EXHIBIT 10.5
KEY EMPLOYEE
SALE BONUS AGREEMENT
THIS SALE BONUS AGREEMENT (this "Agreement"), is made and entered into as
of ________ __, ____, between DEI HOLDINGS, INC. (the "Company") and
_____________________ (the "Key Employee").
Recitals
A. The parties are entering into this Agreement for the purpose of
providing the Key Employee an incentive to increase the value of the Company by
granting him the right to receive a percentage of the proceeds received by the
Company's shareholders as a result of certain liquidity events.
B. The parties' intent is that upon specified liquidity events, the Company
pay to the Key Employee a percentage of the proceeds distributable to common
holders (not warrant holders) as follows:
(i) the Key Employee shall not receive any percentage of the net
proceeds necessary to "repay" a "base equity amount" equal to the
sum of (x) $89,750,000 (i.e., the sum of the agreed upon equity
value of the Company following its June 2004 recapitalization
plus the $6.0 million of equity contributed to the Company in
September 2004), plus (y) any additional equity contributed after
the date hereof, together with a 12% annual "preferred return" on
such additional equity; and
(ii) the Key Employee shall receive __% of all net proceeds
distributable to common holders in excess of such base equity
amount.
C. Attached as Annex A are certain examples showing the payment due the Key
Employee under various sale scenarios.
Agreement
NOW THEREFORE, intending to be legally bound, the parties hereby agree as
follows.
1. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Employment Agreement. In
addition, the following terms when used in this Agreement have the meanings set
forth below:
(a) "Base Equity Amount" shall mean an amount equal to the sum of (i)
$89,750,000, plus (ii) the Preferential New Equity Amount.
(b) "Net Equity Proceeds" shall mean an amount equal to the remainder
of (i) the Proceeds Available for Distribution to Shareholders, less (ii) the
Base Equity Amount.
(c) "Preferential New Equity Amount" shall mean the dollar amount of
equity contributions to the Company subsequent to the date hereof, which amount
shall increase at a rate of twelve percent (12%) per annum from the date of each
applicable equity issuance through the date of consummation of the Sale Event.
(d) "Proceeds Available for Distribution to Shareholders" shall mean
the total gross proceeds and other consideration actually paid to or received by
the holders of the Company's equity securities (in their capacity as such) other
than holders of the Company's currently outstanding warrants in connection with
a Sale Event and after payment of all debt, all transaction expenses (including
all payments to Xxxxx X. Xxxxxxx under the Company's December 7, 2004 Sale Bonus
Agreement with such executive except the "Third Gain Share Payment" reflected
therein), and all proceeds payment due to
holders of the Company's currently outstanding warrants, including, without
limitation, (i) cash, and (ii) notes, securities and other property. Non-cash
consideration shall be valued as follows: (x) publicly traded securities shall
be valued at the average of their closing prices (as reported in the Wall Street
Journal) for the ten trading days prior to the closing of the Sale Event, and
(y) any other non-cash consideration shall be valued at the fair market value
thereof as determined in good faith by the Board and the Key Employee.
(e) "Sale Event" shall mean:
(i) the sale of all, or substantially all, of DEI's consolidated
assets in any single transaction or series of related transactions; or
(ii) the sale, or series of related sales, of common stock of the
Company or DEI possessing the ordinary voting power (on a fully-diluted basis)
to elect a majority of the board of directors of the Company or the Board, as
the case may be, to an independent third party or a group of affiliated
independent third parties; or
(iii) any merger or consolidation of the Company or DEI with or
into another corporation or other business entity (regardless of which entity is
the surviving corporation) if, after giving effect to such merger or
consolidation, the holders of the Company's or DEI's, as the case may be, voting
securities (on a fully-diluted basis) immediately prior to the merger or
consolidation own voting securities of the surviving or resulting corporation or
other business entity representing less than a majority of the ordinary voting
power to elect directors of the surviving or resulting corporation (on a
fully-diluted basis).
(f) "Trivest Investors" shall mean Trivest Fund II, Ltd., Trivest
Equity Partners II, Ltd., Trivest Principals Fund II, Ltd., Trivest Fund III,
L.P., Trivest Equity Partners III, L.P., Trivest Fund Cayman III, L.P., Trivest
Principals Fund III, L.P., Trivest-DEI Co-Investment Fund, Ltd., and any of
their respective successors and assigns.
