Employment Agreement - Armor Holdings Inc. and Warren B. Kanders
ARMOR HOLDINGS, INC.
1400 Marsh Landing Parkway
Jacksonville, Florida 32250
January 1, 2002
Mr. Warren B. Kanders
Two Soundview Drive
Greenwich, Connecticut 06830
Dear Warren:
This letter agreement will set forth our understanding with respect to the
arrangements relating to your employment services as Executive Chairman of the
Board of Directors of Armor Holdings, Inc. (the "Company").
1. Employment. The Company hereby employs Warren B. Kanders ("Kanders") to
serve as the Executive Chairman of the Board of Directors of the Company, and
Kanders hereby accepts such employment from the Company, upon the terms and
subject to the conditions set forth in this letter agreement.
2. Term. This agreement shall commence on the date hereof and shall
continue for a period of five years expiring on December 31, 2006 (the "Term").
3. Duties. During the Term of this agreement, Kanders shall serve as the
Executive Chairman of the Board of Directors of the Company, and as such shall
lead the Company's Board of Directors in establishing the strategy and overall
objectives of the Company and in reviewing the performance of the Company's
management in, among other things, pursuing such strategy and achieving such
objectives. In addition, Kanders will act as Chairman of the Board at meetings
of the Board of Directors and of the stockholders of the Company. Kanders will
determine the amount of time during normal business hours to devote to the
Company in his capacity as Executive Chairman of the Board, with the Company
acknowledging that (i) Kanders' services under this agreement shall not require
the full time and attention of Kanders, and (ii) Kanders is specifically
permitted to attend to and further develop his other interests to the extent
that they do not significantly interfere with his duties hereunder or conflict
with the provisions of Sections 5 and 6 of this agreement, including, without
limitation, the following:
(A) Serving on the board of directors or any committees thereof (or
comparable governing body) or serving as an officer or partner of any business
corporation or entity (other than one in direct competition with the Company),
or civic or charitable
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Mr. Warren B. Kanders
January 1, 2002
Page 2
organization, or being a stockholder, partner or member, or otherwise having an
ownership interest in, any such entity;
(B) Delivering lectures, fulfilling speaking engagements or teaching at
educational institutions;
(C) Managing his legal affairs and personal investments; and
(D) Devoting reasonable periods of time to the management of any or all
of his current or future investments or any of their respective affiliates or
investments.
To the extent that any such activities have been conducted by Kanders prior to
the date hereof, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the date hereof
shall not be deemed to interfere with the performance of his duties and
responsibilities under this agreement.
4. Compensation and Benefits. (a) Kanders shall be entitled to participate,
at the sole and absolute discretion of the Compensation Committee of the Board
of Directors of the Company, in the Company's incentive stock option plan. Such
participation shall be based upon, among other things, Kanders' performance and
the Company's performance. In addition, Kanders may be entitled, during the term
of this agreement, to receive such additional options, at such exercise prices
and other terms, and/or to participate in such other bonus plans as the
Compensation Committee of the Board of Directors of the Company may, in its sole
and absolute discretion, determine. In addition to the foregoing, Kanders shall
be entitled to receive (i) options to purchase up to 300,000 shares of the
Company's Common Stock, of which 100,000 shares shall vest on each of December
31, 2002, December 31, 2003 and December 31, 2004, (ii) options to purchase up
to 250,000 shares of the Company's Common Stock, all of which shall vest on
December 31, 2006, and (iii) a stock grant of 100,000 shares of the Company's
Common Stock, all of which shall vest 15 years from the date hereof, subject to
acceleration under certain circumstances, all such awards to be upon the terms
and conditions as more fully set forth in a separate agreement between the
Company and Kanders. Options for the purchase of up to 75,000 shares of common
stock described in clause (i) above will have an exercise price of $23.93 per
share, and the balance of the options and stock grants described in clauses (i),
(ii) and (iii) above will be priced based upon the closing price of the shares
of the Company's common stock on the date the same are issued after the
Company's stockholders have approved adoption of the 2002 Stock Incentive Plan
of the Company. Upon the occurrence of a "change in control" (as hereinafter
defined), Kanders shall have the right to terminate this agreement. Upon the
occurrence of a "change in control", or upon the termination of this agreement
by the Company pursuant to Section 8(d) hereof, all of the options and stock
grants described in clauses (i), (ii) and (iii) of this Section 4(a) shall vest
and become immediately exercisable and saleable on the effective date of such
change in control or the date of such termination, as the case may be. Upon
termination of this agreement pursuant to Section 8(a) or Section 8(b) hereof,
the options and stock grants described in clauses (i), (ii) and (iii) of this
Section 4(a) that have not vested as
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Mr. Warren B. Kanders
January 1, 2002
Page 3
of such termination date shall no longer be exercisable and shall terminate and
be null and void, and any of such options or stock grants that have vested as of
such termination date shall remain vested in accordance with their terms and
this agreement. With respect to any stock grants that terminate in accordance
with the preceding sentence, to the extent that stock certificates have been
delivered to Kanders representing any such terminated stock grants, Kanders
shall promptly deliver such certificates to the Company for cancellation;
provided, that Kanders' failure to so deliver shall in no way contravene the
fact that such shares are null and void, and the Company shall give appropriate
instructions to its stock transfer agent and registrar in respect of the
foregoing.
