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EXHIBIT 10(k)
CONSULTING AGREEMENT
(Xxxx XxXxxxxx)
This CONSULTING AGREEMENT ("Agreement"), dated as of October 15,
1996, is made and entered into by and between ERGOBILT, INC., a Texas
corporation ("Company"), and Xxxx XxXxxxxx, an individual ("Consultant").
W I T N E S S E T H:
WHEREAS, Company owns all the issued and outstanding stock of EB
Subsidiary, Inc., which has acquired by merger the assets of BodyBilt Seating,
Inc. ("BBSI"). BBSI was engaged in the manufacturing, marketing and selling of
ergonomically-correct chairs. Company intends to continue the operation and
management of the business of BBSI through its subsidiary and to change the
subsidiary's name name to "BodyBilt Seating, Inc.;" and
WHEREAS, Consultant was an officer, director, shareholder and key
employee of BBSI, and Consultant has represented to Company that he has
substantial experience, skills and expertise in managing and operating BBSI and
is willing to consult with Company, on the terms and conditions set forth in
this Agreement, to assist in the continued operation and management of the
assets of BBSI.
NOW, THEREFORE, the parties, for and in consideration of the mutual
promises herein contained, agree as follows:
ARTICLE I
Consulting Services
1.1 General Scope of Consulting Services. Commencing on the date
of closing of Company's initial public offering (the "Effective Date"), Company
shall employ Consultant as a consultant of Company. Consultant's services
shall be rendered on the terms and subject to the conditions of this Agreement.
Consultant shall perform such principal duties and responsibilities consistent
with his professional experience as reasonably required of him by Company from
time to time. Consultant hereby agrees to render such services in a faithful
and competent manner. Consultant shall make himself available up to five hours
per business day as determined by Company and Consultant jointly. Consultant
shall serve as a senior advisor to the Board of Directors of Company and its
subsidiary on a variety of matters, including but without limitation the
following: transition management issues, operations, financial issues
including budgeting, strategic financial planning, and tax planning and shall
work with the Chief Financial Officer of Company on general financial matters,
and general strategic planning and advice. Consultant shall attend meetings of
the Board of Directors of Company and shall report on such matters deemed by
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Consultant to be relevant to the management and operation of Company and/or as
to matters requested by the Board.
1.2 Independent Contractor. It is expressly understood by the
parties that Consultant is acting as an independent contractor and is not
subject to Company's control nor is authorized to act as Company's agent or
legal representative. This Agreement shall not act or be construed to create
an employer-employee relationship, partnership, joint venture or any other
agency relationship between the parties. Consultant shall have no authority or
power to make any commitments of any nature whatsoever for the account of or on
behalf of Company. Consultant shall have the right to employ such personnel as
Consultant deems necessary to render services hereunder; however, such
personnel shall be at Consultant's sole cost, risk and responsibility.
1.3 Liability Insurance. After the Closing under the Merger
Agreement, Company shall take out and maintain, if commercially reasonable,
directors and officers liability insurance for the benefit of Consultant in
such amounts deemed necessary and/or appropriate by Company's Board. In the
event such insurance is not obtained, then Company shall indemnify Consultant
as provided in the Bylaws of Comopany to the fullest extent permitted under
applicable law.
ARTICLE II
Term
This Agreement shall be for an initial term ("Term") of two (2) years
commencing on the Effective Date.
ARTICLE IIICompensation
3.1 Consulting Fee. As compensation for all duties and services
to be rendered by Consultant hereunder to Company, Company shall pay to
Consultant a "Consulting Fee" on an hourly basis at the rate of One Hundred
Fifty Dollars ($150) per hour. Such fee shall be due and payable no less than
ten (10) days from Company's receipt of a written statement for services
rendered. Consultant shall be responsible for all social security, income tax
withholding, unemployment insurance, and such other amounts Company would
otherwise be required to deduct and withhold from amounts payable to employees.
Each payment shall constitute a waiver of claims by Company for the services
rendered.
3.2 Expenses. During the term of this Agreement, Consultant 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 reimbursed by Company in accordance with
Company's policies as adopted from time to time 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.
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3.3 Performance Incentive Plan. It is the intent of the parties
that Company adopt as soon as reasonably possible such bonus and/or incentive
plans, stock option plans and such other plans adopted by Company from time to
time 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. Consultant shall be eligible to become a named participant to
such Senior Management Incentive Plans. It is the further intention of the
parties that said Senior Management Incentive Plan provide for awards to
participants based on the achievement of various specified metrics and
milestones established in the business plans for the business adopted and
approved by Company's Board on behalf of Company, as amended from time to time,
and based further on the overall profitability of the business, the
participants' performances, the general financial condition of Company, and
other such factors as Company's Board may deem relevant. Such Senior
Management Incentive Plan 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.
