EMPLOYMENT and CONSULTING AGREEMENT
THIS EMPLOYMENT AND CONSULTING AGREEMENT ("Agreement") is made this
___ day of _________, 200_ by and between Innovative Coatings
Corporation, a Georgia corporation having its principal office at
0000 Xxxxxxx Xx., Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (the "Company");
and ________________, an individual residing at ____________________,
("Employee").
FOR AND IN CONSIDERATION of the mutual promises, agreements and
covenants contained herein, the parties hereto, intending to be
legally bound, do hereby agree as follows:
1. Employment: Position and Duties. The Company hereby agrees
to employ Employee to act as, and to exercise all of the powers and
functions of, its ________________________ during the term hereof
(as set forth in paragraph 4 herein) and to perform such acts and
duties and to generally furnish such services to the Company and its
subsidiaries (if any) as is customary for a senior management person
with a similar position in like companies; and he shall have such
specific powers, duties and responsibilities as the Board of Directors
of the Company shall from time to time reasonably prescribe, provided
that such duties and responsibilities are consistent with Employee's
senior management position. Employee hereby agrees to accept such
employment and shall perform and discharge faithfully, diligently, and
to the best of his abilities such duties and responsibilities and shall
devote most of his working time and efforts to the business and affairs
of the Company and its subsidiaries; provided however, that, to the
extent consistent with the needs of the Company, Employee shall be
entitled to expend a reasonable amount of time on civic, public,
industry, and philanthropic activities and on the management of his own
investments and assets. Employee recognizes that as a matter of law the
election of a person to a board of directors is performed by the
shareholders of a corporation and that such election cannot generally
be the subject of a contractual agreement, however, as long as Employee
is elected to the board as a director, Employee shall perform all those
duties of a Director.
2. Place of Employment. During his employment hereunder, Employee's
principal place of employment shall be as required to conduct his duties
and responsibilities hereunder (except for routine and customary business
travel).
3. Compensation.
(a) Base Salary. The Company shall pay to Employee an annual base
salary ("Base Salary") of $_________, payable in accordance with the
Company's customary payroll policy for its executives, and subject to
applicable tax and payroll deductions; and an annual non-accountable
expense allowance of $________ payable monthly. Employee's Base Salary
shall be reviewed annually by the Company's Board of Directors which
may make upward adjustments as within its discretion and it deems
appropriate.
(b) Incentive Compensation. Employee's incentive compensation,
if any, shall be determined annually by the Company's Board of Directors.
(c) Certain Other Benefits. During the term of this Agreement,
Employee shall be entitled to equity participate in any and all employee
benefit plans and arrangements which are available to senior executive
officers of the Company, including without limitation, group medical and
life insurance plans, accidental death benefit plans, disability
insurance plans, pension plans, and automobile expense reimbursement
allowances or Company-provided automobiles.
4. Term. The term of Employee's employment with the Company shall be for
a one-year period commencing ___________ or earlier and continuing
through __________ (the "initial term"); provided, however, that this
Agreement shall be automatically renewed for successive one-year periods
(each a "successor term"; and together with the initial term, generally
'the term') unless either party hereto gives written notice of
termination to the other party at least twelve months prior to the
expiration of the initial term or of any successor term. By way of
illustration, if neither party gives to the other party a written notice
of termination by ____________ this Agreement shall be automatically
renewed for a one-year period ending on ___________.
5. Stock Options. Periodic stock and incentive stock option grants to
Employee, if any, shall be determined by the Board of Directors.
6. Unauthorized Disclosure and Employee's Right of Ownership. For a
period of two years after termination of employment, Employee shall not
without the written consent of the Company, disclose to any person, other
than person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by Employee of his duties as an executive
officer of the Company, any material confidential information obtained by
Employee while in the employ of the Company with respect to the
businesses of the Company or any of its subsidiaries, including by not
limited to, operations, pricing, contractual or personnel date, products,
discoveries, improvements, trade secrets, license agreements, marketing
information, suppliers, dealers, principals, customers, or methods of
distribution, or any other confidential information the disclosure of
which Employee knows or in the exercise of reasonable care should know
will be damaging to the Company; provided, however, that confidential
information shall not include any information known generally to the
public (other than as a result of unauthorized disclosure by Employee)
or any information not otherwise considered by the Company to be
confidential. Furthermore, all inventions conceived or developed by
Employee in which the equipment, supplies, facilities, or trade secret
information of the Company was used, or that relate to the business of
the Company or to the Company's actual or demonstrably anticipated
research and development, or that result from any work performed by
Employee for the Company will remain the property of the Company. All
other inventions conceived or developed by Employee during the term of
this Agreement will remain the property of Employee.
7. Indemnification of Employee. The Company shall indemnify Employee if
Employee is made a party, or threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, or investigative, because Employee is
or was an officer or director of the Company or any of its subsidiaries,
affiliates, or successors, against expenses (including reasonable
attorneys fees and disbursements), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding to the fullest extent and in the manner
set forth in and permitted by the General Corporation Law of the State
of Georgia and any other applicable law in effort from time to time.
