EXHIBIT 10.1
EMPLOYMENT AGREEMENT
Between
TELZUIT MEDICAL TECHNOLOGIES, INC.
And
XXXXXX XXXX XXXXXXXXXX, XX., M.D.
October 10, 2005
EMPLOYMENT AGREEMENT
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MEDICAL DIRECTOR
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This Employment Agreement (the "AGREEMENT"), dated as of October __, 2005
(the "EFFECTIVE DATE"), is by and between TELZUIT MEDICAL TECHNOLOGIES, INC.
(the "COMPANY"), a Florida corporation having its principal office at 0000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 and XXXXXX XXXX XXXXXXXXXX,
XX., M.D., an individual maintaining an address at
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(the "EMPLOYEE").
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BACKGROUND INFORMATION
The Company is in the business of researching, designing, developing,
marketing and selling ambulatory medical devices and services (collectively, the
"SERVICES"). The Company wishes to secure the employment services of the
Employee for a definite period of time and upon the particular terms and
conditions hereinafter set forth. The Employee is willing to be so employed.
Accordingly, the parties agree as follows:
OPERATIVE PROVISIONS
1. Employment and Term. The Company hereby employs Employee and the latter
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hereby accepts employment by the Company commencing on the date of this
Agreement (the "COMMENCEMENT DATE") and ending twelve (12) months after the
Commencement Date, unless sooner terminated as herein provided (the "INITIAL
TERM"). Thereafter, this Agreement may be renewed for additional one (1) year
terms upon the written agreement of the parties (each a "SUCCESSOR TERM"). Each
party agrees to notify the other party in writing at least sixty (60) days prior
to the expiration of this Agreement of its intention to renew or not to renew
this Agreement.
2. Duties. During the term of this Agreement, whether Initial or Successor,
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the Employee shall serve as Medical Director, and shall have such duties and
responsibilities customarily assigned to individuals serving in such position
and such other duties consistent with Employee's title and position as the Board
of Directors of the Company (the "BOARD OF DIRECTORS"), or the Chief Executive
Officer, specifies from time to time. The specific duties of Employee and the
scope of Employee's duties hereunder are set forth in more detail on Exhibit "A"
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attached hereto, which is hereby incorporated herein by reference (the "MEDICAL
DIRECTOR SERVICES").
During the term of this Agreement, Employee shall devote such time and
attention to the performance of the Medical Director Services to be rendered
hereunder as is reasonably necessary to satisfactorily perform the duties
contracted for hereunder, which shall be approximately twenty (20) hours per
week, and shall at all times use his best efforts to promote the interests and
reputation of the Company. The Medical Director Services shall be rendered on a
non-exclusive basis, but always with attention to performing the duties set
forth hereunder in a diligent, trustworthy, loyal, businesslike and efficient
manner, all for the purposes of advancing the business interests of the Company.
It is acknowledged that Employee will have flexibility in setting the hours
during which he will fulfill his duties and that Employee will not be expected
to adhere to a traditional work schedule.
3. Termination of Employment.
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a. Termination. The Company or the Employee may terminate Employee's
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employment at any time, with or without cause, by providing thirty (30)
days prior written notice thereof to the other party.
b. Termination by the Company for Cause. The Board of Directors or the
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Chief Executive Officer of the Company may terminate Employee's employment
hereunder for Cause (as such term is defined below), effective immediately,
upon furnishing written notice to the Employee. For purposes of this
Agreement, "Cause" shall mean a reasonable determination by the Board of
Directors of any of the following:
(i) The Employee's willful misconduct or gross negligence;
(ii) The Employee's conscious disregard of his obligations
hereunder or of any other written duties reasonably assigned to him by
the Board of Directors or the Chief Executive Officer of the Company;
(iii) The Employee's commission of any act involving fraud;
(iv) A determination by the Board of Directors that the Employee
has demonstrated a dependence upon any addictive substance, including
alcohol, controlled substances, narcotics or barbiturates; or
(v) The Employee's default in the due observance or performance
of any other covenant or agreement hereunder, which default continues
for a period of ten (10) days after written notice thereof is sent to
the Employee.
c. Death or Disability. The Employee's employment hereunder shall
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automatically terminate in the event of the Employee's death or Disability
(as such term is defined in Section 7(a) below).
