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Executive Employment Agreement

This Executive Employment Agreement is made on [AGREEMENT DATE] (the "Effective Date") between [PARTY A NAME][, a [CORPORATE JURISDICTION] corporation], with its principal place of business at [PARTY A  ADDRESS] (the "Company") and [PARTY B NAME], whose principal place of residence is at [PARTY B ADDRESS] (the "Executive").

The parties agree as follows (the capitalized terms used in this agreement, in addition to those above, are defined in section [DEFINITIONS]).

Offer and Acceptance of Employment

Offer[PARTY A] hereby offers [PARTY B] employment in the position of [PARTY A]'s [TITLE OF EXECUTIVE POSITION].

Acceptance. [PARTY B] hereby accepts [PARTY A]'s offer of employment in the position of [PARTY A]'s [TITLE OF EXECUTIVE POSITION].

Performance of Duties. [PARTY B] shall have and provide for [PARTY A] the duties and services listed in section [TERMS OF EMPLOYMENT] (the "[DELIVERABLES]").

Payment of Salary. [PARTY A] shall pay [PARTY B] the Base Salary, according to section Compensation.

Employment and Compensation

[PARTY B]'s Employment Services. [PARTY B] shall provide [PARTY A] with the employment services and duties listed in [section [SERVICES] / attachment [ATTACHMENT], attached to this agreement] (the "[DELIVERABLE]")

[PARTY A]'s Compensation Obligation. [PARTY A] shall pay [PARTY B] a salary according to section [COMPENSATION].

Terms of Employment

[PARTY B]'s Duties and Services[PARTY B]'s [DELIVERABLES] under this agreement will include duties and services commensurate with his or her position as [TITLE OF EXECUTIVE POSITION], and those assigned by [PARTY A]'s [chief executive officer][, [OTHER SUPERVISOR OF EXECUTIVE],] or [PARTY A]'s Board, including

[INCLUDE DETAILED LIST OF EXECUTIVE'S DUTIES] 

[INCLUDE DETAILED LIST OF EXECUTIVE'S DUTIES] 

[INCLUDE DETAILED LIST OF EXECUTIVE'S DUTIES] 

[CONTINUE LIST AS NECESSARY]

[PARTY B]'s Authority. [PARTY B] will have the authority commensurate with his or her position as [TITLE OF EXECUTIVE POSITION].

[PARTY B]'s Supervisor[PARTY B] shall report to [PARTY A]'s [chief executive officer][, [OTHER SUPERVISOR OF EXECUTIVE],] [and [PARTY A]'s Board].

[Transfer of [PARTY B][PARTY A]'s [chief executive officer][, [OTHER SUPERVISOR OF EXECUTIVE],] [and [PARTY A]'s Board] may transfer [PARTY B] to another management position.]

Performance of [PARTY B]'s Duties

Full Time and Reasonable Efforts. Subject to paragraph [CONFLICTING OR INTERFERING ACTIVITIES] directly below, [PARTY B] shall devote his/her reasonable efforts and substantially all his/her productive time and attention during normal working hours to the performance of his/her duties as [PARTY A]'s [TITLE OF EXECUTIVE POSITION].

Conflicting or Interfering ActivitiesSubject to section [NON-COMPETITION], and to the extent none of the following activities materially interfere with [PARTY B]'s performance of his or her employment duties (unless [PARTY A] waives the material interference), [PARTY B] may

expend reasonable amounts of time in charitable, educational, professional, trade, and civic activities,

accept appointment to or continue to serve on any board or as a trustee of any charitable, educational, professional, trade, and civic organization

[accept appointment to or continue to serve on any board of trustees of any business corporation,] and

manage his or her personal investments and affairs.

Place of [PARTY B]'s Performance

Primary Place of Performance. [PARTY B]'s principal place of employment will be [PARTY A]'s[ principal executive office], currently located in [CITY, STATE, COUNTRY (IF APPLICABLE)].

Travel Required. As reasonably requested by [PARTY A], [PARTY B] shall travel as required to fulfill its duties as [PARTY A]'s [TITLE OF EXECUTIVE POSITION] under this agreement. 

[PARTY B]'s Compliance with [PARTY A] Policy. [PARTY B] shall use reasonable efforts to comply with all of [PARTY A]'s bylaws, policies, and other corporate documentation.

Employment Services. [PARTY B]'s [DELIVERABLES] will include the services and responsibilities commensurate with his or her position as [TITLE OF EMPLOYEE], those determined and assigned by [PARTY A], by [PARTY A]'s [SUPERVISOR OF EMPLOYEE], including:

[INCLUDE ENUMERATED LIST OF EMPLOYEES'S DUTIES] 

[INCLUDE ENUMERATED LIST OF EMPLOYEES'S DUTIES] 

[INCLUDE ENUMERATED LIST OF EMPLOYEES'S DUTIES] 

[INCLUDE ENUMERATED LIST OF EMPLOYEES'S DUTIES] 

[INCLUDE ENUMERATED LIST OF EMPLOYEES'S DUTIES] 

Compensation

Base Salary

Amount. [PARTY A] shall pay [PARTY B] a base salary ("Base Salary") of $[BASE SALARY] per year in equal installments in accordance with its standard payroll practices.

Adjustments. [PARTY A] may increase[ or decrease] the Base Salary on one or more occasions.

[Signing Bonus. [PARTY A] shall pay [PARTY B] a signing bonus of $[SIGNING BONUS AMOUNT] upon the signature of this agreement.]

Bonus

Eligibility. [PARTY A] may pay [PARTY B] an annual bonus, as determined in [PARTY A]'s discretion.

Bonus Amount. [PARTY B] shall determine the performance goals for, the amount, if any, of, and any other conditions relating to, the bonus.

Bonus Payment. [PARTY B] shall pay any bonus in one lump sum, subject to deductions and withholdings, during the year immediately following the year to which it relates.

Compensation. [PARTY A] shall pay [PARTY B] a yearly salary of $[SALARY AMOUNT] (the "Salary") for [PARTY B]'s [DELIVERABLE].

Payment of Salary. [PARTY A] shall pay [PARTY B]'s Salary

in installments of $[SALARY INSTALLMENT AMOUNT]

paid every [PAYMENT PERIOD], and 

according to [PARTY A]'s standard accounting and compensation practices and policies.

Benefits

Vacation [SELECT ONE OF THE FOLLOWING OPTIONS]

[STATE VACATION PLAN] [PARTY B] will be entitled to [VACATION ALLOWANCE] of vacation with pay during each calendar year in accordance with the [PARTY A]'s applicable personnel policy as in effect from time to time.

OR

[COMBINED VACATION, ILLNESS, AND DISABILITY LEAVE] [PARTY B] will be entitled to [VACATION ALLOWANCE] days vacation annually and shall be entitled to the same personal time and sick leave, and disability leave as other [PARTY B]s of the [PARTY A].

OR

[FAVORABLE VACATION LEAVE]

Paid Vacation. [PARTY B] will be entitled to paid vacation in accordance with [PARTY A]'s and its Affiliates' most favorable plans, policies, programs and practices and as in effect generally at any time after the Effective Date with respect to other senior executives of the [PARTY A]; provided, that in no event shall the [PARTY B] be entitled to less than [number of] weeks' paid vacation per year.

Holidays. [PARTY B] will be entitled to all paid [PARTY A] holidays.

Carry-Over. Any vacation not used during a calendar year may not be used during any subsequent period.

Prorated. Vacation time will be prorated for any partial calendar year of employment.

Scheduling. [PARTY B] may select the times for its vacations, provided the dates selected do not interfere materially with [PARTY B]'s performance of its duties and responsibilities under this agreement.

Insurance [SELECT ONE OF THE FOLLOWING]

[MEDICAL COVERAGE] [PARTY A] will provide [PARTY B] with the life, medical, dental, and disability coverage made available to its senior and key management executives, subject to and on a basis consistent with the terms, conditions and overall administration of such coverage.

OR

[MEDICAL COST REIMBURSEMENT] [PARTY A] will reimburse [PARTY B] for the full amount of any medical, dental, and optical expenses not covered under any group medical plan from time to time in effect for the benefit of [PARTY A] executives generally.

Automobile [SELECT ONE OF THE FOLLOWING]

[PROVISION OF AUTOMOBILE] [PARTY A] shall provide [PARTY B] with an automobile for business use in accordance with the automobile policies adopted by [PARTY A] from time to time. [[PARTY A] shall pay the expenses related to the use and upkeep of the automobile and insurance coverage.]

OR

[AUTOMOBILE ALLOWANCE] [PARTY A] will provide [PARTY B] with [AUTOMOBILE ALLOWANCE] per year for the purchase or lease of a vehicle.

Amendment of Benefit Plans. [PARTY A] may amend, terminate, and suspend any benefits under this section.

Benefits

Employee and Fringe Benefits[PARTY B] will be entitled to participate in [PARTY A]'s employee benefit plans, fringe benefit plans, programs, and policies generally available to [PARTY A]'s other senior executives at [PARTY B]'s level of seniority, subject to any restrictions specified in such plans, programs, and policies then in effect.

Payment of Premiums[PARTY A] shall pay all premiums under its group insurance plans (including medical, dental, and vision) for [PARTY B] and his or her dependents, including (if applicable) COBRA payments resulting from [PARTY B]'s coverage under a previous employer's plans. 

