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EXHIBIT 10(o)
EXECUTIVE EMPLOYMENT AGREEMENT
(P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), dated as of September
16, 1996 (the "Effective Date"), is made and entered into by and between
ErgoBilt, Inc., a Texas corporation ("Company"), and P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an
individual ("Executive").
W I T N E S S E T H:
WHEREAS, BodyBilt Seating, Inc. ("BBSI") is engaged in the
manufacturing, marketing and selling of ergonomically-correct chairs; and
WHEREAS, Company and its wholly-owned subsidiary, EB Subsidiary, Inc., a
Texas corporation ("Company's Subsidiary") has merged with BBSI, with Company's
Subsidiary surviving under the name of "BodyBilt Seating, Inc.;" and
WHEREAS, Company intends to continue to operate Company's Subsidiary and
to acquire other businesses and assets compatible with or complementary to the
business of Company's Subsidiary and Company; and
WHEREAS, Executive has represented to Company that he has substantial
financial and accounting experience, skills and expertise; and
WHEREAS, Company desires to employ Executive on a full-time basis as
senior vice president and chief financial officer, and Executive is willing to
provide such services and take on such responsibilities for the consideration
hereinafter set forth.
NOW, THEREFORE, the parties, for and in consideration of the mutual
promises herein contained, agree as follows:
ARTICLE I
Employment
1.1 General Scope of Employment. Commencing on the "Commencement
Date" (as defined in Article II below), Company shall employ Executive as the
Senior Vice President ("Sr. V.P.") and Chief Financial Officer ("CFO") of
Company on the terms of and subject to the conditions of this Agreement.
Executive shall report directly to Company's President and shall perform the
principal duties and responsibilities set forth in Section 1.2 below and such
additional duties and responsibilities, consistent with his professional
experience, as may reasonably be assigned to him from time to time by Company's
President. Executive hereby accepts such employment and agrees to devote his
full time and energy to Company's business as shall be necessary to perform his
duties and responsibilities in a faithful and competent manner.
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1.2 Principal Duties and Responsibilities. As Sr. V.P. and CFO of
Company, Executive shall be fully responsible for the general financial
operations of the Company and its subsidiaries and shall perform all duties
incident to the offices of Sr. V.P./CFO, and shall see that directions of the
President are carried into effect. Executive's principal duties and
responsibilities shall be to: (i) act in a manner consistent with the
direction of the President that will maximize the value of the outstanding
stock of the Company; (ii) develop, oversee and maintain all accounting
procedures and functions; (iii) prepare all Company financial statements; (iv)
interact with and otherwise serve as a liaison to Company's outside certified
public accountants; (v) oversee and supervise any Company audits; (vi)
undertake Company's tax planning; (vii) develop, implement, execute and carry
out in conjunction with the other officers of the Company its business plans as
and when approved by the Board; (viii) hire and manage all accounting and
financial personnel; (ix) review and comment on the financial implications of
all material contracts concerning Company; (x) review and comment on the
financial aspects of all strategic and operational plans; and (xi) perform such
other duties and responsibilities necessary to integrate and coordinate the
financial activities of Company into an overall investment and management
philosophy.
1.3 Office Facilities. Company shall furnish Executive with an
office, secretary services, supplies, equipment and such other facilities and
services suitable to his position and adequate for the performance of his
duties.
1.4 Extent of Services. After Closing under the Merger Agreement,
Executive shall devote all of his time, attention and energy to Company's
business and shall not engage in any other business or consulting activity for
gain, profit or other pecuniary advantage except as expressly provided in this
Agreement. Nothing hereinabove is intended to prevent Executive from making
personal passive investments in other business activities not directly or
indirectly competitive with the business of Company.
1.5 Outside Board Activities. Subject to the conditions hereinafter
set forth, after the Closing under the Merger Agreement, Executive may, upon
prior notice to Company's Board, serve as a member of no more than two (2)
boards of directors, boards of trustees or other governing bodies of "for
profit" companies and/or "non-profit" civic, cultural, educational and/or
charitable organizations, provided that in all cases: (i) such company or
organization is not directly or indirectly engaged in a business or does not
support a business that is competitive, directly or indirectly, with the
business of Company, and (ii) such service does not interfere with Executive's
ability to perform his duties and responsibilities to Company.
