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EXHIBIT 10(v)
EXECUTIVE EMPLOYMENT AGREEMENT
(Xxxxxx XxXxxxxx)
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), dated as of October
1, 1996, is made and entered into by and between ErgoBilt, Inc., a Texas
corporation ("Company"), and Xxxxxx XxXxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, BodyBilt Seating, Inc. ("BBSI") is engaged in the
manufacturing, marketing and selling of ergonomically-correct chairs; and
WHEREAS, Company and its wholly-owned subsidiary, EB Subsidiary, Inc., a
Texas corporation ("Surviving Subsidiary"), have entered into that certain
Agreement and Plan of Merger dated as of August 19, 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, Executive is presently serving as Chairman of the Board of
Directors of Company; and
WHEREAS, Company has determined that it is in the best interests of
Company and its shareholders that it employ Executive under a written contract
on a full-time basis as Chairman of the Board of Directors and Executive is
willing to serve in such capacity on the terms and conditions set forth in this
Agreement.
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 as of the date set forth
above (the "Commencement Date"), Company shall be deemed to have employed
Executive as the Chairman of the Board of Directors ("COB") of Company.
Executive shall also continue to serve as a member of the Board of Directors of
Company ("Company's Board") and a member of Subsidiary's Board of Directors and
such other boards of directors of companies acquired by Company from time to
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time. Executive's employment shall be on the terms of and subject to the
conditions of this 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. As COB, Executive shall
have the responsibilities assigned to him under the Bylaws of Company as now or
hereinafter in effect. Such responsibilities shall include: (i) presiding
over the meetings of the Board and the shareholders of Company; and (ii)
serving on such committees established by the Board as directed by the Board.
Executive shall perform all duties incident to the offices of COB and shall see
that all orders and resolutions of the Board are carried into effect.
Executive shall use best efforts to: (i) act in a manner consistent with the
direction of the Board that will maximize the value of the outstanding stock of
Company; (ii) assist as necessary to develop and implement, execute and carry
out business plans as and when approved by the Board; (iii) promote nationally
and internationally the business of Company; (iv) identify and pursue new
business opportunities compatible with and complementary to the businesses of
Company; and (v) 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, supplies, equipment and such other facilities and services
suitable to his position and adequate for the performance of his duties.
1.4 Extent of Services.
1.4.1 Full-Time. Executive shall devote all of his time,
attention and energy to Company's business and shall not engage in any
other business or consulting activity for gain, profit or other
pecuniary advantage except as expressly provided in this Agreement.
1.4.2 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.
1.5 Outside Board Activities. Subject to the conditions hereinafter
set forth, 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.
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1.6 Outside Income. 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.
1.7 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.
ARTICLE II
Term
Executive's employment shall be for an initial term ("Term") commencing
as of 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. 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 Dollar ($1.00) for each twelve (12)
month period of the Term. Annual Base Salary shall be paid in annual payments,
commencing upon the Commencement Date and continuing every twelve (12) month
period thereafter. Annual Base Salary shall not be prorated for any period
less than twelve (12) months, but shall be paid in full for such lesser period.
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
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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.
3.3 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
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various provisions of the Employee Retirement Income Security Act
("ERISA"), as amended from time to time.
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 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 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 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;
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(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
Company shall, whether or not it is pursuing any potential remedies at law, be
entitled to equitable relief in the form of preliminary and permanent
injunctions without bond or other security upon any actual or threatened breach
of this non-competition provision.
4.3 Non-Disclosure. Executive shall execute and deliver,
contemporaneous with the execution and delivery of this Agreement, Company's
standard form Non-Disclosure Agreement in the form attached hereto as Exhibit
4.3.
4.4 Enforcement. Executive and Company further agree and acknowledge
that Company does not have an adequate remedy at law for the breach or
threatened breach by Executive of the covenants and agreements set forth in
Sections 4.2, 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
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
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himself of such investment unless such interest is held in a publicly-traded
mutual fund in which Executive holds less than five percent (5%) of the issued
and outstanding shares or is held in a portfolio account over which Executive
has no power to exercise any investment or management decisions.
