ARTICLE 1. NAMES/ATTORNEYS
EMPLOYMENT AGREEMENT made this First day of April 2008, between Biddle Brothers
(Employer), having a principal place of business at 315 S. Plymouth, Chicago, IL 60610 and Sal
Salesman (Employee), 3565 N. Foster Ave., Chicago, IL 60634.
Biddle Brothers is represented by Julie A. Spanbauer, located at 316 S. Plymouth Court,
Chicago IL 60610.
Sal Salesman is represented by Gianna Scatchell, located at 912 Norwood Drive, Melrose
Park, IL, 60160
ARTICLE 2. RECITALS
The Employer appoints Sales Employee as the Employer’s exclusive sales Employee for the
solicitation of orders for the Employer’s Products from Customers located in a territory within
the State of Illinois, which boundaries are reflected in Article 3.
WHEREAS, the Employer is engaged in the manufacturing and sale of furniture
WHEREAS, the trade area set forth has been solicited by Employer through its sales
Employees and through advertising media, and a large valuable and extensive trade has been
established and maintained at a great expense to the Employer; and
WHEREAS, the Employer has a substantial number of customers in the trade area and
the names of the customers are within the knowledge of the Employer and are of great value to
WHEREAS, the Employer and Employee desire to enter into an Employment agreement.
Accordingly, in consideration of the foregoing and the mutual promises and covenants contained
in this Agreement and for other good and valuable consideration, the employment of Employee
by Employer, the parties agree as follows:
ARTICLE 3. DEFINITIONS
The terms set forth below have the following meanings (such meanings to be applicable to
both the singular and plural forms, except where otherwise expressly indicated):
“Customer” shall include any person, firm, company, or corporation that has purchased
any products from the Company (including all customers) prior to or during the Term of
“Products” means commercial and residential furniture made or sold by the Employer.
Territory: Employee is assigned a sales territory described as follows: The Chicago
metropolitan Area (within 25 miles of the office located at 315 S. Plymouth Court,
Chicago, IL. 60610. Employer reserves the right to service directly its two existing major
accounts in Employee’s territory, A-1 Accountants, Inc. and Peter’s Perfect printing
Service. Employee will not be compensated on those sales.
Competitor” means any entity primarily engaged in the business of selling and installing
office furniture, or primarily engaged in any other business in which Employer engages
subsequent to the date of this Agreement.
“Net Sales” means the gross sales price of merchandise sold minus all direct costs,
freight, sales tax, returns, and other discounts or allowances.
“Direct Costs” means the Employer’s cost for the Products (typically manufacturer
invoice price), the price of any competent parts or accessories, and all costs associated
with any startup or installation of the Product for the Customers including Labor Costs.
Best efforts will constitute the efforts that a reasonable in the position of sales Employee
would make to achieve his quota under the contract.
ARTICLE 4. DUTIES AND OBLIGATIONS OF THE PARTIES
4.1 Duties, Rights, and Obligations of Employer
The Employer agrees to:
1. Pay the benefits pursuant to Compensation Schedule detailed in Article 6;
2. Set minimum monthly quotas after consultation with the Employee;
3. Set minimum yearly goals after consultation with the Employee;
4. Changes. In addition, the Employer reserves the right, in its sole discretion, to
discontinue the sale of any of its Products, decline to accent any order procured by
Sales Employee, or change the terms and conditions of the sale of any of its
Products, at any time;
5. The Employer shall have the obligation to let employee, either personally or by an
accountant retained and paid by Employee, to examine the books and accounts of the
Employer insofar as the books and accounts relate to transactions affecting the
amount of the Employee's compensation. This examination shall take place at times
mutually convenient to the Employer and Employee, but in no event more than one
(1) week after the Employee has made a request for an examination;
6. Change in Assigned Territory: Employer reserves the right to change at any time in any
manner whatsoever in his sole discretion the territory assigned to the Employee;
7. Employer will furnish the following information and assistance to Employee:
a) Information on all inquiries regarding manufactured products originating in
b) Contents of important correspondence concerning the acquisition and processing
c) Information on orders, invoices, changes, quotations, complaints, cancellations,
and similar data which is helpful to Employee.
d) Information on delivery dates, engineering changes, schedule changes, and other
important details which may affect the processing and completion of the order.
e) Information on new products, changes or deletions of products, changes in terms,
customer policy changes, and other information before it are released to public
f) Information on competition and their techniques.
g) All sales and engineering training of Employee's personnel, as Employer may
agree to furnish.
h) All price changes in listed and published price lists;
7. Employer reserves the right to extend or curtail, the Employee’s precise duties, rights, and
obligations from time to time, at the Employer’s direction; and
8. All such other things of similar kind and nature as would be necessary to carry out the terms
of this Agreement.
4.2. Duties, Rights, and Obligations of Employee
Job Assignment: The duties of the employee are generally described as follows:
1. Best Efforts: The Employee agrees to devote his best efforts and all of his or her time
and attention exclusively to the practice of selling Employer’s Products exclusive of such
vacation periods and other time off as provided in this Agreement;
2. Assignment of Territory: The Employee is assigned a sales territory described as
follows: Chicago, Illinois and its collar cities. The Employee shall not make any sales
outside of his assigned territory, and shall not be entitled to any commission or other
compensation for sales made outside of that territory;
3. Service to Employer: Employee will build and maintain an organization commensurate
with the growth of product sales; and will continue to strive to furnish maximum service
to Employer and all customers;
Employee’s “service to” Employer includes:
a) Soliciting, procuring, and obtaining purchase orders for the Employer’s products from
Customers located in the Territory;
b) Rendering complete sales representation for the Employer, which includes regularly
calling on Customers within the Territory, following up with Customers, investigating
and handling of customers' rejections, service problems and complaints within the
c) Regularly attending Employer’s sales meetings when possible.
