Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
January 1, 1998 by and between NATIONAL MEDICAL FINANCIAL SERVICES
CORPORATION, a Nevada corporation (NMFS"), and XXXXXX XXXXXXXX, a resident of
the State of New York ("Maybruch").
W I T N E S S E T H:
WHEREAS, NMFS is engaged in the provision of medical billing and
accounting services to the public; and
WHEREAS, as of the date hereof, Maybruch sold the assets of his
accounting business to NMFS pursuant to the terms of an asset purchase
agreement dated as of the even date hereof ("Accounting Business Asset
Purchase Agreement");
WHEREAS, Maybruch is the sole shareholder of Shoreline Medical Billing
Systems, Inc. ("Shoreline"), which sold its assets to NMFS pursuant to the
terms of an asset purchase agreement dated as of the even date hereof
("Shoreline Asset Purchase Agreement");
WHEREAS, pursuant to the terms of the Accounting Business Asset Purchase
Agreement, NMFS and Maybruch entered into a noncompetition agreement dated as
of the even date hereof ("Noncompetition Agreement"), restricting Maybruch's
ability to engage in certain businesses within certain time periods and
within specified geographical areas and subject to certain conditions;
WHEREAS, to induce the respective parties to enter into the Accounting
Business Asset Purchase Agreement and the Shoreline Asset Purchase Agreement,
NMFS and Maybruch have agreed that Maybruch will continue to remain active in
the medical billing and accounting services business by rendering services to
NMFS on the terms and conditions set forth in this Agreement; and
WHEREAS, NMFS, Shoreline and Maybruch have agreed under certain
circumstances assets acquired by MNFS under the Accounting Business Asset
Purchase Agreement and the Shoreline Asset Purchase Agreement may be
reacquired by Seller and Shoreline, respectively, and in furtherance of that
agreement, Seller, Shoreline and NMFS have executed a Buy-Back Agreement
dated as of the even date hereof ("Buy-Back Agreement").
NOW, THEREFORE, in consideration of the mutual promises in this
Agreement and the payments to be made or received by each party, NMFS and
Maybruch agree as follows:
ARTICLE I. DEFINITIONS
Capitalized terms used in the Agreement shall have their defined meaning
throughout the Agreement. The following terms shall have the meanings set
forth below, unless the context clearly requires otherwise.
1.1 Businesses means (1) the accounting services business owned and
operated by Maybruch under the tradename "Maybruch & Co., CPA's",
the successor of Maybruch's interest in the partnership "Maybruch &
Xxxxxxxxx", and located at 000 Xxxxx 00, Xxxxxxx, XX 00000, the
assets of which were acquired by NMFS pursuant to that the
Accounting Business Asset Purchase Agreement dated as of the even
date hereof; and (2) the medical billing business owned and
operated by Shoreline located at 000 Xxxxx 00, Xxxxxxx, Xxx Xxxx,
the assets of which were acquired by NMFS pursuant to the Shoreline
Asset Purchase Agreement dated as of the even date hereof.
1.2 Commencement Date means January 1, 1998.
1.3 Confidential Information means information that is proprietary to
NMFS or proprietary to others and entrusted to NMFS, whether or not
trade secrets. Confidential Information includes, but is not
limited to, information relating to business plans and to business
as conducted and to past or current products, services or
procedures. Confidential Information also includes, without
limitation, customer names, customer addresses, customer lists, fee
schedules, managed care contracts and rates, quality assurance
policies and procedures, staffing models, design maintenance and
operation of centers, and information concerning research,
development, purchasing, accounting, marketing, selling and
services. Confidential information does not include:
(i) information which is public information at the time such
information is disclosed by Maybruch, or thereafter becomes public
through no violation of this Agreement; (ii) information which was
in the possession of Maybruch or any entity with which he was
affiliated prior to its disclosure by NMFS to Maybruch; (iii) any
disclosure of information to the extent required by applicable law,
regulation, or judicial or regulatory process; or (iv) use by
Maybruch or Shoreline as evidence in or in connection with any
arbitration or litigation relating to this Agreement, the
Accounting Business Asset Purchase Agreement, the Shoreline Asset
Purchase Agreement, the Noncompetition Agreement or any other
agreement related to the above-mentioned agreements.
