Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Sleepy's Inc. S-1 69 418K
2: EX-3 Exhibit 3.1 7 24K
3: EX-3 Exhibit 3.2 21 53K
4: EX-10 Exhibit 10.1 12 60K
5: EX-10 Exhibit 10.2 10 41K
6: EX-10 Exhibit 10.3 10 47K
7: EX-10 Exhibit 10.4 2 11K
8: EX-10 Exhibit 10.8 4 29K
9: EX-22 Exhibit 22.1 4 15K
10: EX-23 Exhibit 23.1 1 6K
11: EX-27 Exhibit 27.1 1 9K
EX-10 — Exhibit 10.2
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[SLEEPY'S LOGO]
April 1, 1996
Mr. Howard Roeder
3109 Yale Avenue
Marina del Rey, California 90292
Dear Howard:
We, Bedding Discount Center Inc., are pleased to send you this letter of
agreement to confirm the details of your employment by us. During conversations
between you and us, you and we have negotiated and agreed as follows:
1. Upon the terms and conditions hereinafter set forth, we hereby employ
you and you hereby accept such employment and agree to serve our corporation in
the capacity of Co-President or, at our option, President, for a period of three
(3) years commencing on May 1, 1996, unless sooner terminated in accordance with
this letter agreement (the "term"). If. at the conclusion of the three (3)
years, you are then employed by us pursuant to this letter agreement, then, (a)
unless sooner terminated in accordance with this letter agreement. the terms
shall be extended until ninety (90) days after you or we shall provide to the
other notice of termination, which may given at any time and for any reason or
no reason, and (b) the terms and conditions of this letter agreement shall
continue to apply to your continued employment except you shall not be entitled
to severance, or any other damages, pursuant to paragraph 5 below or otherwise,
in the event of the termination of your employment for any reason.
2. The term of this agreement shall be terminated upon your death and may
be terminated by us by reason of your disability (as defined below), for cause
(as defined below), or without cause (but subject to the severance provisions
below), and, in such event, we shall have no further liability or obligation to
you hereunder except as expressly provided herein.
3 During your employment by us, you shall devote your full time and
attention and best effort, to the exclusion of all other businesses and
ventures, to our business. including the business of our affiliates, in
accordance with our policies established from time to time by us. You shall be
under and subject to the supervision of, and directly responsible to, the Board
of Directors of this corporation. or its designee, and the Chairman of our Board
of
175 Central Avenue South Bethpage, New York 11714-4940 (516) 844-8800
Mr. Howard Roeder
April 1, 1996
Page 2
Directors, who shall direct, define and may revise from time to time your
responsibilities hereunder consistent with your position of Co-President or
President, as the case may be. Nothing herein contained shall be construed to
prohibit you from holding, solely as an investment, five percent (5%) of the
securities of any entity which are publicly trade over a recognized exchange
and such entity does not compete, direction or indirectly, with our business.
4. During the term, you shall be paid by us (in addition to the other
benefits provided under this letter Agreement), in consideration of all services
rendered by you, a salary as follows: during the first year of the term, at the
annual rate of Two Hundred Thousand Dollars ($200,000.00); during the second
year of the term, at the annual rate of Two Hundred Twenty Thousand Dollars
($220,000.00); during the third year of the term, at the annual rate of Two
Hundred Forty Two Thousand Dollars ($242,000.00). If the term shall be extended
as provided above, then your salary shall be determined by our Board of
Directors, in its discretion, but in no event shall such salary be less than the
annual rate of Two Hundred Forty Two Thousand Dollars ($242,000.00). The salary
shall be payable in equal monthly installments or other installments in
accordance with our general practice. If your employment shall be terminated for
any reason, your salary shall cease and you shall be paid your salary pro-rated
to the date of such termination.
5. If we terminate your employment during the term other than for cause,
death or disability, then, provided you shall fully and timely comply with all
of the terms and conditions of paragraphs 6 and 12 below, we shall pay to you,
as liquidated damages, severance of, (a) if the termination is effective within
the first six (6) months of the term. an amount equal to the remainder of the
salary payable to you during the first year of the term, or (b) if the
termination is effective on or after the first six (6) months of the term, an
amount equal to six (6) months of salary calculated at the rate then payable to
you. The severance amount shall be payable in equal monthly on the first day of
the first month after termination and continuing on the first day of each month
thereafter until completely paid, and shall be subject to withholding
requirements.
