Employment Contract - Executive - New York

EXECUTIVE EMPLOYMENT AGREEMENT

(New York Law – Comprehensive Template)

I. DOCUMENT HEADER

EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the “Agreement”) is entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between [COMPANY LEGAL NAME], a [STATE] corporation with its principal place of business at [ADDRESS] (the “Company”), and [EXECUTIVE NAME], residing at [ADDRESS] (“Executive,” and together with the Company, the “Parties,” and each, a “Party”).

RECITALS

A. The Company desires to employ Executive, and Executive desires to accept such employment, on the terms and conditions set forth herein.
B. The Parties acknowledge the sufficiency of the consideration set forth in this Agreement, including the mutual promises contained herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, the Parties agree as follows:

TABLE OF CONTENTS

1. Definitions
2. Term; Position & Duties
3. Compensation & Benefits
4. Business Expenses
5. Termination of Employment; Severance
6. Change in Control Protections
7. Restrictive Covenants
8. Indemnification & Liability Allocation
9. Dispute Resolution
10. Miscellaneous
11. Execution
12. Schedule A – Form of Release
13. Schedule B – Pre-Existing Intellectual Property

1. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below. Defined terms may be used in the singular or plural as the context requires.

“Affiliate” – Any entity that directly or indirectly controls, is controlled by, or is under common control with the Company.

“Applicable Law” – All federal, state, and local statutes, regulations, ordinances, and common law governing the Parties, including but not limited to the New York Labor Law and federal employment statutes.

“Base Salary” – The annualized salary payable to Executive under Section 3.1, as may be adjusted from time to time.

“Board” – The Board of Directors of the Company.

“Cause” – (i) Executive’s willful misconduct or gross negligence in the performance of Executive’s duties; (ii) Executive’s conviction or plea of nolo contendere to a felony or crime involving moral turpitude; (iii) fraud, embezzlement, or material dishonesty against the Company; (iv) material breach of this Agreement or the Company’s written policies, which breach remains uncured (if curable) for ten (10) days following written notice.

“Change in Control” – The occurrence of: (a) any person or group acquiring beneficial ownership of more than fifty percent (50%) of the combined voting power of the Company; (b) the sale of all or substantially all Company assets; or (c) a merger after which the Company's pre-transaction stockholders own less than fifty percent (50%) of the surviving entity. Any payment intended to comply with Code § 409A shall be triggered only by an event that also qualifies under applicable § 409A rules.

“Good Reason” – Without Executive’s written consent: (i) material diminution of duties or authority; (ii) material reduction of Base Salary or target bonus opportunity; (iii) relocation of Executive’s principal work location >50 miles; or (iv) material breach of this Agreement by the Company, provided Executive gives notice within 30 days and the Company fails to cure within 30 days thereafter.

“Severance Period” – [NUMBER] months following the Date of Termination.

“Date of Termination” – The date Executive’s employment terminates for any reason.

2. TERM; POSITION & DUTIES

2.1 Employment Term. This Agreement shall commence on the Effective Date and continue until terminated pursuant to Section 5 (the “Term”).

2.2 Position. Executive shall serve as [TITLE], reporting to [REPORTING AUTHORITY].

2.3 Duties. Executive shall have such duties, authority, and responsibilities as are customary for the position and shall devote substantially all working time to the business of the Company; provided, Executive may engage in passive personal investments and approved board service that does not conflict with Company interests.

2.4 Location; Remote Work. Executive’s principal place of employment shall be [LOCATION]. The Company may permit hybrid or remote work in its discretion, subject to business needs.

3. COMPENSATION & BENEFITS

3.1 Base Salary. The Company shall pay Executive a Base Salary of $[AMOUNT] per annum, payable in accordance with the Company’s regular payroll practices and subject to applicable withholdings. The Company shall separately provide any hiring notice required by N.Y. Labor Law § 195(1), using the applicable template furnished by the Commissioner of Labor; this Agreement is not a substitute for that notice.

3.2 Annual Bonus. Executive shall be eligible for an annual performance bonus with a target opportunity of [PERCENTAGE] % of Base Salary (the “Target Bonus”), subject to Board-approved performance criteria. Any bonus shall be paid on [PAYMENT DATE], subject to the governing plan and Code § 409A.

3.3 Equity Compensation. Subject to Board approval, Executive shall receive [TYPE/NUMBER] equity awards under the Company’s [PLAN NAME] (the “Equity Plan”), vesting per the award agreement.

3.4 Benefits. Executive shall be eligible to participate in the Company’s benefit plans on terms no less favorable than those provided to other senior executives, subject to plan terms and Applicable Law.

3.5 Clawback/Recoupment. Any compensation shall be subject to clawback under (i) the Company’s policies; (ii) Section 10D of the Securities Exchange Act of 1934, codified at 15 U.S.C. § 78j-4; and (iii) any applicable listing standard.

