Exhibit 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as
of the 21st day of April, 1997, between Concentra Managed Care, Inc., a
Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx ("Executive").
WITNESSETH:
WHEREAS, Executive desires to become the Executive Vice President -
Practice Management Services of the Company, and President - Practice
Management Services of the applicable Company subsidiaries and affiliates,
and to become an integral part of its management who participates in the
decision-making process relative to short and long-term planning and policy
for the Company; and
WHEREAS, it is the desire of the Board of Directors of the Company (the
"Board of Directors") to assure itself of the management services of
Executive by directly engaging Executive as an officer of the Company and its
subsidiaries and affiliates; and
WHEREAS, Executive is desirous of committing himself to serve the
Company on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. Employment and Term. The Company hereby agrees to employ Executive
as the Executive Vice President - Practice Management Services of the
Company, and President - Practice Management Services of the applicable
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 date of the effectiveness of this Agreement pursuant to
Section 15 hereof (the "Effective Date") and expiring as of 11:59 p.m. on the
second anniversary of the Effective Date (unless sooner terminated as
hereinafter set forth) (the "Term"); provided, however, that commencing on
such second anniversary date, and each anniversary of the date hereof
thereafter, the Term of this Agreement shall automatically be extended for
one additional year unless at least thirty (30) days prior to each such
anniversary date, the Company or Executive shall have given notice that it or
he, as applicable, does not wish to extend this Agreement.
1. Duties and Restrictions.
(a) Duties as Employee of the Company. Executive shall, subject
to the supervision of the Company's Chief Executive Officer, serve as the
Company's Executive Vice President - Practice Management Services, and
President -Practice Management Services of the applicable Company
subsidiaries and affiliates, with all such powers as may be set forth in the
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Company's Bylaws with respect to, and/or are reasonably incident to, such
officerships.
(b) Other Duties. Executive agrees to serve as requested by the
Company as a director of the Company's subsidiaries and affiliates and in one
or more executive offices of any of the Company's subsidiaries and
affiliates; provided, that the Company indemnifies Executive for serving in
any and all such capacities in a manner acceptable to the Company and
Executive. Executive agrees that he shall not be entitled to receive any
compensation for serving in any capacities of the Company's subsidiaries and
affiliates other than the compensation to be paid to Executive by the Company
pursuant to this Agreement.
(c) Noncompetition. Executive agrees that he will not, for a
period of one year following the termination of his employment with the
Company, (1) solicit the employment of, endeavor to entice away from the
Company or its subsidiaries or affiliates or otherwise interfere with any
person who was an employee of or consultant to the Company or any of its
subsidiaries or affiliates during the one year period preceding such
termination, or (2) be employed by, associated with, or have any interest in,
directly or indirectly (whether as principal, director, officer, employee,
consultant, partner, stockholder, trustee, manager, or otherwise), any
occupational healthcare company or managed care company which has a principal
line of business that is directly competitive with the Company or its
subsidiaries or affiliates in any geographical area in which the Company or
its subsidiaries or affiliates engage in business at the time of such
termination or in which any of them, prior to termination of Executive's
employment, evidenced in writing its intention to engage in business.
Notwithstanding the foregoing, Executive shall not be prohibited from owning
five percent or less of the outstanding equity securities of any entity whose
equity securities are listed on a national securities exchange or publicly
traded in any over-the-counter market.
