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EXHIBIT 10.11
NUTRITION COUNSELOR
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made effective as of the
________ day of _______________, 19__, by and between _____________, a
__________ corporation with an office at ______________ ("Employer"), and
__________________________________, an individual residing at ("Employee").
W I T N E S S E T H:
WHEREAS Employer is a corporation duly licensed in the State of
________________ and which provides healthcare services at its office located at
__________________________ (the "Office") and
WHEREAS Employer wishes to employ Employee, an individual who is
actively practicing and is duly licensed to provide nutrition counseling in the
State of ____________, as an employee of Employer to provide nutrition
counseling services subject to the rules thereof and the standards of the
profession in effect in the State of _____________, and
WHEREAS Employee desires to render such services to Employer,
NOW, THEREFORE, in consideration of the representations, warranties and
mutual covenants set forth herein, the parties hereto hereby agree as follows:
SECTION I - REPRESENTATIONS
1. Representations. Upon the terms and subject to the conditions set
forth herein, Employer hereby employs Employee as a licensed nutrition counselor
and Employee hereby accepts such employment and represents to Employer that
he/she is presently licensed and qualified to engage in the practice of
nutrition counseling in the State of ______________.
2. Management of Practice. Employee recognizes, acknowledges and agrees
that Complete Wellness Centers, Inc. or designee ("Management Company") shall
manage all non-therapeutic aspects of Employer's practice.
3. Independent Judgement. Although Employee is an employee of Employer
under the terms of this Agreement, Employee shall retain independent discretion
and exercise independent judgement in the manner and means of providing services
in regard to the diagnosis and treatment of patients treated.
4. Professional Conduct. Employee will at all times conduct
himself/herself in compliance with all federal, state and local laws, rules and
regulations, canons of professional ethics, and the non-nutrition counseling
rules and regulations of the Employer.
SECTION II - SCOPE OF DUTIES
1. Services. Employee will render his/her services to Employer as a
licensed nutrition counselor and in such capacity he/she shall perform such
duties as are customary in the practice of nutrition counseling and as are
assigned to him/her from time to time by Employer. Such duties shall include but
not be limited to conducting office examinations and consultations, obtaining
such continuing professional education as is necessary to maintain professional
qualifications, and performing evening and weekend on-call coverage as shall be
reasonably assigned to him.
2. Additional Locations. Employee will serve at such other locations as
may be directed by Employer (the "Other Location"). Such Other Location shall
not be located more than twenty-five (25) miles from the Office, unless mutually
agreed upon and designated in writing.
3. Billing. The Employer shall perform, or cause to have performed,
billing and collection functions for all services provided by the Employee. The
Employee hereby authorizes the Employer to accept, or refuse to accept, on
Employee's behalf, any assignment of insurance benefits from any patient
receiving service from the Employee pursuant to this Agreement. At Employer's
request, Employee shall list and designate with such insurance or third party
payor the Employer's address and designated officer as the sole address to which
all payment(s) or payment voucher(s) for services performed by the Employee
shall be mailed. This Agreement constitutes an assignment by the Employee to the
Employer of all funds owing or collected for services rendered by the Employee
pursuant to this Agreement (the "Receivables") so long as such assignment is not
in violation of any law or statute. The Employee shall take all steps necessary
to assist in the billing and collection of funds due for services rendered by
the Employee. All funds collected with respect to services provided pursuant to
this Agreement shall be the exclusive property of the Employer.
4. Post-Termination Cooperation Re Receivables. For a period of two (2)
years after termination of this Agreement, Employee shall cooperate fully and
assist Employer in efforts to collect all Receivables for services performed by
Employee while employed by Employer, including without limitation, transferring
all funds actually paid or made payable to Employee with respect to such
Receivables, and appearing in any court of law within which any cause of action
is brought to seek enforcement of Employer's right to collect on any and all
such Receivables. Employee agrees to notify Employer, in writing, of a change of
address of Employee's business or residence during such two (2) year period so
that Employer will be able to locate Employee to enforce the terms of this
Section . Employee shall receive up to two hundred and fifty dollars ($250.00)
per day for providing assistance under the terms of this Section and, in
addition, Employer shall reimburse Employee for all reasonable costs and
expenses incurred by Employee, as approved in advance in writing by Employer,
relating to such assistance. The terms and conditions of this Section shall
survive termination of this Agreement.