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Except for any bonus or Fixed Compensation (as such term is defined below)
accrued, vested and unpaid as of the date of any termination under this, Section
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3, the Company shall be under no further obligation to the Employee or to his
heirs or personal representatives, and the Employee or his heirs or personal
representatives shall not be entitled to receive any other payments or benefits
under this Agreement.
4. Responsibilities and Obligations of the Employee. During the Term of
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this Agreement, including any renewals thereof, the Employee hereby agrees as
follows:
a. Services Provided. The Employee shall provide to the Company the
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Medical Director Services which are customary for and consistent with
relevant industry and professional standards. Employee also shall supervise
Services delivered by the Company to customers of the Company as are
required to be supervised by a physician by law or by good business and
clinical practice. A partial list of the specific services to be provided
are listed on Exhibit "A" attached hereto, which may be amended, from time
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to time, by mutual written agreement of the parties to include additional
Medical Directors Services. The Employee shall have the exclusive
responsibility to make all professional judgments and decisions with
reference to the Medical Director Services rendered for the Company and
regarding the Services provided to the clients of the Company. The Employee
agrees to work on Company premises approximately twenty (20) hours per
week.
b. Cooperation. Employee agrees to cooperate with the Company in its
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efforts to provide Services to its clients, and to cooperate with the
Company in maintaining any internal peer review, quality assurance, quality
improvement or similar program, utilization review, cost containment or
external audit systems or grievance procedures, as required by the
Company's reasonable rules; Employee shall provide appropriate input as to
the professional component of such processes and procedures.
c. License. Employee shall maintain in good standing, under applicable
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laws and regulations, a valid medical license. Employee also agrees to
notify the Company immediately, in writing, of any of the following:
(i) any change, actual or threatened, in the above matter, or of
any loss, suspension or material limitation of a medical license,
specialty qualification, medical staff membership, clinical privileges
at any hospital, or membership in a professional association;
(ii) any malpractice action filed against or decided adversely to
the Employee or any formal professional disciplinary action initiated
or taken against Employee, irrespective of any rights of Employee to
appeal; and this section shall survive termination of this Agreement
as to care delivered to any customers of the Company;
(iii) any public or private investigation or charges initiated or
filed against the Employee relating to the matters referred to in
Section 4(c)(ii) above, or matters which might impair the ability of
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the Employee to perform Medical Director Services under this
Agreement; and
(iv) any functional diminution of Employee's ability to provide
Medical Director Services under this Agreement.
d. Standards. Employee agrees to be bound by all of the reasonable
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standards of the Company that now exist, or which may be adopted. Nothing
in this, Section 4(e) shall limit the Employee's ability to make decisions
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about professional matters described in Section 4(a) above.
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e. Identification. Employee agrees that the Company may identify the
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Employee as the source of the Medical Director Services and supervisor of
Services as is reasonable or legally required.
f. Records; Information. Employee agrees to maintain such records and
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medical, financial and administrative information as may be necessary to
fulfill the Company's contractual obligations with clients and to fulfill
Medicare and Medicaid reporting requirements. The Employee shall provide
any relevant information as may reasonably be requested by the Company for
the maintenance of such records.
g. Accreditation. Employee agrees to take reasonable steps to come
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into compliance with any accreditation standards reasonably requested by
the Company.
h. Maintenance of Credentials. Employee agrees that the credentialing
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and re-credentialing of medical doctors is an ongoing process. If, at any
time, Employee fails to comply with this process, including criteria as now
exist or are hereafter amended, this Agreement may be terminated
immediately by the Company.