1.  Fee and Expenses

1.1. Reimbursement of Expenses. The [PARTY A] shall reimburse the [PARTY B] for all reasonable and necessary expenses the [PARTY B] incurs in connection with this agreement.

1.2. Pre-Approval Required. The [PARTY A] will only be required to reimburse the [PARTY B] for expenses the [PARTY A] pre-approved in writting. 

1.3. Receipts and Records. The [PARTY B] shall keep all receipts or other records of its expenses to submit to the [PARTY A] for reimbursement of its expenses.

1.4. Expense Invoices. The [PARTY B] will invoice the [PARTY A] each [PAY PERIOD] for reimbursement of the [PARTY B]'s expenses. The [PARTY B] must include with each invoice the receipts or other records to reasonably detail each expense in the invoice for which the [PARTY B] is requesting reimbursement. The [PARTY A] shall reimburse the [PARTY B] within 10 business days' of receipt of each invoice.

Expenses

Reimbursement of Expenses. [PARTY A] shall reimburse [PARTY B] for all reasonable and necessary expenses [PARTY B] incurs in connection with this agreement.

Receipts and Records. [PARTY B] shall keep all receipts and other records of its expenses.

Expense Invoices

Invoice Each Pay Period[PARTY B] shall invoice [PARTY A] each [PAY PERIOD] for reimbursement of [PARTY B]'s expenses.

Invoice Contents[PARTY B] shall include with each invoice

an invoice number,

the receipts or other records reasonably detailing each expense in the invoice,

the routing and account number necessary for [PARTY A] to make the payment.

Payment of Invoices[PARTY A] shall reimburse [PARTY B] within 10 Business Days' of receiving each invoice.

1.  Fee and Expenses

1.1. Advancement of Expenses. The [PARTY A] shall advance to the [PARTY B] $[ADVANCED EXPENSES], within 10 business days' of the effective date of this agreement, to cover the [PARTY B]'s reasonable and necessary expenses incurred in connection with this agreement ("Advanced Expenses").

1.2. Receipts and Records. The will keep all receipts or other records of its use of the Advanced Expenses.

1.3. Refund of Unspent Advancement. Within 30 business days' of the end of this agreement, the [PARTY B] will return to the [PARTY A] alll unspent Advanced Expenses. The [PARTY A] may require the [PARTY B] to also submit to the [PARTY A] all receipts or other records detailing the reasonableness and necessity of the [PARTY B]'s use of the Advanced Expenses.

1.  Fee and Expenses

1.1. Reimbursement of Expenses. The [PARTY A] shall reimburse the [PARTY B] for all reasonable and necessary expenses the [PARTY B] incurs in connection with this agreement.

1.2. Receipts and Records. The [PARTY B] shall keep all receipts or other records of its expenses to submit to the [PARTY A] for reimbursement of its expenses.

1.3. Expense Invoices. The [PARTY B] will invoice the [PARTY A] each [PAY PERIOD] for reimbursement of the [PARTY B]'s expenses. The [PARTY B] must include with each invoice the receipts or other records to reasonably detail each expense in the invoice for which the [PARTY B] is requesting reimbursement. The [PARTY A] shall reimburse the [PARTY B] within 10 business days' of receipt of each invoice. Any expenses the [PARTY A] fails to reimburse within this 10 day period will be deemed Late Reimbursement.

1.4. Interest on Late Reimbursement. The [PARTY A] will pay interest on any Late Reimbursement at a rate of 1% per month (12.68% annually) or the maximum allowed by law, whichever is less.

Tax Withholding[PARTY A] may withhold Taxes from any amounts payable to [PARTY B] under this agreement, including Federal, state and local Taxes as may be required to be withheld under any applicable Law.

Term. This agreement begins on [the Effective Date / [DATE, MONTH]], and will continue until terminated (the "Term").

Term. This agreement begins on [the Effective Date] and will continue until [CONDITION / EVENT / FULFILLMENT OF ORDER / COMPLETION OF SERVICES], unless terminated earlier (the "Term").

Term

Initial Term. The initial term of this agreement begins on [the Effective Date] and will continue for [TERM YEARS] years, unless terminated earlier (the "Initial Term").

Renewal Term by Notice. [PARTY B] may renew this agreement for successive renewal terms of [RENEWAL YEARS] length ("Renewal Terms"), unless terminated earlier, by giving [PARTY A] notice of the intent to renew this agreement, at least [RENEWAL NOTICE DAYS] Business Days before the end of the Current Term.

Current Term. The "Current Term" of this agreement means either the Initial Term or the then-current Renewal Term.

 Term. This agreement will commence on [the Effective Date / [DATE, MONTH]], and will continue for [TERM MONTHS] months unless terminated earlier (the "Term").

Term

Initial Term. The initial term of this agreement will begin on [the Effective Date] and continue for [TERM MONTHS] months, unless terminated earlier (the "Initial Term").

Automatic RenewalSubject to paragraph [ELECTION NOT TO RENEW], on the expiration of any Current Term, this agreement will automatically renew for a renewal term of [RENEWAL TERM MONTHS] months, unless terminated earlier ("Renewal Term").

Election Not to Renew. Either party may elect not to renew this agreement, by providing notice to the other party at least [NON-RENEWAL NOTICE PERIOD] Business Days' before the end of the Current Term.

Current Term. "Current Term" means either the Initial Term or the then-current Renewal Term.

Mutual Representations 

No Conflicts. The parties are not under any restriction of obligation that may affect the performance of its obligations under this agreement.

No Breach. Neither party’s execution, delivery, and performance of its obligations under this agreement will breach or result in a default under

its articles, bylaws, or any unanimous shareholders agreement,

any Law to which it is subject,

any judgment, order, or decree of any Governmental Authority to which it is subject, or

any agreement to which it is a party or by which it is bound.

No Disputes or Proceedings. [Except as disclosed in either party's Disclosure Schedule] There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party’s ability to complete its obligations under this agreement.

No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.

Intellectual Property and Work Product

Ownership of Work Product. [PARTY B] shall assign to [PARTY A] any applicable ownership rights in Work Product [PARTY B] develops in connection with its employment with [PARTY A], including any Intellectual Property rights.

Cooperation. [PARTY B] shall provide all assistance that [PARTY A] reasonably requests, during and after the Term of this agreement, in establishing, preserving, and enforcing [PARTY A]'s interest in and ownership of any Work Product.

Moral Rights. [PARTY B] hereby waives all moral rights relating to any Work Product (including any rights of identification of authorship, of approval, restriction, or limitation on use, and to subsequent modifications).

Design and Other Documents. On the expiration or termination of this agreement, [PARTY B] shall promptly deliver to [PARTY A] all design documentation and all other work whether in written or electronic form used to develop and create any Work Product, including all writings, drawings, spreadsheets, memoranda, reports, projections, schematics, models, and other tangible manifestations of Work Product (including all originals and copies).

Work Product. "Work Product" includes all information, work product, documentation, and other results, systems, and information developed in connection with this agreement, [PARTY B]'s employment and duties on behalf of [PARTY A] under this agreement, and any resulting Intellectual Property rights.

Code Section 409A

Notice Under Section 409A. If [PARTY B] is a "specified employee" within the meaning of Code Section 409A(a)(2)(B)(i), [PARTY A] shall promptly deliver written notice to [PARTY B] advising it of the application of such Code section.

Deferment of Payment. Only if and to the extent necessary to avoid adverse personal Tax consequences to [PARTY B] under Code section 409A, [PARTY A] shall delay payments otherwise required to be made to [PARTY B] under this agreement, delayed to the earlier of

six months and one day after [PARTY B]'s Date of Termination, or

[PARTY B]'s death.

Date of Termination. For purposes of this section [CODE SECTION 409A], [PARTY B]'s "Date of Termination" will be interpreted in a manner that is consistent with the term "separation from service" as defined in Code section 409A and the Treasury Regulations under that section.

Interest of Deferment. Interest will accrue on unpaid amounts delayed under this section [CODE SECTION 409A] at the prime rate in effect at [BANK] or any successor bank commencing from the date that such amounts would otherwise have been due under the applicable provision.

Section 409A of Code. This [agreement / plan] will be administered and the terms of this [agreement /plan] will be interpreted consistent with the requirements of the Code, including Section 409A of the Code, and any regulations made under that section (including any regulations promulgated after the effective date of this [agreement /plan]).

Code Section 409A

Construction of this Agreement. The parties intend that:

this agreement will at all times be administered and the terms of this agreement will be interpreted consistent with the requirements of the Code, including Section 409A of the Code;

any benefits under this agreement will satisfy, to the greatest extent possible, the exemptions from the application of Code section 409A, provided under Treasury Regulations Sections 1.409A-1(b)(4), and 1.409A-1(b)(9); and 

to the extent not so exempt, this agreement (and any definitions under this agreement) will be construed in a manner that complies with Section 409A.

Specific Interpretations. For purposes of Code section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)):

[PARTY B]'s right to receive any installment payments under this agreement (whether severance payments, if any, or otherwise) will be treated as a right to receive a series of separate payments and, accordingly, each installment payment under this agreement will at all times be considered a separate and distinct payment; and

a termination of employment will not be deemed to have occurred for purposes of any provision of this agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service" within the meaning of Section 409A and, for purposes of any such provision of this agreement, references to a "resignation," "termination," "termination of employment" or like terms will mean "separation from service".

