EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 7th day of
March, 1997, by and between NDL Products, Inc. a Florida Corporation
having its principal office located at 4031 N.E. 12th Terrace, Oakland
Park, Florida 33334 (hereinafter called "Employer"), and Michael C.
Bell, who resides in Andover, Massachusetts (hereinafter called
"Employee").
R E C I T A L S:
A. Employer is in the business of the manufacture and
distribution of sports, fitness and medical protective gear
and equipment.
B. Employer desires to employ Employee and Employee desires to be
employed by Employer, upon the terms and conditions
hereinafter set forth.
In consideration of the mutual covenants hereinafter set
forth, it is hereby agreed as follows:
1. EMPLOYMENT AND DUTIES: Employer agrees to employ Employee as Chief Executive
Officer and Chief Operating Officer of NDL Products, Inc. and Employee agrees to
serve Employer in such capacity and to engage in those duties which might
reasonably be required of a Chief Executive Officer and Chief Operating Officer
including, but not limited to, supervisory responsibility for day to day sales
operations of Employer and generally do all things for the best interests of the
Employer, subject to the direction of Employer's Board of Directors. Employee
shall also serve as Chief Executive Officer and Chief Operating Officer of
Orthopedic Products, Inc. ("OPI"), a sister company of Employer engaged in the
manufacture and sale of orthopedic products and the distribution of general
medical supplies to orthopedists, orthopedic clinics, hospitals and sports
medicine centers. Employee shall serve in this capacity at no additional
compensation or benefits than set forth in paragraph 7 below.
2. TERM: Employee's employment hereunder shall be for a period of three (3)
years unless sooner terminated pursuant to Section 8 hereof (the "Term")
commencing upon the date first above written (the ":Commencement Date").
Employer shall have the option of extending this Agreement for an additional
three (3) year period upon the same terms and conditions contained herein. The
Employer shall notify the Employee not later than six (6) months prior to the
expiration of the initial three year term and no later than thirty (30) days
from the receipt of such notice, Employee shall advise Employer, in writing, of
his acceptance or rejection of such extension of this agreement.
3. DEVOTION OF ATTENTION: Throughout the Term of his employment, Employee shall
devote his full time and attention during normal business hours, and at such
times after normal business hours as may reasonably be necessary to carry out
the duties commensurate with Employee;'s position, to the business affairs of
the Employer and OPI.
4. NON-DISCLOSURE
4.1 Acknowledgement and Purposes Employee acknowledges that he will,
during the Term of this Agreement, learn and have access to, Confidential
Information relating to the business and affairs of Employer and OPI. As used in
this Agreement, Confidential Information shall mean trade secrets concerning
Employer's and OPI's operations, future plans, projected and historical sales,
marketing, costs, production, growth and distribution, any customer lists,
customer information, or information relating to the products or service,
whether patentable or not, concerning the business of Employer and OPI as
conducted at any time prior to the termination of this Agreement.
Employer and OPI are engaged in highly competitive businesses and
their competitive position depends in great measure upon their ability to
develop or acquire and maintain the confidentiality of Confidential Information;
and they may have expended and are likely to continue to expend considerable
efforts and resources in the development or acquisition of Confidential
Information. Based upon the foregoing, Employee recognizes that the unauthorized
disclosure of Confidential Information in violation of the terms hereof is
likely to result in serious and irreparable harm to Employer and OPI.
4.2 Restrictions on the Use of Confidential Information Employee agrees
and covenants as follows:
(a) All documents and other materials made or compiled by
Employee during the Term of this Agreement and any
copies thereof, whether or not containing
Confidential Information are and shall be the
property of Employer and OPI and shall be delivered
to Employer and OPI by Employee upon request by
Employer or OPI. Employee will treat as trade secrets
all Confidential Information acquired by him prior to
or during the Term of this Agreement, and will not
use any such Confidential Information for his own
benefit nor discuss it or any part of it to any other
person, firm or corporation (other than Employer and
OPI) (i) without the prior written consent of
Employer or OPI; or (ii) unless such disclosure is
required by law or in response to a legal order; or
(iii) unless such Confidential Information has become
generally available to the public other than through
the breach by Employee of the terms hereof.
(b) All ideas, reports and other creative works conceived
by Employee during the Term of this Agreement and
relating to Confidential Information shall be
disclosed to Employer or OPI and shall be the sole
property of Employer or OPI.
