EXHIBIT 10.57
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of February
29, 1996 (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, governmental, and
telecommunication applications and uses (the "Business").
B. The Company desires to hire the employee as its Chief Executive
Officer and President, 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 President,
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 three (3) years, commencing on July 1,
1996, and continuing through June 30, 1999 (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 seventy-five thousand dollars ($175,000). 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 part of the Executive Bonus Program.
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 and immediate family 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 four (4) weeks
of paid vacation.
Article 3
Certain Stock Matters
3.1 Option Plan. The company will issue to the Employee stock
options to purchase a total of 150,000 shares of the Company s stock
pursuant to the Company's 1994 Option Plan (the "1996 Stock Options").
The 1996 Stock Options shall be in addition to the stock options to
purchase 50,000 shares at an exercise price of $3.50 per share which were
granted to the Employee pursuant to Mr. Craig s employment agreement
dated July 3, 1994 (the "1994 Agreement") and have previously vested.
The terms of the 1996 Stock Options shall be substantially as follows:
(a) The Employee shall have the right to purchase 150,000
shares at an exercise price which shall be equal to $4.00 per share. The
vesting of the foregoing shares shall be as follows:
(1) 15,000 shares will vest as of February 29,1996.
(2) 55,000 shares shall vest as of July 1,1996.
(3) 50,000 shares shall vest as of July 1,1997.
(4) 30,000 shares shall vest as of July 1,1998.
All outstanding 1996 Stock Options shall immediately vest upon
the sale of the Company or of substantially all of the Company s assets or
upon a change in control of the Company. A "change in control of the
Company" shall be deemed to have occurred on the date that a change in
control of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended, occurs.
(b) The 1996 Stock Options shall replace the stock options
to purchase (i) 15,000 shares at $4.50 per share which vested July 3,1995;
(ii) 55,000 shares at $4.50 per share vesting July 3,1996; and (iii) 50,000
shares at $6.00 per share vesting July 3, 1997 (the "1994 Stock Options")
previously granted to the Employee pursuant to the 1994 Agreement. The
Employee hereby agrees that the 1994 stock options are terminated and are
no longer outstanding.
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 twelve (12) 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 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 also 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 twelve (12) 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, customers 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 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 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 with out
having to post any bond or prove any specific damages.
6.3 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.
6.4 Survival of Covenants. The Employees' duties and obligations
under this Agreement shall survive the termination of this Agreement or
any of its provisions.
6.5 Return of Material. Upon the termination of the Employees
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 Miller Building Systems, Inc.
Elkhart, IN 46517 58120 County Road 3 South
Attn.: Steven F.Graver Elkhart, IN 46517
with a copy to:
Jeffrey C. Rubenstein
Much, Shelist, Freed,
Denenberg, Ament, & Rubenstein, 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 and 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 Agreements 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 effect 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 those Agreement.
The parties have executed this Agreement as of the Effective date.
The Employee: The Company:
Miller Building Systems, Inc.
a Delaware Corporation
\Edward C. Craig \Steven F. Graver
PRES/CEO Chariman of the Board