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Draw Against Commission Employment Agreement

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Draw Against Commission Employment Agreement Powered By Docstoc
					This is an employment agreement where the employee is paid by the employer on a
commission basis. The agreement provides for a draw to be paid to the employee as
an advance on commissions to be recouped against commissions or repaid if the
employee is fired or quits. The agreement provides for benefits and contains non-
compete, non-solicitation and confidentiality clauses. This document contains standard
provisions that are commonly included in these types of employment agreements and it
may be customized to address the specific needs of the parties. It should be used by
an employee and employer when a draw against commission arrangement is permitted.
                               EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “Agreement”) made as of ___________
[Instruction: Insert Date], by and between ___________ [Instruction: Insert Name of
Employer], ___________ [Instruction: Insert Address] (“Employer”), and ___________
[Instruction: Insert Name of Employee], ___________ [Instruction: Insert Address]
(“Employee”).

WHEREAS, Employer desires to obtain the benefit of the services of Employee; and Employee
desires to render such services on the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the mutual promises, covenants and other good and
valuable consideration, as hereinafter set forth, Employer and Employee agree as follows:

1. Employment.

    A. Employee shall be employed in the capacity of: ___________ [Instruction: Insert
Name of Position]. Employee agrees that Employee will at all times faithfully, industriously,
and to the best of the Employee’s skill, ability, experience and talents, perform all of the duties
required of said position. Employee shall also perform such other reasonable duties as may be
assigned from time to time by Employer.

    B. In carrying out these duties and responsibilities, Employee shall comply with all of
Employer’s policies, procedures, rules and regulations, whether written or oral, as same are
announced by Employer from time to time. It is also understood and agreed that the Employee’s
assignment, duties and responsibilities may be changed by Employer, in Employer’s sole
discretion.

    C. Employee shall devote Employee’s full time and attention to the business and affairs of
Employer and shall not, without the consent in writing of Employer, undertake any other
business or occupation or become a director, officer, employee or agent of any other Employer,
firm or individual.

2. Term and Termination.

    A. The term (“Term”) of this agreement shall commence upon the date hereof and shall
continue for ___________ (__) [Instruction: Insert Duration] [Instruction: Choose One:
months///years], subject to the rights of the parties hereto to terminate this Agreement at an
earlier date in accordance with the provisions of this paragraph.

    B. Employer shall have the right to extend this Agreement for additional periods of
___________ (__) [Instruction: Insert Duration] [Instruction: Choose One: months///years],
by giving at least thirty (30) days’ written notice to Employee.
    C. Notwithstanding anything to the contrary contained herein, the parties understand and
agree that employment pursuant to this Agreement may be terminated by Employer in the
following manner in the specified circumstances:

      i.   For cause, without any notice. For the purposes of this Agreement, cause includes the
following: (a) any material breach of the provisions of this Agreement; (b) any conduct of
Employee which, as judged in the sole discretion of Employer, tends to bring Employee or
Employer into disrepute; (c) conviction of Employee of a criminal offence punishable by
indictment, where such cause is not prohibited by law; and (d) any and all omissions,
commissions or other conduct which would constitute cause at law, in addition to the specified
causes.

    ii. Without cause, on giving Employee ___________ (__) [Instruction: Insert
Duration] days’ advance written notice.

     iii. By reason of a mental or physical condition (an “Incapacity”) causing Employee to be
unable to perform Employee’s duties hereunder, in the reasonable discretion of Employer, and
such Incapacity shall continue for a period of more than ___________ (__) [Instruction: Insert
Duration] consecutive or non-consecutive days within any one (1) year period, Employer shall
thereafter have the right, on not less than ___________ (__) [Instruction: Insert Duration]
days’ written notice to Employee, to terminate this Agreement and Employee’s employment.

3. Commission. Employee shall receive, as full compensation for the services rendered on
behalf of Employer, a commission (“Commission”) consistent with Employer’s Schedule of
Commissions, which may be modified from time to time at Employer’s sole discretion. A copy
of Employer’s current Schedule of Commission is attached hereto as Exhibit “A.” All
Commissions shall be paid in accordance with Employer’s standard policy regarding
Commissions.

4. Draw.

    A. If Employee so elects, subject to the terms and conditions of this paragraph 4, Employee
shall be entitled to receive a loan from Employer, not to exceed ___________ Dollars ($______)
[Instruction: Insert Amount] per month (the “Draw”).

    B. In the event that Employee desires to be paid a Draw, Employee shall provide Employer
with an executed Promissory Note, in form satisfactory to Employer, indicating the approved
Draw amount and the approved terms of repayment. A copy of such Employer approved
Promissory Note is attached hereto as Exhibit “B”. Within fourteen (14) days’ of Employer’s
receipt of an executed Promissory Note, Employer shall pay Employee the approved Draw.

    C. All Draws shall be advances against Commissions due to Employee. During the Term of
the Agreement, Employer shall deduct all outstanding Draw amounts from Commissions due and
payable to Employee. Following termination of the Term, in the event that Employee has an
outstanding Draw amount, such Draw amount shall be repaid to Employer pursuant to the
applicable Promissory Note(s).
5. Benefits.

    A. It is understood and agreed that Employee may incur expenses in connection with
Employee’s duties under this Agreement. Employer will reimburse Employee for any
reasonable, actual and documented expenses, provided that Employee provides to Employer an
itemized written account and receipts acceptable to Employer within sixty (60) days following
the date that expenses have been incurred.