8. Termination.
(a) Termination Upon Death. If Employee dies during the term of
this Agreement, Employee's legal representatives shall be entitled to
receive the Base Salary through the last day of the first month
following the month in which Employee's death occurred. If in respect
of the fiscal year in which Employee dies he would otherwise have been
entitled to receive incentive compensation under paragraph 3(c) by
reason of the operations of the Company during such fiscal year,
Employee's legal representatives shall be entitled to receive a pro
rata portion of such incentive compensation determined by multiplying
the dollar amount of the incentive compensation involved by a fraction,
the numerator of which shall be the number of complete calendar months
that elapsed during the fisc4d year through the end of the month in
which Employee died and denominator of which shall be twelve.
(b) Termination Upon Disability or Incapacity. The Company may
terminate Employee's employment hereunder at the end of any calendar
month by giving written notice of termination to Employee in the event
of Employee's incapacity due to physical or mental illness which
prevents the proper performance of the duties of Employee set forth
herein or established pursuant hereto for a substantial portion of any
six-month period of Employee's term of employment hereunder. Any
questions as to the existence or extent of illness or incapacity of
Employee upon which the Company and Employee cannot agree shall be
determined by a qualified independent physician selected by the Company
and approved by Employee (or, if Employee is unable to give such
approval, by any adult member of the immediate family or the duly
appointed guardian of Employee). The determination of such physician
certified in writing to the Company and to Employee shall be final and
conclusive for all purposes of this Agreement. In the event of any such
termination pursuant to this subparagraph 8(b), Employee shaft be
entitled to receive his Base Wary through the last day of the month in
which this Agreement is terminated. If in respect of the fiscal year in
which Employee's employment terminates pursuant to this subparagraph 8(b)
he would otherwise have been entitled to receive incentive compensation
under paragraph 3(c) by reason of the operations of the Company during
such fiscal year, Employee shall be entitled to receive a pro rata
portion of such incentive compensation determined by multiplying the
dollar amount of the incentive compensation by a fraction, the numerator
of which shall be the number of complete calendar months that elapsed
during the fiscal year through the end of the month in which Employee's
employment terminated pursuant to subparagraph 8(b) and the denominator
of which shall be twelve.
(c)Termination for Cause. The Company may terminate Employee's
employment hereunder for "cause" (as hereinafter defined) by giving
written notice of termination of this Agreement to Employee. For the
purpose of this Agreement, the Company shall have "cause" to terminate
Employee's employment hereunder upon Employee's(l) habitual drunkenness
or drug addiction or willful failure materially to perform and discharge
his duties and responsibilities hereunder, or (ii) misconduct that is
materially and significantly injurious to the Company, or (iii)
conviction of a felony involving the personal dishonesty of Employee or
moral turpitude, or (iv) conviction of Employee of any crime or offense
involving the property of the Company. Upon any such termination for
cause under this subparagraph 8(c), the Company shall pay Employee his
Base Salary through the date of termination, and the Company shall have
no further obligations under this Agreement.
(d) Termination Without Cause. The Company shall have the right to
terminate Employee's employment under this Agreement at any time, without
cause, by giving Employee not less than sixty (60) days prior written
notice of such termination. Until the effective date of any such
termination, the Company shall continue to pay to Employee the full
compensation specified in this Agreement. In addition, on the effective
date of termination the Company shad pay to Employee the full amount of
all Base Salary to which Employee would otherwise have been paid
throughout the remaining term (including any successor term, if
applicable) of this Agreement.
9. Reimbursement of Legal Fees. The Company agrees to reimburse Employee
for reasonable attorneys fees, if any, incurred in connection with the
negotiation, preparation, and execution of this Agreement.
10. Application for Insurance. The Company at its option has the right to
obtain a "key-man" life insurance policy, at the Company's expense, with
the Company being the sole beneficiary of such policy. Employee hereby
agrees to undergo the necessary physical examinations and disclose any
pertinent disclaimers and information to obtain said policy.
11. Miscellaneous.
(a) Assignment and Binding Effect. The respective rights and
obligations of the parties under this Agreement shall be binding upon
the parties hereto and their heirs, executors, administrators,
successors, and assigns, including, in the case of the Company, any
other corporation or entity with which the Company may be merged or
otherwise combined or which may acquire all or substantially all of the
Company's assets and, in the case of Employee, his estate or other
legal representatives; provided that Employee may not assign his rights
hereunder without the prior written consent of the Company.
(b) Governing Law. This Agreement shall be governed as to its
validity, interpretation and effect by the laws of the State of Georgia.
(c) Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid, illegal, or
unenforceable for any reason, the remaining provisions and portions of
this Agreement shall remain in full force and effect to the fullest
extent permitted by law. Such invalid, illegal, or unenforceable
provision(s) shall be deemed modified to the extent necessary to make it
(them) valid, legal and enforceable.
(d) Entire Agreement; Amendments. This Agreement constitutes the
entire agreement and understanding of the Company and Employee with
respect to the terms of Employee's employment with the Company and
supersedes all prior discussions, understandings, and agreements with
respect thereto.
(e) Captions. All captions and headings used herein are for
convenient reference only and do not form part of this Agreement.
(f) Waiver. The waiver of a breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any
other or subsequent breach or this Agreement.
(g)Notice. Any notice or communication required or permitted under
this Agreement shall be made in writing and shall be delivered by hand,
or mailed by registered or certified mail, return receipt requested,
first class postage prepaid, addressed as follows:
If to Employee:
If to the Company:
Innovative Coatings Corporation
0000 Xxxxxxx Xx., Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
(h) Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
Employee Innovative Coatings Corporation
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(Signature) (Signature)
---------------------- By: ---------------------------
(Printed Name) Its: --------------------------
