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THIS EMPLOYMENT AGREEMENT entered into this 7th day of July 2009, and effective as of this 1st day of August 2009, between Greg Harrington of Harrington’s, Inc., residing as of this 7th day of July 2009 at XXXXX (the “Employer”); and Jason Tyler, residing as of this 7th day of July 2009 at YYYYY (the “Employee”).
THE EMPLOYER desires to employ the Employee and to ensure the continued availability to the Employer of the Employee’s services, and the Employer is willing to accept such employment and render such services, all upon and subject to the terms and conditions contained in this Agreement and
THE EMPLOYER has provided and/or will provide specialized training (see Section 4(a)) in its business to the Employee;
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth in this Agreement, and intending to be legally bound, the Employer and the Employee agree as follows:
(a) Delegation of Authority. The Employer agrees to employ the Employee, and the Employee agrees to be employed by the Employer, on the terms and conditions contained within. The Employee shall report to the Employer and none other, and shall have such duties, authority and responsibilities commensurate with the Employee’s position for similarly sized companies in the industry.
(b) Devotion of Time. The Employee shall devote all his business hours, energy, skill and efforts to the performance of his duties – excepting periods of sickness and disability, and such normal holiday and vacation periods as have been established by the Employer – and shall faithfully and diligently serve the Employer. The Employee’s duties shall not prevent him from participating in any non-employment-related activities or from managing personal investments, provided these activities and/or investments do not materially interfere with his obligations to the Employer.
(c) General Duties. The Employee shall serve as general manager of the Employer’s exclusive private club (the “Company”), located at ZZZZZ, with duties and responsibilities consistent with the duties and responsibilities of other such general managers for similarly sized companies in the industry. The Employee will use his best efforts to perform his duties and discharge his responsibilities pursuant to this Agreement, in full understanding that the Employer, in determining whether or not the Employee has used his best efforts, shall take into account all surrounding circumstances and shall not judge the best efforts of the Employee solely on the Company’s earnings or other results of the Employee’s performance. The Employee is entitled to one off day per week, to be chosen by the Employee on condition that he shall not choose Saturday or Sunday. Any unused off day will be designated as overtime, to be paid for by the Employer in addition to regular salary.
(d) Illegal Substances and Alcohol. The Employee, during business hours, will not subject himself to illegal substances (as stipulated by the U.S. Drug Enforcement Administration) or alcohol. In addition, the Employee, during business hours, must not have on his person or in his personal effects any illegal substances or alcoholic beverages.
2. TERM OF EMPLOYMENT.
(a) Term. The Employer employs the Employee, and the Employee accepts employment with the Employer, for a period commencing August 1, 2009 and ending five years later on August 1, 2014. Ninety days before this Agreement’s expiration, the Employer and the Employee must each inform the other of his intentions, whether or not they be to seek a renewal of this Agreement. In addition, should both parties seek a renewal of this Agreement, any suggestions to modify the existing Agreement must be negotiated during this 90-day period.
(b) Continuing Effect. Notwithstanding any termination of this Agreement excepting termination under Section 6, or at the end of the Term, the provisions of the Non-Competition and Confidentiality clauses (Sections 7 and 8, respectively) shall remain in full force and effect and shall be binding upon the legal representatives, successors and assignees of the Employee.
3. COMPENSATION AND EXPENSES.
(a) Salary. For the services of the Employee to be rendered under this Agreement commencing August 1, 2009, the Employer shall pay the Employee a salary of $10,000 per month, to be paid in full no later than the 25th day of every month; i.e., the first $10,000 payment to the Employee shall be rendered no later than August 25, 2009, the second $10,000 payment no later than September 25, 2009, and so forth.
(b) Expenses. In addition to any compensation received by the Employee pursuant to Sections 3(a) and 3(c), the Employer will reimburse or advance funds to the Employee for all pre-approved reasonable expenses incurred in connection with the performance of his duties and responsibilities under this Agreement.
