This Employment Agreement (the "Agreement") is made and entered into as of [Date], by and between [Employee Name] (the "Executive") and [Company Name], a [State of Incorporation or Organization] [Type of Entity] (the "Company").
1. Employment
The Company hereby employs Executive, and Executive agrees to serve, as [Job Title] during the Term of Employment (as defined in Section 2 below). In such capacity, Executive shall be responsible for the duties set forth in Exhibit A, which may be amended from time to time, and performing those duties and given such authority as is consistent and commensurate with Executive’s position, as may from time to time be reasonably directed by [the Board of Directors of [Company Name]] (to whom Executive shall directly report), or such other executive as Company may deem in its sole discretion.
2.
The Term of Employment under this Agreement shall be for the period commencing on [Start Date] and ending on [End Date] (the "Term of Employment")[, provided however, that this Agreement shall be automatically renewed thereafter for successive twelve (12) month terms (each a "Renewal Term") if neither party gives the other party at least thirty (30) days prior written notice of its intention to terminate the Agreement before the end of the original Term of Employment or any Renewal Term (the "Notice Period")], unless earlier terminated pursuant to the provisions of Section 9 of the Agreement.
3. Place of Performance.
The principal place of Executive's employment shall be [Company's principal executive office] currently located in [Office Location][; provided that, the Executive may be required to travel on Company business during the Employment Term].
4. Compensation and Benefits
(a)
(b) Benefits. During the Term of Employment, Executive will receive the benefits that Company shall provide its [senior executives/employees] generally, including
(c) Vacation/Time Off. Executive will also be provided with [Vacation Number (__)] [weeks][days] of [vacation][paid time off] per calendar year during the Term of Employment, pro-rated for partial years, in accordance with Company vacation/time off policies in effect from time to time.
[(e) Management Bonus.
[5. Non-Solicitation/Non-Compete
(a)
(b) Non-Compete. Executive shall not, at any time during the [Non-compete Period], directly or indirectly, own, manage, operate, join, control, or participate in the ownership, management, operation, or control of, or be employed or retained by, render services to, provide financing or advice to, or otherwise be connected in any manner with any business that then competes with any business of Company or its affiliates. ]
6. Confidentiality
(a) Nondisclosure of Confidential information. Executive acknowledges that all information concerning Company’s business, financial condition, operations, strategies, and prospects,
(b) Ownership of Confidential Information.Executive acknowledges and agrees that all Confidential Information is the exclusive property of Company. Executive shall not disclose, directly or indirectly, Confidential Information to any person or, directly or indirectly, make use of or exploit for Executive’s own purposes or the benefit of any other person (except as an officer, director, or employee of Company or its affiliates) any Confidential Information.
7.
(a) IP Ownership. Executive acknowledges and agrees that all inventions, ideas, sketches, designs, prototypes, developments, improvements, or other intellectual property made or created by Executive, either alone or in conjunction with others, at any time or at any place during the Term of Employment by Company, whether or not reduced to writing or practice during such Term of Employment, which relate to the business in which Company is engaged, shall be the exclusive property of Company. Executive shall promptly disclose all inventions, developments, and improvements to Company and, at the request and expense of Company,
(b) Copyrights. All copyrightable work by Executive relating to Company’s business during the Term of Employment is intended to be "work made for hire" as defined in Section 101 of the Copyright Act of 1976, as amended, and shall be the property of Company. If the copyright to any copyrightable work is not the property of Company by operation of law, Executive will, without further consideration, assign to Company all right, title, and interest in such copyrightable work and will assist Company in every reasonable way, at Company’s expense, to secure, maintain, and defend for Company’s benefit copyrights and any extensions and renewals thereof in any and all countries, such work to be and to remain the property of Company whether copyrighted or not.
8. Enforceability and Breach
(a) Enforceability. Executive acknowledges and agrees that the limitations placed on Executive by this Agreement are reasonable and are required for the protection of Company. Executive agrees that if any such limitation is determined in arbitration or by a court of competent jurisdiction to be unenforceable, Executive agrees and submits to the reduction of such limitation as the court or arbitrator(s) deem reasonable. The limitations placed on Executive by the Agreement are of the essence of this Agreement and they shall be construed and enforced independently. Executive acknowledges and agrees that the provisions set forth in section 5, 6, 7, and 8, and any other provision which, by its terms, is intended to survive, shall survive the termination or cancellation of this Agreement.