d) Prompt handling of inquiries, correspondence, and orders forwarded by Employer.
e) Protect and enhance the interests, reputation, and trade position of the Employer and
to follow any instructions or policies of the Employer regarding its Products as may
be communicated by the Employer from time to time;
4. Disclosure: In accordance with its responsibilities, Sales Employee agrees to
communicate to the Employer any necessary information to sell and market its Products
and provide the Employer with written records, on a week-to-week basis, describing the
names, telephone numbers, and addresses of all Customers that were solicited by Sales
Employee in the prior week. The quantity and description of all goods ordered by each
customer, the nature of any complaints made by any customer, any suggestions made by
any customer as to improvements that may be made in the goods and services provided
by the Employer, and any other information or data that may from time to time be
requested by the Employer;
5. Quota/Goal: In addition, Employee shall expand Employer’s client base. Employee has
a minimum quota of “five percent” 5% above the previous year’s sales in his territory and
a goal of “fifteen percent” 15% above that amount. The Employee shall assist in the
collection of all sums due from persons to whom the goods and merchandise of the
Employer are sold and in the adjustment of any complaints or disputes that may arise in
connection with any sales made by the Employee;
6. Adherence to Rules: The Employee will at all times follow and perform the advice,
directions, and orders of the Employer, now in effect or as subsequently modified
governing the conduct of Employer’s Employees, concerning the conduct and
management of business, and will in all cases of difficulty refer to the Employer for
advice, keeping the Employer informed as to all matters concerning the Employer’s
7. Authority: Make no representations, warranties, or commitments binding that Employer
without the Employer's prior consent. Employee will be personally liable and required to
reimburse the Employer in the event he exceeds his authority; and
8. All such other things of similar kind and nature as would be necessary to carry out the
terms of this Agreement.
5. ARTICLE 5. TERM OF EMPLOYMENT; RENEWAL
5.1. The term of this agreement shall begin on the date of this Agreement and shall continue
until terminated as provided for in Article 8 herein.
5.2. Renewal: Contract renewal is not automatically renewable. Parties must give notice on
intent to renew sixty (60) days prior to termination as provided for in the notice
provision of Article 12. If the parties elect to renew the contract, the renewal is subject to
good faith negotiations to renew this Agreement. Negotiations procedure is governed by
the Employment Manual (Exhibit A) attached and incorporated by reference into this
6. ARTICLE 6. COMPENSATION & BENEFITS OF EMPLOYEE
6.1. Compensation: As compensation for selling and promoting Employer’s products and
services to current and prospective clients, Employee shall receive a commission on
those sales of products and services sold to customers in his assigned territory pursuant
to the commission plan described below:
1. Commission: For all services rendered by Employee under this Agreement,
Employer shall pay the Employee a salary of three percent (3%) commission
on all “Net Sales”.
2. Payment Schedule: The payments will be made on the 25th day of each
month. The amount of salary may be increased by Employer from time-to-
time. Any such changes in salary shall be set forth in writing by the Employer
and attached to and made a part of this Agreement.
A commission on a sale shall not be due and payable to Employee until and
unless the sale is completed during the term of this agreement. A sale is not
“complete” until its full purchase price has been paid and all goods and
services comprising the sale have been delivered.
3. Time: Any commission earned will be paid by the end of the next month
following the month in which they are earned.
4. Bonus: If Employee exceeds the pro rata portion of his quota (detailed in
Article 4) for two (2) out of four (4) quarters of such fiscal year, employer
will pay Employee a bonus of $2000.00 at the end of the fiscal year if he is
still employed by employer at that time.
6.2.1. Vacation: For each six (6) months that Employee has been employed by
Employer, Employee shall be entitled to one (1) week of paid vacation, which shall
be taken by Employee within the following twelve (12) months. This vacation may
be taken in consecutive weeks or days. Furthermore, the Employee shall be entitled
to all holidays in effect for other employees of Employer according to Employment
Manual. The personal holidays are to be scheduled in advance to the mutual
convenience of the Employee and the Employer. Such holidays must be taken
during the calendar year and cannot be carried forward into the next year.
6.2.2. Other benefits: Additionally, Employee shall be entitled to participate in all other
present or future benefit plans provided by Employer to its employees and for which
Employee may qualify.
6.2.3. Expense Reimbursement: The Employer shall pay or reimburse the Employee
for all reasonable expenses actually incurred or paid by him in the performance of
services rendered by him pursuant to this Agreement. Such expenses shall be
supported by the documentary evidence, including, if applicable, evidence required
to substantiate them as income tax deductions for the Employer.
7. ARTICLE 7. MAJOR AND MINOR BREACHES; DISCIPLINARY PROCEDURES;
7.1. BREACHES WHICH WILL TRIGGER THE DISCIPLINARY PROCEDURE
The following are examples of the type of misconduct that may lead to
verbal or written warnings:
occasional lateness, minor work errors, minor breaches of health & safety
obligations, time wasting, lack of diligence, failure to comply with
reasonable instructions and general unsatisfactory conduct, including
inappropriate behavior towards colleagues
failure to meet the quota, failure to meet the sales goal of 15% increase of
sales from the year before, persistent or serious work errors, falsification
of time sheets (first offense), using offensive language, breach of the
Employer’s email and internet use policy, or any other actions defined as
“minor breaches” in the Employee Handbook.
