EXHIBIT 10.53
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into
as of July 1, 1994 (the "Effective Date"), between Miller Building
Systems, Inc., a Delaware corporation (the "Company") and Edward
Craig (the "Employee").
RECITALS
A. The Company's primary business is manufacturing and
distributing factory built buildings having various commercial,
residential, governmental, and telecommunication applications and
uses (the "Business").
B. The Company desires to hire the employee as its Chief
Executive Officer and Vice Chairman of the Board of Directors, and
the Employee desires to perform such services for the Company.
CLAUSES
In consideration of the foregoing, and the covenants, duties,
rights and obligations set forth below, the parties agree as
follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
1.1 Duties. Subject to the terms and conditions of this
Agreement, the Company employs the Employee as its Chief Executive
Officer and Vice Chairman of the Board, located in Elkhart,
Indiana, to perform the usual duties of such offices as described
in the Company's by-laws. The Employee accepts such employment
with the Company. The Employee shall devote his exclusive and
full-time attention and best efforts to the Company's Business as
is necessary for him to perform his duties.
1.2 Term.
(a) Scheduled Term. The term of the Employee's employment
under this Agreement shall be for a period of two (2) years,
commencing on July 1, 1994, and continuing through June 30, 1996
(the "Term"), unless terminated sooner for "Cause" under subsection
1.2(b) below.
(b) Termination for Cause. The Company shall have the right,
at any time during the Term of this Agreement, to terminate the
Employee's employment under this Agreement without prior notice, if
such termination is for "Cause". For purposes of this Agreement,
"Cause" shall mean dishonesty, fraud, conviction of a felony or of
any crime involving moral turpitude, willful refusal to perform the
material duties under this Agreement, gross dereliction or gross
neglect of duty, or material breach of the restrictive covenants
set forth in Section 6 of this Agreement.
ARTICLE 2
COMPENSATION
2.1 Base Salary. In consideration of the services to be
rendered by the Employee to the Company under this Agreement, the
Company shall pay the Employee an annual base salary (the "Base
Salary") in the amount of one hundred thirty thousand dollars
($130,000). The Company shall pay the Base Salary to the Employee
in equal installments in accordance with the Company's standard
payroll practices, less all applicable payroll, FICA, withholding
and other taxes.
2.2 Incentive Bonus. In addition to all other compensation
payable to the Employee under this Agreement, for each fiscal year
during the Term, the Company shall pay a bonus (the "Bonus") to the
Employee, predicated on the Company's consolidated publicly
reported pre-tax profits generated from continuing operations (and
excluding non-recurring gains, profits and losses) ("Pre-Tax
Profits"), as shown on the audited financial statements prepared by
the Company's independent certified public accountants. Such
determination of Pre-Tax Profits shall be final, conclusive and
binding upon the parties. The Bonus shall be computed each fiscal
year as follows:
(a) If Pre-Tax Profits are between $0 and $500,000, the
Employee shall receive no Bonus.
(b) The Employee shall receive a Bonus of: one percent (1%)
of the excess amount of Pre-Tax Profits over $500,000 up to
$1,000,000; plus two percent (2%) of the excess amount of Pre-Tax
Profits over $1,000,000 up to $1,500,000; plus three percent (3%)
of the excess amount of Pre-Tax Profits over $1,500,000 up to
$2,000,000; plus four percent (4%) of the excess amount of Pre-Tax
Profits over $2,000,000 up to $3,000,000; plus five percent (5%) of
the excess amount of Pre-Tax Profits over $3,000,000.
The Bonus awarded to the Employee shall be paid within
seventy-five (75) days after the end of each fiscal year.
2.3 Expense Reimbursement. The Company shall reimburse the
Employee for those out-of-pocket expenses the Employee incurs while
performing his obligations under this Agreement, including without
limitation a car allowance for the use of his car in the
performance of his duties as an employee of the Company, which: (i)
are reasonable; (ii) conform with all applicable policies of the
Company; and (iii) are evidenced by appropriate documentation.
2.4 Benefit Plans. During the Term of this Agreement, the
Company shall provide the Employee with all medical and life,
including accidental death and dismemberment coverage, insurance
coverage under the Company's benefit programs or plans of any type
or nature which the Company has in effect from time to time, in
accordance with the provisions of such programs or plans. In
addition, the Employee shall be included in any other benefit
programs awarded to senior executives of the Company.
2.5 Vacation. The Employee shall be entitled to vacation in
accordance with the Company's vacation policy for senior executives
and shall be eligible, as of the effective date of this Agreement,
to four (4) weeks of paid vacation.
