bkti_ex101





 







Exhibit 10.1

 


 

 



EMPLOYMENT AGREEMENT

 


This
EMPLOYMENT AGREEMENT (this “Agreement”) is made and
entered into as of July 19, 2021, by and among BK Technologies,
Inc., a Nevada corporation, BK Technologies Corporation, a Nevada
Corporation (collectively, the “Company”), and John M.
Suzuki, an individual (the “Executive”).

 


The
Company desires to employ the Executive as an executive of the
Company, and the parties desire to enter into this Agreement with
respect to such employment.

 


NOW,
THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto intending to become legally
bound hereby agree as follows:

 


1.           Employment.  The
Company hereby agrees to employ the Executive, and the Executive
hereby agrees to be employed by the Company, upon the terms and
conditions hereinafter set forth.

 


2.           Duties
and Services.

 


2.1           Title
and Duties.  The
Executive shall serve as Chief Executive Officer of the Company and
an uncompensated member of the Board of Directors. The Executive
shall also serve as an officer of such additional subsidiaries and
affiliates of the Company as the Executive and the Board of
Directors of the Company (the “Board of
Directors”) mutually
agree from time to time. The Executive shall perform such
duties as are customary for the Chief Executive Officer of a
publicly-traded company registered with the SEC and listed for
trading on a national securities exchange and such other duties as
may be assigned to him from time to time by the Board of Directors
of the Company.  The Executive shall report to the Board
of Directors of the Company in carrying out the Executive’s
duties.  The Executive shall serve as the principal
executive officer of the Company for SEC reporting
purposes.

 


2.2           Time.  The
Executive shall devote his full business time and attention to the
business of the Company and to the promotion of the Company’s
best interest, subject to vacations, holidays and normal illnesses
pursuant to the Company’s policies in place from time to
time. The Executive shall at all times comply with Company policies
in place from time to time, including but not limited to the
Company’s Code of Ethics.

 


2.3           Travel.  The
Executive shall undertake such travel as may be necessary and
desirable to promote the business and affairs of the Company,
consistent with the Executive’s position and duties with the
Company.

 


3.           Term
of Employment.  The Executive’s employment
will be “at-will,” meaning that either the Executive or
the Company may terminate the Executive’s employment at any
time and for any reason, with or without cause.

 


 







1








 






 


4.           Compensation.

 


4.1           Base
Salary.  For the services to be rendered by the
Executive pursuant to this Agreement, the Company shall pay the
Executive an annual base salary of $350,000 (the
“Base
Salary”). The compensation
paid hereunder to the Executive shall be paid in accordance with
the normal payroll practices of the Company and shall be subject to
the customary withholding taxes and other employment taxes as
required with respect to compensation paid by the Company to an
employee.  The Base Salary will be subject to annual
review and adjustment by the Compensation Committee of the
Company’s Board of Directors based upon the Executive’s
performance thereafter.

 



4.2           
Bonuses.  Commencing
with respect to the Company’s
2021 fiscal year, the Executive will be eligible to receive
an annual bonus of 50% of the Executive’s Base Salary at
target based on a sliding scale basis,
payable in cash, as determined by the Compensation Committee of the
Company’s Board of Directors, and will be paid within
two and a half (2 1⁄2) months after the end of the applicable
calendar year.  The bonus will be subject to the
achievement of performance metrics, goals, objectives and/or other
criteria as determined by the Compensation Committee of the
Company’s Board of Directors.  Upon execution of
this Agreement, the Executive shall also be granted an option to
purchase up to 100,000 shares of common stock of the Company.
Consideration of additional equity incentive awards will be made
annually by the Compensation Committee of the Company’s Board
of Directors based upon the Executive’s performance. Any
equity award shall be evidenced by and subject to the terms and
conditions of an Award Agreement (as defined under the
Company’s 2017 Incentive Compensation Plan (the
“2017
Plan”)) entered into between the Company and the
Executive.

