EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (hereinafter
referred to as the "Agreement") is made and effective this ________,
199_ , by and between _____________________ (hereinafter referred to as
the "Company") and _______________________ (hereinafter referred
to as the "Executive").
NOW, THEREFORE, the parties
hereto agree as follows:
Company hereby agrees to initially employ Executive as its [Office Title]
and Executive hereby accepts such employment in accordance with the terms
of this Agreement and the terms of employment applicable to regular employees
of Company. In the event of any conflict or ambiguity between the terms
of this Agreement and terms of employment applicable to regular employees,
the terms of this Agreement shall control. Election or appointment of
Executive to another office or position, regardless of whether such office
or position is inferior to Executive's initial office or position, shall
not be a breach of this Agreement.
2. Duties of Executive.
The duties of Executive shall include the performance of all of the duties
typical of the office held by Executive as described in the bylaws of
the Company and such other duties and projects as may be assigned by a
superior officer of the Company, if any, or the board of directors of
the Company. Executive shall devote his entire productive time, ability
and attention to the business of the Company and shall perform all duties
in a professional, ethical and businesslike manner. Executive will not,
during the term of this Agreement, directly or indirectly engage in any
other business, either as an employee, employer, consultant, principal,
officer, director, advisor, or in any other capacity, either with or without
compensation, without the prior written consent of Company. In addition
to the duties described herein, Executive is also authorized and directed
to do the following: [Other Specific Duties or Authorization].
Executive will be paid compensation during this Agreement as follows:
A. A base salary of $
_____ (dollar amount spelled out) per year, payable in installments
according to the Company's regular payroll schedule. The base salary
shall be adjusted at the end of each year of employment at the discretion
of the board of directors.
B. An incentive salary equal to
______ of the adjusted net profits hereinafter defined) of the Company
beginning with the Company's year end [First Incentive Year] and each
fiscal year thereafter during the term of this Agreement. "Adjusted
net profit" shall be the net profit of the Company before federal
and state income taxes, determined in accordance with generally accepted
accounting practices by the Company's independent accounting firm and
adjusted to exclude:
(i) any incentive salary payments paid
pursuant to this Agreement;
(ii) any contributions to pension and/or
profit sharing plans;
(iii) any extraordinary gains or losses
(including, but not limited to, gains or losses on disposition of
assets); (iv) any refund or deficiency of federal and state income
taxes paid in a prior year; and
(v) any provision for federal or state
income taxes made in prior years which is subsequently determined
to be unnecessary. The determination of the adjusted net profits made
by the independent accounting firm employed by the Company shall be
final and binding upon Executive and Company.
The incentive salary payment shall be made
within thirty (30) days after the Company's independent accounting firm
has concluded its audit. If the final audit is not prepared within ninety
(90) days after the end of the fiscal year, then Company shall make
a preliminary payment equal to fifty percent (50%) of the amount due
based upon the adjusted net profits preliminarily determined by the
independent accounting firm, subject to payment of the balance, if any,
promptly following completion of the audit by the Company's independent
accounting firm. The maximum incentive salary payable for any one year
shall not exceed [Maximum Incentive Compared to Base] of the then applicable
base salary of Executive.
A. Holidays. Executive will be entitled to at least
[Number of Paid Holidays] paid holidays each calendar year and [Number
of Personal Days] personal days. Company will notify Executive on or
about the beginning of each calendar year with respect to the holiday
schedule for the coming year. Personal holidays, if any, will be scheduled
in advance subject to requirements of Company. Such holidays must be
taken during the calendar year and cannot be carried forward into the
next year. Executive is not entitled to any personal holidays during
the first six months of employment.
B. Vacation. Following
the first six months of employment, Executive shall be entitled to [Number
of Vacation Days] paid vacation days each year.
C. Sick Leave. Executive
shall be entitled to sick leave and emergency leave according to the
regular policies and procedures of Company. Additional sick leave or
emergency leave over and above paid leave provided by the Company, if
any, shall be unpaid and shall be granted at the discretion of the board
D. Medical and Group Life Insurance.
Company agrees to include Executive in the group medical and hospital
plan of Company and provide group life insurance for Executive at no
charge to Executive in the amount of [Amount of Group Life Insurance]
during this Agreement. Executive shall be responsible for payment of
any federal or state income tax imposed upon these benefits.
E. Pension and Profit Sharing Plans.
Executive shall be entitled to participate in any pension or profit
sharing plan or other type of plan adopted by Company for the benefit
of its officers and/or regular employees.