3.6 New York Leave. The Company shall provide sick leave and, where applicable, twenty (20) hours of paid prenatal personal leave during each fifty-two-week period in accordance with N.Y. Labor Law § 196-b. More generous Company leave remains governed by the written policy or plan.

4. BUSINESS EXPENSES

The Company shall promptly reimburse Executive for all reasonable and necessary business expenses incurred in the performance of duties, in accordance with the Company’s expense policy, provided Executive submits documentation within sixty (60) days of incurrence.

5. TERMINATION OF EMPLOYMENT; SEVERANCE

5.1 Termination Events. Executive’s employment may be terminated:
(a) By the Company for Cause;
(b) By the Company without Cause;
(c) By Executive for Good Reason;
(d) By Executive without Good Reason upon [NUMBER] days’ notice;
(e) Due to Executive’s death or Disability (defined below).

5.2 Disability. “Disability” means Executive’s inability to perform essential job functions, with or without reasonable accommodation, for 180 consecutive or 210 aggregate days in any 12-month period.

5.3 Accrued Obligations. Upon any termination, the Company shall pay, without conditioning payment on a release: (i) earned but unpaid Base Salary and other earned compensation; (ii) any unreimbursed business expenses; and (iii) vested employee benefits (collectively, the “Accrued Obligations”). The Company contractually agrees to pay earned wages no later than the regular payday for the pay period in which employment ends. N.Y. Labor Law § 191(3) imposes that timing when Article 6 applies, but N.Y. Labor Law § 190(7) excludes a bona fide executive, administrative, or professional employee earning more than $1,300 per week from the Article 6 definition of “employee.” Vacation or other paid-time-off payout is governed by the applicable written policy or agreement.

5.4 Severance Benefits.
(a) Qualifying Termination. If Executive experiences a termination by the Company without Cause or by Executive for Good Reason, Executive shall receive:
(i) Severance Pay equal to [MULTIPLE]× Base Salary, paid in substantially equal installments over the Severance Period;
(ii) a prorated Target Bonus for the year of termination;
(iii) Company-paid COBRA premiums for [NUMBER] months, subject to eligibility; and
(iv) accelerated vesting of equity that would have vested during the Severance Period.
(b) Release Requirement. Payment of Severance Benefits is conditioned upon Executive’s timely execution and non-revocation of a customary release. If Executive is age forty (40) or older and the release includes ADEA claims, the release must provide at least twenty-one (21) days for consideration and seven (7) days after execution for revocation; forty-five (45) days applies only to a qualifying group termination program and requires the disclosures in 29 U.S.C. § 626(f)(1)(H).
(c) Section 409A Compliance. If Executive is a “specified employee” of a publicly traded corporation and nonqualified deferred compensation is payable because of a separation from service, payment shall be delayed only to the extent and for the period required by Code § 409A(a)(2)(B)(i).

5.5 Termination for Cause or Without Good Reason. Executive shall receive only the Accrued Obligations.

5.6 Death or Disability. Upon death or Disability, Executive (or estate) shall receive: (i) Accrued Obligations; (ii) a prorated Target Bonus; and (iii) accelerated vesting of outstanding equity awards.

6. CHANGE IN CONTROL PROTECTIONS

6.1 Double-Trigger Severance. If a Change in Control occurs and, within twelve (12) months thereafter, Executive experiences a Qualifying Termination, then in lieu of Section 5.4 benefits Executive shall receive:
(a) Lump-sum Severance Pay equal to [MULTIPLE]× (Base Salary + Target Bonus);
(b) 100 % accelerated vesting of all outstanding equity awards (and, for performance-based awards, deemed achievement at the greater of target or actual performance through the Change in Control);
(c) Company-paid COBRA premiums for [NUMBER] months; and
(d) Outplacement assistance for up to [DOLLAR AMOUNT].

6.2 Excise Tax Treatment. ☐ Payments will be reduced to the minimum extent necessary to avoid an excise tax under Code § 4999, but only if the reduction produces a greater net after-tax benefit to Executive. ☐ No cutback; Executive bears any tax under Code § 4999. Any gross-up requires separate tax drafting under Code §§ 280G and 4999.

7. RESTRICTIVE COVENANTS

7.1 Confidential Information. Executive shall not disclose or misuse Confidential Information, both during and after employment. Confidential Information excludes information Executive can document was lawfully known without a confidentiality duty, became public through no breach, or was lawfully received from a third party without a confidentiality duty. Trade-secret protection is limited to information qualifying under New York common law, including the factors applied in Ashland Mgmt. Inc. v. Janien, 82 N.Y.2d 395 (1993).