 


4.3           Severance.  In
the event this Agreement is terminated by the Company without
Cause, then the Company shall pay the Executive an amount equal to
twelve (12) months of the Executive’s Base Salary in effect
at the time of the termination, provided that the same may be
payable by the Company over a twelve (12)-month period in
accordance with the Company’s normal payroll practices and
subject to applicable law, at the Company’s discretion. If
Executive timely and properly elects continuation health coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985 (“COBRA”), the Company shall pay Executive’s
COBRA premiums for a period of twelve (12) months following the
termination date. In addition, the Company shall pay to Executive
any accrued bonus amount as determined by the Compensation
Committee within thirty (30) days of the termination date. 
All outstanding unvested stock options granted to Executive during
Executive’s employment with the Company shall become fully
vested and exercisable. The severance shall commence as of the
effective date of such termination.  If the Executive is
terminated for Cause, the Executive shall not be entitled to any
severance under this Agreement.  For purposes of this
Agreement, “Cause” shall exist if the Executive (i)
acts dishonestly or incompetently or engages in willful misconduct
in performance of his executive duties, (ii) breaches the
Executive’s fiduciary duties owed to the Company, (iii)
intentionally fails to perform duties assigned to him, (iv) is
convicted or enters a plea of guilty or nolo contendere with
respect to any felony crime involving dishonesty or moral
turpitude, and/or (v) breaches his obligations under this
Agreement.

 


 




 

2








 






 


4.4           Change
in Control Bonus.  Upon the occurrence of a Change
in Control (as defined in the 2017 Plan), Executive shall be
entitled to receive a lump sum payment equal to one (1) times
Executive’s most recent annual salary, payable within thirty
(30) days following the effective date of such Change in Control.
Notwithstanding the foregoing, a Change in Control shall not occur
unless such transaction constitutes a change in the ownership of
the Company (including for purposes of this Section 4.4 all persons
with whom the Company would be considered a single employer under
Internal Revenue Code Section 409A), a change in effective control
of the Company, or a change in the ownership of a substantial
portion of the Company’s assets under Section
409A.

 


5.           Expenses
and Vacation.

 


5.1           Travel
and Entertainment Expense.  The Company shall
reimburse the Executive for all reasonable and necessary travel and
entertainment expenses incurred by Executive in the performance of
the Executive’s duties hereunder upon submission of vouchers
and receipts evidencing such expenses in accordance with applicable
Company policies.

 


5.2           Vacation.  The
Executive shall be entitled to vacation of up to five (5) weeks per
calendar year, pursuant to the applicable Company
policy.  All vacations shall be in addition to recognized
national holidays.  During all vacations, the
Executive’s compensation and other benefits as stated herein
shall continue to be paid in full.  Such vacations shall
be taken only at times convenient for the Company, as approved by
the executive or body to which the Executive reports pursuant to
this Agreement.

 


6.           Company
Benefit Programs.  In addition to the compensation
and the rights provided for elsewhere in this Agreement, the
Executive shall be entitled to participate in each plan of the
Company now or hereafter adopted and in effect from time to time
for the benefit of executive employees of the Company, to the
extent permitted by such plans and applicable law. Nothing in this
Agreement shall limit the Company’s right to amend, modify
and/or terminate any benefit plan, policies or programs at any time
for any reason.

 


7.           Restrictive
Covenants and Need for Protection.  The Executive
acknowledges that, because of his senior executive position with
the Company, he has or will develop knowledge of the affairs of the
Company and its subsidiaries and their relationships with supplies,
dealers, distributors and customers such that he could do serious
damage to the financial welfare of the Company and/or its
subsidiaries should he compete or assist others in competing with
the business of the Company and/or its
subsidiaries.  Consequently, and in consideration of the
Executive’s employment with the Company, and for the benefits
that the Executive is entitled to receive under this Agreement, and
for other good and valuable consideration, the receipt of which he
hereby acknowledges, the Executive hereby agrees as
follows:

 


7.1           Confidential
Information.

 


7.1.1                      Non-disclosure.  Except
as the Company may permit or direct in writing, during the term of
this Agreement and thereafter, the Executive agrees that the
Executive will not disclose to any person or entity any
confidential or proprietary information, knowledge or data of the
Company or any of its subsidiaries that he may have obtained while
in the employ of the Company, relating to any customers, customer
lists, methods, distribution, products, services, sales, prices,
profits, costs, contracts, inventories, suppliers, dealers,
distributors, business prospects, business methods, manufacturing
ideas, formulas, plans or techniques, research, trade secrets, or
know-how of the Company or any of its
subsidiaries.  Nothing
contained in this Agreement shall limit the Executive’s
ability to respond to a lawful subpoena; to make a report to or
cooperate with any government agency, including without limitation
the ability to participate in an investigation, provide
information, and recover any remuneration awarded for doing so; and
to comply with any other legal obligations.

