Exhibits
10.1


 


SEPARATION
AGREEMENT AND RELEASE


 


This
Separation Agreement and Release (“Agreement”) is made as of May 5, 2016, by and between David Harrell (“Employee”)
and OptimizeRx Corp., a Nevada corporation, and its wholly-owned subsidiary, OptimizeRx Corp., a Michigan corporation (collectively
referred to herein as, the “Company”).  Employee and the Company shall collectively be referred to
herein as the “Parties”, and each individually as a “Party.”


 


RECITALS


 


WHEREAS,
Employee was employed by the Company, among other positions, as its Chief Executive Officer;


 


WHEREAS,
Employee ceased to be Chief Executive Officer or any other officer of the Company as of March 31, 2016;


 


WHEREAS,
Employee will cease to be an employee of the Company, effective May 31, 2016 (the “Separation Date”); and


 


WHEREAS,
the Company desires to retain Employee as a consultant; 


 


WHEREAS,
the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that
the Employee may have against the Company and any of the Releasees (as defined below), including, but not limited to, any and
all claims arising out of or in any way related to Employee’s employment with or separation from the Company.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the mutual promises made herein and in the Consulting Agreement, the Company and Employee hereby
agree as follows:


 


1. Departure;
Termination of Agreements. 


 


1.1
Employee hereby acknowledges and agrees that (i) he ceased to be an officer of the Company as of March 31, 2016; and he will cease
to be (ii) an employee of Company, and (iii) an employee or officer of any parent, subsidiary or related party of the Company,
in each case, effective as of the Separation Date.


 


1.2
Employee hereby acknowledges and agrees that his compensation, benefits, equity and other rights under his Employment Agreement,
dated June 1, 2008 as amended (“Employment Agreement”) including his right to severance pay terminated without
recourse as of March 31, 2016, save a salary of $15,000 for each month of April and May of 2016 and health benefits during those
months.


 






     

     


    

 


2.
Payment.  In full satisfaction of all amounts due Employee including all amounts carried on Company’s balance
sheet (“Amounts”) the Company paid Employee $720,415 (“Indebtedness Payment”) as of March
31, 2016.


 


3.
Consulting Agreement.  Contingent upon this Agreement becoming effective as provided in Section 19 below on the
Effective Date described therein, the Company agrees to retain Employee, and Employee agrees to serve, as a consultant to the
Company pursuant to the terms and conditions of the consulting agreement attached hereto as Exhibit A (“Consulting
Agreement”) which the parties shall sign and deliver on the Effective Date.


 


 4. Payment
of Salary and Receipt of All Benefits.  Subject to Section 1.2 above, Employee acknowledges and represents that,
the Company has paid or provided all salary, wages, bonuses, accrued vacation/paid time off, premiums, leaves, housing allowances,
relocation costs, interest, severance, outplacement costs, fees, reimbursable expenses, commissions, stock, stock options, vesting,
and any and all other benefits and compensation due to Employee through the Separation Date.  In addition, subject to
Section 1.2 above, Employee acknowledges and agrees that his participation in all benefits and incidents of employment, including,
but not limited to, the accrual of bonuses, health benefits, vacation, and paid time off, will cease as of the Separation Date.


 


5.
Release of Claims.  Employee agrees that the foregoing consideration represents settlement in full of all outstanding
obligations owed to Employee by the Company and its current and former officers, directors, employees, agents, investors, attorneys,
shareholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries,
and predecessor and successor corporations and assigns (collectively, the “Releasees”).  Employee,
on his own behalf and on behalf of his respective heirs, family members, executors, agents, and assigns, hereby and forever voluntarily
releases the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim,
complaint, charge, duty, obligation, demand, or cause of action relating to any matters of any kind, whether presently known or
unknown, suspected or unsuspected, that Employee may possess against any of the Releasees arising from any omissions, acts, facts,
or damages that have occurred up until and including the Effective Date of this Agreement, including, without limitation:


 


a. any
and all claims relating to or arising from Employee’s employment relationship with the Company and the termination of that
relationship;


 


b. any
and all claims relating to, or arising from, Employee’s right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation, the Amounts, any claims for fraud, misrepresentation, breach of fiduciary duty, breach
of duty under applicable state corporate law, and securities fraud under any state or federal law, with the exception of any rights
or obligations contained in any outstanding Stock Option Agreements between the Company and him;


 


c. any
and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation;
breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent
or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander;
negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;


 