Protected Disclosures; DTSA Notice. Nothing in this Agreement prohibits lawful reports to government officials or attorneys, communications with government agencies, or other protected whistleblower activity. Under 18 U.S.C. § 1833(b), an individual is immune from federal and state trade-secret liability for a confidential disclosure to a government official or attorney made solely to report or investigate a suspected violation of law, or for a disclosure in a court filing made under seal. In an anti-retaliation action, the individual may disclose a trade secret to counsel and use it in the proceeding if filings containing it are under seal and disclosure is otherwise limited to court order.

7.2 Intellectual Property. Executive hereby assigns to Company inventions and work product created within the scope of employment, using material Company resources, or relating directly to Company's actual or demonstrably anticipated business or research. Under N.Y. Labor Law § 203-f, this assignment does not cover an invention developed entirely on Executive's own time without Company equipment, supplies, facilities, or trade-secret information unless the invention falls within a statutory exception. Executive shall list pre-existing intellectual property on Schedule B.

7.3 Non-Competition. During employment and for [6-12] months thereafter, Executive shall not perform services the same as or substantially similar to those Executive performed or supervised for Company for a Competitive Business within [AREA WHERE EXECUTIVE MATERIALLY WORKED, SUPERVISED OPERATIONS, OR HELD CUSTOMER RESPONSIBILITY]. The restriction is intended to be no broader than necessary to protect trade secrets, qualifying confidential information, or customer goodwill, and must be reasonable in time and area, not unreasonably burdensome to Executive, and not harmful to the public under BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999).

7.4 Non-Solicitation. For [6-12] months after employment, Executive shall not: (a) directly solicit for competitive employment a Company employee with whom Executive materially worked during the final twelve (12) months; or (b) solicit for competitive purposes a customer with whom Executive had material business contact or about whom Executive received material Confidential Information during that period. General advertisements not targeted at Company personnel do not violate this clause.

7.5 Non-Disparagement. The Parties shall not make knowingly false statements intended to harm the other's reputation. This clause does not restrict truthful testimony, government-agency communications, protected concerted activity, or any other non-waivable right.

7.6 Injunctive Relief. Executive acknowledges that breach of this Section 7 may cause irreparable harm and agrees the Company may seek injunctive relief, subject to any bond required by applicable law, in a court of competent jurisdiction, in addition to other remedies.

8. INDEMNIFICATION & LIABILITY ALLOCATION

8.1 Company Indemnification. To the fullest extent permitted by the law governing Company's internal affairs and its organizational documents, Company shall indemnify Executive for expenses and liabilities incurred by reason of service as an officer. If N.Y. Business Corporation Law §§ 721-726 apply, indemnification is subject to their standards, procedures, and limitations.

8.2 Advancement of Expenses. Company shall advance reasonable legal fees and expenses only after receipt of any undertaking required by N.Y. Business Corporation Law § 723(c) and satisfaction of applicable organizational-document conditions.

8.3 Limitation of Liability. The Parties agree that, except for (i) liability arising from fraud, intentional misconduct, or breach of Section 7; and (ii) indemnification obligations, aggregate liability of either Party shall not exceed [CAP AMOUNT OR “NONE”].

8.4 Insurance. The Company shall maintain directors’ and officers’ liability insurance covering Executive on terms no less favorable than coverage for other senior executives.

8.5 Force Majeure. Neither Party shall be liable for delay or failure to perform due to events beyond reasonable control, provided the affected Party gives prompt notice and uses diligent efforts to resume performance.

9. DISPUTE RESOLUTION

9.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts-of-law principles.

9.2 Arbitration. Except for injunctive relief under Section 7.6 and any dispute for which a pre-dispute arbitration agreement is not enforceable under applicable law, any dispute arising out of or relating to this Agreement shall be finally resolved by confidential arbitration administered by the American Arbitration Association (“AAA”) under its Employment Arbitration Rules in [COUNTY], New York. At the election provided by 9 U.S.C. § 402, this clause does not require arbitration of a case relating to a sexual-assault or sexual-harassment dispute as defined in 9 U.S.C. § 401. The arbitration shall be conducted by one (1) arbitrator experienced in executive employment matters. Judgment on the award may be entered in any court having jurisdiction. The Federal Arbitration Act, including 9 U.S.C. §§ 2 and 401-402, shall govern the interpretation and enforcement of this arbitration clause.

9.3 Forum Selection. For claims not subject to arbitration, the Parties consent to exclusive jurisdiction in the state courts located in [COUNTY], New York.

9.4 Jury Trial Waiver. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING NOT SUBJECT TO ARBITRATION.

9.5 Attorneys’ Fees. The prevailing Party in any dispute shall be entitled to recover reasonable attorneys’ fees and costs, except as limited by Applicable Law.

10. MISCELLANEOUS

10.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements with respect to the subject matter herein.

10.2 Amendment & Waiver. No amendment or waiver shall be effective unless in writing and signed by both Parties. Waiver of any breach shall not operate as waiver of any other breach.

