FLORIDA SAMPLE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this ____ day of September, 20___ by and between VXC, Corp., a ----------------------- corporation (hereinafter called the "Company"), and K. Hillis (hereinafter called the "Executive").
Recitals
A. The Company desires to employ the Executive, as Vice President of Strategic Development of the Company, and the Executive is willing to make her services available to the Company, upon the terms and subject to the conditions hereinafter set forth.
Agreement
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the parties hereby agree as follows:
1. Employment.
1.1 Employment and Term. The Company shall employ the Executive and the Executive shall serve the Company, upon the terms and subject to the conditions of this Agreement, for the initial period commencing on the Effective Date (as hereinafter defined) and ending four years from the Effective Date (the “Term). The Term shall be automatically renewed for successive one year periods, unless either party hereto shall give the other party written notice on or before ninety (90) days of each anniversary of the Effective Date during the Term, or any annual renewal period, of its or her desire to terminate this Agreement, unless sooner terminated as hereinafter set forth.
1.2 Duties of Executive. The Executive shall serve as Vice President of Strategic Development of the Company and shall have principal responsibilities which shall include but not be limited to directing sales and strategic alliances for the Company. The Executive shall devote her full working time and attention to the business and affairs of the Company. The Executive shall not have her duties diminished during the term of this Agreement without written approval of the Executive.
1.3 Place of Performance. In connection with her employment by the Company, the Executive shall be based at the Company’s principal executive offices, presently in ANYWHERE, Florida, except for required travel on the Company's business.
2. Compensation.
2.1 Base Salary. During the Term, the Executive shall receive a base salary at the annual rate (the “Base Salary”) of $160,000. The Base Salary may be increased based upon the performance of the Company and the Executive, as determined by the Company’s Board of Directors in its sole authority and discretion. The Base Salary shall be payable in substantially equal installments consistent with the Company's normal payroll schedule, subject to applicable withholding and other taxes.
Bonus.
The Executive shall receive $20,000 upon execution of this agreement, to compensate Executive for opportunity costs of leaving her previous employment.
The Executive shall receive bonus of $3,000 for each employee Executive recruits to be employed by the Company, its parent, subsidiaries, or affiliates provided however, that such employee shall be employed by the Company, its parent, subsidiaries, or affiliates for no less than ninety (90) days after such employee’s employment commences. Such bonus shall be paid to Executive on the ninety-first (91st) days after each of such employee’s employment commences.
Executive shall receive ten (10%) percent of the gross revenue received by Company, its parent, subsidiaries, or affiliates for each account or entity which Executive originates, procures, or brings to Company, its parent, subsidiaries, or affiliates. If such account or entity does not pay Company, its parent, subsidiaries, or affiliates directly, then Executive shall receive ten (10%) percent of the increase in gross revenue generated by Company, its parent, subsidiaries, or affiliates for each contract, joint venture, partnership, agreement or other relationship which Executive originates, procures, or brings to Company, its parent, subsidiaries, or affiliates. Such bonus (hereinafter, the “Origination Bonus”) shall be payable monthly (on the 15th day of the each month), bases upon Company’s, its parent’s, subsidiaries’, or affiliates’ gross receipts from such account(s) in the previous month. Executive’s right to receive and Company’s obligation to pay the Origination Bonus shall survive termination of Executive’s employment for a term of five (5) years.
On the Effective date, the Company shall grant and issue the Executive, as a signing bonus, a fully vested option (the “Signing Option”) to purchase an aggregate of 1,000 shares of the Company’s Common Stock (“Common Stock”), upon the same terms and conditions as the Option issued pursuant to Section 2.3 below.
2.3 Stock Option. On the Effective Date, the Company shall grant and issue to the Executive an option (the “Option”) under the Company’s Stock Option Plan to purchase an aggregate of 10,000 shares of the Company’s Common Stock. The Option shall be fully vested upon issuance and exercisable at a price equal to the closing price of the Company’s Common Stock on the NASDAQ on the Effective Date. The Option shall be exercisable upon execution, and shall be issued under, and governed by, the terms of an Option Agreement in the form attached hereto as Exhibit A.