F. Automobile. Company
will provide to Executive the use of an automobile of Executive's choice
at a gross purchase price not to exceed [Maximum Purchase Price]. Company
agrees to replace the automobile with a new one at Executive's request
no more often than once every two years. Company will pay all automobile
operating expenses incurred by Executive in the performance of an Executive's
company duties. Company will procure and maintain in force an automobile
liability policy for the automobile with coverage, including Executive,
in the minimum amount of $1,000,000 combined single limit on bodily
injury and property damage.
G. Expense Reimbursement.
Executive shall be entitled to reimbursement for all reasonable expenses,
including travel and entertainment, incurred by Executive in the performance
of Executive's duties. Executive will maintain records and written receipts
as required by the Company policy and reasonably requested by the board
of directors to substantiate such expenses.
5. Term and Termination.
A. The Initial Term of this Agreement shall
commence on [Start Date] and it shall continue in effect for a period
of [Initial Term]. Thereafter, the Agreement shall be renewed upon the
mutual agreement of Executive and Company. This Agreement and Executive's
employment may be terminated at Company's discretion during the Initial
Term, provided that Company shall pay to Executive an amount equal to
payment at Executive's base salary rate for the remaining period of
Initial Term, plus an amount equal to [Severance Pay During Initial
Term] of Executive's base salary. In the event of such termination,
Executive shall not be entitled to any incentive salary payment or any
other compensation then in effect, prorated or otherwise.
B. This Agreement and Executive's employment
may be terminated by Company at its discretion at any time after the
Initial Term, provided that in such case, Executive shall be paid [Severance
Pay After Initial Term] of Executive's then applicable base salary.
In the event of such a discretionary termination, Executive shall not
be entitled to receive any incentive salary payment or any other compensation
then in effect, prorated or otherwise.
C. This Agreement may be terminated by
Executive at Executive's discretion by providing at least thirty (30)
days prior written notice to Company. In the event of termination by
Executive pursuant to this subsection, Company may immediately relieve
Executive of all duties and immediately terminate this Agreement, provided
that Company shall pay Executive at the then applicable base salary
rate to the termination date included in Executive's original termination
D. In the event that Executive is in breach
of any material obligation owed Company in this Agreement, habitually
neglects the duties to be performed under this Agreement, engages in
any conduct which is dishonest, damages the reputation or standing of
the Company, or is convicted of any criminal act or engages in any act
of moral turpitude, then Company may terminate this Agreement upon five
(5) days notice to Executive. In event of termination of the agreement
pursuant to this subsection, Executive shall be paid only at the then
applicable base salary rate up to and including the date of termination.
Executive shall not be paid any incentive salary payments or other compensation,
prorated or otherwise.
E. In the event Company is acquired, or
is the non-surviving party in a merger, or sells all or substantially
all of its assets, this Agreement shall not be terminated and Company
agrees to use its best efforts to ensure that the transferee or surviving
company is bound by the provisions of this Agreement.
Any notice required by this Agreement or given in connection with it,
shall be in writing and shall be given to the appropriate party by personal
delivery or by certified mail, postage prepaid, or recognized overnight
If to Company:
If to Executive:
7. Final Agreement.
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a
further writing that is duly executed by both parties.
8. Governing Law.
This Agreement shall be construed and enforced in accordance with the
laws of the state of ________________.
Headings used in this Agreement are provided for convenience only and
shall not be used to construe meaning or intent.
10. No Assignment.
Neither this Agreement nor any or interest in this Agreement may be assigned
by Executive without the prior express written approval of Company, which
may be withheld by Company at Company's absolute discretion.
If any term of this Agreement is held by a court of competent jurisdiction
to be invalid or unenforceable, then this Agreement, including all of
the remaining terms, will remain in full force and effect as if such invalid
or unenforceable term had never been included.
The parties agree that they will use their best efforts to amicably resolve
any dispute arising out of or relating to this Agreement. Any controversy,
claim or dispute that cannot be so resolved shall be settled by final
binding arbitration in accordance with the rules of the American Arbitration
Association and judgment upon the award rendered by the arbitrator or
arbitrators may be entered in any court having jurisdiction thereof. Any
such arbitration shall be conducted in [Arbitration Location], or such
other place as may be mutually agreed upon by the parties. Within fifteen
(15) days after the commencement of the arbitration, each party shall
select one person to act as arbitrator, and the two arbitrators so selected
shall select a third arbitrator within ten (10) days of their appointment.
Each party shall bear its own costs and expenses and an equal share of
the arbitrator's expenses and administrative fees of arbitration.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above