(d) Confidentiality. Executive shall not, directly or indirectly,
at any time during or following the termination of his employment with the
Company, reveal, divulge, or make known to any person or entity, or use for
Executive's personal benefit (including, without limitation, for the purpose
of soliciting business, whether or not competitive with any business of the
Company or any of its subsidiaries or affiliates), any information acquired
during the course of employment hereunder with regard to the financial,
business, or other affairs of the Company or any of its subsidiaries or
affiliates (including, without limitation, any list or record of persons or
entities with which the Company or any of its subsidiaries or affiliates has
any dealings), other than (1) material already in the public domain, (2)
information of a type not considered confidential by persons engaged in the
same business or a similar business to that conducted by the Company, or (3)
material that Executive is required to disclose under the following
circumstances: (A) in the performance by Executive of his duties and
responsibilities hereunder, reasonably necessary or appropriate disclosure to
another employee of the Company or to representatives or agents of the
Company (such as independent public accountants and legal counsel); (B) at
the express direction of any authorized governmental entity; (C) pursuant to
a subpoena or other court process; (D) as otherwise required by law or the
rules, regulations, or orders of any applicable regulatory body; or (E) as
otherwise necessary, in the opinion of counsel for Executive, to be disclosed
by Executive in connection with the prosecution of any legal
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action or proceeding initiated by Executive against the Company or any
subsidiary or affiliate of the Company or the defense of any legal action or
proceeding initiated against Executive in his capacity as an employee or
director of the Company or any subsidiary or affiliate of the Company.
Executive shall, at any time requested by the Company (either during or after
his employment with the Company), promptly deliver to the Company all
memoranda, notes, reports, lists, and other documents (and all copies
thereof) relating to the business of the Company or any of its subsidiaries
or affiliates which he may then possess or have under his control.
3. Compensation and Related Matters.
(a) Base Salary. Executive shall receive a base salary paid by
the Company ("Base Salary") at the annual rate of Two Hundred Sixty Thousand
Dollars ($260,000) 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.
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(e) Vacations. Executive shall be entitled to ten (10) paid
vacation days for the period from the date of this Agreement through December
31, 1997. Executive shall be entitled to twenty (20) paid vacation days in
each calendar year commencing on or after January 1, 1998, or such additional
number as may be determined by the Board of Directors from time to time. For
purposes of this Section 3(e), weekends shall not count as vacation days and
Executive shall also be entitled to all paid holidays given by the Company to
its senior executive officers.
(f) Perquisites. Executive shall be entitled to receive the
perquisites and fringe benefits appertaining to senior executive officers of
the Company in accordance with any practice established by the Board of
Directors. In the event Executive's employment hereunder is terminated
(whether by Executive or the Company) for any reason whatsoever (other than
Executive's death), then the Company shall, at Executive's written request
and to the extent permitted by the terms of such policies and applicable law,
assign and convey to Executive any life insurance policies maintained by the
Company on the life of Executive, who shall thereafter be solely responsible,
at his election, to pay all premiums payable after such assignment and
conveyance to maintain the coverage under such policies with respect to
Executive. Executive shall not be required to pay any money or other
consideration to the Company upon such assignment and conveyance, it being
acknowledged and agreed by the parties hereto that Executive's execution and
delivery hereof constitute adequate and satisfactory consideration for such
assignment and conveyance.
(g) Proration. Excepting only payments pursuant to Section 3(b)
for calendar year 1997 which payments shall be based upon a full calendar
year, 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 0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx (or at such other
location not more than five (5) miles from the intersection of Dallas North
Tollway and Beltline Road, Dallas, Texas, 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 0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx, 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.
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(a) Death. Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been unable, with reasonable
accommodation, to perform the essential functions of his duties and
responsibilities hereunder on a full time basis for one hundred eighty (180)
consecutive calendar days, and within thirty (30) days after written notice
of termination is given (which may occur before or after the end of such one
hundred eighty (180) day period) Executive shall not have returned to the
performance of his material managerial duties and responsibilities hereunder
on a full time basis, the Company may terminate Executive's employment
hereunder.
(c) Cause. Subject to the provisions of Section 7(d), the Company
may terminate Executive's employment hereunder for Cause. For purposes of
this Agreement, the Company shall have "Cause" to terminate Executive's
employment hereunder upon:
(1) Executive's willful or intentional failure to perform
Executive's material duties and responsibilities hereunder
(other than any such failure resulting from Executive's
incapacity due to physical or mental illness or any such
actual or anticipated failure after the issuance of a Notice
of Termination for Good Reason (as hereinafter defined) by
Executive);
(2) The commission by Executive of dishonesty or fraud of a
material nature in connection with the performance of his
duties hereunder, intentional violation of law or governmental
regulation of a material nature in connection with the
performance of his duties hereunder, or willful or intentional
misconduct of a material nature in connection with the
performance of his duties hereunder;
(3) Unprofessional or unethical conduct of a material nature by
Executive in connection with the performance of his duties
hereunder as determined in a final adjudication of any board,
institution, organization or governmental agency having any
privilege or right to pass upon the conduct of Executive;
(4) Intentional or willful conduct by Executive which is
materially detrimental to the reputation, character, business,
or standing of the Company; or
(5) The continued breach by Executive of any of Executive's
material obligations under this Agreement.
