Exhibit 10.1
EMPLOYMENT AGREEMENT
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(Senior Executive Level)
AGREEMENT, dated as of January 1, 2006, between MDwerks, Inc., a
Delaware corporation (the "Company"), and the Executive identified on Exhibit A
attached hereto (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Company desires to retain the services of the Executive
and to that end desires to enter into a contract of employment with him, upon
the terms and conditions herein set forth; and
WHEREAS, the Executive desires to be employed by the Company upon such
terms and conditions;
NOW, THEREFORE, in consideration of the premises and of the mutual
benefits and covenants contained herein, the parties hereto, intending to be
bound, hereby agree as follows:
1. APPOINTMENT AND TERM
Subject to the terms hereof, the Company hereby employs the Executive,
and the Executive hereby accepts employment with the Company, all in accordance
with the terms and conditions set forth herein, for a period commencing on the
date hereof (the "Commencement Date") and ending on the date (the "Expiration
Date") set forth in Exhibit A, unless the parties mutually agree in writing upon
a later date.
2. DUTIES
(a) During the term of this Agreement, the Executive shall be employed
in the position set forth in Exhibit A and shall, unless prevented by
incapacity, devote [substantially] all of his business time, attention and
ability during normal corporate office business hours to the discharge of his
duties hereunder and to the faithful and diligent performance of such duties and
the exercise of such powers as may be assigned to or vested in him by the Board
of Directors of the Company (the "Board"), such duties to be consistent with his
position. The Executive shall obey the lawful directions of the
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Board, and shall use his diligent efforts to promote the interests of the
Company and to maintain and promote the reputation thereof.
(b) The Executive shall not during his term of employment (except as a
representative of the Company or with the consent in writing of the Board) be
directly or indirectly engaged or concerned or interested in any other business
activity, except through ownership of an interest of not more than 2% in any
entity that does not compete with the Company, provided it does not impair the
ability of the Executive to discharge fully and faithfully his duties hereunder.
(c) Notwithstanding the foregoing provisions, the Executive shall be
entitled to serve in various leadership capacities in civic, charitable and
professional organizations. The Executive recognizes that his primary and
paramount responsibility is to the Company.
(d) The Executive shall be based in the Deerfield Beach, Florida area,
except for required travel on the Company's business.
3. REMUNERATION
(a) As compensation for his services pursuant hereto, the Executive
shall be paid a base salary during his employment hereunder at the annual rate
set forth in Exhibit A. This amount shall be payable in equal periodic
installments in accordance with the usual payroll practices of the Company.
(b) Except as provided above, in Exhibit A and in Sections 4 and 6
hereof, the Executive shall not be entitled to receive any additional
compensation, remuneration or other payments from the Company.
4. HEALTH INSURANCE AND OTHER FRINGE BENEFITS
The Executive shall be entitled to participate in regular employee
fringe benefit programs to the extent such programs are offered by the Company
to its executive employees, including, but not limited to, medical,
hospitalization and disability insurance and life insurance, Section 529
education plan and 401(k) plan.
5. VACATION
The Executive shall be entitled to the number of weeks of vacation set
forth in Exhibit A (in addition to the usual national holidays) during each
contract year during which he serves hereunder.
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Such vacation shall be taken at such time or times as will be mutually agreed
between the Executive and the Company.
6. REIMBURSEMENT FOR EXPENSES
The Executive shall be reimbursed for reasonable documented business
expenses incurred in connection with the business of the Company in accordance
with practices and policies established by the Company.
7. TERMINATION
(a) This Agreement shall terminate in accordance with the terms of
Section 7(b) hereof; provided, however, that such termination shall not affect
the obligations of the Executive pursuant to the terms of Sections 8 and 9.
(b) This Agreement shall terminate on the Expiration Date; or as
follows:
(i) Upon the written notice to the Executive by the Company at
any time, because of the willful and material malfeasance, dishonesty or
habitual drug or alcohol abuse by the Executive related to or affecting the
performance of his duties, or upon the Executive's conviction of a felony, any
crime involving moral turpitude (including, without limitation, sexual
harassment) related to or affecting the performance of his duties or any act of
fraud, embezzlement, theft or willful breach of fiduciary duty against the
Company.
(ii) In the event the Executive, by reason of physical or mental
disability, shall be unable to perform the services required of him hereunder
for a period of more than 60 consecutive days, or for more than a total of 90
non-consecutive days in the aggregate during any period of twelve (12)
consecutive calendar months, on the 61st consecutive day, or the 91st day, as
the case may be. The Executive agrees, in the event of any dispute under this
Section 7(b)(ii), and after written notice by the Board, to submit to a physical
examination by a licensed physician practicing in the South Florida area
selected by the Board, and reasonably acceptable to the Executive.
(iii) In the event the Executive dies while employed pursuant
hereto, on the day in which his death occurs.
