EXHIBIT 10.2
FORM OF WARRANT AWARD SUBJECT TO 2007 PLAN
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS
ESTABLISHED BY AN OPINION FROM COUNSEL TO THE COMPANY.
WARRANT AWARD CERTIFICATE
Warrant #___________ For _______ Shares
DHB INDUSTRIES, INC.
THIS WARRANT AWARD CERTIFICATE (THIS "WARRANT AWARD") CERTIFIES that on
______ __, 20__ (the "ISSUANCE DATE"), __________ (the "HOLDER") was granted a
warrant (the "WARRANT") to purchase, at the price of $__.__ per share, all or
any part of _______ fully paid and non-assessable shares ("SHARES") of common
stock, par value $.001 per share, of DHB INDUSTRIES, INC., a Delaware
corporation (the "COMPANY"), upon and subject to the following terms and
conditions:
1. GENERAL TERMS OF THE WARRANT. The Warrant is granted in accordance
with, and as a material inducement to, the Holder's [COMMENCEMENT]
[CONTINUATION] of [EMPLOYMENT WITH] [PROVIDING SERVICES TO] the Company. In
addition, this Warrant is granted under, and is subject to the terms and
conditions of, the Company's 2007 Omnibus Equity Incentive Plan (the "PLAN"),
the terms, conditions and definitions of which are hereby incorporated herein as
though set forth at length. Capitalized terms used herein shall have the
meanings set forth in the Plan, unless otherwise defined herein.
2. EXPIRATION. Except as otherwise provided herein, this Warrant shall
expire and shall no longer be exercisable one day prior to the 10th anniversary
of the Issuance Date.
3. EXERCISE. Except as otherwise permitted under the Plan, this Warrant
may be exercised or surrendered during the Holder's lifetime only by the Holder
or his/her guardian or legal representative. THIS WARRANT SHALL NOT BE
TRANSFERABLE BY THE HOLDER OTHERWISE THAN BY WILL OR BY THE LAWS OF DESCENT AND
DISTRIBUTION, UNLESS THE COMMITTEE, IN ITS SOLE AND ABSOLUTE DISCRETION,
CONSENTS TO A TRANSFER AUTHORIZED BY SECTION 9(b) OF THE PLAN.
Except as otherwise provided in Sections 4 and 5 of this Warrant Award
or Section 8 of the Plan, this Warrant shall vest as follows: 10% on the
Issuance Date, 30% on the date one year after the Issuance Date, 30% on the date
two years after the Issuance Date and 30% on the date three years after the
Issuance Date.
This Warrant may be exercised by the Holder (or by his executors,
administrators, guardian or legal representative), as to all or any of the
then-vested portion thereof, by the giving of written notice of exercise to the
Company, specifying the number of Shares to be purchased, accompanied by payment
of the full purchase price (specified herein) for the Shares being purchased.
Full payment of such purchase price shall be made at the time of exercise and
shall be made (i) in cash or by certified check or bank check or wire transfer
of immediately available funds or (ii) with the consent of the Committee, in its
sole and absolute discretion, by tendering previously acquired Shares (valued at
their then Fair Market Value, as determined by the Committee as of the date of
exercise). Such notice of exercise, accompanied by such payment, shall be
delivered to the Company at its principal business office or such other office
as the Company may from time to time direct, and shall be in the form of Exhibit
A hereto or such other form as the Company may from time to time prescribe by
notice to the Holder. In no event may this Warrant be exercised for a fraction
of a Share. No person exercising this Warrant shall have any of the rights of a
holder of Shares subject to this Warrant until such Shares shall have been
issued (as noted in the stock transfer books and records of the Company)
following the exercise of such Warrant. No adjustment shall be made for cash
dividends or other rights for which the record date is prior to the date of such
issuance.
4. TERMINATION OF EMPLOYMENT BY THE COMPANY FOR CAUSE. In the event the
Holder's employment is terminated by the Company for Cause (as defined in the
Plan), the Warrant shall cease to vest and neither any vested nor any unvested
portion of the Warrant may be exercised after such termination.
5. OTHER TERMINATION OF EMPLOYMENT. In the event the Holder's
employment terminates for any reason not addressed by Section 4 of this Warrant
Award, this Warrant shall cease to vest and, to the extent vested on the date of
such termination and not previously expired or exercised, shall be exercisable
in accordance with this Warrant Award until the earlier of (i) the 90th day
after such termination (or one year after termination because of death) or (ii)
the day on which the Warrant is scheduled to expire in accordance with Section 2
of this Warrant Award, unless the Committee, in its sole and absolute discretion
and subject to the terms of the Plan, decides otherwise. No unvested portion of
the Warrant may be exercised after any such termination.