i. Compliance with Applicable Laws. Employee agrees to conduct himself
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in accordance with all applicable state and federal laws and regulations.
j. Employee Inventions. Each Employee Invention (as such term is
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defined in Section 7(a) below) will belong exclusively to the Company. The
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Employee acknowledges that all of the Employee's writing, works of
authorship and other Employee Inventions are works made for hire and are
the property of the Company, including any copyrights, patents, or other
intellectual property rights pertaining thereto. If it is determined that
any such works are not works made for hire, the Employee hereby assigns to
the Company all of the Employee's right, title, and interest, including all
rights of copyright, patent and other intellectual property rights, to or
in such Employee Inventions. The Employee covenants that he will promptly:
(i) disclose to the Company in writing any Employee Invention;
(ii) assign to the Company or to a party designated by the
Company, at the Company's request and without additional compensation,
all of the Employee's right to the Employee Invention for the United
States and all foreign jurisdictions;
(iii) execute and deliver to the Company such applications,
assignments, and other documents as the Company may request in order
to apply for and obtain patents or other registrations with respect to
any Employee Invention in the United States and any foreign
jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance (but without
expense to the Employee) in support of the Company's rights to any
Employee Invention.
5. Responsibilities and Obligations of the Company. During the Term of this
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Agreement, including any renewals thereof, the Company hereby agrees as follows:
a. Business. The Company shall advertise its business and enter into
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contracts with clients, which contracts might include the provision of
certain Services to be supervised by the Employee.
b. Facilities. The Company shall provide, at its sole expense,
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appropriate space and facilities, equipment and support staff such that
Employee can provide Medical Director Services under this Agreement.
Employee shall advise the Company of the commonly accepted professional
requirements for such space, equipment and support staff. The Employee
agrees to use such facilities for no purpose other than providing Medical
Director Services under this Agreement.
c. Compensation; Bonus; Benefits.
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(i) Base Compensation. For the services to be rendered by the
Employee under this Agreement, the Company shall pay Employee fixed
compensation as follows:
A. The Company shall issue to the Employee, as accrued
below, Six Thousand shares of the Company's common stock, par
value $.001, registered on the Company's S-8 Registration
Statement (the "SHARES"), as compensation for Medical Director
Services rendered from the Effective Date through December 31,
2005. The Shares shall accrue and be issued to Employee as
follows: Two-Thousand Shares (2,000) payable in three equal
installments, the first installment within a week of signing this
agreement and each of the other installments during the first
week of November 2005 and December 2005.
B. Thereafter, the Company shall compensate the Employee in
the amount of Two Thousand and No/100 Dollars ($2,000) per week
(inclusive of any amounts subject to federal or state employment
related withholding requirements), payable in weekly
installments, or otherwise as the parties may agree in writing
(the "FIXED COMPENSATION"). The Employee may, from time to time,
be eligible for a merit-based increase in his Fixed Compensation,
as the Board of Directors, in its sole discretion, shall
determine.
(ii) Stock Bonus. During the term of this Agreement, whether
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Initial or Successor, the Employee may be eligible for an annual stock
incentive bonus in an amount determined by the Board of Directors in
its sole discretion (the "BONUS"). The annual period used to measure
the bonus shall be the Company's fiscal year (the "BONUS YEAR"). The
Bonus, if earned and approved by the Board of Directors, in its sole
discretion, shall be paid on or before the earlier of: (a) the
completion of the Company's audited financial statements for such
Bonus Year; or (b) September 15 of the year following the applicable
Bonus Year. The Employee must be employed by the Company at the end of
the Bonus Year in order to be eligible for consideration to receive a
Bonus, provided, however, no Bonus, or portion thereof (regardless of
whether the Employee is employed at the end of a Bonus Year), shall be
paid to an Employee whose employment is terminated by the Company with
or without cause, or terminated by the Employee, after completion of
the applicable Bonus Year but prior to the date that the Bonus is
payable. Should the Employee die or become disabled, the bonus will be
paid on a pro-rata basis at the same time as all other bonuses.