(c) Bonus. The Employee shall receive a bonus equal to 1.5 percent of the Company’s gross annual receipts, to be paid on August 1, 2010, conditioned upon the Company’s sales increasing between August 1, 2009 and August 1, 2010 by no less than 10 percent. This bonus will extend through August 1, 2011 (and every August 1 thereafter, until the Employee’s employment is ended), so long as the Company’s sales continue increasing annually by 10 or more percent.
4. PREEMPLOYMENT SERVICES AND EXPENSES.
(a) Specialized Training. Between the date on which this Agreement is entered into (July 7, 2009) and the date on which the Employee’s employment commences (August 1, 2009), the Employer will enroll the Employee in a 3-day specialized training program designed to prepare the Employee for his duties and responsibilities under this Agreement. The Employer will furnish the Employee with room and board, along with a fixed sum of $150 for miscellaneous expenses, for his participation in this specialized training program.
(b) Relocation Expenses. All pre-approved reasonable expenses incurred by the Employee in connection with his relocation to his new employment will be paid for by the Employer.
(a) Vacation/Holiday. For each 12-month period during the Term, the Employee will be entitled to three weeks (21 days) of vacation/holiday without loss of compensation or other benefits to which he is entitled under this Agreement, to be taken at such times as the Employee may choose and the affairs of the Employer’s exclusive private club may permit. Any unused vacation/holiday will be designated as overtime, to be paid for by the Employer in addition to regular salary.
(b) Sick Leave. Should the Employee request sick leave, he must have in his possession a valid doctor’s note signed not more than 36 hours prior to the Employee’s request for sick leave. A valid doctor’s note shall include the doctor’s contact information, along with a diagnosis and prognosis of the Employee’s illness. Failing the above, the Employer need not approve the Employee’s request for sick leave.
(c) Mental Health Day. The Employee is entitled to one mental health day per month, to be chosen by the Employee on condition that the Employee not select a Saturday or a Sunday. Any unused mental health day will be designated as overtime, to be paid for by the Employer in addition to regular salary.
(d) Health and Dental Insurance. The Employee and his immediate family – his legal spouse and children – are entitled to UnitedHealthcare’s Health Savings Account (HSA) health insurance plan, which “combine[s] a lower-cost, high deductible health insurance plan with a tax-favored savings account.” See http://www.uhc.com/individuals_families/health_insurance_plans/health_savings_accounts.htm. Additionally, the Employee and his immediate family are entitled to UnitedHealthcare’s Dental Value dental insurance plan. See http://www.uhc.com/individuals_families/health_insurance_plans/dental.htm. Health and dental insurance premiums will be paid for in full by the Employer. Should the Employee upgrade the health and/or dental insurance provided him and his immediate family, the Employee must pay for any additional expenses.
(e) Life Insurance. Should the Employee perish during his employment by the Employer, the Employee’s estate will receive $75,000 in life insurance. Life insurance premiums will be paid for in full by the Employer.
(f) Unemployment Insurance. The Employer will, in compliance with the Federal Unemployment Tax Act, provide the Employee with unemployment insurance. Unemployment insurance premiums will be paid for in full by the Employer.
(g) Pension Plan. The Employer will, no later than the 25th day of every month for the duration of the Employee’s employment, place 4 percent of the Employee’s monthly salary into a tax exempt retirement fund in the Employee’s name.
(h) Car Allowance. The Employer will lease a Company-owned automobile, a 2008 Chevrolet Malibu, to the Employee, to be used for business purposes only. The Employee will be responsible for all maintenance and insurance during his lease of the Company-owned automobile, which will last for the duration of his employment, that is, for five years or less should the Employee’s employment be terminated under Section 6. The Company-owned automobile will be returned to the Employer upon termination of the Employee’s employment.
