Employment Agreement with Vice President of Sales and Marketing
This Employment Agreement is made on the day of , 20 ,
between of ,
(Name of Employee) (Street Address, City, County, State, Zip Code)
referred to herein as the Executive, and , a corporation
(Name of Employer)
organized and existing under the laws of the state of , with its
(Name of State)
principal office located at , referred to herein as
(Street Address, City, County, State, Zip Code)
the Company.
Whereas, the Company and the Executive desire to establish an employment relationship and
enter into this Agreement to describe the terms of such employment relationship and the
obligations of the parties;
Now, therefore, for and in consideration of the matters described above, and of the mutual
benefits and obligations set forth in this Agreement, the parties agree as follows:
I. Employment. The Company agrees to employ the Executive as its Vice President of
Sales and the Executive accepts such employment , upon the following terms and conditions.
II. Term.
A. Except as otherwise provided in this Agreement to the contrary, this Agreement
shall be and remain in effect during the period of employment
(the “Term” ) established under this Section II.
B. Except as provided in Paragraph C of this Section II , beginning on the effective
date of this Agreement, the Term shall be for one year and shall be automatically
extended each day that this Agreement is in effect (such that while this Agreement is in
effect the remaining Term shall never be less or greater than one year), unless either the
Company, or the Executive, respectively, elects not to extend the Term further by giving
written notice to the other party, in which case the Term shall end on the first anniversary
of the date on which such written notice is given; provided, however, that in any event,
the Term shall end on the last day of the month in which the Executive attains the age
of retirement .
C. Notwithstanding anything in this Agreement contained to the contrary , (i) this
Agreement may be terminated during the Term as provided for in this Agreement, and
(ii) nothing in this Agreement shall mandate or prohibit a continuation of the
Executive's employment following the expiration of the Term upon such terms and
conditions as the Company and the Executive may mutually agree.
Employment Agreement with Vice President of Sales and Marketing Page 1 of 10
III. Duties
A. Executive shall have authority and responsibility for the Company's sales
and marketing function and shall report directly to the Company's President and Chief
Executive Officer. The Executive shall perform such duties generally consistent with the
Executive's title and as may from time to time be required of the Executive by the
President and Chief Executive Officer or by the Board of Directors (the “Board” ) of the
Company. The Executive's office shall be located at the Company's principal place of
business set forth above. The Executive agrees to travel to the extent reasonably
necessary for the performance of his duties. The Executive shall devote his full time to
the business and affairs of the Company and shall use his best efforts, skill and ability in
performing his duties on behalf of the Company.
B. The Executive agrees that the Company, in its discretion, may apply for and
procure in its own name and for its own benefit, life insurance on the life of the Executive
in any amount or amounts considered advisable, and that he shall have no right, title or
interest in such life insurance. The Executive further agrees to submit to any medical or
other examination and to execute and deliver any application or other instrument in
writing, reasonably necessary to effectuate such insurance, provided such actions do not
materially harm the Executive's ability to otherwise obtain or retain personal life
insurance.
C. The Executive is not restricted in any way from being employed by the Company,
from entering into this Agreement or from performing his obligations under this
Agreement. The Executive shall not use any confidential information of any prior
employer in the performance of his duties under this Agreement.
IV. Base Compensation. As the base compensation for all services to be rendered by the
Executive to the Company, the Company agrees to pay to the Executive, and the Executive
accepts, a salary at a rate of $ per annum, payable in arrears in equal monthly
installments of $ each, subject to such deductions and withholdings as may be
required by law. Periodically, the Board will review the salary of the Executive, taking into
consideration such factors as the Executive's performance and such other matters as it deems
relevant and, in its discretion alone, may increase the salary of the Executive to such rate as the
Board deems proper, provided that the Company shall in no event be required to grant any such
increase.
V. Incentive and other Compensation
A. Bonus. The Executive shall be eligible to receive bonuses and awards under the
Company's bonus plans or arrangements as may be in effect from time to time, including
the Company's Annual Executive Cash Bonus Program, as may be from time to time
determined by the Board or a committee of the Board.
Employment Agreement with Vice President of Sales and Marketing Page 2 of 10
B. Long-Term Incentive Compensation. The Executive shall be eligible to
participate in any long-term incentive compensation plan generally made available to
similarly situated executive officers of the Company in accordance with and subject to
the terms of such plans, including the Company's Annual Stock-Based Incentive Award
Plan for Senior Executives, as may from time to time be determined by the Board or a
committee of the Board.
