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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) June 19, 1995
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AMRE, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 1-9632 75-2041737
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification Number)
8585 North Stemmons Freeway, Dallas, Texas 75247
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(Address of Principal Executive Offices) (Zip Code)
(Registrant's telephone number, including area code (214) 658-6300
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Item 5. Other Events
On June 19, 1995, AMRE, Inc, announced the election of Mr.
Robert M. Swartz as President and a member of the Board of Directors.
Item 7. Financial Statements and Exhibits
The following exhibits are attached to and made a part of this
Form 8-K:
10.1 Employment Agreement dated as of June 1, 1995,
between AMRE, Inc, and Robert M. Swartz.
10.2 Stock Option Agreement dated as of June 1, 1995,
between AMRE, Inc. and Robert M. Swartz.
99.1 Press Release dated June 19, 1995, announcing the
election of Mr. Robert M. Swartz as President and a
member of the Board of Directors of AMRE, Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMRE, INC.
Dated: June 29, 1995 BY: /s/ C. Curtis Everett
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C. Curtis Everett
Vice President-Law
Secretary and
General Counsel
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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of June 1, 1995, (the "date of this Agreement"),
by and between AMRE, Inc., a Delaware corporation ("AMRE"), and Robert M.
Swartz, of Dallas, Texas ("Swartz").
W I T N E S S E T H:
WHEREAS, AMRE wishes to hire Swartz as its President; and
WHEREAS, Swartz will be foregoing significant compensation and benefits
in resigning from his present employment and will, upon announcement of such
resignation, be at substantial economic risk unless the terms of his employment
by AMRE agreed to by him and AMRE, as set forth below, are fulfilled;
NOW, THEREFORE, in consideration of the covenants and mutual agreements
contained herein, AMRE and Swartz agree as follows:
1. Employment. AMRE agrees to employ Swartz as its President and
Swartz agrees to serve in such capacity on the terms and conditions hereinafter
set forth.
2. Term.
(a) Term of Agreement. The term of this Agreement shall commence on
July 5, 1995, and shall end at midnight on July 4, 1997, (the "Expiration
Date").
(b) Term of Employment. The period from July 5, 1995, to the first
to occur of (i) the Expiration Date or (ii) the date on which Swartz's
employment is terminated pursuant to paragraph 6 or paragraph 7 is hereinafter
referred to as the "Term of Employment".
3. Services. During the Term of Employment, Swartz will devote his
full business time to the business and affairs of AMRE and such other members
of the AMRE Group as the Board of Directors of AMRE may direct, and shall use
his reasonable best efforts, skills and abilities to promote the interests of
AMRE provided, however, that Swartz may from time to time engage in such other
pursuits, including (without limitation) personal legal, financial and business
affairs, provided, in each case, that such pursuits do not interfere with the
proper performance of his duties and obligations under the terms hereof and do
not create any actual or potential conflict of interest. For the purposes of
this Agreement, the term "AMRE Group" means all corporations or other business
organizations, with respect to any one of which AMRE possesses the ability,
directly or through any intervening medium, to elect a majority of the Board of
Directors (or persons filling similar functions).
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4. Compensation and Benefits.
(a) Salary. During the Term of Employment, AMRE shall pay to
Swartz such annual salary as the Board of Directors of AMRE from time to time
may determine, but such annual salary shall in no event be less than $300,000
per year. AMRE agrees to pay Swartz's annual salary to Swartz in accordance
with the usual and customary procedures for the payment of compensation to
salaried employees of AMRE, but in any event to make such payment in not less
than monthly installments.
(b) Additional or Incentive Compensation. Swartz shall
participate in an incentive compensation plan during each fiscal year of AMRE
which shall provide for an annual bonus opportunity of at least 100% of
Swartz's annual salary. Notwithstanding any other provision of this paragraph
4(b), Swartz shall be entitled to receive a minimum bonus of $100,000 on or
before March 15, 1996, with respect to the fiscal year ending December 31,
1995.
(c) Provision of Automobile Allowance. During the Term of
Employment, AMRE shall provide Swartz with a monthly automobile allowance of
$750.00.
(d) Employee Benefits (General). During the Term of
Employment, Swartz shall be entitled to receive all benefits and perquisites
ordinarily provided to executive officers of AMRE, including protection under
an officer's and director's liability insurance policy and eligibility to
participate in all employee welfare benefit plans or employee pension benefit
plans (within the meaning of the Employee Retirement Income Security Act of
1974) from time to time maintained by AMRE. Swartz shall be entitled to
participate in all such plans or programs on terms no less favorable than those
generally available to executive officers of AMRE and at a level of
participation commensurate with his position as President of AMRE and with his
level of compensation.
(e) Payment of COBRA and Life Insurance Conversion Premiums.
