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EXHIBIT 10(j)
EXECUTIVE EMPLOYMENT AGREEMENT
(Xxxx Xxxxxxxxx)
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), dated as of
_________, 1996 (the "Effective Date"), is made and entered into by and between
EB SUBSIDIARY, INC., a Texas corporation ("Company"), and XXXX XXXXXXXXX, an
individual ("Executive").
W I T N E S S E T H:
WHEREAS, Company has acquired by merger the assets of BodyBilt Seating,
Inc. ("BBSI"), which 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 and to change its corporate name to
"BodyBilt Seating, Inc.;" and
WHEREAS, Executive was an officer, director, shareholder and key
employee of BBSI, and Executive has represented to Company that he has
substantial experience, skills and expertise in managing and operating BBSI and
is willing to work 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
Employment
1.1 General Scope of Employment. Commencing on the Effective Date
(the "Commencement Date" as defined below in Article II), Company shall employ
Executive as an Executive Vice President ("EVP") of Company. Executive's
employment shall be on the terms and subject to the conditions of this
Agreement. Executive shall report directly to Company's President and/or Chief
Executive Officer (collectively, the "President") and, from time to time, shall
report directly to the Board of Directors (the "Board"). Executive shall
perform such principal duties and responsibilities consistent with his
professional experience as may reasonably be assigned to him from time to time
by the President and/or the 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. As an EVP of Company,
Executive shall perform those duties and responsibilities delegated to him by
the President and/or the Board which may (but shall not necessarily) include,
without limitation, assisting the President with his obligations to: (i)
develop and implement sales, plans and programs; (ii) develop key customer
relationships and identify new customers; (iii) develop, implement, execute and
carry out business plans as and when approved by the Board; (iv) review,
comment on, and oversee the performance of all material contracts concerning
Company; (v) develop, review, and comment on all strategic and
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operational plans; (vi) identify and pursue new business opportunities
compatible with and complementary to the businesses of Company; (vii) the
conduct of new and compatible research and development efforts ; and (viii)
perform such other duties and responsibilities necessary to integrate and
coordinate the 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 for the performance of his duties.
1.4 Extent of Services. Executive shall not engage in any other
business or consulting activity for gain, profit or other pecuniary advantage.
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. Executive shall spend such time
necessary or desirable to perform his duties and responsibilities under this
Agreement.
1.5 Outside Board Activities. Executive may, upon prior notice to
Company's Board, serve as a member of not 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 Board's written consent, while
employed by Company, all fees, compensation and other income (collectively
"Outside Income") received by Executive from any business or consulting
activity in violation of Section 1.4 above, 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 or other than as permitted by Section 1.5 above) shall be
the property of Company and immediately shall be disclosed and remitted to
Company.
1.7 Directors and Officers Liability Insurance. 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.
ARTICLE II
Term
Executive's employment shall be for an initial term ("Term") of three
(3) years commencing on the "Commencement Date," which shall be the Effective
Date first set forth above, and shall be renewed automatically for successive
one (1) year terms unless either party gives written notice no less than sixty
(60) days prior to the expiration of the then current term terminating an
automatic extension of this Agreement. In such case, this Agreement shall
terminate at the expiration of such current term.
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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" for each year of the Initial Term of Eighty
Thousand and No/100 Dollars ($80,000.00) payable in no less than twelve (12)
monthly installments 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.
3.2 Senior Management Incentive Plans. Executive will be a named
participant in such bonus and/or incentive plans, stock option plans and such
other plans adopted by the 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's
participation under any such Senior Management Incentive Plans shall be
commensurate with his position and with the participation by the Company's
other senior executives. Any bonus and the amount therefor shall be awarded
based on Executive's performance and/or achievement of reasonable achievable
metrics, milestones and goals established by the President or the Board. Any
cash bonus may be payable in installments or lump sum, as determined by the
Board in its discretion and may be paid either under the terms of an
appropriate Senior Management Incentive Plan or, if no such plan has been
adopted, by a separate award exclusive to Executive.
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 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 and shall
otherwise be subject to the approval by Company. 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
or which is not adequately documented.
3.4 Vacation and Sick Days.
3.4.1 Executive shall be entitled to three weeks 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.
3.4.2 Executive shall be entitled to paid sick days consistent
with Company policy as adopted from time to time.
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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. The 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 from time to time.