2.6 Moving and Temporary Housing. The Company shall
reimburse the Employee for those out-of-pocket expenses the
Employee incurs in connection with: (i) moving from his current
residence to Elkhart, Indiana, and (ii) temporary housing in
Elkhart, Indiana for a period not to exceed the earlier of six (6)
months or upon the Employee obtaining a permanent residence.
ARTICLE 3
CERTAIN STOCK MATTERS
3.1 Treasury Stock. The Employee shall purchase fifty
thousand dollars ($50,000) of the Company's treasury stock at its
June 28, 1994 price of $3.25 per share and shall make full payment
to the Company for such shares prior to August 15, 1994. The
Company shall promptly register such shares with the Securities and
Exchange Commission.
3.2 Option Plan. The Company will issue to the Employee
stock options covering a total of 170,000 shares of the Company's
stock pursuant to a Company Stock Option Agreement. The terms of
such options shall be substantially as follows:
(a) The Employee shall have the option to purchase the first
50,000 shares at an exercise price which shall be equal to $3.50
per share;
(b) The Employee shall have the right to purchase the next
70,000 shares at an exercise price which shall be equal to $4.50
per share; and
(c) The Employee shall have the right to purchase the last
50,000 shares at an exercise price which shall be equal to $6.00
per share.
The vesting of the foregoing shares shall be as follows: (i)
the first 25,000 shares shall vest as of the Effective Date; (ii)
the next 40,000 shares shall vest twelve (12) months from the
Effective Date; (iii) the next 55,000 shares shall vest twenty-four
(24) months from the Effective Date and (iv) the remaining 50,000
shares shall vest thirty-six (36) months from the Effective Date.
All vesting shall accelerate upon the sale of the Company or of
substantially all of the Company's assets.
ARTICLE 4
DISABILITY
4.1 Disability. If the Employee becomes disabled during the
Term, this Agreement shall terminate; provided, however, that the
Employee shall continue to be compensated at his then existing Base
Salary for a period of six (6) months after inception of the
Employee's "Disability" (as that term is defined below) or the
expiration of the Term, whichever is earlier. For purposes of this
Agreement, "Disability" shall mean that the Employee shall, because
of a mental or physical condition that has existed for a period of
at least thirty (30) consecutive days, be incapable of
satisfactorily discharging his regular duties as required under
this Agreement. The determination, from time to time, of whether
the Employee has become disabled or is no longer disabled, shall be
made by agreement of the parties, or if no agreement can be
reached, the Employee shall, upon ten (10) days written notice from
the Company, choose a physician and the Company shall likewise
choose a physician, and each such physician shall, within five (5)
days thereafter, agree on the appointment of a third physician who
shall examine the Employee and determine from said examination if
he has a Disability. The decision of such physician shall be
binding on all parties. The physician so chosen shall be a
licensed physician in the State of Indiana.
ARTICLE 5
DEATH
5.1 Death. If the Employee dies during the Term, this
Agreement shall terminate; provided, however, that the Employee's
estate, or designated beneficiary, shall be paid his then existing
monthly Base Salary for a period of six (6) months from the date of
his death, or the balance of the Term, whichever is earlier.
ARTICLE 6
RESTRICTIVE COVENANTS
6.1 Confidentiality. The Employee acknowledges that during
the course of his association and employment with the Company, he
will be in contact with suppliers and customers of the Company and
will have access to trade secrets and other confidential and
proprietary information with respect to the business and affairs of
the Company and its affiliates and their respective operations,
including without limitation, their properties, research and
development, accounts, books and records, sales, know-how,
techniques, profits, products, customer lists, requirements,
suppliers, cost data, memoranda, devices, processes, methods,
procedures, formulas, contract prices, pricing and other corporate
activities (collectively, "Confidential Information"). Recognizing
that the disclosure or improper use of such Confidential
Information will cause serious and irreparable injury to the
Company, the Employee agrees that he will not at any time, directly
or indirectly, disclose Confidential Information to any third party
or otherwise use Confidential Information for his own benefit or
the benefit of others unless authorized by the Company.
The restrictions set forth in this paragraph shall not apply
to information known to the general public or reasonably
ascertainable through general public knowledge.
6.2 Non-Competition. The Employee agrees that during the
term of his employment with the Company and for a period of twelve
(12) months following the termination of such employment, he will
not, directly or indirectly, alone or in association with others,
either as a principal, agent, owner, shareholder, officer,
director, partner, employee, investor, consultant, manager or in
any other capacity, divert, take away, solicit or interfere with
any of the customers, accounts or employees of the Company or its
affiliates existing as of the Effective Date or thereafter acquired
by the Company or its affiliates during the Term.