Until such date as Swartz and his dependents shall have become covered and
eligible for medical and dental insurance benefits under an AMRE sponsored
plan, AMRE shall reimburse Swartz the sum of (1) such amount as is equal to the
premium paid by Swartz to continue the group health and dental insurance
coverage following his termination of employment from Recognition International
Inc. and (2) such cash amount as is sufficient to provide Swartz after
satisfaction of all federal, state and local income taxes attributable to the
reimbursements provided in (1) and (2) of this sentence, a net amount equal to
such premium reimbursements before any such taxes. Until such date Swartz
shall have become covered and eligible for Executive Supplemental Life
Insurance as provided for in paragraph 4(f), AMRE shall reimburse Swartz the
sum of (1) such amount as is equal to the premium paid by Swartz for coverage
under any individual policy he shall have
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converted from the group term life insurance policy under which he participated
while employed at Recognition International Inc. and (2) such cash amount as is
sufficient to provide Swartz, after satisfaction of all federal and state
income taxes attributable to such reimbursements provided in (1) and (2) of
this sentence a net amount equal to such premium reimbursements before any such
taxes.
(f) Executive Supplemental Life and Disability Insurance.
During the Term of Employment, in addition to all other group term life or
disability benefits provided under any AMRE sponsored group life insurance
plan, AMRE shall maintain, at no cost (except recognition, if applicable, of
imputed income for tax purposes) to Swartz, Executive Supplemental Life
Insurance in an amount equal to 300% of Swartz's annual salary and Executive
Long Term Disability Insurance which will provide a benefit equal to 75% of
Swartz's monthly base salary. The types of policies, the identity of the
carriers and the exact terms, limitation, underwriting specifications and
benefits of each of such coverages shall be no less favorable than the
coverages provided by AMRE to its other executive officers. Any coverage for
Swartz by the insurance described in this paragraph 4(f) shall be subject to
Swartz meeting the insurance carrier's underwriting requirements. AMRE shall
arrange for and submit such application or other information required with
respect to such insurance coverage promptly upon the commencement of the Term
of Employment.
(g) Vacation. Notwithstanding any provision of any vacation
plan described in paragraph 4(d), Swartz shall accrue paid vacation at the rate
of 10 hours of paid vacation for each calendar month he is employed during the
Term of Employment, subject to a maximum accrual of 120 hours at any time.
Vacation may be taken whenever accrued. Hours of vacation accrued for any
period of less than a full calendar month shall be prorated.
(h) Annual Physical Examination. During the Term of
Employment, to the extent not covered by any insurance plan maintained by AMRE,
AMRE shall reimburse Swartz for the cost of one comprehensive annual physical
examination during each calendar year by a physician of Swartz's choosing.
(i) Expenses. AMRE shall pay or reimburse Swartz upon
submission of vouchers by him, for all entertainment, travel, meal, hotel
accommodation and miscellaneous expenses reasonably incurred by him in the
interest of AMRE's business and in accordance with current AMRE policy during
the Term of Employment.
5. Stock Options. Contemporaneously with or prior to the
commencement of the Term of this Agreement and as an essential portion of the
inducement and consideration to Swartz for entering into this Agreement, the
Board of Directors of AMRE shall grant Swartz options to acquire 500,000 shares
of AMRE, Inc. common stock
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in the form of the Stock Option Agreement attached hereto as Exhibit A.
6. Termination of Employment Other Than in Connection With a Change
of Control of AMRE.
(a) Termination by AMRE for Good Cause. AMRE may terminate
Swartz's employment prior to the Expiration Date for Good Cause only upon
compliance with the requirements of this paragraph 6(a). "Good Cause" for
termination by AMRE shall mean only (i) the willful engagement by Swartz in
misconduct which is materially injurious to AMRE, monetarily or otherwise, (ii)
Swartz's physical or mental disability, if such disability results in Swartz
receiving permanent disability payments pursuant to a group or individual
disability insurance policy maintained by AMRE on behalf of Swartz or (iii)
Swartz's death. For purposes of this paragraph 6(a), no act or failure to act
on Swartz's part shall be considered "willful" unless done, or omitted to be
done, in bad faith and without reasonable belief that the action or omission
was in the best interest of AMRE. Notwithstanding the foregoing, Swartz shall
not be deemed to have been terminated for Good Cause within the meaning of
clause (i) of the preceding sentence without (i) reasonable notice to Swartz
setting forth the reason for AMRE's intention to terminate for Good Cause, (ii)
an opportunity for Swartz, together with his counsel, to be heard before the
Board of Directors of AMRE and (iii) written notice from the Board of Directors
of AMRE finding that in the good faith opinion of such Board Swartz was guilty
of the conduct set forth above and specifying the particulars thereof in
detail. In the event of termination of Swartz's employment in accordance with
the conditions of this paragraph 6(a), the Term of Employment shall end, all of
Swartz's obligations pursuant to this Agreement (except for those provided in
paragraphs 8 and 10, if termination is for a reason other than death) shall end
and AMRE's obligations to pay compensation to Swartz pursuant to paragraph 4
shall cease on the effective date of termination.