3. Expense Reimbursement and Other Benefits.
3.1 Expense Reimbursement. During the Term, the Company, upon the submission of supporting documentation by the Executive, shall reimburse the Executive for all reasonable expenses actually paid or incurred by the Executive in the course of and pursuant to the business of the Company, including without limitation reasonable expenses for required travel, entertainment, mobile phone, pager, and automotive.
3.2 Other Benefits. The Company shall obtain for the Executive such health, life, accidental death and dismemberment and long term disability insurance coverages as are provided by the Company to its senior executives generally. The Executive shall also be eligible for three (3) weeks paid vacation per year during the term of this Agreement.
3.3 Working Facilities. The Company shall furnish the Executive with an office, a secretary and such other facilities and services suitable to her position and adequate for the performance of her duties hereunder.
3.4 Executive’s Attorney’s Fees Reimbursement. The Executive has retained S. Skyvan, P.A. to draft this Agreement. The Company shall reimburse Executive for her legal fees incurred, if any, for the drafting of this Agreement by her counsel, upon presentation of an invoice for such fees in an amount not to exceed $5,000.
4. Termination.
4.1 Termination for Cause. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated by the Company for Cause. As used in this Agreement, "Cause" shall only mean (i) subject to the following sentences, any action or omission of the Executive which constitutes a willful and material breach of this Agreement which is not cured or as to which diligent attempts to cure have not com-menced within 30 business days after receipt by Executive of written notice of same (which notice shall specify in detail the acts or omissions relied upon by the Company), (ii) fraud, embezzlement or misappropriation as against the Company or (iii) the conviction of Executive for any criminal act which is a felony. Upon any determination by the Company's Board of Directors that Cause exists under clause (i) of the preceding sentence, the Company shall cause a special meeting of the Board to be called and held at a time mutually convenient to the Board and Executive, but in no event later than 10 business days after Executive's receipt of the notice contemplated by clause (i). Executive shall have the right to appear before such special meeting of the Board with legal counsel of her choosing to refute any determination of Cause specified in such notice, and any termination of Executive's employment by reason of such Cause determination shall not be effective until Executive is afforded such opportunity to appear. Upon any termination pursuant to this Section 4.1, the Company shall pay to the Executive any unpaid Base Salary accrued through the effective date of termination specified in such notice. Except as provided above, the Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however to the provisions of Section 3.1 and the Origination Bonus set forth in Section 2.2(c) above).
4.2 Disability. Notwithstanding anything contained in this Agreement to the contrary, the Company, by written notice to the Executive, shall at all times have the right to terminate this Agreement, and the Executive's employment hereunder, if the Exe¬cutive shall, as the result of mental or physical incapacity, illness or disability, fail to perform her duties and respon¬sibilities provided for herein for a period of more than 120 days in any 12-month period. Upon any termination pursuant to this Section 4.2, the Company shall pay to the Executive any unpaid Base Salary accrued through the effective date of termination, as well as a lump sum severance payment equal to three months' Base Salary at the rate prevailing at such termination. Except as provided above, the Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however to the provisions of Section 3.1).
4.3 Death. In the event of the death of the Executive during the Term of her employment hereunder, the Company shall pay to the personal representative of the estate of the deceased Executive any unpaid Base Salary accrued through the date of her death, as well as a lump sum payment equal to three months' Base Salary at the rate prevailing on the date of the death of the Executive. Except as provided above, the Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of the Executive's death, subject, however to the provisions of Section 3.1).
4.4 Notice of Non-Renewal of Agreement. In the event the Company gives notice of
its’ intention not to renew this Agreement for any successive one year term, the Company shall pay to Executive her base salary at the rate prevailing on the date of such notice, through the remaining unexpired term of this Agreement in its’ normal payroll cycles plus a lump-sum payment equal to three (3) months of such base salary, plus any earned but unpaid bonus through the termination date. Such lump-sum payment, and bonus payment, if any, shall occur on the last day of the expired term of this Agreement. The Company further agrees to continue the Executive under its’ employee benefits plans as outlined herein for three (3) months following the termination date. Thereafter, the Executive shall be eligible for coverage under COBRA.