1.6 Outside Income. Absent Company's written consent, all fees,
compensation and other income (collectively "Outside Income") received by
Executive while employed by Company from any source other than personal gifts,
inheritance, or passive investments, including, but not limited to, all fees
for teaching, speaking engagements, acting as an officer, director, trustee,
receiver, executor, administrator or other fiduciary (other than as a trustee,
executor, or administrator of a trust or estate of Executive or a member of his
family) shall be the property of Company and shall be immediately disclosed and
remitted to Company.
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ARTICLE II
Term
Executive's employment shall be for an initial term ("Term") of three
(3) years commencing on the date of the closing of the Company's initial public
offering ("IPO") of its common stock (the "Commencement Date") and terminating
three (3) years thereafter. In the event that the IPO does not close for any
reason, this Agreement shall be rendered null and void and of no further force
and effect.
ARTICLE III
Annual Base Salary and Miscellaneous Benefits
3.1 Annual Base Salary. As compensation for all duties and services
to be rendered by Executive hereunder to Company, Company shall pay to
Executive an Annual Base Salary of Eighty-Five Thousand Dollars ($85,000.00)
for each twelve (12) month period of the Term. Annual Base Salary shall be
paid in twelve (12) equal monthly installments, payable in accordance with
Company's customary payroll policy in effect at the time such payment is made,
or as may otherwise be mutually agreed upon in writing by the parties. Annual
Base Salary for services rendered for a partial month shall be prorated based
on a thirty (30) day month.
3.2 Performance Incentive Plan. It is the intent of the parties that
Company adopt as soon as reasonably possible and/or from time to time such
bonus and/or incentive plans, stock option plans and such other plans to
provide incentive or additional compensation to its senior executives ("Senior
Management Incentive Plans"). Such Senior Management Incentive Plans shall be
adopted on such terms and conditions deemed to be in the best interests of
Company and may provide for awards in the form of cash, equity or other
benefits. Executive shall become a named participant to such Senior Management
Incentive Plans.
3.3 Expenses. During the term of his employment hereunder, Executive
shall be entitled to incur reasonable business expenses ("Business Expenses")
in performing his services hereunder, including transportation, entertainment,
travel, professional dues, professional periodicals, and business promotion.
All Business Expenses shall be subject to the approval of the Company and
reimbursed by Company upon presentation of receipts or other documentation
establishing the nature of the expense, the time-date-place incurred, and the
business reason for such Business Expense. Company shall not have any
obligation to reimburse any Business Expense not presented for reimbursement
within ninety (90) days of the date on which such Business Expense was
incurred.
3.4 Vacation and Sick Days.
3.4.1 Executive shall be entitled to fifteen (15) business days
of paid vacation per year (which need not be taken consecutively). Such
vacation shall be scheduled to minimize interference with the business.
Executive shall also be entitled to all paid holidays given by Company
to its employees.
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3.4.2 Executive shall be entitled to not more than five (5) days
paid sick days per year.
3.4.3 Vacation and sick day benefits must be taken in the year
in which they accrue and may not be taken in any subsequent year absent
the Company's consent, nor may Executive request payment of the cash
equivalent of accrued vacation or sick days not taken.
3.5 Other Benefits. Company shall provide to Executive the following
additional benefits:
3.5.1 Miscellaneous Benefits. Executive shall be entitled to
participate in Company major medical and/or dental plans, life insurance
programs, accidental death and dismemberment insurance, retirement
benefits, disability benefits, any other insurance programs provided by
the Company, and any other benefit programs hereafter adopted by the
Company consistent with Company policies, if and when adopted.
3.5.2 ERISA Plans. Executive shall have the right to
participate in any plans providing deferred compensation benefits as and
when adopted by Company under the various provisions of the Employee
Retirement Income Security Act ("ERISA"), as amended from time to time.