ARTICLE V
Termination
5.1 Termination by Company Upon Executive's Death or Disability.
Company has the right to terminate this Agreement and Executive's employment
hereunder in the event of Executive's death or disability as provided below.
5.1.1 Death. If Executive dies during the term of this
Agreement, then this Agreement shall terminate immediately effective on
the date of Executive's death ("Termination Date"), without notice.
5.1.2 Disability. If, during the term of this Agreement,
Company's Board reasonably determines that Executive has become
physically or mentally disabled, whether totally or partially, so that
he is prevented from performing fully his usual duties and services
hereunder, Company may provide written notice to Executive and terminate
Executive's employment hereunder, effective on such date specified in
such notice (also "Termination 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 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 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
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.
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(iii) Employee Benefit Plans. Executive (or his estate)
shall be entitled to receive all other benefits provided to
employees of Company as set forth in any employee benefit plans
in effect as of the applicable Termination Date in which
Executive was a qualified participant.
5.2 Termination by Company for Due Cause.
5.2.1 "Due Cause". Company shall have the right to terminate
this Agreement and Executive's employment hereunder for "Due Cause" upon
written notice to Executive, effective upon such date specified in such
notice (also "Termination Date"). Executive shall not be deemed to have
been terminated for "Due Cause" hereunder unless and until 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 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); and
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(viii) knowingly, wilfully and wrongfully engaged in any
unprofessional conduct unbecoming a senior executive of Company
or comparable businesses after written notice of such conduct and
Executive's subsequent failure to cease and desist.
5.3 Effect on Compensation and Benefits. In the event of the
termination of Executive's employment by Company under Paragraph 5.2 above,
Executive shall be entitled to receive only any unpaid amounts awarded to
Executive under an 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, 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 5.2 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.
5.4 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 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 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 note (also "Termination Date").
5.5 Breach of Agreements. Executive acknowledges that a material
part of the inducement for Company to enter into this Agreement is Executive's
covenant with respect to non-competition, non-disclosure, non-cooperation and
non-solicitation set forth in 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 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.
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5.7 No Negative Public Comments. Upon the expiration or earlier
termination of this Agreement for any reason, Executive agrees not to make any
false, misleading or negative statement, either orally or in writing, about
Company or its directors or organizations or its officers, shareholders or any
affiliates of the same or to otherwise disparage them or any of them.
ARTICLE VI
General
6.1 Notice. All notices and other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given
when: (i) delivered personally; (ii) mailed by United States registered mail
or certified mail, return receipt requested, postage prepaid, addressed as set
forth below; or (iii) mailed by Federal Express, DHL, or such other nationally
recognized overnight courier service, addressed as set forth below:
Address for Company:
ErgoBilt, Inc.
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 Executive:
Xxxxxx XxXxxxxx
0000 Xxxxxxxx
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 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
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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'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.
6.6 Governing Law and Venue. This Agreement has been executed in
Dallas County, State of Texas, and the substantive laws of the State of Texas
shall govern the validity, construction, enforcement and interpretation of this
Agreement.
6.7 Severability. If any provision of this Agreement is held to be
unenforceable, this Agreement shall be considered divisible and such provision
shall be deemed inoperative to the extent it is deemed unenforceable and in all
other respects this Agreement shall remain in full force and effect; provided,
however, that if any such provision may be made enforceable by limitation
thereof, then such provision shall be deemed to be so limited and shall be
enforceable to the maximum extent permitted by applicable law.
