EXHIBIT 10.90
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("AGREEMENT") is entered into as of the date
(the "EFFECTIVE DATE") of the consummation of the transactions contemplated by
the Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated as of May 11,
2003, among The Dwyer Group, Inc., a Delaware corporation (the "COMPANY"), TDG
Holding Company, a Delaware corporation ("PARENT"), and TDG Merger Co., a
Delaware corporation and a wholly owned subsidiary of Parent, between the
Company and Michael Bidwell ("EXECUTIVE").
WHEREAS, Executive is presently the Chief Operating Officer of the
Company and has made and is expected to continue to make major contributions to
the profitability, growth and financial strength of the Company.
WHEREAS, Rainbow International Carpet Dyeing and Cleaning Company, a
Texas corporation and wholly-owned subsidiary of the Company, and Executive
currently are parties to an Employment Agreement, effective as of July 24, 1995
(the "PRIOR AGREEMENT"), providing certain benefits, and the Company and
Executive desire to amend and restate the Prior Agreement.
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement, the Company and Executive have agreed to enter into this Agreement
subject to, contingent upon and effective upon the consummation of the
transactions contemplated by the Merger Agreement (the "CLOSING DATE") and to be
bound by the provisions of this Agreement, including, without limitation, the
provisions of paragraph 7 hereof.
WHEREAS, this Agreement shall supercede and completely replace the
Prior Agreement as of the Effective Date.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration (including a Nonqualified Stock
Option Agreement to be entered into as soon as practicable following the Closing
Date, as further described in paragraph 4(c) hereof), the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Certain Definitions. Certain words or phrases used herein with
initial capital letters shall have the meanings set forth in paragraph 8 hereof.
2. Employment. The Company shall employ Executive, and Executive
accepts continued employment with the Company as of the Effective Date, upon the
terms and conditions set forth in this Agreement for the period beginning on the
Effective Date and ending as provided in paragraph 5 hereof (the "EMPLOYMENT
PERIOD").
3. Position and Duties.
(a) During the Employment Period, Executive shall serve
as the Chief Operating Officer of the Company and shall have the normal
duties, responsibilities and authority of an executive serving in such
position, subject to the power of the Chief Executive Officer of the
Company to expand or limit such duties, responsibilities and authority,
either generally or in specific instances; provided, however, that
Executive shall not be assigned any duties which are substantially
inconsistent with the duties and responsibilities in the aggregate
normally associated with Executive's position with the Company,
excluding any isolated or inadvertent action taken in good faith by the
Company.
(b) Executive shall report to the Chief Executive Officer
of the Company.
(c) During the Employment Period, Executive shall devote
Executive's best efforts and Executive's full business time and
attention (except for permitted vacation periods and reasonable periods
of illness or other incapacity) to the business and affairs of the
Company, its subsidiaries and affiliates. Executive shall perform
Executive's duties and responsibilities to the best of Executive's
abilities in a diligent, trustworthy, businesslike and efficient
manner. Executive shall have the discretion to determine Executive's
work schedule which may vary from day to day or week to week provided
that Executive's schedule continues to permit Executive to fulfill
Executive's duties and responsibilities under this Agreement.
(d) Executive shall perform Executive's duties and
responsibilities principally in Waco, Texas.
4. Compensation and Benefits.
(a) Salary. The Company agrees to pay Executive a salary
during the Employment Period in installments based on the Company's
practices as may be in effect from time to time. Executive's initial
salary shall be at the rate of $156,112 per year (the "BASE SALARY").
The Board shall review Executive's salary from time to time and may, in
its sole discretion, increase it; provided, however, that the Base
Salary shall be adjusted upward on January 1, 2004 and on each January
1st thereafter by an amount equal to at least 5% of the Base Salary if
the Company's budgeted goals for the preceding year have been met. If
such goals were not met, the Base Salary shall be adjusted upward by an
amount equal to the Consumer Price Index Percentage (as defined below)
multiplied by the then-current Base Salary. For purposes of this
paragraph 3(a), "Consumer Price Index Percentage" shall mean a
percentage equal to the percentage increase in the Revised Consumer
Price Index for All Urban Consumers (Not Seasonally Adjusted),
South-Size Class A, All Items (1982-84 = 100), published by the Bureau
of Labor Statistics of the United States Department of Labor ("CPIU")
on the date closest to the date of such anniversary over the CPIU
figure published for the corresponding period of the previous year. If
from time to time during the Employment Period and any extension
thereof, the United States Department of Labor, Bureau of Labor
Statistics ceases to maintain the CPIU, such other index or standards
as will most nearly
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accomplish the aim and purpose of said CPIU, as reasonably determined
by the Board of Directors of the Company (the "BOARD"), shall be used
in determining the amount of any such adjustment. Any additional
increase in the Base Salary shall be determined in the sole discretion
of the Board.
(b) Annual Bonus. Executive will be eligible for bonuses
in calendar year 2003 as set forth on Exhibit A attached hereto. For
subsequent calendar years, Executive will be eligible to receive
bonuses (under the Company's annual bonus program and quarterly bonus
program) with a minimum target amount, in the aggregate, of 64% of
Executive's Base Salary (the "TARGET BONUS AMOUNT"), based on the
achievement of specified performance goals (as determined by the
Board), which goals shall be provided to Executive by December 31st of
the preceding calendar year. The annual bonus will be paid to Executive
within 30 days following the completion of the Company's annual
financial audit for the year in which such bonus was earned and any
quarterly bonuses will be paid to Executive within 30 days following
the date on which it is determined that the goals for such quarter have
been achieved.
(c) Stock Options. Upon Parent's adoption of its 2003
Equity and Performance Incentive Plan (the "STOCK OPTION PLAN"), the
Company will adopt the Stock Option Plan, pursuant to which options to
purchase shares of Parent's common stock may be granted to Executive
and other officers of the Company. During the Employment Period,
Executive shall be eligible to receive grants of options under the
Stock Option Plan at the discretion of the Board of Directors of
Parent. Under the terms of the Stock Option Plan, the Board of
Directors of Parent will have the right to amend the Stock Option Plan.