C. First Year Signing Bonus. During the first year of this Agreement, the Executive
shall entitled to a signing bonus of $ per month, the entire amount of which
shall be advanced to the Executive upon execution of this Agreement (the “ Signing
Bonus ”), subject to such deductions and withholdings as may be required by law. If the
Executive resigns without cause during the first year of this Agreement, the Executive
shall (i) only be entitled to retain the portion of the amount advanced to him under this
Paragraph C as is equal to $ times the actual number of full months for
which he was employed by the Company, and (ii) shall immediately return to the
Company the amount of the Signing Bonus advanced to him in excess of such number.
By way of example, if the Executive resigns without cause after completing seven full
months of employment with the Company, he shall retain $ (7 x
$ of the Signing Bonus and shall immediately return to the Company the
unearned portion of (5 x $ ).
D. Other Compensation. The Company may, upon recommendation of the Board or
a committee of the Board, award to the Executive such other bonuses and compensation
as it deems appropriate and reasonable.
VI. Benefits. During the term of this Agreement, the Company shall provide the following
benefits to the Executive:
A. Medical. The Company will provide the Executive health coverage
for himself and his family in accordance with the Company's health and medical
insurance plans, as the same may be in effect from time to time. The Executive shall be
responsible for paying the employee portion of the premiums for such health and medical
insurance plans.
B. Vacation. The Executive shall be entitled to weeks of vacation per
(Number)
year in accordance with the Company's general vacation policies and practices as may be
in effect from time to time. Upon the anniversary of this Agreement, the
(Number)
Executive shall be entitled to weeks of vacation per year. For Company
(Number)
vacation policy purposes only, the Executive shall be credited with years of
(Number)
Employment Agreement with Vice President of Sales and Marketing Page 3 of 10
service as of the date his employment with the Company commences.
C. General Benefits. The Executive shall be entitled to participate in all employee
benefit plans and arrangements of the Company that may be in effect from time to time
and as may from time to time be made available to the other similarly situated executives
of the Company, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements.
D. No Limitation of Company's Rights. Nothing in this Section VI
shall be construed to limit or restrict the complete discretion of the Company to amend,
modify or terminate any employee benefit plan or plans of the Company where such
action generally affects plan participants or employees, including the Executive.
E. Life Insurance. The Company shall provide the Executive with
$ per annum for the purpose of the Executive procuring a term
life insurance policy that names such person or persons that the Executive
chooses as his beneficiary.
VII. Travel Expenses . The Company shall pay or reimburse the Executive for all reasonable
and necessary travel and other expenses incurred or paid by the Executive in connection with the
performance of his duties under this Agreement upon presentation of expense statements or
vouchers and such other supporting information as the Company may from time to time
reasonably request. However, the amount available for such travel and other expenses may be
fixed in advance by the Company.
VIII. Termination. This Agreement shall terminate prior to the Term expiration date, set forth
above, if the Executive shall die or the Board shall reasonably determine that the Executive has
become disabled, or if the Executive's employment shall be terminated for cause or without
cause, as provided below.
A. Disability. The Board may determine that the Executive has become disabled, for
purposes of this Agreement, if the Executive shall fail, because of illness or incapacity, to
render for months, or for shorter periods aggregating months
(Number) (Number)
or more in any period of 12 months, services of the character contemplated by this
Agreement; and upon such determination this Agreement and all rights of the Executive
under this Agreement shall be deemed to have been terminated as of the end of the
calendar month in which such determination is made.
B. For Cause. The Board may dismiss the Executive for cause if it determines that
there has been willful misconduct by the Executive in connection with the performance
of his duties under this Agreement, that there has been any other conduct on the part of
the Executive which has been materially injurious to the Company, or that the Executive
has breached any of his representations or warranties contained in this Agreement; and
upon such determination this Agreement shall terminate effective upon the delivery to the
Executive of days' written notice that the Board has made such
Employment Agreement with Vice President of Sales and Marketing Page 4 of 10
(Number)
determination. For purposes of this Agreement, “cause” shall be determined only by a
good faith finding of cause by the Board, which shall afford the Executive the
opportunity to appear before it prior to finalizing any such determination.