In Case of "Specified Employee" 

Defer Payments. If [PARTY A] deems that [PARTY B] is, at the time of a separation from service, a "specified employee" for purposes of Code section 409A(a)(2)(B)(i), and if any payments or benefits that [PARTY B] becomes entitled to under this agreement on account of such separation from service are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments or benefits is required in order to avoid a prohibited distribution under Code section 409A(a)(2)(B)(i) and the related adverse Taxation under Code section 409A, [PARTY A] shall not provide such payments prior to the earliest of:

the expiration of the six-month period measured from the date of separation from service;

the date of [PARTY B]'s death; or

such earlier date as permitted under Code section 409A without the imposition of adverse taxation.

Payment of Deferred Payments. On the first Business Day following the expiration of such deferment period, [PARTY A] shall pay to [PARTY B]

all payments deferred under this section [IN CASE OF "SPECIFIED EMPLOYEE"] in a lump sum,

any remaining payments due shall be paid as otherwise provided herein,

with no interest due on any amounts so deferred.

Effect of 280G and Parachute Payments. 

Reduction For Compliance. In the event that the benefits provided for in this agreement or otherwise payable to [PARTY B] constitute "parachute payments" within the meaning of Section 280G of the Code and but for this section [EFFECT OF 280G AND PARACHUTE PAYMENTS] would be subject to the excise tax imposed by Section 4999 of the Code, then [PARTY A] shall pay to [PARTY B]'s either

[PARTY B]'s benefits delivered in full, or

[PARTY B]'s benefits delivered as to such lesser extent which would result in no portion of such benefits being subject to excise Tax under Section 4999 of the Code,

whichever of the foregoing amounts, taking into account the applicable Federal, state and local income Taxes and the excise Tax imposed by Section 4999, results in the greatest amount of benefits paid to [PARTY B], on an after-Tax basis and notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code.

Process for Reduction

Reduce Non-Cash Amounts First. If a reduction in amounts to be paid must be made, any non-cash amounts will be reduced prior to the reduction of any cash amounts.

Determination by Independent Accountants. Unless the parties agree otherwise in writing, any determination required under this section [EFFECT OF 280G AND PARACHUTE PAYMENTS] will be made in writing by a well-recognized independent public accounting firm chosen by [PARTY A], whose determination will be conclusive and binding on the parties for all purposes.

Calculations by Independent Accountants. For purposes of making the calculations required by this section [EFFECT OF 280G AND PARACHUTE PAYMENTS], the independent accountants may make reasonable assumptions and approximations concerning applicable Taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code.

Parties' Cooperation. The parties will furnish to the independent accountants such information and documents as the independent accountants may reasonably request in order to make a determination under this section [EFFECT OF 280G AND PARACHUTE PAYMENTS].

[PARTY A] Bears Costs[PARTY A] shall pay all costs the independent accountants may reasonably incur in connection with any calculations contemplated by this section [EFFECT OF 280G AND PARACHUTE PAYMENTS]. 

Confidentiality

Confidentiality Obligations. During the Term and for [RESTRICTED PERIOD YEARS] years after the Term (the "Restricted Period"), [PARTY B] shall hold in confidence all Confidential Information [PARTY A] discloses to it under this agreement.

Use Solely for Purpose. [PARTY B] may only use Confidential Information according to the terms of this agreement and solely for the Purpose

Non-Disclosure[PARTY B] may not disclose Confidential Information, [the existence of this agreement, the Transaction, or the Purpose] to any third party, except to the extent

permitted by this agreement, or

required by Law.

Notice. [PARTY B] shall notify [PARTY A] if it

is required by Law to disclose any Confidential Information, or

learns of any unauthorized disclosure of Confidential Information.

Confidentiality

Confidentiality Obligations. During the Term and for [RESTRICTED PERIOD YEARS] years after the Term (the "Restricted Period"), each party (as a "Receiving Party") shall hold in confidence all Confidential Information the other party (as a "Disclosing Party") discloses to it under this agreement.

Use Solely for Purpose. A Receiving Party may only use Confidential Information according to the terms of this agreement and solely for the Purpose.

Non-DisclosureA Receiving Party may not disclose Confidential Information, [the existence of this agreement, the Transaction, or the Purpose] to any third party, except to the extent

permitted by this agreement, or

required by Law.

Standard of Care. In protecting the Confidential Information, the Receiving Party shall exercise at least the same degree of care as it uses with its own Confidential Information, but in no event less than reasonable care.

Permitted Disclosure. The Receiving Party may disclose Confidential Information to its Representatives only

if and to the extent that the Disclosing Party consents in writing to such disclosure, or

to the Receiving Party's officers, directors, employees, Affiliates, or Representatives who

need to know the Confidential Information in furtherance of the Purpose,

have been informed of the confidentiality obligations of this agreement, and 

agree comply with the confidentiality obligations of this agreement.

Required Disclosure. The Receiving Party may disclose Confidential Information to a third party if it is required to do so by Law but only if, and to the extent permitted by Law, before that disclosure the Receiving Party 

gives the Disclosing Party Notice to allow it a reasonable opportunity to either seek a protective order or other appropriate remedy or waive the recipient's compliance with the confidentiality obligations,

reasonably cooperates with the Disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy,

discloses only that portion of the Confidential Information that, having consulted with its counsel, it is legally required to disclose, and

uses reasonable efforts to obtain reliable written assurance from the third party that the Confidential Information will be kept confidential.

Value and Nature of Confidential Information. The parties acknowledge that the Confidential Information is proprietary and has competitive value. Accordingly, any disclosure to the Disclosing Party's competitors or to the public would be detrimental to the best interests of the Disclosing Party, which may incur losses, costs, and damages as a result.

Burden of Proof. The Receiving Party will have the burden of proof relating to all exceptions to the definition of Confidential Information.

Confidentiality Obligations. The parties acknowledge that they continue to be bound by the terms of the Non-Disclosure Agreement between the parties dated [DATE], a copy of which is attached as [NDA SCHEDULE]

Confidentiality

Confidentiality Obligations. During the Term and for [RESTRICTED PERIOD YEARS] years after the Term (the "Restricted Period"), each party (as a "Receiving Party") shall hold in confidence all Confidential Information the other party (as a "Disclosing Party") discloses to it under this agreement.

Use Solely for Purpose. A Receiving Party may only use Confidential Information according to the terms of this agreement and solely for the Purpose.

Non-Disclosure.A Receiving Party may not disclose Confidential Information, [the existence of this agreement, the Transaction, or the Purpose] to any third party, except to the extent

permitted by this agreement, or

required by Law.

Notice. A Receiving Party shall notify the Disclosing Party if that Receiving Party

is required by Law to disclose any Confidential Information, or

learns of any unauthorized disclosure of Confidential Information.

Non-Disclosure of Agreement. Neither party will disclose the terms or existence of this agreement to any third party, unless the other party gives written consent to the disclosure.

Non-Competition

No Restricted Activity. During the period starting on the Effective Date and ending [NON-COMPETITION PERIOD TERM] after termination or expiration of this agreement (the "Non-Competition Period"), [PARTY B] will not engage in any Restricted Activity within the Restricted Territory.

Definitions

Restricted Activity. "Restricted Activity" means any business the same as or similar to [[PARTY A]'s / the business covered by this agreement].

Restricted Territory. "Restricted Territory" means [RESTRICTED TERRITORY].

Non-Solicitation

Non-Solicitation of EmployeesSubject to paragraph [PERMITTED HIRINGS AND BUSINESS], during the period starting on the Effective Date and ending [NON-SOLICITATION PERIOD TERM] after the termination or expiration of this agreement (the "Non-Solicitation Period"), [PARTY B] will not directly or indirectly, on [PARTY B]'s own behalf or in the service or on behalf of others, in any capacity induce or attempt to induce any officer, director, or employee to leave [PARTY A].

Permitted Hirings

Voluntary Contacts. [PARTY B] may employ [PARTY A]'s officers, directors, or employees who contact [PARTY B] on his or her own initiative without any direct or indirect solicitation or encouragement by [PARTY B] (this exception is intended to permit [PARTY B] to hire an officer, director, or employee of [PARTY A], or to conduct business with a customer, consultant, or patron of [PARTY A], who responds to a general, non-targeted solicitation or listing of employment or business from [PARTY B]).

Former Employees. [PARTY B] may employ any former officer, director, or employee of [PARTY A] whose employment with [PARTY A] has terminated.

Non-Solicitation

Non-Solicitation of Employees and Customers. Subject to paragraph [PERMITTED HIRINGS AND BUSINESS], during the period starting on the Effective Date and ending [NON-SOLICITATION PERIOD TERM] after the termination or expiration of this agreement (the "Non-Solicitation Period"), [PARTY B] will not directly or indirectly, on [PARTY B]'s own behalf or in the service or on behalf of others, in any capacity

induce or attempt to induce any officer, director, or employee to leave [PARTY A], or

solicit or accept, or attempt to solicit or accept, the business of any customer, consultant, or patron of [PARTY A].

Permitted Hirings and Business

Voluntary Contacts. [PARTY B] may employ or accept the business of [PARTY A]'s officers, directors, employees, customers, consultants, or patrons who contact [PARTY B] on his or her own initiative without any direct or indirect solicitation or encouragement by [PARTY B] (this exception is intended to permit [PARTY B] to hire an officer, director, or employee of [PARTY A], or to conduct business with a customer, consultant, or patron of [PARTY A], who responds to a general, non-targeted solicitation or listing of employment or business from [PARTY B]).