Repeated minor misconduct of this sort may be treated as more serious
These examples are provided for guidance only and should not be seen as
Examples f gross misconduct may include
the Employee has committed a willful serious act that constitutes fraud,
embezzlement, fraud, theft, or of any other crime or offense involving
misuse or misappropriation of money or other property in the course of
Any act of dishonesty by Employee which adversely affects the business
of the Employer;
The performance of any willful or intentional act, which reflects
unfavorably on the reputation of Employer;
Conviction or pleading of nolo contendere or guilty to any felony;
persistent failure to correct minor breaches, discrimination on grounds of
sex, race, etc., harassment of another employee, failure to respond
adequately to a verbal warning,
contravening health and safety obligations so as to put others at risk, being
under the influence of drink or drugs during working hours, violent or
abusive behavior, deliberate damage to Employer property (or that of
employees, clients or visitors), or any other actions defined as “major
breaches” in the Employee Handbook.
These examples are provided for guidance only and should not be seen as
7.2. DISCIPLINARY PROCEDURES: PROGRESSIVE DISCIPLINE OF
7.2.1. PURPOSE AND STATUS: The Disciplinary Procedure is applicable to all
employees. It is designed to ensure that employees are dealt with fairly and
consistently in disciplinary and other related matters affecting their work with the
Employer. The Employer reserves the right not to follow this Procedure where it
considers it appropriate to do so.
7.2.2. GENERAL PRINCIPLES: See Exhibit B attached and incorporated by
reference into this Agreement.
7.2.3. STAGES OF THE PROCEDURE
Minor breaches will usually be dealt with initially on an informal basis by way of an
informal verbal warning and/or counseling where necessary. After establishing the facts,
the Employer may consider that there is no need to resort to the formal Procedure, and
that it is sufficient to talk the matter over with the employee. A note of the informal
warning will be kept on the employee’s personal file. The purpose of an informal written
warning is to provide an opportunity for improvement in the matter to be corrected
without the necessity for the Procedure be instituted. However, where the matter is more
serious, the stages of the Procedure set out below will normally be followed.
Except in cases which clearly constitute a real and immediate danger to the employer or
other parties or interests or in which the actions/inactions of the employee constitute
clearly flagrant and purposeful violations of reasonable employer rules and regulations,
progressive discipline shall be administered as follows:
1. Stage 1 – Verbal Reprimand with a Written Notation
In cases of minor breaches of discipline or misconduct, or where the employee has failed
to improve or remedy the problems identified within an informal verbal warning, an
employee will be given a formal verbal warning which will refer to the misconduct and
of the possible consequences of any repetition or failure to improve within a set time
limit. Such written notation shall not be placed in the employee's personnel file and shall
not be used to the further detriment of the employee after 12 months of the
action/inaction of the employee which led to the notation.
2. Stage 2 - First Written Warning
In the event of more serious or further misconduct, the employee will normally be given a
first written warning. This will state the reason for the warning and will give a time limit
for improvement, including any action required by the employee to remedy the situation.
The employee will be informed of the consequences of any failure to improve his or her
conduct. Such written reprimand shall be dated and signed by the giver and the receiver
of the reprimand. A copy of this written warning will also be kept on the employee's
3. Stage 3 – Suspension Without Pay
If Employee fails to remedy conduct that triggered State 2 for ten (10 days, a suspension
without pay may be issued to an employee, when appropriate, in keeping with provisions
of this section, including just cause and applicable laws. The length of the suspension
also shall be determined by just cause as set forth in this section. The notice and specifics
of the suspension without pay shall be placed in writing, dated and signed by the giver
and the receiver of the suspension. The specific days of suspension will be clearly set
forth in the written suspension notice which shall be filed in the affected employee's
4. Stage 4 - Dismissal
If Employee fails to remedy conduct that triggered State 3 for fourteen (14) days, an
employee may be dismissed (employment contract terminated or non-renewed) when
appropriate in keeping with provisions of this Article and “just cause” termination detailed in
1. At any stage of the Procedure (including dismissal), an employee has a right to
appeal against the disciplinary decision. The employee should inform the [Human
Resources Manager] in writing within 7 working days of notification of the
disciplinary decision setting out the reasons for the appeal. All appeals will be
dealt with as soon as is practicable in the circumstances. As with the hearings at
earlier stages the employee may be accompanied by a colleague (or trade union
2. Wherever practicable, the appeal will be heard a more senior manager than
whoever decided to take the disciplinary action. Their decision shall be final
within the Employer.
3. The Employer will confirm to the employee in writing the results of the appeal,
and will outline the reasons for the decision reached, as soon as is practicable
after the appeal has been heard.
4. Where the Employer has taken the decision to dismiss an employee, dismissal
will still take effect where the employee wishes to appeal. Where an appeal
against dismissal fails, the effective date of termination will be taken as the date
on which the employee was originally dismissed. If the appeal is successful, the
employee will be reinstated, with salary and benefits backdated to the date of
8. ARTICLE 8. TERMINATION
8.1. This Agreement shall terminate on the occurrence of any one of the following events:
1. Mutual Agreement: This agreement may be terminated by either mutual agreement
of the parties or by written notice of either of the parties to the other party of an
intention to terminate the agreement. Any written notice of termination will serve
automatically to terminate this agreement  days after the date notice is sent to the
other party via notice standards in Article 12.
2. Disability. The Employer may terminate the employment of the Employee if, in the
reasonable judgment of the Board, the Employee is unable to perform the duties
required of him under this Agreement for an aggregate of sixty (60) days (whether or
not consecutive) during any nine (9)-month period during the Employment Term
because of mental or physical disability, diagnosed by an independent physician
mutually selected by the Employee and the Board. Upon such termination, the
Employee shall be relieved of all further obligations hereunder, except obligations
pursuant to Article 9.
3. Death. The Employee's employment will terminate automatically upon the
Employee's death during the Employment Term.