2
1.4 Full-Time means 5 days per week for 46 weeks per year.
1.5 Territory means the geographical area within a fifty- (50-) mile
radius of 000 Xxxxx 00, Xxxxxxx, Xxx Xxxx 00000.
ARTICLE II. EMPLOYMENT, DUTIES AND TERM
2.1 Employment. Upon the terms and conditions set forth in this
Agreement, NMFS hereby employs Maybruch, and Maybruch accepts such
employment by NMFS.
2.2 Services and Duties.
(a) During the term of this Agreement, and excluding any periods
of personal time to which Maybruch is entitled, Maybruch agrees to
devote his best efforts and attention during normal business hours
to the business and affairs of NMFS and, to the extent necessary to
discharge the responsibilities assigned to Maybruch hereunder, to
use Maybruch's best efforts to perform faithfully and efficiently
such responsibilities, to abide by the policies and procedures of
NMFS and to accept no other gainful employment without the consent
of NMFS. Maybruch will work Full-Time as a staff employee of NMFS.
(b) All monies paid to or received by Maybruch for teaching,
research, honoraria, writing and the like, as well as payments
received for professional services rendered as a certified public
accountant, shall be income to and the property of Maybruch;
(c) Maybruch shall perform the services required hereunder
principally at 000 Xxxxx 00, Xxxxxxx, Xxx Xxxx 00000 and at such
other locations in the New York metropolitan area as NMFS shall
reasonably direct.
2.3 DELETED
2.4 Certain Proprietary Information. If Maybruch possesses any
proprietary information of another person or entity as a result of
prior employment or relationship, Maybruch shall honor any legal
obligation that Maybruch has with that person or entity with
respect to such proprietary information.
2.5 Term. The employment pursuant to this Agreement shall begin on the
Commencement Date and shall end on the day immediately prior to the
fifth anniversary of the
3
Commencement Date year, unless sooner terminated as set forth in
Article IV hereof.
In the event that Maybruch should remain employed with NMFS beyond
the term of this Agreement and no new employment agreement has been
executed: (a) Maybruch shall be deemed an employee at will, and
his employment may then be terminated upon ninety (90) days written
notice by either party, and (b) all other terms and conditions of
this Agreement shall continue to apply.
ARTICLE III. COMPENSATION, BENEFITS AND EXPENSES
3.1 Base Compensation. During the term of Maybruch's employment by
NMFS, in addition to payment of the sign-up bonus pursuant to
Section 3.8 hereof and the performance bonus pursuant to Section
3.9 hereof, Maybruch shall receive base compensation in
consideration of his services hereunder equal to: THIRTY AND
33THS/100THS PERCENT (30.33%) of the "Net Income" (as hereinafter
defined), subject to the following terms hereof:
NMFS shall pay Maybruch an advance or draw, against anticipated
base compensation due hereunder, in the sum of $145,000.00 per
annum, payable semi-monthly in accordance with NMFS's customary
payroll practices. This advance or draw is not additional or
guaranteed compensation, and shall be reconciled against actual
compensation due on a quarterly basis as provided in Section 3.2
hereof.
Notwithstanding anything to the contrary herein, in the event that
the net revenues of NMFS for any calendar year exceeds $2,095,000,
NMFS shall pay Maybruch no less than the sum of $145,000.00 per
annum, which payment shall be guaranteed (but not additional)
compensation hereunder, irrespective of Net Income.