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 which result from or are
suggested by any work done for Company or which relate to Company's business as
now or hereinafter conducted by Company during the term hereof. 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. Nothing
herein shall apply to inventions designed or developed
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by Executive on Executive's own time, outside the scope of his employment
duties and responsibilities.
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 three (3) 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 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.
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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 4.2, 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. Executive hereby
represents and warrants to Company that Executive does not own or hold
directly, indirectly or beneficially any investment competitive with the
business of Company. This representation shall not be deemed to include any
interest held in a publicly-traded mutual fund in which Executive holds less
than five percent (5%) of the issued and outstanding shares.
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 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 for a period of either six (6) consecutive months or for six (6)
non-consecutive months in any twelve (12) month period.
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 upon death or disability, Annual Base Salary through the last day
of the calendar month in which the
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Termination Date occurs plus an amount equal to Annual Base Salary equal
to three (3) monthly installments less any monthly disability payments,
if any, for such period which could be claimed.
(ii) General Employee Benefit Plans and Senior
Management Incentive Plans. Executive (or his estate) shall be entitled
to receive all other general 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. Executive shall also be entitled to receive payment in
full of any benefits prorated to the Termination Date in accordance with
the terms and conditions of any Senior Management Incentive Plans
providing the same.
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 only 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, if then a member of the Board) at a meeting of Company's
Board called and held for such purpose (after no less than ten (10) days 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 below in this Section 5.2.1 and
specifying the particulars thereof in detail.
"Due Cause" shall mean that Executive has:
(i) committed an 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) continued to violate any federal, state or local
governmental policies, plans or procedures governing the work place
environment (e.g., EEOC, Title VII, Texas
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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 after written notice of prior similar
violations; and
(viii) engaged in any unprofessional conduct unbecoming a
senior executive of this 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 of
termination for Due Cause, Company shall pay to Executive as severance
compensation provided that Executive does not contest the termination in any
respect after it becomes effective: (i) a lump sum payment equal to one year's
Annual Base Salary under Section 3.1; and (ii) any rights and benefits
Executive may have upon termination of Employment under employee benefit plans
and programs of Company generally and under any Senior Management Incentive
Plans of Company 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 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 Agreement and his employment hereunder 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 Executive, this Agreement shall
terminate on the date specified in Executive's original notice (also
"Termination Date"). In the event of Company's breach, Executive shall have
the right to assert and pursue any and all legal or equitable claims for
damages or other remedies or relief recognized under applicable law.
5.4 Breach of Agreements. Executive acknowledges that a material
part of the inducement for Company to enter into this Agreement are Executive's
covenants with respect to the extent and nature of Executive's services and
time and travel commitments as set forth in Article I, Section 1.4, and with
respect to non-competition, non-disclosure, non-cooperation and
non-solicitation set forth in Articles IV and V hereof. Executive agrees that
if Executive breaches any of those covenants, Company 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, Executive agrees not to make any
false, misleading or negative statement,
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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:
BodyBilt Seating, Inc.
0000 Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxx, President
with copies to:
ErgoBilt, Inc.
0000 Xxxxxx
Xxxxx 000, Xxxx Xxx 00
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxx, President
Wolin, Fuller, Xxxxxx & Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Address for Executive:
Xxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxx 00000
with copies to:
Jenkens & Xxxxxxxxx, A Professional Corporation
Attn: Xxxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
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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 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 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 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 Board's
prior written consent. Company shall not assign or transfer it rights or
interests under this Agreement, except for any transfer which occurs by
operation of law, including but without limitation, merger or sale of stock.
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
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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.
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 date first above written.
COMPANY:
-------
EB SUBSIDIARY, INC.
A Texas Corporation (to be known as
BodyBilt Seating, Inc.)
By: /s/ XXXXXX XXXXX
--------------------------------------
Xxxxxx Xxxxx
Its: President
EXECUTIVE:
---------
/s/ XXXX XXXXXXXXX
------------------------------------------
XXXX XXXXXXXXX
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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 Companies' licenses,
suppliers and customers, and information regarding the skills and
compensation of ErgoBilt Companies' officers and employees.
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(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 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,
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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/ XXXX XXXXXXXXX
------------------------
Signature By: /s/ XXXXXX XXXXX
--------------------------------------
Printed Name: Xxxxxx Xxxxx
Its: Its President
BodyBilt Seating, Inc.,
A Texas Corporation
(formerly, EB Subsidiary, Inc.)
By: /s/ XXXXXX XXXXX
--------------------------------------
Printed Name: Xxxxxx Xxxxx
Its: President
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