SECTION III - TERM OF EMPLOYMENT
1. Term. The term of employment under this Agreement (the "Employment
Term") shall be for the one-year period commencing the date hereof, unless
earlier terminated under the terms hereof; provided, that Employee must complete
and submit any credentialling application provided to Employee by Employer in
order for this Agreement to become effective and for the Employment Term to
commence.
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2. Probationary Term. During the first one hundred twenty (120) days of
the Employment Term of this Agreement, Employee acknowledges and agrees that
he/she shall be on probation, and that during such time period or within fifteen
(15) days after the conclusion of such probationary period, this Agreement may
be terminated at the sole discretion of Employer with or without cause.
Thereafter, this Agreement shall remain in effect for the term set forth in
Section III 1 hereof, unless earlier terminated as provided for herein.
SECTION IV - COMPENSATION AND BENEFITS
1.Compensation. Employee shall be compensated at a rate of $___________
per __________ less any appropriate deductions, payable as earned, payable in
accordance with Employer's normal payroll policies during the term of this
Agreement (the "Salary").
2. Benefits. Employee shall be entitled to those benefits, if any, as
described in Exhibit "A" attached hereto.
3. Sole Benefits. Employee acknowledges that the compensation and
benefits established pursuant to this Section shall be the sole consideration
provided by Employer for the services provided under the terms of this
Agreement. Employee shall not solicit or accept payment from any patient,
government entitlement program or third party payor for services rendered
pursuant to this Agreement.
4. Reimbursement. Expenses incurred by Employee on Employer's behalf at
Employer's discretion shall be reimbursed in full where approved in writing, in
advance. In the event an expense paid on behalf of, or reimbursement contributed
to, Employee is determined not to be an allowable tax deduction or credit of
Employer and such determination is acceded to by Employer or rendered final by
the state or federal taxing authority or court with final jurisdiction, Employee
shall, forthwith, upon ten (10) days' prior written notice and without regard to
whether this Agreement shall then be terminated, reimburse Employer for the full
amount of the out-of-pocket loss incurred by Employer as a result of any such
disallowance.
SECTION V - INSURANCE
1. Malpractice Insurance. Employer shall at its own cost and expense,
provide and keep in force a malpractice insurance policy or policies of standard
form in the State of _____________, with limits of not less than One Million
($1,000,000.00) Dollars per occurrence and Three Million ($3,000,000.00) Dollars
in the aggregate.
SECTION VI - PATIENT RELATIONSHIP
1. Confidential Information. Employee acknowledges and agrees that
he/she will have access to certain confidential information and trade secrets of
the Employer and that such information constitutes valuable, sole, special and
unique property of Employer. Employee further acknowledges and agrees that
Employee will not, at any time during or after the term hereof, in any fashion,
form, or manner either directly or indirectly, divulge, disclose or communicate
to any person, firm, or corporation in any manner whatsoever, the terms and
conditions of this Agreement or any information of any kind, nature or
description concerning any matters affecting or relating to the business of
Employer, including, without limiting the foregoing, the names of patients, the
prices which Employer pays for goods and services and/or sells goods or
services, Employer's manner of operation of Employers business or its plans or
processes, or any other data or information of any kind, nature or description
which affects or relates to Employer's business without regard to whether any or
all of the foregoing would be deemed confidential information or a trade secret
under applicable state law ("Confidential Information").
2. Patient Accounts. All patients shall be and remain the patients of
Employer provided that Employee shall exercise independent responsibility for
the care and treatment of such individuals to the extent professional services
are rendered pursuant to this Agreement. In the event any patient is deemed by
operation of law or otherwise to be patient of Employee, Employee shall and
hereby does (i) irrevocably assign all Receivables from the treatment of such
individuals to Employer, and (ii) irrevocably appoints Employer as the agent and
true and lawful attorney-in-fact, with full power of assignment and substitution
where legally permissible, to xxxx patients on Employee's behalf; to collect
Receivables from all payors; and to take possession of and endorse in Employee's
name, all notes, drafts or instruments received by way of payment for such
services (except where prohibited by law or regulation).