3.4 Payment of Compensation and Other Benefits on Death or
Disability. In the event of the termination of this Agreement by reason of
Consultant's death or disability, Consultant (or his estate) shall be entitled
to payment of amounts due under this Agreement as follows:
(i) Incentive Plan and Bonus Compensation. Any
amounts awarded to Consultant but unpaid under any Senior
Management Incentive Plan or as bonus compensation under
Paragraph 3.3 of this Agreement shall be paid by Company to
Consultant (or his estate) within twelve (12) full calendar
months of the applicable termination date of this Agreement or
as otherwise specified in such Senior Management Incentive
Plan or award of bonus compensation.
(ii) Employee Benefit Plans. Consultant (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
of this Agreement in which Consultant was a qualified
participant.
3.5 Vehicle. Company shall provide to Consultant during the Term
of this Agreement a Suburban or other acceptable vehicle and shall reimburse
Consultant for all related expenses.
3.6 Other Benefits. Consultant shall be eligible to participate
in all Company bonus/incentive programs and stock option plans and to receive
benefits under all other Company employee benefits plans, as and when adopted,
consistent with the level of participation and benefits received by senior
management.
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,
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whether of a business or technical nature, made or conceived by Consultant
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 to Company's business. Consultant shall promptly disclose such
Inventions to Company. In addition, Consultant shall perform all actions
(without any expense to Consultant) 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. Consultant 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 Consultant employee of
Company and for a period of three (3) years after the termination of
Consultant's services hereunder, Consultant 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 date of
termination. Competitive Activity shall not include Consultant's mere
ownership of securities in any publicly-traded company in which
Consultant 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,
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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 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. The parties agree
that damages are an inadequate remedy for any breach of this provision and that
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. Consultant 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-A.
4.4 Enforcement. Consultant and Company further agree and
acknowledge that Company does not have an adequate remedy at law for the breach
or threatened breach by Consultant of the covenants and agreements set forth in
Sections 4.2, 4.3 and the Non-Disclosure Agreement executed pursuant to Section
4.3 above. Accordingly, Consultant further agrees that Company may, in
addition to the other remedies which may be available to it hereunder, file
suit in equity to enjoin Consultant from such breach or threatened breach.
ARTICLE V
Termination
5.1 Termination by Company Upon Consultant's Death or Disability.
This Agreement and Consultant's services hereunder shall terminate
automatically in the event of Consultant's death or disability upon written
notice to Consultant and/or his representatives. "Disability" shall mean
Consultant's permanent disability to perform the duties and responsibilities
required hereunder as determined by a licensed physician selected by Company's
Board in consultation with Consultant's personal physicians. In the event of
such termination, Consultant shall be entitled to all consulting fees and
expenses through the date of termination, together with any and all stock
options and other benefits to which he is otherwise entitled.
5.2 Termination by Company for Due Cause.
5.2.1 "Due Cause". Company shall have the right to
terminate this Agreement and Consultant's services hereunder for "Due Cause"
upon written notice to Consultant, effective upon such date specified in such
notice (also "Termination Date").
"Due Cause" shall mean that Consultant has:
(i) committed an intentional act of fraud,
embezzlement or theft in connection with his duties or in the course
of his services to Company;
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(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 services to Company;
(iii) knowingly, wilfully and wrongfully disclosed
"Confidential Information" of Company as defined in the Non-Disclosure
Agreement executed by Consultant pursuant to Section 4.3;
(iv) knowingly, wilfully and wrongfully engaged in
any Competitive Activity as defined in Section 4.2 above;
(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) knowingly, wilfully and wrongfully breached
any material provision of this Agreement; and
(vii) knowingly, wilfully and wrongfully violated
any federal, state or local governmental policies, plans or procedures
governing the work place environment (e.g., EEOC, Title VII, Texas
Workers Compensation Acts or Wage/Salary/Benefits policies or
procedures) or any such policies, plans or procedures developed by the
Company or its holding company with respect to its desire to operate a
professional working environment.
5.2.2 Effect on Compensation. In the event of termination
of Consultant's employment by Company for Due Cause, Consultant shall be
entitled to receive only any unpaid amounts awarded to Consultant under a
Senior Management Incentive Plan under Paragraph 3.3 and any rights and
benefits Consultant may have under employee benefit plans and programs of
Company generally and under any incentive plan of Comoany determined in
accordance with the terms of such plans and programs. Consultant shall also be
entitled to all consulting fees and expenses due through the date of
termination, together with any and all stock options and other benefits to
which he is otherwise entitled.