(b) Termination by AMRE Other Than for Good Cause. AMRE may
terminate Swartz's employment prior to the Expiration Date for any reason other
than Good Cause upon providing not less than 30 days' prior written notice to
Swartz specifying the effective date of termination. If AMRE terminates
Swartz's employment other than for Good Cause under paragraph 6(a) prior to the
public announcement of, or actual or deemed knowledge of AMRE of, any actual or
proposed transaction which results, directly or indirectly, in a Change of
Control of AMRE, as defined in paragraph 7, the Term of Employment shall end on
the effective date of termination, but AMRE shall provide, as a severance
benefit to Swartz and as liquidated damages for breach by AMRE of its otherwise
applicable obligations hereunder, each of the following: (i) within three days
of the effective date of termination, a lump sum cash payment equal to the sum
of all accrued vacation pay and
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monthly cash payments which would, except for the termination, have been paid
to Swartz as salary under paragraph 4(a) through the Expiration Date, (ii) not
later than the date on which incentive compensation for the fiscal year in
which Swartz's termination of employment occurs (the "current fiscal year")
would be paid to Swartz if he were employed on the last day of the current
fiscal year, an amount equal to the product of (A) the incentive compensation
which would have been paid to Swartz if he were still employed on the last day
of the current fiscal year and (B) a fraction, the numerator of which is the
number of days in the current fiscal year through the effective date of
termination and the denominator of which is 365; provided,however, that if the
effective date of termination occurs on or before December 31, 1995, such
amount payable pursuant to this clause (ii) shall be not less than $100,000;
(iii) within three days of the effective date of termination, a lump sum cash
payment equal to the sum of the automobile allowance monthly payments described
in paragraph 4(c) which would, except for the termination, have been paid to
Swartz through the Expiration Date and (iv) continuation of all life, health
and disability insurance benefits then in effect and described in paragraph 4
through the period ending on the Expiration Date.
(c) Substantial Change in Conditions, Authority or
Responsibilities. If AMRE, during the Term of Employment, but prior to the
public announcement of, or actual or deemed knowledge of AMRE of, any actual or
proposed transaction which results, directly or indirectly, in a Change of
Control of AMRE, as defined in paragraph 7, makes any substantial change in
Swartz's employment conditions, authority or job responsibilities which would
constitute "Good Reason", within the meaning of paragraph 7(c), if a Change of
Control of AMRE had then occurred, then Swartz may elect to terminate his
employment in accordance with the procedures set forth in paragraph 7(b) and
such employment will be deemed terminated by AMRE without Good Cause and the
provisions of paragraph 6(b) shall apply.
(d) Termination by Swartz. Swartz may terminate his
employment at any time on or after the effective date of this Agreement upon
providing 30 days' prior written notice to AMRE stating the effective date of
termination. In any such event, all obligations of AMRE to Swartz under this
Agreement and all obligations of Swartz to AMRE (except those provided for in
paragraphs 8 through 10) shall cease and the Term of Employment shall end on
the effective date of termination.
(e) Mitigation. AMRE's termination of Swartz's employment
under paragraph 6(b) or 6(c) shall immediately relieve Swartz of all
obligations under this Agreement (except for those provided in paragraphs 8
through 10), shall not obligate Swartz to seek other employment and shall not
be construed to require the application of any compensation which Swartz may
earn in any such
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other employment to reduce AMRE's obligation to provide severance benefits and
liquidated damages as provided herein. Swartz's right to receive severance
benefits and liquidated damages hereunder shall not be subject to voluntary or
involuntary sale, pledge, hypothecation, transfer or assignment by Swartz, nor
shall Swartz, by virtue of such right, acquire any right, title or interest in
particular assets of AMRE and such right shall be no greater than the right of
any unsecured general creditor of AMRE.
7. Change of Control of AMRE. In the event of a Change of Control
of AMRE, the following provisions of this Agreement shall apply notwithstanding
any other terms or conditions of this Agreement:
(a) Extension of Term of Agreement. Upon the Change of
Control of AMRE, the reference to "July 4, 1997" in paragraph 2(a) shall
be changed from "July 4, 1997" to the date which is two years subsequent
to the date immediately prior to the date on which the Change of Control
of AMRE occurred.
(b) Termination of Employment by Swartz for Good Reason.
Swartz's employment may be terminated by Swartz during the Term of
Employment for Good Reason if, (i) within 90 days of the date of
occurrence of a triggering event, Swartz notifies AMRE in writing of his
intention to treat such event as Good Reason, (ii) within 30 days
following receipt of such notice provided for in (i), AMRE fails to cure
the triggering event, and (iii) within 60 days following the expiration
of the 30-day period described in (ii), Swartz voluntarily terminates
his employment by giving written notice to AMRE.