Notwithstanding the foregoing, as soon as practicable following the
Closing Date, the Company will ensure that Parent will grant Executive
an option to purchase a number of shares of common stock equal to the
product of 2.455%, multiplied by the total number of primary shares of
common stock of Parent outstanding immediately after the Closing Date.
Such grant of stock options shall be pursuant to the terms of the
agreement set forth on Exhibit B attached hereto.
(d) Vacation. During the Employment Period, Executive
will accrue paid vacation in accordance with the policy set forth on
Exhibit C attached hereto.
(e) Expense Reimbursement. The Company shall reimburse
Executive for all reasonable expenses incurred by Executive during the
Employment Period in the course of performing Executive's duties under
this Agreement that are consistent with the Company's policies in
effect from time to time with respect to travel, entertainment and
other business expenses, subject to the Company's requirements
applicable generally with respect to reporting and documentation of
such expenses. In addition, the Company shall reimburse Executive for
all cellular phone expenses incurred by Executive during the Employment
Period in the course of performing Executive's duties under this
Agreement, subject to the Company's requirements applicable generally
with respect to reporting and documentation of such expenses.
(f) Standard Executive Benefits Package. Executive shall
be entitled during the Employment Period to participate, on the same
basis as other executives of the
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Company, in the Company's Standard Executive Benefits Package. The
Company's "Standard Executive Benefits Package" means those benefits
(including insurance and other benefits, but excluding, except as
hereinafter provided in subparagraph 6(b), any severance pay program or
policy of the Company) for which substantially all of the executives of
the Company are from time to time generally eligible, as determined
from time to time by the Board. Additionally, during the Employment
Period, the Company shall continue to pay for the costs associated with
medical insurance coverage under the Company's medical plan for
Executive's eligible dependents.
(g) Long-term Disability Insurance. Commencing on January
1, 2004 and for the remainder of the Employment Period, the Executive
shall be eligible to receive long-term disability coverage under an
insurance policy or policies described in the following sentence that
provides a benefit amount determined at Executive's discretion (subject
to availability under such policy or policies); provided, however,
that, with respect to the annual premium cost of such coverage, (i) the
Company shall be obligated to pay the lesser of (A) 50% of such cost or
(B) $5,000 and (ii) Executive shall be obligated to pay the portion of
the cost of the premium that exceeds the amount paid by the Company
pursuant to (i) above. Coverage described in the preceding sentence
shall be provided under an insurance policy or policies obtained by the
Company and the terms and conditions of such coverage shall be as set
forth in such insurance policy or policies.
(h) Indemnification. With respect to Executive's acts or
failures to act during the Employment Period in Executive's capacity as
a director, officer, employee or agent of the Company, Executive shall
be entitled to indemnification (including reasonable attorney's fees)
from the Company to the extent permitted by law, and to liability
insurance coverage, on the same basis as other directors and officers
of the Company.
5. Employment Period.
(a) Except as hereinafter provided, the Employment Period
shall continue until, and shall end upon, the third anniversary of the
Effective Date.
(b) On the third anniversary of the Effective Date and on
each anniversary thereafter, unless the Employment Period shall have
ended pursuant to subparagraph 5(c) below or the Company shall have
given Executive thirty (30) days written notice that the extension
provision in this sentence shall not apply, the Employment Period shall
be extended for an additional year.
(c) Notwithstanding (a) or (b) above, the Employment
Period shall end early upon the first to occur of any of the following
events:
(i) Executive's death;
(ii) the Company's termination of Executive's
employment due to Permanent Disability;
(iii) a Termination For Cause;
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(iv) a Termination Without Cause;
(v) a Termination By Executive For Good Reason;
or
(vi) a Voluntary Termination.
6. Post-Employment Period Payments.
(a) At the end of the Employment Period for any reason,
Executive shall cease to have any rights to salary, equity awards,
expense reimbursements or other benefits and Executive shall be
entitled to (i) any Base Salary which has accrued but is unpaid, any
reimbursable expenses which have been incurred but are unpaid, and any
unexpired vacation days which have accrued but are unused, as of the
end of the Employment Period, (ii) any option rights or plan benefits
which by their terms extend beyond termination of Executive's
employment (but only to the extent provided in any option theretofore
granted to Executive or any other benefit plan in which Executive has
participated as an employee of the Company and excluding, except as
hereinafter provided in subparagraph 6(b), any severance pay program or
policy of the Company) and (iii) any benefits to which Executive is
entitled under Part 6 of Subtitle B of Title I of the Employee
Retirement Income Security Act of 1974, as amended ("COBRA"). In
addition, Executive shall be entitled to the additional benefits and
amounts described in subparagraph 6(b), in the circumstance described
in such subparagraph.
(b) If the Employment Period ends early pursuant to
paragraph 5 on account of a Termination Without Cause or a Termination
By Executive For Good Reason, the Company shall continue to pay
Executive his Base Salary at the time of such termination for a period
of:
(i) eighteen (18) months following such
termination if the termination occurs prior to the third
anniversary of the Effective Date, and
(ii) one (1) year following such termination if
the termination occurs on or after the third anniversary of
the Effective Date.
In addition, the Company shall make a lump sum payment to Executive in
an amount equal to the product of Executive's Target Bonus Amount,
multiplied by a fraction, the numerator of which is the number of days
which have elapsed from January 1 of the calendar year in which the
Termination Without Cause or a Termination By Executive For Good Reason
occurs through the date of such termination, and the denominator of
which is 365. Further, Executive shall be entitled to continue to
participate, at the Company's cost, in the Company's medical, dental,
disability and life insurance plans until the earlier of (A)
Executive's eligibility for any such coverage under another employer's
or any other medical, dental or life insurance plans or (B) one (1)
year following the termination of Executive's employment. Executive
agrees that the period of coverage under such plans shall count against
such plans' obligation to provide continuation coverage pursuant to
COBRA. It is expressly understood that the Company's payment
obligations and Executive's participation rights under this
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subparagraph (b) shall cease in the event Executive breaches any of the
agreements in paragraph 7 hereof.
