THIS AGREEMENT made this __________ day, of ____________ 2XXX between XYZ, INC., a Delaware corporation with a place of business at [specify address] ("Employer"), and John Doe, residing at [specify address] ("Employee").
W I T N E S S E T H:
WHEREAS, the Employer desires to employ the Employee, and the Employee desires to be employed by the Employer, on the terms and conditions contained herein,
NOW, THEREFORE, in consideration of the mutual covenants, conditions and agreements as hereinafter set forth, the parties agree as follows:
1. Employment. The Employer hereby employs the Employee, and the Employee hereby accepts employment as [position], upon the terms and conditions hereinafter set forth.
2. Duties. The Employee shall perform his duties as [position] at the Employer's place of business in New York. The Employee shall be responsible for all duties commensurate with his position of [position], as directed, established and assigned by the Employer from time to time including, without limitation, the marketing, promotion and sales of the Employer's products throughout the United States market.
The Employer, in its discretion, shall have the right, at any time during the term of this Agreement, to assign the Employee to perform duties different in any manner whatsoever from the duties originally assigned and specified.
3. Compensation. During the term of this Agreement, the Employee shall receive as full compensation for services rendered, payable in accordance with the prevailing payroll practices of the Employer, ten percent of the Net Sales (as defined below) of the Employer as determined by the Employer's auditors, such determination to be conclusive and binding on the Employer and the Employee for such purpose, less $5,000 per annum. Net sales shall mean actual receipts received by the Employer from the sale of its products to its purchasers after any applicable discounts are applied and exclusive of amounts received for taxes, handling, shipping, insurance and similar costs. Such Net Sales shall be determined by the Employer's auditors no later than the conclusion of each calendar month following the month to which such determination relates. The Employer shall pay to the Employee his compensation based upon such determination at the conclusion of the month in which such determination is made.
To the extent that with respect to any month the application of the foregoing provisions of this Article 3 result in the Employee's receiving less than $__________ in compensation for such month (the "Minimum Amount"), then the Employee shall be entitled to receive as a draw (the "Draw") against future compensation hereunder, and in addition to the compensation otherwise payable to him hereunder with respect to such month (the "Monthly Compensation"), the lesser of (i) the difference between the Monthly Compensation and the Minimum Amount, or (ii) ten percent of the Employer's accounts receivable generated during such month by reference to invoices of the Employer dated and dispatched during such month for product of the Employer sold and dispatched during such month. The full amount of the Draw shall be repaid to the Employer as a deduction against compensation payable to the Employee hereunder in the month next succeeding the month in which such Draw is received, and such immediately succeeding months as may be necessary to reimburse the Employer in full for the amount of the Draw. Notwithstanding anything to the contrary contained herein, the Employee shall only be entitled to a Draw hereunder to the extent that all previous Draws have been fully reimbursed to the Employer. Any unreimbursed Draw outstanding upon the termination of this Agreement or other termination of the employment of the Employee shall immediately be reimbursed by the Employee to the Employer, and shall be applied as a setoff against any amounts which might otherwise be owing by the Employer to the Employee at the time of such termination.
The Employer shall reimburse the Employee for all reasonable and necessary expenses incurred by the Employee in connection with the Employer's business, provided that (i) such expenses are within the annual budget established by the Employer, (ii) such expenses are deductible to the Employer and (iii) such expenses are properly documented and accounted for in accordance with the policies of the Employer as in effect from time to time, and in accordance with the requirements of the Internal Revenue Service, as in effect from time to time.
From time to time the Employee may propose to the Employer that additional persons be engaged to assist the Employee in his efforts hereunder. The Employee shall be free in his discretion to effect such engagements, it being understood, however, that any engagements shall be at the sole expense of the Employee, and that the Employer shall have the right to reject any such proposed engagements, or terminate any person so engaged, for cause.
4. Holidays; Vacation. The Employee shall be entitled to holidays and vacation in accordance with the prevailing policies of the Employer as in effect from time to time.
5. Death or Disability. If the Employee dies or becomes disabled so that he cannot perform his duties under this Agreement in a manner satisfactory to the Employer, in its discretion, the Employer may terminate this Agreement, and thereupon the Employer shall pay to the representative of the Employee's estate or to the Employee any compensation which would otherwise be payable to the Employee up to the end of the month in which such termination occurs.
