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EXHIBIT (e)(3)
FORM OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), to be effective as of the date and
time a properly executed copy of a Certificate of Merger is duly filed with the
Secretary of State of Delaware in accordance with Section 2.2 of that certain
Agreement and Plan of Merger among Xxxxxx Business Systems, Inc., COA Housing
Group, Inc. (a subsidiary of Coachmen Industries, Inc.) and Xxxxxx Acquisition
Corporation dated as of August __,2000, (the "Effective Date"), is entered into
between Xxxxxx Building Systems, Inc., a Delaware corporation the "Company"),
and _______________ of _______________ ("Employee"). Employee is an executive of
Company, which is anticipated to be acquired by Xxxxxx Acquisition Corporation
on behalf of COA Housing Group, Inc. and Coachmen Industries, Inc., which are
third party beneficiaries of this Agreement. Employee acknowledges that this
Agreement was a material consideration for that acquisition, but for which the
acquisition would not have taken place. Now, therefore, in consideration of the
premises, and for the mutual promises this Agreement contains, and other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties agree to be bound as follows:
1. Employment and Term. Employee will be employed with Coachmen Industries,
Inc. (or any of its subsidiaries, hereinafter collectively referred to as
"Coachmen") for two (2) years from the Effective Date of this Agreement. Unless
Employee consents otherwise in writing, such employment shall be at Employee's
present Company facility; provided, however, that if Coachmen requests that
Employee change his place of employment to another facility and Employee
declines this request, Coachmen shall have the right to terminate Employee if
the position held by Employee at the current location at the time of the
transfer request is no longer available, in which case this Agreement will
terminate. If Coachmen exercises its right to terminate Employee pursuant to
this Section 1, Coachmen will not be required to pay any further payments under
this Agreement. This Agreement will expire on that date unless renewed in
writing or terminated before that time in one of the ways specified below. Any
continued employment of Employee thereafter will be at-will, terminable by
either party at any time, without cause or notice.
2. Compensation. In consideration for the services to be rendered by
Employee hereunder, Coachmen agrees to pay an annual base salary of not less
than $ , payable in the customary installment period as Coachmen shall adopt,
less customary withholdings for all applicable taxes. Such salary shall be
reviewed annually, at the customary times for reviews for employees of Coachmen.
Employee shall be eligible to participate in any Coachmen bonus or incentive
programs for which like employees are eligible. Employee will be eligible for
such benefits as Coachmen shall establish from time to time and for which
Employee is qualified. Nothing in this Agreement or this employment relationship
shall obligate Coachmen to furnish any particular benefit to Employee or prevent
Coachmen from at any time discontinuing or altering an existing benefit or the
qualifying conditions Employee must meet to obtain such benefits, provided such
discontinuation or alteration shall affect all like employees. All compensation
afforded to Employee under this Section 2 shall terminate concurrent with the
termination of this Agreement. Employee shall be promptly reimbursed for all
reasonable and bona fide business-related out-of-pocket expenses he incurs, upon
presentation of the Coachmen's required evidence of expenses in accordance with
Coachmen policy.
3. Covenant not to Compete. As additional consideration for the following
covenant not to compete, Employee shall receive on the Effective Date options to
purchase shares of Coachmen stock under the Coachmen 2000 Omnibus Stock
Incentive Program, as set forth on the attached schedule. Employee agrees that
for the longer of two (2) years from the Effective Date of this Agreement or the
term of this Agreement (and for any extensions of or amendments to this
Agreement), or twelve (12) months after his employment with Coachmen ends, if
the employment ends, either voluntarily or for Cause (as defined herein), on or
before the second anniversary of the Effective Date of this Agreement, Employee
will not directly or indirectly:
A. Render any of the services Employee that Employee provides to
Coachmen during his employment to any person, firm, entity, or other corporation
which, directly or indirectly, competes with Coachmen's business as presently
conducted during Employee's employment with Coachmen (a "Competitive
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Business") within a two hundred (200) mile radius of Elkhart, Indiana, and any
other locations where Coachmen has or may in the future have a permanent
production facility for which Employee performs substantial and continuous
duties.
B. Engage in any Competitive Business for Employee's own account within
the same geographic territory described above.
C. Become associated with or interested in any Competitive Business as
an individual, partner, shareholder, director, officer, principal, agent,
employee, trustee, consultant, advisor, or in any other relationship or capacity
(except as a minority shareholder holding less than five percent (5%) of a
publicly listed company).
D. Solicit, attempt to hire or hire any employee of Coachmen or
otherwise encourage such employee to terminate his or her employment with the
Coachmen.
E. Solicit, encourage or induce any customer of Coachmen to purchase any
non-Company product or service which serves the same or substantially similar
purpose as any product or service offered by Coachmen.