3.5.3 Company Car. Consistent with Company policies as adopted
from time to time, Executive shall be provided a "Company Car" for his
use during the term of this Agreement. Company shall pay or reimburse
Executive for all "Company Car Expenses." Company Car Expenses shall
include: (i) insurance; (ii) gas, regular servicing, maintenance and
repairs (unless caused by Executive's own negligence, mistreatment or
misuse of the Company Car, or from Executive's own misconduct); and
(iii) all lease or debt service payments on such Company Car. Executive
shall be responsible for all personal costs and expenses associated with
any personal use of the Company Car. All Company Car Expenses shall be
reimbursed and payable consistent with the provisions of Section 3.3
above. In the event that Company adopts a "car allowance " policy,
Executive's allowance shall be approximately Five Hundred and No/100
Dollars ($500.00), provided such sum is reasonably comparable to that
being provided similar executives and managers of the Company.
ARTICLE IV
Inventions, Competition and Confidentiality
4.1 Inventions. All designs, discoveries, improvements, and
inventions (collectively, "Inventions"), whether patentable or unpatentable,
whether copyrightable or uncopyrightable, whether of a business or technical
nature, made or conceived by Executive alone or with others, during the Term of
this Agreement shall be owned exclusively by Company whether or not such
Inventions are along the lines of the actual or anticipated business, work,
research or investigations of Company or which result from or are suggested by
any work done for Company or which relate
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to Company's business. Executive shall promptly disclose such Inventions to
Company. In addition, Executive shall perform all actions (without any expense
to Executive) reasonably requested by Company to establish and confirm such
ownership including, but not limited to, assigning to Company, without
additional compensation, the entire worldwide rights to such Inventions,
signing all necessary papers, instruments and other documents and giving sworn
testimony in support thereof.
4.2 Non-Competition. Executive covenants and agrees with Company
that, except as otherwise consented to, approved or permitted in writing by
Company's Board, at any time while employed as an executive employee of Company
and for a period of two (2) years after the termination of Executive's
employment hereunder, Executive will not, directly or indirectly, whether as an
officer, director, employee, independent contractor, or whether acting alone or
as a member of a partnership, joint venture or as a holder or investor in any
security or other financial interest of any corporation or other business
entity, engage in any "Competitive Activity" as defined herein. For the
purposes of this Agreement, "Competitive Activity" shall mean:
(a) the solicitation of any customers or potential customers
of Company to purchase any products or services in direct competition
with the products and services provided by Company;
(b) requesting any actual or prospective customer or supplier
of Company to curtail or cancel their business with Company;
(c) except as provided by law or in any other contract or
agreement of even date herewith executed and delivered pursuant hereto,
the disclosure to any person, firm or corporation any details of the
organization, business affairs, intellectual property or technology of
Company; or
(d) any action designed to induce or attempt to influence any
employee of Company to terminate his or her employment with Company or
employ or assist anyone else in the employment of any of the employees
of Company.
The restrictions of this section shall apply only to the metropolitan
areas where Company was conducting business as of the Termination Date.
Competitive Activity shall not include Executive's mere ownership of securities
in any publicly-traded company in which Executive holds or controls less than
five percent (5%) of the issued and outstanding securities.
The parties agree that the duration and geographic scope of the
non-competition provision set forth in this section are reasonable. In the
event that any court determines that the duration or the geographic scope, or
both, are unreasonable and that such provision is to that extent unenforceable,
the parties agree that the provision shall remain in full force and effect for
the greatest time period and in the greatest area that would not render it
unenforceable. The parties intend that this non-competition provision shall be
deemed to be a series of separate covenants, one for each and
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every county of each and every state of the United States of America and each
and every political subdivision of each and every country outside the United
States of America where this provision is intended to be effective. Executive
agrees that damages are an inadequate remedy for any breach of this provision
and that the Company shall, whether or not it is pursuing any potential
remedies at law, be entitled to equitable relief in the form of preliminary and
permanent injunctions without bond or other security upon any actual or
threatened breach of this non-competition provision.
4.3 Non-Disclosure. Executive shall execute and deliver,
contemporaneous with the execution and delivery of this Agreement, Company's
standard form Non-Disclosure Agreement in the form attached hereto as Exhibit
4.3.