4. Termination for Cause. The Employer may terminate the Employee's employment
during the Employment Term for ''Cause.'' ''Cause'' means any of the major breaches
under Article 4; the Employee has refused or failed to carry out his duties hereunder
(other than as a result of disability); or has not remedied or refused to remedy any
“minor breach” within fourteen (14) days after receipt of written notice from the
Board of such breach or refusal or failure.
5. Termination for Good Reason by Employee. The Employee may terminate his
employment for Good Reason. For purposes of this Agreement, ''Good Reason'' for
the Employee's resignation will exist if any of the following occur:
1. a material breach of an obligation, a duty, right, or any combination of
these of the Employer under Article 4;
2. a change in his position with the Employer or a successor Employer
following a Change in Control (as defined in the Plan) that materially
reduces his duties or level of responsibility or working conditions; or
3. Relocation of the Employer's headquarters outside of the 75 miles
metropolitan area. The date of termination of the Employee's employment
under this shall be the effective date of any resignation specified in
writing by the Employee, which shall not be less than fourteen (14) days
after receipt by the Employer of written notice of such resignation
specifying the reason for such resignation.
6. Bankruptcy or Cessation of Business. This Agreement shall be terminated
automatically upon Employee's cessation of business, election to dissolve,
dissolution, insolvency, failure in business, commission of an act of bankruptcy,
general assignment for the benefit of creditors, or filing of any petition in bankruptcy
or for relief under the provisions of the bankruptcy laws.
8.2. RIGHTS, DUTIES, AND OBLIGATIONS UPON TERMINATION OR
8.2.1. Upon the termination or cancellation of this Agreement, the parties hereto agree
18.104.22.168. Employer’s Obligations
1. Compensation: After termination, the Employer shall have no further
obligation to pay any compensation pursuant to this Agreement, but
the Employee's obligations under the Confidential Information and
Inventions Agreement will remain in effect.
2. Non-liability of Employer: Employer shall not be liable for
consequential damages of any kind, whether as a result of a loss by
Employee of present or prospective profits, anticipated sales,
expenditures, investments, commitments made in connection with this
Agreement, or on account of any other reason or cause whatsoever.
22.214.171.124. Employee’s Obligations.
1. Return Information: Upon termination or expiration of this Agreement
for any reason, Employee shall, as a prior condition of his final check,
immediately cease using and shall return to Employer, without
retaining copies: (a) any unused Sales Literature: (b) all lists of
Subscribers, books, records and other information supplied to,
developed or maintained by Employee pertaining to Subscribers or
prospective Subscribers, and otherwise pursuant to its exercise of its
rights and performance of its obligations under this Agreement; (c) all
forms, directives, policy manuals and other written information and
materials supplied to it by Employer pursuant to this Agreement or
which contain the Employer's trademarks or service marks; (d) and any
other information of a confidential or secret nature applicable to
Employer’s business, its customers, and the manner of conducting
2. Furthermore, Employee shall immediately cease to identify itself as an
authorized sales agent for the Service or otherwise affiliated in any
manner with Employer. In connection therewith, Employee shall take
immediate steps to assign to Employer or its nominee (or discontinue,
as Employer elects) all telephone numbers listed in any telephone
directory listing which identifies Employer as an authorized sales agent
of the Service.
9. ARTICLE 9. PROPERTY RIGHTS OF THE PARTIES
9.1. Acknowledging Protectable Interest of Employer
Employer is in the business of sales, currently specializing in selling and installing office
furniture products. Employee acknowledges that:
1. Employer’s products are highly specialized items;
2. The identity and particular needs of Employer’s customers are not generally
known in the sales industry;
3. has been developed at great cost and expense by the Employer
4. Employer has a proprietary interest in the identity of its customers and customers
5. Documents and information including Employer’s methods of production, sales,
pricing, costs, and the specialized requirements of Employer’s customers are
highly confidential and constitute trade secrets.
9.2. Covenant Not to Compete. Employee agrees that:
The Employer has built a flourishing company and continues to build its company in a highly
competitive atmosphere. Employer has a proprietary interest in the identity of its customers and
customer-lists, and other Confidential Information (described herein). If this proprietary interest
is exploited by competition, it would cause irreparable economic loss. The purpose of this
provision is to safeguard the Employer’s proprietary interest.
In order to protect the Employer's rights in and to the Confidential Information and to ensure that
no unfair advantage is taken of my knowledge of and access to the Confidential Information, for
a period of twenty-four (24) months after this agreement has been terminated for any reason,
with or without cause, the Employee agrees not to compete with Employer.
“Compete” used herein means:
1. Solicit or assist any other person to solicit any business (other than for the Employer)
from any present or past customer of the Employer; or request or advise any present or
future customer of the Employer to withdraw, curtail or cancel its business dealings with
the Employer or commit any other act or assist others to commit any other act which
might injure the business of the Employer;
2. Directly or indirectly (Employee) solicit or encourage any employee of the Employer to
leave the employ of the Employer or (ii) hire any employee who has left the employment
of the Employer if such hiring is proposed to occur within one year after the termination
of such employee's employment by the Employer;
3. Directly or indirectly solicit or encourage any consultant then under contract with the
Employer to cease work with the Employer;
4. Cause or induce, or attempt to cause or induce, any person or firm supplying goods,
services, or credit to the Employer to diminish or cease the furnishing of such goods,
services or credit;
5. Directly or indirectly perform services in any manner (e.g. as an employee, consultant,
officer, director, independent contractor, principal, agent) with any business of the type
and character of Employer's business during the Term; and
6. General clause: Other such things of similar kind and nature that would be considered
competitive to the Employer’s business.
The parties have attempted to limit the employee’s right to compete only to the extent
necessary to protect the employer from unfair competition. The parties recognize, however,
that reasonable people may differ in making a determination. Consequently, the parties agree
that, if the scope or enforceability of the restrictive covenant is in any way disputed at any
time, a court or other trier of fact may modify and enforce the covenant to the extent that it
believes to be reasonable under the circumstances existing at that time.
9.3. Trade Secrets & Confidential Information:
9.3.1. During the terms of this Agreement, Employee will have access to and become
familiar with various trade secrets and confidential information of the Employer.
The purpose of this provision is to prevent the unauthorized disclosure of Trade
Secrets & Confidential Information as defined below.
9.3.2. A ''Trade Secret'' is information which is not generally known to the public and,
as a result, is of economic benefit to Employer in the conduct of its business.
Accordingly, Employee and Employer agree that Trade Secrets shall include all
information developed or obtained by Employer and comprising the following
items, whether or not such items have been reduced to tangible form (e.g., physical
1. Technical Information concerning Employer’s products and services,
including know-how, designs, devices, diagrams, processes, research
projects and product development, all methods, techniques, processes,
ideas, research and development technical memoranda and
2. Information concerning Employer’s business including cost information,
profits, sales information, accounting and unpublished financial
information, business plans, markets, customer lists and customer
information, purchasing techniques, supplier lists, and supplier
information and advertising strategies trade names, service marks,
slogans, forms, business forms, marketing programs and plans, layouts
and designs, financial structures, operational methods and tactics, cost
information, the identity of or contractual arrangements with suppliers,
the identity or buying habits of customers, accounting procedures,
software, data bases, and any document, record or other information of
Employer relating to the above;
3. submitted by Employer’s customers, suppliers, employees, consultant, or
evaluation or use; or
4. All other concepts or ideas in or reasonably related to the business of
Employer and have not previously been publicly released and which give
Company a competitive advantage in the relevant industry.
9.3.3. “Confidential Information'', as used herein, means:
1. All information or material not generally known by non-Employer
personnel which (Employee) which gives the Employer some competitive
business advantage or the opportunity of obtaining such advantage or the
disclosure of which could be detrimental to the interests of the Employer;
2. which is owned by the Employer or in which the Employer has an interest
(including information conceived, originated, discovered or developed in
whole or in part by me);
3. the following types of information and other information of a similar
nature (whether or not reduced to writing): trade secrets, inventions,
marketing techniques and materials, marketing and development plans,
price lists, pricing policies, business plans, information relating to
customers and/or suppliers' identities, characteristics and agreements,
financial information and projections, and employee files;
4. information marked ''Confidential Information,'' ''Proprietary Information''
or other similar marking, known by me to be considered confidential and
proprietary by the Employer; or
5. From all the relevant circumstances should reasonably be assumed by me
to be confidential and proprietary to the Employer.
9.3.5. Ownership. Employee acknowledges that all Trade Secrets & Confidential
Information are owned and shall be continued to be owned solely by Employer.
9.3.6. Restriction on Use of Trade Secrets & Confidential Information. Employee
agrees that his use of Trade Secrets or Confidential Information shall not be used for
any purpose whatsoever or to divulge this information to any person other than
Employer or person to whom Employer has given its consent. Employee shall
promptly notify Employer of any items of Trade Secrets prematurely disclosed.
126.96.36.199. Time periods. The Employee’s obligation not to disclose or use any Trade
Secrets or Confidential Information after termination of employment shall
continue for an indefinite duration unless one of the following events occur:
1. Confidential Information or Trade Secret was in Employee’s possession or
know to him, without an obligation to keep it confidential, before such
information was disclosed to Employee by Employer;
2. Confidential Information or Trade Secret is or becomes public knowledge
through a source other than Employee and through no fault of Employee;
3. Confidential Information or Trade Secret is or becomes lawfully available
to Employee from a source other than Employer; or
4. Employee is compelled to disclose Confidential Information or Trade
Secret by a governmental process.
9.3.4 Surrender Upon Termination. Upon termination of his employment with Employer for
any reason, Employee will promptly surrender to Employer all originals and copies of all
information considered Trade Secrets or Confidential Information herein, and other
materials in his possession or control which contain Trade Secrets or Confidential
9.3.5 Prohibition against Unfair Competition. At any time after the termination of his
employment with Employer for any reason, Employee will not engage in competition
with Employer while making use of the Trade Secrets or Confidential Information of
9.3.6 Hardship on Employee: Employee further acknowledges that: (1) In the event his
employment with employer terminates for any reason, he or she will be able to earn a
livelihood without violating the foregoing restrictions; and (2) his ability to earn a
livelihood without violating these restrictions is a material condition to his employment
9.3.7 Remedies for Breach of Covenants:
If Employee breaches, or threaten to commit a breach of any of the Covenants herein,
the Employer will have the following rights and remedies, each of which rights and
remedies will be independent of the other and severally enforceable, and all of its rights
and remedies will be in addition to, and not in lieu of, any other rights and remedies
available to the Employer under law or in equity:
(a) The right and remedy to have the these covenants specifically enforced by any court
having equity jurisdiction, all without the need to post a bond or any other security or to
prove any amount of actual damage or that money damages would not provide an
adequate remedy, it being acknowledged and agreed that any such breach or threatened
breach will cause irreparable injury to the Employer and that monetary damages will not
provide an adequate remedy to the Employer; and
(b) The right and remedy to require Employee (Employee) to account for and pay over to
the Employer all compensation, profits, monies, accruals, increments or other benefits
derived or received by me or any associated party deriving such benefits as a result of
any such breach of the these Covenants; and (ii) to indemnify the Employer against any
other losses, damages (including special and consequential damages), costs and
expenses, including actual attorneys fees and court costs, which may be incurred by it
and which result from or arise out of any such breach or threatened breach of the these
9. ARTICLE 10. MEDIATION AND ARBITRATION
Employee and Employer desire to arbitrate “major breaches” on the terms and conditions set
forth below, in order to gain the benefits of a speedy, impartial dispute-resolution procedure.
