soon as practicable but in any event no
later than 30 days after written demand is presented to the Corporation,
against any and all Expenses, judgments, fines, penalties, and amounts paid
in settlement (including all interest, assessments, and other charges paid or
payable in connection with or in respect of such Expenses, judgments, fines,
penalties, or amounts paid in settlement) of or with respect to that Claim.
Notwithstanding the foregoing, the obligations of the Corporation under
Section 2(a) shall be subject to the condition that the Reviewing Party shall
not have determined (in a written opinion, in any case in which Special
Counsel referred to in Section 3 hereof is involved) that Indemnitee would
not be permitted to be indemnified under applicable law. Nothing contained
in this Agreement shall require any determination under this Section 2(a) to
made by the Reviewing Party prior to the disposition or conclusion of the
Claim against the Indemnitee; provided, however, that Expense Advances shall
continue to be made by the Corporation pursuant to and to the extent required
by the provisions of Section 2(b).
(b) If so requested by Indemnitee, the Corporation shall pay any
and all Expenses incurred by Indemnitee (or, if applicable, reimburse
Indemnitee for any and all Expenses incurred by Indemnitee and previously
paid by Indemnitee) within two business days after such request (an "EXPENSE
ADVANCE"). The Corporation shall be obligated to make or pay an Expense
Advance in
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advance of the final disposition or conclusion of any Claim. In connection
with any request for an Expense Advance, if requested by the Corporation,
Indemnitee or Indemnitee's counsel shall submit an affidavit stating that the
Expenses incurred were reasonable. Any dispute as to the reasonableness of
any Expense shall not delay an Expense Advance by the Corporation, and the
Corporation agrees that any such dispute shall be resolved only upon the
disposition or conclusion of the underlying Claim against the Indemnitee. If,
when, and to the extent that the Reviewing Party determines that Indemnitee
would not be permitted to be indemnified with respect to a Claim under
applicable law, the Corporation shall be entitled to be reimbursed by
Indemnitee and Indemnitee hereby agrees to reimburse the Corporation without
interest (which agreement shall be an unsecured obligation of Indemnitee) for
all related Expense Advances theretofore made or paid by the Corporation;
provided, however, that if Indemnitee has commenced legal proceedings in a
court of competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination made by the
Reviewing Party that Indemnitee would not be permitted to be indemnified
under applicable law shall not be binding and Indemnitee shall not be
required to reimburse the Corporation for any Expense Advance, and the
Corporation shall be obligated to continue to make Expense Advances, until a
final judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed). If there has not
been a Change in Control, the Reviewing Party shall be selected by the Board
of Directors of the Corporation. If there has been a Change in Control, the
Reviewing Party shall be advised by or shall be Special Counsel referred to
in Section 3 hereof, if and as Indemnitee so requests. If there has been no
determination by the Reviewing Party or if the Reviewing Party determines
that Indemnitee substantively would not be permitted to be indemnified in
whole or in part under applicable law, Indemnitee shall have the right to
commence litigation in any court in the states of Massachusetts, Delaware, or
Texas having subject matter jurisdiction thereof and in which venue is proper
seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, and the
Corporation hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Corporation and Indemnitee.
3. CHANGE IN CONTROL. The Corporation agrees that, if there is a
Change in Control and if Indemnitee requests in writing that Special Counsel
advise the Reviewing Party or be the Reviewing Party, then the Corporation
shall not deny any indemnification payments (and Expense Advances shall
continue to be paid by the Corporation pursuant to Section 2(b)) that
Indemnitee requests or demands under this Agreement or any other agreement or
law now or hereafter in effect relating to Claims for Indemnifiable Events.
The Corporation further agrees not to request or seek reimbursement from
Indemnitee of any related Expense Advances unless, with respect to a denied
indemnification payment, Special Counsel has rendered its written opinion to
the Corporation and Indemnitee that the Corporation would not be permitted
under applicable law to pay Indemnitee such indemnification payment. The
Corporation agrees to pay the reasonable fees of Special Counsel referred to
in this Section 3 and to indemnify fully Special Counsel against any and all
expenses
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(including attorneys' fees), claims, liabilities, and damages arising out of
or relating to this Agreement or Special Counsel's engagement pursuant hereto.
