Exhibit 10.1





Exhibit 10.1




EMPLOYMENT AGREEMENT




THIS EMPLOYMENT AGREEMENT (the “Agreement”) made as of the 1st day of June, 2009 (the
“Effective Date”), by and between Valiant Healthcare, Inc., a Delaware corporation (the “Company”),
and                      (the “Executive”).



W I T N E S S E T H:




WHEREAS, the Company wishes to employ the Executive as                     , on the terms and
conditions set forth in this Agreement; and




WHEREAS, the Executive is willing to accept such employment on such terms and conditions;



NOW, THEREFORE, in consideration of the premises and of the mutual promises, representations
and covenants herein contained, the parties hereto agree as follows:



1. SCOPE OF EMPLOYMENT




(a) The Company hereby agrees to employ the Executive upon the terms and conditions herein set
forth and to perform such executive duties as may be determined and assigned to him or her by the
Board of Directors of the Company (the “Board”). The Executive hereby accepts such employment,
subject to the terms and conditions herein set forth. The Executive shall have the title of
                                        . While serving in such position, the Executive shall have the
customary duties and powers of such position. Executive shall not be employed by any other
organization during the term of this Agreement, unless such employment has been approved in advance
by the Board and the Executive may devote reasonable periods of time to serve as a director or
advisor to other organizations, to perform charitable and other community activities, and to manage
his or her personal investments; provided, however, that such activities do not materially
interfere with the performance of his or her duties hereunder and are not in conflict or
competitive with, or adverse to, the interests of the Company.



(b) By executing this Agreement, each party represents to the other that it is authorized to
enter into this Agreement and that it is not under any legal restriction or other impediment that
would prevent it from fully discharging its responsibilities and obligations under this Agreement.


 


 









 





2. TERM




(a) The term of Executive’s employment under this Agreement shall be for a period of three
years from the Effective Date. The term shall automatically renew thereafter for successive
one-year periods beginning on the anniversary date of the Effective Date unless (i) the Company
provides written notice of non-renewal to the Executive at least 90 days prior to the next renewal
date, or (ii) the Executive provides written notice of non-renewal to the Company at least 90 days before the next renewal date.
In the event of a “Change of Control” (as defined in Section 5(c) herein), this Agreement shall
automatically be extended for the greater of (i) a period of one year from the date of such Change
of Control in the event there exists less than one year remaining in the term of this Agreement; or
(ii) the remaining term of this Agreement in the event there exists more than one year remaining in
the term of this Agreement.




(b) The Agreement may be terminated before the end of the current term as follows:




(i) By the Company for Cause (as hereinafter defined);




(ii) By the Company without Cause. For purposes hereof, Executive shall be deemed
terminated by the Company without Cause if he or she terminates employment for Good Reason
(as hereinafter defined);




(iii) In the event of the Company’s dissolution or liquidation;




(iv) By the Executive for any reason;




(v) In the event of the death of the Executive; or




(vi) In the event of the disability of Executive (as hereinafter defined).



(c) For purposes hereof, “Cause” shall mean, and shall be limited to, any of the following
that is reasonably determined by the Board to be substantially detrimental to the business or
reputation of the Company, and that occurs or comes to light after the Effective Date: (i) the
Executive’s willful commission of acts of dishonesty in connection with his or her position;
(ii) the Executive’s willful failure or refusal to perform the essential duties of his or her
position or to adhere to any written Company policy approved by the Board of Directors; (iii) the
Executive’s conviction of, or plea of guilty or nolo contendere to, (x) a felony, or (y) a
misdemeanor involving fraud, dishonesty, embezzlement, or theft; or (iv) the Executive’s breach of
the restrictive covenants contained in Sections 6 and 7 of the Agreement. The Company shall provide
the Executive with written notice describing any event or condition that gives the Company Cause
for termination. If the Executive cures the same within 30 days after receiving such notice, there
shall be no termination for Cause.


