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EXHIBIT 10(r)
CONDITIONAL RELEASE OF COMMISSION
This is an agreement between Xxxxxx XxXxxxxx (XxXxxxxx) and BodyBilt
Seating, Inc. (BodyBilt).
BACKGROUND AND RECITALS.
1. Commission. XxXxxxxx and BodyBilt entered into an Employment
Agreement dated January 1, 1993 (Exhibit "A"). Pursuant to Paragraphs 11 and
12 of the Employment Agreement, XxXxxxxx was entitled to receive a commission
on the sale of BodyBilt under the conditions set forth therein. Effective July
31, 1994, the Employment Agreement was terminated by agreement (Exhibit "B").
2. Contemplated transaction. Contemporaneously with the execution
of this agreement, XxXxxxxx, BodyBilt and the shareholders of BodyBilt shall
deliver to XxXxxxxx a letter of intent dated May 20, 1996 whereby BodyBilt will
merger with a holding company formed by XxXxxxxx (hereafter referred to as
"Letter of Intent"). The type of merger contemplated is known as a forward
triangular merger, which will be followed by an IPO (collectively referred to
as "contemplated transaction.").
3. Dispute over commission. A dispute has arisen between XxXxxxxx
and BodyBilt on whether the contemplated transaction triggers an obligation on
behalf of BodyBilt to pay XxXxxxxx a commission under Paragraphs 11 and 12 of
the Employment Agreement. BodyBilt and its shareholders contend that it does
not trigger any obligation. XxXxxxxx contends that it does.
4. Consideration. The parties agree that unless this dispute is
resolved, it could postpone, delay, and even de-rail, the contemplated
transaction. In consideration for moving the contemplated transaction towards
closing an IPO, XxXxxxxx and BodyBilt have agreed to enter into this agreement.
BodyBilt's consideration supporting this agreement is the delivery of the
Letter of Intent by BodyBilt's shareholders to XxXxxxxx.
COVENANTS.
5. Conditional release. In the event that the contemplated
transaction actually closes through an IPO, then XxXxxxxx hereby releases
BodyBilt, its shareholders, officers, and agents of any and all obligations of
any type referred to in Paragraphs 11 and 12 of the Employment Agreement.
6. Intent. The parties acknowledge that by agreement of the parties
the contemplated transaction may change or vary in a variety of ways and by
varying degrees from the date of delivery of the Letter of Intent until the
actual funding and closing of an IPO. It is the intent of XxXxxxxx and
BodyBilt that if the contemplated transaction matures into a closed IPO that
all of BodyBilt's obligations under Paragraphs 11 and 12 of the Employment
Agreement are completely and fully released as stated in paragraph 5
notwithstanding the fact that the final transaction may vary, slightly or
significantly, from the contemplated transaction as set out in the Letter of
Intent.
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7. No waiver. In the event that the contemplated transaction does
not close through an IPO, this agreement is null and void. Additionally,
neither BodyBilt, nor XxXxxxxx, shall be able to use this agreement in any
future dispute as evidence to support their position or to contradict the
other's position.
Signed this 23 day of May, 1996.
/s/ XXXXXX XxXXXXXX May 23, 1996
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Xxxxxx XxXxxxxx Date
BodyBilt Seating, Inc.
By: /s/ XXXX XxXXXXXX May 23, 1996
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Xxxx XxXxxxxx, President Date
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