C. Without Cause. The Executive may resign without cause at any time upon
days' written notice to the Company, in which event the Company's
(Number)
obligation to compensate him ceases on the effective date of his termination except as to
amounts due to him under Subparagraph 1 of this Paragraph C. If the Company
dismisses the Executive other than for cause, or if the Executive resigns because of a
material breach of this Agreement by the Company (which the Executive may do only if
such breach remains materially uncured after the Executive has provided
(Number)
days' prior written notice to the Board, and the Executive's dismissal or resignation
qualifies as a “separation from service” for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations and other official
guidance issued Section 409A ( collectively, “ Section 409A ”), then the Company shall
provide to the Executive:
1. Payment of the compensation due to him through the effective date of the
termination of the Executive's employment , within business days
(Number)
following such effective date of the termination of the Executive's employment ;
2. Continuation of the Executive's salary for six months following the
effective date of the termination of the Executive's employment at the higher of
the rate specified in Section IV or the highest salary rate in effect for the
Executive during the one-year period preceding the termination of his
employment , which salary continuation shall be paid monthly in accordance with
the Company's regular payroll practices; and
3. Payment of any Accrued Bonus (as defined below), to be paid as soon as
administratively practicable six months after the effective date of the termination
of the Executive's employment . Accrued Bonus shall mean any amount of bonus
with respect to any year prior to the year in which dismissal without cause occurs
( Prior Bonus Year), calculable by applying the formula prescribed by the
Company's incentive compensation plan as it existed on December 31 of such
Prior Bonus Year and employing in the application of such formula the goals,
ratios and weighting percentages and other variable figures which the bonus plan
calls for the Company's Board of Directors or any committee of the Board to
determine annually ( Bonus Plan Variables ) and which the Board or any
committee of the Board adopted for purposes of the bonus plan prior to December
31 of such Prior Bonus Year. Notwithstanding any other provision of this Section
VIII , no Accrued Bonus shall be payable pursuant to this Paragraph C for any
Employment Agreement with Vice President of Sales and Marketing Page 5 of 10
Prior Bonus Year with respect to which a bonus amount was paid to and accepted
by the Executive.
Notwithstanding any provision of this Agreement to the contrary, to the extent
that any payments under this Paragraph C are subject to a six-month waiting
period under Section 409A, any such payments that would be payable before the
expiration of six months following the Executive's separation from service but for
the operation of this sentence shall be made during the seventh month following
the Executive's separation from service. If the provisions of this Paragraph C are
triggered, the Executive shall resign from all offices and directorships of the
Company, upon payment to the Executive of the amount referred to in
Subparagraph 1 above.
D. Release of Claims. The Company's obligation to provide the payments under this
Section is conditioned upon the Executive's execution of an enforceable release of all
claims (and upon the expiration of all applicable rescission periods contained in such
release) and his compliance with all provisions of this Agreement. If the Executive
chooses not to execute such a release (or rescinds such release) or fails to comply with
these provisions, then the Company's obligation to compensate him ceases on the
effective date of his termination except as to amount due to under Subparagraph C-1 of
this Section VIII. .
E. Return of Confidential Documentation. Upon termination of his
employment for any reason whatsoever, the Executive shall return to the Company (and
shall not retain any copies or summaries, in any form whatsoever) all working papers,
computer equipment, notebooks, strategic plans and other confidential or proprietary
documents and information of the Company in any form whatsoever.
IX. Covenants of Executive. Executive acknowledges that : (i) the business of the Company
as currently conducted and as conducted from time to time throughout the term of this
Agreement (collectively, the Business ), is conducted by and is proposed to be conducted by the
Company on a world-wide basis (the Company's Market ); (ii) the Business involves
; (iii) the
(Brief Description of Business)
Company has developed trade secrets and confidential information concerning the Business; and
(iv) the agreements and covenants contained in this Section X are essential to protect the
Business.
X. In order to induce the Company to enter into this Agreement, the Executive agrees as
follows:
A. Agreement Not to Compete. For a period of months after the
(Number)
termination of the Executive's employment with the Company for any reason (the
Restricted Period ), neither the Executive nor any entity of which %
Employment Agreement with Vice President of Sales and Marketing Page 6 of 10
(Percentage of Ownership)
or more of the beneficial ownership is held by the Executive or a person related to the
Executive by blood or marriage (a Controlled Entity) will, anywhere in the
Company's Market , directly or indirectly own, manage, operate, control, invest or acquire
an interest in, or otherwise engage or participate in, whether as a proprietor, partner,
stockholder, director, officer, member manager, employee or otherwise any business
which competes in the Company's Market with the Business, without the prior written
consent of the Company. Notwithstanding any other provisions of this Agreement, the
Executive may make a passive investment in any publicly traded company or entity in an
amount not to exceed of the voting stock of any such company or entity.