    B. During Employee’s employment with Employer, Employee shall be eligible to participate
in any plan or program of Employer now existing or established hereafter for the benefit of
Employer's employees, to the extent that Employee is eligible (including length of service
provisions) under the general provisions thereof, which may include, but is not limited to
medical/dental insurance, life insurance, long term disability, deferred compensation, a 401(k)
plan and any Employer profit sharing plan (the "Benefit Plans"). Employer shall be entitled to
amend, modify, terminate or otherwise change any and all such Benefit Plans at any time in its
sole discretion as long as such amendment modification, termination or other change is
applicable to other similarly situated employees.

6. Non-competition and Non-solicitation.

    A. For a period of ___________ (___) [Instruction: Insert Duration] years from the date of
termination of Employee’s employment, however caused, Employee agrees that Employee will
not, for any reason, directly or indirectly, either as an individual or as a partner or joint venturer
or as an employee, principal, consultant, agent, shareholder, officer, director, or salesperson for
any person, firm, association, organization, syndicate, Employer or corporation, or in any other
manner:

       i.  Carry on, be engaged in, concerned with, interested in, advise, lend money to,
guarantee the debts or obligations of, permit Employee’s name (or any part thereof) to be used or
employed by any person, business, firm, association, syndicate, Employer, organization or
corporation concerned with or engaged or interested in a business which is substantially the same
as, or competitive with, the business of Employer including, without limitation, any business
relating to ___________ [Instruction: Insert Type of Business] which is located within a
___________ (____) [Instruction: Insert Distance] mile radius of Employer; or

     ii. Solicit or accept business with respect to services competitive with those of Employer
from any of Employer’s customers, wherever situated. Notwithstanding the foregoing,
Employee may, for investment purposes, purchase and trade shares of a public Employer that is
in competition with the business of Employer provided that: (a) the public Employer is traded on
a recognized stock exchange; and (b) Employee shall not participate in the management or
operation of the public Employer or in any advisory capacity.

    B. Employee further agrees that, during employment pursuant to this Agreement and for a
period of ___________ (___) [Instruction: Insert Duration] years following termination of
employment, however caused, Employee will not hire or take away or cause to be hired or taken
away any employee of Employer.

7. Confidential Information.

    A. Employee acknowledges that Employee will acquire information about certain matters
and things which are confidential (“Confidential Information”) to Employer, which information
is the exclusive property of Employer, including but not limited to: (i) the names and addresses
of present customers of Employer, as well as prospective customers or customer leads; (ii)
pricing, marketing and sales policies, techniques and concepts; (iii) trade secrets; and (iv) other
confidential information concerning the Business operations or financing of the Business and
Employer.

    B. Employee acknowledges that the Confidential Information could be used to the detriment
of Employer. Accordingly, Employee undertakes not to disclose the Confidential Information to
any third party during the term of Employee’s employment or thereafter except with the written
permission of Employer. Employee also agrees that the unauthorized disclosure of the
Confidential Information shall justify the immediate termination of this Agreement by Employer.

   C. Employee further acknowledges that in addition to any and all rights of Employer,
Employer shall be entitled to injunctive relief in order to protect Employer’s rights in and to the
Confidential Information.

8. Miscellaneous.

    A. This Agreement constitutes the entire agreement between the parties hereto with respect
to the specific subject matter hereof and supersedes all prior agreements or understandings of any
kind with respect to the specific subject matter hereof.

    B. In the event that any provision or part of this Agreement shall be deemed void or invalid
by a court of competent jurisdiction, the remaining provisions or parts shall be and remain in full
force and effect.

    C. Any modification to this Agreement must be in writing and signed by the parties or it
shall have no effect and shall be void.

   D. This Agreement is binding upon and shall inure to the benefit of the respective
successors, licensees and/or assigns of the parties hereto. Employer may assign any or all of
Employer’s rights and/or obligations hereunder to any assignee, licensee or designee of
Employer, and all succeeding assignees, licensees or designees. Employee may not assign any of
Employee’s rights and/or obligations hereunder without Employer’s prior written consent.

    E. The waiver by either party of a breach or violation of any provision of this Agreement
shall not constitute a waiver of any subsequent or other breach or violation.
    F. This Agreement shall be governed in accordance with the laws of the State of
_____________, [Instruction: Insert State], applicable to agreements to be wholly performed
therein, with jurisdiction exclusive to the Federal and State courts located in the County of
_____________ [Instruction: Insert County], State of ______________ [Instruction: Insert
State].

IN WITNESS WHEREOF the parties have duly executed this Agreement as of the date first
written above.


EMPLOYER:


________________________________ [Instruction: sign]
By: ___________________________ [Instruction: Insert Name of Signatory]
Title: ___________________________ [Instruction: Insert Title of Signatory]


EMPLOYEE:


________________________________ [Instruction: sign]
By: ___________________________ [Instruction: Insert Name of Signatory]
SSN: ___________________________ [Instruction: Insert Social Security Number]
      Exhibit “A”
Schedule of Commissions
  Exhibit “B”
Promissory Note

				
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Description: This is an employment agreement where the employee is paid by the employer on a commission basis. The agreement provides for a draw to be paid to the employee as an advance on commissions to be recouped against commissions or repaid if the employee is fired or quits. The agreement provides for benefits and contains non-compete, non-solicitation and confidentiality clauses. This document contains standard provisions that are commonly included in these types of employment agreements and it may be customized to address the specific needs of the parties. It should be used by an employee and employer when a draw against commission arrangement is permitted.