VIEWS: 1,365 PAGES: 11 CATEGORY: Hiring Employees POSTED ON: 5/20/2010
This Agreement of Fixed Salary is made between an employer and an employee, and sets forth the terms and conditions of the employment specifically providing for a fixed yearly salary payable to the employee. This document contains the material terms of the employment agreement including the duties and responsibilities of the employee, compensation to be paid on a fixed yearly salary and numerous other standard clauses found in employment agreements. It can be fully customized to ensure the specific terms of the parties' agreement are addressed.
This Agreement of Fixed Salary is made between an employer and an employee, and sets forth the terms and conditions of the employment specifically providing for a fixed yearly salary payable to the employee. This document contains the material terms of the employment agreement including the duties and responsibilities of the employee, compensation to be paid on a fixed yearly salary and numerous other standard clauses found in employment agreements. It can be fully customized to ensure the specific terms of the parties' agreement are addressed. AGREEMENT OF FIXED SALARY This agreement (hereinafter the “Agreement”) is made the ______ day of _______, 20__, between ________________ (hereinafter called “Employer”) with its principal place of business at ___________ and _______________ (hereinafter called “Employee”). WHEREAS, Employee and Employer desire and agree to enter into an employment relationship by means of this Agreement. NOW, THEREFORE in consideration of the promises and mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is mutually covenanted and agreed by and between the parties as follows: [Comment and Instruction: Use of abbreviated names of companies and employees rather than generic names is recommended. For example, identifying “Software Development Company” and “Elizabeth Jones” rather than “Employer” and “Employee” makes for easier reading. It also avoids a potential problem of inadvertently inserting the wrong designation in the wrong place.] 1. RECITALS WHEREAS: A. The Employee has been employed with the Employer in the capacity of _______________ since the date of ____________; B. This Agreement formalizes the employment arrangement as between the Employee and the Employer and defines, with greater certainty, the terms of the employment relationship; C. It is intended that this Agreement replace in total any previous agreements as between the Employer and the Employee concerning the employment of the Employee with the Employer. 2. RECITALS TRUE The recitals contained in Article 1 (“Recitals”) are true in substance and fact and form an integral part of this Agreement as if those recitals were hereinafter recited again, in full. 3. STATUS It is hereby understood and agreed between the parties that there exists an employer- employee relationship between the Employer and Employee and the provisions of this Agreement shall be construed within the context of such relationship. 4. TERMS OF EMPLOYMENT The Employer shall employ the Employee as _________________ for a term of ________________ (____) months from the date hereof. The term of this employment will be automatically renewed for successive _________ (___) year terms (subject to the termination provisions hereof) and upon such other terms and conditions as may be agreed between the Employer and Employee. 5. DUTIES AND RESPONSIBILITIES A. The Employee shall perform those duties typically performed by a _____________________ and such other duties as may be assigned to the Employee from time to time by the Employer. All duties to be performed by the Employee shall be performed in compliance with such policy, mission statements, outlines and directives as may be delivered, in writing, to the Employee from time to time by the Employer. B. The Employee shall, during the term of this Agreement and any renewals hereof, if any, devote his/her full working time and attention to the diligent and faithful performance of his/her duties hereunder and shall not engage in any other employment while employed by the Employer. The Employee will at all times use his best efforts to promote the interests of the Employer. The Employee shall report to the Employer. C. The work and services to be performed by the Employee hereunder are to be done and performed at or from the head office of the Employer or at various other sites or in such other places as the Employer may from time to time require. D. The Employee shall devote substantially all of his or her normal business time to the performance of the duties called for in this Agreement. 