(a) Employee agrees that each patient account has a reasonable
value to Employer of five thousand dollars ($5,000.00), and for each record, or
any portion thereof, which Employee attempts to obtain and/or actually does
obtain in contravention of this Section , the sum of Five Thousand dollars
($5,000.00) shall be paid to Employer as liquidated damages. The referenced sum
shall be due and payable immediately upon the date of the violation or attempted
violation of this Section , with such sum to bear interest at the maximum
allowable legal rate from the due date to the actual date of payment in full.
(b) Paragraph VI 2a notwithstanding, Employee shall maintain
adequate and complete records with regard to services rendered to patients. Upon
the termination of Employee's employment hereunder, all patient files, records
and charts shall remain with Employer, and Employee shall have no right to
retain such materials; provided, however, that nothing herein contained shall be
construed to prevent any patient from requesting transfer of his/her records to
Employee upon the termination of this Agreement, and such materials or
photocopies thereof shall be delivered to Employee upon the written request of
the subject patient, which request shall be honored promptly upon the payment to
Employer by Employee of all reasonable costs, if any, for reproduction and
mailing of any such materials. Employer will send invoices to all patients for
any services rendered by Employee prior to termination of his/her employment
hereunder, and Employer will have the right to collect the full amounts thereof
for its own account.
SECTION VII - COVENANT NOT TO COMPETE
During the term of this Agreement and thereafter the Employee
shall not take any action whatsoever which may or might disturb the existing
business relationship of the Employer with any of Employer's patients.
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1. Restrictions. The Employee agrees that in the event Employer and
Employee fail to extend this Agreement, then Employee covenants and agrees that
for a period of one (1) year after the termination of his/her employment
hereunder (the "Restricted Period"), he/she will not: (i) practice from an
office located within a five (5) mile radius if in a rural area, two (2) mile
radius if in a suburban area, and ten (10) block radius if in an urban center
from Employer's Office or (ii) solicit, directly or indirectly, for treatment by
Employee, or by any other doctor other than those employed by or who are
shareholders of Employer, any persons who were patients of Employer during the
Employment Term.
2. Irreparable Damages. The parties hereto acknowledge and agree that
consideration has been given to the nature and scope of the business and
activities of Employer and that the covenants contained in this Section
concerning territorial, substantive and time limitations are in all respects
fair and reasonable in view of the facts involved. In the event that any court
shall determine that the time, substantive and territorial limitations contained
herein are not fair and reasonable, this Agreement shall nevertheless be
enforced as to such time, substantive and territorial limits as are reasonable.
The parties further agree that Employer will be irreparably damaged in the event
of a breach of any of the covenants set forth in this Section, and, accordingly,
Employee agrees that such covenants shall be specifically enforceable and that,
in addition to any other remedies, any breach or threatened breach thereof may
be enjoined by any court of competent jurisdiction located in the State of
_____________.
3. Injunctive Relief. The parties further agree that in the event of
the breach of any provision of this Agreement, and particularly Section VII
hereof, Employer shall be entitled to a permanent injunction or similar court
order enjoining the Employee from acting in a fashion contrary to Section VII
and that pending such determination the Employee shall accede to a temporary
restraining order, without prejudice to any other rights that the Employer may
have, all at Employee's expense.
4. Independent Agreement. The covenants contained in Section VII shall
be construed as an independent agreement and the existence of any claim which
the Employee may have against the Employer will not constitute a defense to the
enforcement by the Employer, by injunctive relief or otherwise, of the
provisions of Section VII.
