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(Comprehensive -- Long Form)
AGREEMENT, made on (... date of agreement ...) by and between (... name of Employer ...) (... address of Employer ...) (hereinafter referred to as the "Company"), (... name of Employee ...) (... address of Employee ...) (hereinafter referred to as the "Employee").
WHEREAS, the Company wishes to obtain the services of Employee and Employee desires to render such services;
WHEREAS, the Company deals with highly confidential information, which is of great value to the Company, and which must be protected from any non authorized disclosure; and
WHEREAS, in order to hire the Employee the Company requires that the Employee execute this Agreement;
NOW, THEREFORE, in consideration of mutual covenants herein contained, and for other good and valuable consideration, receipt of which is hereby acknowledged, the Company and the Employee hereby agree as follows:
1. Employment of Employee.
The Company hereby employs the Employee as (... description of employee's position ...) and Employee hereby accepts such employment with the Company, upon the terms and conditions herein contained.
2. Term. Unless sooner terminated as provided in this Agreement, the term of employment of the Employee hereunder shall be for an initial period of (... duration of initial period ...) years, commencing on the date hereof and terminating on (... date of termination ...) (the "Initial Term"). Following completion of the Initial Term, the term of employment shall automatically continue on a year to year basis; provided however, that the Company may terminate this Agreement on not less than three (3) month's prior notice to the Employee that it desires to terminate this Agreement at the end of the then current period of extension. Any such renewal shall be upon the same terms and conditions as contained in this Agreement.
3. Employment Services. The Employee shall devote his full time and best efforts and his energy and skill to such employee duties commensurate with his position and as the (... Supervisor of Employee ...) or the Board of Directors (the "Board") of the Company may reasonably assign him, and will use his best efforts to promote the best interests of the Company.
4. Compensation. (a) In consideration of the services to be rendered by the Employee hereunder, including, without limitation, any services rendered by him as an officer or director of the Company, the Company shall pay to the Employee, and the Employee agrees to accept, as full compensation for such services, fixed compensation at the rate of (... first year's annual salary ...) dollars for the first year of this Agreement, payable in equal monthly installments. Thereafter, the compensation shall be determined at the free discretion of the Compensation Committee of the Board of Directors.
(b) The Employee shall be entitled to purchase common shares of the Company as described and subject to schedule A of the Agreement.
5. Termination. (a) The Employee's employment hereunder may be terminated immediately by the Company for Cause upon written notice to the Employee or his estate. Cause for purposes of this Agreement shall mean any
(1) willful disregard of or failure to perform duties,
(2) habitual absence from employment,
(3) drunkenness or drug abuse,
(5) the breach by Employee of any material provision of this Agreement,
(6) selling, passing on or otherwise using without permission any confidential information of the Company,
(7) action or engagement in competition of the Company, or
(b) In the event the Employee, due to physical or mental injury, illness, disability or incapacity, shall fail to render the services provided for in this Agreement for a consecutive period of [--] months, the Company may, at its option, terminate the Employee's employment hereunder by [--] days prior written notice to the Employee or his legal representative.
(c) The Employee may terminate his employment hereunder by [--] month prior written notice to the Company that he desires to terminate this Agreement at the end of the then current period of extension. In the event that the Employee gives any notice of termination to the Company pursuant to this Section, the Company may immediately terminate the Employee's employment.
(d) If the Employee has given proper and timely notice that he desires to terminate this Agreement, the Company may choose to pay the Employee only half the compensation hereunder at any time after receipt of such termination notice. In the event that the Employee fails to give prior notice in accordance with this section of this Agreement, the Company may terminate any further obligation to thereafter compensate the Employee hereunder.
(e) In the event that the Employee fails to give prior notice in accordance with this section of this Agreement, the Employee shall be liable for any consequent damages resulting from an early leave.
6. Non-Disclosure of Confidential Information and Non-Competition. (a) (1) The Employee acknowledges that it is the policy of the Company to maintain as secret and confidential all Confidential Information as hereinafter defined. "Confidential Information" shall mean any information, not generally known in the Company's industry which gives the Company a competitive advantage in the industry, heretofore or hereafter acquired, discovered, developed, conceived, originated, used or prepared by the Company or by an employee of the Company as the result of employment with the Company and which falls within the following general categories:
(i) information relating to trade secrets of the Company or any customer of the Company;
(ii) information relating to existing or contemplated products, services, technology, designs, processes, manuals, formulas, computer systems and/or software, and any research or development of the Company or any customer of the Company;
(iii) information relating to business plans, sales or marketing methods, methods of doing business, customer lists, customer usages and/or requirements, and supplier information of the Company or any customer of the Company;
(iv) information relating to work products in general or as described in Section 8 of this agreement, and
(v) any other Confidential Information that either the Company or any customer of the Company may wish to protect by patent, copyright or by keeping it secret and confidential.