(b) Breach. Executive acknowledges and agree that: (i) Company will be irreparably injured in the event of a breach by Executive of any of Executive’s obligations under this Agreement; (ii) monetary damages will not be an adequate remedy for any such breach; (iii) Company will be entitled to seek injunctive relief, in addition to any other remedy which it may have, in the event of any such breach; and (iv) Company shall be entitled, without the necessity of proving actual damages, to seek injunctive relief for any breach of this Agreement.
9.
(a) General. The Term of Employment shall be for the period provided in Section 2, unless employment and this Agreement is terminated earlier in accordance with the provisions of this section.
(b) Death and Disability. Executive’s employment under this Agreement shall terminate upon (i) Executive’s death, or (ii) in the event Executive becomes
(c) Termination by Company for "
(d) Termination by Executive for Good Reason. Executive may terminate Executive’s employment at any time during the Term of Employment for "
(e) Certain Obligations of Company Following Termination of Executive’s Employment. Following the termination of Executive’s employment under the circumstances described below, Company shall pay to Executive in accordance with its regular payroll practices the following compensation and provide the following benefits in full satisfaction and final settlement of any and all claims and demands that Executive now have or hereafter may have against Company (and its officers, directors, shareholders, and affiliates) under this Agreement (and provided Executive executes an appropriate release of claims against Company in a form provided by Company):
(i) In the event that Executive’s employment hereunder is terminated by Company other than for Cause (excluding expiration of the Term of Employment), or by Executive for Good Reason (
(A) Company will pay Executive all accrued and unpaid compensation and benefits up to and including the date of termination; and
(ii) In the event that Executive’s employment is terminated by Company for Cause, or by Executive voluntarily other than for Good Reason, all compensation and rights to benefits from Company pursuant to this Agreement shall cease on the date of such termination; provided, that Executive shall be entitled to all compensation and benefits as may have already accrued as of such date or as expressly provided in plans in which Executive was participating at such date or by law.
[(iii)
(f) Executive’s Duties on Termination. Upon termination of Executive’s employment with Company for any reason, including upon expiration of the Term of Employment, those duties and obligations set forth in Sections 4, 5, 6, and 7, and all other provisions which, by their terms, are intended to survive, shall survive and continue and bind Executive in accordance with the applicable terms.
(g)
[(h) Resignation of All Other Positions. Upon termination of the Executive’s employment for any reason, Executive shall be deemed to have resigned, effective as of the termination date, from all positions that the Executive holds as an officer or member of the board of directors (or a committee thereof) of the Company or any of its affiliates.]
[(i)
10. Miscellaneous
(a) Governing Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the
(b) Disputes. Regarding any dispute or disagreement that arises under this Agreement, Executive hereby consents to the jurisdiction of the Federal and State courts located in
(c) Assignment. This Agreement is a personal contract, and Executive’s rights, obligations and interests under the Agreement may not be sold, transferred, or assigned. The Company may freely assign this Agreement and any of its rights, obligations, and interests under the Agreement. This Agreement shall be binding upon and inure to the benefit of each party’s successors and permitted assigns.
(d) Headings. Section and paragraph headings contained in the Agreement are for reference only and shall not be considered a part of this Agreement.
(e) Notices. Any notices or other communications required or permitted under this Agreement shall be in writing and shall be deemed given (a) on the same day if given by hand, (b) on the fifth business day after mailing if given by registered or certified mail, return receipt requested, postage prepaid, (c) on the next business day after it was deposited with the courier service if sent by reputable overnight courier for next business day delivery, addressed to Executive at Executive’s home address, or to Company at [Company address].
(f)
(g) Severability. If any term or provision hereof is determined to be invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired, (b) any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction, and (c) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision.
(h) Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement (and all signatures need not appear on any one counterpart), and this Agreement shall become effective when one or more counterparts has been signed by each of the parties and delivered to the other party.
(i) Waiver. The failure of either party to at any time enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Agreement or any provision of the Agreement, or the right of either of the parties to thereafter enforce the provisions of this Agreement.
(j) Entire Agreement. This Agreement contains the entire agreement between the parties with respect to Executive’s employment by Company and the subject matter of this Agreement. This Agreement may only be changed or amended by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, or discharge is sought.
AGREED:
[COMPANY NAME]
|
[Executive Name]
|
By_____________________
Name: [Name of authorized signor] Title: ______________________ |
Signature:____________________________
Print Name: ___________________________ |
EXHIBIT A