6. You have advised us that prior to commencement of your employment, you
will be relocating from the State of California to Long Island, State of New
York. We shall pay to you the reasonable expenses incurred by you in moving
furniture, normal household goods and personal belongings to your new residence
and incidental expenses (including airfare for you and your family and hotel
accommodations on Long Island, New York, if necessary, pending relocation to
permanent lodging), provided, however, the aggregate of all amounts for which we
shall reimburse you under this provision shall not exceed Fifteen Thousand
Dollars ($15,000.00) and further provided that you shall submit to us
satisfactory documentation supporting your expenditures. However, if you shall
terminate your employment with us within the first year of the term, you shall
repay to us all monies paid or advanced to you pursuant to this paragraph.
Mr. Howard Roeder
April 1, 1996
Page 3
7. During the term, we shall provide you with the use, in correction with
your duties, of an automobile suitable and typical for a person occupying your
position (for example, a Lexus 400) and we shall pay the costs of insurance,
repairs and maintenance thereon to the extent such costs are directly related to
your performance of your duties hereunder. You shall take good care of such
automobile and promptly return it to us upon termination of your employment.
8. We shall include you, your spouse and your eligible children during the
term under the group medical insurance coverage customarily maintained by us for
our employees as same exists from time to time; the premiums or costs charged by
the provider of such coverage shall be born by us, provided, however, we shall
not be required to expend more than the customary amount incurred for individual
or family coverage, as the case may be. We shall not be liable for any loss or
damage sustained by you or any member of your family by reason of the failure of
the insurance provider to provide coverage to you or any member of your family
or to approve any claim made by or on behalf of you or any member of your
family. You acknowledge that we have made and are making no representation that
you or your family members are or will be eligible for coverage under such
insurance plans; if you or any family members are not eligible, neither you nor
any member of your family shall be entitled to any compensation from us on
account thereof.
9. You shall be entitled to three (3) weeks paid vacation during each year
of the term, provided that the scheduling of your vacations shall be subject to
our business exigencies as determined by us from time to time. In addition, you
shall be entitled to paid sick and personal days in accordance with our policy,
as amended from time to time, for our executives and key management employees in
general. The foregoing benefits shall not be cumulative. compensatory or
vesting.
10. You shall receive reimbursement for all ordinary and necessary
vouchered expenses incurred in the course of your employment by us, properly
documented and directly related to your responsibilities hereunder; in addition,
upon request, advances will be provided for such expenses. All such expenses
must be reasonable and must be incurred in accordance with our procedures and
principles, as established and revised from time to time by us.
11. In the event that we shall have received a written statement from a
reputable independent physician chosen by us to the effect that your shall have
become so incapacitated as to be unable to resume, within ninety (90) days after
the commencement of your incapacity, your full time employment hereunder by
reason of physical or mental illnesses or injury, or you have not substantially
performed your duties hereunder for ninety (90) days (exclusive of any vacation
permitted hereunder and any period of less than two (2) weeks during ,which you
have resumed your duties hereunder) by reason of any such physical or mental
illness, you shall be considered "disabled" or subject to a "disability" and we
may terminate your employment in which event your salary shall be paid to you,
on a pro-rated basis, through
Mr. Howard Roeder
April 1, 1996
Page 4
the week in which the termination occurs, and we shall have no further liability
or obligation to you hereunder.
12. a. You covenant and agree that during the period between your execution
of this letter agreement and the commencement of the term, during your
employment, whether or not pursuant to this agreement, and for a period
commencing on the cessation of such employment and ending on the
"Post-Employment Termination Date" (defined below) (the aggregate of said
periods constituting the "covenant term"), within the states of New York, New
Jersey and Connecticut and within such other states for which, during your
employment, we have formulated plans to commence retail bedding operations whose
implementation is imminent, that is, within six (6) months thereafter, you will
not, directly or indirectly, whether as a shareholder, officer, director, sole
proprietor, partner, employee, consultant, representative, independent
contractor, agent, lender or otherwise, engage in the business of the sale at
retail of bedding, whether or not such business is conducted in person, via
telephone or otherwise. As used herein, "bedding" includes bedding, beds
(including day beds, bunk beds, electric beds, metal beds, futons), mattresses,
box springs, head and foot boards. As used herein, "Post-Employment Termination
Date" means (1) if your employment is terminated by you for any reason, or if
your employment is terminated by us for cause, then two (2) years after the
cessation of your employment and (2) if your employment is terminated by us
other than for cause, then one (1) year after the cessation of your employment.