Former Employees. [PARTY B] may employ any former officer, director, or employee of [PARTY A] whose employment with [PARTY A] has terminated.

Former Customers[PARTY B] may do business with any former customer, consultant, or patron of [PARTY A] who no longer does business with [PARTY A].

Mutual Non-Solicitation

Non-Solicitation of Employees and Customers. Subject to paragraph [PERMITTED HIRINGS AND BUSINESS], during the period starting on the Effective Date and ending [NON-SOLICITATION PERIOD TERM] after the termination or expiration of this agreement (the "Non-Solicitation Period"), neither party will directly or indirectly, on its own behalf or in the service or on behalf of others, in any capacity

induce or attempt to induce any officer, director, or employee to leave the other party, or

solicit or accept, or attempt to solicit or accept, the business of any customer, consultant, or patron of the other party.

Permitted Hirings and Business

Voluntary Contacts. Each party may employ or accept the business of the other party's officers, directors, employees, customers, consultants, or patrons who contact the party on his or her own initiative without any direct or indirect solicitation or encouragement by the party (this exception is intended to permit the parties to hire an officer, director, or employee of the other party, or to conduct business with a customer, consultant, or patron of the other party, who responds to a general, non-targeted solicitation or listing of employment or business from the party).

Former Employees. Each party may employ any former officer, director, or employee of the other party whose employment with the other party has terminated.

Former Customers. Each party may do business with any former customer, consultant, or patron of the other party who no longer does business with the other party.

Mutual Non-Solicitation

Non-Solicitation of Employees. Subject to paragraph [PERMITTED HIRINGS], during the period starting on the Effective Date and ending [NON-SOLICITATION PERIOD TERM] after the termination or expiration of this agreement (the "Non-Solicitation Period"), neither party will directly or indirectly, on its own behalf or in the service or on behalf of others, in any capacity induce or attempt to induce any officer, director, or employee to leave the other party.

Permitted Hirings

Voluntary Contacts. Each party may employ the other party's officers, directors, or employees who contact the party on his or her own initiative without any direct or indirect solicitation or encouragement by the party (this exception is intended to permit the parties to hire an officer, director, or employee of the other party, or to conduct business with a customer, consultant, or patron of the other party, who responds to a general, non-targeted solicitation or listing of employment or business from the party).

Former Employees. Each party may employ any former officer, director, or employee of the other party whose employment with the other party has terminated.

Non-Disparagement. During and after the Term, [PARTY B] will not, except in connection with a legal proceeding or Order (including a proceeding relating to this agreement) or as otherwise required by Law, criticize, ridicule, or make any statement that disparages or is derogatory of [PARTY A], or any of [PARTY A]'s members, investors, officers, directors, agents, employees, or any of its products, services, or procedures, whether or not such disparaging or derogatory statements are true.

1. Acknowledgements

1.1. Extent of [PARTY]'s Obligations. Except for the terms of section 3.2 (Permitted investments), [PARTY] 's obligations under this agreement extend to any actions carried out on his or her own behalf or on behalf of or in connection with any other Person, directly or indirectly, in any capacity and in any part of the Restricted Territory.

1.2. Reasonableness of Restrictions. [PARTY] acknowledges that the restrictions contained in this agreement are (a) fair and reasonable in scope and duration, (b) necessary to protect the Company's legitimate business interests, and (c) a material inducement to the Company to enter into [this agreement/TRANSACTION AGREEMENT]. Accordingly, [PARTY] waives all defences to the Company's strict enforcement of his or her obligations under this agreement.

1.3. Enforcement of Restrictions. If any restriction imposed under this agreement is in any jurisdiction held to be excessively broad, that restriction will be interpreted, in that jurisdiction, by limiting the particular term so as to be enforceable to the extent compatible with the applicable Law in that jurisdiction.

Reasonableness of Restrictions

[PARTY B]'s Acknowledgements[PARTY B] hereby acknowledges that the restrictions contained in this agreement are

fair and reasonable in scope and duration,

necessary to protect [PARTY A]'s legitimate business interests, and

a material inducement to [PARTY A]'s entry into [this agreement / the [TRANSACTION AGREEMENT]].

Waiver of Certain Defenses[PARTY B] hereby irrevocably waives all defenses to [PARTY A]'s strict enforcement of [PARTY B]'s obligations under this agreement.

Litigation and Regulatory Cooperation

Cooperation Obligations. During and after the Term, [PARTY B] shall cooperate with [PARTY A]

in the defense or prosecution of any existing or future claims or actions against or on behalf of [PARTY A]arising out of [PARTY B]'s employment with [PARTY A]. and

in connection with any investigation or review by any federal, state, or local regulatory authority, arising out of [PARTY B]'s employment with [PARTY A].

Specific Obligations [PARTY B]'s cooperation in connection with such claims or actions will include

meeting with counsel to prepare for discovery or trial, and

acting as a witness on behalf of [PARTY A] at mutually convenient times.

Compensation for Cooperation[PARTY A] shall reimburse [PARTY B] 

at a daily rate of $[500], and

for any reasonable out-of-pocket expenses incurred in connection with [PARTY B]'s performance of his or her obligations under this section.

Employment Transition CooperationFollowing any expiration or termination of [PARTY B]'s employment with [PARTY A], on [PARTY A]'s reasonable request [PARTY B] shall cooperate with [PARTY A] to 

transition [PARTY B]'s responsibilities, and

ensure that [PARTY A] is aware of all matters that were or are being handled by [PARTY B].

[PARTY B]'s Cooperation

[PARTY B]'s Duty to Assist in Matters and Litigation. Subject to paragraphs [MINIMIZE DISRUPTION] and [COMPENSATION] directly below, after the termination of this agreement for any reason, on reasonable notice from [PARTY A], [PARTY B] shall cooperate with [PARTY A] in connection with matters arising out of [PARTY B]'s employment under this agreement, including cooperating and furnishing relevant documents in connection with any legal or quasi-legal proceeding, external or internal investigation, involving [PARTY A] or its Affiliates.

[PARTY B]'s Testimony Regarding [PARTY A][PARTY B] will not voluntarily testify in any lawsuit or other proceeding directly or indirectly involving [PARTY A], or its Affiliates, or any lawsuit or other proceeding which may create the impression that [PARTY A] endorsed or approved its testimony, unless

[PARTY A] approves in writing (including approval of the general nature of its testimony) or,

[PARTY B] is subpoenaed to testify, or otherwise compelled to testify by a court of competent jurisdiction.

[PARTY A]'s Obligations in Cooperation. In connection with any request for cooperation under paragraph [PARTY B's DUTY TO ASSIT] directly above, [PARTY A] shall

use reasonable efforts to minimize disruption of [PARTY B]'s other activities, and

reimburse [PARTY B] for reasonable expenses incurred in connection with his or her cooperation, including, to the extent [PARTY B] is required to spend substantial time on such matters, compensating [PARTY B] at an hourly rate based on his or her Base Salary as of the date this agreement ended. 

Return of Property. On termination or expiration of this agreement,[PARTY B] shall return to [PARTY A] all [PARTY A] property, both originals and copies, in [PARTY B]'s possession or in its direct or indirect control. 

Code of Ethics

No Effect on the Code of Ethics. The parties hereby acknowledge that

nothing in this agreement is intended to limit, modify, or reduce [PARTY A]'s obligations under [PARTY B]'s Code of Ethics, and

[PARTY B]'s obligations under this agreement are in addition to, and not in lieu of, it's obligations under the Code of Ethics.

Inconsistencies. The Code of Ethics will control if and to the extent there is any inconsistency between this agreement and the Code of Ethics.

[PARTY A]'s Code of Ethics. "Code of Ethics" means [PARTY A]'s code of ethics attached to this agreement as [ATTACHMENT].

Termination

[PARTY A]'s Termination For Cause. [PARTY A] may terminate this agreement with immediate effect for Cause, by delivering notice of the termination to the other party.

[PARTY A]'s Termination Without Cause. [PARTY B] may terminate [PARTY B]'s employment without Cause, by giving [PARTY B] at least 90 Business Days' notice.

[PARTY B]'s Termination For Good Reason. [PARTY B] may terminate this agreement for Good Reason, effective within 90 days of the date [PARTY B] first had actual knowledge of the first event or condition [PARTY B] believes is Good Cause, if

it delivers to [PARTY A] written notice specifically describing the events or conditions [PARTY B] is relying on to satisfy the requirements of Good Reason, and

as of the 30th day following the date notice is delivered to [PARTY A], it has not corrected such events or conditions in all material respects.

[PARTY B]'s Termination Without Good Reason

During First Year of Agreement. Through the first anniversary of the Effective Date of this agreement, [PARTY B] may terminate this agreement without Good Reason, by giving [PARTY A] at least six months' notice.

After First Year of Agreement. After the first anniversary of the Effective Date of this agreement, [PARTY B] may terminate this agreement without Good Reason, by giving [PARTY A] at least three months' notice.

Cooperation. In the event [PARTY B] terminates this agreement without Good Reason, following such notice of termination of employment, [PARTY B] shall cooperate with [PARTY A] in good faith and to the fullest extent possible during the notice period in the transition of his duties and responsibilities to such other officer as [PARTY A] may designate on [PARTY A]'s reasonable request.

Termination on Death. This agreement will automatically terminate on the date of [PARTY B]'s death.

Termination on Disability. If [PARTY B] becomes Disabled, either party may terminate this agreement with immediate effect, by delivering notice of the termination to the other party.