(b) Kanders represents and warrants that he is not party to, or bound
by, any agreement or commitment, or subject to any restriction, including but
not limited to agreements related to previous employment containing
confidentiality or noncompete covenants, which in the future may have a
possibility of adversely affecting the business of the Company or the
performance by Kanders of his duties under this agreement.
(c) During the term of this agreement, Kanders shall be entitled to
participate in or benefit from, in accordance with the eligibility and other
provisions thereof, the Company's medical insurance and other fringe benefit
plans or policies as the Company may make available to, or have in effect for,
its personnel with commensurate duties from time to time. The Company retains
the right to terminate or alter any such plans or policies from time to time.
Kanders shall also be entitled to four weeks paid vacation each year, sick leave
and other similar benefits in accordance with policies of the Company from time
to time in effect for personnel with commensurate duties.
(d) In addition, Kanders shall be entitled to reimbursement of
out-of-pocket expenses incurred by Kanders in connection with the performance of
his services hereunder upon submission of proper documentation therefor, all in
accordance with the policies of the Company.
(e) For purposes hereof, a "change in control" of the Company shall be
deemed to have occurred in the event that: (i) individuals who, as of the date
hereof, constitute the Board of Directors of the Company cease for any reason to
constitute at least a majority of the Board of Directors of the Company;
provided, however, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Board of Directors shall be considered as though such
individual was a member of the Board of Directors of the Company as of the date
hereof, or (ii) the Company shall have been sold by either (A) a sale of all or
substantially all its assets, or (B) a merger or consolidation, other than any
merger or consolidation pursuant to which the Company acquires another entity,
or (C) a tender offer, whether solicited or unsolicited.
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Mr. Warren B. Kanders
January 1, 2002
Page 4
(f) In the event that this agreement is terminated by the Company with
cause pursuant to Section 8(c) hereof prior to the expiration of the Term, all
unvested options granted to the Employee pursuant to the terms of this Agreement
shall terminate, and all unvested stock granted to the Employee pursuant to
Section 4(a)(iii) hereof shall terminate and be null and void, and to the extent
that stock certificates have been delivered to Employee representing any such
terminated stock grants, the Employee shall promptly deliver such certificates
to the Company for cancellation; provided, however, that Employee's failure to
so deliver shall in no way contravene the fact that such shares are null and
void, and the Company shall give appropriate instructions to its stock transfer
agent and registrar in respect of the foregoing. In the event that this
agreement is terminated by Kanders, other than due to a change in control, all
vested options for the purchase of Common Stock of the Company and all vested
stock grants granted to Kanders shall remain subject to the terms of the
agreement by which such options and stock grants were issued, and the unvested
portion of such options and stock grants shall terminate and be null and void,
and to the extent that stock certificates have been delivered to Kanders
representing any such terminated stock grants, Kanders shall promptly deliver
such certificates to the Company for cancellation; provided, that Kanders'
failure to so deliver shall in no way contravene the fact that such shares are
null and void, and the Company shall give appropriate instructions to its stock
transfer agent and registrar in respect of the foregoing.
5. Confidentiality. For purposes of this Section 5, all references to the
Company shall be deemed to include all of the Company's affiliates and
subsidiaries.