 


 




 

3








 






 


7.1.2                      Return
of Records.  All records, documents, software,
computers, computer disks, hard drives and any other form of
information relating to the business of the Company or any of its
subsidiaries that are or were acquired, prepared or created for or
by the Executive or that may or did come into the Executive’s
possession during the term of the Executive’s employment with
the Company, including any and all copies thereof, shall
immediately be returned to or, as the case may be, shall remain in
the possession of the Company, as of the termination of the
Executive’s employment with the Company.

 


7.2           Covenant
Not to Compete.  During the Executive’s
employment and for a period of one year thereafter, the Executive
agrees that he will not participate in or finance, directly or
indirectly, for himself or on behalf of any third party, anywhere
in the world, as principal, agent, employee, employer, consultant,
advisor, investor or partner, or assist in the management of, or
own any stock or any other ownership interest in, any business that
is competitive with the business of the Company and/or any of its
subsidiaries, as conducted at any time during the twelve-month
period prior to the time in question. Notwithstanding the
foregoing, the ownership of not more than one percent (1%) of the
outstanding securities of any company listed on any national
securities exchange shall not constitute a violation of this
Section, provided that the Executive’s involvement with any
such company is solely that of a passive security holder and the
Executive discloses such ownership in advance to the
Company’s Board of Directors.

 


7.3           Covenant
Not to Solicit.  The Executive agrees that he will
not, during the Executive’s employment and for a period of
one (1) year thereafter:

 


(a)           directly
or indirectly, request or advise any of the customers, distributors
or dealers of the Company or any of its subsidiaries to terminate
or curtail their business with the Company or any of its
subsidiaries, or to patronize another business that is competitive
with the Company or any of its subsidiaries; or

 


(b)           directly
or indirectly, on behalf of himself or any other person or entity,
request, advise or solicit any employee of the Company or any of
its subsidiaries to leave such employment for any
reason.

 


7.4           Judicial
Modification.  In the event that any court of law
or equity shall consider or hold any aspect of this Section 7 to be
unreasonable or otherwise unenforceable, the parties hereto agree
that the aspect of this Section so found may be reduced or modified
by appropriate order of the court and shall thereafter continue, as
so modified, in full force and effect.

 


 




 

4








 






 


7.5           Injunctive
Relief.  The parties hereto acknowledge that the
remedies at law for breach of this Section 7 will be inadequate,
and that the Company shall be entitled to injunctive relief for any
violation or threatened violation thereof; provided, however, that
nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedies available for such breach
or threatened breach, including the recovery of damages from the
Executive.

 


8.           Inventions
and Discoveries.  The Executive hereby sells,
transfers and assigns to the Company or to any person or entity
designated by the Company, all of the Executive’s right,
title and interest in and to all inventions, ideas, know how,
disclosures and improvements, whether patented or unpatented, and
copyrightable material made or conceived by the Executive, solely
or jointly, during the term hereof that relate to the products or
services of the Company or any of its subsidiaries or which
otherwise relate or pertain to the business, functions or
operations of the Company or any of its
subsidiaries.  The Executive agrees to communicate
promptly and to disclose to the Company in such form as the
Executive may be reasonably requested to do so, all information,
details and data pertaining to such inventions, ideas, know how,
disclosures and improvements and to execute and deliver to the
Company such formal transfers and assignments and such other papers
and documents as may be required of the Executive to permit the
Company or any person or entity designated by the Company to file
and prosecute the applicable patent applications, and, as to
copyrightable material, to obtain copyrights thereof.

 


9.           Tax
Withholding.  All payments made and benefits
provided by the Company under this Agreement shall be reduced by
any tax or other amounts required to be withheld by the Company
under applicable law.

 


10.           Section
409A.

 


10.1           General
Compliance. This Agreement is intended to comply with
Section 409A or an exemption thereunder and shall be construed and
administered in accordance with Section 409A. Notwithstanding any
other provision of this Agreement, payments provided under this
Agreement may only be made upon an event and in a manner that
complies with Section 409A or an applicable exemption. Any payments
under this Agreement that may be excluded from Section 409A either
as separation pay due to an involuntary separation from service or
as a short-term deferral shall be excluded from Section 409A to the
maximum extent possible. For purposes of Section 409A, each
installment payment provided under this Agreement shall be treated
as a separate payment. Any payments to be made under this Agreement
upon a termination of employment shall only be made upon a
““separation from service”“ under Section
409A. Notwithstanding the foregoing, the Company makes no
representations that the payments and benefits provided under this
Agreement comply with Section 409A, and in no event shall the
Company be liable for all or any portion of any taxes, penalties,
interest, or other expenses that may be incurred by the Executive
on account of non-compliance with Section 409A.