(c) Executive shall not be required to mitigate the
amount of any payment or benefit provided for in this Agreement by
seeking other employment or otherwise.
7. Competitive Activity; Confidentiality; Nonsolicitation.
(a) Acknowledgements and Agreements. Executive hereby
acknowledges and agrees that in the performance of Executive's duties
to the Company during the Employment Period, Executive will be brought
into frequent contact, either in person, by telephone or through the
mails, with existing and potential customers of the Company throughout
the United States. Executive also agrees that trade secrets and
confidential information of the Company, more fully described in
subparagraph 7(j) of this Agreement, gained by Executive during
Executive's association with the Company, have been developed by the
Company through substantial expenditures of time, effort and money and
constitute valuable and unique property of the Company. Executive
further understands and agrees that the foregoing makes it necessary
for the protection of the business of the Company that Executive not
compete with the Company during the Employment Period and not compete
with the Company for a reasonable period thereafter, as further
provided in the following subsections.
(b) Covenants During the Employment Period. During the
Employment Period, Executive will not compete with the Company anywhere
within the United States. In accordance with this restriction, but
without limiting its terms, during the Employment Period, Executive
will not:
(i) enter into or engage in any business which
competes with the Company's business;
(ii) solicit customers, business, patronage or
orders for, or sell, any products and services in competition
with, or for any business that competes with, the Company's
business;
(iii) divert, entice or otherwise take away any
customers, business, patronage or orders of the Company or
attempt to do so; or
(iv) promote or assist, financially or otherwise,
any person, firm, association, partnership, corporation or
other entity engaged in any business which competes with the
Company's business.
Notwithstanding the foregoing, nothing in this Paragraph 7(b)
shall prohibit Executive from continuing his activities with DreamMaker
and/or World Wide Supply, as provided for under the respective service
agreements between the Company and DreamMaker and the Company and World
Wide Supply, provided neither DreamMaker nor World Wide Supply are
engaging in any business which competes with the Company's business.
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(c) Covenants Following Termination. For a period of two
(2) years following the termination of Executive's employment,
Executive will not:
(i) enter into or engage in any business which
competes with the Company's business within the Restricted
Territory (as defined in subparagraph 7(g));
(ii) solicit customers, business, patronage or
orders for, or sell, any products and services in competition
with, or for any business, wherever located, that competes
with, the Company's business within the Restricted Territory;
(iii) divert, entice or otherwise take away any
customers, business, patronage or orders of the Company within
the Restricted Territory, or attempt to do so; or
(iv) promote or assist, financially or otherwise,
any person, firm, association, partnership, corporation or
other entity engaged in any business which competes with the
Company's business within the Restricted Territory.
(d) Indirect Competition. For the purposes of
subparagraphs 7(b) and 7(c), inclusive, but without limitation thereof,
Executive will be in violation thereof if Executive engages in any or
all of the activities set forth therein directly as an individual on
Executive's own account, or indirectly as a partner, joint venturer,
employee, agent, salesperson, consultant, officer and/or director of
any firm, association, partnership, corporation or other entity, or as
a stockholder of any corporation in which Executive or Executive's
spouse, child or parent owns, directly or indirectly, individually or
in the aggregate, more than five percent (5%) of the outstanding stock.
(e) The Company. For the purposes of this paragraph 7,
the Company shall include any and all direct and indirect subsidiary,
parent, affiliated, or related companies of the Company.
(f) The Company's Business. For the purposes of
subparagraphs 7(b), 7(c), 7(k) and 7(l), the Company's business is
defined to be plumbing and sewer repair, installation, removal and
maintenance; electrical repair, installation, removal and maintenance;
carpet cleaning, installation, removal and restoration; appliance
repair, installation, removal and maintenance; HVAC repair,
installation, removal and maintenance; water and fire restoration
services; and glass replacement and repair, as further described in any
and all manufacturing, marketing and sales manuals and materials of the
Company as the same may be altered, amended, supplemented or otherwise
changed from time to time, or of any other products or services
substantially similar to or readily suitable for any such described
products and services.
(g) Restricted Territory. For the purposes of
subparagraph 7(c), the Restricted Territory shall be defined as and
limited to:
(i) the geographic area(s) within a one hundred
(100) mile radius of any and all Company and franchisee
location(s) in, to, or for which Executive
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worked, to which Executive was assigned or had any
responsibility (either direct or supervisory) at the time of
termination of Executive's employment and at any time during
the two (2) year period prior to such termination; and
(ii) all of the specific customer accounts,
whether within or outside of the geographic area described in
(i) above, with which Executive had any contact or for which
Executive had any responsibility (either direct or
supervisory) at the time of termination of Executive's
employment and at any time during the two (2) year period
prior to such termination. For purposes of this paragraph 7,
"customers" shall include all franchisees of the Company and
all national accounts of the Company.
(h) Extension. If it shall be judicially determined that
Executive has violated any of Executive's obligations under
subparagraph 7(c), then the period applicable to each obligation that
Executive shall have been determined to have violated shall
automatically be extended by a period of time equal in length to the
period during which such violation(s) occurred.
(i) Non-Solicitation. For a period of ten (10) years
following Executive's termination of employment, Executive will not
directly or indirectly solicit or induce or attempt to solicit or
induce any employee(s), sales representative(s), agent(s) or
consultant(s) of the Company and/or of its parent, or its other
subsidiary, affiliated or related companies to terminate their
employment, representation or other association with the Company and/or
its parent or its other subsidiary, affiliated or related companies.
(j) Further Covenants.