6.3 Damages.
(a) Money Damages. If the Employee breaches the restrictive
covenants contained in this Agreement, the Employee shall pay the
Company's actual, direct, indirect and consequential damages which
arise from or are associated with such breach.
(b) Continuing Nature of Damages. The Employee acknowledges
that upon breaching the restrictive covenants contained in this
Agreement, the Employee will cause damages of an irreparable and
continuing nature to the Company, for which money damages will not
provide adequate relief. Therefore, the Employee agrees that in
addition to money damages, the Company is also entitled to obtain
an injunction (including but not limited to a temporary restraining
order) for the remainder of the period specified in the restrictive
covenant which the Employee breached. The Company shall have the
right to obtain such injunctive relief without having to post any
bond or prove any specific damages.
6.4 Cumulative Remedies. The remedies contained in this
Agreement are in addition to and not to the exclusion of any other
remedies whether specified in this Agreement, available at law, in
equity or otherwise.
6.5 Survival of Covenants. The Employee's duties and
obligations under this Agreement shall survive the termination of
this Agreement or any of its provisions.
6.6 Return of Material. Upon the termination of the
Employee's employment with the Company for any reason, with or
without Cause, the Employee immediately shall deliver to the
Company all documents, instruments and/or electronic, magnetic or
other media which in any way contain any information involving the
Confidential Information, or other information, materials,
equipment or items of the Company. The Employee shall not retain
any copies of the preceding.
ARTICLE 7
GENERAL
7.1 Termination of Agreement. This Agreement shall terminate
pursuant to Sections 1.2(b), 4.1 or 5.1, or upon the execution of
any instrument which both the parties sign that specifically
terminates this Agreement.
Nothing contained in this Section shall affect or impair any
rights or obligations which arise prior to or at the time this
Agreement terminates, or which may arise due to any event which
causes this Agreement to terminate.
7.2 Notices. All notices concerning this Agreement shall be
given in writing, as follows: (i) by actual delivery of the notice
into the hands of the party entitled to receive it, in which case
such notice shall be effective upon such delivery; (ii) by mailing
such notice by registered or certified mail, return receipt
requested, in which case the notice shall be deemed given four (4)
days from the date of its mailing; (iii) by Federal Express or any
other overnight carrier, in which case the notice shall be deemed
to be given on the date next succeeding the date of its
transmission; or (iv) by Facsimile, in which case the notice shall
be deemed given as of the date it is sent.
All notices which concern this Agreement shall be addressed as
follows:
If to the Company: If to the Employee:
Miller Building Systems, Inc. Edward Craig
58120 County Road 3 South _________________________
Elkhart, IN 46517 _________________________
Attn.: Ronald Chez
with a copy to:
Jeffrey C. Rubenstein
Much, Shelist, Freed,
Denenberg & Ament, P.C.
200 N. LaSalle St.
Suite 2100
Chicago, IL 60601-1095
7.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company and its respective successors
and assigns and the Employee and his respective heirs, personal
representatives and assigns.
7.4 Complete Understanding. This Agreement constitutes the
complete understanding between the parties. No alteration or
modification of any of this Agreement's provisions shall be valid
unless made in writing and signed by the parties to this Agreement.
7.5 Applicable Law. The laws of the State of Indiana shall
govern all aspects of this Agreement, irrespective of the fact that
one or more of the parties now is or may become a resident of a
different state, or that the Company relocates its principal office
outside the State of Indiana.
7.6 Descriptive Headings. All section headings, titles and
subtitles are inserted in this Agreement for the convenience of
reference only, and are to be ignored in any construction of this
Agreement's provisions.
7.7 Severability. If a court of competent jurisdiction rules
that any one or more of this Agreement's provisions are invalid,
illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any of this
Agreement's other provisions, and this Agreement shall be construed
as if it had never contained such invalid, illegal or unenforceable
provision.
7.8 Prior Agreements Superseded. This Agreement supersedes
any prior understandings, written agreements or oral arrangements
among the parties respecting the subject matter of this Agreement.
The parties have executed this Agreement as of the Effective
Date.
THE EMPLOYEE: THE COMPANY:
Miller Building Systems, Inc.,
a Delaware corporation
\Edward Craig By: \Ronald Chez
Edward Craig, Individually Ronald Chez, Chairman of
the Board