Termination for Change in Control. If there is a Change in Control, either party may terminate this agreement on [NOTICE PERIOD] Business Days' notice to the other party.

Definitions

Cause

Cause Definition"Cause" means, for purposes of this agreement, any of the following:

[PARTY B]'s conviction for any felony or other serious crimes;

[PARTY B]'s material breach of any of the terms of the agreement or any other written agreement or material [PARTY A] policy to which [PARTY B] and [PARTY A] are parties or are bound, if such breach is willful and continues for a period of [CURE PERIOD] days after written notice of the breach to [PARTY B];

[PARTY B]'s wrongful misappropriation of any of [PARTY A]'s, or [PARTY A]'s clients', money, assets, or other property;

[PARTY B]'s willful actions or omissions which subject either party to censure by the Securities and Exchange Commission as described in and pursuant to Section 203(e) or 203(f) of the Investment Advisers Act of 1940 or Section 9(b) of the Investment Company Act of 1940, or to censure by a state securities administrator pursuant to applicable state securities Laws;

[PARTY B]'s commission of fraud or gross moral turpitude; or

[PARTY B]'s continued willful failure to substantially perform its duties under this agreement after receipt of written notice thereof and an opportunity to so perform.

Cause Determination

Vote. Cause will be determined by the affirmative vote of at least 75% of the members of the Board (excluding [PARTY B], if it is a Board member, and excluding any member of the Board involved in events leading to the Board's consideration of terminating [PARTY B] for Cause).

Notice and Opportunity to Appear[PARTY A] shall give [PARTY B],

 30 Business Days' written notice of the Board meeting at which Cause shall be decided (which notice shall be deemed to be notice of the existence of Cause if Cause is then found to exist by the Board), and

 opportunity, prior to the vote on Cause, to appear before the Board, with or without counsel at [PARTY B]'s election, to present arguments on its behalf.

Contents of Notice and Notice Period. The notice to [PARTY B] of the Board meeting will include a description of the specific reasons for such consideration of Cause. During the notice period described herein, [PARTY A] will not be prevented or delayed in its ability to enforce any restrictive covenants or obligations in this agreement.

Disabled

Disabled Definition. "Disabled" means, for purposes of this agreement, that [PARTY B] has any medically-determinable physical or mental impairment that has lasted for a period of at least six-months of any 12-month period, and that renders [PARTY B] unable to perform its essential functions required under the agreement.

Disabled Determination. Determination that [PARTY B] is disabled will be made by written certification from a physician mutually selected by the parties; provided that if the parties cannot agree on appointing such physician, the determination will be made by a panel of physicians consisting of one physician selected by [PARTY A], one physician selected by [PARTY B], and a third physician jointly selected by those two physicians. 

Good Reason Definition. "Good Reason" includes, for the purposes of this agreement

any material breach by [PARTY A] of this agreement (including any reduction in the Base Salary);

any material adverse change in [PARTY B]'s status, position, or responsibilities, including a change in its reporting relationship (including, to the extent [PARTY B] reports to the Board, such a change that results in it no longer reporting to the Board) or if [PARTY A] becomes a wholly-owned subsidiary of another company, [PARTY B] serves only as an officer of the subsidiary company;

assignment of duties to [PARTY B] that are materially inconsistent with its position and responsibilities described in this agreement;

[PARTY A]'s failure to assign this agreement to a successor, or failure of any such successor to explicitly assume and agree to be bound by this agreement; or

[PARTY A] requiring [PARTY B] to be principally based at any office or location more than [40] miles from [PARTY A]'s current offices in [CITY, STATE].

Willful Definition. For purposes of this section [TERMINATION], [PARTY B]'s act or failure to act will not be considered willful if it is done, or omitted to be done,  in good faith and with a reasonable belief that the action or omission was in [PARTY A]'s best interests.

Effect of Termination

Termination Benefits

Without Cause, For Good Reason, or Change in Control. If this agreement is terminated under sections [PARTY A'S TERMINATION WITHOUT CAUSE], [PARTY B's TERMINATION FOR GOOD REASON], or [TERMINATION FOR CHANGE IN CONTROL], [PARTY A] shall pay to [PARTY B] all Accrued Obligations, Severance Benefits, and Severance Compensation.

Death or Disability. If this agreement terminates under sections [TERMINATION ON DEATH] or [TERMINATION ON DISABILITY], [PARTY A] shall pay to [PARTY B], or to [PARTY B]'s heirs or estate if applicable, all Accrued Obligations and Severance Benefits.

For Cause or Without Good Reason. If this agreement terminates under sections [PARTY A'S TERMINATION FOR CAUSE] or [PARTY B'S TERMINATION WITHOUT GOOD REASON], [PARTY B] shall pay to [PARTY A] all Accrued Obligations[, and [PARTY B] will have no obligation to provide any other severance payment or benefit].

Insurance Coverage Election. [PARTY B] may elect continuation coverage of insurance benefits to the extent required by Law.

Related Definitions

Accrued Obligations. "Accrued Obligations" means the sum of the following unpaid benefits as of the Date of Termination:

Accrued Salary. Payment of any earned but unpaid portion of [PARTY B]'s Base Salary through the effective date of such termination;

Accrued Expenses. Reimbursement for any reasonable, unreimbursed, and documented business expense [PARTY B] has incurred in performing its duties under this agreement;

Accrued Benefits. payment of any accrued but unpaid benefits (including without limitation, any bonus due by virtue of having met applicable performance targets prior to the effective date of such termination), and any other rights, as required by the terms of any [PARTY A] benefit plan or program [PARTY B] was eligible for during its employment.

Date of Termination. "Date of Termination" means

if this agreement is terminated under sections [PARTY A'S TERMINATION FOR CAUSE] or [PARTY B'S TERMINATION FOR GOOD REASON], the date of receipt of the notice of such termination or any later date specified in the notice,

if this agreement is terminated under sections [PARTY'S TERMINATION WITHOUT CAUSE] or [PARTY B'S TERMINATION WITHOUT GOOD REASON], the date on which the the terminating party notifies the other party of such termination, and

if this agreement is terminated under sections [TERMINATION ON DEATH] or [TERMINATION ON DISABILITY], or if [PARTY B] retires, the date of death, or the date on which [PARTY B]'s retirement or Disability becomes effective.

Severance Benefits. "Severance Benefits" includes the following.

Bonus. Payment of a bonus [throughout such remaining term] or [for a period of [SEVERANCE PERIOD]], where such bonus will be equal to the greater of

[PARTY B]'s bonus during the year prior to the termination, or

the bonus [PARTY B] would have earned under [PARTY A]'s bonus plan in the year it was terminated had it remained in its employment.

Options. The immediate vesting of any of [PARTY B]'s unvested stock options.

Benefits. Payment of health and dental insurance benefits [throughout such remaining term] or [for a period of [SEVERANCE PERIOD]].

Severance Compensation. "Severance Compensation" means an amount equal to $[SEVERANCE PAYMENT AMOUNT].

Accrual. For the purpose of this section [EFFECT OF TERMINATION], except as provided in the applicable plan, program, or policy, amounts will be deemed to accrue ratably over the period during which they are earned, but no discretionary compensation will be deemed earned or accrued until it is specifically approved by the Board in accordance with the applicable plan, program, or policy.

Indemnification[PARTY A] shall indemnify [PARTY B] against all losses suffered by [PARTY A] arising out of [PARTY B]'s actions or omissions in its capacity as a senior executive or member of the Board, unless such actions or omissions constitute willful misconduct or gross negligence by [PARTY B].

Definitions 

"Accrued Obligations" is defined in section [EFFECT OF TERMINATION].

"Action" means any legal or administrative claim, suit, action, complaint, charge, grievance, arbitration, audit, investigation, inquiry, or other proceeding.

"Affiliate" of any Person means, at the time the determination is made, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with that Person.

"Base Salary" is defined in section [EXECUTIVE COMPENSATION].

"Board" means [PARTY A]'s board of directors.

"Business Day" means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in New York, New York are not open for business.

"Cause" is defined in section [TERMINATION].

"Change in Control" A "Change in Control" will be deemed to occur on the earliest of

(a) any Person becoming the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act of 1934, as amended), directly or indirectly, of securities of [PARTY A] representing more than 50% of the total voting power represented by [PARTY A]'s then-outstanding voting securities,

(b) the consummation of [PARTY A]'s sale or disposition of all or substantially all of its assets,

(c) the consummation of a merger or consolidation of [PARTY A] with or into any other entity, other than a merger or consolidation which would result in the voting securities of [PARTY A] outstanding immediately prior to the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) more than 50% of the total voting power represented by [PARTY A]'s voting securities, such surviving entity, or its parent outstanding immediately after the merger or consolidation,

(d) if Persons who are members of [PARTY A]'s Board at the time [PARTY B]'s employment with [PARTY A] began cease for any reason to constitute at least a majority of the members of the board over a 12 month period; provided, however, that if the appointment or election (or nomination for election) of any new board member was approved or recommended by a majority vote of the members of [PARTY A]'s Board  in position at the time [PARTY B]'s employment with [PARTY A] began then still in office, such new board member will, for purposes of this agreement, be considered as a member of [PARTY A]'s board of directors at the time [PARTY B]'s employment with [PARTY A] began, but not

(e) if the event or transaction's sole purpose is to change the state of [PARTY A]'s  incorporation or to create a holding company that will be owned in substantially the same proportions by the Persons who held [PARTY A]'s securities immediately before such event or transaction.