6. RESTRICTIONS ON EXERCISE.
(a) Notwithstanding anything to the contrary contained herein, this
Warrant may not be exercised, and neither this Warrant nor the Shares
issued upon exercise of this Warrant may be purchased, sold or
transferred, unless the Company, in its sole and absolute discretion,
believes such exercise, purchase, sale or transfer (as the case may be)
is in compliance with the Securities Act of 1933, as amended (the
"ACT"), or any comparable federal securities law and all applicable
state securities laws, and the ---- requirements of any stock exchange,
national market system or national quotation system on which securities
of the Company of the same class as the Shares are then traded or
quoted, in each case as in effect on the date of such proposed
exercise, purchase, sale or transfer.
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(b) In the event that the Warrant or any portion thereof cannot be
exercised immediately prior to the time it expires pursuant to any of
Sections 2 and 5 of this Warrant Award because such exercise would
violate an applicable Federal, state, local or foreign law, then the
expiration date of such portion shall be extended to the 30th day after
the date on which such exercise would no longer violate an applicable
Federal, state, local or foreign law. The Company shall use reasonable
efforts to notify the Holder of the date on which such exercise would
no longer violate an applicable Federal, state, local or foreign law.
(c) The Holder acknowledges that the Company shall have the right,
but not the obligation, to register the Shares underlying this Warrant
on a Form S-8 or S-3 to facilitate their resale by the Holder. The
Holder acknowledges that the Company is under no obligation to
register, qualify or list, or maintain the registration, qualification
or listing of, the Warrant or the Shares with the Securities and
Exchange Commission, any state securities commission or any stock
exchange, national market system or national quotation system to effect
such compliance.
(d) In the event the Holder desires to offer for sale or to
otherwise transfer this Warrant or the Shares for which this Warrant
may be exercised pursuant to an exemption from registration under the
Act, the Holder shall make such representations and furnish such
information as may, in the opinion of counsel for the Company, be
appropriate to permit the Company, in light of the then existence or
non-existence of an effective Registration Statement under the Act with
respect to such Shares to issue the Shares in compliance with the
provisions of that or any comparable federal securities law and all
applicable state securities laws.
7. ADJUSTMENTS. Notwithstanding anything to the contrary contained
herein, to prevent the dilution or enlargement of benefits or potential benefits
intended to be made available under the Plan, this Warrant shall be subject to
adjustment pursuant to Section 9(c) of the Plan.
8. DELIVERY OF SHARE CERTIFICATES. Within a reasonable time after the
exercise of this Warrant and the issuance of Shares in connection therewith, the
Company shall cause to be delivered to the person entitled thereto a certificate
representing such Shares. If this Warrant shall have been exercised with respect
to the purchase of less than all of the Shares subject to this Warrant, the
Company shall make a notation in its books and records to reflect the partial
exercise of this Warrant and the number of Shares with respect to which this
Warrant remains available for exercise. Absent manifest error, the Company's
books and records shall be final, conclusive and determinative as to the number
of Shares with respect to which this Warrant remains available for exercise.
9. WITHHOLDING. If the Company or any subsidiary or affiliate of the
Company is required to withhold any amounts by reasons of any federal, state or
local tax laws, rules or regulations in respect of (a) the issuance of Shares to
the Holder pursuant to this Warrant, and/or (b) the exercise or disposition (in
whole or in part) of the Warrant, the Company or such subsidiary or affiliate
shall be entitled to deduct and withhold such amounts from any payments to be
made to the Holder. In any event, the Holder shall make available to the Company
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or such subsidiary or affiliate, promptly when requested by the Company or such
subsidiary or affiliate, sufficient funds to meet the requirements of such
withholding; and the Company or such subsidiary or affiliate shall be entitled
to take and authorize such steps as it may deem advisable in order to have such
funds available to the Company or such subsidiary or affiliate out of any funds
or property due or to become due to the Holder. With the consent of the
Committee (which can be given or withheld in its sole and absolute discretion),
withholding tax obligations of the Holder may be satisfied by the tendering of
Shares by the Holder or by the withholding of Shares by the Company (in either
case with such Shares to be valued at their Fair Market Value as of the date of
exercise, as determined in the sole and absolute discretion of the Committee).
10. COMMITTEE DISCRETION. The Committee shall have sole and absolute
discretion to interpret, construe or apply any provision of the Plan and this
Warrant Award and its determinations as to the meaning or application of the
Plan and this Warrant Award shall be final and binding. The Committee is
authorized, in its discretion, to make any determinations necessary or advisable
for the administration of the Plan and this Warrant, waive any conditions or
rights under this Warrant Award or amend, alter, accelerate, suspend,
discontinue or terminate this Warrant or this Warrant Award; PROVIDED, HOWEVER,
that, except in furtherance of Section 7 hereof, without the consent of the
Holder, no such amendment, alteration, suspension, discontinuation or
termination of this Warrant Award may materially and adversely affect the rights
of the Holder hereunder.