(Percentage)
B. Agreement Not to Interfere in Business Relationships.
1. During the Restricted Period, neither the Executive nor any Controlled
Entity will directly or indirectly solicit, induce or influence any customer, or any
other person which has a business relationship with the Company or which had on
the date of this Agreement such a relationship with the Company to discontinue or
reduce the extent of such relationship with the Company in the Company's
Market .
2. During the Restricted Period, neither the Executive nor any Controlled
Entity will (a) directly or indirectly recruit, solicit or otherwise induce or
influence any stockholder or employee of the Company to discontinue such
employment or other relationship with the Company or (b) employ or seek
to employ , or cause any business which competes in the Company's
Markets to employ or seek to employ for any reason, any person who is then [or
was at any time within months prior to the date the Executive or
(Number)
such business employs or seeks to employ such person)] employed by the
Company without the prior written consent of the Company.
C. Confidentiality. During the Restricted Period, neither the Executive nor any
Controlled Entity will directly or indirectly disclose to anyone, or use or otherwise
exploit for the Executive's or any Controlled Entity's own benefit or for the benefit of
anyone other than the Company, any confidential information, including, but not limited
to, any confidential “know-how,” trade secrets, customer lists, details of customer
contracts, pricing policies, operational methods, marketing plans or strategies, product
development techniques or plans, business acquisition plans or new personnel acquisition
plans of the Company related to the Business or any portion or phase of any scientific,
engineering or technical information, design, process, procedure, formula, improvement,
discovery, invention, machinery or device of the Company or any subsidiary or affiliate,
whether or not in written or tangible form (collectively, Confidential Information). The
term Confidential Information does not include, and there shall be no obligation under
this Paragraph C with respect to, information that becomes generally available to the
public or the Company's competitors other than as a result of a disclosure by the
Employment Agreement with Vice President of Sales and Marketing Page 7 of 10
Executive or a Controlled Entity or any agent or other representative of the Executive or
a Controlled Entity. Neither the Executive nor any Controlled Entity shall have any
obligation under this Paragraph C to keep confidential any Confidential Information to
the extent disclosure is required by law, or determined in good faith by the Executive to
be necessary or appropriate to comply with any legal or regulatory order, regulation or
requirement; provided, however, that if disclosure is required by law, the Executive or the
Controlled Entity concerned shall provide the Company with prompt advance written
notice of such requirement so that the Company may seek an appropriate protective
order. It is understood that in any new employment , the Executive may use his ordinary
skill and nonconfidential knowledge, even though such skill and nonconfidential
knowledge may have been gained at the Company. The Executive's obligations under this
Paragraph C shall be in addition to, not in substitution for, any common law fiduciary
duties the Executive has to the Company regarding information acquired during the
course of his employment .
D. Intellectual Property. The Executive shall communicate to the Company full
information concerning all inventions, improvements, discoveries, formulas, processes,
systems of organization, management procedures, software or computer applications
(collectively, Intellectual Property) made or conceived by him either solely or jointly
with others while in the employ of the Company, whether or not perfected during his
period of employment and which shall be within the existing or contemplated scope of
the Company's business during his employment . The Executive will assist the Company
and its nominees in every way at the Company's expense in obtaining patents for such
Intellectual Property as may be patentable in any and all countries and the Executive will
execute all papers the Company may desire and assignments of such Intellectual Property
to the Company or its nominees and such Intellectual Property shall be and remain the
property of the Company and its nominees, if any, whether patented or not or assigned or
not.
E. Remedies. The parties to this Agreement agree that (i) if either the
Executive or any Controlled Entity breaches any provision of this Section X, the damage
to the Company, although difficult to ascertain, and money damages will not afford an
adequate remedy, and (ii) if either the Executive or any Controlled Entity is in breach of
this Agreement, or threatens a breach of this Agreement, the Company shall be entitled in
its own right in addition to all other rights and remedies as may be available at law or in
equity, to (1) injunctive and other equitable relief to prevent or restrain a breach of this
Agreement and (2) may require the breaching party to pay damages as the result of any
transactions constituting a breach of this Agreement.