4.4 Enforcement. Executive and Company further agree and acknowledge
that Company does not have an adequate remedy at law for the breach or
threatened breach by Executive of the covenants and agreements set forth in
Sections 4.1, 4.2 and the Non-Disclosure Agreement executed pursuant to Section
4.3 above. Accordingly, Executive further agrees that Company may, in addition
to the other remedies which may be available to it hereunder, file suit in
equity to enjoin Executive from such breach or threatened breach.
4.5 Disclosure of Competitive Investments. To the best of Executive
knowledge, Executive does not own or hold directly, indirectly or beneficially
by Executive any investments competitive with the business of Company. In the
event that Company determines that Executive holds a material interest in a
competitive investment, Company may require Executive to divest himself of such
investment unless such interest is held in a publicly-traded mutual fund in
which Executive holds less than five percent (5%) of the issued and outstanding
shares or is held in a portfolio account over which Executive has no power to
exercise any investment or management decisions.
ARTICLE V
Termination
5.1 Termination by Company Upon Executive's Death or Disability.
Company has the right to terminate this Agreement and Executive's employment
hereunder in the event of Executive's death or disability as provided below.
5.1.1 Death. If Executive dies during the term of this
Agreement, then this Agreement shall terminate immediately effective on
the date of Executive's death ("Termination Date") without notice.
5.1.2 Disability. If, during the term of this Agreement,
Company's Board reasonably determines that Executive has become
physically or mentally disabled, whether totally or partially, so that
he is prevented from performing fully his usual duties and services
hereunder, Company may provide written notice to Executive and terminate
Executive's employment hereunder, effective on such date specified in
such notice (also "Termination
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Date"). "Disability" shall mean Executive's permanent inability to
perform the duties and responsibilities required hereunder due to
Executive's physical or mental condition as determined by a licensed
physician selected by Company's Board in consultation with Executive's
personal physicians.
5.1.3 Payment of Compensation and Other Benefits on Death or
Disability. In the event of the termination of this Agreement by reason
of Executive's death or disability, Executive (or his estate) shall be
entitled to payment of amounts due under this Agreement as follows:
(i) Annual Base Salary. Company shall pay in full and
complete satisfaction of amounts due under Section 3.1 as Annual
Base Salary: (i) upon death, Annual Base Salary through the last
day of the calendar month in which the applicable Termination
Date occurs; and (ii) upon disability, Annual Base Salary equal
to the immediately succeeding six (6) monthly payments from the
last day of the calendar month in which the applicable
Termination Date occurs, less any monthly disability payments, if
any, for such period which could be claimed.
(ii) Incentive Plan and Bonus Compensation. Any amounts
awarded to Executive but unpaid under any Senior Management
Incentive Plan or as bonus compensation under Section 3.2 of this
Agreement shall be paid by Company to Executive (or his estate)
within twelve (12) full calendar months of the applicable
Termination Date or as otherwise specified in such Senior
Management Incentive Plan or award of bonus compensation.
(iii) Employee Benefit Plans. Executive (or his estate)
shall be entitled to receive all other benefits provided to
employees of Company as set forth in any employee benefit plans
in effect as of the applicable Termination Date in which
Executive was a qualified participant.
5.2 Termination by Company for Due Cause.
5.2.1 "Due Cause". Company shall have the right to terminate
this Agreement and Executive's employment hereunder for "Due Cause" upon
written notice to Executive, effective upon such date specified in such
notice (also "Termination Date"). Executive shall not be deemed to have
been terminated for "Due Cause" hereunder unless and until notice of
such termination stating the grounds therefor has been delivered to
Executive and Executive, together with his counsel, has had an
opportunity to be heard by a panel of no less than two (2) senior
officers and three (3) board members, who find in good faith that
Executive committed an act or omission set forth below in this Section
5.2.1. Nothing herein shall limit the right of Executive to contest the
validity or propriety of any such determination.