 


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(d) For purposes hereof, the term “Good Reason” shall mean any one or more of the following
events unless Executive specifically agrees in writing that such event shall not be Good Reason:




(i) the assignment to Executive by the Board of Directors or other officers or
representatives of the Company of duties materially inconsistent with the duties
associated with the position described in Section 1(a);




(ii) a material change in the nature or scope of Executive’s authority from those
applicable to him or her in his or her position;




(iii) material acts or conduct on the part of the Company or its officers and
representatives which have as their purpose forcing the resignation of Executive or
preventing him or her from performing his or her duties and responsibilities pursuant to
this Agreement;




(iv) a material breach by the Company of any material provision of this Agreement
(including, but not limited to, failure of the Company to pay any amount, or to provide
any benefit, pursuant to the provision of Articles 3 and 4 hereof);




(v) the Executive’s involuntary termination without Cause or voluntary termination
for any reason on or after a Change in Control.



The Executive shall provide the Company with written notice describing any event or condition
that gives the Executive Good Reason for termination. If the Company cures the same within thirty
(30) days after receiving such notice, there shall be no termination for Good Reason.



(e) For purposes hereof, the term “disability” shall mean the inability of the Executive, due
to illness, accident, or any other physical or mental incapacity, to perform his or her duties in a
normal manner for (i) a period of four (4) consecutive months or (ii) six (6) months (with each
month being composed of 31 consecutive days) during any twelve (12) consecutive month period. The
disability of the Executive shall be determined by a medical doctor approved by the Company. The
Executive shall submit to a reasonable number of examinations by the medical doctor making the
determination of disability, and the Executive hereby authorizes the disclosure and release to the
medical doctor of all supporting medical records.



(f) In the event of a termination of the Agreement for a reason other than death or
disability, the Executive agrees to cooperate with the Company in order to ensure an orderly
transfer of the Executive’s duties and responsibilities.



3. COMPENSATION




(a) Annual Salary. The Company agrees to pay the Executive, and the Executive agrees
to accept, in payment for services to be rendered by the Executive hereunder, a minimum base salary
of $                     per annum (the “Annual Salary”). The Annual Salary shall be payable in equal
periodic installments, not less frequently than monthly, less such sums as may be required to be
deducted or withheld under the provisions of federal, state or local law. The Company agrees to
review the Annual Salary on or around January 1st of each calendar year (or such other time as the
Company and Executive mutually agree), for adjustment based on the Executive’s performance;
provided, however, that no such adjustment shall be effective to reduce the Annual
Salary below the amount provided above and that any increase in the Annual Salary shall not be less than 8%
per annum. For all purposes under this Agreement, the term “Annual Salary” shall refer to the
Executive’s base salary as in effect from time to time. The Company and Executive agree to certain
additional compensation terms as provided for on Exhibit A attached hereto and incorporated
herein by this reference.


 


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(b) Annual Bonus. In addition to Executive’s salary, the Executive shall be eligible
to receive an annual bonus if performance goals established by the Company are satisfied. If the
Company has established an annual incentive compensation plan for its senior management, the
Executive’s annual bonus opportunity may be provided under the terms of the annual incentive
compensation plan. Any bonus program in which the Executive participates may be established and
administered on behalf of the Company by the independent directors who are members of the
compensation committee of the Board (the “Compensation Committee”).



(c) Equity Compensation Plan. Executive shall be considered for any type of equity
compensation plan as determined by the Compensation Committee.  



4. FRINGE BENEFITS, REIMBURSEMENT OF EXPENSES, ETC.




(a) The Executive shall be entitled to paid vacation, holidays, and sick leave benefits in
accordance with the Company’s policies for executive employees.