(i) Executive will keep in strict confidence,
and will not, directly or indirectly, at any time during or
after Executive's employment with the Company, disclose,
furnish, disseminate, make available or, except in the course
of performing Executive's duties of employment, use any trade
secrets or confidential business and technical information of
the Company or its customers or vendors, including without
limitation as to when or how Executive may have acquired such
information. Such confidential information shall include,
without limitation, the Company's unique selling,
manufacturing and servicing methods and business techniques,
training, service and business manuals, promotional materials,
training courses and other training and instructional
materials, vendor and product information, customer and
prospective customer lists, other customer and prospective
customer information and other business information. Executive
specifically acknowledges that all such confidential
information, whether reduced to writing, maintained on any
form of electronic media, or maintained in Executive's mind or
memory and whether compiled by the Company, and/or Executive,
derives independent economic value from not being readily
known to or ascertainable by proper means by others who can
obtain economic value from its disclosure or use, that
reasonable efforts have been made by the Company to maintain
the secrecy of such information, that such information is the
sole property of the Company and that any retention and use of
such information by
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Executive during Executive's employment with the Company
(except in the course of performing Executive's duties and
obligations to the Company) or after the termination of
Executive's employment shall constitute a misappropriation of
the Company's trade secrets.
(ii) Executive agrees that upon termination of
Executive's employment with the Company, for any reason,
Executive shall return to the Company, in good condition, all
property of the Company, including without limitation, the
originals and all copies of any materials which contain,
reflect, summarize, describe, analyze or refer or relate to
any items of information listed in subparagraph 7(j)(i) of
this Agreement. In the event that such items are not so
returned, the Company will have the right to charge Executive
for all reasonable damages, costs, attorneys' fees and other
expenses incurred in searching for, taking, removing and/or
recovering such property.
(iii) Notwithstanding the foregoing Executive
shall continue his current practice of providing quotes and/or
writing articles for various publications, provided that
Executive does not breach any of the provisions of this
Paragraph 7(j).
(k) Discoveries and Inventions; Work Made for Hire.
(i) Executive hereby assigns and agrees to
assign to the Company, its successors, assigns or nominees,
all of Executive's rights to any discoveries, inventions and
improvements, whether patentable or not, made, conceived or
suggested, either solely or jointly with others, by Executive
while in the Company's employ, whether in the course of
Executive's employment with the use of the Company's time,
material or facilities or that is in any way within or related
to the existing or contemplated scope of the Company's
business. Any discovery, invention or improvement relating to
any subject matter with which the Company was concerned during
Executive's employment and made, conceived or suggested by
Executive, either solely or jointly with others, within one
(1) year following termination of Executive's employment under
this Agreement or any successor agreements shall be
irrebuttably presumed to have been so made, conceived or
suggested in the course of such employment with the use of the
Company's time, materials or facilities. Upon request by the
Company with respect to any such discoveries, inventions or
improvements, Executive will execute and deliver to the
Company, at any time during or after Executive's employment,
all appropriate documents for use in applying for, obtaining
and maintaining such domestic and foreign patents as the
Company may desire, and all proper assignments therefor, when
so requested, at the expense of the Company, but without
further or additional consideration.
(ii) Executive acknowledges that, to the extent
permitted by law, all work papers, reports, documentation,
drawings, photographs, negatives, tapes and masters therefor,
prototypes and other materials (hereinafter, "items"),
including without limitation, any and all such items generated
and maintained on any form
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of electronic media, generated by Executive during Executive's
employment with the Company shall be considered a "work made
for hire" and that ownership of any and all copyrights in any
and all such items shall belong to the Company. The item will
recognize the Company as the copyright owner, will contain all
proper copyright notices, e.g., "(creation date) The Dwyer
Group, Inc., All Rights Reserved," and will be in condition to
be registered or otherwise placed in compliance with
registration or other statutory requirements throughout the
world.
(l) Communication of Contents of Agreement. During
Executive's employment and for two (2) years thereafter, Executive will
communicate the contents of this Agreement to any person, firm,
association, partnership, corporation or other entity which Executive
intends to be employed by, associated with, or represent and which is
engaged in a business that is competitive to the business of the
Company.
(m) Relief. Executive acknowledges and agrees that the
remedy at law available to the Company for breach of any of Executive's
obligations under this Agreement would be inadequate. Executive
therefore agrees that, in addition to any other rights or remedies that
the Company may have at law or in equity, temporary and permanent
injunctive relief may be granted in any proceeding which may be brought
to enforce any provision contained in subparagraphs 7(b), 7(c), 7(i),
7(j), 7(k) and 7(l) of this Agreement, without the necessity of proof
of actual damage.
(n) Reasonableness. Executive acknowledges that
Executive's obligations under this paragraph 7 are reasonable in the
context of the nature of the Company's business and the competitive
injuries likely to be sustained by the Company if Executive was to
violate such obligations. Executive further acknowledges that this
Agreement is made in consideration of, and is adequately supported by
the agreement of the Company to perform its obligations under this
Agreement and by other consideration, which Executive acknowledges
constitutes good, valuable and sufficient consideration.
8. Definitions.
(a) "PERMANENT DISABILITY" means that Executive, because
of accident, disability, or physical or mental illness, is incapable of
performing Executive's duties to the Company or any subsidiary.
Notwithstanding the foregoing, Executive will be deemed to have become
incapable of performing Executive's duties to the Company or any
subsidiary, if, and only if, Executive is incapable of so doing for (i)
a continuous period of 120 days and remains so incapable at the end of
such 120 day period or (ii) periods amounting in the aggregate to 120
days within any one period of 365 days and remains so incapable at the
end of such aggregate period of 120 days.
