1
EXHIBIT 10(m)
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
(Xxxxxx Xxxxx)
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("Amended
Agreement"), dated as of October 15, 1996, is made and entered into by and
between ErgoBilt, Inc., a Texas corporation ("Company"), and Xxxxxx Xxxxx, an
individual ("Executive"). This Amended Agreement supersedes in its entirety
that certain Executive Employment Agreement dated as of August 15, 1996,
executed between the parties.
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 ("Surviving Subsidiary"), have entered into that certain
Agreement and Plan of Merger dated as of August 14, 1996 (the "Merger
Agreement"), pursuant to which Surviving Subsidiary will merge with BBSI, with
Surviving Subsidiary surviving under the name of "BodyBilt Seating, Inc.;" and
WHEREAS, Company intends to continue to operate Surviving Subsidiary and
to acquire other businesses and assets compatible with or complementary to the
business of Surviving Subsidiary and Company; and
WHEREAS, Executive has represented to Company that he has substantial
experience, skills and expertise in managing and operating a variety of
businesses; and
WHEREAS, Company desires to employ Executive on a full-time basis as
president and chief executive officer upon completion of an initial public
offering of the securities of Company (the "IPO") and the merger, and on a
part-time basis prior thereto; and
WHEREAS, the parties entered into an Executive Employment Agreement (the
"Agreement") dated as of August 15, 1996, pursuant to which Executive agreed to
provide such services and take on such responsibilities for the consideration
set forth therein; and
WHEREAS, the BBSI "Shareholders" (as that term is defined in the Merger
Agreement) have requested changes to the original Agreement and, to avoid a
dispute with said Shareholders and to avoid delaying the Merger, the Company
and Executive are willing to modify the Agreement and to restate the same,
which modifications are set forth herein.
NOW, THEREFORE, the parties, for and in consideration of the mutual
promises herein contained, agree as follows:
2
ARTICLE I
Employment
1.1 General Scope of Employment. Commencing as of August 15, 1996
(the "Commencement Date"), Company shall be deemed to have employed Executive
as the President and Chief Executive Officer ("CEO") of Company. As soon as
possible after the Commencement Date, Executive shall also be deemed to have
commenced to serve as a member of the Board of Directors of Company ("Company's
Board"), President and CEO of Subsidiary and a member of Subsidiary's Board of
Directors and such other boards of directors of companies acquired by Company
from time to time. Executive's employment shall be on the terms of and subject
to the conditions of this Amended Agreement. Executive shall report directly
to Company's Board 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 Board. 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.
1.2 Principal Duties and Responsibilities.
1.2.1 General. As President and CEO of Company, Executive shall
have the general charge of the business affairs and properties of Company and
shall be fully responsible for the general management and supervision of its
other officers, employees, agents and representatives except as otherwise
provided by the bylaws or the agreements of the Company. Executive shall
perform all duties incident to the offices of President/CEO, and shall see that
all orders and resolutions of the Board are carried into effect.
1.2.2 Pre-IPO Closing. Prior to the "Closing" under the Merger
Agreement (as defined therein), Executive shall serve to facilitate the general
organization of the Company and assist in the development of general business
plans.
1.2.3 Post-IPO Closing. After the Closing under the Merger
Agreement, during the term of this Amended Agreement, Executive's principal
duties and responsibilities shall be to use best efforts to: (i) act in a
manner consistent with the direction of the Board of Directors that will
maximize the value of the outstanding stock of the Company; (ii) develop and
implement, execute and carry out business plans as and when approved by the
Board; (iii) hire and manage all key executive personnel of Company; (iv)
develop, implement and oversee employee benefit programs; (v) promote
nationally and internationally the business of Company; (vi) review and comment
on all material contracts concerning Company; (vii) review and comment on all
strategic and operational plans; (viii) review and comment on all financial and
tax planning for Company; (ix) identify and pursue new business opportunities
compatible with and complementary to the businesses of Company; and (x) such
other duties and responsibilities necessary to integrate and coordinate the
activities of Company into an overall investment and management philosophy.
2
3
1.3 Extent of Services.
1.3.1 Pre-IPO Closing. Prior to Closing under the Merger
Agreement, Executive shall serve on a part-time basis, rendering services as
needed and as reasonably necessary to perform his duties and responsibilities.
Until such Closing, Executive may not engage in other business activities
competitive with the business of Company.
1.3.2 Post-IPO Closing. 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 Amended Agreement.
1.3.3 Passive Investments Permissible. 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.
1.4 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 three (3)
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.
1.5 Outside Income. After the Closing under the Merger Agreement,
absent Company's Board'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.
1.6 Directors and Officers 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 the members of Company's Board and the officers of Company in such
amounts deemed necessary and/or appropriate by Company's Board. In the event
such insurance is not obtained, then Company shall indemnify Executive as
provided in the Bylaws of Company to the fullest extent permitted under
applicable law.