b. You recognize and acknowledge that the information and data about
our business and our affiliates' businesses regarding costs, purchasing,
vendors, profits, markets, sales, products, personnel, pricing policies,
operational methods, advertising and similar information as they exist from time
to time ("Confidential Information"), have been developed by us and our
affiliates at great effort and expense, are not readily available to the public
are highly confidential and proprietary, and are valuable, special and unique
assets of our business and of the businesses of our affiliates, access to and
knowledge of which are essential to the performance of your duties during your
employment by us. You will not, without the written consent of our Board of
Directors and except as may be required by applicable law, by court order after
reasonable prior notice to us and as may be necessary in the performance by you
of your duties hereunder, during or after the covenant term, in whole or in
part, disclose any Confidential Information to any person, firm, corporation, or
other entity for any reason or purpose whatsoever, nor shall you make use of any
such information for your own purposes or for the benefit of any person, firm,
corporation or other entity (except us or our affiliates at our or their
specific request in each instance) under any circumstances during or after the
covenant term.
c. You recognize that all materials that are or which may come into
your possession or control relating to Confidential Information remain our or
our affiliates' property. Such materials may consist of audio or video tapes,
agreements, invoices, memorandum, books, forms, reference materials, promotional
material, advertising material,
Mr. Howard Roeder
April 1, 1996
Page 5
sale material, financial material, address books, lists, rolodexes, notes,
software, electronic data, and the like. You will not copy or make extracts from
any of such materials and, upon demand, whether such demand is made during or
after your employment by us, you will promptly return to us or our affiliates
all of such materials in your possession or control.
d. You shall not, during the covenant term, interfere with, disrupt or
attempt to disrupt the relationship, contractual or otherwise, between us or our
affiliates and any of our or their vendors, suppliers or employees. Any contact
or communication with, or solicitation of, any of our or our affiliate's
employees with the intent, purpose or effect of inducing or encouraging said
employee to leave his or her employment with us or with our affiliate, or to
breach his or her employment agreement with, or other obligations to, us or to
our affiliate, and any contact or communication with, or solicitation of. any
vendors or suppliers of ours or of our affiliates with the intent, purpose or
effect of inducing or encouraging such vendor or supplier to alter, terminate or
reduce its business relationship with us or our affiliate, shall constitute a
breach of this provision.
e. You hereby sell, transfer and assign to us, or to any person or
entity designated by us, the your entire right, title and interest in and to all
inventions, processes, formulae, ideas, disclosures and improvements, whether
patented or unpatented, and copyrightable material, trademarks and trade names
made or conceived by you, solely or jointly, during your employment by us, which
relate to methods, apparatus, designs, logos, names, marks, products, processes
or devices, promoted, sold, leased, used or under consideration or development
by us, or which otherwise relate to or pertain to our business, functions or
operations. You shall communicate promptly and disclose to us, in such form as
we may request, all information, details and data pertaining to the
aforementioned, and shall execute and deliver to us such formal transfers and
assignments and such other papers and documents as may be required of you or
desirable to permit us or any person or entity designated by us to file and
prosecute patent, copyright and trademark applications, as the case may be, and
such other registrable (and non-registrable) rights and protections as we shall
deem appropriate. Any design, logo, name or marks relating to our business,
functions or operations and disclosed within one (1) years following the
termination of your employment shall be deemed to fall within the provisions of
this subparagraph unless proved to have been first conceived and made following
such termination.
f. Except as may be required by law, you shall not disclose, before,
during or after your employment, this agreement or any of the terms or
conditions hereof, other than to your attorneys, accountants and similar agents,
and then, only to the extent necessary to services rendered by them to you and
provided in each such instance, you shall impose the sarne responsibilities and
duty of confidentiality upon such agents.
g. You acknowledge that the foregoing provisions, restrictions and time
limitations contained in this paragraph are reasonable and properly required for
the
Mr. Howard Roeder
April 1, 1996
Page 6
adequate protection of our business and the business of our affiliates, and that
in the event that any such provision, restriction or limitation is deemed to be
unreasonable by a court, then you agree to submit to the reduction of said
provision, restriction or limitation to such as said court shall deem
reasonable.
h. You agree that in the event you should be in violation of the
aforementioned covenants, then the time limitations thereof shall be extended
for a period of time equal to the period of time during which such breach or
breaches should occur; in the event we or an affiliates of us should seek relief
in court, then the covenant shall also be extended for a period of time equal to
the pendency of such proceedings, including appeals.