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(c) If this Agreement is terminated pursuant to Section 7(b), the
Company will have no further liability to the Executive after the date of
termination including, without limitation, the compensation and benefits
described herein, except as set forth in Exhibit A.
(d) In the event the Company chooses not to enter into any agreement or
amendment extending the Executive's employment beyond the Expiration Date, the
Company agrees to provide Executive at least 360 days prior written notice of
such determination, during which time the Executive will not be required to
perform any duties for the Company, and may seek alternative employment while
still being employed by the Company. If such prior written notice is not given,
this Agreement shall be automatically extended by one (1) year and the then
effective annual base salary shall be increased by 10%.
(e) If there is a Change of Control (as defined below), the Executive
may terminate his employment at any time within six months after such Change of
Control and the Executive shall continue to be paid pursuant to this Agreement.
A Change of Control shall be deemed to have occurred at such time as any person,
other than the Company, its existing shareholders or any of its or their
affiliates on the date hereof, purchases the "beneficial ownership" (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934), directly or
indirectly, of 50% or more of the combined voting power of voting securities
then ordinarily having the right to vote for directors of the Company.
8. CONFIDENTIAL INFORMATION
(a) The Executive covenants and agrees that he will not at any time
during the continuance of this Agreement or at any time thereafter (i) print,
publish, divulge or communicate to any person, firm, corporation or other
business organization (except in connection with the Executive's employment
hereunder) or use for his own account any secret or confidential information
relating to the business of the Company (including, without limitation,
information relating to any customers, suppliers, employees, products, services,
formulae, technology, know-how, trade secrets or the like, financial information
or plans) or any secret or confidential information relating to the affairs,
dealings, projects and concerns of the Company, both past and planned (the
"Confidential Information"), which the Executive has received or obtained or may
receive or obtain during the course of his employment with the Company (whether
or not developed, devised or otherwise created in whole or in part by the
efforts of the
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Executive), or (ii) take with him, upon termination of his employment hereunder,
any information in paper or document form or on any computer-readable media
relating to the foregoing. The term "Confidential Information" does not include
information which is or becomes generally available to the public other than as
a result of disclosure by the Executive or which is generally known in the
medical claim processing and receivable financing business. The Executive
further covenants and agrees that he shall retain the Confidential Information
received or obtained during such service in trust for the sole benefit of the
Company or its successors and assigns.
(b) The term Confidential Information as defined in Section 8(a) hereof
shall include information obtained by the Company from any third party under an
agreement including restrictions on disclosure known to the Executive.
(c) In the event that the Executive is requested pursuant to subpoena
or other legal process to disclose any of the Confidential Information, the
Executive will provide the Company with prompt notice so that the Company may
seek a protective order or other appropriate remedy and/or waive compliance with
Section 8 of this Agreement. In the event that such protective order or other
remedy is not obtained or that the Company waives compliance with the provisions
of Section 8 of this Agreement, the Executive will furnish only that portion of
the Confidential Information which is legally required.
9. RESTRICTIONS DURING EMPLOYMENT AND FOLLOWING TERMINATION
(a) The Executive shall not, anywhere within the United States, during
his full term of employment under Section 1 hereof and for a period of one (1)
year thereafter, notwithstanding any earlier termination pursuant to Section
7(b) hereof, without the prior written consent of the Company, directly or
indirectly, and whether as principal, agent, officer, director, partner,
employee, consultant, broker, dealer or otherwise, alone or in association with
any other person, firm, corporation or other business organization, carry on, or
be engaged, have an interest in or take part in, or render services to any
person, firm, corporation or other business organization (other than the
Company) engaged in a business which is competitive with all or part of the
Business of the Company. The term "Business of the Company" shall mean
developing, providing and marketing technology and financial services that focus
on products and services related to processing claims by medical professionals
and service providers for insurance reimbursement and the financing of
receivables due to them arising out of such claims.
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(b) The Executive shall not, for a period of one (1) year after
termination of his employment hereunder, either on his own behalf or on behalf
of any other person, firm, corporation or other business organization, endeavor
to entice away from the Company any person who, at any time during the
continuance of this Agreement, was an employee of the Company.
(c) The Executive shall not, for a period of one (1) year after
termination of his employment hereunder, either on his own behalf or on behalf
of any other person, firm, corporation or other business organization, solicit
or direct others to solicit, any of the Company's customers or prospective
customers (including, but not limited to, those customers or prospective
customers with whom the Executive had a business relationship during his term of
employment) for any purpose or for any activity which is competitive with all or
part of the Business of the Company.