(a) Termination for Cause. At any time the Employer may terminate the Employee’s employment for cause according to the provisions below by giving a written notice of termination. Such termination will take effect upon the Employee’s receipt of such a notice. After the effective date of termination for cause, the Employee shall have no right to compensation, bonus and/or reimbursement under Section 3, or to participate in any employee benefit programs under Section 5, except as provided by law. For purposes of this Section 6(a), 'cause' shall mean: (i) the Employee is indicted for a felony that is directly related to the Employee’s employment or to the business of the Employer, or which reflects poorly on the Employer and Company; (ii) the Employee is found by the Employer to have neglected his duties and responsibilities under Section 1; (iii) the Employee is found, during business hours, in possession of or under the influence of illegal substances and/or alcohol (see Section 1(d)); (iv) the Employee is found in a civil action to have breached his fiduciary duty to the Employer resulting in direct profit to himself; or (v) the Employee is found in a civil action to have materially breached any provision of Sections 7 or 8.
(b) Death or Disability. This Agreement shall terminate upon the death or disability of the Employee. For purposes of this Section 6(b), 'disability' shall mean that for a period of 12 consecutive months the Employee is incapable of substantially fulfilling the duties and responsibilities set forth in Section 1 because of physical, mental or emotional incapacity resulting from injury, sickness or disease. In the event of Employee’s disability, the Employee will be paid compensation, benefits and bonus which may accrue during the period of disability for up to a total of 18 months, or for the remainder of this Agreement, whichever time is greater.
(c) Termination of Benefits (when Sections 6(a) and 6(b) do not apply). Should the Employee’s employment be terminated, and should Sections 6(a) and 6(b) not apply, the Employee’s health insurance will expire exactly 30 days upon termination of the Employee’s employment, whereas the Employee’s dental, life and unemployment insurance will expire immediately upon termination of the Employee’s employment.
(a) Competition with the Employer. Until termination of his employment and for a period of 24 months commencing on the date of termination, the Employee, directly or indirectly, will not compete with the Employer or any of the Employer’s affiliates in the offer, sale or marketing of products and/or services competitive with products/services offered by the Employer. This, however, shall not prevent the Employee from accepting employment with an enterprise engaged in two or more lines of business, one of which is the same or similar to a portion of the Employer’s business (the “Prohibited Business”), if the Employee’s employment is totally unrelated to the Prohibited Business.
(b) No Payment. The Employee agrees to the provisions described in Section 7(a), in full understanding that the Employee will receive no attendant payment for his consideration.
The Employee shall keep secret and shall not at any time during or after his employment by the Employer, for whatever reason, use, communicate or reveal to any person, directly or indirectly and for whatever reason, any secret or confidential information which shall have come to his knowledge during his employment by the Employer, except with prior written authorization from the Employer's legal representative.
The Employee and the Employer agree to arbitrate before a neutral arbitrator – to be selected by the Employee and the Employer before the start of the Employee’s employment on August 1, 2009 – all disputes or claims relating to the Employee’s employment by the Employer, or the termination of employment, including disputes or claims against any current or former agent or employee of the Employer.
10. LIQUIDATED DAMAGES.
In the event of a breach of this Agreement by the Employer or the Employee, the non-breaching party may be compensated for any damages incurred, to be accorded in court or by a neutral arbitrator as per the provisions of Section 9.
Terms or provisions of this Agreement that are invalid or unenforceable in any jurisdiction shall be ineffective without rendering invalid or unenforceable the remaining terms and provisions of this Agreement, or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
12. TIME IS OF THE ESSENCE.
All designated times and dates in this Agreement are binding. The Employee, in submitting to this Agreement, acknowledges that failure by the Employee to abide by these designated times and dates grants the Employer the right to terminate this Agreement without prior notice.
IN WITNESS, the Employer and the Employee have entered into this Agreement as of this 7th day of July 2009.
Greg Harrington, Owner and Employer
Jason Tyler, General Manager and Employee
Sections Opening, 1, 2, 3, 5, 6, 7, 8, and Signature: http://corporate.findlaw.com/contracts/compensation/employment-agreement-the-publishing-co-of-north-america-inc.html