4.5 Termination by Company for No Reason. In the event the Company gives written notice of termination for no reason, the Company shall pay to Executive her Base Salary at the rate prevailing on the date of such notice through the greater of (i) the remaining unexpired term of this Agreement or (ii) six (6) months. In addition, the Company further agrees to continue the Executive under its’ employee benefits plans as outlined herein for the greater of six (6) months or the remaining unexpired term of this Agreement and to immediately vest all stock options not yet vested, in full, at the termination date.
4.6 Termination by Executive for Good Reason. In the event Executive resigns for Good Reason (as defined in paragraph (b) below), within six months preceding, on or within two (2) years following a Change in Control (as defined in paragraph (a) below), the Company shall be obligated to pay Executive a lump sum cash payment, in an amount equal to 24 months’ Base Salary. The Executive shall have no duty to mitigate her damages hereunder by seeking alternative employment or otherwise. Furthermore, such payment shall be in addition to any other payment to which the Executive may be entitled pursuant to the other provisions of this Section 4, if applicable. If at the end of the 24 month period following her termination (“Mitigation Date”) under this paragraph 4.6, the Executive has not secured employment with a Base Salary at least equal to the rate in effect on the date of her termination of employment for Good Reason following a Change in Control, the Company shall pay Executive the difference between Executive’s actual salary and such rate for six additional months following the Mitigation Date.
“Change in Control” means any of the following events: (i) a sale of or agreement to sell more than 50% of the operating assets of the Company to any person or persons not affiliated with the Company as of September 1, 20___; (ii) a sale or other transfer to an unaffiliated group of 50% or more of the beneficial ownership of the combined voting power of the existing outstanding Company stock; (iii) a merger, consolidation or other business combination of the Company with an unaffiliated group in which the Company is not the surviving corporation or any agreement to do so; or (iv) the sale or other disposition to an unaffiliated person or unaffiliated persons of the leases or other real property interests of the Company or its affiliates as of September 8, 1999.
“Good Reason” means (i) a reduction of Executive’s base salary, (ii) a material adverse change in Executive’s position or her responsibilities or (iii) a material breach of the Company’s obligations under this Agreement which is not corrected by the Company within ten (10) days following written notice thereof by Executive.
5. Full Settlement. The Company's obligation to make the payments and to continue the benefits provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others and the Executive shall have no obligation to mitigate or take any other action to reduce the Company’s obligations to make such payments or to provide such benefits.
6. Restrictive Covenants.
6.1 Non-competition. During the Term, Executive shall not, directly or indirectly engage in or have any interest in, directly or indirectly, any sole proprietorship, partnership, corporation, business or any other person or entity (whether as an employee, officer, director, partner, agent, security holder, creditor, consultant or other¬wise) that directly engages in competition with the Company; provided, however, that Executive may acquire, solely as an investment, shares of capital stock or other equity securities of any company which are traded on any national securities exchange or are regularly quoted in the over-the-counter market, so long as Executive does not control, acquire a controlling interest in or become a member of a group which exercises direct or indirect control of, more than five percent of any class of capital stock of such corporation.
6.2 Nondisclosure. During the Term and following termination of the Executive's employment with the Company, Executive shall not divulge, communicate, use to the detriment of the Company or for the benefit of any other person or persons, or misuse in any way, any Confidential Information (as hereinafter defined) pertaining to the business of the Company. Any Confidential Information or data now or hereafter acquired by the Executive with respect to the business of the Company (which shall include, but not be limited to, infor¬ma¬tion concerning the Company's financial condition, prospects, customers, suppliers, partners, methods of doing business and marketing and promotion of the Company's products) shall be deemed a valuable, special and unique asset of the Company that is received by the Executive in confidence and as a fiduciary, and Executive shall remain a fiduciary to the Company with respect to all of such information. For purposes of this Agreement "Confidential Information" means information disclosed to the Executive or known by the Executive as a consequence of or through her employment by the Company (including information conceived, originated, discovered or developed by the Executive) prior to or after the date hereof, and not generally known, about the Company or its business. Notwithstanding the foregoing, nothing herein shall be deemed to restrict the Executive from disclosing Confidential Information to the extent required by law.