3.2 Net Income. For purposes of this Agreement, the term "Net Income"
shall mean net income before taxes computed in accordance with
generally accepted principles using the accrual method of
accounting and shall be equal to net revenues of NMFS for the
period in question, initially commencing on the Closing Date and
attributable to: (1) the assets or existing customers of the
Businesses, (2) customers obtained as a result of the efforts of
Maybruch, or (3) customers managed or serviced within the Territory
(as that term is defined in the Noncompetition Agreement), such
customers described in the foregoing (1), (2), and (3) of this
4
subparagraph being referred to hereinafter as "Contract Customers",
less: (a) all direct operating expenses of NMFS servicing the
Contract Customers for the period in question, including but not
limited to, all employees' salaries, compensation, payroll taxes,
health insurance, expense reimbursement, sign-up bonuses,
performance bonuses and other benefits (other than to Maybruch),
rent, office and supplies, general liability insurance, telephones,
computers, repairs and maintenance, equipment rental and leases;
(b) a management overhead allowance of $72,731 during the first
twelve (12) months following the date of this Agreement and
thereafter five percent (5%) of the net revenues of NMFS
attributable to the Businesses; (c) amortization over an 18-year
period of the consideration paid by NMFS in connection with the
acquisition of the Businesses and incentives payable to Maybruch
(i.e., $140,489 per year); (d) depreciation and amortization over a
5-year period of leasehold improvements, equipment, other fixed
assets and intangibles purchased after the Closing Date; and
(e) interest costs associated with the acquisition of fixed assets and
intangibles for the Accounting Business after the Closing Date
(i.e., any financing costs for capital equipment acquired for the
Businesses after the Closing Date). For purposes of this Section
3.2, the term "net revenues" shall mean gross revenues, minus
contractual adjustments and uncollectible accounts, computed on an
accrual basis in accordance with generally accepted accounting
principles consistently applied.
No expenditure of NMFS for servicing the Contract Customers may be
considered an expense or in any way taken into account in the
computation of Net Income if the expenditure is outside the
operating budget approved by Maybruch in accordance with Maybruch's
employment pursuant to the Employment Agreement and Maybruch has
not approved the expenditure in advance in writing, which approval
shall not be unreasonably withheld.
3.3 Personal Time. Maybruch shall be entitled during the term of this
Agreement to absent himself voluntarily or due to actual illness
from the performance of his employment under this Agreement, all
such voluntary absences to count as personal time, provided that:
(a) Such personal time shall not exceed six (6) work weeks (30
working days) during each calendar year (prorated for any
partial calendar year) during the period Maybruch is employed
Full-Time hereunder.
5
(b) The timing of personal time shall be scheduled in a reasonable
manner that is consistent with the best interest of NMFS.
(c) In addition to the aforesaid personal time, Maybruch shall be
entitled to the following holidays: Religious holidays, New
Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. In addition, Maybruch
shall be entitled to take as holidays any additional days that
NMFS is closed for a holiday.
(d) Maybruch shall not be entitled to receive any additional
compensation from NMFS (or to receive any additional
compensation upon termination or expiration of employment) on
account of his failure to take personal time. Unused personal
time during a calendar year may not be used in a subsequent
calendar year.
Vacation time, educational and sick leave shall be deemed personal
time, and shall be subject to the provision of this Section 3.3.
3.4 Employee Benefits. During the term of the Maybruch's employment
under this Agreement, Maybruch shall be entitled to participate in
all of the employee benefit programs which are available to NMFS
employees.
3.5 Office and Facilities. During the term of Maybruch's employment
under this Agreement, NMFS shall provide Maybruch the use of NMFS's
facilities and support services, which shall include, but not be
limited to computer hardware, computer software, computer support,
accounting and legal services, which services are provided as part
of the management overhead allowance.
3.6 Business Expenses. In addition to the base compensation due under
Section 3.1 hereof, NMFS shall pay to Maybruch a business expense
allowance of $36,000 per calendar year, payable in equal monthly
installments of $3,000 per month. In addition, NMFS shall bear any
other business expenses to the extent permitted by Internal Revenue
Service guidelines in effect from time to time for business expense
reimbursement. Maybruch is responsible to promptly account for all
expenses to NMFS in the manner prescribed from time to time by
NMFS, including such records as are required by the Internal
Revenue Service.
6
3.7 DELETED
3.8 Sign-up Bonus. On March 1, 1998 and on the first day of each
succeeding June, September, December and March through and
including December 1, 2003, NMFS shall pay Maybruch the sum of
TWENTY-ONE THOUSAND SEVEN HUNDRED SIXTY-FIVE U.S. DOLLARS
($21,765.00) as a sign-up bonus, in further consideration of the
execution of this Agreement by Maybruch.