(a) Confidential Information. Kanders acknowledges that as a result of
his employment with the Company, Kanders has and will continue to have knowledge
of, and access to, proprietary and confidential information of the Company,
including, without limitation, inventions, trade secrets, technical information,
know-how, plans, specifications, methods of operations, financial and marketing
information, information with respect to business and product development,
including, without limitation, acquisitions and new lines of business, and the
identity of customers and suppliers (collectively, the "Confidential
Information"), and that such information, even though it may be contributed,
developed or acquired by Kanders, constitutes valuable, special and unique
assets of the Company developed at great expense which are the exclusive
property of the Company. Accordingly, Kanders shall not, at any time, either
during or subsequent to the term of this agreement, use (whether for personal
gain or otherwise), reveal, report, publish, transfer or otherwise disclose to
any person, corporation or other entity, any of the Confidential Information
without the prior written consent of the Company, except to responsible officers
and employees of the Company and other responsible persons who are in a
contractual or fiduciary relationship with the Company and who have a need for
such information for purposes in the best interests of the Company, and except
for such information which is or becomes of general public knowledge from
authorized sources other than Kanders. Kanders acknowledges that the Company
would not enter into this agreement without the assurance that all such
Confidential Information will be used for the exclusive benefit of the Company.
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Mr. Warren B. Kanders
January 1, 2002
Page 5
(b) Return of Confidential Information. Upon the termination of
Kanders' employment with the Company, Kanders shall promptly deliver to the
Company all drawings, manuals, letters, notes, notebooks, reports and copies
thereof and all other materials relating to the Company's business, including
without limitation any materials incorporating Confidential Information, which
are in Kanders' possession or control.
(c) Inventions, etc. Kanders will promptly disclose to the Company all
designs, processes, inventions, improvements, discoveries and other information
related to the business of the Company (collectively "developments") conceived,
developed or acquired by him alone or with others during the term of this
Employment Agreement, whether or not conceived during regular working hours,
through the use of Company time, material or facilities or otherwise. All such
developments shall be the sole and exclusive property of the Company, and upon
request, Kanders shall deliver to the Company all drawings, models and other
data and records relating to such developments. In the event any such
developments shall be deemed by the Company to be patentable or copyrightable,
Kanders shall, at the expense of the Company, assist the Company in obtaining
any patents or copyrights thereon and execute all documents and do all other
things necessary or proper to obtain letters patent and copyrights and to vest
the Company with full title thereto.
6. Non-competition. For purposes of this Section 6, all references to the
Company shall be deemed to include all of the Company's affiliates and
subsidiaries. Kanders will not utilize his special knowledge of the business of
the Company and his relationships with customers, suppliers of the Company and
others to compete with the Company. During the period that this agreement is in
effect and for a period of two (2) years after the expiration or termination of
this agreement, Kanders shall not engage, directly or indirectly, or have an
interest, directly or indirectly, anywhere in the United States of America or
any other geographic area where the Company does business or in which its
products or services are marketed, alone or in association with others, as
principal, officer, agent, employee, director, partner or stockholder (except
with respect to his employment by the Company), or through the investment of
capital, lending of money or property, rendering of services or otherwise, in
any business competitive with or substantially similar to that engaged in by the
Company during the Term of this agreement (it being understood hereby, that the
ownership by Kanders of five percent (5%) or less of the stock of any company
listed on a national securities exchange shall not be deemed a violation of this
Section 6). During the same period, Kanders shall not, and shall not permit any
of his employees, agents or others under his control to, directly or indirectly,
on behalf of himself or any other person, (i) call upon, accept business from,
or solicit the business of any person who is, or who had been at any time during
the preceding two (2) years, a customer of the Company or any successor to the
business of the Company, or otherwise divert or attempt to divert any business
from the Company or any such successor, or (ii) directly or indirectly recruit
or otherwise solicit or induce any person who is an employee of, or otherwise
engaged by, the Company or any successor to the business of the Company to
terminate his or her employment or other relationship with the Company or such
successor, or hire any person who has left the employ of the Company or any such
successor during the preceding two (2) years. Kanders shall
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Mr. Warren B. Kanders
January 1, 2002
Page 6
not at any time, directly or indirectly, use or purport to authorize any person
to use any name, mark, logo, trade dress or other identifying words or images
which are the same as or similar to those used at any time by the Company in
connection with any product or service, whether or not such use would be in a
business competitive with that of the Company. Any breach or violation by
Kanders of the provisions of this Section 6 shall toll the running of any time
periods set forth in this Section 6 for the duration of any such breach or
violation.