11. RESERVATION OF SHARES. The Company hereby agrees that at all times
there shall be reserved for issuance and/or delivery such number of Shares as
shall be required for issuance or delivery to the Holder following the exercise
hereof.
12. RIGHTS OF HOLDER. Nothing contained in this Warrant Award shall be
construed to confer upon the Holder any right to be continued in the employ of
the Company and/or any subsidiary or affiliate of the Company or derogate from
any right of the Company and/or any subsidiary or affiliate of the Company to
retire, request the resignation of, or discharge the Holder at any time, with or
without cause. The Holder shall not, by virtue hereof, be entitled to any rights
of a shareholder in the Company, either at law or in equity, and the rights of
the Holder are limited to those expressed herein and are not enforceable against
the Company except to the extent set forth herein.
13. SUCCESSORS AND ASSIGNS. The provisions of this Warrant Award shall
be binding upon and inure to the benefit of the Company, its successors and
assigns, and Holder and, to the extent applicable, Holder's legal representative
or permitted assigns.
14. LEGEND. The Company may cause the following or a similar legend to
be set forth on each certificate representing Shares or any other security
issued or issuable upon exercise of this Warrant unless counsel for the Company
is of the opinion as to any such certificate that such legend is unnecessary:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY
OF WHICH IS ESTABLISHED BY AN OPINION FROM COUNSEL TO THE
COMPANY.
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15. NOTICES. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be delivered
personally or by mail, postage prepaid, or overnight courier, addressed as
follows: if to the Company, at the address shown on the cover page of its most
recently filed periodic report with the SEC (or, if the Company is not currently
filing periodic reports, at the last address designated by notice from the
Company to the Holder pursuant to this Section 15), Attn: General Counsel; and
if to the Holder, at the address shown below his signature on this Warrant
Award, or at such other address as the Holder by notice to the Company may
designate in writing from time to time. Notices shall be effective upon receipt.
16. CONFLICT WITH EMPLOYMENT AGREEMENT OR PLAN. In the event of any
conflict between the terms of the Holder's Employment Agreement, if any, and the
terms of this Warrant Award with respect to the Warrant, the terms of this
Warrant Award shall control. In the event of any conflict between the terms of
the Holder's Employment Agreement, if any, or this Warrant Award and the terms
of the Plan, the terms of the Plan shall control.
17. GOVERNING LAW. To the extent federal law does not otherwise
control, the validity, interpretation, performance and enforcement of this
Warrant Award shall be governed by the laws of the State of Delaware, without
giving effect to principles of conflicts of laws thereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the Company has executed this Warrant Award as of
the date first set forth above.
DHB INDUSTRIES, INC.
By:
______________________________________________
Name:
Title:
Date:_____________________________________________
Attest:___________________________________________
Holder hereby acknowledges by his signature below that he has received
a copy of this Warrant Award and the Plan.
Accepted and Confirmed:
______________________________
[NAME OF HOLDER]
______________________________
Address
______________________________
City State Zip Code
______________________________
Social Security Number
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EXHIBIT A
FORM OF ELECTION TO PURCHASE
To DHB Industries, Inc.:
The undersigned is the Holder of Warrant No. ________ (the "WARRANT") issued by
DHB Industries Inc., a Delaware corporation (the "COMPANY"). Capitalized terms
used herein and not otherwise defined have the respective meanings set forth in
the Warrant.
1. The Warrant is currently exercisable to purchase a total of ________
Shares.
2. The undersigned Holder hereby exercises its rights with respect to
________ Shares pursuant to the Warrant ("EXERCISED SHARE NUMBER").
3. The Holder intends that payment of the exercise price shall be made
(check one):
[ ] in cash or by certified check or
bank check or wire transfer of
immediately available funds
[ ] by tendering previously acquired Shares
(subject to the consent of the Committee)
(a) If the Holder has elected the first method of exercise, the Holder
shall pay the sum of $_______.__ to the Company in accordance with the
terms of the Warrant (equal to the Exercised Share Number multiplied by
the exercise price of $___.__ per Share).
(b) If the Holder has elected the second method of exercise, the Committee
shall determine the number of previously acquired Shares to be tendered
and provide further instructions to the Holder.
4. The Holder intends that payment of applicable withholding taxes shall
be made (check one):
[ ] in cash or by certified check or bank
check or wire transfer of immediately
available funds
[ ] by the Company withholding cash from
amounts otherwise payable to Holder
[ ] subject to the consent of the Committee,
by tendering previously acquired Shares
[ ] subject to the consent of the Committee,
by the Company withholding Shares otherwise
issuable to Holder upon this exercise
The undersigned requests that certificates for the Shares issuable upon this
exercise be issued in the name of_________________.
Dated: ______________ Name of Holder _____________________
Address ________________________________________________________________
Name_____________________ Title _______________
Social Security or Tax ID: Number____________________
Signature:__________________________________
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