3.9 Performance Bonus. NMFS shall pay Maybruch a performance bonus as
set forth in this Section 3.9.
A. On March 1, 1999 and on March 1 of each succeeding year during
the initial five-year term of this Agreement, NMFS shall pay
to Maybruch the lesser of (i) an amount equal to the excess by
which the Net Income (as defined in Section 3.2 hereof) during
the preceding calendar year exceeds $595,609.00, (ii) zero, if
there is no such excess, or (iii) $248,743.00.
B. On the fifth anniversary date of this Agreement, NMFS shall
pay to Maybruch:
(i) ONE MILLION TWO HUNDRED FORTY-THREE THOUSAND SEVEN HUNDRED
SIXTEEN U.S. DOLLARS ($1,243,716.00), minus
(ii) any amounts paid pursuant to Section 3.9(A) hereof, plus
(iii) 50% of the Net Income for the five year period following
the Commencement Date ("Five-Year Net Income") in excess
of $2,978,045, minus
(iv) 2.0 times the amount, if any, that $2,978,045 exceeds the
Five-Year Net Income.
An example the computation of this performance bonus is set
forth in Exhibit "A" attached hereto.
C. Notwithstanding any terms to the contrary herein, Maybruch
shall not be obligated to repay any funds received by him as a
result of the adjustments pursuant to Section 3.9(B).
D. The amounts due to Maybruch under this Section 3.9 are subject
to the adjustments contained in Section 2.1 of the Accounting
Business Asset Purchase Agreement.
7
ARTICLE IV. EARLY TERMINATION
4.1 Early Termination. Subject to the respective continuing
obligations of the parties elsewhere provided in this Agreement and
in the Buy-Back Agreement, this Article IV sets forth the terms for
early termination of Maybruch's employment under this Agreement.
In the event of early termination of Maybruch's employment due to
death or disability or for any other reason, NMFS shall continue to
pay the amounts set forth in Sections 3.8 and 3.9 of this
Agreement, except that Sections 3.9(B)(iii) and 3.9(B)(iv) shall be
null and void and therefore the amount due Maybruch pursuant to
Section 3.9(B) shall be $1,243,716 (or $1,643,716, if such amount
is increased pursuant to Section 2.1 of the Accounting Business
Asset Purchase Agreement) minus any amounts paid pursuant to
Section 3.9(A); such amounts shall be payable to Maybruch or, if
applicable, to the administrator or executor of Maybruch's estate
or the legal guardian of Maybruch.
4.2 No Termination Without Cause. This Agreement may not be terminated
without cause.
4.3 Termination by NMFS for Cause. NMFS may terminate Maybruch's
employment under this Agreement for cause effective upon written
notice to Maybruch. For purposes of this Agreement, "Cause" means
(a) an act or acts of personal dishonesty taken by Maybruch
resulting in personal enrichment of Maybruch at the expense of
NMFS, (b) any material breach by Maybruch of his duties and other
obligations under this Agreement, after written notice and thirty
(30) days in which to cure the same, (c) if Maybruch is convicted
of a felony involving moral turpitude, (d) if any material
representation of Maybruch to NMFS is untrue and Maybruch knew the
representation was untrue, (e) habitual absenteeism (in excess of
personal time permitted hereunder), alcoholism or any form of drug
abuse having a material adverse effect on Maybruch's performance of
his duties or an adverse effect on NMFS, and (f) intentional
conduct or activities (excluding conduct or activities engaged in
by Maybruch in good faith exercise of his business judgment on
behalf of NMFS) materially damaging to NMFS or to EquiMed.
4.4 Termination in the Event of Death or Disability. Maybruch's
employment under this Agreement shall terminate (a) upon Maybruch's
death or (b) in the event Maybruch is unable to perform his duties
for NMFS for four (4) consecutive months as a result of a physical
or
8
mental disability. Employee shall be deemed unable to perform his
duties to NMFS when he is deemed disabled for purposes of any
disability insurance policy maintained by NMFS or by Maybruch and
covering Maybruch's risk of disability.