6. COMPENSATION In consideration of the Employee performing his/her duties in accordance with this Agreement: A. The Employee will be remunerated on the basis of a fixed yearly salary of _______________________ ($___________) Dollars ( the “Base Salary”); [Comment and Instruction: Additional language explaining base salary can also be added: “Payable in equal semi-monthly installments on the fifteenth (15) and final days of each month during the period of employment, prorated for any partial employment period”.] B. In addition to the Base Salary, the Employee shall be entitled to a yearly bonus equal to _____________ (____%) percent of the net after-tax profits earned by the Employer for the preceding twelve (12) month term. The first twelve (12) month term shall commence the date of execution of this Agreement. The bonus shall be due and payable to the Employee within thirty (30) days of the end of the preceding twelve (12) month term. [Comment: The following is alternative language for bonuses: IN ADDITION to the aforesaid salary, the Employer may pay the Employee a bonus or bonuses from time to time, which the Employer, in its absolute discretion, determines is proper in relation to the income generated by the Employee for the Employer and all other facts and circumstances that it shall see fit to consider.] C. The Employee shall be entitled to take ______ (___) weeks holidays during the term of this Agreement to be taken at such time or times as is convenient to the Employer. [Comment: The following section can be added for retirement benefits if appropriate to the circumstances of employment.] D. Retirement Benefit: The Employee may retire from active employment at any time after attaining the age of sixty years, but shall in any event retire from active employment upon attaining the age of sixty-five years. Commencing with the next calendar month following the month in which retirement occurs and continuing thereafter to and including the calendar month in which the Employee’s death occurs, the Employer shall pay to the Employee a retirement benefit of ______________ ($______) dollars per month for each of the first _______ ( ) months in which a retirement benefit is payable hereunder and a retirement benefit of __________________ ($______) per month for each month thereafter in which a retirement benefit is payable hereunder. 7. TERMINATION A. If the Employee shall fail to perform all of the terms of this Agreement to be performed by him or her, or if he or she voluntarily leaves the employ of the Employer during the period of active employment, or if during such period the Employee is discharged for proper cause, then all subsequent compensation and benefits required to be paid to the Employee or to others under the terms of this Agreement shall be forfeited. B. In addition, the employment of the Employee shall immediately terminate upon the death, disability, insolvency or bankruptcy of the Employee. For the purposes of this paragraph, “disability” shall be deemed to have occurred in the event that the Employee becomes permanently disabled by virtue of a mental or physical disability such that he/she is unable to perform his/her regular and important duties as a ______________ for _____ (___) consecutive months or for an aggregate period of _____ (___) months in a consecutive ________ (___) year period. The employment of the Employee shall be terminated pursuant to this paragraph without severance, compensation, notice or compensation in lieu of notice. C. This Agreement may be terminated by the Employer at any time upon the Employer giving to the Employee at least _________ (___) days notice of such termination. [Comment and Instruction: An important aspect of the termination clause is procedure, principally the required notices. Please make sure that you give fair amount of notice (i.e. thirty days) before termination.] D. Upon the termination of this Agreement for any reason whatsoever, the provisions of Article 8 (“Non-Competition Clause”), hereof shall continue to apply and be of full force and effect. 8. NON-COMPETITION A. During the period beginning on the date of this Agreement and ending ___________ (___) months after the termination of the Employee’s employment with the Employer for whatever cause, (or for such lesser period as a court of competent jurisdiction deems reasonable), the Employee shall not, whether directly or as an employee, partner, member, consultant or shareholder of any person (a) sell, attempt to sell or accept any order or solicitation for any products or services competitive with the Employer’s products or service to or from any customer to whom the Employer sold products or services at any time during the last ______ (___) months of the Employee’s employment with the Employer, or (b) otherwise directly or indirectly suggest, advise or attempt to persuade any such customer to limit or discontinue its business with the Employer, or (c) engage in any business activity that is the same as, substantially similar to or otherwise competitive with any business now or hereafter undertaken by the Employer anywhere within a ____________ (___) mile radius of the City/Town of ____________, in the State of ______________ (or such lesser territory as a court of competent jurisdiction shall deem reasonable). B. During the period beginning on the date of this Agreement and ending _______ (___) months after the termination of the Employee’s employment with the Employer for whatever cause, (or such lesser period as a court of competent jurisdiction deems reasonable), the Employee shall not, whether directly or as an employee, partner, member, consultant or shareholder of any person, (a) sell, attempt to sell or accept any order or solicitation for any products or services competitive with the Employer’s products or service to or from any customer to whom the Employer sold products or services at any time during the last ______ (___) months of the Employee’s employment with the Employer, or (b) otherwise directly or indirectly suggest, advise or attempt to persuade any