(b) "TERMINATION BY EXECUTIVE FOR GOOD REASON" means
Executive's termination of Executive's Employment as result of (i) the
relocation of Executive's principal place of business outside of Waco,
Texas, (ii) a reduction in the Base Salary or Target Bonus Amount or
any applicable commission opportunity, (iii) a substantial diminution
in Executive's duties and responsibilities, excluding any isolated or
inadvertent action taken in good faith by the Company or (iv) the
Company's failure to
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pay the Base Salary, and in any case, the Company fails to remedy such
matter within 30 days of receiving written notice from Executive of his
intention to terminate his employment based thereon.
(c) "TERMINATION FOR CAUSE" means the termination by the
Company or any subsidiary of Executive's employment with the Company or
any subsidiary as a result of (i) Executive's conviction of a felony or
a crime involving fraud, (ii) Executive's willful misconduct or fraud
against the Company or any subsidiary or affiliate of the Company,
(iii) Executive's insubordination or failure to follow the directions
of the Board or the Chief Executive Officer of the Company, which is
not cured within fourteen (14) days after written notice thereof to
Executive, (iv) Executive's violation of paragraph 7 of this Agreement,
or (v) any other breach by Executive of this Agreement or any other
agreement with the Company or any subsidiary which is material and
which is not cured within thirty days after written notice thereof to
Executive.
(d) "TERMINATION WITHOUT CAUSE" means the termination by
the Company or any subsidiary of Executive's employment with the
Company or any subsidiary for any reason other than a termination for
Permanent Disability or a Termination for Cause and shall include the
Company's giving notice that the extension provision in the first
sentence of subparagraph 5(b) shall no longer apply.
(e) "VOLUNTARY TERMINATION" means Executive's termination
of Executive's employment with the Company or any subsidiary for any
reason, other than a Termination By Executive For Good Reason.
9. Executive Representations. Executive represents and warrants
to the Company that (a) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which Executive is bound, (b)
Executive is not a party to or bound by any employment agreement, noncompete
agreement or confidentiality agreement with any other person or entity and (c)
upon the execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of Executive, enforceable in
accordance with its terms.
10. Survival. Subject to any limits on applicability contained
therein, paragraph 7 hereof shall survive and continue in full force in
accordance with their terms notwithstanding any termination of the Employment
Period.
11. Withholding of Taxes. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or other taxes as
the Company is required to withhold pursuant to any applicable law, regulation
or ruling.
12. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent by reputable overnight
carrier or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
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Notices to Executive:
Michael Bidwell
831 Stillwater Drive
Waco, Texas 76708
Notices to the Company:
The Dwyer Group, Inc.
1010 North University Parks Drive
Waco, Texas 76707
Fax: (254) 745-2590
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered,
sent or mailed.
13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
14. Prevailing Party's Litigation Expenses. In the event of
litigation between the Company and Executive related to this Agreement, the
non-prevailing party shall reimburse the prevailing party for any costs and
expenses (including, without limitation, attorneys' fees) reasonably incurred by
the prevailing party in connection therewith.
15. Complete Agreement. This Agreement embodies the complete
agreement and understanding between the parties with respect to the subject
matter hereof and effective as of its date supersedes and preempts any prior
understandings, agreements or representations by or between the parties, written
or oral (including, without limitation, the Prior Agreement), which may have
related to the subject matter hereof in any way.
16. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed to be an original and both of which
taken together shall constitute one and the same agreement.
17. Successors and Assigns. This Agreement shall bind and inure to
the benefit of and be enforceable by Executive, the Company and their respective
heirs, executors, personal representatives, successors and assigns, except that
neither party may assign any rights or delegate any obligations hereunder
without the prior written consent of the other party. Executive hereby consents
to the assignment by the Company of all of its rights and obligations hereunder
to any successor to the Company by merger or consolidation or purchase of all or
substantially
12
all of the Company's assets, provided such transferee or successor assumes the
liabilities of the Company hereunder.
18. Choice of Law. This Agreement shall be governed by the
internal law, and not the laws of conflicts, of the State of Texas.
19. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
20. Operation of Agreement. This Agreement will be binding
immediately upon its execution, but, notwithstanding any provision of this
Agreement to the contrary, this Agreement will not become effective or operative
(and neither party will have any obligation hereunder) until the date on which
the transactions contemplated by the Merger Agreement are consummated.
[SIGNATURES ON FOLLOWING PAGE]
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
The Dwyer Group, Inc.
By:________________________________________
Name:
Title:
___________________________________________
Michael Bidwell
14
EXHIBIT A
Executive's Compensation & Bonus Opportunities for 2003*
(3) Mr. Rooter
(2) DG Bonus EBGAT Bonus
(1) Base Salary Plan Opportunity Opportunity Total
- ------------------------------------------------------------------------------------------------
2003 $ 156,112.00 $ 15,000.00 $ 85,150.00 $256,262.00
- ------------------------------------------------------------------------------------------------
(1) Includes salary received in lieu of reverse split dollar life insurance and
car allowance
(2) Executive shall receive a bonus based on pre-tax income. Opportunity amount
listed is based on a specified percentage of budgeted pre-tax income.
(3) Executive shall receive a quarterly bonus in an amount equal to 2% of Mr.
Rooter EBGAT (each, a "QUARTERLY EBGAT BONUS"). Three quarters of each Quarterly
EBGAT Bonus shall be paid to Executive as soon as practicable following the
applicable quarter. The remaining one quarter of each Quarterly EBGAT Bonus
shall be paid to Executive as soon as practicable following the end of the year
in which such Quarterly EBGAT Bonus was earned. Opportunity amount listed is
based on 2% of budgeted Mr. Rooter EBGAT of $4,257,462.
EBGAT = EARNINGS BEFORE GENERAL & ADMINISTRATIVE EXPENSES & TAXES
In addition, an annual Mr. Rooter EBGAT bonus shall be paid as follows:
If actual Mr. Rooter EBGAT is equal to or exceeds $4,257,462 by 10%, but less
than 20%, Executive shall receive 5% of such excess EBGAT.
If actual Mr. Rooter EBGAT is equal to or exceeds $4,257,462 by 20%, but less
than 30%, Executive shall receive 10% of such excess EBGAT.