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"Due Cause" shall mean that Executive has:
(i) committed an intentional act of fraud, embezzlement
or theft in connection with his duties or in the course of his
employment with Company;
(ii) pled guilty or nolo contendere to, or is convicted
of, a felony, whether or not related to his duties or in the
course of his employment;
(iii) wrongfully disclosed "Confidential Information" of
Company as defined in the Non-Disclosure Agreement executed by
Executive pursuant to Section 4.3;
(iv) engaged in any Competitive Activity;
(v) engaged in misconduct or in conduct contrary to
written directions of Company's Board that materially injures
Company's financial or other interests;
(vi) breached any material provision of this Agreement;
(vii) violated any federal, state, or local governmental
policies, plans or procedures governing the workplace environment
(e.g., EEOC, Title VII, Texas Workers Compensation Act or
Wage/Salary/Benefits policies or procedures) or any such
policies, plans or procedures developed by Company or its
subsidiaries with respect to Company's desire to operate a
professional working environment; and
(viii) engaged in any unprofessional conduct unbecoming a
senior executive of the Company or comparable businesses after
notice of such conduct and Executive's subsequent failure to
cease and desist.
5.2.2 Effect on Compensation and Benefits. In the event of
termination for Due Cause, Company shall pay to Executive: (i) Annual
Base Salary under Section 3.1 on a pro rata basis to the applicable
Termination Date; and (ii) any unpaid amounts awarded to Executive under
an Senior Management Incentive Plan under Section 3.2. In the event of
such termination, any rights and benefits Executive may have under
employee benefit plans and programs of Company generally and under any
incentive plan of Company shall be determined in accordance with the
terms of such plans and programs. Termination of Executive's employment
pursuant to this Section 5.2 shall not affect Executive's obligations
and undertakings in the last sentence of Section 4.1 and in Section 4.2
hereof or under the Non-Disclosure Agreement executed pursuant to
Section 4.3.
5.3 Breach of Agreements. Executive acknowledges that a material
part of the inducement for Company to enter into this Agreement is Executive's
covenant with respect to non-competition, non-disclosure, non-cooperation and
non-solicitation set forth in Article IV hereof.
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Executive agrees that if Executive breaches any of those covenants, Company
shall have no further obligation to pay Executive any amounts or benefits
otherwise payable hereunder (except as may otherwise be required at law) and
shall be entitled to such other legal and equitable relief as a court of
arbitrator shall reasonably determine unless such breach is an inadvertent
breach that does not result in any material harm to Company.
5.4 No Negative Public Comments. Upon the expiration or earlier
termination of this Agreement for any reason, Executive agrees not to make any
false, misleading or negative statement, either orally or in writing, about
Company or its directors or organizations or its officers, shareholders or any
affiliates of the same or to otherwise disparage them or any of them.
ARTICLE VI
General
6.1 Notice. All notices and other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given
when: (i) delivered personally; (ii) mailed by United States registered mail or
certified mail, return receipt requested, postage prepaid, addressed as set
forth below; or (iii) mailed by Federal Express, DHL, or such other nationally
recognized overnight courier service, addressed as set forth below:
Address for Company:
ErgoBilt, Inc.
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▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, President
with copies to:
Wolin, Fuller, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Address for Executive:
P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or to such other address as a party may furnish to the others in writing
in accordance herewith, except that notice of change of address shall be
effective only upon receipt.
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6.2 Binding Effect. This Agreement shall inure to the benefit of and
be enforceable by the parties and their respective successors, heirs,
representatives and permitted assigns.
6.3 No Waiver; Entire Agreement. No provision of this Agreement may
be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing and signed by Executive and Company. No waiver by any
party at any time of any breach by any other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by any party which are not expressly set
forth in this Agreement.
6.4 Headings. Section and paragraph headings are used herein for
convenience of reference only and shall not affect the meaning of any provision
of this Agreement.
6.5 Assignments. This Agreement is personal to Executive and may not
be assigned by Executive or the duties delegated without the prior written
consent of Company. Also, Executive may not assign, transfer, hypothecate or
dispose of any interest in compensation or payments without Company's prior
written consent.
6.6 Governing Law and Venue. This Agreement has been executed in
Dallas County, State of Texas, and the substantive laws of the State of Texas
shall govern the validity, construction, enforcement and interpretation of this
Agreement.
