Employment Agreement - Armor Holdings Inc. and Robert R. Schiller
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), dated as of July 24,
1996, between ARMOR HOLDINGS, INC., a Delaware corporation (the "Company");
and ROBERT R. SCHILLER (the "Employee").
W I T N E S S E T H :
WHEREAS, the Company desires to employ the Employee and
to be assured of his services on the terms and conditions
hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment
on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, the Company and the Employee hereby
agree as follows:
1. TERM. The term of this Agreement shall be three (3)
years, commencing on the date hereof and ending on July 23, 1999 (the "Initial
Term"), subject to earlier termination pursuant to the provisions of Section 9
herein. The employment of the Employee shall automatically continue hereunder
following the Initial Term for successive one (1) year periods (the "Renewal
Terms") (on terms to be mutually agreed upon by the parties), unless the
Company or the Employee gives notice to the other at least sixty (60) days
prior to the end of the Initial Term of its or his election to terminate this
Agreement at the end of the Initial Term. Subsequent to the Initial Term, the
employment of the Employee hereunder may be terminated at the end of any
Renewal Term by delivery by either the Employee or the Company of a written
notice to the other party at least sixty (60) days prior to the end of any
Renewal Term.
2. DUTIES. During the term of this Agreement, the Employee
shall serve as the Vice President - Corporate Development of the Company and
shall perform all duties commensurate with his position and as may be assigned
to him by the Chief Executive Officer of the Company. The Employee shall
devote his full business time and energies to the business and affairs of the
Company and shall use his best efforts, skills and abilities to promote the
interests of the Company and to diligently and competently perform the duties
of his position.
3. COMPENSATION AND BENEFITS. (a) During the term of
this Agreement, the Company shall pay to the Employee, and the Employee shall
accept from the Company, as compensation for the
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performance of services under this Agreement and the Employee's observance and
performance of all of the provisions hereof, a salary of $120,000 per year
(the "Base Compensation"). The Employee's salary shall be payable in
accordance with the normal payroll practices of the Company. The Company shall
also pay a one-time relocation bonus of $45,000 to the Employee (the
"Relocation Bonus"). In addition to the Relocation Bonus, the Company will pay
for the cost of two trips (at economy fare rates) from the New York City
metropolitan area to Jacksonville, Florida for the Employee and his wife and
child in contemplation of their relocation. The Employee's salary and the
Relocation Bonus shall be subject to withholding for applicable taxes and
other amounts.
(b) During the term of this Agreement, the Employee
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. The Employee 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.
(c) The Employee shall be entitled to receive
incentive stock options under the Company's incentive stock option plan to
purchase 150,000 shares of the Company's common stock, at an exercise price
per share equal to $6.0625, the market price thereof at the time of grant.
Such options shall vest over a period of three years and shall not be
exercisable until July 24, 1999; provided, however, that upon a breach by the
Employee of the provisions of Sections 6 or 7 hereof, the Employee shall have
no right to exercise any such options granted hereunder or otherwise held by
the Employee; and provided, further, that in the event that this Agreement is
terminated by the Company without cause prior to the expiration of the Initial
Term, then the entire amount of such options shall vest and become exercisable
on the date of such termination. In the event of a "change in control" (as
hereinafter defined) of the Company, all of such options shall vest and become
exercisable on the effective date of such change in control. For purposes
hereof, "change in control" of the Company shall mean the sale of all of the
shares of capital stock of the Company, or the sale of all or substantially
all of the assets of the Company (other than a transfer of assets to a
subsidiary of the Company) or the merger or consolidation of the Company
(other than for the purpose of (x) consummating an acquisition by the Company
or (y) effecting a restructuring of the Company), the effect of any of which
is to result in the sale of the Company. The Employee may be entitled, during
the term of this Agreement, to receive such
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additional options, at such exercise prices and other terms, and/or to
participate in such other bonus plans, whether during the term of this
Agreement or upon termination pursuant to Section 9 hereof, as the Compensation
Committee of the Board of Directors of the Company may, in its sole and
absolute discretion, determine.
4. REIMBURSEMENT OF BUSINESS EXPENSES. During the term of
this Agreement, upon submission of proper invoices, receipts or other
supporting documentation satisfactory to the Company and in specific
accordance with such guidelines as may be established from time to time by the
Company's Board of Directors, the Employee shall be reimbursed by the Company
for all reasonable business expenses actually and necessarily incurred by the
Employee on behalf of the Company in connection with the performance of
services under this Agreement.
5. REPRESENTATION OF EMPLOYEE. The Employee 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 the Employee of his duties under this
Agreement.
6. CONFIDENTIALITY. For purposes of this Section 6, all
references to the Company shall be deemed to include the Company's affiliates
and subsidiaries.
(a) CONFIDENTIAL INFORMATION. The Employee
acknowledges that as a result of his employment with the Company, the Employee
has and will continue to have knowledge of, and access to, proprietary and
confidential information of the Company, including, without limitation,
research and development plans and results, software, data bases, technology,
inventions, trade secrets, technical information, know-how, plans,
specifications, methods of operations, product information, product
availability, pricing information, financial, business and marketing
information and plans 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 the Employee,
constitutes valuable, special and unique assets of the Company developed at
great expense which are the exclusive property of the Company. Accordingly,
the Employee shall not, at any time, either during or subsequent to the term
of this Agreement, use, 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
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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 the Employee. The Employee acknowledges that the Company would not enter
into this Agreement without the assurance that all such confidential and
proprietary information will be used for the exclusive benefit of the Company.