(c) Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence of one or more of the following events
subsequent to the public announcement of, or actual or deemed knowledge
of AMRE of, any actual or proposed transaction which results, directly
or indirectly, in a Change of Control of AMRE (each of which shall be a
"triggering event"):
(i) the assignment to Swartz of any duties inconsistent
in any respect with Swartz's position (including status, offices,
titles and reporting requirements), authority, duties or
responsibilities as contemplated by paragraph 1 of this
Agreement, or any other action by AMRE which results in a
diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
which is remedied by AMRE promptly after receipt of notice
thereto given by Swartz;
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(ii) any failure by AMRE to comply with any of the
provisions of paragraph 4 of this Agreement, other than an
isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by AMRE promptly after receipt of
notice thereof given by Swartz, unless AMRE agrees to fully
compensate Swartz for any such reduction;
(iii) Swartz is required to locate his office more than
50 miles from the current location of AMRE's principal office,
excluding business travel reasonably consistent with the amount
of travel required of him prior to such relocation;
(iv) any purported termination by AMRE of Swartz's
employment otherwise than as expressly permitted by this
Agreement;
(v) any failure of any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of AMRE to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that AMRE would be required to
perform it if no such succession had taken place; or
(vi) AMRE's request that Swartz perform an illegal, or
wrongful act in violation of AMRE's code of conduct policies.
(d) Severance Benefit on Termination by Swartz for Good Reason. Upon
termination of Swartz's employment by Swartz pursuant to paragraph 7(b) or by
AMRE for a reason other than Good Cause subsequent to the public announcement
of, or AMRE's actual or deemed knowledge of, any actual or proposed transaction
which results, directly or indirectly, in a Change of Control of AMRE, all
obligations of AMRE to Swartz under this Agreement and all obligations of
Swartz to AMRE (except those provided for in paragraphs 8 through 10) shall
cease and the Term of Employment shall end and AMRE shall pay to Swartz, (i)
within 10 days of such termination of employment, the sum of (A) all accrued
vacation pay and (B) an amount equal to 299% of Swartz's annual salary on the
date prior to the Change of Control and (ii) not later than the date on which
incentive compensation for the fiscal year in which Swartz's termination of
employment occurs (the "current fiscal year") would be paid to Swartz if he
were employed on the last day of the current fiscal year, an amount equal to
299% of the amount
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Swartz would be entitled to pursuant to paragraph 6(b)(ii) if he had been
terminated for a reason other than Good Cause pursuant to paragraph 6(b) on the
day preceding the Change of Control of AMRE. In the event the cash settlement
payment payable under this paragraph 7(d), either alone or together with any
other payments which Swartz has the right to receive from AMRE, would
constitute an "excess parachute payment" (as defined in Section 280G of the
Internal Revenue Code of 1986, as amended), such cash settlement amount shall
be increased to an amount sufficient to provide Swartz, after satisfaction of
all federal excise taxes and federal and state income taxes attributable to
such increases in amount, a net amount equal to such cash settlement amount
calculated as described above and before any such excise tax.
(e) Definition of Change of Control of AMRE. For the purpose of this
Agreement, a "Change of Control of AMRE" shall be deemed to have occurred:
(i) When any "person" as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and as
used in Sections 13(d) and 14(d) thereof, including a "group" as defined
in Section 13 (d) of the Exchange Act, excluding any employee benefit
plan sponsored or maintained by AMRE or any subsidiary of AMRE
(including any trustee of such plan acting as trustee), directly or
indirectly, becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act, as amended from time to time), of securities of
AMRE representing:
(A) 30% or more of the combined voting power of AMRE's then
outstanding securities with respect to the election of the
directors of AMRE; or
(B) 20% or more of such combined voting power if such person
thereby becomes the largest stockholder of AMRE; or
(ii) When, during any period of 24 consecutive months, the
individuals who, at the beginning of such period, constitute the Board
of Directors of AMRE (the "Incumbent Directors") cease for any reason
other than death to constitute at least a majority thereof, provided,
however, that a director who was not a director at the beginning of such
24-month period shall be deemed to have satisfied such 24-month
requirement (and be an Incumbent Director) if such director was elected
by, or on the recommendation of or with the approval of, at least a
majority of the directors who then qualified as Incumbent Directors
either actually (because they were
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directors at the beginning of such 24-month period) or by prior
operation of this provision; or
(iii) The occurrence of a transaction requiring stockholder
approval of the acquisition of AMRE by an entity other than AMRE or a
50% or more owned subsidiary of AMRE through purchase of assets, or by
merger, or otherwise, except in the case of a transaction pursuant to
which, immediately after the transaction, AMRE's stockholders
immediately prior to the transaction own at least 60% of the combined
voting power of the surviving entity's then outstanding securities with
respect to the election of the directors of such entity solely by reason
of such transaction.
The foregoing notwithstanding, the acquisition by Ronald I. Wagner, or
by a "Group" as defined above of which Ronald I. Wagner is a member, of
securities of AMRE representing up to a maximum of 40% of the combined voting
power of AMRE's then outstanding securities with respect to the election of the
directors of AMRE shall not constitute a "Change of Control of AMRE".