Employee acknowledges that these limitations are reasonable and necessary
for the protection of Coachmen. Employee agrees that Employee will be able to
make a living without working for or competing with Coachmen. Employee further
agrees that the duration of this Covenant not to Compete shall be tolled for any
period of time during which its terms are violated. Employee acknowledges that
should Employee breach or threaten to breach the provisions set forth herein,
Coachmen will be harmed irreparably, and cannot be made whole by monetary
damages. Employee therefore consents to having these paragraphs enforced by
means of a restraining order, temporary injunction, or permanent injunction, and
any other appropriate relief that a court of competent jurisdiction may be
empowered to grant, in addition to any other remedies may have under this
Agreement or otherwise. Employee further agrees that this Agreement is not for
the purpose of preventing my employment with any particular person, entity or
industry. Employee stipulates and agrees that a good faith effort by Coachmen to
enforce the terms of this Agreement or to delay or limit the scope of Employee's
duties at a new employer to those allowed by this Agreement, is not and will not
be deemed to be an attempt to prevent or hinder Employee's employment with any
person. At the end of the initial term of this Agreement, as a condition of
continued employment and without additional consideration than already received
under this Agreement, Employee shall sign and agree to the Coachmen Business
Protection Agreements (including non-competition, non-solicitation and
confidentiality provisions) in the form that are then required of Coachmen
executives at comparable levels of management.
4. Protection of Confidential Information. Employee acknowledges that
during his employment with Coachmen, Employee may have access to Coachmen's
proprietary and confidential information, including such things as the
identities of Coachmen's clients, its contemplated new products and services,
its marketing methods, its financial information, operational or business
affairs of Coachmen or its affiliates, proprietary trade "know how" and secrets,
sources of supply, and proprietary operational methods and technical processes.
Employee agrees that during the term of this Agreement (and any renewals of this
Agreement, or any continued employment with Coachmen in any capacity) and for
two (2) years after said employment ends, whether voluntarily or involuntarily,
Employee will not divulge to any person, firm, or corporation, or use for
Employee's own benefit, any secret or confidential or proprietary information
that Employee has obtained or learned during the course of employment with
Coachmen or any of its affiliates, except: (i) with Coachmen's express written
consent; (ii) to the extent that any such information is already in or becomes
part of the public domain other than as a result of Employee's breach of this
Agreement; or (iii) where a court requires such information to be disclosed by
means of order, subpoena, or other legal process. Should Employee be required to
make disclosure under court requirement, Employee promptly, but in no event more
than seventy-two hours after learning of such subpoena, court order, or other
legal process,
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shall notify, Coachmen, by personal delivery or facsimile transmission, that
Employee has been asked to make such disclosure. Employee shall; take all
reasonably necessary steps Coachmen may request to defend against the
enforcement of such subpoena, court order, or other legal process and permit
Coachmen to intervene and participate with a counsel of its choice in any
proceeding relating to the enforcement of the subpoena, court order, or legal
process.
5. Termination. In lieu of the normal expiration date of this Agreement as
set forth herein, the Agreement may be terminated as follows:
A. Termination of Agreement Due to Death. Upon Employee's death, this
Agreement shall immediately terminate. Salary and benefits owed to Employee
through the date of death will be paid to Employee's estate. Coachmen will not
be responsible for any other compensation to Employee or any third parties
claiming on Employee's behalf under this Agreement.
B. Termination of Agreement Due to Disability. Should Employee become
unable to perform the essential functions of his job due to disability which
persists for over ninety (90) days, even after reasonable accommodation,
Coachmen may notify Employee of its intention to terminate this Agreement as of
the date set forth in such notice. Should this occur, Employee will be entitled
to receive any salary, benefits, or reimbursable expenses owed through the date
of termination, and shall also receive all necessary notices and information as
required by COBRA and ERISA. Coachmen shall have no further obligation or
liability to Employee.
C. Termination for Cause. Coachmen may terminate Employee's employment
for cause, and should that occur, Coachmen shall be released from all further
obligations under this Agreement, except for accrued salary and benefits owed to
Employee through the date of termination. "Cause" shall be defined as a material
breach of this Agreement for which Employee has received written notice and for
which breach has not been cured within fifteen (15) days of such; misconduct by
Employee, including but not limited to theft of company property; acts of fraud
or dishonesty; negligence or willful neglect of duty, or material failure to
follow known company policies and directives; reporting to work under the
influence of alcohol, drugs, or other mind-impairing substances; or conviction
of a felony.
If Coachmen terminates this Agreement other than for Cause (as defined
above) before the end of the term, Coachmen shall pay to Employee, as the same
shall become due, all compensation and benefits contemplated by this Agreement
6. Governing Law. Indiana law shall govern enforcement and construction of
this Agreement.
7. Entire Agreement. This Agreement contains all the understandings and
agreements with respect to the matters set forth herein, and there are no others
made either contemporaneously with this Agreement or otherwise. This Agreement
supercedes all other writings or negotiations by the parties and can only be
modified in writing signed by both parties.
8. Severability. Should a court of competent jurisdiction declare that any
part of this Agreement is invalid or unenforceable, that determination shall not
effect the remaining portions of this Agreement, or any part of it.
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Signed at Elkhart, Indiana, this __ day of _____________, 2000.
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(Employee)
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STATE OF INDIANA )
: SS
CITY/COUNTY OF )
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The foregoing instrument was subscribed, sworn to and acknowledged before
me this ___ of ______________, 2000, by ________________.
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Notary Public
Xxxxxx Building Systems, Inc.
By:
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Its:
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Coachmen Industries, Inc.
By:
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Its:
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