6.8 Mediation/Arbitration/Legal Fees. If any dispute arises among
the parties with respect to this Agreement, then the parties shall submit such
dispute to mediation before a mediator in accordance with the mediation rules
of Dallas County, Texas. If the parties are unable to resolve the dispute
through mediation, they shall then submit the dispute to binding arbitration
pursuant to the rules and regulations of the American Arbitration Association
(the "AAA"). The parties agree that if arbitration becomes necessary, they
will utilize and comply with all available rules of the AAA for expediting such
arbitration. The site of the arbitration will be the City of Dallas, Dallas
County, Texas, and will commence as soon as possible but in no event later than
thirty (30) days after a party files for arbitration. In the event of any
action to enforce or interpret this Agreement, the prevailing party therein
shall be entitled to recover all reasonable costs and expenses incurred,
including reasonable attorneys' fees.
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.
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IN WITNESS HEREOF, the parties have duly executed this Agreement as of
the date first above written.
COMPANY:
ERGOBILT, INC.,
A Texas Corporation
By: /s/ XXXXXX XXXXX
------------------------------
Xxxxxx Xxxxx
Its: President
EXECUTIVE:
/s/ XXXXXX XxXXXXXX
---------------------------------
XXXXXX XXXXXXXX
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EXHIBIT 4.3
ERGOBILT COMPANIES
STANDARD EMPLOYEE NON-DISCLOSURE AGREEMENT
This Employee Non-Disclosure Agreement (the "Agreement") is executed as
of ____________, 199_, by and between the undersigned employee ("Employee") of
ErgoBilt, Inc., a Texas corporation ("Company"), and/or of BodyBilt Seating,
Inc., a Texas corporation ("Subsidiary"), with respect to the following facts.
A. Company and Subsidiary (collectively, the "ErgoBilt Companies")
are engaged in the business of designing, manufacturing, marketing, 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
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Companies' licenses, suppliers and customers, and information regarding
the skills and compensation of ErgoBilt Companies' officers and
employees.
(ii) Non-Disclosure. Employee recognizes that Employee shall
have no right whatsoever to use, exploit, or disclose the Confidential
Information for any other purpose, or to disclose it to any other
employee of the ErgoBilt Companies other than on a "need to know" basis,
to disclose it to any third party without the written consent of the
ErgoBilt Companies, which consent may be withheld in the ErgoBilt
Companies' sole discretion and which consent, when given, may require
the third party to execute a Non-Disclosure agreement in a form
satisfactory to the ErgoBilt Companies.
(iii) Protection Policies and Procedures. Employee shall
strictly comply with any and all policies and procedures adopted by the
ErgoBilt Companies so as to protect the Confidential Information. Such
policies and procedures may 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
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permanent injunctive relief would be an appropriate, though not
exclusive, remedy and agrees not to oppose any request for expedited
discovery in such an action.
(vii) Return of Written Materials. Immediately upon Employee's
voluntary or involuntary termination of employment with the ErgoBilt
Companies for any reason, with or without cause, or at any time promptly
upon the written request of the ErgoBilt Companies, Employee shall
return to the ErgoBilt Companies the original and all copies of the
Confidential Information, and all notes, diagrams, papers, documents and
other materials irrespective of form, concerning or relating to such
Confidential Information in the possession or control of Employee.
(viii) No Assignment, Binding Effect. Employee may not assign
this Agreement or Employee's obligations hereunder. This Agreement
shall be binding on Employee and his or her heirs, beneficiaries,
representatives, successors and assigns. This Agreement will enure to
the benefit of the ErgoBilt Companies and their respective successors
and assigns.
(ix) Governing Law. This Agreement shall be governed and
interpreted by the laws of the State of Texas.
(x) Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the
ErgoBilt Companies shall be entitled to reasonable attorney's fees,
costs, and necessary disbursements in addition to any other relief to
which they may be entitled.
(xi) Modifications. All additions or modifications to this
Agreement must be made in writing and must be signed by Employee and the
ErgoBilt Companies.
(xii) Survival of Certain Covenants. Employee's obligations
hereunder and his or her acknowledgments and agreements contained in
paragraphs (ii), (v), and (vii) hereof shall survive the termination of
this Agreement.
This Agreement shall be deemed executed and effective as of the date first set
forth above.
Employee: ErgoBilt, Inc.
A Texas Corporation
/s/ XXXXXX 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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