2. Sale Bonus. Upon the consummation of any Sale Event, the Company shall
pay (or cause to be paid) to the Key Employee an amount (the "Sale Bonus") equal
to __% of the Net Equity Proceeds.
3. Public Offering. In the event of an initial public offering of equity
securities by the Company or DEI registered under the Securities Act of 1933, as
amended, the Company's Board of Directors (the "Board") shall in good faith
negotiate with the Key Employee to determine a fair compensation arrangement to
compensate Key Employee in accordance with the purpose and intent of this
Agreement.
4. Nature of the Right.
(a) The Key Employee shall have the right to receive a Sale Bonus only
if a Sale Event is consummated (i) while Key Employee is an employee of the
Company or any of its subsidiaries, (ii) if the Key Employee's employment is
terminated without "Cause," within three (3) months of such termination, or
(iii) if the Key Employee's employment by reason of death or permanent
disability, within six (6) months of such termination. For purposes hereof, the
term "Cause" shall mean (i) the failure by the Key Employee to perform his
duties as employee as reasonably requested by the Company's President, as
documented in writing to the Key Employee, (ii) the failure by the Key Employee
to observe all material policies of the Company generally applicable to
executives of the Company, (iii) gross negligence or willful misconduct by the
Key Employee in the performance of his duties, (iv) the commission by the Key
Employee of an act of fraud or embezzlement against the Company or the
conviction of any felony or act involving moral turpitude, (v) material breach
by the Key Employee of his obligations under any contract or agreement with the
Company, (vi) chronic absenteeism, or (vii) substance abuse.
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(b) The Sale Bonus shall be satisfied in the same form of
consideration as is received by the Trivest Investors. If the Trivest Investors
receive a combination of cash and property, the Sale Bonus shall be satisfied in
such forms in the same proportion as is received by the Trivest Investors.
(c) If all or a portion of the consideration payable by reason of a
Sale Event is payable over time or based upon the existence or occurrence of
events in the future, the amount of the Sale Bonus shall be computed based on
the actual consideration received by the Company's equity holders at closing and
the Sale Bonus shall include the right to receive the percentage of the Proceeds
Available for Distribution to Shareholders applied to such future consideration
as and when such consideration is received.
5. Modification to Right. In the event of an extraordinary corporate
transaction, including, by way of example, any material acquisition or
disposition of assets or securities other than in the ordinary course of
business, or any material financing transaction, the Board shall in good faith
review for reasonableness the Sale Bonus formula specified in Section 2 hereof
and shall take such action, if any, as the Board in good xxxxx xxxxx necessary
to adjust such formula in light of the circumstances existing at such time.
6. Term. The Company's obligation to pay the Sale Bonus (or portion
thereof) granted hereunder shall terminate upon the earlier to occur of: (a) the
Key Employee's termination for Cause, death or permanent disability, (b) the Key
Employee's voluntary resignation, (c) three (3) months after the Key Employee's
termination without Cause, or (d) seven years from the date hereof.
7. Non-Transferability. Key Employee's rights under this Agreement may not
be sold, pledged, assigned, hypothecated, gifted, transferred or disposed of in
any manner either voluntarily or involuntarily by operation of law.
8. Withholding. The Company reserves the right to withhold, in accordance
with any applicable laws, from any consideration payable or property
transferable to the Key Employee, any taxes required to be withheld by federal,
state or local law as a result of the entering into this Agreement or the
receipt of cash or property upon a Sale Event. If the amount of any
consideration payable to the Key Employee is insufficient to pay such taxes or
if no consideration is payable to the Key Employee, upon the request of the
Company, the Key Employee shall pay to the Company an amount sufficient for the
Company to satisfy any federal, state or local tax withholding requirements it
may incur, as a result of the entering into of this Agreement or the receipt of
cash or property upon a Sale Event.
9. Employment. This Agreement shall not confer upon the Key Employee any
right to continue in the service of the Company or any subsidiary or limit, in
any respect, the right of the Company or any subsidiary to discharge the Key
Employee at any time, with or without Cause and with or without notice.
10. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of California, without regard to the application of the
principles of conflicts of laws.
11. Amendment. This Agreement may only be amended by a writing signed by
each of the parties hereto.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as of
the date set forth above.
DEI HOLDINGS, INC.
By:
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Xxxxx X. Xxxxxxx,
President
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[KEY EMPLOYEE]
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