Employee and Employer agree to the following:
9.1. Mediation: The parties agree that any major breaches defined in Article 7 between them
arising under this Agreement shall be settled first by a meeting of the parties attempting
to confer and resolve the dispute in a good faith manner. If the parties cannot resolve
their dispute after conferring, any party may require the other to submit the matter to
non-binding mediation, utilizing the services of an impartial professional mediator
approved by both parties. Mediation shall be conducted according to the terms set forth
in the Employment Manual.
The arbitration shall be conducted on a confidential basis under the Commercial
9.3. The parties agree to bring the matter to arbitration if:
By mutual agreement of the parties, they can elect to begin with arbitration.
If the parties cannot come to an agreement following mediation, they will submit
the matter to binding arbitration.
1. Required Notice of Claims and Statute of Limitations. Employee
may initiate arbitration by providing a written notice pursuant to the notice
requirement set forth in Article 12 to the President of Employer. The notice shall
identify and describe the nature of all claims asserted and the facts upon which such
claims are based. The written notice shall be served or mailed within the applicable
statute of limitations period set forth by federal or state law
2. Arbitration Procedures. After demand for arbitration has been
made by serving written notice under the terms of Section 1 of this Arbitration
Agreement, the party demanding arbitration shall file a demand for arbitration with
American Arbitration Association (''AAA''). Except as otherwise provided in this
Arbitration Agreement, the arbitration will be conducted according to the then
applicable arbitration rules of AAA for the arbitration of employment disputes.
3. Discovery. Discovery shall be allowed and conducted pursuant to
the then applicable arbitration rules of AAA for the arbitration of employment
4. Choice of Law. The arbitrator shall apply the substantive law (and
the law of remedies, if applicable) of the State of Illinois, or federal law, or both, as
applicable to the claim(s) asserted. The arbitrator shall have authority to resolve
any dispute relating to the interpretation, applicability, enforceability or formation
of this Arbitration Agreement, including any claim that all or any part of this
Arbitration Agreement is void or voidable.
5. Summary Judgment. Either party may file a motion for summary
judgment with the arbitrator. The arbitrator is entitled to resolve some or all of the
asserted claims through such a motion. The standards to be applied by the arbitrator
in ruling on a motion for summary judgment shall be the applicable laws as
specified in Section 7 of this Arbitration Agreement.
6. Arbitration Decision. The arbitrator's decision will be final and
binding. The arbitrator shall issue a written arbitration decision revealing the
essential findings and conclusions upon which the decision and/or award is based.
A party's right to appeal the decision is limited to grounds provided under
applicable federal or state law.
7. Place of Arbitration. The arbitration will be at a mutually
convenient location, which must be within thirty (30) miles of Employee's last
employment location with Employer. If the parties cannot agree upon a location,
then the arbitration will be held at AAA's office nearest to Employee's last
employment location with Employer.
8. Consideration. Employer's offer to employ Employee and the
promises by Employer and Employee to arbitrate differences, rather than litigate
them before courts or other bodies, provide consideration for each other.
9. Enforcement of Arbitration Agreement. Should either party file a
court action concerning, or refuse to arbitrate, a claim which is subject to
arbitration under this Arbitration Agreement, the other party shall be entitled to
recover its costs and reasonable attorneys' fees incurred in enforcing this
Arbitration Agreement in court.
10. Requirements for Modification or Revocation. This Arbitration
Agreement shall survive the termination of Employee's employment. It can only be
revoked or modified by a writing signed by the President of Employer and
Employee that specifically states an intent to revoke or modify this Arbitration
11. Waiver of Jury Trial/Exclusive Remedy. EMPLOYEE AND
EMPLOYER WAIVE ANY CONSTITUTIONAL OR STATUTORY RIGHT TO
HAVE ANY DISPUTE BETWEEN THEM COVERED BY THE TERMS OF
THIS ARBITRATION AGREEMENT DECIDED BY A COURT OF LAW
AND/OR BY A JURY IN A COURT.
10. ARTICLE 11. INDEMNIFICATION
10.1. Employee agrees to indemnify and hold harmless the Employer and each of the
Employer’s directors, officers, employees, affiliates, and agents from and against any
and all causes of action, suits, debts, costs, expenses (including attorney fees), liabilities,
claims, or demands, of whatever nature or kind, in law or in equity, arising from any
action taken or failure to act by Employee or by any agent of Employee in connection
with the performance by Employee of the services hereunder. This indemnity shall
continue notwithstanding the termination of this agreement.
11. ARTICLE 12. GENERAL PROVISIONS
11.1. Advice of Counsel: The Executive acknowledges that he has consulted with legal
counsel of his choosing concerning the terms of this Agreement prior to executing this
Agreement. The parties acknowledge that they are entering into this Agreement freely
and voluntarily, with full understanding of the terms of the Agreement. Interpretation of
the terms of this Agreement shall not be construed for or against either party on the basis
of the identity of the party who drafted the provision in question.
11.2. Assignments: The rights and duties of Employer and Employee under this
agreement shall not be assignable by either party except that this agreement and all the
right under this agreement may be assigned by employer to any corporation or other
business entity that succeeds to all or substantially all of the business of Employer
through merger, consolidation, corporate reorganization, or by acquisition of all or
substantially all of the assets of Employer and which assumes Employer’s obligations
under this agreement.