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d. any
and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the
Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of
1990; the Equal Pay Act; the Fair Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act
of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment
and Retraining Notification Act; the Family and Medical Leave Act; the Sarbanes-Oxley Act of 2002; the Immigration Control and
Reform Act; the Michigan Elliott-Larsen Civil Rights Act — Mich. Comp. Laws §37-2101 et seq.; the Michigan Persons
with Disabilities Civil Rights Act — Mich. Comp. Laws §37.1101 et seq.; the Michigan Whistleblower Protection Act —
Mich. Comp. Laws §15.361 et seq.; the Michigan Statutory Provision Regarding Retaliation/Discrimination for Filing a Worker's
Compensation Claim — Mich. Comp. Laws §418.301 (11) et seq.; the Michigan AIDS Testing and Confidentiality Act —
Mich. Comp. Laws §333.5131 et seq.; the Michigan Equal Pay Law — Mich. Comp. Laws §408.381 et seq.; the Michigan
State Wage Payment and Work Hour Laws, as amended; the Michigan Occupational Safety and Health Act — Pub. Acts 154;


 


e. any
and all claims for violation of the federal or any state constitution;


 


f. any
and all claims arising out of any other laws and regulations relating to employment or employment discrimination;


 


g. any
claim for any loss, cost, damage, or expense arising out of any dispute over the nonwithholding or other tax treatment of any
of the proceeds received by Employee as a result of this Agreement;


 


h.
any and all claims airing under the Employment Agreement and/or its termination; and


 


h. any
and all claims for attorneys’ fees and costs.


 


Employee
agrees that the release set forth in this section shall be and remain in effect in all respects as a complete general release
as to the matters released.  This release does not extend to any obligations incurred under this Agreement or the Consulting
Agreement.  This release does not release claims that cannot be released as a matter of law, including, but not limited
to, Employee’s right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or
any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related
to employment, against the Company (with the understanding that any such filing or participation does not give Employee the right
to recover any monetary damages against the Company; Employee’s release of claims herein bars Employee from recovering such
monetary relief from the Company.   Employee represents that he/she has made no assignment or transfer of any right,
claim, complaint, charge, duty, obligation, demand, cause of action, or other matter waived or released by this Section.


 






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6.
Acknowledgment of Waiver of Claims under ADEA.  Employee acknowledges that he is waiving and releasing any rights
he may have under the Age Discrimination in Employment Act of 1967 ("ADEA"), and that this waiver and release
is knowing and voluntary.  Employee agrees that this waiver and release does not apply to any rights or claims that
may arise under the ADEA after the Effective Date of this Agreement.  Employee acknowledges that the consideration given
for this waiver and release is in addition to anything of value to which Employee was already entitled.  Employee further
acknowledges that he/she has been advised by this writing that: (a) he should consult with an attorney prior to executing
this Agreement; (b) he/she has twenty-one (21) days within which to consider this Agreement; (c) he has seven (7) days following
his/her execution of this Agreement to revoke this Agreement; (d) this Agreement shall not be effective until after the revocation
period has expired; and (e) nothing in this Agreement prevents or precludes Employee from challenging or seeking a determination
in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for
doing so, unless specifically authorized by federal law.  In the event Employee signs this Agreement and returns it
to the Company in less than the 21-day period identified above, Employee hereby acknowledges that he has freely and voluntarily
chosen to waive the time period allotted for considering this Agreement.


 


7.
Employee’s Acknowledgment of Tax Liability.  Employee hereby acknowledges and agrees as follows: (a) nothing
in this Agreement constitutes tax advice; (b) the Company does not take any responsibility, or have any liability to Employee
with respect to Employee’s tax liability and/or Employee’s personal tax reporting; (c) Employee has been given the
opportunity and encouraged to consult with Employee’s own attorney and to seek professional tax advice prior to execution
of this Agreement; and (d) Employee agrees to indemnify the Company and hold it harmless from any liability for income taxes,
interest or penalties that may be imposed as a result of under-payment or non-payment of income taxes on any amounts paid Employee
under the terms of this Agreement. 


 


8.
No Pending or Future Lawsuits.  Employee represents that he has no lawsuits, claims, or actions pending in his
name, or on behalf of any other person or entity, against the Company or any of the other Releasees.  Employee also
represents that he/she does not intend to bring any claims on his own behalf or on behalf of any other person or entity against
the Company or any of the other Releasees.


 


9.
Nondisparagement Each Party shall at all times refrain from taking actions or making statements, written or oral, that
denigrate, disparage, or defame the goodwill or reputation of the other Party .  Employee further agrees not to make
any negative statement to third parties or Company employees relating to the Employee’s employment or any aspect of the
business of the Company and not to make any statements to third parties or Company employees about the circumstances of the termination
of Employee’s employment, or about Releasees, except as may be required by a court or governmental authorities.  Employee
shall direct any inquiries by potential future employers to the Company’s human resources department.