6. Covenant Not to Disclose Information; Exclusive Employment, Remedies. The parties hereto recognize that Proprietary Information (as hereinafter defined) is important, material and confidential. Accordingly, the Employee shall not, directly or indirectly, during the term of this Agreement or at any time thereafter, without the prior written consent of the Employer, disclose, use or permit any other business, firm, corporation, person or other entity to disclose, use or have access to Proprietary Information, except as may be necessary in connection with the Employee's provision of services under this Agreement. As used in this Agreement, "Proprietary Information" means information disclosed to or obtained by the Employee as a result of or related to his relationship with the Employer, whether or not acquired during business hours, including, but not limited to, information concerning the Employer's business, customers, operations, and services. During the course of the Employee's employment under this Agreement and at all times thereafter, the Employee shall not, without the prior written consent of the Employer, directly or indirectly, record, photograph, photocopy or by any other means copy or cause to be copied any document, list or other writing or material that embodies or relates to Proprietary Information except as may be necessary in connection with the Employee's provision of services under this Agreement.
Immediately upon the termination of this Agreement and the Employee's employment under this Agreement, the Employee shall return to the Employer everything in the Employee's possession or custody or under the Employee's control which contains or relates to any Proprietary Information.
All business conducted, generated, or produced by the Employee must be through the Employer, unless the Employer previously has otherwise specifically consented in writing.
The covenants contained in this paragraph 6 shall be construed as an agreement independent of any other provision of this Agreement, and the existence of any claim or cause of action of the Employee against the Employer, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Employer of this independent agreement in this paragraph 6.
In the event of an actual or threatened breach by the Employee of any of the covenants contained in this paragraph 6, the Employer shall be entitled to an injunction restraining the Employee from such action or threatened action. In addition, the Employer may pursue any other remedies available for such actual or threatened breach, including recovery of damages from the Employee.
7. Termination. The Employee or the Employer may terminate this Agreement and the Employee's employment hereunder at any time, upon one,month's prior notice, for any reason, or no reason, without cause. The Employer may terminate this Agreement and the Employee's employment hereunder at any time, without prior notice, for cause. This Agreement and the Employee's employment hereunder shall automatically terminate upon the Employee' s ceasing to be a stockholder of the Employer. Subsequent to any termination hereunder, the Employee shall have no right to receive any further compensation from the Employer whatsoever beyond that which has become due and payable to the Employee, pursuant to the terms of this Agreement, as of the date of such termination,, provided, however, that the agreements contained in paragraph 6 shall survive any termination of this Agreement.
8. Assignment. The rights of this Agreement, including paragraph 6 of this Agreement, may be assigned, conveyed or sold by the Employer and shall be binding upon the Employee, his heirs and permitted assigns. The Employer has entered into this Agreement in reliance upon the Employee's specific personal qualities including ability, skill, trust, experience, character and judgment, and this Agreement is not assignable by the Employee to any entity or person without the express consent in writing of the Employer.
9. Notices. Any and all notices or other communications required or permitted to be given under any of the provisions of this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or mailed by first class, certified mail, return receipt requested, addressed to the party to whom the notice is directed at its address appearing above, or at such other addresses as the parties may designate from time to time.
10. Severability. If any provision of this Agreement shall be held or deemed to be invalid, such circumstance shall not have the effect of rendering any other provision of this Agreement invalid, inoperative or unenforceable, but such invalid provision shall, to the extent possible, be modified to render it valid, and if such provision is not capable of being so modified, this Agreement shall be construed as if such invalid, inoperative or unenforceable provision had never been contained herein so as to give full force and effect to the remaining such terms and provisions.
11. Entire Agreement; Amendment. This writing constitutes the entire agreement of the parties with respect to the subject matter hereof and may not be modified, amended or terminated except by written agreement specifically referring to this Agreement signed by all of the parties hereto.
12. Waiver. No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party giving such waiver, and no such written waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.
13. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of each party hereto, its successors and permitted assigns.
14. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which taken together shall constitute one agreement.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the law of the conflicts of law of such state.
16. Paragraph Headings; Construction. The headings in this Agreement are for convenience only and are not intended to influence its construction. Any references to "Articles", "Paragraphs" or "Exhibits" in this agreement are to the articles, paragraphs, and exhibits to this Agreement. Any Exhibits are part of this Agreement. In this Agreement, the singular includes the plural, the plural the singular, and the words "and" and "or" are used in the disjunctive and conjunctive sense, as the sense and circumstances may require.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed, delivered and effective as of the day and year first above written.
XYZ, INC.
By:
Name:
Title: