EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of the 5th day of August, 2002, between Concentra Inc., a Delaware
corporation (the "Company"), and Fred Dunlap ("Executive").
WITNESSETH:
WHEREAS, Executive desires to be employed as President and Chief
Operating Officer of the Company as an integral part of the Company's management
who participates in the decision-making process relative to short and long-term
planning and policy for the Company; and
WHEREAS, it is the desire of the Board of Directors of the Company (the
"Board of Directors") to assure itself of the management services of Executive
by 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 President and Chief Operating Officer, and Executive hereby agrees to
accept such employment, on the terms and conditions set forth herein, for the
period commencing on the date first set forth above (the "Effective Date") and
expiring as of 11:59 p.m. on the second anniversary of the Effective Date
(unless sooner terminated as hereinafter set forth) (the "Term"); provided,
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 President and Chief Operating 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
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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
eighteen (18) months following the termination of his employment with the
Company, (1) solicit the employment of, endeavor to entice away from the Company
or its subsidiaries or affiliates or otherwise interfere with any person who was
an employee of or consultant to the Company or any of its subsidiaries or
affiliates during the one year period preceding such termination, or (2) be
employed by, associated with, or have any interest in, directly or indirectly
(whether as principal, director, officer, employee, consultant, partner,
stockholder, trustee, manager, or otherwise), any occupational healthcare
company or occupational health managed care company (not to include the managed
health care industry in general) 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 and by a writing created in the ordinary
course of business and executed prior to the Notice of Termination with respect
to Executive's termination of employment, evidenced 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. The Company acknowledges that Executive
possesses substantial experience and expertise in this industry, and, other than
as expressly set forth in this Section 2(b), the use of that experience and
expertise in the future will not be deemed to be a violation of this Agreement.
(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 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
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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 that 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 Five Hundred Thousand Dollars
($500,000) during each calendar year of the Term, payable in periodic
installments at such times (no less frequently than monthly) as executives of
the Company normally are paid. In addition, the Company's Board of Directors or
the Compensation Committee of the Board of Directors shall, in good faith,
consider granting increases in the Base Salary based on such factors as
Executive's performance and the growth and/or profitability of the Company, but
the Company shall have no obligation to grant such increases in compensation.
(b) Bonus Payments. Executive shall be entitled to receive, in addition
to the Base Salary, such bonus payments, if any, as the Board of Directors or
the Compensation Committee of the Board of Directors may specify.
(c) Expenses. During the term of his employment hereunder, Executive
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. 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. The Company
shall not make any changes in any employee benefit plans or other arrangements
in which Executive 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.
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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, 2002.
Executive shall be entitled to twenty (20) paid vacation days in each calendar
year commencing on or after January 1, 2003, 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 generally to senior executive officers of the
Company in accordance with any practice established by the Board of Directors.
In the event Executive's employment hereunder is terminated (whether by
Executive or the Company) for any reason whatsoever (other than Executive's
death), then the Company shall, at Executive's written request and to the extent
permitted by the terms of such policies and applicable law, assign and convey to
Executive any life insurance policies maintained by the Company on the life of
Executive, who shall thereafter be solely responsible, at his election, to pay
all premiums payable after such assignment and conveyance to maintain the
coverage under such policies with respect to Executive. Executive shall not be
required to pay any money or other consideration to the Company upon such
assignment and conveyance, it being acknowledged and agreed by the parties
hereto that Executive's execution and delivery hereof constitute adequate and
satisfactory consideration for such assignment and conveyance.
(g) Proration. Any payments or benefits payable to Executive 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.
(a) Executive shall primarily perform his duties and responsibilities
hereunder at the Company's office 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 office), except
for reasonable required travel on the Company's business. If the Company
requests Executive to report for the performance of his services hereunder on a
regular or permanent basis at any location or office more than thirty-five (35)
miles from the office location described in the first sentence of this Section
4, and Executive agrees to such change, the Company shall pay Executive's
reasonable relocation and moving expenses, including, but not limited to, the
cost of moving his immediate family, expenses incurred while seeking new housing
(including travel by Executive's spouse) and temporary living expenses incurred
by Executive or his family for up to one hundred eighty (180) days.