If actual Mr. Rooter EBGAT is equal to or exceeds $4,257,462 by 30% or more
Executive shall receive 15% of such excess EBGAT.
*Notwithstanding any other provision of this Exhibit A to the contrary, all
bonus opportunity amounts listed above are estimates based on the achievement of
target performance goals, and are included for illustrative purposes only. The
actual amount of such bonuses and commissions will be determined based on the
actual performance levels achieved, and as a result may increase or decrease
from the amounts listed above.
Employment Agreement - Bidwell
1
EXHIBIT B
TDG HOLDING COMPANY
NONQUALIFIED STOCK OPTION AGREEMENT
This AGREEMENT (this "AGREEMENT") is made as of _________ __, 2003, by
and between TDG Holding Company, a Delaware corporation (the "COMPANY"), and
Michael Bidwell ("OPTIONEE"). As a condition precedent to the Company's grant of
the Option (as defined in Section 2 of this Agreement) to Optionee, Optionee is
executing and delivering a counterpart of the Stockholders Agreement between the
Company and certain of its stockholders, dated the date hereof, as the same may
be amended from time to time (the "STOCKHOLDERS AGREEMENT") and thereby agrees
to be bound by the Stockholders Agreement as an "EMPLOYEE INVESTOR" thereunder.
1. CERTAIN DEFINITIONS. Capitalized terms used, but not otherwise
defined, in this Agreement will have the meanings given to such terms in the
Company's 2003 Equity and Performance Incentive Plan (the "Plan"). As used in
this Agreement:
(a) "MANAGEMENT OPTIONEE" means each of the following
individuals: Dina Dwyer-Owens, Deborah Wright-Hood, James M. Johnston, Jr.,
Michael Bidwell, Robert E. Tunmire, Thomas J. Buckley, David Bethea and Michael
Hawkins.
(b) "PERMANENT DISABILITY" means that Optionee, because
of accident, disability, or physical or mental illness, is incapable of
performing Optionee's duties to the Company or any Subsidiary. Notwithstanding
the foregoing, Optionee will be deemed to have become incapable of performing
Optionee's duties to the Company or any Subsidiary, if, and only if, Optionee is
incapable of so doing for (i) a continuous period of 120 days and remains so
incapable at the end of such 120 day period or (ii) periods amounting in the
aggregate to 120 days within any one period of 365 days and remains so incapable
at the end of such aggregate period of 120 days.
(c) "TERMINATION BY EXECUTIVE FOR GOOD REASON" shall have
the meaning set forth in the Employment Agreement between Optionee and The Dwyer
Group, Inc., a Delaware corporation, dated May 11, 2003.
(d) "TERMINATION FOR CAUSE" means the termination by the
Company or any Subsidiary of Optionee's employment with the Company or any
Subsidiary as a result of (i) Optionee's conviction of a felony or a crime
involving fraud, (ii) Optionee's willful misconduct or fraud against the Company
or any Subsidiary or affiliate of the Company, (iii) Optionee's insubordination
or failure to follow the directions of the Board or the Chief Executive Officer
of the Company, which is not cured within fourteen (14) days after written
notice thereof to Optionee, (iv) Optionee's violation of (A) Optionee's
confidentiality obligations with respect to the Company's and any Subsidiary's
confidential information, knowledge or data or (B) Optionee's agreement to not
engage in competition, if any, with the Company or any Subsidiary, or (v) any
other breach by Optionee of this Agreement or any other agreement with
Employment Agreement - Bidwell
1
the Company or any Subsidiary which is material and which is not cured within
thirty days after written notice thereof to Optionee.
(e) "TERMINATION WITHOUT CAUSE" means the termination by
the Company or any Subsidiary of Optionee's employment with the Company or any
Subsidiary for any reason other than a termination for Permanent Disability or a
Termination for Cause and shall include the Company's or the Subsidiary's
election not to extend any employment agreement between Optionee and the Company
or any Subsidiary at the end of any employment period.
(f) "VESTED OPTIONS" means each fully vested, unexercised
option, warrant or other right to acquire any shares of Common Stock.
(g) "VOLUNTARY TERMINATION" means Optionee's termination
of Optionee's employment with the Company or any Subsidiary for any reason.
2. GRANT OF STOCK OPTION. Subject to and upon the terms,
conditions, and restrictions set forth in this Agreement and in the Plan, the
Company hereby grants to Optionee an option (the "OPTION") to purchase ______
shares of Common Stock (the "OPTION SHARES"). The Option may be exercised from
time to time in accordance with the terms of this Agreement. Subject to
adjustment as hereinafter provided, (a) one-third of the Option Shares (____
shares) may be purchased pursuant to this Option at a price (the "OPTION PRICE")
of $150.00 per share (the "TRANCHE I OPTION SHARES"), (b) one-third of the
Option Shares (____ shares) may be purchased pursuant to this Option at an
Option Price of $200.00 per share (the "TRANCHE II OPTION SHARES") and (c)
one-third of the Option Shares (____ shares) may be purchased pursuant to this
Option at an Option Price of $225.00 per share (the "TRANCHE III OPTION
SHARES"). The Option is intended to be a nonqualified stock option and shall not
be treated as an "incentive stock option" within the meaning of that term under
Section 422 of the Code, or any successor provision thereto.
3. TERM OF OPTION. The term of the Option shall commence on the
Date of Grant and, unless earlier terminated in accordance with Section 9
hereof, shall expire ten (10) years from the Date of Grant.
4. RIGHT TO EXERCISE. Subject to Section 8 and unless terminated
as hereinafter provided, the Option shall become exercisable with respect to 20%
of the Tranche I Option Shares, 20% of the Tranche II Option Shares and 20% of
the Tranche III Option Shares on each of the first five anniversaries of the
Date of Grant if Optionee shall have remained in the continuous employ of the
Company or any Subsidiary as of each such date. Optionee shall be entitled to
acquire a fraction of one Option Share pursuant to this Option. Optionee shall
be entitled to the privileges of ownership with respect to Option Shares
purchased and delivered to Optionee upon the exercise of all or part of this
Option.