(b) The Executive shall participate in all retirement, welfare, deferred compensation, life
and health insurance (including health insurance for Executive’s spouse and his or her dependents),
and other benefit plans or programs of the Company now or hereafter applicable to the Executive, or
applicable generally to employees of the Company or to a class of employees that includes senior
executives of the Company; provided, however, that during any period during the Term that the
Executive is subject to a disability, and during the 180-day period of physical or mental infirmity
leading up to the Executive’s disability, the amount of the Executive’s compensation provided under
Section 2 shall be reduced by the sum of the amounts, if any, paid to the Executive for the same
period under any disability benefit or pension plan of the Company or any of its subsidiaries.



(c) Except as provided in Section 15, the Company agrees to pay, or promptly reimburse the
Executive for, any reasonable and necessary expense incurred by the Executive in performing his or
her duties for the Company during the term of this Agreement; provided, however, that the Executive
furnishes appropriate documentation for such expenses in accordance with the Company’s practices
and procedures.


 


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5. TERMINATION BENEFITS 




In addition to the benefits described under the Agreement that survive the termination of the
Agreement, the following benefits will be paid on account of the termination of the Agreement for
the following reasons:



(a) Upon termination of this Agreement by the Company for Cause pursuant to Section 2(b)(i),
or by the Executive for other than Good Reason or upon the Executive’s death, or by either party
through non-renewal at the end of the current term, the Company shall pay to Executive or his or
her beneficiaries, as the case may be, immediately after the date of termination an amount equal to
the sum of Executive’s accrued base salary and any bonus amount earned but not yet paid;



(b) Upon termination of this Agreement before the end of the current term (x) by the Company
without Cause or (y) by the Executive for Good Reason or disability, Executive shall be entitled to
his or her accrued base salary and any bonus amount earned but not yet paid, as provided in
Section 5(a), and to the following benefits:




(i) the Company shall pay to Executive, immediately after the date of termination (or
as soon thereafter as the amount may be paid without incurring the 20% additional income
tax under Section 409A of the Internal Revenue Code) an amount which is equal to the
Executive’s Annual Salary for one month; and




(ii) the Company shall fully vest any stock options or restricted stock previously
granted to the Executive.




(c) For purposes of this Agreement, a “Change in Control” means any of the following events:




(i) any person or group (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (“Exchange Act”)), other than a subsidiary of the Company
or any employee benefit plan (or any related trust) of the Company, after the Effective
Date, the beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 35% or more of the common stock of the Company (the “Common Stock”);




(ii) individuals who constitute the Board as of the Effective Date (the “Incumbent
Board”), cease for any reason to constitute a majority of the members of the Board (except
that any individual who becomes a director after the Effective Date, whose election by the
Company’s stockholders was approved by a majority of the members of the Incumbent Board
shall be considered as though such individual were a member of the Incumbent Board); or




 


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(iii) approval by the stockholders of the Company of either of the following:




(1) a merger, reorganization, consolidation, business combination or similar
transaction (any of the foregoing, a “Merger”) as a result of which the persons who
were the respective beneficial owners of the outstanding Common Stock immediately
before such Merger are not expected to beneficially own, immediately after such
Merger, directly or indirectly, more than 50% of the common stock and the combined voting power of
the then outstanding voting securities of the corporation or other entity resulting
from such Merger in substantially the same proportions as immediately before such
Merger, or



(2) a plan of liquidation of the Company or a plan or agreement for the sale
or other disposition of all or substantially all of the assets of the Company.  




(iv) Notwithstanding the foregoing, there shall not be a Change in Control if, in
advance of such event, Executive agrees in writing that such event shall not constitute a
Change in Control.



(d) Upon the termination of this Agreement in the event of a Change of Control, Executive
shall be entitled to his accrued base salary and any bonus amount earned but not yet paid, and to
the following benefits:




(i) the Company shall pay to Executive, immediately after the date of termination
(or as soon thereafter as the amount may be paid without incurring the 20% additional
income tax under Section 409A of the Internal Revenue Code) an amount which is equal to
the Executive’s Annual Salary for three months;




(ii) the Company shall provide to Executive medical coverage as described in Section
4(b), above, and continue access to or payment of any other fringe benefits provided
pursuant to Section 4, at the expense of the Company, for a period of three months after
the date of the Change of Control; and




(iii) the Company shall fully vest any stock options or restricted stock previously
granted to the Executive.