8. Restrictions on Investments and Competing Activities.
(a) Except to the extent permitted by the last sentence of
this paragraph 8(a) and by paragraph 8(b), during the Term of Employment,
Swartz will not hold or acquire (whether by purchase, gift or otherwise) any
direct or beneficial interest in any securities (debt or equity) of, or any
other interest in, any corporation (domestic or foreign) or any other business
organization engaged, directly or indirectly, in any business competitive with
that conducted by AMRE or any member of the AMRE Group nor will Swartz himself
(whether in an individual capacity or as a member of a partnership or
otherwise) engage, directly or indirectly, in any business competitive with
that conducted by AMRE or any member of the AMRE Group. The restrictions on the
investment activities of Swartz, set forth in the first sentence of this
subparagraph (a), do not apply to investments in debt securities of any
corporation, if such debt securities are traded on a national securities
exchange, or to investments in equity securities of any corporation, if such
equity securities are traded on a national securities exchange, provided that
the aggregate holdings (direct and beneficial) of Swartz, his spouse and minor
children in equity securities of such corporation do not, at any time, equal 1%
or more of the outstanding equity securities of such corporation.
(b) Swartz agrees that, in addition to the restrictions
imposed by paragraph 8(a), he will conduct his respective investment activities
in strict compliance with any and all reasonable policies with respect thereto
now or hereafter established by AMRE (and any other member of the AMRE Group
that employs Swartz), and Swartz further agrees to render, and cause to be
rendered, any and all such reports with respect thereto as may be required by
AMRE or any such other member of the AMRE Group. The foregoing
notwithstanding, an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by
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Swartz promptly after receipt of notice of any failure to comply with such
policies shall not constitute a violation of the provisions of this
subparagraph.
9. Confidentiality. Swartz agrees and acknowledges that the trade
secrets of AMRE and the AMRE Group, as such secrets may exist from time to
time, are valuable, special and unique assets of AMRE and the AMRE Group, and
that access to and knowledge of such secrets are essential to the performance
of Swartz's duties hereunder. Swartz will not, in whole or in part, for his
own purposes or for the benefit of any person, firm, corporation or other
entity (except AMRE or any member of the AMRE Group) disclose to any person,
firm, corporation, association or any other entity, any such trade secrets or
any other confidential or secret information with respect to the business of
AMRE or the AMRE Group (including, without limitation, any such information
with respect to customers), nor will Swartz make use of any such trade secrets
or other confidential or secret information for his own purposes or for the
benefit of any person, firm, corporation or other entity (except AMRE or any
member of the AMRE Group) under any circumstances during or after the Term of
Employment; provided, however, that after the Term of Employment these
restrictions shall not apply to such trade secrets or confidential or secret
information which are then in the public domain (so long as Swartz was not
responsible, directly or indirectly, for permitting such trade secrets or
confidential or secret information to enter the public domain without AMRE's
consent).
10. Covenants Not to Solicit or Interfere. For a period of 12 months
from the effective date of Swartz's termination of employment, Swartz will not
compete with AMRE or any member of the AMRE Group in the business of AMRE or
the AMRE Group in any geographic area in which AMRE (or such member of the AMRE
Group) is actively engaged in such business on the date Swartz's employment
hereunder terminates. The term "compete", as used herein, means to engage in
competition, directly or indirectly (including, without limitation, to conduct
the business of AMRE or the AMRE Group for any customer with which Swartz had
any significant business contacts during his employment hereunder), either as a
proprietor, partner, employee, agent, consultant, director, officer,
controlling stockholder or in any other capacity or manner whatsoever. It is
the desire and intent of the parties that the provisions of this paragraph 10
shall be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if, and to the extent that, any portion of this paragraph 10 shall
be adjudicated to be invalid or unenforceable, this paragraph 10 shall be
deemed amended to delete therefrom or reform the portion thus adjudicated to be
invalid or unenforceable, such deletion or reformation to apply only with
respect to the operation of this paragraph 10 in the particular jurisdiction in
which such adjudication is made.
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11. Injunctive Relief. Swartz acknowledges and agrees that a breach
or threatened breach of the provisions of paragraphs 8, 9 or 10 may cause
irreparable injury to AMRE and any member of the AMRE Group, and that, as a
result of such breach AMRE, or any member of the AMRE Group, as the case may
be, shall be entitled, among and in addition to other remedies available at law
or in equity, to an injunction restraining Swartz from continuing the activity
causing such breach. Such remedy shall not be exclusive and shall be in
addition to any other remedy AMRE or any such member of the AMRE Group may be
entitled.
12. Miscellaneous.
(a) Notices. Any notice required or permitted to be given under this
Agreement shall be deemed to have been received when delivered in person or
mailed, postage prepaid, by certified mail addressed, in the case of Swartz, to
his last known residence as provided by him to AMRE, or, in the case of AMRE,
to its principal office.
(b) Benefits and Obligations. This Agreement shall be binding upon,
shall inure to the benefit of, and shall be enforceable by AMRE and its
respective successors and assigns, and Swartz, his heirs, assigns or legal
representatives; provided, however, that the obligations of Swartz contained
herein may not be delegated or assigned.
