EMPLOYMENT AGREEMENT (Executive Level)
(Executive
Level)
AGREEMENT,
dated as of January 1, 2008, between MDwerks, Inc., a Delaware corporation
(the
"Company"), and the Executive identified on Exhibit
A
attached
hereto (the "Executive").
WITNESSETH:
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 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"), the President
and
Chief Executive Officer of the Company and any other senior executive officer
of
the Company, such duties to be consistent with his position. The Executive
shall
obey the lawful directions of the Board, the Company's President and Chief
Executive Officer and any other senior executive officer of the Company 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.
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(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. Such vacation shall be taken at such time or times as
will
be mutually agreed between the Executive and the Company. Vacation not taken
during a calendar year may not be carried forward.
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.
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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, the
Executive's continuing and intentional breach, non-performance or non-observance
of any of the terms or provisions of this Agreement, but only after notice
by
the Company of such breach, nonperformance or nonobservance and the failure
of
the Executive to cure such default as soon as practicable (but in any event
within ten (10) days following written notice from the Company), the conduct
by
the Executive which the Board in good faith determines could reasonably be
expected to have a material adverse effect on the business, assets, properties,
results of operations, financial condition, personnel or prospects of the
Company (within each category, taken as a whole), but only after notice by
the
Company of such conduct and the failure of the Executive to cure same as soon
as
practicable (but in any event within ten (10) days following written notice
from
the Company), 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.
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(iii) In
the
event the Executive dies while employed pursuant hereto, on the day in which
his
death occurs.
(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; provided
that, in
the case of termination pursuant to Section 7(b)(ii), the Executive will receive
his then current salary until such time (but not more than 90 days after such
disability) as payments begin under any disability insurance plan of the
Executive.
(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 60 days prior written notice of such determination
(which notice may be given either prior to or after such Expiration Date, but
if
notice is given any later than 60 days prior to the Expiration Date, then the
term of this Agreement shall be extended until the date which is 60 days after
the date such notice is given), during which time the Executive may seek
alternative employment while still being employed by the Company.
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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 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.
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(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.
(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.
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(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.
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(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 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.
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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: |
|
Xxxxxxxx
Center, Suite I
0000
X.X. 0xx
Xxxxxx
Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention:
Chairman of the Board
|
| with a copy to: |
|
Xxxxxxxxx
Traurig, LLP
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx, 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.
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(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) 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.
(d) 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.
(e) 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 Xxxxxxxx 0, 0 xxx 00), xxxxx xx 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.
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The
parties indicate their acceptance of the foregoing arbitration requirement
by
initialing below:
|
/s/
VC
|
/s/
SW
|
|||
|
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: | /s/ Xxxxxxx Xxxxxxxxx | |
|
Name: Xxxxxxx Xxxxxxxxx |
||
| Title: Chief Financial Officer | ||
| EXECUTIVE | ||
| |
|
|
| /s/ Xxxxxxx X. Xxxxx | ||
|
Name: Xxxxxxx X. Xxxxx |
||
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