11.3. Choice of Law: This agreement shall be subject to and governed by the law of
Illinois, irrespective without regard to conflicts of laws principles, unless and to the
extent preempted by the laws of the United States of America. Any action for
enforcement of any arbitration award rendered or to compel arbitration pursuant to
Article 9 shall be brought in the state or federal courts of Illinois.
11.4. Duty to Disclose: Employee agrees to promptly disclose in writing to Employer
all discoveries, developments, designs, code, ideas, innovations, improvements, trade
secrets, processes, techniques, know-how, and data (whether or not patentable or
registrable under copyright or similar statutes) made, written, conceived, reduced to
practice or learned by Employee (either alone or jointly with others) that are related to or
useful in Employer’s business or that result from tasks assigned to Employee by
Employer, or from the use of facilities owned, leased, or otherwise acquired by
11.5. Effective Date: This Agreement shall become effective automatically on the date
first above written.
11.6. Entire Agreement: This Agreement constitutes the entire agreement of the
parties and supersedes all prior negotiations, commitments, representations, and
undertakings of the parties with respect to the subject matter hereof. Except for those
modifications permitted to be made unilaterally by the Employer hereunder, this
Agreement may no be modified or waived except by written instrument signed by both
11.7. Force Majeure: Employer shall not be liable for any loss, damage, delay or
failure to perform in whole or in part result from causes beyond Employer's control,
including, but not limited to, fires, strikes, insurrections, riots, embargoes, shortages in
supplies, delays in transportation, or requirements of any governmental authority.
Furthermore, in no event shall Employer be liable for consequential damages.
11.8. Interpretation: Headings are used for convenience only and do not affect the
meaning construction of any provision hereof. All references herein to the masculine,
feminine, neuter, singular, or plural, as the context requires.
11.9. Litigation and Attorney’s Fees: In the event of any litigation between the parties
hereto in connection with this Agreement or to enforce any provisions or rights
hereunder, the unsuccessful party to such litigation will pay to the successful party
therein all costs and expenses. Expenses and attorneys' fees shall be included as a part of
any judgment rendered in such action in addition to any other relief to which the
successful party may be entitled.
11.10. Modification; Amendments of Contract: No modification, waiver, amendment,
or addition to any of the provisions of this Agreement shall be valid unless made in
writing and signed by both parties.
11.11. No attachment: Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment encumbrance, charge, pledge, or hypothecation or to execution, attachment,
levy, or similar process of assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and of no effect.
11.12. Notices: All notices, requests, demands, and other communications to be given to
Employee shall be in writing and shall be sufficiently given if and when mailed in the
United States by registered or certified mail to Employee at his last known residence
address. Any notice to be given to Employer shall be sent by registered or certified mail
to Employer at its offices at 316 S. Plymouth Ct., Chicago, Illinois. Either party may
change the address to which notices are to be sent by notifying the other party in writing
as set forth in this Agreement. If mailed as provided in this Agreement, notice shall be
deemed to have been given as of the date of mailing.
11.13. Relationships: Nothing contained in this Agreement shall be deemed to
constitute either a party a partner or joint venturer of the other party for any purpose.
The invalidity or unenforceability of any provision, paragraph, or
subparagraph of this Agreement, shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
Each provision, paragraph, and sub-paragraph of this Agreement is
separable from ever other provision, paragraph, and sub-paragraph and
constitutes a separate and distinct provision.
11.15. Waiver of Rights and Cumulative Rights: If in one or more instances either
arty fails to insist that the other party perform any of the terms of this Agreement, this
failure shall not be construed as a waiver by party of any past, present, or future right
granted under this Agreement; the obligations of both parties under this Agreement shall
continue in full force and effect. The remedies hereunder are cumulative to any other
rights or remedies which may be granted by law.
The Employer Represents and warrants to Employee as follows:
o That Employer is duly organized, validly existing, and in good
standing under the laws of Illinois; and
o This agreement has been duly authorized, executed, and delivered
by the Employer.
The Employee Represents and Warrants to Employee as follows:
o The Employee has full legal capacity to enter into this Agreement
o The execution, delivery, and performance by the Employee of this
Agreement will not conflict with or result in a breach of any of the
terms, conditions, or provisions of, or constitute (with due notice
or lapse of time or both) a default under, any agreement or
instrument to which the Employee is a party or by which he is
IN WITNESS WHEREOF, the Employer and the Employee, having read and fully understood
each of the foregoing provisions, have executed this Agreement as of the date first above written.
Dated: April 1, 2008
GRIEVANCE PROCEDURE (Exhibit B)
It is the policy of the Employer that all employees should:
1. Be permitted to have any grievances in relation to their employment dealt with promptly
and fairly by an appropriate manager.
2. Have the right to appeal to a more senior manager against a decision made in respect of
3. Have the right to be accompanied by a work colleague of their own choice (provided that
the presence of such colleague does not prejudice the hearing or where such colleague
may have a conflict of interest). If the person proposed by the employee is unable to
attend the meeting at the scheduled time, the employee will have the right to propose an
alternative time provided that it is both reasonable and falls within 5 days of the date
originally proposed for the meeting.
The aim of this Procedure is to settle any grievances raised in a fair and timely manner.
The main stages are:
1. It is envisaged that the majority of routine grievances can be resolved on an informal
basis. Therefore, the grievance should first be discussed with the employee’s immediate
manager who will investigate the matter in an attempt to resolve the issue on an informal
2. If it is not appropriate to raise the matter informally, or if the employee does not receive a
satisfactory outcome, the grievance should be made in writing to the [Human Resources
Manager] setting out full details.
3. The [Human Resources Manager] will arrange for the grievance to be investigated and
will arrange for a hearing to be conducted by an appropriate manager. The hearing will
normally be held within [ten] working days of receipt of the written grievance, although
this may need to be extended depending on the length of the investigation and the
availability of the appropriate manager.