 


10.2           Specified
Employees. Notwithstanding any other provision of this
Agreement, if any payment or benefit provided to the Executive in
connection with the Executive’s termination of employment is
determined to constitute “nonqualified deferred
compensation” within the meaning of Section 409A and the
Executive is determined to be a “specified employee” as
defined in Section 409A(a)(2)(b)(i), then such payment or benefit
shall not be paid until the first payroll date following the
six-month anniversary of the Termination Date or, if earlier, on
the Executive’s death (the “Specified Employee Payment
Date”). The aggregate of any payments that would
otherwise have been paid before the Specified Employee Payment Date
shall be paid to the Executive in a lump sum on the Specified
Employee Payment Date and thereafter, any remaining payments shall
be paid without delay in accordance with their original
schedule.

 


 




 

5








 






 


11.           Survival
of Obligations.  All obligations of the Company
and the Executive that by their nature involve performance, in any
particular instance, after the termination of the Executive’s
employment or the term of this Agreement, or that cannot be
ascertained to have been fully performed until after the
termination of Executive’s employment or the term of this
Agreement, will survive the expiration or termination of the term
of this Agreement.

 


12.           Officer
Resignation.  Upon termination of the
Executive’s employment with the Company for any reason, the
Executive shall resign, as of the date of such termination, from
any and all director and officer positions held by the Executive
with the Company or any of its parent companies, subsidiaries or
affiliates.

 


13.           Miscellaneous.  The
following miscellaneous sections shall apply to this
Agreement:

 


13.1           Modifications
and Waivers.  No provision of this Agreement may
be modified, waived or discharged unless that modification, waiver
or discharge is agreed to in writing by the Executive and the
Company.  No waiver by either party at any time of any
breach by the other party of, or compliance with, any condition or
provision of this Agreement to be performed by that other party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the time, or at any prior or subsequent
time.

 


13.2           Construction
of Agreement.  This Agreement supersedes any oral
or written agreements between the Executive and the Company and any
oral representations by the Company to the Executive with respect
to the subject matter of this Agreement.

 


13.3           Governing
Law.  The validity, interpretation, construction
and performance of this Agreement will be governed by the laws of
the State of Florida, notwithstanding any conflict of law provision
to the contrary.

 


13.4           Severability.  If
any one or more of the provisions of this Agreement, including but
not limited to Section 7 hereof, or any word, phrase, clause,
sentence or other portion of a provision is deemed illegal or
unenforceable for any reason, that provision or portion will be
modified or deleted in such a manner as to make this Agreement as
modified legal and enforceable to the fullest extent permitted
under applicable law.  The validity and enforceability of
the remaining provisions or portions of this Agreement will remain
in full force and effect.

 


13.5           Counterparts.  This
Agreement may be executed in two or more counterparts, each of
which will take effect as an original and all of which will
evidence one and the same agreement.

 


13.6           Successors
and Assigns.  This Agreement shall be binding
upon, and shall inure to the benefit of the parties hereto and
their respective heirs, beneficiaries, personal representatives,
successors and assigns.  Neither party may assign the
party’s rights or obligations under this Agreement, provided
that the Company may assign this Agreement to a parent corporation
that is created in connection with a merger of the Company with an
indirect wholly owned subsidiary as part of a holding company
reorganization.

 


13.7           Entire
Agreement.  This Agreement contains the entire
agreement of the parties.  All prior arrangements or
understandings, whether written or oral, are merged
herein.

 


 




 

6








 






 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.

 


	

BK
TECHNOLOGIES, INC.


 


By:
__/s/ E.G.
Payne 


Name:                       E.G.
Payne 


Title:                       Chairman 


 

	

THE
EXECUTIVE


 


By:
  /s/ John M.
Suzuki


Name:
John M. Suzuki


 

 


 


	
 

	
 


	

BK
TECHNOLOGIES CORPORATION


 


By:
__/s/ E.G.
Payne 


Name:                       E.G.
Payne 


Title:                       Chairman 


 

	
 


	
 

	
 







 


 




 

7