6.7 Severability. If any provision of this Agreement is held to be
unenforceable, this Agreement shall be considered divisible and such provision
shall be deemed inoperative to the extent it is deemed unenforceable and in all
other respects this Agreement shall remain in full force and effect; provided,
however, that if any such provision may be made enforceable by limitation
thereof, then such provision shall be deemed to be so limited and shall be
enforceable to the maximum extent permitted by applicable law.
6.8 Mediation/Arbitration/Legal Fees. If any dispute arises among
the parties with respect to this Agreement, then the parties shall submit such
dispute to mediation before a mediator in accordance with the mediation rules
of Dallas County, Texas. If the parties are unable to resolve the dispute
through mediation, they shall then submit the dispute to binding arbitration
pursuant to the rules and regulations of the American Arbitration Association
(the "AAA"). The parties agree that if arbitration becomes necessary, they
will utilize and comply with all available rules of the AAA for expediting such
arbitration. The site of the arbitration will be the City of Dallas, Dallas
County, Texas, and will commence as soon as possible but in no event later than
thirty (30) days after a party files for arbitration. In the event of any
action to enforce or interpret this Agreement, the prevailing party therein
shall be entitled to recover all reasonable costs and expenses incurred,
including reasonable attorneys' fees.
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6.9 Confidentiality. To the fullest extent permitted by law, the
parties agree not to disclose any provision of this Agreement to any third
party except if required in response to litigation among the parties, a
subpoena, governmental inquiry, or other legal process.
IN WITNESS HEREOF, the parties have duly executed this Agreement as of
the Effective Date.
COMPANY:
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ERGOBILT, INC.,
A Texas Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
Its: President
EXECUTIVE:
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/s/ P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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P. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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EXHIBIT 4.3
ERGOBILT COMPANIES
STANDARD EMPLOYEE NON-DISCLOSURE AGREEMENT
This Employee Non-Disclosure Agreement (the "Agreement") is executed as
of ____________, 199_, by and between the undersigned employee ("Employee") of
ErgoBilt, Inc., a Texas corporation ("Company"), and/or of BodyBilt Seating,
Inc., a Texas corporation ("Subsidiary"), with respect to the following facts.
A. Company and Subsidiary (collectively, the "ErgoBilt
Companies") are engaged in the business of designing, manufacturing, marketing,
selling and ergonomically correct chairs.
B. The ErgoBilt Companies may from time to time disclose to
Employee certain confidential proprietary information that has been developed
by the ErgoBilt Companies and/or their affiliates. Confidential Information
may also be disclosed to Employee inadvertently or unlawfully by third parties.
Such confidential information represents a unique valuable asset of the
ErgoBilt Companies.
C. Employee desires to be employed by the ErgoBilt Companies
and the ErgoBilt Companies are willing to employ Employee on the condition that
Employee agrees to define Employee's duties and obligations regarding the
disclosure and/or use of such confidential proprietary information on the terms
and conditions set forth herein.
Now, therefore, in consideration of the premises and mutual
covenants contained herein, and for such other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
(i) Confidential Information. For purposes of this
Agreement, the term "Confidential Information" shall mean trade
secrets, product and other research and development activities,
inventions, and any other knowledge, data or information that the
ErgoBilt Companies treat as proprietary, whether or not such
Confidential Information is patentable or copyrightable, however
it is embodied and irrespective of whether it is labeled as
"proprietary" or "confidential" and whether or not it was
developed by Employee. By way of illustration but not
limitation, Confidential Information includes (a) know-how,
ideas, improvements, discoveries, developments, processes,
existing and future product design and performance
specifications, techniques, formulas, algorithms, product
architectures, source and object codes, data, data compilations
and other works of authorship; and (b) information regarding the
ErgoBilt Companies' marketing, sales, research and development
and new product plans, ErgoBilt Companies' business plans,
budgets, and unpublished financial statements, ErgoBilt
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Companies' licenses, suppliers and customers, and information
regarding the skills and compensation of ErgoBilt Companies'
officers and employees.