6.3 Books and Records. All books, records, accounts and similar repositories of Confidential Information of the Company, whether prepared by the Executive or other¬wise coming into the Executive's posses-sion, shall be the exclusive property of the Company and shall be returned immediately to the Company on termination of this Agreement or on the Board's request at any time.
7. Injunction. It is recognized and hereby acknowledged by the parties hereto that a breach by the Executive of any of the covenants contained in Section 6 of this Agreement will cause irreparable harm and damage to the Company, the monetary amount of which may be virtually impossible to ascertain. As a result, the Executive recognizes and hereby acknowledges that the Company shall be entitled to an injunction from any court of competent juris¬diction enjoining and restraining any violation of any or all of the covenants contained in Section 6 of this Agree¬ment by the Executive or any of her affiliates, associates, partners or agents, either directly or indirectly, and that such right to injunction shall be cumulative and in addition to whatever other remedies the Company may possess.
8. Effective Date. This Agreement shall become effective on November 1, 20__ (the “Effective Date”).
9. Governing Law; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida as to all matters, including, but not limited to, matters of validity, construction, effect and performance, except that no doctrine of choice of law shall be used to apply any law other than that of Florida. IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER ALL OF THE PARTIES HERETO WAIVE ALL RIGHTS TO A TRIAL BY JURY AND AGREE TO SUBMIT TO BINDING ARBITRATION IN FLORIDA IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
10. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given when delivered by hand or when deposited in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company: VXC, Corp.
If to the Executive: K. Hillis
or to such other address as either party hereto may from time to time give notice of to the other in the aforesaid manner.
11. Assignment, Benefits, Binding Effect. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by Executive; provided, however, that, in the event of an assignment or transfer by the Company, the Company shall remain liable to Executive under the terms of this Agreement and any such heir, successor and/or permitted assign of the Company shall agree in writing to assume all obligations of the Company to Executive hereunder.
12. Severability. The invalidity of any one or more of the words, phrases, sentences, clauses or sections contained in this Agreement shall not affect the enforceability of the remain¬ing portions of this Agreement or any part thereof, all of which are inserted conditionally on their being valid in law, and, in the event that any one or more of the words, phrases, sentences, clauses or sections contained in this Agreement shall be declared invalid, this Agreement shall be construed as if such invalid word or words, phrase or phrases, sentence or sentences, clause or clauses, or section or sections had not been inserted. If such invalidity is caused by duration, geographic scope or both, the otherwise invalid provision will be considered to be reduced to a period or area which would cure such invalidity.
13. Waivers. The waiver by either party hereto of a breach or violation of any term or provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach or violation.
14. Damages. Nothing contained herein shall be construed to prevent the Company or the Executive from seeking and recovering from the other damages sustained by either or both of them as a result of its or her breach of any term or provision of this Agreement. In the event that either party hereto brings suit for the collection of any damages resulting from, or the injunction of any action constituting, a breach of any of the terms or pro-visions of this Agreement, then the party found to be at fault shall pay all reasonable court costs and attorneys' fees of the other.
15. No Third Party Beneficiary. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person (other than the parties hereto and, in the case of Executive, her heirs, personal representative(s) and/or legal represen¬tative) any rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.
VXC, Corp.
By:
_______________________________________
President and Chief Executive Officer
EXECUTIVE
By:______________________________________
K. Hillis
This document is a sample Florida Employment Agreement related to a specific set of facts and circumstances and should not be used for any employment matter. This form is being provided for illustrative purposes only and should not be relied upon as legal advice. We recommend and urge you to consult with an experienced employment lawyer for professional advice as each case is unique. All Rights Reserved.
Additional Representations, Warranties and Disclaimer.
UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, WE OFFER THIS DOCUMENT AS-IS AND WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE FORM, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.
Additional Limitation on Liability.
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS DOCUMENT OR THE USE OF THIS DOCUMENT, EVEN IF WE HAVE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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