(d) Termination by Executive. Subject to the provisions of
Section 7(c), and at his option, Executive may terminate his employment
hereunder (1) for Good Reason, or (2) if his health should become impaired to
an extent that makes the continued performance of his duties hereunder
hazardous to his physical or mental health or his life.
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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 more
than five (5) miles from the intersection of Dallas North
Tollway and Beltline Road, Dallas, Texas, 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 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
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and as of the date of Executive's death (or to provide as similar coverage as
possible for the same premiums if the continuation of existing coverage is
not permitted) for one (1) year after the date of Executive's death, in each
case to the extent such coverage is available, and (y) the Company shall make
a lump sum cash payment to the appropriate insurance company(ies) in an
amount sufficient to fully fund future premium payments pursuant to
Executive's then existing second-to-die, split-dollar insurance policy(ies)
obtained through the Company and/or OccuSystems, Inc.
(b) Disability. During any period that Executive fails to perform his
material managerial duties and responsibilities hereunder as a result of
incapacity due to physical or mental illness, Executive shall continue to
receive his Base Salary and any bonus payments until Executive's employment
is terminated pursuant to Section 5(b) hereof or until Executive terminates
his employment pursuant to Section 5(d)(2) hereof, whichever first occurs.
After such termination, the Company shall pay to Executive, on or before the
fifth day following the Date of Termination (as hereinafter defined) his Base
Salary to the Date of Termination. In addition, (x) the Company shall make
payments of premiums as necessary to cause Executive and Executive's spouse
and children under age twenty-five (25) to continue to be covered by the
medical and dental insurance as in effect at and as of the Date of
Termination (or to provide as similar coverage as possible for the same
premiums if the continuation of existing coverage is not permitted) for one
(1) year after the Date of Termination, in each case to the extent such
coverage is available, and (y) the Company shall make a lump sum cash payment
to the appropriate insurance company(ies) in an amount sufficient to fully
fund future premium payments pursuant to Executive's then existing
second-to-die, split-dollar insurance policy(ies) obtained through the
Company and/or OccuSystems, Inc.
(c) Cause. If Executive's employment shall be terminated for Cause,
the Company shall pay Executive his Base Salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given.
Such payments shall fully discharge the Company's obligations hereunder.
(d) Breach by the Company, for Good Reason, or Upon Failure to Renew.
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,
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a lump sum in cash equal to 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 one (1) year after the Date of
Termination, in each case to the extent such coverage is available, and (y)
the Company shall make a lump sum cash payment to the appropriate insurance
company(ies) in an amount sufficient to fully fund future premium payments
pursuant to Executive's then existing second-to-die, split-dollar insurance
policy(ies) obtained through the Company and/or OccuSystems, Inc.
(e) Mitigation. Executive shall not be required to mitigate the amount
of any payment provided for in this Section 6 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section 6
be reduced by any compensation earned by Executive as the result of
employment by another employer after the Date of Termination, or otherwise.
7. Other Provisions Relating to Termination.
(a) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive (other than termination because of
the death of Executive) shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated.
(b) Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean: (1) if Executive's employment is terminated by his
death, the date of his death; (2) if Executive's employment is terminated
because of a disability pursuant to Section 5(b), then thirty (30) days after
Notice of Termination is given (provided that Executive shall not have
returned to the performance of his duties on a full-time basis during such
thirty (30) day period); (3) if Executive's employment is terminated by the
Company for Cause or by Executive for Good Reason, then, subject to Sections
7(c) and 7(d), the date specified in the Notice of Termination; (4) if the
Company gives 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.