such customer to limit or discontinue its business with the Employer. C. The Employee acknowledges, warrants, represents and agrees that the restrictive covenants contained in this Agreement are necessary for the protection of the Employer’s legitimate business interests and are reasonable in scope and content. The Employee acknowledges that the territorial, time and other limitations in this Agreement are reasonable and properly required for the adequate protection of the business and affairs of the Employer, and, in the event that any such territorial, time or other limitation is found to be unreasonable by a court of competent jurisdiction, the Employee agrees (a) to the reduction of said territorial, time or other limitation, or all of them, and (b) that all of the other provisions of this Agreement shall remain valid, binding and in full force and effect. D. The Employee (a) acknowledges that his/her failure to comply with the covenants contained in this Agreement may cause the Employer irrevocable harm and that a remedy at law for such a failure would be an inadequate remedy for the Employer and (b) consents to the Employer’s obtaining from a court having jurisdiction, specific performance, an injunction or any other equitable relief in order to enforce such compliance and to enjoin the Employee from any further breach or attempted or threatened breach. The Employer’s right to obtain such equitable relief shall be in addition to any other remedy which the Employer may have under applicable law (including, but not limited to, monetary damages). [Comment: When filling out this section, please keep in mind that a Noncompetition clause is enforceable when it is reasonable as to geography, time, and types of activity.] 9. NO SOLICITATION Employee agrees to not, during the course of employment or for a period of ________ (____) years commencing upon expiration of employment, either voluntarily or involuntarily for any reason whatsoever, directly or indirectly, individually or on behalf or persons not now parties to this Agreement, aid or endeavor to solicit or induce any other employee, employees, consultant and/or consultants of the Employer to leave their employment with the Employer in order to accept employment of any kind with any other person, firm, partnership, or corporation. 10. CONFIDENTIAL INFORMATION The Employee will not, during or after the term of this Agreement, disclose to any firm or person any information, expect as otherwise required by law, including but not limited to, information about the company, its affiliates and customers, which is treated as confidential by the company or an affiliate, to which the Employee has gained or gains access by reason of his position as an employee of the company or an affiliate. 11. PREVIOUS AGREEMENTS Any and all previous agreements, written or oral, between the parties hereto or on their behalf relating to the employment of the Employee by the Employer are hereby terminated and cancelled and each of the parties hereto releases the other of and from all manners of actions, causes of actions, claims and demands whatsoever under or in respect of any and all such previous agreements. 12. ARBITRATION In the event of any difference of opinion or dispute between the Employee and the Employer with respect to the construction or interpretation of this Agreement or the alleged breach thereof which cannot be settled amicably by agreement of the parties, such dispute shall be submitted and determined by arbitration by a single arbitrator in the city of _______ in accordance with the rules then obtaining of the American Arbitration Association, and judgment upon the award shall be final, binding, and conclusive upon the parties and may be entered in the highest court, state or federal, having jurisdiction. 13. GENERAL PROVISIONS A. Entire Agreement: This Agreement supersedes any and all other agreements or understandings, either oral or in writing, between the parties hereto with respect to the employment of Employee by Employer and contains all of the covenants and agreements between the parties with respect to such employment in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. B. Counterparts: This Agreement may be executed in several counterparts, and in that event, each counterpart shall be deemed to be a complete original and be enforceable without reference to any other counterpart. All counterparts taken together shall constitute one and the same document. C. Modifications: Any modification of this Agreement will be effective only if it is in writing and signed by the party to be charged. This Agreement shall be read with all changes in gender, number and grammar as may be required by context. D. Severability: If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall continue to be valid and enforceable and such invalid or unenforceable provision shall be severed. E. No Strict Construction: The language contained herein shall be deemed to be that approved by all parties hereto and no rule of strict construction shall be applied against any party hereto. F. Assignment: This Agreement is personal to each of the parties hereto, and neither party may assign nor delegate any of the rights or obligations hereunder without first obtaining a written consent of the other party. G. Injunctive Relief: The Employee recognizes that the Employer will