(e) The Company’s obligations under this Section 5 shall survive termination of this
Agreement.



 


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 6. NONDISCLOSURE OBLIGATION




(a) General Obligation. The Executive acknowledges that while employed by the Company,
the Executive will occupy a position of trust and confidence. The Executive shall not disclose to
others or use, whether directly or indirectly, any Confidential Information (as defined below)
regarding the Company or any of its subsidiaries or franchisees; provided, however that this
Section 6(a) shall not apply to any disclosure (x) required to perform the Executive’s duties
hereunder; (y) required by applicable law; or (z) of information that shall have become public
other than by the Executive’s unauthorized disclosure. “Confidential Information” shall mean
information about the Company or any of its subsidiaries or franchisees, and their clients and
customers, that is not disclosed by the Company or any of its subsidiaries or franchisees in the
ordinary course of business and that was learned by the Executive in the course of employment by the
Company or any of its subsidiaries or franchisees, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information and client and customer lists and all papers,
resumes, and records (including computer records) of the documents containing such Confidential
Information. The Executive acknowledges that such Confidential Information is specialized, unique
in nature, and of great value to the Company and its subsidiaries or franchisees, and that such
information gives the Company and its subsidiaries or franchisees a competitive advantage. The
Executive agrees to deliver or return to the Company, at the Company’s request at any time or upon
termination or expiration of the Executive’s employment or as soon thereafter as possible, all
documents, computer tapes and disks, records, lists, data, drawings, prints, notes and written
information (and all copies thereof) furnished by the Company and its subsidiaries or franchisees
or prepared by the Executive in the course of the Executive’s employment by the Company and its
subsidiaries or franchisees. As used in this Agreement, “subsidiaries” shall mean any company
controlled by, controlling, or under common control with the Company.



(b) Compulsory Disclosures. If the Executive is requested or (in the opinion of his or
her counsel) required by law or judicial order to disclose any Confidential Information, the
Executive shall provide the Company with prompt notice of any such request or requirement so that
the Company may seek an appropriate protective order or waiver of the Executive’s compliance with
the provisions of this Section 6.



(c) Confidential Information of Third Parties. The Executive agrees that he or she
will not, during the term of this Agreement, improperly use or disclose to the Company any
proprietary information or trade secrets of any former or current employer or other person or
entity with which he or she has an agreement or duty to keep in confidence information acquired by
him or her in confidence, and that he or she will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to such employer, person or entity unless
consented to in writing by such employer, person, or entity.



(d) The Executive’s obligations under this Section 6 shall survive termination of this
Agreement.



 


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7. NON-COMPETITION AND NON-SOLICITATION




(a) Non-Competition. The Executive acknowledges and recognizes his possession of
Confidential Information and acknowledges the highly competitive nature of the business of the
Company and its franchisees and subsidiaries and accordingly agrees that, in consideration of the
premises contained herein, he or she will not, during the term of this Agreement, as from time to
time extended, and for one year after the date of termination of this Agreement, regardless of the
reason for his or her termination, engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or control of, be employed by, lend
his or her name to, lend his or her credit to, or render services or advice to any business that
competes with the business then being conducted by the Company or any of its franchisees or subsidiaries, or that
had been conducted by the Company or any of its franchisees or subsidiaries during the prior 12
months; provided, however, that the Executive may purchase or otherwise acquire up to three percent
of any class of securities of any enterprise if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the Securities Exchange
Act of 1934, as amended. The Executive agrees that, in consideration of the premises contained
herein, he or she will not, during the term of this Agreement, as from time to time extended, and
for one year after the date of termination of this Agreement, regardless of the reason for his or
her termination, either individually or as an officer, director, stockholder, member, partner,
agent, consultant or principal of another business firm, directly or indirectly, solicit any
business of the type being carried on by the Company or any of its franchisees or subsidiaries
during the term of this Agreement (or any business of a similar type) from any person or entity
that was a customer of the Company or its franchisees or subsidiaries during the term of this
Agreement.