4.5 Notice of Termination; Date of Termination. The provisions of this
Section 4.5 shall apply in connection with any early termination of
Maybruch's employment under this Agreement pursuant to this Article
IV.
(a) For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific
termination provisions in this Agreement relied upon and shall
set forth in reasonable detail the facts and circumstances
claimed to provide the basis for such termination.
(b) For purposes of the Agreement, "Date of Termination" shall
mean: (1) if Maybruch's employment is terminated due to
death, the day Maybruch's death occurs; (2) if Maybruch's
employment is terminated by NMFS for Cause, the date specified
in the Notice of Termination; (3) if Maybruch's employment is
terminated by mutual agreement of the parties, the date
specified in such agreement; (4) if this Agreement is
terminated due to disability, the date specified in the Notice
of Termination, which in no event shall be a date earlier than
four (4) months after Maybruch has been continuously unable to
perform his duties to NMFS as a result of physical or mental
disability; or (5) in any other instance not referred to in
this Section 4.5(b)(1) thru (4) above, the last day of
Maybruch's employment with NMFS.
4.6 Compensation upon Termination of Employment. In addition to the
other amounts due Maybruch under the terms of this Agreement, upon
termination of Maybruch's employment under this Agreement, NMFS
shall, within thirty (30) days following the Date of Termination,
pay any Base Compensation earned by Maybruch and reimburse Maybruch
amounts due for reimbursable business expenses incurred by Maybruch
through the Date of Termination and any additional amounts due
Maybruch in accordance with the terms of any Plan. Upon termination
of employment for any reason whatsoever, Maybruch shall not be
entitled to be paid for any unused personal time under Section 3.2.
9
4.7 Termination by Maybruch. In the event any payment owed to Maybruch
under Article III hereof is not made when due and such default is
not cured within seven (7) days after Maybruch gives NMFS written
notice of such default, then Maybruch may, within ten (10) days
thereafter, give written Notice of Termination of this employment
relationship with NMFS and in such case Article VI (Noncompetition)
hereof shall cease to bind Maybruch and shall be null and void. In
the event Maybruch terminates his employment relationship with NMFS
under this Section 4.7, then Maybruch shall be entitled to base
compensation under Section 3.1 hereof and business expense
reimbursement under Section 3.6 hereof due through the Date of
Termination, and notwithstanding any terms to the contrary herein,
NMFS shall continue to pay all amounts due Maybruch under Sections
3.8 and 3.9 hereof, except that Sections 3.9(B)(iii) and 3.9(B)(iv)
shall be null and void and therefore the amount due Maybruch
pursuant to Section 3.9(B) hereof shall be $1,243,716 (or
$1,643,716, if such amount is increased pursuant to Section 2.1 of
the Accounting Business Asset Purchase Agreement) minus any amounts
paid pursuant to Section 3.9(A) hereof.
ARTICLE V. CONFIDENTIAL INFORMATION
Prohibitions Against Use. Maybruch will not during or subsequent
to the termination or expiration of Maybruch's employment under
this Agreement use or disclose, other than in connection with
Maybruch's employment with NMFS, any Confidential Information to
any person not employed by NMFS or not authorized by NMFS, without
the prior written consent of NMFS. Maybruch will use reasonable
and prudent care to safeguard and protect and prevent the
unauthorized use and disclosure of Confidential Information.
ARTICLE VI. NON-COMPETITION
6.1 Acknowledgements. Maybruch agrees and acknowledges that: (i) he
shall be in a position of confidence and trust with NMFS and he
shall have access to Confidential Information; (ii) the nature and
periods of restrictions imposed by the covenants set forth in this
Article VI are fair, reasonable and necessary to protect and
preserve for NMFS the benefits of this Agreement and that such
restrictions shall not prevent this Maybruch from earning a
livelihood; (iii) NMFS would sustain irreparable loss and damage if
Maybruch were to breach any of such covenants; (iv) the Territory
is reasonably sized inasmuch as the business of NMFS is conducted
over
10
a wide geographical area and is based on serving customers in the
entire Territory to be successful; and (vi) the covenants herein
set forth are made as an inducement to and have been relied upon by
NMFS in entering this Agreement.
