EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 1st day of April 1998, by and between MEDICAL BILLING SYSTEMS, INC., (the
"Company"), a Florida corporation, whose address is 0000 Xxxxx Xxxx, Xxxxx
Xxxxxxx, Xxxxxxx 00000, and XXXXXX XXXXXXXX ("Executive"), an individual, whose
address is 0000 Xxxxx Xxxx, Xxxxx Xxxxxxx, Xxxxxxx 00000.
WITNESSETH:
WHEREAS, the Company recognizes the experience and knowledge of the
Executive in the accounting and factoring industry, and wishes to retain the
valuable services of the Executive,
WHEREAS, the Executive wishes to accept employment with the Company
under the terms and conditions set forth herein; and
WHEREAS, Executive is uniquely experienced and qualified to perform
certain employment services for Company, and the value of the services to be
provided by the Executive are considered to be so unique and vital to the
Company's business, that the parties are entering into this Agreement which
provides generous consideration for the Executive, performance obligations for
the Executive and protective covenants for the Company and Executive; and
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, and intending to be legally bound hereby, Company
and Executive agree as follows:
1. OFFICE AND DUTIES:
1.1 For the term of this Agreement as herein defined, Company hereby
employs, engages and hires Executive to serve as President of the Company. The
Executive shall have the powers and shall perform the specific duties as set
forth on the job description attached hereto as Attachment "A", and such other
duties as delegated to Executive by President and C.E.O. of the Company. The
Executive hereby agrees to such employment. It is hereby agreed between the
parties that primary responsibility for the supervision of the Executive shall
rest with the C.E.O of the Company, who shall review the Executive's
performance annually, make upward adjustment's to Executive's compensation and
award such other bonuses and employee benefits as he shall deem appropriate and
as set forth in this Agreement.
1.2 To assist Executive in performing Executive's duties, the Company
shall ensure that Executive is provided, in a timely manner, all reasonable
resources necessary for the accomplishment of Executive's duties.
2. TERM AND TERMINATION. This Agreement shall be effective April 6, 1998
("Effective Date"), and shall remain in full force and effect for three (3)
years from the Effective Date, unless the Agreement is terminated sooner by the
parties pursuant to subsection 2.1 or 2.2 below.
2.1 Termination With Cause. This Agreement may be terminated by the
Company of the Executive for the following:
(a) upon the other party's material default or breach of any
of its obligations hereunder, if such default or breach remains uncorrected for
a period of fifteen (15) days after the receipt by the defaulting party of
written notice of such default or breach;
(b) upon the gross negligence or willful misconduct of the
other party during the term of this Agreement, which is materially damaging to
the Company or Executive, if such gross negligence or misconduct remains
uncorrected for a period of fifteen (15) days after the receipt by the Company
or Executive of written notice of such negligence or misconduct;
(c) upon the conviction of the Company or the Executive
during the term of this Agreement of a crime involving breach of trust or moral
turpitude;
In the event that the Company discharges the Executive alleging
"cause" under this Section 2.1, such notice of discharge shall be accompanied
by a written and specific description of the circumstances alleging such
"cause". Further, in the event that the Company discharges the Executive
alleging "cause" under this Section 2.1, and it is subsequently determined
judicially that the termination was "without cause", then such discharge shall
be deemed a discharge without cause subject to the provisions of Section 2.2
hereof.
2.2 Termination Without Cause. The Company or the Executive may, upon
sixty (60) days prior written notice to the other party, terminate this
Agreement without cause at any time during the term of this Agreement. If the
Company terminates the Executive without cause, the Company shall pay the
Executive, as liquidated damages in lieu of all other claims arising directly
out of the Executive's employment, an amount equal to the Base Salary which
would otherwise be payable to Executive for the remaining term of the
Agreement, plus any bonuses which the Executive would have earned if the
Executive had remained employed by the Company through the end of the bonus
period then in effect, based upon a reasonable extrapolation of the financial
statements of the Company at the time of such termination. Any such payments
shall, at the option of the Company, be made either in equal bi-weekly
installments over the remaining term of this Agreement, or in a lump sum cash
payment on the date of termination. Further, upon termination of the Executive
without causes, all benefits of the Executive which are in effect at the time
of such termination shall remain in full force and effect through the end of
the original term of this Agreement.