(c) Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and may only be amended by an agreement in writing signed by all of the parties
hereto.
(d) Waiver. The failure of any party hereto to insist, in any one or
more instances, upon performance of any of the terms and conditions of this
Agreement, shall not be construed as a waiver or relinquishment of any right
granted hereunder or of the future performance of any such term, covenant or
condition.
(e) Severability. In the event that any portion of this Agreement
may be held to be invalid or unenforceable for any reason, the parties hereto
agree that said invalidity or unenforceability shall not affect the other
portions of this Agreement and that the remaining covenants, terms and
conditions or portions thereof shall remain in full force and effect and any
court of competent jurisdiction may so modify the objectionable provision as to
make it valid and enforceable.
(f) Governing Laws. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
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(g) Captions. The captions contained in this Agreement are for the
convenience of AMRE and Swartz and shall not be deemed or construed as in any
way limiting or extending the language of the provisions to which such captions
refer.
* * *
IN WITNESS WHEREOF, AMRE has caused this Agreement to be executed by its
officer thereunto duly authorized, and Swartz has hereunto set his hand, all as
of the day, month and year first above written.
AMRE, INC.
By: /s/ Ronald I. Wagner
---------------------------
Ronald I. Wagner
Chairman of the Board
/s/ Robert M. Swartz
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Robert M. Swartz
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EXHIBIT A
AMRE, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made as of the ______ day of
____________, 1995, between AMRE, Inc., a Delaware corporation (the "Company"),
and Robert M. Swartz, (the "Optionee").
As an inducement to accept employment as the President of the Company,
the Company has granted to the Optionee a stock option, and the Optionee has
accepted the option. Therefore, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
I. GRANT AND EXERCISE OF OPTION
1.1 Grant of Option. The Company grants to the Optionee an option (the
"Option") to purchase an aggregate of 500,000 shares of common stock, $0.01 par
value, of the Company at a price of $_________ per share (the "Exercise
Price"), subject to the terms and conditions hereinafter set forth. The Option
is a non-qualified option and is not intended to constitute an incentive stock
option within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
1.2 Vesting of Option. The Option shall become exercisable with
respect to one-fourth of the total number of shares subject thereto on
______________, the anniversary date of the granting of the Option, in each of
the years 1996, 1997, 1998 and 1999. All or any part of the shares with
respect to which the right to purchase has vested may be purchased at the time
of such vesting or at any time or times thereafter during the term of the
Option. In the event of a Change Of Control of the Company as set forth in the
Employment Agreement (the "Employment Agreement") with the Optionee dated June
_____, 1995, the Option shall be immediately exercisable in full. The
foregoing notwithstanding, 50% of the Option, to the extent not already
exercisable, shall become immediately exercisable in the event the Optionee's
employment is terminated for a reason other than Good Cause pursuant to
paragraph 6(b) of the Employment Agreement or on the Expiration Date of the
Employment Agreement if the Optionee's employment is not continued by the
Company on substantially similar terms as those set forth in the Employment
Agreement.
1.3 Term of Option. The term of the Option is ten years from the
date of the granting of the Option, subject to earlier termination as provided
in Section II hereof.
1.4 Exercise of Option. The Option may be exercised by giving
written notice to the Company, addressed to its corporate headquarters,
attention of the Secretary, specifying the number of shares to be purchased,
accompanied by payment in full of the Exercise Price, either in cash or by
check, bank draft or money order.
<PAGE> 14
1.5 Restrictions on Exercise. At the time of any exercise of the
Option, the Company may require, as a condition of the exercise, that the
Optionee pay the Company an amount equal to the amount of the tax the Company
may be required to withhold to obtain a deduction for federal and state income
tax purposes as a result of the exercise of the Option by the Optionee or to
comply with applicable law.
1.6 Registration and Qualification of Shares. The Company shall,
within 60 days after the date hereof, use its best efforts to obtain the
listing, registration or qualification of the shares subject to the Option upon
any securities exchange on which the shares are traded, to register the shares
subject to the Option under the Securities Act of 1933, as amended, and to
obtain the consent and approval of any governmental or regulatory body with
respect to the exercise of the Option or sale by Optionee of the underlying
shares and shall thereafter use its best efforts to maintain the status of such
shares upon any such exchange or exchanges upon which the shares are then
traded, under the Securities Act of 1933, as amended, and with respect to such
governmental and regulatory authorities.
II. TERMINATION OF EMPLOYMENT
2.1 Discharge or Resignation. In the event that the Optionee's
employment with the Company is terminated for Good Cause as defined in the
Employment Agreement, all rights of the Optionee to exercise the Option shall
immediately terminate, lapse and be forfeited at the time of termination of the
Optionee's employment. If the Optionee ceases to be an employee of the Company
for any other reason, except as hereinafter provided, any unexercised portion
of the Option which was exercisable on the date of termination of employment
may be exercised within a thirty-day period after such date.
2.2 Change of Control. In the event of a Change of Control the
Optionee shall have the right to exercise the Option at any time within a
two-year period after the date of the Change of Control.