5. REPURCHASE OF VESTED OPTIONS OR SHARES.
(a) After the fifth anniversary of the date of this
Agreement, Optionee, at his or her election by giving written notice to the
Company, shall have the option to require the Company, within 30 days of such
notice and subject to Section 5(b), to purchase all (or any portion thereof) of
the Vested Options or Shares (as defined in the Stockholders Agreement) held
2
by such Optionee (i) at a price per Vested Option equal to the Fair Value per
Share (as defined in the Stockholders Agreement) subject thereto, less the
exercise price of the applicable Vested Option and (ii) at a price per Share
equal to the Fair Value per Share; provided, however, that Optionee shall not be
entitled to exercise the rights granted to Optionee under this Section 5(a) with
respect to (x) Vested Options representing in excess of 15% of Optionee's Vested
Options in any calendar year or (y) Shares representing in excess of 15% of
Optionee's Shares in any calendar year; provided, further, that if Optionee
exercises his or her rights pursuant to this Section 5(a) with regard to a
portion of Optionee's Vested Options, Optionee shall exercise such rights with
regard to Tranche I Option Shares, Tranche II Option Shares and Tranche III
Options Shares in equal proportions.
(b) The Company shall not be required to repurchase any
Vested Options or Shares under Section 5(a) if, (i) in the calendar year of any
such notice of repurchase by a Management Optionee, the aggregate value of all
Vested Options and Shares repurchased by the Company exceeds $150,000, or (ii)
in the reasonable good faith judgment of the Board of Directors, such
performance would violate (A) the provisions of the Company's Certificate of
Incorporation, the Company's Bylaws or any instrument relating to any
Indebtedness (as defined in the Stockholders Agreement) of the Company or any
Subsidiary, or (B) any statute, common law doctrine, rule, regulation, decree or
order to which the Company is subject or if the Company is unable to lawfully
obtain through receipt of a dividend from any Subsidiary funds sufficient to
effect such a repurchase. If the provisions of this Section 5(b) limit the
Company's purchase of the Vested Options or Shares, if any, of more than one
Management Optionee, then the Company shall purchase such Vested Options or
Shares, if any, when permitted, based on a pro rated allocation among the
Management Optionees on the basis of the aggregate number of Vested Options or
Shares proposed to be repurchased by the Company pursuant to this Section 5.
With respect to clause (i) above, if any Management Optionee submits a notice of
repurchase that in the aggregate would result in the aggregate value of the
Vested Options or Shares repurchased pursuant to Section 5(a) to exceed the
$150,000 threshold, the Company shall be required to repurchase only that
portion of such Management Optionee's Vested Options or Shares, if any, that
would not result in the $150,000 threshold being exceeded.
6. OPTION NONTRANSFERABLE. Optionee may not transfer or assign
all or any part of the Option other than by will or by the laws of descent and
distribution. This Option may be exercised, during the lifetime of Optionee,
only by Optionee, or in the event of Optionee's legal incapacity, by Optionee's
guardian or legal representative acting on behalf of Optionee in a fiduciary
capacity under state law and court supervision.
7. NOTICE OF EXERCISE; PAYMENT.
(a) To the extent then exercisable, the Option may be
exercised in whole or in part by written notice to the Company stating the
number of Option Shares for which the Option is being exercised and the intended
manner of payment. The notice shall also state whether Optionee is exercising
Tranche I Option Shares, Tranche II Option Shares or Tranche III Option Shares
pursuant to such notice. The date of such notice shall be the exercise date.
Payment equal to the aggregate Option Price of the Option Shares being purchased
pursuant to an exercise of the Option must be tendered in full with the notice
of exercise to the Company in one or both of the following methods as specified
by Optionee in the notice of exercise: (i) cash in the form
3
of currency or check or by wire transfer as directed by the Company, or (ii)
through the surrender to the Company of shares of Common Stock owned by Optionee
for at least six months as valued at their Market Value per Share on the date of
exercise.
(b) As soon as practicable upon the Company's receipt of
Optionee's notice of exercise and payment, the Company shall direct the due
issuance of the Option Shares so purchased.
(c) As a further condition precedent to the exercise of
this Option in whole or in part, Optionee shall comply with all regulations and
the requirements of any regulatory authority having control of, or supervision
over, the issuance of the shares of Common Stock and in connection therewith
shall execute any documents which the Board shall in its sole discretion deem
necessary or advisable.
8. ACCELERATION OF OPTION. The Option granted hereby shall become
immediately exercisable upon the occurrence of a Change of Control if Optionee
is an employee of the Company or any Subsidiary on the date of the consummation
of such Change of Control.
9. TERMINATION OF AGREEMENT. The Agreement and the Option granted
hereby shall terminate automatically and without further notice on the earliest
of the following dates:
(a) One (1) year after Optionee's death if such death
occurs while Optionee is employed by the Company or any Subsidiary; provided,
however, that it shall be a condition to the exercise of the Option in the event
of Optionee's death that the Person exercising the Option shall have agreed in a
form satisfactory to the Company to be bound by the provisions of this Agreement
and the Stockholders Agreement;
(b) One (1) year after Optionee's termination of
employment due to Permanent Disability
(c) One hundred and eighty (180) calendar days after
Optionee's Termination Without Cause or a Termination By Executive For Good
Reason;
(d) Ninety (90) calendar days after Optionee's Voluntary
Termination, if such Voluntary Termination occurs on or after the third
anniversary of the Date of Grant;
(e) The date of Optionee's Termination for Cause or
Voluntary Termination, if such Voluntary Termination occurs prior to the third
anniversary of the Date of Grant; or
(f) Ten (10) years from the Date of Grant.