5.3 Consultant's Right of Termination on Company's
Breach. Consultant shall have the right upon no less than sixty (60) days
prior written notice to terminate this Agreement in the event of Company's
breach of any material provision of this Agreement. Such notice shall state
the nature and scope of such breach in detail and identify the specific
relevant provisions of this Agreement allegedly breached. Company shall have
thirty (30) days within which to cure such breach or, if such breach is not of
such nature that it can be cured within thirty (30) days, Company has commenced
reasonable and diligent efforts to cure said breach. If Company does not cure
or commence to cure the specific breach within the thirty (30) day period,
then, upon confirming written notice from Consultant, this Agreement shall
terminate on the date specified in Consultant's original notice (also
"Termination Date").
5.4 Breach of Agreements. Consultant acknowledges that a
material part of the inducement for Company to enter into this Agreement is
Consultant's covenant with respect to non-competition, non-disclosure,
non-cooperation and non-solicitation set forth in Articles IV and
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V hereof. Consultant agrees that if Consultant breaches any of those
covenants, Company shall have no further obligation to pay Consultant 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 or arbitrator shall reasonably determine unless such breach is an
inadvertent breach that does not result in any material harm to Company.
5.5 No Negative Public Comments. Upon the expiration or
earlier termination of this Agreement for any reason, Consultant 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.
0000 Xxxxxx
Xxxxx 000, Xxxx Xxx 00
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxx, President
with copies to:
Wolin, Fuller, Xxxxxx & Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Address for Consultant:
Xxxx XxXxxxxx
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxx 00000
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 Consultant and such officer as
may be specifically designated by Company's Board for 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 Consultant and may
not be assigned by Consultant or the duties delegated without the prior written
consent of Company's Board. Also, Consultant may not assign, transfer,
hypothecate or dispose of any interest in compensation or payments without
Company's Board's prior written consent.
6.6 Governing Law and Venue. The laws of the State of Texas shall
govern the validity, construction, enforcement and interpretation of this
Agreement. Venue and jurisdiction of this Agreement shall lie in Brazos
County, Texas.
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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IN WITNESS HEREOF, the parties have duly executed this Agreement as of
the date first above written.
COMPANY:
ERGOBILT, INC.
By:/s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
Its: President
CONSULTANT:
/s/ XXXX XXXXXXXX
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XXXX XXXXXXXX
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ERGOBILT COMPANIES
STANDARD NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement (the "Agreement") is executed as of
October 15, 1996, by and between ErgoBilt, Inc., a Texas corporation
("Company"), and/or BodyBilt Seating, Inc., a Texas corporation ("Subsidiary"),
and the undersigned (the "Undersigned") with respect to the following facts.
A. Company and Subsidiary (collectively, the "ErgoBilt
Companies") are engaged in the business of designing, manufacturing, marketing,
and selling ergonomically correct chairs.
B. The ErgoBilt Companies may from time to time disclose to the
Undersigned certain confidential proprietary information that has been
developed by the ErgoBilt Companies and/or their affiliates. Confidential
Information may also be disclosed to the Undersigned inadvertently or
unlawfully by third parties. Such confidential information represents a unique
valuable asset of the ErgoBilt Companies.
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 the Undersigned.
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 Companies' licenses, suppliers and
customers, and information regarding the skills and compensation of
ErgoBilt Companies' officers and employees.
(ii) Non-Disclosure. The Undersigned recognizes that the
Undersigned 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'
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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. The Undersigned
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 include, 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 the
Undersigned is in doubt as to whether certain information constitutes
Confidential Information, the Undersigned should assume such
information is Confidential Information subject to protection under
this Agreement and treat such information accordingly.
(iv) Grounds of Dismissal. The Undersigned acknowledges
and agrees that the Undersigned's breach of his or her obligations under the
terms of this Agreement shall constitute grounds for dismissal for cause.
(v) Non-Competition. The Undersigned expressly agrees
that the Undersigned 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. The Undersigned 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, the Undersigned consents to
jurisdiction and venue in any 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 the
Undersigned'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, the Undersigned
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 the Undersigned.
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(viii) No Assignment, Binding Effect. The Undersigned may
not assign this Agreement or the Undersigned's obligations hereunder. This
Agreement shall be binding on the Undersigned and his or her heirs,
beneficiaries, representatives, successors and assigns. This Agreement will
inure 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. Jurisdiction and venue shall
lie in Brazos County, 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 the Undersigned
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.
ErgoBilt, Inc.
A Texas Corporation
/s/ XXXX XXXXXXXX
------------------------------
Signature By: /s/ XXXXXX XXXXX
-----------------------------
Printed Name: Xxxxxx Xxxxx
--------------------
Its: President & CEO
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BodyBilt Seating, Inc.,
A Texas Corporation
(formerly, EB Subsidiary, Inc.)
By: /s/ XXXXXX XXXXX
-----------------------------
Printed Name: Xxxxxx Xxxxx
--------------------
Its: President & CEO
-----------------------------
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