EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as
of the 17th day of August, 1999, between Concentra Managed Care, Inc., a
Delaware corporation (the "Company"), and W. Tom Fogarty, M.D. ("Executive").
WITNESSETH:
WHEREAS, Executive desires to continue as Senior Vice President and
Chief Medical Officer of the Company and to remain an integral part of its
management who participates in the decision-making process relative to short and
long-term planning and policy for the Company; and
WHEREAS, it is the desire of the Board of Directors of the Company (the
"Board of Directors") to assure itself of the management services of Executive
by directly engaging Executive as an officer of the Company and its subsidiaries
and affiliates; and
WHEREAS, Executive is desirous of committing himself to serve the
Company on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby agrees to employ Executive as
its Senior Vice President and Chief Medical Officer, 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 14 hereof (the "Effective Date") and expiring as of 11:59 p.m. on the
second anniversary of the Effective Date (unless sooner terminated as
hereinafter set forth) (the "Term"); PROVIDED, HOWEVER, that commencing on such
second anniversary date, and each anniversary of the date hereof thereafter, the
Term of this Agreement shall automatically be extended for one additional year
unless at least thirty (30) days prior to each such anniversary date, the
Company or Executive shall have given notice that it or he, as applicable, does
not wish to extend this Agreement.
2. DUTIES AND RESTRICTIONS.
(a) DUTIES AS EMPLOYEE OF THE COMPANY. Executive shall, subject
to the supervision of the Company's Chief Executive Officer, serve as the
Company's Senior Vice President and Chief Medical Officer, with all such powers
as may be set forth in the Company's Bylaws with respect to, and/or are
reasonably incident to, such officerships.
(b) OTHER DUTIES. Executive agrees to serve as requested by the
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
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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 action or proceeding initiated by Executive against the Company or any
subsidiary or affiliate of the Company or the defense of any legal action or
proceeding initiated against Executive in his capacity as an employee or
director of the Company or any subsidiary or affiliate of the Company. Executive
shall, at any time requested by the Company (either during or after his
employment with the Company), promptly deliver to the Company all memoranda,
notes, reports, lists, and other documents (and all copies thereof) relating to
the business of the
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Company or any of its subsidiaries or affiliates which he may then possess or
have under his control.
3. COMPENSATION AND RELATED MATTERS.
(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.
(e) VACATIONS. Executive shall be entitled to ten (10) paid
vacation days for the period from the date of this Agreement through December
31, 1999. Executive shall be entitled to twenty (20) paid vacation days in each
calendar year commencing on or after January 1, 2000, or such additional number
as may be determined by the Board of Directors from time to
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time. For purposes of this Section 3(e), weekends shall not count as vacation
days and Executive shall also be entitled to all paid holidays given by the
Company to its senior executive officers.
(f) PERQUISITES. Executive shall be entitled to receive the
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 1999 (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
5080 Spectrum Drive, Addison, Texas (or at such other location within the
Dallas, Texas, 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 the office location
described in the first sentence of this Section 4, and Executive agrees to such
change, the Company shall pay Executive's reasonable relocation and moving
expenses, including, but not limited to, the cost of moving his immediate
family, expenses incurred while seeking new housing (including travel by
Executive's spouse) and temporary living expenses incurred by Executive or his
family for up to one hundred eighty (180) days.
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
or gross negligence in the performance of Executive's material duties and
responsibilities hereunder (other than any such failure resulting from
Executive's incapacity due to physical or mental illness or any such actual or
anticipated failure after the issuance of a Notice of Termination for Good
Reason (as hereinafter defined) by Executive);
(2) The commission by Executive of dishonesty or fraud of
a material nature in connection with the performance of his duties hereunder, or
willful or intentional misconduct of a material nature in connection with the
performance of his duties hereunder;
(3) The conviction of Executive, or the entering of a plea
of nolo contendere by Executive, with respect to a felony;
(4) Unprofessional or unethical conduct of a material
nature by Executive in connection with the performance of his duties hereunder
as determined in a final adjudication of any board, institution, organization or
governmental agency having any privilege or right to pass upon the conduct of
Executive;
(5) Intentional, willful, or grossly negligent conduct by
Executive which is materially detrimental to the reputation, character,
business, or standing of the Company, including, without limitation, the use by
Executive of a controlled substance; or
(6) The continued breach by Executive of any of
Executive's material obligations under this Agreement.