(iii) Vacation; Employee Benefits. During the term of this
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Agreement, the Employee shall not be entitled to the following: (a)
paid vacation; or (b) life, medical, dental, disability or other
benefit plans maintained by the Company for employees.
6. Non-Disclosure; Prohibited Activities.
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a. Confidentiality; Return of Company Property. During Employee's
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employment with the Company, the Employee will be exposed to and will
receive confidential and proprietary information of the Company or its
Affiliates (as such term is defined in Section 7(a) below), including, but
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not limited to, technical information, computer software, know-how,
processes, business and marketing plans, strategies, training and
operational procedures, information concerning the Company's products,
promotions, development, financing, business policies and practices, and
other forms of information in the nature of trade secrets (collectively,
the "CONFIDENTIAL INFORMATION"). The Employee agrees that, during the
course of his employment with the Company and until the date ending ten
(10) years following the termination of his employment (including
expiration upon non-renewal), the Employee will keep Confidential
Information confidential and, except as necessary during the course of his
employment, will not disclose any Confidential Information to any person or
entity or use for his own account, directly or indirectly, any Confidential
Information. Upon the termination of employment, the Employee promptly will
supply to the Company all property that has been produced or received by
the Employee during his employment with the Company, whether or not related
to the Confidential Information. The obligations of this Section 6(a) will
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be in addition to any other agreements that the Employee has entered into
with the Company regarding the receipt of Confidential Information.
b. Non-Solicitation; Non-Disparagement. The Employee will not, during
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the term of this Agreement (whether the Initial or any Successor Term) and
for the two (2) year period following the termination of this Agreement for
any reason (including expiration of this Agreement upon non-renewal),
directly or indirectly: (i) solicit for employment, or employ any person
who, at the time of such solicitation or employment, is employed by the
Company or its Affiliates or was employed by the Company or its Affiliates
during the twelve (12) month period prior to the solicitation or employment
or induce or attempt to induce any person to terminate his or her
employment with the Company or its Affiliates; or (ii) engage in any
conduct or make any statement disparaging or criticizing the Company or any
Affiliate of the Company, or any products or services offered by the
Company or any Affiliate of the Company.
c. Enforcement. The Employee acknowledges that (i) the Confidential
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Information is a valuable asset of the Company and use of such Confidential
Information would allow the Employee to unfairly compete against the
Company, (ii) the restrictions contained in this Agreement are reasonable
in scope and are necessary to protect the Company's legitimate interests in
protecting its business, and (iii) any violation of the restrictions
contained in this Agreement will cause significant and irreparable harm to
the Company for which the Company has no adequate remedy at law. The
parties agree that damages at law, including, but not limited to, monetary
damages will or may be an insufficient remedy to the Company and that (in
addition to any remedies that are available to Company, all of which shall
be deemed to be cumulative and retained by Company and not waived by the
enforcement of any remedy available hereunder) the Company shall also be
entitled to obtain injunctive relief, including, but not limited to, a
temporary restraining order, a temporary or preliminary injunction or a
permanent injunction, to enforce the provisions of this Agreement, as well
as an equitable accounting of and constructive trust for all profits or
other benefits arising out of or related to any such violation, all of
which shall constitute rights and remedies to which the Company may be
entitled.
d. Divisibility of Covenant Period. If any covenant contained in this
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Agreement is held to be unreasonable, arbitrary or against public policy,
such covenant shall be considered divisible as to time, such that each
month within the specified period shall be deemed a separate period of
time, resulting in an intended requirement that the longest lesser time
determined not to be unreasonable, arbitrary or against public policy shall
remain effective and be specifically enforceable against the Employee.
e. Intent of Parties; Survival. The covenants of the Employee
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contained in this Section 6 shall be construed as agreements independent of
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any other provision of Employee's employment (including employment under
this Agreement), and the existence of any claim of the Employee against the
Company shall not constitute a defense to the enforcement by the Company of
any covenant contained in this section. The covenants contained in this
Section 6 shall survive termination, expiration, non-renewal or
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cancellation of this Agreement.