4. Employees must take all reasonable steps to attend disciplinary meetings. However, the
employee must notify the Employer forthwith if they are unable to attend a meeting and a
re-scheduled meeting will be arranged within (usually) 5 days of the date originally
proposed for the meeting.
5. During the hearing, the person employing the employee may consult with the employee,
and address the hearing, but may not answer question on the employee’s behalf.
6. Following the hearing, a written response will be given to the employee, normally within
[five] working days.
7. If the employee is unsatisfied with the response, he or she may appeal in writing to the
[Human Resources Manager] setting out full details. The [Human Resources Manager]
will arrange for a further hearing to be conducted by a more senior manager than the
manager responsible for the original decision. Their decision will be final and there is no
further appeal from this decision.
8. Following the hearing, a written response will be given to the employee, normally within
[five] working days.
9. If the employee wishes to lodge a grievance after their employment has ended, the
Employer and the employee may either go through the hearing and appeals part of the
Procedure, or the parties can agree to deal with matters on the basis of a written grievance
and response (without a hearing). The parties will discuss whichever option is easiest at
1. At all times the Procedure will be carried out in confidence and any documents produced
in connection with the implementation of the Procedure will remain confidential.
2. In the event that it is not possible to deal with the matter in accordance with the
timescales set out above, the employee will be informed of this at the earliest opportunity.
3. This Grievance Procedure is intended only as a statement of policy and management
guidelines. It does not form part of individual contracts of employment or otherwise
have contractual or other legal effect. The Employer reserves the right not to follow this
Procedure where it considers it appropriate to do so.
1. Where it is the employee’s performance that is in issue, this will usually be dealt
with in accordance with the Employer’s Performance Procedure (unless the
unsatisfactory performance is such that the Employer considers that it would be more
appropriately dealt with under this Procedure). See Exhibit A which is attached hereto
and incorporated herein by reference,.
2. No disciplinary action will be taken against an employee until the matter has been
fully investigated. The investigation will be completed as soon as is practicable in the
3. Employees will normally receive such advance written notice of a disciplinary
meeting as is reasonably practicable in the circumstances. This will include, where
appropriate, the receipt by an employee of documents, or information in any other form,
which will be referred to by the Employer at the disciplinary meeting.
4. In appropriate circumstances the Employer reserves the right to suspend an
employee while carrying out its investigation, in which case the employee will receive
full pay and benefits for the duration of their suspension.
5. At each stage of the Procedure, the employee will be informed of the nature of the
complaint against them and shall have an opportunity to state their case before a decision
6. Employees must take all reasonable steps to attend disciplinary meetings. However,
the employee must notify the Employer forthwith if they are unable to attend a meeting
and a re-scheduled meeting will be arranged within (usually) 5 days of the date originally
proposed for the meeting.
7. Employees may be accompanied at disciplinary meetings, and any appeal, if they
wish, by a work colleague of their choice (provided that presence of such colleague does
not prejudice the hearing or where such colleague may have a conflict of interest), or a
suitably qualified trade union official.. If the person proposed by the employee is unable
to attend the meeting at the scheduled time, the employee will have the right to propose
an alternative time provided that it is both reasonable and falls within 5 days of the date
originally proposed for the meeting. During the meeting, the person employing the
employee may consult with the employee, and address the meeting, but may not answer
questions on the employee’s behalf.
8. Where appropriate, help and guidance will be given to the employee to enable him
to achieve the required standards of conduct and/or attendance.
9. Warnings will normally give details of the complaint(s), the improvement(s)
required and timescale, as well as informing the employee of the consequences of failure
to improve conduct to acceptable standards.
10. At each stage of the Procedure, the Employer will inform the employee of his rights
to appeal against the disciplinary penalty imposed. Should any new evidence emerge
during the appeal, the employee will be given an opportunity to comment on this before
the final decision is taken.
American Jurisprudence Legal Forms 2d Database updated February 2008
o Chapter 14. Agency IV. Sales Agency Agreements A. In General § 14:93. Sales
agency agreement—Minimum performance standard
o Chapter 99. Employment Contracts D. Additional Provisions §148:50—
Termination of Employment.
o Chapter 99. Employment Contracts D. Additional Provisions §99:244—
Representations and warranties—of Employee.
o Chapter 99. Employment Contracts D. Additional Provisions §99:150—Remedies
o Chapter 99. Employment Contracts D. Additional Provisions §99:234—
Midwest Transaction Guide—Business and Communication Law & Forms
o Chapter 5-49. s. 49.120
Nichols Cyclopedia of Legal Forms Annotated—
o Chapter 51. Covenants—Research and Drafting Aids— §3.2626
o Chapter 69. Miscellaneous Other Provisions in Employment Contracts—§4.2636
Employment and Forms and Policies 5th Edition Issue 0 (2006) s. 1-126.
o Termination of Employment s. 9-43.
Oberdorfer, Daniel and Rothstein, Mark A. 24A West’s Legal Forms, Employment
Agreements, Forms §2.46 (3d. Ed.).
Kitch, Paul R., Employee Non-compete and Non-disclosure Restrictive Covenants: A
Summary of Illinois Law Governing Non-compete Restrictive Covenants, with
Suggestions to Employers for Protecting Sensitive Information, Illinois Bar Journal,
Chapter 5: Drafting Covenants Not to Compete
Stim, Richard and Stephen Fishman, Nondisclosure Agreements: Protect Your Trade
Secrets & More, Nolo, 2001.
Warren’s Forms of Agreements, Chapter 81: Confidentiality & Non-competition
Agreements—§81.4—Agreements for Maintenance of Confidentiality by Specific Types
of Persons: Complete Forms.