4. ESTABLISHMENT OF TRUST. In the event of a Potential Change in
Control, the Corporation shall, upon written request by Indemnitee, create a
trust for the benefit of Indemnitee (the "TRUST") and from time to time upon
written request of Indemnitee shall fund the Trust in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each such
request to be incurred in connection with investigating, preparing for, and
defending any Claim relating to an Indemnifiable Event, and any and all
judgments, fines, penalties, and settlement amounts (including all interest,
assessments, and other charges paid or payable in connection with or in
respect of such expenses, judgments, fines, penalties, and settlement
amounts) of any and all Claims relating to an Indemnifiable Event from time
to time actually paid or claimed, reasonably anticipated, or proposed to be
paid. The amount or amounts to be deposited in the Trust pursuant to the
foregoing funding obligation shall be determined by the Reviewing Party, in
any situation in which Special Counsel referred to in Section 3 is involved.
The terms of the Trust shall provide that, upon a Change in Control, (i) the
Trust shall not be revoked or the principal thereof invaded, without the
written consent of Indemnitee; (ii) the trustee of the Trust shall advance,
within two business days of a request by Indemnitee, any and all Expenses to
Indemnitee (and Indemnitee hereby agrees to reimburse the Trust under the
circumstances in which Indemnitee would be required to reimburse the
Corporation for Expense Advances under Section 2(b) of this Agreement); (iii)
the Trust shall continue to be funded by the Corporation in accordance with
the funding obligation set forth above; (iv) the trustee of the Trust shall
promptly pay to Indemnitee all amounts for which Indemnitee shall be entitled
to indemnification pursuant to this Agreement or otherwise; and (v) all
unexpended funds in that Trust shall revert to the Corporation upon a final
determination by the Reviewing Party or a court of competent jurisdiction, as
the case may be, that Indemnitee has been fully indemnified under the terms
of this Agreement. The trustee of the Trust shall be chosen by Indemnitee.
Nothing in this Section 4 shall relieve the Corporation of any of its
obligations under this Agreement.
5. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Corporation shall
indemnify Indemnitee against any and all costs and expenses (including
attorneys' and expert witnesses' fees) and, if requested by Indemnitee, shall
(within two business days of that request) advance those costs and expenses
to Indemnitee, that are incurred by Indemnitee in connection with any claim
asserted against or action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Corporation under this Agreement or any
other agreement or provision of the Corporation's Certificate of
Incorporation or By-laws now or hereafter in effect relating to Claims for
Indemnifiable Events or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the Corporation, regardless of
whether Indemnitee ultimately is determined to be entitled to that
indemnification, advance expense payment, or insurance recovery, as the case
may be.
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6. PARTIAL INDEMNITY. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for some or a portion
of the Expenses, judgments, fines, penalties, and amounts paid in settlement
of a Claim but not, however, for all of the total amount thereof, the
Corporation shall nevertheless indemnify Indemnitee for the portion thereof
to which Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all Claims
relating in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without prejudice, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith.
7. CONTRIBUTION.
(a) CONTRIBUTION PAYMENT. To the extent the indemnification
provided for under any provision of this Agreement is determined (in the
manner hereinabove provided) not to be permitted under applicable law, then
in the event Indemnitee was, is, or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, a Claim by reason of (or arising in part out of) an
Indemnifiable Event, the Corporation, in lieu of indemnifying Indemnitee,
shall contribute to the amount of any and all Expenses, judgments, fines, or
penalties assessed against or incurred or paid by Indemnitee on account of
that Claim and any and all amounts paid in settlement of that Claim
(including all interest, assessments, and other charges paid or payable in
connection with or in respect of such Expenses, judgments, fines, penalties,
or amounts paid in settlement) for which such indemnification is not
permitted ("CONTRIBUTION AMOUNTS"), in such proportion as is appropriate to
reflect the relative fault with respect to the Indemnifiable Event giving
rise to the Contribution Amounts of Indemnitee, on the one hand, and of the
Corporation and any and all other parties (including officers and directors
of the Corporation other than Indemnitee) who may be at fault with respect to
such Indemnifiable Event (collectively, including the Corporation, the "THIRD
PARTIES") on the other hand.
(b) RELATIVE FAULT. The relative fault of the Third Parties and the
Indemnitee shall be determined (i) by reference to the relative fault of
Indemnitee as determined by the court or other governmental agency assessing
the Contribution Damages or (ii) to the extent such court or other
governmental agency does not apportion relative fault, by the Reviewing Party
(which shall include Special Counsel) after giving effect to, among other
things, the relative intent, knowledge, access to information, and
opportunity to prevent or correct the applicable Indemnifiable Event and
other relevant equitable considerations of each party. The Corporation and
Indemnitee agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation which does take account of the equitable
considerations referred to in this Section 7(b).
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8. BURDEN OF PROOF. In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified under any provision of this Agreement or to receive contribution
pursuant to Section 7 of this Agreement, the burden of proof shall be on the
Corporation to establish that Indemnitee is not so entitled.