10.3 Assignment. This Agreement is personal to Executive and may not be assigned by Executive. The Company may assign this Agreement to a successor in connection with a Change in Control.

10.4 Severability; Partial Enforcement. If any provision is unenforceable, the remainder shall remain in effect. A court may partially enforce a restrictive covenant only where New York law and the circumstances permit; partial enforcement is not automatic, and the Parties do not request expansion of any restriction.

10.5 Notices. All notices shall be in writing and delivered by hand, certified mail (return receipt requested), or nationally recognized overnight courier to the addresses first written above (or as updated by notice).

10.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each deemed an original and all together one instrument. Under N.Y. State Technology Law §§ 304-305, an electronic signature may be used in place of a handwritten signature with the same validity and effect, and an electronic record has the same force and effect as a non-electronic record, subject to applicable law.

10.7 Section Headings. Headings are for convenience only and do not affect interpretation.

10.8 Construction. The Parties acknowledge that each has participated in drafting and agree that no presumption shall arise favoring any Party based on authorship.

11. EXECUTION

IN WITNESS WHEREOF, the Parties hereto have executed this Executive Employment Agreement as of the Effective Date.

SCHEDULE A – FORM OF RELEASE

In exchange for Severance Benefits exceeding amounts otherwise owed, Executive releases Company and its affiliates, successors, and their current and former officers, directors, employees, and agents from claims arising on or before the signature date, to the fullest extent lawfully waivable.

This Release does not waive future claims, rights arising under this Agreement after execution, indemnification rights, government-agency communications or participation, or any other right that cannot lawfully be waived.

If a confidentiality term concerns the factual foundation of a discrimination, harassment, or retaliation claim, use it only if confidentiality is Executive's preference; provide it in writing in plain English and, if applicable, Executive's primary language; allow up to twenty-one (21) days for consideration; memorialize Executive's preference; and provide at least seven (7) days after execution for revocation, as required by N.Y. General Obligations Law § 5-336. Do not require liquidated damages or forfeiture of consideration for violating a nondisclosure or nondisparagement clause, and do not require an affirmative statement that no unlawful discrimination, harassment, or retaliation occurred. Preserve the disclosures and agency communications protected by that section.

ADEA/OWBPA election for an Executive age forty (40) or older:

If applicable, released claims expressly include claims under the Age Discrimination in Employment Act through the signature date.

☐ Individual termination: at least twenty-one (21) days to consider.

☐ Qualifying group program: at least forty-five (45) days to consider, with the disclosures required by 29 U.S.C. § 626(f)(1)(H).

Executive is advised in writing to consult an attorney before signing and may revoke an ADEA waiver by written notice to [CONTACT/ADDRESS] within seven (7) days after signing. The ADEA waiver becomes effective only after that period expires without revocation.

The Protected Disclosures and DTSA Notice in Section 7.1 are incorporated into this Release.

SCHEDULE B – PRE-EXISTING INTELLECTUAL PROPERTY

☐ None.

☐ Excluded items: [DESCRIBE WITH SUFFICIENT PARTICULARITY].

Sources and References

• N.Y. Labor Law § 190 — Article 6 definitions
• N.Y. Labor Law § 191 — final-pay timing
• N.Y. Labor Law § 195 — hiring wage notice
• N.Y. Labor Law § 196-b — sick and prenatal leave
• N.Y. Labor Law § 203-f — invention assignments
• N.Y. General Obligations Law § 5-336 — confidentiality terms
• N.Y. Business Corporation Law § 721 — nonexclusive indemnification rights
• N.Y. Business Corporation Law § 722 — authorized indemnification
• N.Y. Business Corporation Law § 723 — payment and advancement procedures
• N.Y. Business Corporation Law § 724 — court-ordered indemnification
• N.Y. Business Corporation Law § 725 — limitations and related provisions
• N.Y. Business Corporation Law § 726 — indemnification insurance
• N.Y. State Technology Law § 304 — electronic signatures
• N.Y. State Technology Law § 305 — electronic records
• Davis v. Marshall & Sterling, Inc. — current application of the BDO Seidman test
• Midsummer Financial Products, Inc. v. Rapid Filing Services LLC — applying the Ashland trade-secret factors
• 18 U.S.C. § 1833 — protected trade-secret disclosures
• 29 U.S.C. § 626 — ADEA waiver requirements
• 29 U.S.C. § 631 — ADEA age coverage
• 15 U.S.C. § 78j-4 — recovery of erroneously awarded compensation
• 9 U.S.C. § 2 — enforceability of arbitration agreements
• 9 U.S.C. §§ 401-402 — sexual-assault and sexual-harassment disputes
• 26 U.S.C. § 409A — nonqualified deferred compensation
• 26 U.S.C. § 280G — golden parachute payments
• 26 U.S.C. § 4999 — excess-parachute-payment excise tax