The Liquidated damages payments and benefits due to the Executive if
terminated without cause as set forth above, are hereby unconditionally
guaranteed in full by Medley Credit Acceptance Corporation, the parent
corporation to the Company.
2.3 Effect of Termination. In the event of any expiration or
termination of this Agreement, such expiration or termination shall not effect
any of the obligations of any party
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arising prior to the date of such expiration or termination, nor shall such
expiration or termination effect any allegations, representations, promises or
covenants contained herein which are expressly made to extend beyond the term
of this Agreement. The Executive shall resign from any office that the
Executive may hold in the Company, and shall cooperate in the transfer of
Executive's work responsibilities to such consultants or employees of Company
as may be designated by the Company.
3. COMPENSATION.
3.1 Base Salary. For all services rendered hereunder during the term
of this Agreement, the Executive shall be paid an annual base salary ("Base
Salary") of One Hundred and Twenty-Five Thousand Dollars ($125,000.00) per
year. The Company and the Executive agree that such base salary is reasonable
and is based upon the fair market rate in the marketplace for similar services
by similarly qualified executives. The Base Salary shall be paid in bi-weekly
installments in accordance with the Company's usual payroll practices. The
Executive shall also be eligible to receive an annual bonus based upon specific
Company financial performance criterion to be mutually developed by the
parties.
3.2 Benefits. During the term of this Agreement, the Executive will be
entitled to those executive benefits as set forth on Attachment "B" to this
Agreement, plus any other benefits consistent with personnel policies and
procedures which now exist or which may be developed for similar executive
employees during the term of this Agreement.
3.3 Vacation. Executive shall be entitled to three (3) weeks annual
vacation leave with pay. Vacation shall be scheduled at reasonable times not in
conflict with Executive's duties hereunder.
4. EXECUTIVE REPRESENTATIONS. Executive represents to Company that:
4.1 There are no restrictions, agreements or understandings whatsoever
to which Executive is a party that would prevent or make unlawful the
Executive's execution of this Agreement or the Executive's employment
hereunder.
4.2 Executive's execution of this Agreement and Executive's employment
hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which Executive is a party or by which
Executive is bound.
4.3 Executive will at all times faithfully, industriously and to the
best of Executive's ability, experience and talents perform all of the duties
that may be required of Executive pursuant to the express and implied terms of
this Agreement.
5. CONTEMPORANEOUS BUSINESS ACTIVITY. In order to assure the consistency of
services provided by Executive, Executive agrees, during the effective terms of
this Agreement, that
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Executive shall devote such full-time attention to the performance of the
Executive's duties under this Agreement as necessary to ensure Executive's full
and complete compliance with Executive's covenants under this Agreement.
6. NON-COMPETITION/DISCLOSURE.
6.1 Non-Competition. During the term of this Agreement, the Executive
shall not without the prior written permission of the Company:
(a) Directly or indirectly induce or attempt to influence any
of Company's employees or other staff, including but not limited to Company's
agent, representatives and independent contractors, to terminate their
relationship with the Company;
(b) Directly or indirectly induce or attempt to influence any
of the Company's business associates, clients, customers, consultants or
referral sources to terminate their relationship with the Company;
(c) Divert or take away any corporate business or
professional opportunity of Company that the Executive may become aware of
during the term of this Agreement, whether competitive or not competitive;
(d) Engage in or have any interest in any sole
proprietorship, partnership, corporation or other business or be employed by or
work for any other person or business entity (whether as employee, officer,
director, partner, agent, security holder, consultant or otherwise) that
directly or indirectly engages primarily in a business in competition with the
Company.
6.2 Non-disclosure. Executive, by virtue of Executive's employment,
has been and will continue to be introduced to confidential and/or proprietary
information concerning the Company and its operations. Because unauthorized
disclosure of such confidential and/or proprietary information will harm the
Company, the Executive shall not, except with the Company's express, prior,
written consent, directly or indirectly, communicate, disclose, divulge or use,
for the benefit of any person or entity other than the Company, any information
regarding the business, customer and/or client lists of Company or any other
knowledge or information whether confidential or proprietary of or about the
Company acquired by the Executive during the term of this Agreement.
This Executive further agrees that all work product produced by the
Executive during the term of Executive's employment shall remain the property
of the Company, and may not reproduced or communicated, disclosed or divulged
to any person or entity other than the Company.