i. The provisions of this paragraph 12 shall be enforced to the fullest
extent possible under the laws and public policies applied in each jurisdiction
in which enforcement is sought. Accordingly, if any particular provision of this
paragraph 12 shall be adjudicated to be invalid or unenforceable, this paragraph
12 shall be deemed amended to delete therefrom the portion thus adjudicated to
be invalid and unenforceable and revised in accordance with any such
jurisdiction, such deletion and revision to apply only with respect to the
operation of this paragraph 12 in the particular jurisdiction in which such
adjudication is made.
j. You acknowledge that in the event of a breach of, or threatened
breach by you of, the provisions of this paragraph 12, such breach will give
rise to irreparable harm to us and our affiliates, and may not be adequately
compensable in monetary damages; we and our affiliates shall be entitled,
without showing any actual damage, to a temporary injunction pending the
determination of the controversy, and a permanent injunction, without our
posting a bond or providing other security, restraining you from violating these
covenants and payment by you of the expenses of obtaining and enforcing such
relief. Nothing herein shall be construed as prohibiting us and our affiliates
from pursuing any other remedies available us or our affiliates for such breach
or threatened breach, including the recovery of damages from you which such
damages you shall promptly pay, including the costs of collection thereof. These
covenants on your part shall be construed as agreements independent of any other
provisions in this agreement; the existence of any claim or cause of action of
you against us or an affiliate of us, whether predicated on this agreement or
otherwise, shall not constitute a defense to the enforcement by us our
affiliates of these covenants.
13. As an inducement to us to enter into this agreement and consummate the
transactions contemplated hereby, you represent and warrant that: you are an
individual residing in the State of California; this agreement has been duly and
validly executed and delivered by you and constitutes your valid, binding and
enforceable obligation; you have the right, power, legal capacity and authority
to enter into and perform your obligations under this agreement, and no consent
of any third party is necessary with respect thereto; the execution and delivery
of this letter agreement by you, the consummation of the transaction
contemplated herein, and the performance of, fulfillment of and compliance with
the terms and conditions hereof by you do
Mr. Howard Roeder
April 1, 1996
Page 7
not and will not (either immediately or with lapse of time, or both) (i) violate
any provisions of any judicial or administrative order, award, judgment or
decree applicable to you, (ii) conflict with or result in a breach of, or
constitute a default under any agreement or instrument to which you are a party
or by which you are bound; there is no litigation, proceeding or governmental
investigation existing or pending, or any order, injunction or decree
outstanding, against you nor do you know or have reasonable grounds to know of
any basis for any such litigation, proceeding or governmental investigation.
14. As an inducement to you to enter into this agreement and consummate the
transactions contemplated hereby, we hereby represent and warrant to you that
we are a corporation duly organized, validly existing and in good standing under
the laws of the State of New York and have all requisite corporate power and
authority to enter into this agreement and consummate the transactions
contemplated hereby; this agreement, the consummation of the transactions
contemplated herein and the performance, observance and fulfillment by us of all
of the terms and conditions hereof on our part to be performed, observed and
fulfilled, have all been approved and authorized by our shareholders and board
of directors; this agreement has been duly and validly executed and delivered by
us and constitutes our valid, binding and enforceable obligation; the execution
and delivery of this agreement, the consummation of the transactions
contemplated herein and the performance of, fulfillment of and compliance with
the terms and conditions hereof by us do not (either immediately or with lapse
of time, or both) (i) violate any provision of any judicial or administrative
order, award, judgment or decree applicable to us, (ii) conflict with any of the
provisions of our Articles of Incorporation or By-Laws, or (iii) conflict with,
result in a breach of or constitute a default under any agreement or instrument
to which we are a party or by which we are bound; we have the right, power,
legal capacity and authority to enter into and perform our obligations under
this agreement, and no consent of any third party is necessary with respect
thereto.
15. Subject to the provisions of our certificate of incorporation and
bylaws, each as amended from time to time, we shall indemnify you to the
fullest extent allowed by, and subject to the provisions of, Section 722 of the
Business Corporation Law of the State of New York for all amounts (including
judgments, fines, settlement payments, expense and reasonable attorney's fees)
incurred or paid by you in connection with any action, suit, investigation or
proceeding arising out of or relating to the performance by you of services for,
or the acting by you as an officer, director or employee of our corporation, or
any other person or enterprise at our request, provided that (1) we shall have
the sole right to defend you with counsel of our choice, (2) you shall fully
cooperate with us in the defense of such matters, and (3) we shall have the sole
right to settle all such matters provided that you shall have no liability
resulting therefrom.