7. Remedies. The restrictions set forth in Sections 5 and 6 are considered
by the parties to be fair and reasonable. Kanders acknowledges that the
restrictions contained in Section 5 and 6 will not prevent him from earning a
livelihood. Kanders further acknowledges that the Company would be irreparably
harmed and that monetary damages would not provide an adequate remedy in the
event of a breach of the provisions of Sections 5 or 6. Accordingly, Kanders
agrees that, in addition to any other remedies available to the Company, the
Company (i) shall be entitled to specific performance, injunction, and other
equitable relief to secure the enforcement of such provisions, (ii) shall not be
required to post bond in connection with seeking any such equitable remedies,
and (iii) shall be entitled to receive reimbursement from Kanders for all
attorneys' fees and expenses incurred by the Company in enforcing such
provisions. If any provisions of Sections 5, 6, or 7 relating to the time
period, scope of activities or geographic area of restrictions is declared by a
court of competent jurisdiction to exceed the maximum permissible time period,
scope of activities or geographic area, the maximum time period, scope of
activities or geographic area, as the case may be, shall be reduced to the
maximum which such court deems enforceable. If any provisions of Sections 5, 6,
or 7 other than those described in the preceding sentence are adjudicated to be
invalid or unenforceable, the invalid or unenforceable provisions shall be
deemed amended (with respect only to the jurisdiction in which adjudication is
made) in such manner as to render them enforceable and to effectuate as nearly
as possible the original intentions and agreement of the parties.
8. Termination. This agreement may be terminated prior to the expiration of
the Term set forth in Section 2 upon the occurrence of any of the events set
forth in, and subject to the terms of, this Section 8.
(a) Death. This agreement will terminate immediately and automatically
upon the death of Kanders.
(b) Disability. This agreement may be terminated at the Company's
option, immediately upon notice to Kanders, if Kanders shall suffer a permanent
disability. For the purposes of this agreement, the term "permanent disability"
shall mean Kanders' inability to perform his duties under this agreement for a
period of ninety (90) consecutive days or for an aggregate of one hundred twenty
(120) days, whether or not consecutive, in any twelve (12) month period, due to
illness, accident or any other physical or mental incapacity, as reasonably
determined by the Board of Directors of the Company and in accordance with
applicable law. In the event that a dispute arises with respect to the
disability of Kanders, the parties shall each select a physician licensed to
practice in the State of New York to make such a determination. If
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Mr. Warren B. Kanders
January 1, 2002
Page 7
the two (2) physicians selected cannot agree on a determination, they will
mutually select a third physician and the decision of the majority of the three
(3) physicians will be binding.
(c) Cause. This agreement may be terminated at the Company's option,
immediately upon notice to Kanders, upon: (i) breach by Kanders of any material
provision of this agreement and the expiration of a 10-day cure period for such
breach after written notice thereof has been given to Kanders (which cure period
shall not be applicable to clauses (ii) through (v) of this Section 8(c)); (ii)
gross negligence or willful misconduct of Kanders in connection with the
performance of his duties under this agreement; (iii) Kanders' failure to
perform any reasonable directive of the Board of Directors of the Company; (iv)
fraud, criminal conduct, dishonesty or embezzlement by Kanders; or (v) Kanders'
misappropriation for personal use of any assets (having in excess of nominal
value) or business opportunities (subject, however, to the permitted activities
set forth in Section 3 hereof) of the Company.
(d) Without Cause. This agreement may be terminated at any time by the
Company without cause immediately upon giving written notice to Kanders of such
termination. In such event, Kanders shall be entitled to the acceleration of all
options and stock grants in accordance with the provisions of Section 4(a)
hereof.
9. Tax Effect. If the compensation payable under this agreement, either
alone or together with other payments to Kanders from the Company or one of its
subsidiaries would constitute a "parachute payment" (as defined in Section 280G
of the Internal Revenue Code of 1986, as amended (the "Code")), such severance
compensation may be reduced to the largest amount as will result in no portion
of the severance compensation payments hereunder being subject to the excise tax
imposed by Section 4999 of the Code or being disallowed as deductions to the
Company under Section 280G of the Code. The determination of whether any
reduction shall be made in the severance compensation payments hereunder
pursuant to the foregoing provision shall be made jointly by Kanders and the
Company. Kanders shall be liable for the payment of income and excise taxes, if
any, applicable to him on such severance compensation.