suffer irreparable injury, not readily susceptible of valuation in monetary damages, if the Employee reaches any of his obligations under Articles 8, 9, and 10 [the “Noncompetition Clause,” “Nonsolicitation Clause,” and “Confidential Information” clause]. Accordingly, the Employee agrees that the Employer will be entitled to injunctive relief against any breach or prospective breach by the Employee of the Employee’s obligations under Articles 8, 9, and 10. Nothing herein shall be construed as prohibiting the Employer from pursuing any other remedies available to the Company for such breach or threatened breach, including the recovery of damages from the Employee. The undertakings in this section of the Agreement shall survive the termination or cancellation of the Agreement or of the Employee’s employment. H. Attorneys’ Fees and Costs: If any legal action is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire contract. I. Indemnification: In the event Indemnitee was, is, or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising out of) an Indemnifiable Event, the Employer shall indemnify Indemnitee from and against any and all Expenses to the fullest extent permitted by law applicable to the Indemnifable Event, or as the same may exist currently or may hereafter be amended or interpreted (but in case of any such subsequent amendments or interpretations, only to the extent that such amendments or interpretations permit the Employer to provide broader indemnification rights than were permitted prior thereto). The parties hereto intend that this Agreement shall provide for indemnification in excess of that expressly permitted by the Employer’s Certificate of Incorporation, its Bylaws, vote of its stockholders or disinterested directors, or applicable law. [Comment and Instruction: This clause may be used when a corporate Employer agrees to indemnify the Employee for any liability incurred by the Employee in his or her capacity as an officer or director of the corporate Employer.] J. Waiver: Either party’s failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver by a party of any single remedy shall not constitute a waiver of such party’s right to assert all other legal remedies available to him or her under the circumstances. K. Binding: This Agreement shall be binding on and ensure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. L. Notices: Any notice required or permitted to be given hereunder shall be in writing and shall be effectively given if (i) delivered personally, (ii) sent by prepaid courier service or registered mail, or (iii) sent prepaid by telecopier or other similar means of electronic communication (confirmed on the same or following day by prepaid mail) addressed, in the case of notice to the Employer as follows: and in the case of the Employee as follows: Any notice so given shall be deemed conclusively to have been given and received when so personally delivered or sent by telecopier or other electronic communication, or on the second day following the sending thereof by courier, or on the sixth day following the sending thereof by registered mail. Any party hereto or other mentioned above may change any particulars of its address for notice by notice to the other in the manner aforesaid. M. Law Governing Agreement, Jurisdiction, and Venue: This Agreement shall be interpreted in accordance with the laws of the State of _______________________. Any legal action brought concerning this Agreement or any dispute hereunder, including but not limited to an action to enforce or challenge an arbitration award, shall be brought only in the courts of the State of _________________, in the County of _______________, or in the federal courts located in such state (and county). Both parties submit to venue and jurisdiction in these courts and agree not to assert any claims of forum non conviens. In the event that an action or claim arises outside of the exclusive jurisdiction specified herein which names Employer as a party, Employee agrees to initiate, consent to and or cooperate with any and all efforts to remove the matter to the exclusive jurisdiction named herein, or otherwise take any and all reasonable actions to achieve Employer’s objectives in this provision. N. Voluntary Agreement: Each of the parties hereto acknowledges that they have had the opportunity to and have been advised to obtain independent legal advice prior to entering into this Agreement. Each of the parties hereto acknowledges having obtained such legal advice and acknowledges having read and understood each and every provision of this Agreement as it affects them respectively. Employee and Employer further represent and agree that each has reviewed all aspects of this Agreement has carefully read and fully understands all provisions of this Agreement, and is voluntarily entering into this Agreement. [Instruction: The parties to this Agreement might also consider whether they wish to initial each page of this Agreement in an area near the bottom-right hand corner.] IN WITNESS WHEREOF this Agreement has been duly executed by the parties hereto. (EMPLOYER) Per Name: Title: I have authority to bind the Company. SIGNED, SEALED AND DELIVERED ) in the presence of: ) ) ________________________________ ) _______________________________ (witness) ) Employee
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