EXHIBIT 10.54
MILLER BUILDING SYSTEMS, INC.
AGREEMENT
THIS AGREEMENT, made as of this 9th day of September, 1994, by
and between Ronald L. Chez (hereinafter called "Chez") and Miller
Building Systems, Inc., a Delaware corporation (hereinafter called
the "Company");
WITNESSETH:
WHEREAS, Chez has recently served the Company as its Chairman
of the Board of Directors; and
WHEREAS, both Chez and the Company, based on circumstances
which changed subsequent to the meeting of the Board of Directors
of the Company on June 30, 1994, believed that their separate
interests were best served if such service were terminated upon the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, it is agreed as follows:
1. The service of Chez as Chairman of the Board of Directors
of the Company (as well as his services, if any, for or in behalf
of the Company in all other capacities, whether as officer, agent,
representative or otherwise) terminated as of August 11, 1994; it
being understood and agreed, however, that the service of Chez as
a member of the Board of Directors of the Company, as the chairman
of its executive committee and as a member of its nominating
committee were not terminated as of such date.
2. The Company as partial compensation for such services
described in paragraph 1 hereof has paid to Chez (by way of wire
transfer to Ronald L. Chez, Inc., a wholly-owned corporation of
Chez) the sum of $29,000.00, receipt whereof is hereby
acknowledged.
3. The Company as further compensation for such services and
for the termination described in paragraph 1 hereof and for all
compensation pursuant to the "Terms of Ronald Chez's Position as
the Chairman of the Board of Miller Building Company, Inc.", as
approved by the Company's Board of Directors on June 30, 1994,
hereby grants to Chez options to purchase Common Stock, par value
$0.01 per share, of the Company, as follows:
Number of Shares
of Common Stock Exercise
Subject to Option Price
(A) 25,000 $3.50
(B) 25,000 $3.50
(C) 15,000 $4.50,
all such options (i) to be granted and fully vested under the
Company's 1994 stock option plan, (ii) not to be qualified
incentive options under Section 422A of the Internal Revenue Code,
as amended, (iii) as to the option covering 25,000 shares of Common
Stock referred to in clause (A) of the foregoing table, to be
exercised at any time and from time to time in whole or in part
during the period from and after the date hereof until July 1,
1999, and, as to the options covering the 40,000 shares of Common
Stock referred to in clauses (B) and (C) of the foregoing table, to
be exercised at any time and from time to time in whole or in part
during the period from and after June 30, 1995 until July 1, 1999,
(iv) as to the options covering the 40,000 shares of Common Stock
referred to in clauses (B) and (C) of the foregoing table, to
become null and void to the extent unexercised immediately as of
the occurrence of a "Termination Event" (as hereinafter defined),
and (v) to be evidenced by a stock option agreement, dated the date
of this Agreement, in form similar to the Company's standard form
of stock option agreement with such changes thereto as shall be
necessary to evidence the parties' agreement with respect thereto
as set forth in this paragraph 3 and paragraph 5 hereof.
4. The Company will slate Chez at the Company's 1994 Annual
Meeting of Stockholders as a nominee for election to one three year
term as a member of the Company's Board of Directors.
5. During the period from the date hereof until July 1,
1995, neither Chez nor any Affiliate or Associate (as those terms
are defined in Rule 405 under the Securities Act of 1933) of Chez
(regardless of whether such person or entity is an Affiliate or
Associate on the date hereof) will (i) make, or in any way
participate, directly or indirectly, in any "solicitation" of
"proxies" to vote (as such terms are used in the proxy rules of the
Securities and Exchange Commission), or solicit any person or
entity with respect to the voting of any voting securities of the
Company, (ii) form, join or in any way participate in any "group"
within the meaning of Section 13(d)(3) of the Securities Exchange
Act of 1934 with respect to any voting securities of the Company,
or (iii) other than solely in Chez's capacity as a member of the
Company's Board of Directors, act, alone or in concert with others,
directly or indirectly, to seek to control the management, board of
directors or policies of the Company (the occurrence of any event
covered by any of the foregoing clauses (i) through (iii), but only
if such event is "hostile" within the meaning of the definition set
forth in the following sentence, being herein called a "Termination
Event"). For the purposes of the foregoing sentence the word
"hostile" shall mean any event or series of events which may fall
within the scope of any of the aforementioned clauses (i) through
(iii) of the foregoing sentence, other than communications by Chez
to any member or members of the Board of Directors of the Company,
which the Board of Directors of the Company in good faith by
resolution within a reasonable time determines to be materially
adverse to the best interests of the Company and its stockholders;
provided, however, if Chez shall in advance notify (in person, by
telephonic means or in writing) the Chairman of the Board of
Directors of the Company or the President of the Company of any
event or series of events which may fall within the scope of any of
the aforementioned clauses (i) through (iii) of the foregoing
sentence and which Chez proposes to effectuate or commence to
effectuate within the following 20 days and if such Chairman or
President shall in writing take a "no objection" position with
respect thereto within 72 hours thereafter, then the Board of
Directors of the Company may not thereafter resolve such event or
series of events to be materially adverse to the best interests of
the Company and its stockholders within the meaning of this
sentence. No resolution of the Board of Directors pursuant to the
foregoing sentence shall in any manner preclude the Company from
asserting in any judicial proceeding any right or remedy which the
Company may have against Chez for any event or series of events
which may be resolved to be "hostile" as aforesaid.
6. All representations, warranties and covenants contained
herein shall survive the execution of this Agreement and the
consummation of the transactions contemplated hereby.
7. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective heirs, personal
representatives, successors, assigns, Affiliates and Associates,
but shall not be assignable by any party hereto without the prior
written consent of the other party hereto.
8. Except as set forth in the last sentence of paragraph 5
hereof, any notice or other communication provided for herein or
given hereunder to a party hereto shall be in writing and shall be
given by delivery, by telex, telecopier or by mail (registered or
certified mail, postage prepaid, return receipt requested) to the
respective parties as follows:
If to the Company:
Miller Building Systems, Inc.
58120 County Road 3 South
P.O. Box 1283
Elkhart, Indiana 46515
Attention: Chief Executive Officer
If to Chez:
Ronald L. Chez
c/o Ronald L. Chez, Inc.
555 West Madison Street
Suite 3508, Tower 1
Chicago, IL 60661
or to such other address with respect to a party as such party
shall notify the other in writing.
9. No party may waive any of the terms or conditions of this
Agreement, except by a duly signed writing referring to the
specific provision to be waived.
10. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
11. The parties hereto acknowledge that, except as set forth
in this Agreement, there are no written or oral understandings,
arrangements or agreements between them or pursuant to which they
have any rights or obligations.
12. This agreement constitutes the entire agreement, and
supersedes all other and prior agreements, arrangements and
understandings, both written and oral, among the parties hereto.
13. This Agreement may be executed in three counterparts,
each of which shall be deemed an original but both of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on the day and year first
above written.
MILLER BUILDING SYSTEMS, INC.
By:\Edward C. Craig
Title: President and Chief
Executive Officer
By:\Steven F. Graver
Title: Chairman of the
Board of Directors
/Ronald L. Chez
RONALD L. CHEZ