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.
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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