(b) Non-Solicitation. The Executive recognizes that he or she will possess
confidential information about other employees of the Company and its subsidiaries or franchisees
relating to their education, experience, skills, abilities, compensation, and benefits, and
inter-personal relationships with suppliers to and customers of the Company and its subsidiaries or
franchisees. The Executive recognizes that the information he or she will possess about these other
employees is not generally known, is of substantial value to the Company and its subsidiaries or
franchisees in developing their respective businesses and in securing and retaining customers, and
will be acquired by Executive because of Executive’s business position with the Company. Executive
agrees that during the term of this Agreement and for one year after the date of termination of
this Agreement, regardless of the reason for his or her termination, Executive will not, directly
or indirectly, solicit or recruit any employee of the Company or any of its subsidiaries or
franchisees for the purpose of being employed by Executive or by any business, individual,
partnership, firm, corporation or other entity on whose behalf Executive is acting as an agent,
representative, or employee and that Executive will not convey any such confidential information or
trade secrets about other employees of the Company or any of its subsidiaries or franchisees to any
other person except within the scope of Executive’s duties hereunder.



(c) The Executive’s obligations under this Section 7 shall survive termination of this
Agreement.  




 


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8. ENFORCEMENT AND REMEDIES




(a) Enforcement. It is the desire and intent of the parties hereto that the provisions
of this Agreement shall be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought. Accordingly, although the
Executive and the Company consider the restrictions contained in this Agreement to be reasonable
for the purpose of preserving the Company’s goodwill and proprietary rights, if any particular
provision of this Agreement shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the
operation of such provision in the particular jurisdiction in which such adjudication is made. It
is expressly understood and agreed that although the Company and the Executive consider the
restrictions contained in Section 7 to be reasonable, if a final determination is made by a court
of competent jurisdiction that the time or territory or any other restriction contained in this
Agreement is unenforceable against the Executive, the provisions of this Agreement shall be deemed
amended to apply as to such maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable.



(b) Remedies; Survival. The parties acknowledge that the Company’s damages at law
would be an inadequate remedy for the breach by the Executive of any provision of Section 6 or 7,
and agree in the event of such breach that the Company may obtain temporary and permanent
injunctive relief restraining the Executive from such breach, and, to the extent permissible under
the applicable statutes and rules of procedure, a temporary injunction may be granted immediately
upon the commencement of any such suit. Nothing contained herein shall be construed as prohibiting
the Company from pursuing any other remedies available at law or equity for such breach or
threatened breach of Section 6 or 7, or for any breach or threatened breach of any other provision
of this Agreement. The obligations contained in Sections 6 and 7 shall survive the termination or
expiration of the Executive’s employment with the Company and, as applicable, shall be fully
enforceable thereafter in accordance with the terms of this Agreement.



(c) Arbitration. The parties agree that any claim, controversy, or dispute between
Executive and the Company (including without limitation Company’s franchisees, officers, employees,
representatives, or agents) arising out of or relating to this Agreement, other than a dispute
concerning the breach or threatened breach of Section 6 or 7 of this Agreement, shall be submitted
to and settled by arbitration before a single arbitrator in a forum of the American Arbitration
Association (“AAA”) located in Broward County in the State of Florida and conducted in accordance
with the National Rules for the Resolution of Employment Disputes. In such arbitration: (a) the
arbitrator shall agree to treat as confidential evidence and other information presented by the
parties to the same extent as Confidential Information under this Agreement must be held
confidential by the Executive, (b) the arbitrator shall have no authority to amend or modify any of
the terms of this Agreement, and (c) the arbitrator shall have ten business days from the closing
statements or submission of post-hearing briefs by the parties to render its decision. All
AAA-imposed costs of said arbitration, including the arbitrator’s fees, if any, shall be borne by
Company. All legal fees incurred by the parties in connection with such arbitration shall be borne
by the party who incurs them, unless applicable statutory authority provides for the award of
attorneys’ fees to the prevailing party and the arbitrator’s decision and award provides for the
award of such fees. Any arbitration award shall be final and binding upon the parties, and any
court having jurisdiction may enter a judgment on the award. The foregoing requirement to arbitrate
claims, controversies, and disputes applies to all claims or demands by Executive,
including, without limitation, any rights or claims the Executive may have under the Age
Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, the Americans
with Disabilities Act of 1991, the Equal Pay Act, the Family and Medical Leave Act, or any other
federal, state or local laws or regulations pertaining to Executive’s employment or the termination
of Executive’s employment.