SECTION VIII - TERMINATION OF EMPLOYMENT
1. Disability of Employee. Notwithstanding anything in this Agreement
to the contrary, Employer is hereby given the option to terminate Employee's
employment in the event that Employee, during the employment term hereunder,
becomes disabled to the extent that he/she is unable fully to perform his/her
customary duties hereunder ("Disability"). Such option shall be exercised by
Employer by giving notice, pursuant to Section IX 4 herein, to Employee of
Employer's intention to terminate Employee's employment due to his/her
Disability. Such termination shall take place on the fifteenth (15th) day
following the mailing of such notice.
For purposes of this Agreement, Employee shall be deemed to
have become Disabled if, during the term of his/her employment hereunder, he/she
is disabled as defined in Employer's disability plan, if any; provided, however,
in the event that Employer does not maintain a disability plan, then to
establish a status of Disability there must be a written certification of such
Disability by a qualified medical doctor agreed to by Employer and Employee. In
the absence of agreement, each party shall nominate a qualified medical doctor
and the two doctors shall select a third doctor, who shall make the
determination as to the Employee's Disability.
2. Termination by Employer for Cause. Notwithstanding any other
provision of this Agreement, Employer may terminate Employee's employment for
cause immediately upon the determination and notification to Employee thereof
("Cause Termination Date"). Upon such determination and notification, Employee's
right to receive the Salary shall cease, and Employee shall be entitled to
receive only such Salary as shall have been earned through the period ending
with the Cause Termination Date.
The term "Cause" as used herein shall mean that Employee (i)
has committed a serious act (such as embezzlement) against Employer, with the
intention of enriching himself/herself at the expense of Employer, or has failed
to substantially perform his/her duties and responsibilities hereunder or
otherwise committed a material breach of any of the terms of this Agreement, or
has been convicted of any criminal act involving moral turpitude; or (ii) has
been found, in the reasonable belief of Employer, to suffer chronic dependency
on drugs or alcohol; or (iii) in carrying out his/her duties hereunder, has
committed gross neglect or gross misconduct; or (iv) has become legally
disqualified to practice nutrition counseling in the State of ______________,
or has been put on probation by the _____________ licensing authority for
nutrition counselors, or has had his/her license to practice nutrition
counseling in the State of _____________ suspended or revoked; or (v) is unable
to obtain nutrition counseling malpractice insurance covering his/her
professional conduct, in coverage amounts and/or with insurance carriers
acceptable to Employer and upon such terms as are acceptable to the Employer or
(iv) there has occurred a material adverse change in the business or economic
prospects of Employer as determined solely by Employer; or (vii) Employer has
ceased providing services at the Office and Employee's services are not required
at any Other Location.
3. Voluntary Termination. Either Employer or Employee may terminate the
employment relationship provided for under the terms of this Agreement, for any
reason and at any time during the Employment Term, on no less than thirty (30)
days prior written notice to the other party hereto, with the last day of such
notice period (unless such period shall be shortened or extended by mutual
agreement) being the Termination Date. In the event of such voluntary
termination, Employee shall receive a pro rata portion of the Salary, and pay
for accrued but unused vacation days, through and including the Termination
Date. Any rights and benefits Employee may have under any employee benefit plans
and programs of Employer shall be determined in accordance with the terms of
such plans and programs.
SECTION IX - MISCELLANEOUS
1. Specific Performance. It is agreed that any breach or evasion of any
of the terms of this Agreement by either party hereto will result in immediate
and irreparable injury to the other party, and recourse to injunction and/or
specific performance, as well as to
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all other legal or equitable remedies to which such injured party may be
entitled, will be authorized under such circumstances.
2. Indemnity. Employee hereby agrees to indemnify, defend and hold
Employer harmless from and against any an all costs, losses, claims, demands and
liabilities, including reasonable attorneys' fees which arise out of or relate
to any breach by Employee of any of the terms and conditions in this Agreement;
any negligent or intentional wrongful act of Employee; any act or omission of
Employee which constitutes professional negligence; or any other act of Employee
not authorized under the terms of this Agreement. If Employer or any of its
shareholders or affiliates is made a party to litigation or obligation or
otherwise incurs any loss or expense as a result of Employee's activities
unconnected with Employer's business, Employee shall forthwith upon demand,
reimburse Employer or such individuals for any and all expenses incurred as a
result thereof.