E. Survival of Covenants. In the event of a termination of this Agreement, the
agreements contained in this Section X and in Sections XI through XX shall survive,
shall continue after termination of this Agreement, and shall not expire unless and except
as expressly set forth in this Section X .
XI. Indemnification of Executive. If the Executive is terminated for any reason, (a) the
Company will hold harmless and indemnify the Executive for all third-party claims, actions or
Employment Agreement with Vice President of Sales and Marketing Page 8 of 10
other proceedings against the Executive initiated either prior to the termination of employment or
after such termination which relate to duties performed in good faith by the Executive
while employed by the Company; and (b) the Company will retain the Executive as named
insured under any directors' and officers' insurance policies it may have, for acts of the Executive
during the time he served as an officer of the Company. Additionally, all reasonable legal and
other costs incurred by the Executive to defend himself will be paid by the Company, as the
Executive is billed for such costs, within days of periodic submission to the
(Number)
Company of statements of charges of attorneys and statements of other expenses incurred by the
Executive in connection with such defense.
XII. Section 409A. T his Agreement is intended to comply with Section 409A to the extent its
provisions are subject to that law. The parties agree that they will negotiate in good faith
regarding amendments necessary to bring this Agreement into compliance with the terms
of Section 409A or an exemption from Section 409A as interpreted by guidance issued by the
Internal Revenue Service, taking into account any limitations on amendments imposed
by Section 409A or Internal Revenue Service guidance. The parties further agree that to the
extent the terms of this Agreement fail to qualify for exemption from or satisfy the requirements
of Section 409A, this Agreement may operate in compliance with Section 409A pending
amendment to the extent authorized by the Internal Revenue Service. In such circumstances the
Company and the Executive will administer this Agreement in a manner which adheres as
closely as possible to the existing terms and intent of this Agreement while complying
with Section 409A.
XIII. Severability. The invalidity of any portion of this Agreement will not and shall not be
deemed to affect the validity of any other provision. If any provision of this Agreement is held to
be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and
effect as if they had been executed by both parties subsequent to the expungement of the invalid
provision.
XIV. No Waiver. The failure of either party to this Agreement to insist upon the
performance of any of the terms and conditions of this Agreement, or the waiver of any breach of
any of the terms and conditions of this Agreement, shall not be construed as subsequently
waiving any such terms and conditions, but the same shall continue and remain in full force and
effect as if no such forbearance or waiver had occurred.
XV. Governing Law. This Agreement shall be governed by, construed, and enforced in
accordance with the laws of the State of .
(Name of State)
XVI. Notices. Unless provided herein to the contrary, any notice provided for or concerning
this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified
or registered mail if sent to the respective address of each party as set forth at the beginning of
this Agreement.
XVII. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the
unsuccessful party in the action shall pay to the successful party, in addition to all the sums that
either party may be called on to pay, a reasonable sum for the successful party's attorney fees.
Employment Agreement with Vice President of Sales and Marketing Page 9 of 10
XVII. Mandatory Arbitration. Any dispute under this Agreement shall be required to be
resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator,
each party shall select one arbitrator and both arbitrators shall then select a third. The third
arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of
the American Arbitration Association then in force and effect.
XVIII. Entire Agreement. This Agreement shall constitute the entire agreement between the
parties and any prior understanding or representation of any kind preceding the date of this
Agreement shall not be binding upon either party except to the extent incorporated in this
Agreement.
XIX. Modification of Agreement . Any modification of this Agreement or additional
obligation assumed by either party in connection with this Agreement shall be binding only if
placed in writing and signed by each party or an authorized representative of each party.
XX. Assignment of Rights. The rights of each party under this Agreement are personal to that
party and may not be assigned or transferred to any other person, firm, corporation, or other
entity without the prior, express, and written consent of the other party.
XXI. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute but one and the
same instrument.
XXII. Compliance with Laws . In performing under this Agreement, all applicable
governmental laws, regulations, orders, and other rules of duly-constituted authority will be
followed and complied with in all respects by both parties.
XXIII. Gender. Words used herein regardless of the gender specifically used, shall be deemed
and construed to any other gender, masculine, feminine or neuter, as the context requires.
WITNESS our signatures as of the day and date first above stated.
By: By:
(Signature of Employee) (Signature of Officer)
(P rinted Name of Employee) (P rinted Name & Office in Corporation)
Employment Agreement with Vice President of Sales and Marketing Page 10 of 10