(2) The Employee recognizes that the services to be performed by the Employee are special and unique, and that by reason of his duties, he will acquire Confidential Information. The Employee recognizes that all such Confidential Information is the property of the Company. In consideration of the Company's entering into this Agreement, the Employee agrees that:
(i) the Employee shall never, during the term of his employment or thereafter, directly or indirectly, use, publish, disseminate or otherwise disclose any Confidential Information obtained in connection with his employment by the Company without the prior written consent of the Company's Board of Directors, acting independently, it being understood that this subparagraph shall survive the term of this Agreement;
(ii) during the term of his employment by the Company, he shall exercise all due and diligent precautions to protect the integrity of the Company's customer lists, mailing lists and sources thereof, statistical data and compilations, agreements, contracts manuals or other documents embodying any Confidential Information and, upon termination of his employment, he shall return all such documents and any copies thereof, in his possession or control.
(iii) during the non-competition period, as described hereafter, he shall exercise the very same standards to protect any Confidential Information and shall never, directly or indirectly, use publish, disseminate or otherwise disclose any Confidential Information obtained in connection with his employment, it being understood that this subparagraph shall survive the term of this Agreement.
(3) Upon the termination or expiration of this Agreement, the Employee shall immediately deliver to the Company all of the books, records, memoranda, reports, data and documents relating to the Company's business and customers and other assets of the Company in the possession, custody or under the control of the Employee, whether or not such material contains Confidential Information.
The Employee agrees that the provisions of this paragraph (a) are reasonably necessary to protect the proprietary rights of the Company in Confidential Information and its trade secrets, goodwill and reputation.
(b) (1) During the Non-Competition Period (as hereinafter defined), the Employee shall not in any way, be engaged, directly or indirectly, anywhere within the United States (or for such lesser period of time or for such lesser geographical areas as may be determined by arbitration to be a reasonable limitation on the competitive activities of the Employee) during such period as an employee, partner, officer, director, representative, consultant, agent or stockholder (other than as the holder of not more than [--%] percent of the stock of a corporation the shares of which are publicly traded) of any corporation, partnership, proprietorship or other form of business entity engaged in the business of designing and developing products or services similar to the products or services of the Company. Without limiting the foregoing, during the Non-Competition Period the Employee shall not seek to persuade, directly or indirectly, any director, officer or employee of the Company to discontinue that individual's status or employment with the Company, nor to become employed in any activity similar to or competitive with the activities of the Company, nor will he, directly or indirectly, hire or retain any such person, nor will he solicit or cause or authorize, directly or indirectly, to be solicited, for or on behalf of himself or any third party, from others who are customers of the Company, any business which is competitive with the Company.
(2) For purposes of this Agreement, the Non-Competition Period shall mean the period commencing on the date hereof and ending (... duration of non-competition ...) years after the date that the Employee's employment hereunder is terminated.
(c) The Employee acknowledges that any breach or threatened breach or alleged breach or alleged threatened breach by him of the provisions of this Section 7 can cause irreparable harm to the Company for which the Company would have no adequate remedy at law. In the event of a breach or threatened breach or an alleged breach or alleged threatened breach by the Employee of any of such provisions, the Company, in addition to any and all other rights and remedies it may have under this Agreement or otherwise, and notwithstanding the arbitration provisions of Section 15 hereof, may immediately seek any judicial action that the Company may deem necessary including, without limitation, the obtaining of temporary and preliminary injunctive relief.
7. Special Representations and Warranties of the Employee.
The Employee hereby represents and warrants the following to the Company:
(a) The Employee is able in all respects to execute and perform this Agreement, and the execution and performance hereof does not constitute a breach or default under any other agreement, contract or arrangement which is binding upon the Employee.
(b) The Employee is entering into this Agreement in good faith.
8. Assignment of Work Product.
(a) Employee agrees that, with respect to his work product resulting from any research or other developmental activities performed in connection with his duties hereunder, any such developments made by Employee or under Employee's direction shall be the sole and complete property of the Company and that any and all patents and copyrights resulting therefrom shall belong to the Company except as determined by any specific provision herein.
(b) In the event that, during or subsequent to the employment the Employee's assistance is needed in regard to securing, defending or enforcing any patent or copyright of which the Employee is an inventor, co-inventor, author, designer, etc., the Employee shall comply upon reasonable requests to so assist the Company without any additional compensation, it being understood that this subparagraph shall survive the term of this Agreement.
9. Notices. Any notice, request, instruction or other document to be given under this Agreement to any party hereunder by any other party hereunder shall be in writing and delivered personally, or sent by registered or certified mail, postage prepaid to the following addresses:
If to the Company:
(...address of Employer...)
If to the Employee:
(... address of Employee ...)
or to such other address as a party hereto may hereafter designate in writing to the other party. Delivery as aforesaid of process or notice shall be sufficient and adequate to establish notice to the person served or notified.
10. Benefit. This Agreement shall be binding upon and shall inure to the benefit of the Company and the Employee and their respective heirs, legal representatives, successors and assigns.
11. Amendment and Entire Agreement. This Agreement cannot be modified, changed, discharged or terminated except by an instrument in writing, signed by the party against whom the enforcement of any waiver, change, discharge or termination is sought. This Agreement contains the entire understanding between the Company and Employee with respect to the matters referenced to herein.
12. Severability. In the event of the invalidity or unenforceability of any one or more provisions of this Agreement, such illegality or unenforceability shall not affect the validity or enforceability of the other provisions hereof and such other provisions shall be deemed to remain in full force and effect.
13. Governing Law. This Agreement shall be construed and governed in accordance with the laws of (... governing laws ...).
14. Disputes. (a) All claims, disputes, controversies, differences or misunderstandings between the parties arising out of, or by virtue of this Agreement or the interpretation of this Agreement, including the determination of Cause under Section 6(a) hereof, which cannot be settled or resolved by the parties hereto will be settled or determined by arbitration by a panel of three arbitrators as herein provided. When a party wishes to submit a question or an issue to arbitration it will serve a notice upon the other party, setting forth the matter or matters to be arbitrated and the name and address of its arbitrator and within [--] business days thereafter the other party will name its arbitrator and give written notice to the other party originally invoking arbitration of his name and address. Within [--] business days thereafter a third arbitrator will be appointed by the two arbitrators so selected.
(b) If the party upon whom notice is served should fail to appoint an arbitrator within the time provided, or if the two arbitrators named in accordance with subparagraph (a) of this Section should not agree upon a third arbitrator, such second or third arbitrator (or both) will be appointed by the American Arbitration Association in (... location of American Arbitration Association ...).
(c) Unless all the arbitrators otherwise agree, an arbitration under this Agreement will be conducted in the District of [District] under the rules and regulations of the American Arbitration Association not in conflict with the provisions in this Section.
(d) The parties hereto will abide by and perform in accordance with the decisions, awards or orders of the arbitrators selected at any time, or from time to time, pursuant to the provisions of this Section, and the arbitrators may, and are empowered to, grant or direct injunctive relief as well as monetary damages. A judgment of any court having jurisdiction of the parties may be entered upon the decision, award or order of arbitrators under or pursuant to the provisions of this Agreement.
15. Execution in 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 one and the same instrument.
16. Cross-References. All cross-references in this Agreement, unless specifically directed to another agreement or document, refer to provisions in this Agreement, and shall not be deemed to be references to any overall transaction or to any other agreements or documents.
17. Miscellaneous Provisions. The various headings and numbers herein and the grouping of provisions of this Agreement into separate divisions are for the purpose of convenience only and shall not be considered a part hereof. The language in all parts of this Agreement shall in all cases be construed in accordance to its fair meaning as if prepared by all parties to the Agreement and not strictly for or against any of the parties.
18. Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each party to this Agreement will execute and deliver any additional documents and perform any additional acts that may be necessary or appropriate to effectuate and perform its obligations under this Agreement and the transactions contemplated hereby.
19. Headings. The paragraph headings contained herein are for convenience of reference only and are not to be used in the construction or interpretation hereof.
20. Severance. The invalidity or unenforceability of any portion of this Agreement shall not affect the remaining provisions and portions hereof.
21. This Agreement supersedes any prior oral agreements between the parties.
22. Agreement Binding. This Agreement shall be binding upon the parties hereto and their respective heirs, administrators, successors, and assigns.
23. No Assignment. Neither this agreement nor any right or interest thereunder shall be assigned in any respect whatsoever.
24. Exclusion of Oral Statements. This instrument contains all of the agreements of the parties. No oral or other statements shall be binding on either of the parties hereto.
25. Applicable Law. This Agreement shall be governed by the laws of the State of [State].
26. Time of The Essence. Time is the essence of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.
*** If Required By State Law ***
This Section for Notary:
STATE OF -------)
) ss: [Date]
COUNTY OF ------)
On [Date] before me, [Name of Notary], notary, personally appeared [Name of Person(s) Involved], personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[Name of Notary Public]
My commission expires: [date]