16. As used in this agreement,
Mr. Howard Roeder
April 1, 1996
Page 8
a. "Affiliate" shall mean any person in common control with, in control
of or controlled by another person, or a spouse, descendent, ancestor of such
other person or spouse of such other person.
b. "Cause" shall mean (1) your failure to comply with any of the
material terms of this letter agreement, (2) your failure to perform your duties
hereunder, (3) your disregard of policy directions from the Board of Directors
of our corporation, (4) your engagement, in your capacity as an officer of this
corporation, in gross misconduct injurious to us, or (5) your conviction of a
crime involving moral turpitude or a violation or crime whose effect is to
materially interfere with your performance of your obligations hereunder. For
purposes of this definition, an act, or failure to act, on your part under (1),
(2) or (3) of the preceding sentence shall be excused if such act, or failure to
act, on your part was undertaken or omitted by you in good faith, under a
reasonable belief that your act or ommission was in our best interests and was
not contrary to an express directive of our Board of Directors.
c. The terms "hereby", "hereof", "herein", "hereunder", and any similar
terms as used in this agreement refer to this agreement, and the term
"heretofore" shall mean before, and the term "hereafter" shall mean after, the
date of this agreement.
d. The words importing persons shall include natural persons, sole
proprietorships, firms, associations, partnerships (including limited
partnerships), joint ventures, trusts, associations, corporations and other
legal entities or government (whether Federal, state, county, city, municipal,
town, village or otherwise, including any instrumentality, division, agency,
body or department thereof).
e. The word "shall" is mandatory; the word "may" is permissive.
f. Whenever used herein, words importing the singular shall include the
plural, and vice versa, and words importing the masculine shall include the
feminine, and vice versa, unless the context requires otherwise.
17. This agreement and your engagement by us shall be construed under the
internal laws of the State of New York without regard to principle of conflict
of laws. In the event that any dispute should arise under or by virtue of this
agreement or otherwise as between you and us, or you and any of our affiliates,
you agree that the dispute shall be litigated and the form for such litigation
shall be either the State Courts of New York or a Federal Court, with venue in
either case in the County of Nassau, State of New York. You hereby consent to
the in personam jurisdiction of such courts and you hereby waive trial by jury
in any action or proceeding arising out of this agreement or any other matter
between or among you and us or any of our affiliates.
Mr. Howard Roeder
April 1, 1996
Page 9
18. In case any one or more of the provisions contained in this agreement
shall be invalid,l illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
19. No remedy conferred herein, or provided at law or in equity, is
intended to be exclusive of any other available remedy, but each and every such
remedy shall be cumulative and in addition to every other remedy given under or
in connection with this agreement or now or hereafter existing at law or in
equity.
20. The failure to insist upon the strict performance of all or any part of
any provision hereof, or to seek remedies for a default or breach in connection
therewith, shall not be construed as a waiver or impair any right or power, but
any such right and power may be exercised from time to time and as often as may
be deemed expedient. The waiver of all or any part of any provision shall not
affect or alter this agreement or all or any part of any other provision hereof,
nor shall it render unnecessary consent to, or approval of, any subsequent
similar act
21. This agreement supersedes all previous agreements and understandings
between you and us and constitutes the entire understanding between you and us.
No term provision or condition of agreement may be modified or discharged
unless such modification or discharge is authorized by our Board of Directors
and is agreed to in writing and signed by our authorized representative and you.
22. This agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and shall not be assigned by
you nor shall your responsibilities hereunder be delegated by you.
23. You and we intend that this agreement shall not benefit or create any
night or cause of action in or on behalf of any person other than you, us and
our affiliates.
24. You acknowledge that you have had the opportunity to consult with an
attorney of your choice concerning, and you fully understand, this agreement,
its meaning and implications, that you fully understand this agreement and enter
into this agreement freely and voluntarily.
25. Each of us has contributed to the preparation of this agreement and no
party shall be considered the draftsman hereof for purposes of construction of
its terms or drawing inferences in favor or against any either of us.
Mr. Howard Roeder
April 1, 1996
Page 10
If this letter agreement correctly sets forth our full and complete
understanding with respect to the subject matter hereof, please sign the
enclosed copy and return it to us as soon as possible.
BEDDING DISCOUNT CENTER INC.
By /s/ DAVID ACKER
-----------------------------------
David Acker, President
READ AND AGREED THIS 2nd
DAY OF APRIL, 1996.
/s/ HOWARD ROEDER
-------------------------------------
HOWARD ROEDER
Witness:
-------------------------------------
Dates Referenced Herein
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| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 6/7/96 | | | | | | | None on these Dates |
| | 5/1/96 | | 1 |
| | 4/1/96 | | 1 | | 10 |
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