6.2 Non-Competition by Maybruch. Maybruch agrees that, during the term
of his employment by NMFS and for a period of two (2) years
following the termination or expiration of Maybruch's employment
with NMFS for any reason, Maybruch will not directly or indirectly,
alone or as a partner, officer, director, shareholder or employee
of any other firm, knowingly engage in medical billing or
accounting services in competition with NMFS within the Territory,
as conducted by NMFS during the term of the Agreement or as of the
date of such termination or expiration of employment.
Notwithstanding anything herein to the contrary, nothing shall
prohibit Maybruch from rendering professional services as a
certified public accountant.
6.3 Solicitation of Customers. Maybruch will not knowingly solicit any
person or entity who is or was a customer of NMFS, for a period of
two (2) years after the termination or expiration of Maybruch's
employment with NMFS for any reason.
6.4 Covenant Not to Recruit. Maybruch recognizes that NMFS workforce
represents a substantial financial and educational investment and
constitutes an important and vital aspect of its business.
Maybruch agrees that, during the term of his employment by NMFS and
for a period of two (2) years following the termination or
expiration of Maybruch's employment with NMFS for any reason
whatsoever, he shall not knowingly solicit, or assist anyone else
in the solicitation of, any of NMFS's then current employees,
except for Xxxx Xxxxxxxx, to terminate their employment with NMFS
and to become employed by any business enterprise with which
Maybruch may then be associated, affiliated or connected.
6.5 Severability. If any of the provisions of this Article VI should
in whole or part be held invalid in a final judgment by a court of
competent jurisdiction, such invalidity shall not affect the
validity of the rest of this Article VI, the parties intending that
such provision be severable.
6.6 Injunctive Relief. The parties hereto recognize and hereby
acknowledge that it is impossible to measure in money the damages
which would result to NMFS or its
11
successors or assigns by reason of a failure by Maybruch to perform
any of the obligations imposed upon him under Article VI of this
Agreement. Therefore, NMFS or its successors or assigns shall be
entitled to injunctive and other equitable relief to enforce the
terms of Article VI of this Agreement, without the necessity of
showing irreparable harm and without the necessity of posting bond
or security. If NMFS or its successors or assigns should institute
an action or proceeding to enforce the provisions of Article VI
hereof, Maybruch hereby waives the claim or defense that any such
party has an adequate remedy at law, and Maybruch shall not urge in
any action or proceeding the claim or defense that such a remedy at
law exists. At the discretion of the court or arbitrator before
which an injunctive proceeding is brought, the running of the
covenants herein may be tolled and extended for a period of time
equal to the time period Maybruch shall be in violation of any such
covenant.
ARTICLE VII. GENERAL PROVISIONS
7.1 Completion of Documents. Maybruch agrees to cooperate with NMFS in
maintaining and providing customary financial, administrative and
other records as may be needed by NMFS or as required and/or
allowed by law.
7.2 DELETED
7.3 Physical and Mental Condition. Maybruch represents that he is in
good physical and mental health, has no chronic illness nor any
prior physical or mental problems, the recurrence of which would
impair his ability to function under all the terms and conditions
of this Agreement.
7.4 Assignment. The Agreement is not assignable by Maybruch. This
Agreement may be assigned by NMFS.
7.5 Offsets. Any amount payable to Maybruch pursuant to this Agreement
may be reduced for purposes of offsetting, either directly or
indirectly, any indebtedness or liability of Maybruch to NMFS.
Notwithstanding the foregoing, there shall not be any offsets for
indemnification under Sections 8.1(c) or 8.1(d) of the Accounting
Business Asset Purchase Agreement. In the event that any offset by
NMFS is challenged by Maybruch and not affirmed by a nonappealable
decision or order after such dispute is arbitrated or litigated, as
the case may be, NMFS shall, upon demand, pay Maybruch the amount
of the offset plus interest from the original due date of such
payment at
12
the rate of nine percent (9%) per annum, along with all reasonable
attorneys fees, costs, disbursements and expenses incurred by
Maybruch in connection with such arbitration or litigation.
