EXHIBIT 10.8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") made as of the 2nd day of June,
2005 by and between Xxxx Xxxx ("Executive") and DHB Industries, Inc., a Delaware
corporation (the "Company").
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the receipt and
sufficiency of which is acknowledged, the parties agree:
1. TERM. The Company agrees to employ, directly or through one of its
subsidiaries, Executive, and Executive agrees to be employed by the Company,
directly or indirectly, subject to the terms and conditions of this Agreement,
for the period commencing on June 2, 2005 (the "Effective Date") and terminating
on the fifth anniversary of the Effective Date (the "Employment Period"), unless
earlier terminated as provided in Section 5.
2. EMPLOYMENT DUTIES.
2.1 During the Employment Period, Executive shall be employed
in the business of the Company and its subsidiaries. Executive shall serve with
the title of Senior Vice President - Mergers and Acquistions. Executive shall
devote substantially all of his working time and efforts to the performance of
duties under this Agreement.
2.2 In performing duties hereunder, Executive shall be
available for reasonable travel, as the needs of the business require. Executive
shall be based in Las Vegas, Nevada.
2.3 Executive shall entitled to hire such additional personnel
as Executive deems appropriate and necessary in order to assist him in
performing his duties hereunder, subject to the prior approval of he Chief
Executive Officer of the Company.
3. COMPENSATION/BENEFITS. In consideration of Executive's services
hereunder, the Company shall provide Executive the following:
3.1 BASE SALARY. During the Employment Period, the Executive
shall receive an annual rate of base salary ("Base Salary") in an amount not
less than $250,000.
3.2 BONUSES. After the close of each fiscal year during the
Employment Period, the Company shall review the performance of the Company and
of Executive during the prior fiscal year, and the Company may provide Executive
with additional compensation as a bonus if the Board, or any compensation
committee thereof, in its discretion, determines that Executive's contribution
to the Company warrants such additional payment and the Company's anticipated
financial performance during the present period permits such payment. Bonuses
shall be paid as a lump sum not later than sixty (60) days after the end of the
Company's preceding fiscal year, provided Executive remains employed and has not
given written notice of termination at the time such payment is due.
3.3 VACATIONS. Executive shall be entitled to two (2) weeks of
paid vacation per calendar year, provided, however, that commencing after the
first anniversary of this Agreement Executive shall be entitled to three (3)
weeks paid vacation. Unused vacation shall not be carried over to any subsequent
year.
3.5 STOCK WARRANT. To induce Executive to enter into this
Agreement, Executive shall be granted a warrant to purchase shares of the
Company's common stock by the Company, pursuant to a separate warrant agreement,
dated the date hereof, between the Company and Executive, in the form attached
as SCHEDULE 3.5.
3.6 OTHER BENEFITS. The Company shall provide to Executive
such other benefits, including the right to participate in medical and other
benefit plans, as are made generally available to executives of the Company from
time to time.
4. EXPENSES/INDEMNIFICATION.
4.1 EXPENSES. The Company shall reimburse Executive for the
reasonable business expenses incurred by Executive in the course of performing
her duties for the Company, upon submission of invoices, vouchers or other
appropriate documentation, as may be required in accordance with the policies in
effect from time to time for executive employees of the Company, which policies
have been provided to Executive.
4.2 INDEMNITY. To the fullest extent permitted by law, the
Company shall indemnify Executive with respect to any actions commenced against
Executive in his capacity as an officer, director, employee, agent or fiduciary
or former officer, director, employee, agent or fiduciary of the Company, or any
Subsidiary of the Company thereof for which Executive may render service in such
capacity, whether by or on behalf of the Company, its shareholders or third
parties, and the Company shall advance to Executive on a timely basis an amount
equal to the fees and expenses incurred in defending such actions, after receipt
of an itemized request for such advance, and an undertaking from Executive to
repay the amount of such advance, with interest at a reasonable rate from the
date of the request, as determined by the Company, if it shall ultimately be
determined that Executive is not entitled (as a matter of law or by judicial
determination) to be indemnified against such expenses. This indemnity shall
survive any termination of employment under this Agreement and is in addition to
and not in limitation of any other right to indemnification or exoneration to
which Executive is entitled at law, or under the governing charter documents of
the Company. The Company agrees to use its best efforts to maintain officers'
and directors' liability insurance, including coverage for Executive.
5. TERMINATION; CHANGE OF CONTROL.
5.1 AT-WILL EMPLOYMENT. Executive's employment hereunder is
"at will" and may be terminated at any time, with or without cause, at the
option of the Company, subject only to the obligations under the Section 5.2
below. Additionally, this Agreement may be terminated by Executive by delivering
written notice to the Company in the manner specified below. Upon any
termination hereunder, the Employment Period shall expire.
5.2 RIGHTS UPON TERMINATION; PAYMENT OF BENEFITS EARNED
THROUGH DATE OF TERMINATION. Upon any termination of Executive's employment
during the Employment Period, Executive shall in all events be paid all accrued
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but unpaid Base Salary and all earned but unpaid compensation (vacation) earned
through his Date of Termination (as defined below). Executive shall also retain
all such rights with respect to vested equity-based awards as are provided under
the circumstances under the applicable grant or award agreement, and shall be
entitled to all other benefits which are provided under the circumstances in
accordance with the provisions of the Company's generally applicable employee
benefit plans, practices and policies and Executive shall have no further
entitlements with respect thereto.