3
4
ARTICLE II
Term
Executive's employment shall be for an initial term ("Term") commencing
as of August 15, 1996 (the "Commencement Date") and terminating three (3) years
after the Closing under the Merger Agreement.
ARTICLE III
Annual Base Salary and Miscellaneous Benefits
3.1 Annual Base Salary.
3.1.1 Pre-IPO Closing Annual Base Salary. Commencing on the
Commencement Date and for such period ending on the first to occur of either
the Closing under the Merger Agreement or March 20, 1997, Company shall pay to
Executive Annual Base Salary of Sixty Thousand Dollars ($60,000.00), payable in
monthly installments of Five Thousand Dollars ($5,000.00). Such Annual Base
Salary shall be due and payable on the last day of each calendar month for
services rendered during such month. Annual Base Salary for any partial month
of services shall be prorated on the basis of a thirty (30) day month.
3.1.2 Post-IPO Funding Annual Base Salary. Commencing on the
earlier of March 20, 1997 or the Closing under the Merger Agreement, 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 One Hundred
Twenty-Five Thousand Dollars ($125,000.00) 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 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. Executive 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.
4
5
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 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 twenty (20) business days
of paid vacation per year (which need not be taken consecutively and,
during the first twelve-month period after the closing of the Merger,
shall 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.
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 consent of Company's Board, 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
Company, and any other benefit programs hereafter adopted by Company
consistent with Company policies, if and when adopted from time to time.
3.5.2 Medical/Dental Benefits. Company shall pay for all
premiums for Executive, his spouse and children to obtain full benefits
provided under Company's major medical and dental plans as and when
obtained. Company shall also pay for all costs and expenses not
otherwise covered by insurance for an annual general physical for
Executive.
3.5.3 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.
5
6
3.5.4 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 Amended 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 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 Amended 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.
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 Amended 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;
6
7
(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 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 Amended 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 4.2, 4.3 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's 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
7
8
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 Amended 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 Amended
Agreement, then this Amended 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 Amended
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 Date"). "Disability" shall mean
Executive'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 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 Amended Agreement
by reason of Executive's death or disability, Executive (or his estate)
shall be entitled to payment of amounts due under this Amended Agreement
as follows:
(i) Annual Base Salary. Company shall pay in full and
complete satisfaction of amounts due under Section 5.2 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 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
Amended 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
8
9
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
Amended 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 Company
delivers to Executive a copy of a resolution duly adopted by Company's
Board (exclusive of Executive's vote) at a meeting of Company's Board
called and held for such purpose (after reasonable notice to Executive
and an opportunity for Executive, together with his counsel, to be
heard), finding that, in the good faith opinion of Company's Board,
Executive committed an act or omission set forth above in this Section
5.2.1 and specifying the particulars thereof in detail. Nothing herein
shall limit the right of Executive to contest the validity or propriety
of any such determination.
"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) knowingly, wilfully and wrongfully disclosed
"Confidential Information" of Company as defined in the
Non-Disclosure Agreement executed by Executive 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 Amended Agreement;
(vii) knowingly, wilfully, and wrongfully 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
9
10
(viii) knowingly, wilfully and wrongfully engaged in any
unprofessional conduct unbecoming a senior executive of the
Company or comparable businesses after written notice of such
conduct and Executive's subsequent failure to cease and desist.
5.2.2 Effect on Compensation and Benefits. In the event the
termination of Executive's employment by the Company under Paragraph
5.2.1 above, Executive shall be entitled to receive only any unpaid
amounts awarded to Executive under a Senior Management Incentive Plan
under Section 3.2 and any rights and benefits Executive may have under
employee benefit plans and programs of Company generally and under any
incentive plan of Company determined in accordance with the terms of
such plans and programs.
5.3 Termination Without Cause.
5.3.1 Termination By Board. Upon the vote of no less than a
majority of the directors then in office (exclusive of Executive), the
Company may terminate Executive's employment under this Amended
Agreement without cause at any regular meeting or at a special meeting
of the Board of Directors called upon no less than ten (10) business
days' prior written notice to Executive of the Board's intention to
terminate Executive without cause.
5.3.2 Effect on Compensation and Benefits. In the event of the
termination of Executive's employment by the Company under Paragraph
5.3.1 above, Company shall pay to Executive as "Liquidated Damages" by
certified check or by wire transfer the following amounts in cash no
less than five (5) business days after the effective date of such
termination: (i) an amount equal to six (6) months' installments of
Executive's Annual Base Salary payable under Section 4.2, and (ii)
Executive shall also be entitled to receive only any unpaid amounts
awarded to Executive under a Senior Management Incentive Plan under
Section 3.2 and any rights and benefits Executive may have under
employee benefit plans and programs of Company generally and under any
incentive plan of Company determined in accordance with the terms of
such plans and programs. In addition, upon such termination, and
notwithstanding the terms of any employee benefit plans or programs to
the contrary, the Company shall continue to provide to Executive and his
family at no cost to Executive full major medical, dental and disability
benefits for the one-year period commencing after the effective date of
termination, which benefits shall be of the same nature as received by
Executive immediately prior to his termination.