7.6 Xxxxxxxxxxx.Xx the extent required by any applicable law, including
without limitation, any federal or state income tax or excise tax
law or laws, the Federal Insurance Contributions Act, the Federal
Unemployment Tax Act or any comparable federal, state or local
laws, NMFS retains the right to withhold such portion of any amount
or amounts payable to Maybruch under this Agreement as is required
by law.
7.7 Governing Law; Arbitration. This Agreement shall be construed and
interpreted under the laws of the State of New York. The parties
agree that all disputes concerning this Agreement shall be
submitted to binding arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association and the
provisions contained herein. The arbitration shall be conducted in
Westchester County, New York, by one arbitrator. The party
initiating arbitration shall give the other notice of the matter in
dispute. If the parties fail to agree upon an arbitrator within
ten days after notice of initiation of the arbitration is given,
the American Arbitration Association shall select the arbitrator.
All determinations and the final decision of the arbitrator shall
be made in writing. The fees and expenses of the arbitrator shall
be awarded by the arbitrator in his discretion as part of the
award. The arbitrator's award shall be binding on the parties
hereto and may be entered in any court of competent jurisdiction.
The parties reserve the right to seek a judicial temporary
restraining order, preliminary injunction, or other similar short
term equitable relief prior to the appointment of the arbitrator.
The arbitrator will have the right to make a final determination of
the parties' rights including, without limitation, whether to make
permanent, modify or dissolve the judicial order.
7.8 Rules of Construction. No provision of this Agreement shall be
construed against or interpreted to the disadvantage of a party by
reason of such party having or being deemed to have drafted,
structured or dictated such provisions.
7.9 Waivers. No failure on the part of either party to exercise, and
no delay in exercising, any right or remedy hereunder shall operate
as a waiver thereof; nor
13
shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by any
related document or by law.
7.10 Modification. This Agreement may not be modified or amended except
by written instrument signed by the parties hereto and, if on
behalf of NMFS, only by its President.
7.11 Notices. All notices, demands and other communications hereunder
shall be written and shall be deemed to have been duly given if
(i) sent by fascimile transmission and mailed by regular mail,
(ii) delivered in person, or (iii) sent by nationally recognized
overnight carrier prepaid, to the address set forth below:
To NMFS: National Medical Financial
Services Corporation
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, M.D.
Fax: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxxx & Associates, P.C.
X.X. Xxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
To Maybruch: Xxxxxx Xxxxxxxx
000 Xxxxx 00
Xxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to: Xxxxx Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
or to such other address as NMFS or Maybruch may designate by
written notice to the other. Notices delivered in person or by
fascimile transmission shall be deemed delivered on the date of
delivery or transmission respectively. Notices sent by nationally
recognized overnight carrier shall be deemed delivered forty-eight
(48) hours after the date sent. Rejection or other refusal to
accept or inability to deliver because of a changed address of
which no notice was given shall be deemed to be a receipt of the
notice, request or other communication. Any notice, request or
14
other communication required or permitted to be given by any party
may be given by such party's legal counsel.
7.12 No Restrictive Covenants. Maybruch represents and warrants that he
is not subject to any restrictive covenant which would prohibit or
limit any of the services that Maybruch must perform as
contemplated by this Agreement.
7.13 Sole Employer; No Guarantor. NMFS shall be the sole employer of
Maybruch hereunder, and no officer, director, employee or
shareholder of NMFS shall be a guarantor of this Agreement.
7.14 Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in reference to the
subject matter hereof all the matters herein agreed upon. This
Agreement replaces in full all prior employment agreements or
understandings of the parties hereto, and any and all such prior
agreements or understandings are hereby rescinded by mutual
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
MAYBRUCH: NMFS:
------------------------- NATIONAL MEDICAL FINANCIAL
XXXXXX XXXXXXXX SERVICES CORPORATION
By: --------------------------------
President
Address: Address:
---------------------- 0000 Xxxx Xxxxxx, Xxxxx 000
---------------------- Xxxxxx, XX 00000
15