EXHIBIT 10.49
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CALMAR INC.
KEY EMPLOYEE RETENTION AGREEMENT
1. Description and Purpose of the Agreement. This is a Key
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Executive Retention Agreement (the "Agreement") by and between Calmar Inc., a
Delaware corporation (the "Corporation"), and ____________ (the "Participant").
This Agreement is dated as of ____________, 1998. Under this Agreement, the
Participant is granted certain rights upon any Change of Control (as hereinafter
defined) of the Corporation.
2. Purpose of the Agreement. The purpose of this Agreement and of
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the granting of the rights and benefits granted hereunder to the Participant is
to assist the Corporation in retaining the Participant in its employ and thereby
to assist the Corporation in achieving its growth and competitive objectives.
3. Administration. This Agreement shall be administered by the
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Board of Directors of the Corporation.
4. Triggering Events; Change of Control.
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(a) If, the Participant is employed by the Corporation at the
time of a Change of Control and within one year after the Change of Control is
terminated by the Corporation without Cause (a "Triggering Event,"), the
Participant shall be entitled to the payment provided in Section 5 hereof.
(b) Change of Control, as used herein, means: (i) the acquisition
in one or more transactions of beneficial ownership (within the meaning of Rule
13d(3) under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) by (y) any person or entity (other than FS Equity Partners II, L.P., a
California limited partnership ("FSEP") and its affiliates) or (z) any group (as
defined in Rule 13d(3) under the Exchange Act) other than FSEP and its
affiliates of any Voting Stock of the Corporation such that, as a result of such
acquisition, such person, entity or group has the ability to elect, directly or
indirectly, a majority of the members of the Board of Directors of the
Corporation, or (ii) the sale of all or substantially all of the assets of the
Corporation (including within such assets the capital stock of any subsidiary)
and its subsidiaries, in a single transaction or a series of transactions, to
any person or persons. "Voting Stock" as used in this Section 4(b) shall mean
all shares having general voting power to vote in any election of the Board of
Directors of the Corporation.
5. Payments Upon Occurrence of a Triggering Event. Upon the
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occurrence of a Triggering Event with regard to the Participant, the Participant
shall be entitled to receive a lump sum payment equal to the Participant's
annual base salary as in effect immediately prior to the Triggering Event. In
addition, the Participant shall be entitled to be promptly reimbursed in
accordance with the established practices and policies of the Corporation for
all reasonable
expenses actually accrued through the effective date of such termination but not
reimbursed previously by the Corporation.
6. Withholdings, etc. All payments hereunder shall be subject to
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any statutorily required federal and state withholding obligations.
7. Other Termination. Nothing in this Agreement shall require the
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Corporation to continue the Participant's employment with the Corporation prior
to the occurrence of a Triggering Event, nor shall any payment be due hereunder
by reason of the Participant's death or Disability prior to a Triggering Event.
8. Certain Defined Terms.
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(a) Cause. Cause, as used herein, means: (i) fraud,
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embezzlement, gross negligence or other illegal or wrongful conduct engaged in
by the Participant materially detrimental to the business or reputation of the
Corporation; (ii) the conviction of the Participant of a felony; (iii) the
development or pursuit of interests by the Participant materially adverse to the
Corporation; or (iv) the intentional imparting by the Participant of material
confidential information relating to the Corporation or any of its businesses to
a third party, other than in the course of performing his duties to the
Corporation.
(b) Disability. Disability, as used herein, means the
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disability or incapacity of the Participant to perform his duties as the result
of any injury, sickness or physical, mental or emotional condition that
continues for a period of ninety days in any twelve month period or can
reasonably be expected to continue for such period.
9. Attorney's Fees. In the event the Participant is required to
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pursue legal remedies to enforce his rights under this Agreement, and prevails
in such action, the Corporation shall pay the reasonable costs (including
attorney's fees) incurred by the Participant in connection therewith.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
_____________, 1998.
CALMAR INC.
By: ________________________________
Name:__________________________
Title:_________________________
PARTICIPANT:
____________________________________
[NAME]
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