(d) It is understood by and between the parties hereto that the
foregoing covenants by the Executive set forth in this Section 9 are essential
elements of this Agreement and that, but for the agreement of the Executive to
comply with such covenants, the Company would not have entered into this
Agreement. It is recognized by the Executive that the Company currently operates
in, and may continue to expand its operations throughout, the geographical
territories referred to in Section 9(a) above. The Company and the Executive
have independently consulted with their respective counsel and have been advised
in all respects concerning the reasonableness and propriety of such covenants.
10. REMEDIES
(a) Without intending to limit the remedies available to the Company,
it is mutually understood and agreed that the Executive's services are
of a special, unique, unusual, extraordinary and intellectual character giving
them a peculiar value, the loss of which may not be reasonably or adequately
compensated in damages in an action at law, and, therefore, in the event of any
material breach by the Executive that continues after any applicable cure
period, the Company shall be entitled to equitable relief by way of injunction
or otherwise.
(b) The covenants of Section 8 shall be construed as independent of any
other provisions contained in this Agreement and shall be enforceable as
aforesaid notwithstanding the existence of any claim or cause of action of the
Executive against the Company, whether based on this Agreement or otherwise. In
the event that any of the provisions of Sections 8 or 9 hereof should ever be
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adjudicated to exceed the time, geographic, product/service or other limitations
permitted by applicable law in any jurisdiction, then such provisions shall be
deemed reformed in any such jurisdiction to the maximum time, geographic,
product/service or other limitations permitted by applicable law.
11. COMPLIANCE WITH OTHER AGREEMENTS
The Executive represents and warrants to the Company that the execution
of this Agreement by him and his performance of his obligations hereunder will
not, with or without the giving of notice or the passage of time or both,
conflict with, result in the breach of any provision of or the termination of,
or constitute a default under, any agreement to which the Executive is a party
or by which the Executive is or may be bound.
12. WAIVERS
The waiver by the Company or the Executive of a breach of any of the
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
13. BINDING EFFECT; BENEFITS
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs and
legal representatives, including any corporation or other business organization
with which the Company may merge or consolidate or sell all or substantially all
of its assets. Insofar as the Executive is concerned, this contract, being
personal, cannot be assigned.
14. NOTICES
All notices and other communications which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered to the person to whom such notice is to be given at his or
its address et forth below, or such other address for the party as shall be
specified by notice given pursuant hereto:
(a) If to the Executive, to him at the address set forth in Exhibit A.
and
(b) If to the Company, to it at:
MDwerks, Inc.
▇▇▇▇▇▇▇▇ Center, Suite I
▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman of the Board
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with a copy to:
▇▇▇▇▇▇▇▇▇ Traurig, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
15. MISCELLANEOUS
(a) This Agreement contains the entire agreement between the parties
hereto and supersedes all prior agreements and understandings, oral or written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may not be changed, modified, extended or terminated except upon
written amendment approved by the Board and executed by a duly authorized
officer of the Company.
(b) The Executive acknowledges that from time to time, the Company may
establish, maintain and distribute employee manuals of handbooks or personnel
policy manuals, and officers or other representatives of the Company may make
written or oral statements relating to personnel policies and procedures. Such
manuals, handbooks and statements are intended only for general guidance. No
policies, procedures or statements of any nature by or on behalf of the Company
(whether written or oral, and whether or not contained in any employee manual or
handbook or personnel policy manual), and no acts or practices of any nature,
shall be construed to modify this Agreement or to create express or implied
obligations of any nature to the Executive.
(c) The Company shall have no obligation actually to utilize the
Executive's services; if the Company elects not to use the Executive's services
at any time, the Company's obligations to the Executive shall be satisfied, in
all respects, by the payment to the Executive for the balance of the term of the
Executive's employment under this Agreement, but for a minimum period set forth
in Exhibit A, the compensation provided in Section 3, plus any other amounts
payable to the Executive and the continuation of benefits under Section 4.
During such remaining term of employment, the Executive will not be required to
perform any duties for the Company and shall be entitled to seek other
employment provided that such employment would not violate the terms of this
Agreement, including Sections 8 and 9 hereof; and the seeking of such employment
shall not be deemed a violation of this Agreement.
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(d) This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and
the same instrument.
(e) All questions pertaining to the validity, construction, execution
and performance of this Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to its conflict
of law principles.
(f) Any controversy or claim arising from, out of or relating to this
Agreement, or the breach hereof (other than controversies or claims arising
from, out of or relating to the provisions in ▇▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇ ▇▇), ▇▇▇▇▇ ▇▇
determined by final and binding arbitration in Broward County, Florida, in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association, by a panel of not less than three (3) arbitrators
appointed by the American Arbitration Association. The decision of the
arbitrators may be entered and enforced in any court of competent jurisdiction
by either the Company or the Executive.
The parties indicate their acceptance of the foregoing arbitration
requirement by initialing below:
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For the Company Executive
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MDWERKS, INC.
By:
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Name:
Title:
EXECUTIVE
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Name:
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