"Code" means the Internal Revenue Code of 1986, as amended.

"Code of Ethics" is defined in section [CODE OF ETHICS].

"Date of Termination" is defined in section [EFFECT OF TERMINATION].

"Disabled" is defined in section [TERMINATION].

"Effective Date" is defined in the introduction to this agreement.

"Good Reason" is defined in section [TERMINATION].

"Governmental Authority" means

(a) any federal, state, local, or foreign government, and any political subdivision of any of them,

(b) any agency or instrumentality of any such government or political subdivision,

(c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or Orders have the force of law), or

(d) any arbitrator, court or tribunal of competent jurisdiction.

"Intellectual Property" means any and all of the following in any jurisdiction throughout the world

(a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,

(b) copyrights, including all applications and registrations related to the foregoing,

(c) trade secrets and confidential know-how,

(d) patents and patent applications,

(e) websites and internet domain name registrations, and

(f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing). 

"Law" means

(a) any law (including the common law), statute, by-law, rule, regulation, Order, ordinance, treaty, decree, judgment, and

(b) any official directive, protocol, code, guideline, notice, approval, policy, or other requirement of any Governmental Authority having the force of law.

"Non-Competition Period" is defined in section [NON-COMPETITION].

"Non-Solicitation Period" is defined in section [NON-SOLICITATION].

"Order" means any decision, order, judgment, award, or similar order of any court of competent jurisdiction, arbitration panel, or Governmental Authority having jurisdiction over the subject matter, whether preliminary or final.

"Permits" means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party's business.

"Person" includes

(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and

(b) any individual.

"Restricted Activity" is defined in section [NON-COMPETITION].

"Restricted Business" is defined in section [NON-COMPETITION].

"Restricted Territory" is defined in section [NON-COMPETITION].

"Severance Benefits" is defined in section [EFFECT OF TERMINATION].

"Severance Compensation" is defined in section [EFFECT OF TERMINATION].

"Subsidiaries" means any legal entity of which

(a) more than 50% of the outstanding voting securities or equity interests are directly or indirectly owned by a party, or

(b) such party or any Subsidiary of such party is a general partner (excluding partnerships in which such party or any Subsidiary of such party does not have a majority of the voting interests in such partnership).

"Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by law, contract or otherwise.

"Term" is defined in section [TERM].

"Willful" is defined in section [TERMINATION].

"Work Product" is defined in section [INTELLECTUAL PROPERTY AND WORK PRODUCT].

General Provisions

Entire Agreement. This agreement (together with the documents [referred to in this Agreement] [listed on Exhibit A]) constitute(s) the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, representations and understandings of the parties, written or oral.

Entire Agreement. This agreement, together with the attached exhibits and schedules, constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements, understandings, inducements, or conditions between the parties[, other than the Confidentiality Agreement]. This agreement supersedes anyinconsistent course of performance or usage of the trade.

Entire Agreement. The parties intend that this agreement

represents the final expression of the parties' intent and agreement between the parties relating to the subject matter of this agreement,

contains all the terms the parties agreed to relating to the subject matter, and

replaces all the parties' previous discussions, understandings, and agreements relating to the subject matter.

Assignment

[PARTY B] Requires [PARTY A]'s Consent[PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s written consent.

[PARTY A] May Give Notice to Assign[PARTY A] may assign this agreement or any of its rights or obligations under this agreement, by giving [PARTY B] Notice.

Assignment. [PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s prior written consent. [PARTY A] may assign this agreement or any of its rights and obligations under this agreement, effective upon Notice to [PARTY B],

to any subsidiary or affiliate, or

in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of [PARTY A]'s obligations.

Assignment and Successors

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the prior written consent of the other party.

Successors. This agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.

Assignment. Neither party may assign this [agreement /plan] or any of their rights or obligations under this [agreement /plan] without the other party's written consent.

Acknowledgement of Contract Terms. [PARTY B] acknowledges that it

has read this agreement,

understands its terms,

has had the opportunity to consult[ and has consulted] with independent legal counsel, and

has signed this agreement voluntarily.

Advice of Counsel. [PARTY A] has advised [PARTY B] to review this agreement with an attorney of its choosing before signing this agreement, and [PARTY B] has had a reasonable period of time to do so.

Acknowledgement of Contract Terms. Each party acknowledges that it

has read this agreement,

understands its terms,

has had the opportunity to consult[ and has consulted] with independent legal counsel, and

has signed this agreement voluntarily.

1. Acknowledgement of Contract Terms. Before signing this agreement, the [PARTY B]

(a) has been given[ a reasonable opportunity / the opportunity, for no less than [21] days,] to consider its terms,

(b) has carefully read and fully understands all its terms,

(c) has been advised by the [PARTY A], and has been given ample opportunity, to consult with an attorney of his or her choosing regarding this agreement, and

(d) knowingly and voluntarily agrees to all of the terms of this agreement, without any duress, coercion, or undue influence by the [PARTY A], its representatives, or any other Person, and agrees to be legally bound by those terms.

Acknowledgement of Contract Terms. Before signing this agreement, [PARTY B]

has been given[ a reasonable opportunity / the opportunity, for no less than [21] days,] to consider its terms,

has carefully read and fully understands all its terms,

has been advised by [PARTY A], and has been given ample opportunity, to consult with an attorney of his or her choosing regarding this agreement, and

knowingly and voluntarily agrees to all of the terms of this agreement, without any duress, coercion, or undue influence by [PARTY A], its representatives, or any other Person, and agrees to be legally bound by those terms. 

Notices

Form of Notice. All notices and other communications between the parties must be in writing.

Method of Notice. The parties shall give all notices and communications between the parties by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.

Receipt of Notice. A notice given under this [agreement /plan] will be effective on

the other party's receipt of it, or

if mailed, on the earlier of the other party's receipt of it and the [fifth] Business Day after mailing it. 

Survival. The parties' obligations under sections [CONFIDENTIALITY OBLIGATIONS], [NON-COMPETITION OBLIGATION], and [EFFECT OF TERMINATION] will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement.

Survival

Survival of Core Clauses. The parties' obligations under the [CONFIDENTIALITY OBLIGATIONS], [NON-COMPETITION OBLIGATION], and [EFFECT OF TERMINATION] will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement.

Survival of Representations, Warranties, and Covenants. The representations, warranties, and covenants of the parties contained in this agreement or in any certificate delivered by them under this agreement will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement for [SURVIVAL TIME PERIOD][.][, except for:

[ENUMERATED LIST OF REPRESENTATIONS, WARRANTIES, AND/OR COVENANTS THAT WILL SURVIVE SHORTER OR LONGER ].]

Survival

Survival of Core Clauses. The parties' obligations under the [CONFIDENTIALITY OBLIGATIONS], [NON-COMPETITION OBLIGATION], and [EFFECT OF TERMINATION] will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement.

Survival of Representations, Warranties, and Covenants. The representations, warranties, and covenants of the parties contained in this agreement or in any certificate delivered by them under this agreement will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement for [SURVIVAL TIME PERIOD][.][, except for:

[ENUMERATED LIST OF REPRESENTATIONS, WARRANTIES, AND/OR COVENANTS THAT WILL SURVIVE SHORTER OR LONGER ].]

Survival of Indemnification Obligations. The parties' indemnification obligations under the [INDEMNIFICATION CLAUSE] will survive the [TERMINATION, EXPIRATION, CLOSING DATE] of this agreement with respect to any indemnifiable proceedings (whether related to direct claims between the parties or to third-party claims) the Indemnified Party has notified the Indemnifying Party of before the termination of the applicable survival period listed above.

Severability. If any part of this [agreement /plan] is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

Waiver. A party's failure or neglect to enforce any of rights under this agreement will not be deemed to be a waiver of that party's rights.

Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.

No General Waivers. A party's failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.

No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.

Equitable Relief. The parties acknowledge that if either party violates the specific obligations of this agreement, it could lead the other party to suffer irreparable harm, that is, harm for which monetary damages would be an inadequate remedy. Further, the parties acknowledge that if in order to obtain [TYPE OF EQUITABLE RELIEF REQUESTED] the injured party was required to prove irreparable harm, the delay needed to prove irreparable harm could increase the harm the injured party would suffer. Therefore, parties intend that if either party violates the specific obligations of this agreement, then for the purposes of determining whether to grant equitable relief any court should assume that that violation would cause injured party irreparable harm.

Equitable Relief

Acknowledgement of Irreparable Harm. The parties acknowledge that breach or threatened breach of any of the obligations in this agreement would result in irreparable harm to the non-breaching party that cannot be adequately relieved solely by monetary damages.

Intent to Allow for Equitable Remedies. Accordingly, the parties intend, and hereby agree that after such breach, the non-breaching party may request from a court any applicable equitable remedies, including injunctive relief, without the need to post any security.

Equitable Relief

Acknowledgment of Irreparable Harm. Each party acknowledges that its breach or threatened breach of its obligations under sections [CONFIDENTIALITY], [NON-COMPETITION], and [NON-SOLICITATION][OTHER SPECIFIED OBLIGATIONS] would result in irreparable harm to the other party that cannot be adequately relieved by money damages alone.

Intent to Allow for Equitable Remedies. Accordingly, the parties intend, and hereby agree that after any breach of the obligations listed above, the non-breaching party may request any applicable equitable remedies from a court, including injunctive relief, without the need for it to post any security.