In the event that Optionee's employment is terminated in the
circumstances described in Section 9(e) hereof, this Agreement shall terminate
at the time of such termination notwithstanding any other provision of this
Agreement and Optionee's option will cease to be exercisable to the extent
exercisable as of such termination and will not be or become exercisable after
such termination. Optionee shall be deemed to be an employee of the Company or
any Subsidiary if on a leave of absence approved by the Board.
4
10. NO EMPLOYMENT CONTRACT. Nothing contained in this Agreement
shall (a) confer upon Optionee any right to be employed by or remain employed by
the Company or any Subsidiary, or (b) limit or affect in any manner the right of
the Company or any Subsidiary to terminate the employment or adjust the
compensation of Optionee.
11. TAXES AND WITHHOLDING. If the Company or any Subsidiary is
required to withhold any federal, state, local or foreign tax in connection with
the exercise of the Option, and the amounts available to the Company or such
Subsidiary for such withholding are insufficient, Optionee must pay the tax or
make provisions that are reasonably satisfactory to the Company for the payment
thereof.
12. COMPLIANCE WITH LAW. The Company shall make reasonable efforts
to comply with all applicable federal and state securities laws; provided,
however, that notwithstanding any other provision of this Agreement, the Option
shall not be exercisable if the exercise thereof would result in a violation of
any such law.
13. ADJUSTMENTS. The Board shall make or provide for such
adjustments in the number of Option Shares covered by this Option, in the Option
Price applicable to such Option, and in the kind of shares covered thereby, as
the Board, in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of Optionee's rights that
otherwise would result from (a) any stock dividend, stock split, combination of
shares, recapitalization, or other change in the capital structure of the
Company, (b) any merger, consolidation, spin-off, split-off, spin-out, split-up,
reorganization, partial or complete liquidation, or other distribution of assets
or issuance of rights or warrants to purchase securities, or (c) any other
corporate transaction or event having an effect similar to any of the foregoing.
In the event of any such transaction or event or upon a Change of Control, the
Board may, but shall not be obligated to, provide in substitution for this
Option such alternative consideration as it may determine to be equitable in the
circumstances and may require in connection therewith the surrender of this
Option.
14. RELATION TO OTHER BENEFITS. Any economic or other benefit to
Optionee under this Agreement shall not be taken into account in determining any
benefits to which Optionee may be entitled under any profit-sharing, retirement
or other benefit or compensation plan maintained by the Company or any
Subsidiary and shall not affect the amount of any life insurance coverage
available to any beneficiary under any life insurance plan covering employees of
the Company or any Subsidiary.
15. AMENDMENTS. Any amendment to the Plan shall be deemed to be an
amendment to this Agreement to the extent that the amendment is applicable
hereto; provided, however, that no amendment shall adversely affect the rights
of Optionee under this Agreement without Optionee's written consent.
16. SEVERABILITY. If one or more of the provisions of this
Agreement is invalidated for any reason by a court of competent jurisdiction,
any provision so invalidated shall be deemed to be separable from the other
provisions hereof, and the remaining provisions hereof shall continue to be
valid and fully enforceable.
5
17. RELATION TO PLAN. This Agreement is subject to the terms and
conditions of the Plan. In the event of any inconsistent provisions between this
Agreement and the Plan, the Plan shall govern. The Board acting pursuant to the
Plan, as constituted from time to time, shall, except as expressly provided
otherwise herein, have the right to determine any questions which arise in
connection with the Option or its exercise.
18. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
inure to the benefit of, and be binding upon, the successors, administrators,
heirs, legal representatives and assigns of Optionee, and the successors and
assigns of the Company.
19. GOVERNING LAW. The interpretation, performance, and
enforcement of this Agreement shall be governed by the laws of the State of
Delaware, without giving effect to the principles of conflict of laws thereof
and all parties, including their successors and assigns, consent to the
jurisdiction of the state and federal courts of Delaware.
20. NOTICES. Any notice to the Company provided for herein shall
be in writing to the Company, marked Attention: Corporate Secretary, and any
notice to Optionee shall be addressed to said Optionee at Optionee's address on
file with the Company at the time of such notice. Except as otherwise provided
herein, any written notice shall be deemed to be duly given if and when
delivered personally or deposited in the United States mail, first class
registered mail, postage and fees prepaid, and addressed as aforesaid. Any party
may change the address to which notices are to be given hereunder by written
notice to the other party as herein specified (provided that for this purpose
any mailed notice shall be deemed given on the third business day following
deposit of the same in the United States mail).
[SIGNATURES ON FOLLOWING PAGE]
6
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer and Optionee has executed
this Agreement, as of the day and year first above written.
TDG HOLDING COMPANY
By:__________________________________
Name:
Title:
_____________________________________
OPTIONEE
Name:
7
EXHIBIT C
Vacation Policy
The Company provides employees with paid time off for vacations and selected
holidays. Vacations and holidays are a time for employees to get out of the work
environment and relieve the normal stress of working.
Vacation time is earned and available at your anniversary date on the following
schedule:
Six Months - - One Week
One year - - Two weeks
Five years - - Three weeks
Ten years - - Four weeks
Twenty years - - Five weeks
Twenty five years - - Six Weeks
Vacation time off must be requested in writing and be approved by management at
least one week in advance. Vacations may be taken as weekly periods or as
individual days or half days with prior departmental approval. Observed holidays
that fall within a scheduled vacation period will not be counted as a vacation
day.
Vacation days earned are available to be taken during your current anniversary
year. Unless you have the written prior consent of the President of the Company,
earned vacation cannot be carried over to the next anniversary year and will be
lost. Each employee must take at least two weeks of earned vacation time off.
Payments will be made in lieu of taking earned vacation time off in excess of
two weeks, upon written request of the employee.
Employees with earned but unused vacation who voluntarily resign after given two
(2) weeks written notice, or who are terminated, will be paid for that earned
but unused vacation time.
C-1