3. Waiver of Breach. The parties understand and intend that each
restriction agreed to by Employee under the terms of this Agreement shall be
construed as separable and divisible from every other restriction, and that the
unenforceability, in whole or in part, of any other restriction will not affect
the enforceability of the remaining restrictions. It is further understood that
one or more, or all of such restrictions, may be enforced in whole or in part as
the circumstances warrant. No waiver of any one breach of the restrictions
contained in this Agreement shall be deemed a waiver of any future breach.
Employee hereby acknowledges that he/she is fully cognizant of the restrictions
set forth in this Agreement and agrees that these provisions shall survive the
termination of this Agreement for any reason.
4. Notices. Except as otherwise provided herein, all requests, demands
and other communications required or permitted hereunder shall be in writing and
shall be deemed to have been given if delivered personally, by prepaid telex,
telegram, facsimile ("FAX") or mailed first class, postage prepaid, certified
United States Mail, return receipt requested, to the party who is to receive
such notice, request, demand or communication at such party's address as set
forth on the signature page hereof. Any party hereto may change its address for
notice by giving to the other party written notice of such change. Any notice
given hereunder shall be effective (i) if delivered personally, when delivered,
(ii) if sent by telex, telegram or FAX, twenty-four (24) hours after sending,
and (iii) if mailed, seventy-two (72) hours after the date of the mailing.
5. Commitments Binding Only Upon Written Consent. Notwithstanding any
provision herein to the contrary, it is expressly understood and agreed that
Employee shall not have the right to make any contracts or commitments for or on
behalf of Employer without the prior written consent of Employer.
6. Time of Essence. Time is of the essence in regard to the obligations
established hereunder. The parties hereto agree that they shall cooperate in
good faith to accomplish the objectives of this Agreement and, documents and
take such further action as may be reasonably necessary to effectuate the terms,
conditions and purposes of this Agreement.
7. Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof, supersedes any prior
agreement between the parties, and may not be changed or terminated orally. No
change, termination or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party against whom the same is
sought to be enforced.
8. Successors and Assigns. The provisions of this Agreement are
intended only for the regulation of relations among the parties hereto. This
Agreement is not intended for the benefit of creditors or other third parties,
and no rights are granted to such individuals or entities except where expressly
referenced herein. However, Employer may, in its sole discretion, assign this
Agreement by sale or otherwise, and the benefits and obligations of this
Agreement shall inure to its successors and/or assigns.
9. Non-Exclusive Rights. The rights and the obligations of the Employer
under this Agreement are non-exclusive, and this Agreement shall not be
construed to prevent the Employer from simultaneously retaining, contracting
with, or otherwise obtaining professional services from any other person or
entity.
10. Captions. The headings and captions herein are intended for
convenience reference only, and shall not be deemed to be interpretative of the
contents of such sections.
11. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
12. Governing Law. All matters concerning the validity and
interpretation of and performance under this Agreement shall be governed by the
laws of the State of ____________ (without regard to the conflict of laws
principles thereof).
13. Arbitration. Any controversy, dispute or disagreement arising out
of or relating to this Agreement, or the breach thereof, shall be settled by
arbitration, which shall be conducted in the County of ___________, State of
____________, in accordance with the National Health Lawyer's Association
("NHLA") Alternative Dispute Resolution Service Rules of Procedure for
Arbitration, and judgment on the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof.
14. No Act Contrary To Law. Nothing herein shall be construed so as to
require the commission of any act contrary to law, and wherever there is any
statute, law, ordinance or regulation which is inconsistent with this Agreement,
such statute, law, ordinance or regulation shall prevail, and, in such event,
the provision herein in conflict automatically shall be curtailed, limited or
eliminated to the extent necessary to bring it within legal limitations.
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IN WITNESS WHEREOF, the parties hereto have executed this document or
caused its execution by a duly authorized officer, all as of the day and year
first above written.
By: ______________________________
, President
Employee
By: _______________________________
Complete Wellness Center, Inc.
By: _______________________________
E. Xxxxxx Xxxxxx, President
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EXHIBIT "A"