Termination of Executive's employment pursuant to this Section
5.3 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.
5.4 Executive's Right of Termination on Company's Breach. Executive
shall have the right upon no less than sixty (60) days prior written notice to
terminate this Amended Agreement and his employment hereunder in the event of
Company's breach of any material provision of this
10
11
Amended Agreement. Such notice shall state the nature and scope of such breach
in detail and identify the specific relevant provisions of this Amended
Agreement 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 Executive, this Amended Agreement shall terminate on the date specified in
Executive's original notice (also "Termination Date").
5.5 Breach of Agreements. Executive acknowledges that a material
part of the inducement for Company to enter into this Amended Agreement is
Executive's covenant with respect to non-competition, non-disclosure,
non-cooperation, non-solicitation and consideration for termination without
cause, all as set forth in Articles IV and V hereof. 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.
5.6 XxXxxxxx'x Right to Purchase Executive's Shares in the Company.
5.6.1 XxXxxxxx'x Purchase Rights on Termination for Cause. In
the event the Company terminates Executive's employment pursuant to Paragraph
5.2, Xxxxxx XxXxxxxx ("XxXxxxxx") shall have the right to purchase from
Executive a portion of the shares of the Company owned or controlled by
Executive ("Executive's Shares"), at the same price per share Executive
purchased the initial Executive's Shares from XxXxxxxx, plus an additional
amount equal to interest at an annual percentage rate of seven and one-half
percent (7.5%) from and after the date of purchase on the initial purchase
price of Executive's Shares:
(i) If the effective date of Executive's termination on
or prior to the one (1) year of the anniversary of the closing of
the Merger, then XxXxxxxx may purchase all of Executive's Shares
based on the IPO price;
(ii) If the effective date of Executive's termination is
on or before the two (2) year anniversary of the closing of the
Merger but after the one (1) year anniversary of the closing of
the Merger, then XxXxxxxx may purchase a total of eighty percent
(80%) of Executive Shares based on the IPO price; or
(iii) If the effective date of Executive's termination is
at any time after the two (2) year anniversary of the closing of
the Merger but prior to the three (3) year anniversary of the
closing of the Merger, then XxXxxxxx may purchase a total of
forty percent (40%) of Executive's Shares based on the IPO price.
5.6.2 XxXxxxxx'x Purchase Rights on Termination Without Cause.
In the event the Company terminates Executive's employment pursuant to
Paragraph 5.3, XxXxxxxx shall have the right to purchase from Executive a
portion of Executive's Shares at the same price per share
11
12
Executive purchased the initial Executive's Shares from XxXxxxxx, plus an
additional amount equal to interest at an annual percentage rate of seven and
one-half percent (7.5%) from and after the date of purchase on the initial
purchase price of Executive's Shares:
(i) If the effective date of Executive's termination is on or
prior to the one (1) year of the anniversary of the closing of the
Merger, then XxXxxxxx may purchase all of Executive's Shares less that
number of Executive's Shares with a total value equal to One Million
Seven Hundred Fifty Thousand Dollars ($1,750,000.00) based on the IPO
Price;
(ii) If the effective date of Executive's termination is on or
before the two (2) year anniversary of the closing of the Merger but
after the one (1) year anniversary of the closing of the Merger, and
provided that the value of Executive's Shares to be retained by
Executive is not less than the amount specified in Paragrah 5.6.2(i)
above, then XxXxxxxx may purchase a total of sixty-six and sixty-six
one-hundredths percent (66.66%) of Executive Shares based on the IPO
price; or
(iii) If the effective date of Executive's termination is at any
time after the two (2) year anniversary of the closing of the Merger but
prior to the three (3) year anniversary of anniversary of the closing of
the Merger, then XxXxxxxx may purchase a total of fifteen percent (15%)
of Executive's Shares based on the IPO price.