 


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9. WITHHOLDING




The Company shall withhold such amounts from any compensation or other benefits payable to the
Employee under this Agreement on account of payroll and other taxes as may be required by
applicable law or regulation of any governmental authority.



10. ENTIRE AGREEMENT




This Agreement contains the entire understanding between the parties hereto and supersedes all
other oral and written agreements or understandings between them. All previous oral or written
agreements between the parties hereto shall be deemed to have been completely fulfilled by both
parties and shall be superseded by this Agreement. No modification or addition hereto or waiver or
cancellation of any provision shall be valid except by a writing signed by all of the parties
hereto.



11. SUCCESSORS AND ASSIGNS




This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto
and their heirs, successors, assigns and personal representatives. As used herein, the successors
of the Company shall include, but not be limited to, any successor by way of merger, consolidation,
sale of all or substantially all of its assets, or similar reorganization. In no event may
Executive assign any duties or obligations under this Agreement. It is expressly agreed for
purposes of this Agreement that the spouse and children of Executive shall be third-party
beneficiaries of Executive under this Agreement and shall be entitled to enforce the rights of
Executive hereunder in the event of Executive’s death or disability.



12. CONTROLLING LAW




The validity and construction of this Agreement or of any of its provisions shall be
determined under the laws of Florida, without giving effect to any choice of law or conflict of law
provision or rule that would cause the application of the laws of any jurisdiction other than
Florida. The invalidity or unenforceability of any provision of this Agreement shall not affect or
limit the validity and enforceability of the other provisions hereof.


 


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13. COUNTERPARTS




This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument.  



14. HEADINGS




The headings herein are inserted only as a matter of convenience and reference, and in no way
define, limit or describe the scope of this Agreement or the intent of any provisions thereof.



15. INDEMNIFICATION




The Company shall indemnify and hold Executive harmless from and against all claims,
investigations, actions, awards, and judgments, including costs and attorneys’ fees, incurred by
Executive in connection with acts or decisions made by Executive in good faith in his or her
capacity as an executive of the Company, so long as Executive reasonably believed that the acts or
decisions were in the best interests of the Company and (with respect to any criminal action) the
Executive had no reason to believe the Executive’s conduct was unlawful. The Company further agrees
to pay the reasonable expenses of private counsel or investigators incurred in representing the
Executive in any audit, inquiry, regulatory review, or similar action or proceeding covered by this
indemnification. The Company shall not settle any claim or action or pay any award or judgment
against Executive without Executive’s prior written consent, which shall not be unreasonably
withheld. The Company may obtain coverage for Executive under an insurance policy covering the
directors and officers of the Company against claims set forth herein if such coverage is possible
at a reasonable cost, provided, however, it is understood and agreed that the Company’s obligation
to indemnify Executive as set forth in this Section 15 shall not be affected by the Company’s
ability or inability to obtain insurance coverage.


 
 


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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date and year
first above written.



	 	 	 	 	 
	 	
VALIANT HEALTHCARE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	EXECUTIVE:
 	 
	 	 	 
	 	Name:	 




 


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