2.3 Retirement. If the Optionee's termination of employment is due to
early, normal, or disability retirement, the Optionee shall have the right to
exercise the Option to the extent then exercisable at any time within twelve
months after such retirement; provided, however, that in case the Optionee
shall die within three months after such date of retirement without having
exercised the Option, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right for up to
twelve months from such date of retirement to exercise the Option to the extent
that the Option was exercisable prior to the death of the Optionee and had not
been so exercised.
2.4 Death. If the Optionee ceases to be an employee of the Company by
reason of death, the personal representatives, heirs, legatees or distributees
of the Optionee, as appropriate, shall have the right for up to twelve months
from the date of death of the Optionee to exercise the Option to the extent
that the Option
2
<PAGE> 15
was exercisable prior to the date of death and had not been so exercised.
2.5 Limitations on Exercise. The provisions of Paragraphs 2.1, 2.2,
2.3 and 2.4 hereof notwithstanding, the Option shall not be exercisable
following expiration of the term of the Option as set forth in Paragraph 1.3
hereof.
III. MISCELLANEOUS
3.1 Nontransferability of Option. The Option shall not be transferable
by the Optionee otherwise than by will or the laws of descent and distribution.
During the lifetime of the Optionee, the Option shall be exercisable only by
the Optionee. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option, or the levy of any execution, attachment or
similar process upon the Option, shall be null and void and without effect.
3.2 Changes in Capital Structure. In the event that the number of
shares of common stock of the Company shall be changed by reason of stock
splits, combinations of shares, recapitalizations, mergers, consolidations or
stock dividends, the number of shares then subject to the Option shall be
proportionately adjusted so as to reflect such change; and, in such event, the
Exercise Price shall be proportionately increased or decreased, as the case may
be, all to prevent dilution or enlargement of the rights of the Optionee. No
adjustment provided for in this Paragraph 3.2 shall require the issuance of any
fractional shares.
3.3 Nonguarantee of Employment. Nothing in this Agreement shall confer
upon the Optionee any right to continue in the employ of the Company or
interfere in any way with any right of the Company to terminate his employment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMRE, INC.
By: __________________________
Ronald I. Wagner
Chairman of the Board
OPTIONEE:
______________________________
Robert M.Swartz
3
<PAGE> 1
EXHIBIT 10.2
AMRE, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made as of the 1st day of June, 1995,
between AMRE, Inc., a Delaware corporation (the "Company"), and Robert M.
Swartz, (the "Optionee").
As an inducement to accept employment as the President of the Company,
the Company has granted to the Optionee a stock option, and the Optionee has
accepted the option. Therefore, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
I. GRANT AND EXERCISE OF OPTION
1.1 Grant of Option. The Company grants to the Optionee an option (the
"Option") to purchase an aggregate of 500,000 shares of common stock, $0.01 par
value, of the Company at a price of $4.125 per share (the "Exercise Price"),
subject to the terms and conditions hereinafter set forth. The Option is a
non-qualified option and is not intended to constitute an incentive stock
option within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
1.2 Vesting of Option. The Option shall become exercisable with
respect to one-fourth of the total number of shares subject thereto on June 1,
the anniversary date of the granting of the Option, in each of the years 1996,
1997, 1998 and 1999. All or any part of the shares with respect to which the
right to purchase has vested may be purchased at the time of such vesting or at
any time or times thereafter during the term of the Option. In the event of a
Change Of Control of the Company as set forth in the Employment Agreement (the
"Employment Agreement") with the Optionee dated June 1, 1995 (except for the
provisions of Section 7(e)(i)(B) thereof, with such exception a "Change of
Control"), the Option shall be immediately exercisable in full. The foregoing
notwithstanding, 50% of the Option, to the extent not already exercisable,
shall become immediately exercisable in the event the Optionee's employment is
terminated for a reason other than Good Cause pursuant to paragraph 6(b) of the
Employment Agreement or on the Expiration Date of the Employment Agreement if
the Optionee's employment is not continued by the Company on substantially
similar terms as those set forth in the Employment Agreement.
1.3 Term of Option. The term of the Option is ten years from the
date of the granting of the Option, subject to earlier termination as provided
in Section II hereof.
1.4 Exercise of Option. The Option may be exercised by giving
written notice to the Company, addressed to its corporate headquarters,
attention of the Secretary, specifying the number of shares to be purchased,
accompanied by payment in full of the Exercise Price, either in cash or by
check, bank draft or money order.
<PAGE> 2
1.5 Restrictions on Exercise. At the time of any exercise of the
Option, the Company may require, as a condition of the exercise, that the
Optionee pay the Company an amount equal to the amount of the tax the Company
may be required to withhold to obtain a deduction for federal and state income
tax purposes as a result of the exercise of the Option by the Optionee or to
comply with applicable law.