Governing Law. This agreement, and any dispute arising out of the [SUBJECT MATTER OF THE AGREEMENT], shall be governed by laws of the State of [GOVERNING LAW STATE].

Governing Law.

Applicable Law. This agreement will be governed by and construed in accordance with the substantive laws in force in:

the State of California, if a license to the Software is purchased when you are in the United States, Canada, or Mexico; or

Japan, if a license to the Software is purchased when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or

England, if a license to the Software is purchased when you are in any jurisdiction not described above.

Jurisdiction. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England applies, shall each have non-exclusive jurisdiction over all disputes relating to this agreement.

United Nations Convention on Contracts. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Governing Law and Consent to Jurisdiction

Governing Law. This [agreement / plan] will be governed, construed, and enforced according to the laws of the State of [GOVERNING LAW STATE], without regard to its conflict of laws rules.

Consent to Jurisdiction. Each party hereby irrevocably consents to the [exclusive, non-exclusive] jurisdiction and venue of any [state or federal] court located within [VENUE COUNTY] County, State of [VENUE STATE] in connection with any matter arising out of this [agreement / plan] or the transactions contemplated under this [agreement / plan].

Consent to Service. Each party hereby irrevocably

agrees that process may be served on it in any manner authorized by the Laws of the State of [GOVERNING LAW STATE] for such Persons, and 

waives any objection which it might otherwise have to service of process under the Laws of the State of [GOVERNING LAW STATE].

Amendment. [PARTY A] may amend the terms and conditions of this agreement at any time by reasonable notice, including without limitation by posting revised terms on its website at the URL [URL], which amended terms and conditions shall be binding upon [PARTY B].

Amendment. This agreement may be amended only by a written instrument executed by the party against whom the amendment is to be enforced.

Amendment. This agreement may be amended only by a written instrument executed by [TITLE OR POSITION OF AUTHORIZED INDIVIDUAL] of each party.

Amendment

Before the Effective Time. Before the Effective Time, this agreement may be amended by either the Parent Board of Directors or Company Board of Directors.

After the Effective Time.  After the Effective Time, this agreement may only be amended by the Parent Board of Directors or Company Board of Directors with the prior written approval by the Company Shareholders, if such approval is required by the [APPLICABLE STATUTE].

Method of Amendment. This agreement can be amended only by a written instrument signed on behalf of both parties. 

Amendment. This agreement may be amended only by written consent of the Company and Stockhoolders of at least [66%] of the outstanding shares of Common Stock. Any consent will only be effective in the specific instance and purpose for which it was given and shall not constitute continuing consent.

Amendment. This agreement can be amended only by a written instrument signed by both parties.

Interpretation. Each party has had adequate opportunity to review this agreement. Any interpretation of this agreement shall be made without regard to authorship or negotiation.

Interpretation

References to Specific Terms

Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the generally accepted accounting principles defined by the professional accounting industry in effect in the United States ("GAAP").

Currency. Unless otherwise specified, all dollar amounts expressed in this agreement refer to American currency.

"Including." Where this agreement uses the word "including," it means "including without limitation," and where it uses the word "includes," it means "includes without limitation."

"Knowledge." Where any representation, warranty, or other statement in this agreement, or in any other document entered into or delivered under this agreement,] is expressed by a party to be "to its knowledge," or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means:

the then-current, actual knowledge of the directors and officers of that party, and

the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.

Statutes, etc. Unless specified otherwise, any reference in this agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.

Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.

Headings. The headings used in this agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.

Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.

Calculation of Time. In this agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. [TIME ZONE] Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. [TIME ZONE] Time on the next Business Day.

Construction of Terms. The parties have each participated in settling the terms of this agreement. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this agreement.

Conflict of Terms. If there is any inconsistency between the terms of this agreement and those in any schedule to this agreement or in any document entered into under this agreement, the terms of [this agreement/[SPECIFIED AGREEMENTS]] will prevail. The parties shall take all necessary steps to conform the inconsistent terms to the terms of [this agreement/[SPECIFIED AGREEMENTS].

Binding Effect. This [agreement /plan] benefits and binds the parties and their respective heirs, successors, and permitted assigns.

Counterparts. This agreement

may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document, and

shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party.

Counterparts. This agreement may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document. Signatures delivered by email in PDF format or facsimile shall be effective.

Counterparts

Signed in Counterparts. This agreement may be signed in any number of counterparts.

All Counterparts Original. Each counterpart is an original.

Counterparts Form One Document. Together, all counterparts form one single document.

Dispute Resolution. Any controversy or claim arising out of this agreement will be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.

Dispute Resolution

Arbitration. Any dispute or controversy arising out of this agreement and [SUBJECT MATTER OF THE AGREEMENT] will be settled by arbitration in [STATE], in accordance with the rules of the American Arbitration Association then in effect by [NUMBER OF ARBITRATORS] arbitrators(s).

Judgment. Judgment may be entered on the arbitrator's award in any court having jurisdiction. The arbitrator will not have the power to award any punitive [or consequential] damages].

Dispute Resolution

Arbitration. Any dispute or controversy arising out of this agreement will be settled exclusively by arbitration in [STATE], in accordance with the rules of the American Arbitration Association then in effect by [NUMBER OF ARBITRATORS] arbitrator(s).

Judgment. Judgment may be entered on the arbitrator's award in any court having jurisdiction. The arbitrator will not have the power to award any punitive [or consequential] damages.

Dispute Resolution

Arbitration. Any dispute or controversy arising out of this agreement will be settled exclusively by arbitration in [STATE], in accordance with the rules of the American Arbitration Association then in effect by [NUMBER OF ARBITRATORS] arbitrator(s).

Judgment. Judgment may be entered on the arbitrator's award in any court having jurisdiction. The arbitrator will not have the power to award any punitive [or consequential] damages.

Appointment of Arbitrators. Arbitration will be determined by three arbitrators, one appointed by [PARTY A], one appointed by [PARTY B], and the third will be appointed by the first two arbitrators.

Failure to Appoint Arbitrators. If either [PARTY A] or [PARTY B] fails to appoint an arbitrator within [NUMBER OF DAYS] of a request in writing by the other to do so, or if the first two arbitrators cannot agree on the appointment of a third arbitrator within [NUMBER OF DAYS] after the second arbitrator is designated, then such arbitrator will be appointed by the American Arbitration Association.

Procedure. The arbitration will be conducted promptly and expeditiously and in accordance with the rules of the American Arbitration Association.

Arbitration Expenses. The parties shall bears the expenses of the arbitrator(s) equally.

Dispute Resolution

Mediation. Any disputes not resolved by negotiation will be subject to mediation under the [American Arbitration Association's Mediation Rules] as a condition precedent to the filing of any litigation.

Either party may commence the mediation process by providing to the other party written notice, listing the subject of the dispute, claim or controversy and the relief requested.

Within ten 10 days after the receipt of the foregoing notice, the other party shall deliver a written response to the initiating party's notice.

Mediation will be held at a mutually agreeable location[ within the State where the contract is performed].

The initial mediation session will be held within 30 days after the initial notice.

The parties agree to share equally the expenses of the mediation (which will not include the expenses incurred by each party for its own legal representation in connection with the mediation).

Arbitration. Any disputes not resolved by mediation within [45] days after initiation of the mediation procedure will be resolved by arbitration under the American Arbitration Association's Arbitration Rules in a court of competent jurisdiction where the [contract is performed]

The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.

The arbitration will be conducted by an arbitrator experienced in [ARBITRATOR EXPERIENCE] and will include a written record of the arbitration hearing. The parties reserve the right to object to any individual who will be employed by or affiliated with a competing organization or entity.

The place of arbitration will be [CITY, STATE].

Litigation. If the dispute has not been resolved by non-binding means as provided herein within [90] days of the initiation of such procedure, this agreement does not preclude either party from initiating litigation [on [00] days written notice to the other party]; provided, however, that if one party has requested the other to participate in a non-binding procedure and the other has failed to participate, the requesting party may initiate litigation before expiration of the above period.

Mitigation. Each party shall use reasonable efforts to mitigate all losses under this agreement. 

Mitigation. Any party entitled to indemnification under this agreement shall use reasonable efforts to mitigate all losses (other than matters concerning Taxes) after becoming aware of any event which could reasonably be expected to give rise to any losses that are indemnifiable or recoverable under this agreement.

1.  Effect on Other Plans, Agreements and Benefits. Except to the extent expressly set forth herein, any benefit or compensation to which the Employee is entitled:

1.1. under any agreement between the Employee and the Company or

1.2. under any plan maintained by the Company in which the Employee participates or participated shall not be modified or lessened in any way, but shall be payable according to the terms of the applicable plan or agreement.

Effect on Other Plans, Agreements, and Benefits

Effect on Severance Agreements. Subject to paragraph [REPLACEMENT SEVERANCE PAYMENTS], the terms of this agreement will supersede and terminate

any prior severance agreement, and

the provisions of any other agreement or plan providing benefits following a termination of employment, entered into between the parties.

Replacement Severance Payments. Any severance benefits received by [PARTY B] under this agreement will be in lieu of any severance benefits he or she would otherwise be entitled to

under any general severance policy maintained by [PARTY A], or

under any employment contract between the parties.

Effect on Employment Agreements. Any and all employment agreements between the parties are hereby terminated and void.

Attorney Fees. In the event of any action arising out of or relating to this agreement, [PARTY A] shall bear all expenses, including reasonable attorneys fees, incurred in connection with such action.