(b) RETURN OF CONFIDENTIAL INFORMATION. Upon
the termination of Employee's employment with the Company, the Employee 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 the Employee's possession or control.
7. NONCOMPETITION. For purposes of this Section 7, all
references to the Company shall be deemed to include the Company's affiliates
and subsidiaries. The Employee 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 term of this
Agreement and for a period of one (1) year after the expiration or termination
of this Agreement, the Employee 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 are marketed, alone or in association with others, as
principal, officer, agent, employee, director, partner, stockholder or lender
(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, including without limitation, the development,
manufacture and distribution of bullet and projectile resistant garments,
including bullet resistant and sharp instrument penetration resistant vests,
bullet resistant blankets, bomb disposal suits and helmets, bomb protection
and disposal equipment and load bearing vests, and other ballistic protection
and security equipment, including explosive ordnance device (EOD) handling and
detection equipment, EOD suppression and disposal equipment, helmets, face
masks, shields, hard armor ballistic plates, customized armor for vehicles and
other custom armored products, and related products, or any other business
engaged in by the Company at the time in question for which the Employee is
directly or indirectly responsible (it being understood hereby, that the
ownership by the Employee of 5% or less of the stock of any company listed on
a national securities exchange shall not be deemed a violation of this
Section 7);
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provided, however, that in the event the Employee is terminated without
cause, then the provisions of this Section 7 will continue to be applicable to
the Employee. During the same period, the Employee 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 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
years. The Employee shall 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 the Employee of the provisions of this
Section 7 shall toll the running of any time periods set forth in this Section
7 for the duration of any such breach or violation.
8. REMEDIES. The restrictions set forth in Sections 6 and 7
are considered by the parties to be fair and reasonable. The Employee
acknowledges that the restrictions contained in Section 6 and 7 will not
prevent him from earning a livelihood. The Employee 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 6 or 7. Accordingly, the Employee agrees that, in addition to any
other remedies available to the Company, the Company shall be entitled to
injunctive and other equitable relief to secure the enforcement of these
provisions, and shall be entitled to receive reimbursement from the Employee
for all attorneys' fees and expenses incurred by the Company in enforcing
these provisions. If any provisions of Sections 6, 7, or 8 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 6, 7, or 8 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
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which such 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.
9. TERMINATION. This Agreement may be terminated prior
to the expiration of the term set forth in Section 1 upon the
occurrence of any of the events set forth in, and subject to the
terms of, this Section 9.
(a) DEATH. This Agreement will terminate
immediately and automatically upon the death of the Employee. In the event
that this Agreement is terminated upon the death of the Employee, then the
entire amount of options for the purchase of common stock of the Company
granted to the Employee shall vest and become exercisable by the estate of the
Employee on the date of such death.
(b) DISABILITY. This Agreement may be terminated
at the Company's option, immediately upon notice to the Employee, if the
Employee shall suffer a permanent disability. For the purposes of this
Agreement, the term "permanent disability" shall mean the Employee's inability
to perform his duties under this Agreement for a period of 90 consecutive days
or for an aggregate of 120 days, whether or not consecutive, in any twelve
month period, due to illness, accident or any other physical or mental
incapacity, as solely determined by the Board of Directors of the Company. In
the event that this Agreement is terminated upon the permanent disability of
the Employee, then the entire amount of options for the purchase of common
stock of the Company granted to the Employee shall vest and become exercisable
by the Employee on the date of such termination.
(c) CAUSE. This Agreement may be terminated at the
Company's option, immediately upon notice to the Employee, upon: (i) breach by
the Employee of any material provision of this Agreement; (ii) gross
negligence or willful misconduct of the Employee in connection with the
performance of his duties under this Agreement, or Employee's willful refusal
to perform any of his duties or responsibilities required pursuant to this
Agreement; (iii) fraud, criminal conduct, dishonesty or embezzlement by the
Employee; or (iv) Employee's misappropriation for personal use of assets or
business opportunities of the Company.
(d) WITHOUT CAUSE. This Agreement may be
terminated at any time by the Company without cause upon giving the Employee
three (3) days prior written notice of such termination. In such event, the
Employee shall be entitled to receive his Base Compensation in accordance with
the provisions of Section 3(a) hereof throughout the balance of the term of
this Agreement, reduced, dollar for dollar, with any salary, commissions,
wages or
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other income received by him from any other employer or employment contract
during such period.
10. MISCELLANEOUS.
(a) SURVIVAL. The provisions of Sections 6, 7, and
8 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, termination or attempted
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; provided,
however, that Employee's compensation may be increased at any time by the
Company without in any way affecting any of the other terms and conditions of
this Agreement, which in all other respects shall remain in full force and
effect.
(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 Employee 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 assigns.
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(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.
191 Nassau Place Road
Yulee, Florida 32097
Attn.: Jonathan M. Spiller
WITH A COPY TO: Kane Kessler, P.C.
1350 Avenue of the Americas
New York, New York 10019
Attn.: Robert L. Lawrence, Esq.
TO THE EMPLOYEE: Robert R. Schiller
293 Waters Edge Drive South
Ponte Vedra Beach, Florida 32082
(g) SEVERABILITY. If any provision of this
Agreement is held to be invalid or unenforceable 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 of New York County, New
York. Any breach of any provision 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 of
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.
(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.
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IN WITNESS WHEREOF, each of the parties hereto have duly
executed this Agreement as of the date set forth above.
ARMOR HOLDINGS, INC.
By:
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Name: Jonathan M. Spiller
Title: President and
Chief Executive Officer
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Robert R. Schiller
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