1.6 Registration and Qualification of Shares. The Company shall,
within 60 days after the date hereof, use its best efforts to obtain the
listing, registration or qualification of the shares subject to the Option upon
any securities exchange on which the shares are traded, to register the shares
subject to the Option under the Securities Act of 1933, as amended, and to
obtain the consent and approval of any governmental or regulatory body with
respect to the exercise of the Option or sale by Optionee of the underlying
shares and shall thereafter use its best efforts to maintain the status of such
shares upon any such exchange or exchanges upon which the shares are then
traded, under the Securities Act of 1933, as amended, and with respect to such
governmental and regulatory authorities.
II. TERMINATION OF EMPLOYMENT
2.1 Discharge or Resignation. In the event that the Optionee's
employment with the Company is terminated for Good Cause as defined in the
Employment Agreement, all rights of the Optionee to exercise the Option shall
immediately terminate, lapse and be forfeited at the time of termination of the
Optionee's employment. If the Optionee ceases to be an employee of the Company
for any other reason, except as hereinafter provided, any unexercised portion
of the Option which was exercisable on the date of termination of employment
may be exercised within a thirty-day period after such date.
2.2 Change of Control. In the event of a Change of Control the
Optionee shall have the right to exercise the Option at any time within a
two-year period after the date of the Change of Control.
2.3 Retirement. If the Optionee's termination of employment is due to
early, normal, or disability retirement, the Optionee shall have the right to
exercise the Option to the extent then exercisable at any time within twelve
months after such retirement; provided, however, that in case the Optionee
shall die within three months after such date of retirement without having
exercised the Option, the personal representatives, heirs, legatees or
distributees of the Optionee, as appropriate, shall have the right for up to
twelve months from such date of retirement to exercise the Option to the extent
that the Option was exercisable prior to the death of the Optionee and had not
been so exercised.
2
<PAGE> 3
2.4 Death. If the Optionee ceases to be an employee of the Company by
reason of death, the personal representatives, heirs, legatees or distributees
of the Optionee, as appropriate, shall have the right for up to twelve months
from the date of death of the Optionee to exercise the Option to the extent
that the Option was exercisable prior to the date of death and had not been so
exercised.
2.5 Limitations on Exercise. The provisions of Paragraphs 2.1, 2.2,
2.3 and 2.4 hereof notwithstanding, the Option shall not be exercisable
following expiration of the term of the Option as set forth in Paragraph 1.3
hereof.
III. MISCELLANEOUS
3.1 Nontransferability of Option. The Option shall not be transferable
by the Optionee otherwise than by will or the laws of descent and distribution.
During the lifetime of the Optionee, the Option shall be exercisable only by
the Optionee. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option, or the levy of any execution, attachment or
similar process upon the Option, shall be null and void and without effect.
3.2 Changes in Capital Structure. In the event that the number of
shares of common stock of the Company shall be changed by reason of stock
splits, combinations of shares, recapitalizations, mergers, consolidations or
stock dividends, the number of shares then subject to the Option shall be
proportionately adjusted so as to reflect such change; and, in such event, the
Exercise Price shall be proportionately increased or decreased, as the case may
be, all to prevent dilution or enlargement of the rights of the Optionee. No
adjustment provided for in this Paragraph 3.2 shall require the issuance of any
fractional shares.
3.3 Nonguarantee of Employment. Nothing in this Agreement shall confer
upon the Optionee any right to continue in the employ of the Company or
interfere in any way with any right of the Company to terminate his employment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMRE, INC.
By: /s/ Ronald I. Wagner
---------------------------
Ronald I. Wagner
Chairman of the Board
OPTIONEE:
/s/ Robert M. Swartz
------------------------------
Robert M. Swartz
3
<PAGE> 1
EXHIBIT 99.1
AMRE, INC. PRESS RELEASE
- --------------------------------------------------------------------------------
CONTACT: JOHN VANECKO FOR IMMEDIATE RELEASE
VICE PRESIDENT AND CFO
(214) 658-6338
AMRE, INC. ANNOUNCES NEW PRESIDENT
DALLAS, June 19, 1995 -- AMRE, Inc. (NYSE: AMM), a Dallas based
direct consumer marketer of home improvement products, today announced the
election of Mr. Robert M. Swartz as President and a member of the Board of
Directors. Mr. Swartz is expected to join AMRE shortly on a full time basis
after he completes his transition obligations as President of the Worldwide
Systems Group of Recognition International Inc.
Mr. Swartz joined Recognition International Inc., a $220 million
supplier of electronic document systems, in 1990 and in November 1990 was
elected Vice President, Chief Financial Officer and Treasurer. He was named
Senior Vice President and Chief Financial Officer in 1992 and in 1994 was
elected Senior Vice President of Recognition International and President of the
Worldwide Systems Group. Prior to joining Recognition International, he held
several financial and operating positions with Nashua Corporation of Nashua,
New Hampshire, a supplier of office supplies and computer products.
"Mr. Swartz' more than twenty years of management experience with
public corporations, together with his background in the home improvement
industry, will be very meaningful to AMRE" said Ronald I. Wagner, Chairman of
the Board.