(d) TERMINATION BY EXECUTIVE. Subject to the provisions of
Section 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.
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":
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(A) a material change in the nature or scope of
Executive's authorities, status, powers, functions, duties, responsibilities, or
reporting relationships that is determined by Executive in good faith to be
adverse to those existing before such change;
(B) any removal by the Company of Executive from, or any
failure to reelect Executive to, the positions indicated in Section 1 hereof
except in connection with termination of Executive's employment for Cause or
disability;
(C) a reduction in Executive's Base Salary or any other
failure by the Company to comply with Section 3 hereof that is not consented to
or approved by Executive;
(D) the relocation of Executive's office at which he is to
perform his duties and responsibilities hereunder to a location outside of the
Dallas, Texas, metropolitan area, or a materially adverse alteration in the
office space within which Executive is to perform his duties and
responsibilities hereunder or in the secretarial and administrative support
provided to Executive; or
(E) a failure by the Company or any subsidiary or
affiliate of the Company to comply with any other material term or provision
hereof or of any other written agreement between Executive and the Company or
any such subsidiary or affiliate.
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 the consummation of the
Merger (as defined in that certain Amended and Restated Agreement and Plan of
Merger, dated as of March 24, 1999, between Yankee Acquisition Corp., a Delaware
corporation, and the Company), shall be deemed to have occurred for "Additional
Reason":
(A) the removal of Executive from the position of Chief
Medical 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;
(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
Dallas, Texas, metropolitan area, or a materially adverse alteration in the
office space within which Executive is to perform his duties and
responsibilities hereunder or in the secretarial and administrative support
provided to Executive; or
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(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 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
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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 and on the fifth day of each of the eleven (11) months thereafter
(amounting to a total of twelve (12) months), an amount in cash equal
one-twelfth (1/12) of Executive's annual Base Salary at the rate in effect at
the time the Notice of Termination is given; and
(C) all benefits payable under the terms of any employee
benefit plan or other arrangement as of the Date of Termination.
In addition, (x) the Company shall make payments of premiums as
necessary to cause Executive and Executive's spouse and children under age
twenty-five (25) to continue to be covered by the medical and dental insurance
as in effect at and as of the Date of Termination (or to provide as similar
coverage as possible for the same premiums if the continuation of existing
coverage is not permitted) for one (1) year after the Date of Termination, in
each case to the extent such coverage is available, and (y) the Company shall
make a lump sum cash payment to the appropriate insurance company(ies) in an
amount sufficient to fully fund future premium payments pursuant to Executive's
then existing second-to-die, split-dollar insurance policy(ies) obtained through
the Company and/or OccuSystems, Inc.
(e) MITIGATION. Executive shall not be required to mitigate the
amount of any payment provided for in this Section 6 by seeking other employment
or otherwise; provided, HOWEVER, that, anything herein to the contrary
notwithstanding, in the event of the termination of Executive's employment prior
to a Change in Control (as defined in the Concentra Managed Care, Inc., 1997
Long-Term Incentive Plan) which occurs after the consummation of the Merger (as
defined in that certain Amended and Restated Agreement and Plan of Merger, dated
as of March 24, 1999, by and between Yankee Acquisition Corp., a Delaware
corporation, and the Company) (but not if Executive's employment terminates
after such a Change in Control), the amount of any payment pursuant to Section
6(d)(B) and/or pursuant to the first paragraph of
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Section 6(f) shall be reduced by any compensation earned by Executive as the
result of employment by another employer (whether as a director, officer,
employee, manager, owner, consultant, independent contractor, advisor or
otherwise) after the Date of Termination until the end of the twelve month
period of clause (B) of Section 6(d) above.
(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
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 (2) times Executive's full annual
Base Salary when combined with amounts payable pursuant to Section 6(d)(B)).