5. COVENANT NOT TO COMPETE
5.1 Acknowledgement and Purposes. Employer and OPI are and will be
engaged in the businesses associated with the manufacture of sports medicine,
fitness and related products and orthopedic products in the United States and
throughout the world. Employee acknowledges that said business of Employer and
OPI is international in scope and that Employer and OPI compete with other
organizations that could be located in any part of the World.
5.2 Covenants Employee covenants and agrees that during the Term of
this Agreement and for a period of six (6) months from the termination of this
Agreement including any extension thereof, Employee will not directly or
indirectly, engage or invest in, own, manage, operate, control or participate in
the ownership, management, operation or control of, be employed, associated or
in any manner connected with or render services or advice to, any business the
services of which compete, in whole or in part, with the services or activities
of Employer or OPI described in Paragraph 5.1 above, within these geographical
territories; provided, that Employee may invest in less than one percent (1%) of
any class of securities of any enterprise (but without otherwise participating
in the activities of such enterprise) if such securities are listed on any
regional or national securities exchange or have been registered under Section
12 (g) or Section 15 (d) of the Securities Exchange Act of 1934, as amended.
(a) Whether for his own account or for the account of any
other person, during the Term of this Agreement
including extensions and for a period of six (6)
months from the termination of this Agreement
pursuant to Section 8 hereof, Employee will not
solicit the business of any person known to him to be
in conflict with Employer or OPI without Employer's
or OPI's consent, which consent Employer or OPI may
withhold in the absolute discretion, whether or not
Employee had personal contact with such person during
or by reason of his employment with the Employer and
OPI prior to or during the Term of this Agreement.
(b) Whether for his own account or the account of any
other person, during the Term of this Agreement,
including extensions and for a period of six (6)
months from the termination of the Agreement,
Employee will not, without the Employer's or OPI's
consent, which consent Employer or OPI may withhold
in its absolute discretion, (i) solicit, employ or
otherwise engage as an employee, independent
consultant or otherwise, any person who is or was an
employee of Employer or OPI at any time during the
employment of Employee by Employer and OPI prior to
or during the Term of this Agreement including
extensions, or in any manner induce or attempt to
induce any employee of Employer or OPI to terminate
his or her relationship with Employer or OPI, or (ii)
interfere with the relationship of Employer or OPI
with any person, including any person who at any time
during the employment of Employee by Employer and OPI
prior to or during the Term of this Agreement
including extensions was an employee, a customer, a
vendor, a supplier or a consultant of, or to Employer
or OPI.
6. DISCLOSURE AND ASSIGNMENT Employee will disclose fully to Employer or OPI all
inventions, formulas, processes, improvements and ideas, whether or not
patentable, made or conceived by Employee in whole or in part, alone or with
others, at any time during the Term, any extension and within one year
thereafter and which relate to the then present or planned business or Employer
or OPI. Employee will also (i) assign to Employer or OPI all such inventions,
formulas, processes, improvement and ideas and all Employee's rights thereto and
(ii) sign all documents reasonably requested by Employer or OPI to enable
Employer or OPI to obtain patents thereon in the United States of America and
such foreign countries as Employer or OPI may designate, and otherwise assist
Employer and OPI, at the latter's expense, in obtaining such patents and in
protecting, maintaining and defending same.
7. COMPENSATION AND BENEFITS Employee shall receive the following compensation
and benefits for services rendered by him during the Term of this Agreement:
7.1 Salary Effective as of the Commencement Date, Employee's annual
compensation shall be at the rate of One Hundred Thousand ($ 100,000) per annum
payable in accordance with the regular payroll practices of Employer.
7.2 Common Stock of DHB (unregistered)
(a) 50,000 shares to be issued upon the execution of this
agreement. These shares shall be non refundable and
non-cancellable
(b) 90,000 shares to be issued for each year of this
Agreement, 45,000 shares of which shall vest on the
1st day of each year of this Agreement and 45,000
shares of which shall vest and on the 181st day of
each year. 180,000 of such shares shall be issued
upon the execution of the Agreement, 135,000 shares
of which shall bear a legend indicating that
ownership rights with respect to such shares shall
vest in accordance with the above provision and are
subject to termination and return to Employer if
Employee's employment hereunder terminates prior to
vesting. An additional 90,000 shares subject to the
aforesaid vesting and restrictions shall be issued on
the 1st day of the third year of the Agreement.
Employee shall have the right to "put" these shares
to the Company at $ 2.00 per share between the 355th
and 365th day of each year of this Agreement to the
extent such shares are vested. This right does not
carry over to the following year and expires to the
extent not exercised in each year of this Agreement.