(b) It is the parties' intention that Executive will relocate his
residence from Florida to the Dallas, Texas, metropolitan area, as soon as
reasonably practicable, at the Company's expense. Following the Effective Date,
the Company will reimburse Executive for relocation and moving expenses
reasonably incurred by Executive in relocating his home from Florida to the
Dallas, Texas, metropolitan area (including, without limitation, house-hunting
trips
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for Executive and his spouse, the cost of temporary housing in the Dallas area
as reasonably required, real estate commissions and closing costs on the sale of
Executive's Florida home, the cost of moving Executive's household goods from
Florida to Texas, and a "gross up" for those items that are considered wages for
tax purposes).
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 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
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(6) The continued material breach by Executive of any of
Executive's obligations under Section 2(c), 2(d), or 4(b) of this Agreement, or
Executive's failure (other than by reason of a breach of this Agreement by the
Company) to serve the Company on a full-time basis in accordance with Sections
1, 2(a), and 2(b) of 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) upon no less than ninety (90) days prior written notice
to the Company.
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, a reduction in any
bonus potential or other material adverse change in any bonus plan or program
applicable to Executive after any such bonus potential or bonus plan or program
has been communicated to Executive, 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;
(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; or
(F) the occurrence of a Change in Control (as defined in Exhibit A
attached hereto), other than a Change in Control occurring by reason of an
initial public offering of the Company's equity securities and/or by reason of a
sale of the Company's equity securities pursuant to a public registration of
such securities by the Company within twelve (12) months following an initial
public offering of the Company's equity securities.
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
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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, and (y) the Company shall make a lump
sum cash payment to the appropriate insurance company(ies) in an amount
sufficient to fully fund future premium payments pursuant to any then existing
second-to-die, split-dollar insurance policy(ies) obtained by Executive through
the Company.
(b) Disability. During any period that Executive fails to perform his
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, and (y) the Company shall make a lump sum cash payment to the
appropriate insurance company(ies) in an amount sufficient to fully fund future
premium payments pursuant to any then existing second-to-die, split-dollar
insurance policy(ies) obtained by Executive through the Company.
(c) Termination by the Company for Cause or by Executive Other Than
Because of Death, Disability or Good Reason. If Executive's employment shall be
terminated by the Company for Cause or if Executive shall terminate his
employment other than for Good Reason and other than by reason of his death or
disability, 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
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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 seventeen (17) months thereafter
(amounting to a total of eighteen (18) months), an amount in cash equal to
one-twelfth (1/12) of Executive's annual Base Salary at the rate in effect at
the time the Notice of Termination is given (for a total of one and one-half (1
1/2) years' Base Salary);
(C) in lieu of any further bonus or incentive compensation
payments to Executive for periods subsequent to the Date of Termination, the
Company shall pay to Executive on or before the fifth day following the Date of
Termination and on the fifth day of each of the seventeen (17) months thereafter
(amounting to a total of eighteen (18) months), an amount in cash equal to
one-twelfth (1/12) of Executive's average annual bonus compensation actually
received from the Company with respect to the two (2) year period immediately
preceding the date the Notice of Termination is given (or such lesser period as
Executive shall have been employed by the Company at such time); and
(D) all benefits payable under the terms of any employee benefit
plan or other arrangement as of the Date of Termination.
In addition, (x) the Company shall make payments of premiums as
necessary to cause Executive and Executive's spouse and children under age
twenty-five (25) to continue to be covered by the medical and dental insurance
as in effect at and as of the Date of Termination (or to provide as similar
coverage as possible for the same premiums if the continuation of existing
coverage is not permitted) for one (1) year after the Date of Termination, in
each case to the extent such coverage is available, and (y) the Company shall
make a lump sum cash payment to the appropriate insurance company(ies) in an
amount sufficient to fully fund future premium payments pursuant to any then
existing second-to-die, split-dollar insurance policy(ies) obtained by Executive
through the Company
(e) Mitigation. Executive shall not be required to mitigate the amount
of any payment provided for in this Section 6 by seeking other employment or
otherwise.
7. Other Provisions Relating to Termination.
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(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; (5) if Executive terminates his employment pursuant to Section 5(d),
ninety (90) days after Notice of Termination is given by Executive (or such
shorter period as the Company in its sole discretion shall determine after
receipt of such a Notice of Termination; provided, that, in such event, the
Company will pay Executive his Base Salary with respect to the full ninety (90)
days of the notice period, without regard to the number of days actually
worked); and (6) if Executive's employment is terminated for any other reason,
the date on which a Notice of Termination is given.
(c) Good Reason. Upon the occurrence of an event described in
clauses (A) through (E) of the definition of "Good Reason" in Section 5(d),
Executive may terminate his employment hereunder for Good Reason within one
hundred eighty (180) days thereafter by giving a Notice of Termination to the
Company to that effect. If the effect of the occurrence of the event giving rise
to Good Reason under Section 5(d) may be cured, the Company shall have the
opportunity to cure any such effect for a period of thirty (30) days following
receipt of Executive's Notice of Termination. If the Company fails to cure any
such effect, the termination for Good Reason shall become effective on the date
specified in Executive's Notice of Termination. If Executive does not give such
Notice of Termination to the Company with respect to an event constituting Good
Reason, then this Agreement will remain in effect, and Executive shall be deemed
for all purposes to have waived his right to terminate his employment for Good
Reason with respect to such event; 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 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
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cure same) and will permit Executive thirty (30) business 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 after thirty (30) business 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. Upon the written request of Executive, 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 satisfactory to Executive, to expressly assume this Agreement
and to agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Executive to compensation from the Company in the same amount and
on the same terms as he would be entitled to hereunder if he terminated his
employment for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
(c) Certain Payments. If Executive should die while any amounts
would still be payable to him hereunder if he had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to Executive's devisee, legatee, or other designee
or, if there be no such designee, to Executive's estate.
9. Notice. For purposes of this Agreement, all notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when (a) delivered personally, (b) sent by
facsimile or similar electronic device and confirmed, (c) delivered by overnight
express, or (d) if sent by any other means, upon receipt. Notices and all other
communications provided for in this Agreement shall be addressed as follows:
If to Executive: To Executive's home address as reflected
from time to time in the Company's records;
and
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If to the Company: Concentra Inc.
5080 Spectrum Drive, Suite 400 - West Tower
Addison, Texas 75001
Attention: General Counsel
Fax No.: (972) 387-1938
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 (including, without limitation, the termination
or purported termination of 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 infull 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. Excepting only (a) that certain Option Award
Agreement, dated August 5, 2002, between the Company and Executive, (b) that
certain Restricted Stock Award Agreement, dated August 5, 2002, between the
Company and Executive, and (c) that certain Memorandum regarding 2002 and 2003
Incentive Bonus Program from the Company's Chief Executive Officer to Executive
(each of which continues in effect in accordance with its respective terms),
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
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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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
COMPANY:
CONCENTRA INC.
By: /s/ Daniel J. Thomas
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Daniel J. Thomas
President and Chief Executive Officer
EXECUTIVE:
/s/ Fred Dunlap
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Fred Dunlap
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EXHIBIT A
DEFINITION OF "CHANGE IN CONTROL"
As used in this Agreement, "Change in Control" shall mean the
occurrence of any of the following events:
(A) The acquisition by any individual, entity, or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended) of beneficial ownership of either (x) the then
outstanding shares of Common Stock of the Company (the "Outstanding Company
Common Stock") or (y) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"), such that WCAS ceases
to own, in the aggregate, more than 50% of the Outstanding Company Common Stock
or of the Outstanding Company Voting Securities; provided, however, that for
purposes of this Subparagraph (A), the following acquisitions shall not
constitute a Change of Control: (1) any acquisition of Company Common Stock or
other Company voting securities directly from the Company, (2) any acquisition
by the Company, (3) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by
the Company or (4) any acquisition by any corporation pursuant to a transaction
which complies with clauses (1), (2), and (3) of Subparagraph (C) below; or
(B) Individuals who, as of the date of the Plan, constitute
the Board of Directors cease for any reason to constitute at least a majority of
the Incumbent Board (as hereinafter defined); or
(C) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of the
Company or an acquisition of assets of another corporation (a "Business
Combination"), in each case, unless, following such Business Combination, (1)
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company 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 Company or all or substantially all of the Company'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 Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (2) no individual, entity, or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended) (excluding any employee benefit plan (or related trust)
of the Company or the corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership results
solely from ownership of the Company that existed prior to the Business
Combination, and (3) 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
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(D) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
As used in this Agreement, "Incumbent Board" means the individuals who
constitute the Board of Directors on the date hereof and any other individual
who becomes a director of the Company after that date and whose election or
appointment by the Board of Directors or nomination for election by the
Company'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.
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