(ii) Non-Disclosure. Employee recognizes that Employee
shall have no right whatsoever to use, exploit, or disclose the
Confidential Information for any other purpose, or to disclose it
to any other employee of the ErgoBilt Companies other than on a
"need to know" basis, to disclose it to any third party without
the written consent of the ErgoBilt Companies, which consent may
be withheld in the ErgoBilt Companies' sole discretion and which
consent, when given, may require the third party to execute a
Non- Disclosure agreement in a form satisfactory to the ErgoBilt
Companies.
(iii) Protection Policies and Procedures. Employee shall
strictly comply with any and all policies and procedures adopted
by the ErgoBilt Companies so as to protect the Confidential
Information. Such policies and procedures may included, without
limitation: marking all written materials "Confidential
Information of (Name of Specific ErgoBilt Company)" and/or with
such other legends necessary or appropriate to identify the
materials as the ErgoBilt Companies' Confidential Information;
limiting access to and/or dissemination of the Confidential
Information to those persons who have a "need to know" the
Confidential Information to enable such persons to perform their
duties consistent with the purposes for which such Confidential
Information was disclosed; limiting and otherwise controlling
copies or other forms of reproduction of the Confidential
Information; and maintaining the Confidential Information in a
secure place or places so as to preclude unauthorized access
thereto. If Employee is in doubt as to whether certain
information constitutes Confidential Information, Employee should
assume such information is Confidential Information subject to
protection under this Agreement and treat such information
accordingly.
(iv) Grounds of Dismissal. Employee acknowledges and
agrees that Employee's breach of his or her obligations under the
terms of this Agreement shall constitute grounds for dismissal
for cause.
(v) Non-Competition. Employee expressly agrees that
Employee will not use any of the Confidential Information to
compete, in any way, with the ErgoBilt Companies without the
prior written consent of the ErgoBilt Companies, which consent
may be withheld in their sole and absolute discretion.
(vi) Injunctive Relief. Employee understands and agrees
that the ErgoBilt Companies have a substantial ongoing investment
in the development of the Confidential Information, and the
ErgoBilt Companies would be irreparably injured if this Agreement
were to be breached. Should the ErgoBilt Companies bring suit
for breach of this Agreement or for unauthorized use or
disclosure of any Confidential Information, Employee consents to
jurisdiction and venue in any
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federal or state court in Texas, in Dallas County, and agrees
that preliminary and permanent injunctive relief would be an
appropriate, though not exclusive, remedy and agrees not to
oppose any request for expedited discovery in such an action.
(vii) Return of Written Materials. Immediately upon
Employee's voluntary or involuntary termination of employment
with the ErgoBilt Companies for any reason, with or without
cause, or at any time promptly upon the written request of the
ErgoBilt Companies, Employee shall return to the ErgoBilt
Companies the original and all copies of the Confidential
Information, and all notes, diagrams, papers, documents and other
materials irrespective of form, concerning or relating to such
Confidential Information in the possession or control of
Employee.
(viii) No Assignment, Binding Effect. Employee may not
assign this Agreement or Employee's obligations hereunder. This
Agreement shall be binding on Employee and his or her heirs,
beneficiaries, representatives, successors and assigns. This
Agreement will enure to the benefit of the ErgoBilt Companies and
their respective successors and assigns.
(ix) Governing Law. This Agreement shall be governed
and interpreted by the laws of the State of Texas.
(x) Attorneys' Fees. If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement,
the ErgoBilt Companies shall be entitled to reasonable attorney's
fees, costs, and necessary disbursements in addition to any other
relief to which they may be entitled.
(xi) Modifications. All additions or modifications to
this Agreement must be made in writing and must be signed by
Employee and the ErgoBilt Companies.
(xii) Survival of Certain Covenants. Employee's
obligations hereunder and his or her acknowledgments and
agreements contained in paragraphs (ii), (v), and (vii) hereof
shall survive the termination of this Agreement.
This Agreement shall be deemed executed and effective as of the date
first set forth above.
Employee: ErgoBilt, Inc.
A Texas Corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------ ------------------------------
Signature By: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: President
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BodyBilt Seating, Inc.,
A Texas Corporation
(formerly, EB Subsidiary, Inc.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Its: President
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