Attorney Fees. In the event of any action arising out of or relating to this agreement, each party shall bear its own expenses, including reasonable attorneys fees, incurred in connection with such action.

Attorney Fees. If either party brings an Action to enforce its rights under this agreement, the prevailing party may recover its expenses (including reasonable attorneys' fees) incurred in connection with the Action and any appeal from the losing party.

Key Man Insurance 

[PARTY B]'s Acknowledgement and Consent[PARTY B] hereby 

acknowledges that [PARTY A] or its Affiliates may seek and purchase one or more policies providing key man life insurance with respect to [PARTY B], the proceeds of which would be payable to [PARYT A] or the applicable Affiliate, and

consents to [PARTY A] or its Affiliates seeking and purchasing key man life insurance with respect to [PARTY B].

Further Assurances. If and to the extent necessary or desirable for [PARTY A] or its Affiliates to seek, purchase, and maintain key man insurance in full force and effect, [PARTY B] shall, 

provide information,

undergo medical examinations (at [PARTY B]'s expense), 

execute documents, and

otherwise take any and all actions reasonably necessary or desirable under this section.

Non-Exclusivity of Rights

Future Rights and Benefits. Nothing in this agreement will

prevent or limit [PARTY B]'s continuing or future participation in any of [PARTY A]'s benefit, bonus, incentive, or other plan or program for which [PARTY B] may qualify, or

prejudice such rights as [PARTY B] may have under any other existing or future agreements with [PARTY A].

Vested or Entitled Payments. Except as otherwise expressly provided for in this agreement, amounts which are vested benefits or which [PARTY B] is otherwise entitled to receive under any of [PARTY A]'s plans or programs at or subsequent to the Date of Termination will be payable in accordance with such plans or programs. 

Litigation and Regulatory Cooperation

Cooperation Obligations. During and after the Term, [PARTY B] shall cooperate with [PARTY A]

in the defense or prosecution of any existing or future claims or actions against or on behalf of [PARTY A]arising out of [PARTY B]'s employment with [PARTY A]. and

in connection with any investigation or review by any federal, state, or local regulatory authority, arising out of [PARTY B]'s employment with [PARTY A].

Specific Obligations [PARTY B]'s cooperation in connection with such claims or actions will include

meeting with counsel to prepare for discovery or trial, and

acting as a witness on behalf of [PARTY A] at mutually convenient times.

Compensation for Cooperation[PARTY A] shall reimburse [PARTY B] 

at a daily rate of $[500], and

for any reasonable out-of-pocket expenses incurred in connection with [PARTY B]'s performance of his or her obligations under this section.

Employment Transition CooperationFollowing any expiration or termination of [PARTY B]'s employment with [PARTY A], on [PARTY A]'s reasonable request [PARTY B] shall cooperate with [PARTY A] to 

transition [PARTY B]'s responsibilities, and

ensure that [PARTY A] is aware of all matters that were or are being handled by [PARTY B].

[PARTY B]'s Cooperation

[PARTY B]'s Duty to Assist in Matters and Litigation. Subject to paragraphs [MINIMIZE DISRUPTION] and [COMPENSATION] directly below, after the termination of this agreement for any reason, on reasonable notice from [PARTY A], [PARTY B] shall cooperate with [PARTY A] in connection with matters arising out of [PARTY B]'s employment under this agreement, including cooperating and furnishing relevant documents in connection with any legal or quasi-legal proceeding, external or internal investigation, involving [PARTY A] or its Affiliates.

[PARTY B]'s Testimony Regarding [PARTY A][PARTY B] will not voluntarily testify in any lawsuit or other proceeding directly or indirectly involving [PARTY A], or its Affiliates, or any lawsuit or other proceeding which may create the impression that [PARTY A] endorsed or approved its testimony, unless

[PARTY A] approves in writing (including approval of the general nature of its testimony) or,

[PARTY B] is subpoenaed to testify, or otherwise compelled to testify by a court of competent jurisdiction.

[PARTY A]'s Obligations in Cooperation. In connection with any request for cooperation under paragraph [PARTY B's DUTY TO ASSIT] directly above, [PARTY A] shall

use reasonable efforts to minimize disruption of [PARTY B]'s other activities, and

reimburse [PARTY B] for reasonable expenses incurred in connection with his or her cooperation, including, to the extent [PARTY B] is required to spend substantial time on such matters, compensating [PARTY B] at an hourly rate based on his or her Base Salary as of the date this agreement ended. 

This agreement has been signed by the parties.

[PARTY A NAME]

Name: [PARTY A SIGNATORY NAME]

Title: [PARTY A SIGNATORY TITLE]

[PARTY B NAME]

Name: [PARTY B SIGNATORY NAME]

Title: [PARTY B SIGNATORY TITLE]

Overview

What Is An Executive Employment Agreement?

The parties to an executive employment agreement are the company and the executive that the company is hiring.

Executives fill the highest managerial positions in a company—CEO, COO, CFO, etc.—and are ultimately responsible for overseeing the day-to-day operations. In order to fulfill their responsibilities, executives have a high degree of discretion, but with that comes a corresponding degree of responsibility, and potential liability.

Because of the importance of good executives, there is a competitive market for the top executives. As a result, executives tend to have more bargaining power than a typical employee in negotiating their employment agreement. Thus, executive employment agreements tend to be more complex and varied than typical employment agreements. That said, there are some common factors and clauses every executive employment agreement should cover.

Five Key Considerations:

1. Termination: With Cause, Without Cause, and Defining Cause

An executive employment agreement can be terminated prematurely either with cause or without cause.

Termination with cause can happen after an event or action occurs that the parties agree would be grounds for terminating the agreement. For example, the executive breaching his duties to the company or neglecting his duties are common grounds for termination with cause. After termination with cause, the agreement ends immediately.

Termination without cause, is also commonly called termination with notice, and happens when either party delivers notice to the other party that it is ending the employment relationship. Generally, the terminating party has to notify the other in a particular manner, by letter for example, and once notice is given, the agreement continues for a predetermined period before ending.

Whether termination is with or without cause affects certain obligations the parties have in ending the agreement. For example, the company usually owes a severance package to the executive after termination without cause, and it may be harder to enforce a non-compete clause after termination without cause.

Therefore, defining “cause” is one of the most important parts of the executive employment agreement.

2. Limiting Liability: Indemnification and Exculpation

There are two important contractual ways of limiting an executive’s potential exposure to liability: indemnification, and exculpation.

Indemnification is a risk-shifting clause; a guarantee that the indemnifying party—here, the company—will pay for certain losses incurred by the indemnified party—here, the executive.

Exculpation excuses an executive from liability from the breach of the fiduciary duty of care—the duty to exercise good business judgement and use ordinary care and be reasonably prudent in making business decisions.

Indemnification can cover all sorts of claims against an executive. Exculpation is more limited, and can protect the executive against liability for breaching his duty of care, but not the duty of loyalty.

For more on Indemnification and exculpation, see Stafford Matthews, Indemnification Clauses (accessed July 1, 2016), and  Richard B. Kapnick & Courtney A. Rosen, The Exculpatory Clause Defense to Shareholder Derivative Claims (accessed July 1, 2016).

3. Non-Compete and Non-Disclosure

Executives will be hands-on with virtually all of the most important business decisions and day-to-day operations of the company. Executives will also have access to the most valuable company information, strategy, and trade secrets.

The important roles and access to information executives enjoy means the company should supplement the executive employment agreement with non-compete and non-disclosure agreements.

Non-compete agreements in particular are very controversial—courts don’t like limiting individual's ability to find work—and some states are very reluctant to enforce them.

That said, even in states that are skeptical of non-compete agreements, because of the company’s legitimate interest in preventing a current or ex-executive from using the company’s own proprietary information against the company, courts tend to be more likely to enforce non-compete and non-disclosure agreements against executives than more typical employees.

4. Choice of Law

Like the rest of employment law, executive employment agreements are governed by state law. Because of differences between various states’ law on some important topics, non-compete clauses for example, it is important to include a choice of law clause in an executive employment agreement to make sure the party’s can control which state’s laws will govern the agreement.

Courts tend to respect choice of law clauses, so long as (A) there is a substantial relationship (often called a nexus) between the chosen law and the agreement, and (B) there are not strong public policy reasons for applying the law of another state.

5. Duties

The duties clause tends to be highly negotiated. Rather than a simple enumerated lists of duties, a robust executive employment agreements should outline the executive’s responsibilities with something like the following:

  1. The executive must perform all duties and responsibilities of [insert executive’s title].
  2. The executive must perform any other duties assigned by the [insert title(s) of company employee(s) who can supervise and control the executive, the President, for example].
  3. The executive must abide by all company bylaws, policies, procedures, and rules.
  4. The executive can be transferred to another management position, by the [insert title(s) of company employee(s) who can supervise the executive.]

Resources

For more on executive employment agreements, the following is a good library of resources:

Mark J. Oberti, 5 Things All Execs Should Have In Their Employment Agreements (accessed June 24, 2016.

Mike Drobka & Jeff Belfiglio, Understanding Executive Employment Agreements (accessed June 26, 2016).

Leitman Siegal & Payne PC, Drafting Executive Employment Agreements That Work for Employers (accessed June 26, 2016).

Peter M Panken & Jeffery D. Williams, Drafting Executive Employment Agreements That Work for Employers: An Annotated Model Agreement (accessed June 27, 2016).