9. NO PRESUMPTION. For purposes of this Agreement, the termination of
any claim, action, suit, or proceeding, by judgment, order, settlement
(whether with or without court approval), or conviction, or upon a plea of
nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law.
10. ACTION OF OTHERS. The knowledge and/or actions, or failure to act,
of any director, officer, agent, or employee of the Corporation shall not be
imputed to the Indemnitee for purposes of determining the right to
indemnification under this Agreement.
11. INDEMNITEE'S INDIVIDUAL CAPACITY. The Corporation acknowledges
that the Indemnitee is undertaking to act as a director of the Corporation at
the request of the Corporation and solely in the Indemnitee's individual
capacity and not in any capacity as a director, officer, member, partner,
employee, trustee, or other representative of any other corporation,
partnership, association, business trust, trust, or similar organization or
entity. The Corporation covenants and agrees to indemnify any such
organization or entity from and against any and all judgments, fines, or
penalties assessed against or incurred or paid by such organization or entity
and any and all amounts paid in settlement (including all interest,
attorneys' and expert witnesses' fees, and other charges paid or payable in
connection with such judgments, fines, penalties, or amounts paid in
settlement) with respect to any action or inaction taken in the course of the
Indemnitee's duties as a director of the Corporation.
12. NON-EXCLUSIVITY. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Corporation's
By-laws or Certificate of Incorporation or the Delaware General Corporation
Law or otherwise. To the extent that a change in the Delaware General
Corporation Law (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the
Corporation's By-laws or Certificate of Incorporation and this Agreement, it
is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by that change.
13. LIABILITY INSURANCE. Except as otherwise agreed to by the
Corporation and Indemnitee in a written agreement, to the extent the
Corporation maintains an insurance policy or policies providing directors'
and officers' liability insurance, Indemnitee shall be covered by that policy
or those policies, in accordance with its or their terms, to the maximum
extent of the coverage available for any Corporation director or officer.
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14. PERIOD OF LIMITATIONS. No legal action shall be brought and no
cause of action shall be asserted by or on behalf of the Corporation or any
affiliate of the Corporation against Indemnitee or Indemnitee's spouse,
heirs, executors, or personal or legal representatives after the expiration
of three years from the date of accrual of that cause of action, and any
claim or cause of action of the Corporation or its affiliate shall be
extinguished and deemed released unless asserted by the timely filing of a
legal action within that three-year period; provided, however, that, if any
shorter period of limitations is otherwise applicable to any such cause of
action, the shorter period shall govern.
15. AMENDMENTS. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall that waiver constitute a continuing waiver.
16. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall, subject to the conflicting rights of an insurer pursuant
to any policy contemplated by Section 13 hereof, be subrogated to the extent
of that payment to all of the rights of recovery of Indemnitee, who shall
execute all papers required and shall do everything that may be necessary to
secure those rights, including the execution of the documents necessary to
enable the Corporation effectively to bring suit to enforce those rights.
17. NO DUPLICATION OF PAYMENTS. The Corporation shall not be liable
under this Agreement to make any payment in connection with any claim made
against Indemnitee to the extent Indemnitee has otherwise actually received
payment (under any insurance policy, provision of the Corporation's
Certificate of Incorporation or By-laws, or otherwise) of the amounts
otherwise indemnifiable hereunder.
18. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor by purchase,
merger, consolidation, or otherwise to all or substantially all of the
business or assets of the Corporation), spouses, heirs, and personal and
legal representatives. This Agreement shall continue in effect regardless of
whether Indemnitee continues to serve as an officer or director of the
Corporation or another enterprise at the Corporation's request.
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19. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective
during the term hereof, that provision shall be fully severable; this
Agreement shall be construed and enforced as if that illegal, invalid, or
unenforceable provision had never comprised a part hereof; and the remaining
provisions shall remain in full force and effect and shall not be affected by
the illegal, invalid, or unenforceable provision or by its severance from
this Agreement. Furthermore, in lieu of that illegal, invalid, or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to the illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and
enforceable.
20. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed in that state without giving effect to
the principles of conflicts of laws.
21. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
22. NOTICES. Whenever this Agreement requires or permits notice to be
given by one party to the other, such notice must be in writing to be
effective and shall be deemed delivered and received by the party to whom it
is sent upon actual receipt (by any means) of such notice. Receipt of a
notice by any officer of the Corporation shall be deemed receipt of such
notice by the Corporation.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
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EXECUTED as of the date first written above.
CONCENTRA MANAGED CARE, INC.
By: ______________________________
Name: _______________________
Title: ______________________
______________________________________
______________________________________
Indemnitee
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