10. Miscellaneous.
(a) Survival. The provisions of Sections 5, 6, and 7 shall survive the
termination of this agreement.
(b) Entire Agreement. This agreement sets forth the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject matter
hereof.
(c) Modification. This agreement may not be modified or terminated
orally, and no modification or waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party against whom the same is
sought to be enforced.
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Mr. Warren B. Kanders
January 1, 2002
Page 8
(d) Waiver. Failure of a party to enforce one or more of the provisions
of this agreement or to require at any time performance of any of the
obligations hereof shall not be construed to be a waiver of such provisions by
such party nor to in any way affect the validity of this agreement or such
party's right thereafter to enforce any provision of this agreement, nor to
preclude such party from taking any other action at any time which it would
legally be entitled to take.
(e) Successors and Assigns. Neither party shall have the right to
assign this agreement, or any rights or obligations hereunder, without the
consent of the other party; provided, however, that upon the sale of all or
substantially all of the assets, business and goodwill of the Company to another
company, or upon the merger or consolidation of the Company with another
company, this agreement shall inure to the benefit of, and be binding upon, both
Kanders and the company purchasing such assets, business and goodwill, or
surviving such merger or consolidation, as the case may be, in the same manner
and to the same extent as though such other company were the Company; and
provided, further, that the Company shall have the right to assign this
agreement to any affiliate or subsidiary of the Company. Subject to the
foregoing, this agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their legal representatives, heirs, successors and
permitted assigns.
(f) Communications. All notices, requests, demands and other
communications under this agreement shall be in writing and shall be deemed to
have been given at the time personally delivered or when mailed in any United
States post office enclosed in a registered or certified postage prepaid
envelope and addressed to the addresses set forth below, or to such other
address as any party may specify by notice to the other party; provided,
however, that any notice of change of address shall be effective only upon
receipt.
To the Company: Armor Holdings, Inc.
1400 Marsh Landing Parkway
Jacksonville, Florida 32250
Attention: Chief Executive Officer
With a copy to: Kane Kessler, P.C.
1350 Avenue of the Americas
New York, New York 10019
Attention: Robert L. Lawrence, Esq.
To Kanders: Warren B. Kanders
21 Dairy Road
Greenwich, Connecticut 06830
(g) Severability. If any provision of this agreement is held to be
invalid or unenforceable
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Mr. Warren B. Kanders
January 1, 2002
Page 9
by a court of competent jurisdiction, such invalidity or unenforceability shall
not affect the validity and enforceability of the other provisions of this
agreement and the provision held to be invalid or unenforceable shall be
enforced as nearly as possible according to its original terms and intent to
eliminate such invalidity or unenforceability.
(h) Jurisdiction; Venue. This agreement shall be subject to the
exclusive jurisdiction of the courts located in New York County, New York. Any
breach of any provisions of this agreement shall be deemed to be a breach
occurring in the State of New York by virtue of a failure to perform an act
required to be performed in the State of New York, and the parties irrevocably
and expressly agree to submit to the jurisdiction of the courts located in New
York County, New York for the purpose of resolving any disputes among them
relating to this agreement or the transactions contemplated by this agreement
and waive any objections on the grounds of forum non conveniens or otherwise.
The parties hereto agree to service of process by certified or registered United
States mail, postage prepaid, addressed to the party in question.
(i) Governing Law. This agreement is made and executed and shall be
governed by the laws of the State of New York, without regard to the conflicts
of law principles thereof.
(j) No Third-Party Beneficiaries. Each of the provisions of this
agreement is for the sole and exclusive benefit of the parties hereto and shall
not be deemed for the benefit of any other person or entity.
If you are in agreement with the foregoing, please so indicate by signing
in the space indicated below and returning a fully executed copy of this letter
to us.
Very truly yours,
ARMOR HOLDINGS, INC.
By:
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Name:
Title:
ABOVE AGREED TO AND ACCEPTED:
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Warren B. Kanders