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(c) Good Reason. Upon the occurrence of an event described in
clauses (A) through (E) of Section 5(d), Executive may terminate his
employment hereunder for Good Reason within one hundred eighty (180) days
thereafter by giving a Notice of Termination to the Company to that effect.
If the effect of the occurrence of the event described in clauses (A) through
(E) of Section 5(d) may be cured, the Company shall have the opportunity to
cure any such effect for a period of thirty (30) days following receipt of
Executive's Notice of Termination. If the Company fails to cure any such
effect, the termination for Good Reason shall become effective on the date
specified in Executive's Notice of Termination. If Executive does not give
such Notice of Termination to the Company, then this Agreement will remain in
effect; provided, however, that the failure of Executive to terminate this
Agreement for Good Reason shall not be deemed a waiver of Executive's right
to terminate his employment for Good Reason upon the occurrence of a
subsequent event described in clauses (A) through (E) of Section 5(d) in
accordance with the terms of this Agreement.
(d) Cause. In the case of any termination of Executive for Cause,
the Company will give Executive a Notice of Termination describing in
reasonable detail, the facts or circumstances giving rise to Executive's
termination (and, if applicable, the action required to cure same) and will
permit Executive thirty (30) days to cure such failure to comply or perform.
Cause for Executive's termination will not be deemed to exist until the
expiration of the foregoing cure period, so long as Executive continues to
use his best efforts during the cure period to cure such failure. If within
thirty (30) days following Executive's receipt of a Notice of Termination for
Cause (1) Executive delivers written notice to the Company denying that Cause
exists, the question of the existence or nonexistence of Cause will be
submitted for arbitration in accordance with Section 10; or (2) if Executive
has not cured the facts or circumstances giving rise to Executive's
termination for Cause and shall not have delivered a notice pursuant to
clause (1) of this Section 7(d), then Executive's termination for Cause shall
be effective as of the date specified in the Notice of Termination.
(e) Interest. Until paid, all past due amounts required to be
paid by the Company under any provision of this Agreement shall bear interest
at the highest non-usurious rate permitted by applicable federal, state, or
local law.
8. Successors; Binding Agreement.
(a) Successors. This Agreement shall be binding upon, and inure
to the benefit of, the Company, Executive, and their respective successors,
assigns, personal and legal representatives, executors, administrators,
heirs, distributees, devisees, and legatees, as applicable.
(b) Assumption. The Company will require any successor (whether
direct or indirect, by purchase of securities, merger, consolidation, sale of
assets, or otherwise) to all or substantially all of the business or assets
of the Company, by an agreement in form and substance reasonably satisfactory
to Executive, to expressly assume this Agreement and to agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement
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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
0000 Xxxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
If to the Company:
Concentra Managed Care, Inc.
000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
Concentra Managed Care, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith.
10. Disputes. In the event any dispute or controversy arises under
this Agreement and is not resolved by mutual written agreement between
Executive and the Company within thirty (30) days after notice of the dispute
is first given, then, upon the written request of Executive or the Company,
such dispute or controversy shall be submitted to arbitration, which
arbitration
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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.
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 shall be of no
force or effect unless and until the consummation of both the OSI Merger and
the CRA Merger (as defined in that certain Agreement and Plan of
Reorganization, dated as of April 21, 1997, among CRA Managed Care, Inc., a
Massachusetts corporation ("CRA"), OccuSystems, Inc., a Delaware corporation
("OSI"), and the Company); upon such consummation, this Agreement shall be in
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full force and effect. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
any and all prior employment agreements and/or severance protection letters,
agreements, or arrangements between Executive, on the one hand, and the
Company, CRA, OSI, or any other predecessor in interest thereto or any of
their respective subsidiaries, on the other hand.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
COMPANY:
CONCENTRA MANAGED CARE, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------------
Title: President and Chief Executive Officer
------------------------------------------
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
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