5.3 NOTICE OF TERMINATION. Notice of termination of this
Agreement or of any termination of Executive's employment (other than by reason
of death) shall be communicated by written notice (a "Notice of Termination")
from one party to the other in accordance with this Section 5 and Section 6.
"Date of Termination," with respect to any termination of Executive's employment
during the Employment Period, shall mean the effective date of termination
specified in the Notice of Termination.
5.4 CHANGE OF CONTROL. If an Event of a Change in Control (as
defined below) occurs during the Employment Period, Executive shall be entitled
to the following benefits: (i) the immediate vesting of all outstanding warrants
and/or options to purchase shares of the Company's common stock and any such
outstanding warrants and/or options held by Executive shall remain exercisable
through the end of the stated term thereof, (ii) a cash lump sum payment equal
to four (4) months base salary payable at Executive's then current rate, and
(iii) medical benefits provided under Section 3.6 for a period of four (4)
months commencing with the date of consummation of the Event of a Change in
Control. For purposes of this Agreement, an "Event of a Change in Control" shall
mean (a) the sale, whether by way of merger, consolidation, or other
disposition, of all or substantially all of the business and/or assets of the
Company, (b) the sale by the then stockholders of the Company in a single
transaction or in a series of related transactions of at least 50% of the
outstanding voting shares of the Company; (c) an exchange by the then
stockholders of the Company of their shares in a transaction that qualifies as a
reorganization within the meaning of the Internal Revenue Code of 1986, as
amended; or (d) the liquidation or dissolution of the Company, except that a
liquidation or reorganization effected in a bankruptcy case by or against the
Company under Title 11 of the United States Code, as well as any transactions
carried out by or for the Company in connection with such bankruptcy liquidation
or reorganization, shall not be an Event of a Change in Control.
6. NOTICE. Any notice required or permitted hereunder shall be in
writing and shall be deemed sufficient when given by hand or by nationally
recognized overnight courier or by express, registered or certified mail,
postage prepaid, return receipt requested, and addressed, if to the Company at
000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000, and if to Executive at the
address set forth in the Company's records (or to such other address as may be
provided by notice). Notice shall be effective three (3) days after it is
delivered to any courier, or immediately if delivered in hand.
7. MISCELLANEOUS. This Agreement and its schedules constitute the
entire agreement between the parties concerning the subjects hereof and
supersedes any and all prior agreements, term sheets or understandings. This
Agreement may not be assigned by Executive, and may be assigned by the Company
and shall be binding upon, and inure to the benefit of, the Company's successors
and assigns. The Company will require any successor (whether direct or indirect,
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by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
Headings herein are for convenience of reference only and shall not define,
limit or interpret the contents hereof.
8. AMENDMENT. This Agreement may be amended, modified or supplemented
by the mutual consent of the parties in writing, but no oral amendment,
modification or supplement shall be effective. No waiver by either party of any
breach by the other party of any condition or provision contained in this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by Executive or an
authorized officer of the Company, as the case may be.
9. SEVERABILITY. The provisions of this Agreement are severable. The
invalidity of any provision shall not affect the validity of any other
provision, and each provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
10. RESOLUTION OF DISPUTES; ENFORCEMENT. Any controversy or claim
seeking equitable relief pursuant to this Agreement or any Schedule to this
Agreement, all controversies and claims arising under or in connection with this
Agreement or relating to the interpretation, breach or enforcement hereof and
all other disputes between the parties in connection with the employment of the
Executive shall be heard in the courts of the State of New York ("Court") which
shall have exclusive jurisdiction of any and all such disputes and which shall
apply the law specified in Section 15 below. Each party shall pay the cost of
his or its own legal fees and expenses incurred in connection with any such
litigation. No party to any such litigation shall be liable to the other for
multiple, punitive, exemplary or consequential damages. All parties consent to
the jurisdiction of the Court, and agree INTER ALIA that service may be had
pursuant to the provisions of any "long-arm statute" so-called applicable to
proceedings pending within such Court.
11. SURVIVORSHIP. The provisions of Section 10 of this Agreement shall
survive Executive's termination of employment. Other provisions of this
Agreement shall survive any termination of Executive's employment to the extent
necessary to the intended preservation of each party's respective rights and
obligations.
12. BOARD ACTION. Where an action called for under this Agreement is
required to be taken by the Board of Directors, such action shall be taken by
the vote of not less than a majority of the members then in office and
authorized to vote on the matter.
13. WITHHOLDING. All amounts required to be paid by the Company shall
be subject to reduction in order to comply with applicable federal, state and
local tax withholding requirements.
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14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
15. GOVERNING LAW. This Agreement shall be construed and regulated in
all respects under the internal laws of the State of New York, without regard to
principles of conflict of laws.
19. CAPTIONS. All captions are provided for convenience, do not form a
part of this Agreement, and are not admissible for purposes of construction.
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IN WITNESS WHEREOF, this Agreement is entered into as of the date and
year first above written.
DHB INDUSTRIES INC.
By:/s/ XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
Its: Compensation Committee Chairman
/s/ XXXX XXXX
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Xxxx Xxxx
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