In addition, 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 in addition to the one (1) year
provided for under Section 6(d) (for a total of two (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 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
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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, Executive
has not cured the facts or circumstances giving rise to Executive's termination
for Cause, then Executive's termination for Cause shall be effective as of the
date specified in the Notice of Termination.
(e) INTEREST. Until paid, all past due amounts required to be
paid 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
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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 (and, if such succession occurs on or before August
17, 2000, in the same amount and on the same terms as he would be entitled to
hereunder if he terminated his employment for Additional 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:
W. Tom Fogarty, M.D.
202 Lost Canyon Court
Richardson, Texas 75080
If to the Company:
Concentra Managed Care, Inc.
312 Union Wharf
Boston, Massachusetts 02109
Fax No.: (617) 367-8519
Attention: Chief Executive Officer
With a copy to:
Concentra Managed Care, Inc.
5080 Spectrum Drive
Suite 400, West Tower
Addison, Texas 75001
Fax No.: (972) 387-1938
Attention: General Counsel
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or to such other address as either party may have furnished to the other in
writing in accordance herewith.
10. MISCELLANEOUS. No provision of this Agreement may be modified,
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.
11. ATTORNEY FEES. 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.
12. 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.
13. 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.
14. ENTIRE AGREEMENT; EFFECTIVENESS. This Agreement shall be of no force
or effect unless and until the consummation of the Merger (as defined in that
certain Amended and Restated Agreement and Plan of Merger, dated as of March 24,
1999, by and between Yankee Acquisition Corp., a Delaware corporation, and the
Company, as such agreement may be amended from time to time); upon such
consummation, this Agreement shall be in full force and effect. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes in all respects any and all prior employment
agreements and/or severance protection letters, agreements, or arrangements
between Executive, on the one hand, and the Company or any other predecessor in
interest thereto or any of their respective subsidiaries, on the other hand,
which prior employment agreements and/or severance protection letters,
agreements, and arrangements, if any, are hereby cancelled and of no further
force or effect.
15. RIGHT AND OPTION OF COMPANY TO REPURCHASE SHARES UPON TERMINATION OF
Employment.
(a) In the event that, prior to an initial public offering of the
Company's equity securities, Executive's employment with the Company is
terminated for any reason, the Company
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shall thereupon have the right and option, but not the obligation, to purchase
from Executive all or any part of the shares of common stock, par value $.01 per
share, of the Company (the "Shares") held by Executive as of the date
Executive's employment so ceases at a purchase price equal to the greater of (1)
Sixteen and 50/100 Dollars ($16.50) per Share, and (2) the fair market value (as
hereinafter defined) of such Shares as of the date Executive's employment so
ceases.
(b) The Company may exercise the right and option provided in
Section 15(a) above by giving Executive a written notice of such election to
purchase at any time within ninety (90) days after the date Executive's
employment so ceases. The closing for the purchase by the Company of any such
Shares pursuant to the provisions of said Section 15(a) shall take place at the
offices of the Company on the date specified in such written notice, which date
shall be a business day not later than sixty (60) days after the date such
notice is given. At such closing, Executive will deliver or cause to be
delivered such Shares, duly endorsed for transfer, against payment of the
applicable purchase price therefor. Such purchase price shall be payable to
Executive in cash or other immediately available funds. To the extent the
Company chooses not to exercise such right and option under said Section 15(a)
to purchase any Shares, such Shares shall thereupon cease to be subject to the
provisions of this Section 15.
(c) For the purposes of this Agreement, "fair market value" of a
Share as of any date shall mean the value of such stock as determined in good
faith by the Board of Directors of the Company on a basis consistent with the
manner of determining the fair market value of the Company's common stock for
purposes of offering the Company's common stock to equity investors.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
COMPANY:
CONCENTRA MANAGED CARE, INC.
By: /s/ Richard A. Parr II
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Name: Richard A. Parr II
--------------------------------
Title: Executive Vice President
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EXECUTIVE:
/s/ W. Tom Fogarty
-------------------------------------
W. Tom Fogarty, M.D.
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