7. Miscellaneous Provisions.
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a. Definitions.
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(i) "Affiliate". The term "Affiliate," when used in this
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Agreement, shall mean any other person or entity that directly or
indirectly controls, or is under common control with, or is
controlled by the specified person or entity, and if a person,
any member of the immediate family of such individual. As used in
this definition, "control" (including, with its correlative
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meanings, "controlled by" and "under common control with") shall
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mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership
interests, by contract, or otherwise) and "immediate family"
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shall mean any parent, child, grandchild, spouse, or sibling.
(ii) "Disability". The term "Disability," when used in this
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Agreement, means that an independent physician or physician
selected by the Board of Directors or its designee has determined
that the Employee has been substantially unable to render to the
Company services of the character contemplated by Section 2
above, by reason of a physical or mental illness or other
condition, for more than sixty (60) consecutive days or for
shorter periods aggregating more than 120 days in any period of
twelve (12) consecutive months.
(iii) "Employee Invention". The term "Employee Invention,
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when used in this Agreement, means any idea, invention,
technique, modification, process, or improvement (whether
patentable or not), any design (whether registerable or not), and
any work of authorship (whether or not copyright protection may
be obtained for it) created, conceived, or developed by the
Employee, either solely or in conjunction with others, during the
Employment Period, or a period that includes a portion of the
Employment Period, that relates in any way to, or is useful in
any manner in, the business then being conducted or proposed to
be conducted by the Company, and any such item created by the
Employee, either solely or in conjunction with others, following
termination of the Employee's employment with the Company, that
is based upon or uses Confidential Information.
b. Notices. All notices under this Agreement shall be in writing and
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shall be considered as properly given or made if hand delivered, sent by
certified mail, overnight delivery service, facsimile or e-mail and
addressed to the location set forth in the preamble to this Agreement or to
such other address as any party may have designated by like notice
furnished to all other parties hereto. All notices shall be deemed
effective when deposited in the U.S. mail, received by an overnight carrier
or other delivery service or, when sent by facsimile or e-mail, when
confirmation of delivery is obtained by the sender.
c. Entire Agreement. This Agreement sets out the entire agreement
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between the parties hereto on the subject matter hereof and supersedes and
replaces any and all prior agreements, understandings or arrangements
between the parties, written or oral, with respect to the subject matter
hereof.
d. Amendments; Waivers. No amendment, modification or discharge of
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this Agreement, and no waiver hereunder, shall be valid or binding unless
set forth in writing and duly executed by the parties to this Agreement.
Any such waiver shall constitute a waiver only with respect to the specific
matter described in such writing and shall in no way impair the rights of
the party granting such waiver in any other respect or at any other time.
e. Headings; Counterparts. The headings of this Agreement are inserted
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for purposes of convenience and identification only, and are in no way
intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which
shall, together, constitute one and the same instrument. The exchange of
copies of this Agreement and any ancillary agreements, and of signature
pages, by facsimile transmission shall constitute effective execution and
delivery of this Agreement or the ancillary agreements, as applicable, as
to the parties and may be used in lieu of the original Agreement or
ancillary agreements, as applicable, for all purposes. Signatures of the
parties transmitted by facsimile shall be deemed to be their originals for
all purposes.
f. Severability. Every provision of this Agreement is intended to be
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severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the
validity of the remainder of this Agreement
g. Assignment. This Agreement, including, but not limited to the
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agreements contained in Section 6 regarding confidentiality,
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non-disparagement and non- solicitation shall be assignable by the Company
without the prior written consent of the Employee. This Agreement shall
inure to the benefit of and be enforceable by the successors and assigns of
the Company, including any successor or assign to all or substantially all
of the business and/or assets of the Company, whether direct or indirect,
by purchase, merger, consolidation, acquisition of stock or otherwise. This
is a personal service contract which shall not be assignable by the
Employee.