(c) Warrants or Options to purchase 150,000 shares
exercisable at $ 2.00 per share are herewith granted
to Employee but shall vest at the rate of 50,000 upon
the completion of each year of this Agreement.
The shares issued or issuable pursuant to (a) (b) and
(c) above will be registered pursuant to the
Securities Act of 1933 as soon as possible after
vesting either as individual stock grants pursuant to
Form S-8 or pursuant to demand registration rights in
any other applicable form of Registration Statement.
DHB will use its best efforts to issue the shares
contemplated by (a) (b) and (c) above in a manner and
at such time so that such issuance will not cause a
"short swing" profit to Employee, pursuant to Section
16 of the Securities Exchange Act of 1934.
7.3 Bonus Employee will be entitled to a bonus at the discretion of the
Board of Directors of Employer or the Boards' Compensation Committee. The bonus
would be payable in DHB Common Stock and would be registered as soon as possible
either pursuant to Form S-8, or in any other pending or contemplated
Registration Statement.
7.4 Vacation During the term hereof, Employee shall be entitled to such
vacations during each calendar year as the Board of Directors shall specify, but
in no event shall Employee be entitled to less than two (2) weeks of paid
vacation during each year of employment.
7.5 Fringe Benefits In addition to all the other compensation to be
provided to Employee pursuant to this Paragraph 7, Employee shall be entitled to
receive or to participate in any fringe benefits which are or may be provided by
Employer to its officers and/or employees, including, but not limited to,
insurance, health, welfare and retirement plans. Employee shall not be entitled
to an automobile allowance.
7.6 Business Expenses Employer may, in its discretion, reimburse
Employee toward all reasonable expenses incurred by Employee in the course of
his employment hereunder, including, without limitation, travel and
entertainment expenses. It is acknowledged that Employee might incur additional
business expenses for which he will not be reimbursed by Employer. Employee
shall not be entitled to an automobile allowance.
7.7 Relocation Expense Employee shall be entitled to one-half (1/2) of
the expenses for realtors commissions in the sale of his Andover, Massachusetts
residence, and all moving expenses to Florida.
8. TERMINATION This Agreement shall terminate upon the expiration of the Term or
for the following causes:
8.1 Causes for Termination This Agreement shall terminate:
(a) If during the Term of this Agreement Employee is
unable, by reason of physical or mental disability,
to carry out or perform the duties required of him
hereunder for a period of at least two (2)
consecutive months. In such event, Employer shall
have the option, exercisable at such time or at any
later time during the continuance of such disability,
to terminate, upon written notice, the employment of
Employee hereunder, as of the date specified in such
notice, which date shall be no sooner than thirty
(30) days after the date when notice is given. During
the term of any disability of Employee prior to any
termination of his employment pursuant to this
Paragraph 8.1 Employee shall be entitled to his
regular compensation as provided in Paragraph 7
above. If there should be any dispute between the
parties as to Employee's physical or mental
disability, the dispute shall be settled by the
opinion of an impartial, reputable physician agreed
upon for such purpose by the parties or their
representatives. The certificate of such physician as
to the matter in dispute shall be final and binding
upon the parties;
(b) Upon the death of Employee;
(c) By written notice for "Specified Cause." As used
herein, the term for "Specific Cause" means (i) the
material misappropriation of assets of the Company or
perpetration of a fraud against the Company by the
Employee; (ii) the conviction of Employee of any
crime involving moral turpitude which constitutes a
felony in the jurisdiction involved and with respect
to which appeals have been exhausted; (iii)
Employee's failure, other than because of temporary
illness, to devote his full business time and efforts
to the pursuit in good faith and with due diligence
of the active businesses and purposes of Employer and
OPI; (iv) habitual intoxication which impairs the
performance of his duties or illegal use of habit
forming substances which adversely affects the
reputation, goodwill or business position of the
Employer or OPI, (vi) the willful failure of the
Employee to carry out any reasonable and lawful
direction of the Board of Directors of the Employer;
(vii) or the willful violation or breach of any
material provision of this Agreement. The Company
will not terminate Employee's employment during the
Term for "Specified Cause" as hereinabove defined in
subparagraphs (iii), (iv), (v), (vi) or (vii), unless
(a) he has first received written notice stating with
specificity the nature of the breach of such
provisions and affording him an opportunity to
correct the act or acts complained of within 20 days
of the actual receipt of notice thereof by Employee,
and (b) Employee has failed to correct such act or
acts, or, in the case of an act that cannot be
corrected within such 20 days, failed to commence and
continue in good faith to correct such act.