6.3 Remedies. The Executive agrees that the Company's remedies at law
for the Executive's breach of any of these non-competition/non-disclosure
provisions are inadequate and
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that the Company may seek relief in equity by way of an injunction restraining
any violation of the non-competition/non-disclosure provisions by the
Executive.
If any period of time or geographic area relative to these
non-competition/non-disclosure provisions should be adjudged to be unreasonable
in any proceedings, then the period of time or geographic area shall be reduced
by such amount of time or distance so that such restrictions may be enforced
for such time or geographic area as is adjudged to be reasonable by a court of
competent jurisdiction.
7. MISCELLANEOUS.,
7.1 Indulgences, Etc. The failure or any delay on the part of the
Executive or Company to exercise any right, remedy, power or privilege under
this Agreement shall not operate as a waiver thereof. A single or partial
exercise of any right, remedy, power or privilege shall not preclude any
further exercise of the same or of any other right, remedy, power or privilege.
A waiver of any right, remedy, power or privilege with respect to any
occurrence shall not be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence.
7.2 Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the State of Florida.
7.3 Notice. All notices, requests, demands and other communications
required or permitted under this Agreement and transactions contemplated herein
shall be in writing and shall be deemed to have been duly given, made and
received when delivered against receipt or when sent by United States certified
or registered mail, return receipt requested, postage prepaid, addressed as set
forth below in subparagraphs (a) and (b). In addition, notice by mail shall be
air mail if posted outside the continental United States. Executive and Company
may alter the address to which communications of copies are to be sent by
giving notice of such change of address in conformity with the provisions of
this paragraph for the giving of notice.
(a) If to Company:
Medical Billing Service Systems, Inc.
0000 Xxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn: C.E.O.
(b) If to Executive:
Xxxxxx Xxxxxxxx
0000 Xxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
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7.4 Binding Nature of Agreement. This Agreement shall be binding upon
and inure to the benefit of Company and its successors and assigns and shall be
binding upon and inure to the benefit of Executive, and Executive's heirs and
legal representatives.
7.5. Provisions Separable. The provisions of this Agreement are
independent of and separable from each other. No provision shall be rendered
invalid or unenforceable by virtue of the fact that for any reason, any one or
more of them may be invalid or unenforceable in whole or in part.
7.6 Entire Agreement. This Agreement contains the entire understanding
between Company and Executive with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as
herein contained. The express terms hereof control and supersede any course of
performance or usage of the trade or professions inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by any
agreement in writing.
7.7 Section Headings. The section headings in this Agreement are for
convenience only and form no part of this Agreement and shall not affect its
interpretation.
7.8. Gender, Etc. Words used in this Agreement, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context requires.
7.9 Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sunday or
holidays; provided, however, that if the final day of any time period falls on
a Saturday, Sunday or holiday, then the final day shall be deemed to be the
next day which is not a Saturday, Sunday or holiday.
7.10 Counterparts. This Agreement may be executed two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute but one and the same Agreement.
7.11 Assignment. No assignment by Executive of this Agreement or the
rights and obligations hereunder shall be valid without the specific written
consent of Company, which consent may be arbitrarily withheld. This Agreement
may be assigned by the Company to an entity under its control, directly or
indirectly, or the control of its principals without the consent of the
Executive, provided Executive's security herein is not impaired by the
assignment.
7.12 Construction. This Agreement shall be construed without regard to
any presumption or other rule requiring construction against the party causing
this Agreement to be drafted.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement or
caused their duly authorized representatives to execute this Agreement on the
day first stated above.
COMPANY: EXECUTIVE:
MEDICAL BILLING SERVICE XXXXXX XXXXXXXX
SYSTEMS, INC.
------------------------------------ --------------------------
XXXXXX X. PRESS XXXXXX XXXXXXXX
C.E.O.
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ATTACHMENT "A"
JOB DESCRIPTION
(To Be developed)
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ATTACHMENT "B"
BENEFITS
MAXIMUM COMPANY CONTRIBUTION TO 401(K)
FULL COMPANY-PAID HEALTH INSURANCE FOR EXECUTIVE AND FAMILY
REASONABLE COMPANY EXPENSE ALLOWANCE
COMPANY-PAID LIFE INSURANCE
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