h. Choice of Law; Venue; Jurisdiction. The undersigned expressly
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agree, to the extent not otherwise barred by applicable law, that all terms
and provisions hereof shall be governed, interpreted and construed in
accordance with the laws of the State of Florida, and that venue, for all
purposes, shall lie in Orange County, Florida. The parties further agree
that, irrespective of any wording that might be construed to be in conflict
with this paragraph, this Agreement is one for performance in Florida. The
parties to this Agreement hereby agree that each waives any objection,
whether constitutional, statutory or otherwise, to a Florida court taking
jurisdiction of any dispute between them. By entering into this Agreement,
each party understands that he, she or it might be called upon to answer a
claim asserted in a Florida court.
i. Legal Fees and Costs. If a legal action is initiated by any party
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to this Agreement against the other party arising out of or relating to the
alleged performance or non-performance of any right or obligation
established hereunder, any and all fees, costs and expenses reasonably
incurred by each successful party or its legal counsel in investigating,
preparing for, prosecuting, defending against, or providing evidence,
producing documents or taking any other action in respect of, such action
shall be the obligation of and shall be paid or reimbursed by the
unsuccessful party.
j. Waiver. The waiver by the Company of a breach of this Agreement
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shall not be construed as a waiver of any subsequent breach by the
Employee. The refusal or failure of the Company to enforce the restrictive
covenants contained herein or contained in any other similar agreement
against any other employee, agent, or independent contractor of the
Company, for any reason, shall not constitute a defense to the enforcement
of this Agreement by the Company against the Employee, nor shall it give
rise to any claim or cause of action by such Employee against the Company.
k. Acknowledgments: The Employee acknowledges that he has been
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provided with a copy of this Agreement for review prior to signing it, that
the Company has encouraged the Employee to have this Agreement reviewed by
his attorney prior to signing it and that the Employee understands the
purposes and effects of this Agreement.
l. Execution of Additional Documents. Each party hereto agrees to
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execute and deliver such documents as may be necessary or desirable to
carry out the provisions of this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the date first written above.
TELZUIT MEDICAL TECHNOLOGIES, INC.
By:
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Its:
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EMPLOYEE
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(Print name)
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(Street Address)
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(Facsimile)
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(E-Mail)
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[Signature Page to Employment Agreement - Telzuit Medical Technologies, Inc.]
EXHIBIT "A" TO EMPLOYMENT AGREEMENT
DATED OCTOBER __, 2005
BY AND BETWEEN
TELZUIT MEDICAL TECHNOLOGIES, INC. AND XXXXXX XXXX XXXXXXXXXX
MEDICAL DIRECTOR SERVICES
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MEDICAL DIRECTOR SERVICES shall include (as required), but shall not be limited
to, the following:
1. Evaluating the training, credentials and experience of any health
practitioners desiring to perform Services for the Company;
2. Supervising and assuring the proper training of medical employees of
the Company in accordance with applicable federal or state rules and
regulations;
3. Assisting in drafting and approving standardized procedures and
protocols to be used by the medical employees of the Company, assuring that such
procedures and protocols comply with all applicable regulations, and reviewing
such protocols at least annually;
4. Being available by phone to discuss the business of the Company and
customer questions and concerns;
5. Meeting with health professionals as required to review the
Company's Services and quality improvement.
6. Meeting, as required, with Company's management to discuss the
Company's business operations.
7. Meeting with and participating on the Company's medical advisory
board.
8. Signing and being responsible for reporting to appropriate
governmental entities regarding Medicare and Medicaid;
9. Conducting systematic reviews of xxxxxxxx to ensure that the
xxxxxxxx are not fraudulent or unlawful;
10. Reviewing patient files; and
11. Rendering such other consulting services as may from time to time
be reasonably requested.