 






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10. No
Admission of Liability.  Employee understands and acknowledges that this Agreement constitutes a compromise and
settlement of any and all actual or potential disputed claims by Employee.  No action taken by the Company hereto, either
previously or in connection with this Agreement, shall be deemed or construed to be (a) an admission of the truth or falsity
of any actual or potential claims or (b) an acknowledgment or admission by the Company of any fault or liability whatsoever
to Employee or to any third party.


 


11. Costs.  The
Parties shall each bear their own costs, attorneys’ fees, and other fees incurred in connection with the preparation of
this Agreement.


 


12.
Authority.  The Company represents and warrants that the undersigned has the authority to act on behalf of the
Company and to bind the Company and all who may claim through it to the terms and conditions of this Agreement.  Employee
represents and warrants that he has the capacity to act on his own behalf and on behalf of all who might claim through him to
bind them to the terms and conditions of this Agreement.  Each Party warrants and represents that there are no liens
or claims of lien or assignments in law or equity or otherwise of or against any of the claims or causes of action released herein.


 


13.
No Representations.  Employee represents that he has had an opportunity to consult with an attorney, and has
carefully read and understands the scope and effect of the provisions of this Agreement.  Employee has not relied upon
any representations or statements made by the Company that are not specifically set forth in this Agreement.


 


14.
Severability.  In the event that any provision or any portion of any provision hereof or any surviving agreement
made a part hereof becomes or is declared by a court of competent jurisdiction or arbitrator to be illegal, unenforceable, or
void, this Agreement shall continue in full force and effect without said provision or portion of provision.


 


15.
Attorneys’ Fees.  Except with regard to a legal action challenging or seeking a determination in good faith
of the validity of the waiver herein under the ADEA, in the event that either Party brings an action to enforce or effect its
rights under this Agreement, the prevailing Party shall be entitled to recover its costs and expenses, including the costs of
mediation, arbitration, litigation, court fees, and reasonable attorneys’ fees incurred in connection with such an action.


 


16.
Entire Agreement.  This Agreement, together with the Consulting Agreement represents the entire agreement and
understanding between the Company and Employee concerning the subject matter of this Agreement and Employee’s employment
with and separation from the Company and the events leading thereto and associated therewith, and supersedes and replaces any
and all prior agreements and understandings concerning the subject matter of this Agreement and Employee’s relationship
with the Company.


 


17. No
Oral Modification.  This Agreement may only be amended in a writing signed by Employee and the Company’s Chief
Executive Officer.


 






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18. Governing
Law.  This Agreement shall be governed by the laws of the State of Michigan, without regard for choice-of-law
provisions.  Employee consents to personal and exclusive jurisdiction and venue in the State of
Michigan.


 


19.
Effective Date.  Employee understands that: a) this Agreement shall be null and void if not executed by him within
twenty one (21) days; and b) Employee may revoke this agreement within seven days following his execution of it. This Agreement
will become effective on the eighth (8th) day after Employee signs this Agreement, so long as it has been signed by the Parties
and has not been revoked by either Party before that date (the “Effective Date”). If Employee declines to sign
this agreement or revokes it within 7 days of his execution, this agreement shall be null and void, the Consulting Agreement shall
be null and void and Employee shall return the Indebtedness Payment to the Company.


 


20.
Counterparts.  This Agreement may be executed in counterparts and by facsimile, and each counterpart and facsimile
shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of each of
the undersigned.


 


21.
Breach by Employee.  Employee specifically agrees that the Company’s payments to Employee under this Agreement
are made in return for Employee’s obligations set forth in this Agreement.  Employee further agrees that if he
or she breaches any of the obligations set forth in this Agreement, such a breach would cause harm to Company and its business,
for which the Company may recover damages.


 


22.
Voluntary Execution of Agreement.  Employee understands and agrees that he/she executed this Agreement voluntarily,
without any duress or undue influence on the part or behalf of the Company or any third party, with the full intent of releasing
all of his/her claims against the Company and any of the other Releasees.  Employee acknowledges that: (a) he has read
this Agreement; (b) he has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel
of his/her own choice or has elected not to retain legal counsel; (c) he understands the terms and consequences of this Agreement
and of the releases it contains; and (d) he is fully aware of the legal and binding effect of this Agreement.


 


IN
WITNESS WHEREOF, the Parties have executed this Agreement on the date first set forth above.


 


	OPTIMIZERX CORP., Nevada	 	 
	 	 	 
	/s/
    Douglas Baker	 	 
	By: Douglas Baker	 	 
	 	 	 
	Its: Chief Financial Officer	 	 






 





	OPTIMIZERX CORP., Michigan	 	 
	 	 	 
	/s/
    Douglas Baker	 	 
	By: Douglas Baker	 	 
	 	 	 
	Its: Chief Financial Officer	 	 
	 	 	 
	/s/
David Harrell	 	 
	David Harrell	 	 


 






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Exhibit
A


 


Harrell
Corporate Consulting Agreement