5.6.3 XxXxxxxx'x Purchase Rights on Executive's Voluntary Resignation.
In the event Executive voluntarily resigns his employment with Company,
XxXxxxxx shall have the right to purchase from Executive a portion of
Executive's Shares at the same price per share Executive purchased the initial
Executive's Shares from XxXxxxxx, plus an additional amount equal to interest
at an annual percentage rate of seven and one-half percent (7.5%) from and
after the date of purchase on the initial purchase price of Executive's Shares:
(i) If the effective date of Executive's termination is on or
prior to the one (1) year of the anniversary of the closing of the
Merger, then XxXxxxxx may purchase all of Executive's Shares less that
number of Executive's Shares with a total value equal to Five Hundred
Thousand Dollars ($500,000.00) based on the IPO Price;
(ii) If the effective date of Executive's termination is on or
before the two (2) year anniversary of the closing of the Merger but
after the one (1) year anniversary of the closing of the Merger, then
XxXxxxxx may purchase a total of sixty-six and sixty-six one-hundredths
percent (66.66%) of Executive Shares based on the IPO price; or
(iii) If the effective date of Executive's termination is at any
time after the two (2) year anniversary of the closing of the Merger but
prior to the three (3) year anniversary of the closing of the Merger,
then XxXxxxxx may purchase a total of fifteen percent (15%) of
Executive's Shares based on the IPO price.
12
13
5.6.4 Executive's Shares. For the purposes of this Paragraph
5.7, any shares of Company held in trust for the benefit of Executive's
children shall be deemed to be controlled by Executive and included as part of
Executive's Shares.
5.6.5 Company's Right of Redemption. Any of Executive's Shares
not purchased by XxXxxxxx may be redeemed by Company on the same basis as set
forth in Paragraphs 5.7.1, 5.7.2, and 5.7.3 above.
5.6.6 Shares Retained By Executive. Any of Executive's Shares
not subject to purchase by XxXxxxxx or redeemed by Company shall continue to be
held by Executive. XxXxxxxx shall have no purchase rights and Company shall
have no redemption rights upon the termination of Executive for any other
reasons except as set forth herein.
5.7 Registration Rights. Upon the termination of his employment
hereunder, in the event that the BodyBilt Shareholders (as defined in the
Merger Agreement) exercise their registration rights at any time with respect
to their shares of Company, Executive shall be entitled to register his shares,
at no cost to Executive, along with the BodyBilt Shareholders in the same
manner to the extent permitted by law.
5.8 Waiver of Claims for Wrongful Termination. In the event that
Company exercises its right to terminate Executive under the provisions of
Paragraphs 5.2.1 and 5.3 above, Executive shall be deemed to have waived any
and all claims against Company based on a claim of wrongful termination or
otherwise arising out of the termination of Executive's employment, provided
that all amounts due and payable to Executive as Liquidated Damages have been
paid in full. Nothing herein shall limit the right of Executive to contest the
validity or propriety of any determination of Due Cause pursuant to Paragraph
5.2.1 hereof.
5.9 No Negative Public Comments. Upon the expiration or earlier
termination of this Amended 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 Amended 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:
13
14
Address for Company:
ErgoBilt, Inc.
0000 Xxxxxx
Xxxxx 000, Xxxx Xxx 00
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx XxXxxxxx, Chairman
with copies to:
Wolin, Fuller, Xxxxxx & Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Address for Executive:
Xxxxxx Xxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxx, 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.
6.2 Binding Effect. This Amended 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 Amended
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Executive 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 Amended 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 Amended 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 Amended Agreement.
6.5 Assignments. This Amended Agreement is personal to Executive and
may not be assigned by Executive or the duties delegated without the prior
written consent of Company's Board. Also, Executive may not assign, transfer,
hypothecate or dispose of any interest in compensation or payments without
Company's Board's prior written consent.
14
15
6.6 Governing Law and Venue. This Amended 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 Amended Agreement.
6.7 Severability. If any provision of this Amended Agreement is held
to be unenforceable, this Amended 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 Amended 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 Amended 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 Amended Agreement, the
prevailing party therein shall be entitled to recover all reasonable costs and
expenses incurred, including reasonable attorneys' fees.
IN WITNESS HEREOF, the parties have duly executed this Amended Agreement
as of the date first above written.
COMPANY:
-------
ERGOBILT, INC.,
A Texas Corporation
By: /s/ XXXXXX XxXXXXXX
------------------------------------------
Xxxxxx XxXxxxxx
Its: Chairman of the Board of Directors
EXECUTIVE:
---------
/s/ XXXXXX XXXXX
---------------------------------------------
XXXXXX XXXXX
15
16
ERGOBILT COMPANIES
STANDARD EMPLOYEE NON-DISCLOSURE AGREEMENT
This Employee Non-Disclosure Agreement (the "Agreement") is executed as
of October 15, 1996, 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,
and selling 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
Companies' licenses, suppliers and customers, and information
regarding the skills and compensation of ErgoBilt Companies'
officers and employees.
17
(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 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 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 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.
2
18
(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 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.
(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/ XXXXXX XXXXX /s/ XXXXXX XxXXXXXX
-------------------------------- ------------------------------------
Signature By:
---------------------------------
Printed Name:
-----------------------
Its:
--------------------------------
3
19
BodyBilt Seating, Inc.,
A Texas Corporation
(formerly, EB Subsidiary, Inc.)
By:
----------------------------------
Printed Name:
------------------------
Its:
---------------------------------
4