(d) In the event that Employer determined, in its sole
and absolute discretion, to discontinue its
operations. Such termination shall be effective
thirty (30) days following the giving of notice by
Employer to Employee of such termination;
(e) In the event of a material breach of any provision of
this Agreement by Employer, Employee shall have the
option, upon written notice, to terminate his
employment with Employer as of the date specified in
such notice, but not less than sixty (60) days from
the date of such notice, except if such material
breach arises from the non-payment of compensation.
9. Severance Upon termination of this Agreement, pursuant to Paragraphs 8.1 (a)
(b) (d) or (e), Employee shall be entitled to receive accrued salary, vacation
pay or other accrued payments and accrued issuances of stock pursuant to
Paragraphs 7(a) and (b) to the date of such termination, as well as salary and
stock issuances pursuant to Paragraphs 7 (a) and (b) for the six month period
following the date of termination.
10. ASSIGNMENT Employee shall have no right or power to assign or otherwise
transfer this Agreement, or any of his rights, duties or interest herein, and
any such purported assignment shall be null, void and of no effect.
11. BINDING EFFECT Subject to Paragraph 6 above, this Agreement shall be binding
upon the parties and their respective heirs, legal representatives, successors
and assigns.
12. REMEDIES Employee hereby acknowledges that in the event of a breach or
threatened breach by him of the provisions of this Agreement, Employer would
suffer irreparable harm for which there would be no adequate remedy at law.
Accordingly,. Employee agrees that in such event, in addition to any other
remedies which Employer may have in law or in equity for money damages or other
relief, Employer shall be entitled to temporary and/or injunctive relief,
without the necessity of posting bond or proving damages, to enforce the
provisions hereof.
13. ENFORCEABILITY If any provision of this Agreement would be deemed to be
invalid or unenforceable for any reason, including, without limitation, the
geographic or business cope or the duration hereof, such provision shall be
construed in such a way as to make it valid and enforceable to the maximum
extent possible. Any invalidity or unenforceability of any provision of this
Agreement shall attach only to such provision and shall not effect or render
invalid or unenforceable any other provision of this Agreement or any other
agreement or instrument.
14. AGREEMENT TO PERFORM NECESSARY ACTS Each party agrees to perform any further
acts and execute and delivery any further documents which may be reasonably
necessary to carry out the provision of this Agreement.
15. NOTICES All notices, requests, demand and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed sufficiently given when served personally on the party to whom notice is
to be given one (1) business day after delivery to a reputable overnight
courier, four (4) business days if mailed to the party to whom notice is to be
given, by first class mail, registered or certified,m return receipt requested,
postage prepaid, or when sent by telecopy with a copy following by hand or
overnight courier or mailed, registered or certified, return receipt requested,
postage prepaid, and properly addressed as follows:
To Employer: NDL Products, Inc.
4031 N.E. 12th Terrace
Oakland Park, Florida 33334
With a copy to: DHB Capital Group, Inc.
11 Old Westbury Rd
Old Westbury, New York 11568
To Employee Michael C. Bell
c/o NDL Products, Inc.
4031 N.E. 12th Terrace
Oakland Park, Florida 33334
Either party may change his or its address (and in the case of the
Employer, the name of the person(s) to whose attention communications hereunder
shall be directed) from time to time by serving notice thereof upon the other
party as provided herein. The provisions of paragraphs 4 and 5 above shall
survive the termination of Employers employment with Employer regardless of the
date, cause or manner of such termination, and neither the termination of
employment nor the termination of this Agreement shall impair or otherwise
affect Employers obligation to strictly observe the terms and conditions of
paragraphs 4 and 5.
16. ENTIRE AGREEMENT: This Agreement constitutes the full and complete agreement
and understanding between the parties hereto and supersedes any and all similar
agreements heretofore executed.
17. LAW APPLICABLE Should any questions arise at any time as to the validity,
construction, interpretation or performance of this Agreement, it shall be
construed and enforced in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the day
and year first above written.
Employer:
NDL PRODUCTS, INC.
By: ________________________________
Name: ________________________________
Title: ________________________________
Employee:
--------------------------------
MICHAEL C. BELL
Address: ________________________________
________________________________
DHB Capital Group, Inc., hereby agrees to be bound by the provisions of the
within Employment Agreement relating to the issuance, delivery and registration
of shares of its Common Stock and Options or Warrants to purchase shares of its
Common Stock
DHB CAPITAL GROUP, INC.
By: /s/David H. Brooks
------------------
Name: DAVID H. BROOKS
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER