exv10w42



 





EXHIBIT 10.42




EMPLOYMENT AGREEMENT




DATED AS OF DECEMBER 6, 2004




BETWEEN




SMITH & WESSON HOLDING CORPORATION




AND




MICHAEL GOLDEN




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page No.

	1.
	 	Employment	 	 	1	 
	2.
	 	Full Time Occupation	 	 	1	 
	3.
	 	Compensation and other Benefits	 	 	1	 
	 
	 	(a) Base Salary	 	 	1	 
	 
	 	(b) Bonus	 	 	1	 
	 
	 	(c) Stock Options and Awards	 	 	1	 
	 
	 	(d) Fringe Benefits	 	 	2	 
	 
	 	(e) Vacation	 	 	2	 
	 
	 	(f) Reimbursement	 	 	2	 
	4.
	 	Term of Employment	 	 	2	 
	 
	 	(a) Employment Term	 	 	2	 
	 
	 	(b) Termination Under Certain Circumstances	 	 	2	 
	 
	 	(c) Result of Termination	 	 	3	 
	 
	 	(d) Change in Control	 	 	3	 
	5.
	 	Competition and Confidential Information	 	 	4	 
	 
	 	(a) Interests to be Protected	 	 	4	 
	 
	 	(b) Non-Competition	 	 	4	 
	 
	 	(c) Non-Solicitation of Employees	 	 	5	 
	 
	 	(d) Confidential Information	 	 	5	 
	 
	 	(e) Return of Books and Papers	 	 	5	 
	 
	 	(f) Disclosure of Information	 	 	5	 
	 
	 	(g) Assignment	 	 	5	 
	 
	 	(h) Equitable Relief	 	 	5	 
	 
	 	(i) Restrictions Separable	 	 	6	 
	6.
	 	Miscellaneous	 	 	6	 
	 
	 	(a) Notices	 	 	6	 
	 
	 	(b) Indulgences; Waivers	 	 	7	 
	 
	 	(c) Controlling Law	 	 	7	 
	 
	 	(d) Binding Nature of Agreement	 	 	7	 
	 
	 	(e) Execution in Counterpart	 	 	7	 
	 
	 	(f) Provisions Separable	 	 	7	 
	 
	 	(g) Entire Agreement	 	 	7	 
	 
	 	(h) Paragraph Headings	 	 	8	 
	 
	 	(i) Gender	 	 	8	 
	 
	 	(j) Number of Days	 	 	8	 
	7.
	 	Successors And Assigns	 	 	8	 







 









 





EMPLOYMENT AGREEMENT




     EMPLOYMENT AGREEMENT dated as of the 6th day of December, 2004, by and
between SMITH & WESSON HOLDING CORPORATION, a Nevada corporation (“Employer”),
and MICHAEL GOLDEN (“Employee”).



     WHEREAS, Employer desires to employ Employee, and Employee desires to
accept such employment, upon the terms and conditions contained herein.



     NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:



     1. Employment.



     Employer hereby employs Employee, and Employee hereby accepts such
employment, as President and Chief Executive Officer of Employer and of such
subsidiaries of Employer as Employer shall designate and in such other
capacities and for such other duties and services as shall from time to time be
mutually agreed upon by Employer and Employee. Employee shall report to the
Board of Directors of Employer.



     2. Full Time Occupation.



     Employee shall devote Employee’s entire business time, attention, and
efforts to the performance of Employee’s duties under this Agreement, shall
serve Employer faithfully and diligently, and shall not engage in any other
employment or other business activities while employed by Employer.



     3. Compensation and other Benefits.



          (a) Base Salary. Employer shall pay to Employee a base salary at a rate
of $325,000 per annum to be paid in equal monthly installments, or in such
other periodic installments upon which Employer and Employee shall mutually
agree. On an annual basis, the Compensation Committee of the Board of
Directors shall review Employee’s base salary and may increase, or recommend
that the full board increase, Employee’s base salary in the committee’s or the
board’s discretion, but neither the committee nor the board may decrease
Employee’s base salary.



          (b) Bonus. Employee shall be eligible to participate in executive
compensation programs maintained by Employer for its executive personnel.
Employee also shall be eligible to receive an annual bonus in such an amount,
if any, determined by the Board of Directors of Employer or such committee of
the Board of Directors as may be designated by the Board of Directors based
upon such factors as may be deemed relevant by the Board of Directors or
committee thereof, including the performance of Employee.



          (c) Stock Options and Awards. Employee shall be granted stock options
under Employer’s Stock Option Plan to purchase a total of 500,000 shares of
Employer’s common stock at any time or from time to time from the date of
vesting until 10 years of the date



 









 




of grant at a price equal to the closing price of Employer’s common stock
on the American Stock Exchange on the date of the execution of this Agreement.
The stock options will vest 20% on each of the first five anniversaries of the
date of grant, provided that no such options shall vest after any termination
of employment and vested options shall be exercisable for 60 days after any
termination of employment. On an annual basis, the Compensation Committee of
the Board of Directors will consider, or recommend that the full board
consider, the grant of additional options to Employee.




          (d) Fringe Benefits. Employee shall receive a car allowance of $1,000 per
month. Employee also shall be entitled to participate in any group insurance,
pension, retirement, vacation, expense reimbursement, and other plans,
programs, or benefits approved by the Board of Directors or a duly constituted
committee of the Board of Directors and made available from time to time to
employees of Employer generally during the term of Employee’s employment
hereunder. The foregoing shall not obligate Employer to adopt or maintain any
particular plan, program, or benefit.



          (e) Vacation. Employee shall be entitled to a paid vacation in accordance
with the applicable policies of Employer in effect from time to time, but not
less than four weeks of paid vacation per annum.



          (f) Reimbursement. Employer shall reimburse Employee for all travel,
entertainment, and other ordinary and necessary business expenses incurred by
Employee in connection with the business of Employer and Employee’s duties
under this Agreement. The term “business expenses” shall not include any item
not deductible in whole or in part by Employer for federal income tax purposes.
To obtain reimbursement, Employee shall submit to Employer receipts, bills or
sales slips for the expenses incurred. Reimbursements shall be made by
Employer monthly within 10 days of presentation by Employee of evidence of the
expenses incurred.



     4. Term of Employment.



          (a) Employment Term. The term of this Agreement shall be for a period of
two years commencing as of the date hereof and from year to year thereafter,
unless and until terminated by either party giving written notice to the other
not less than 60 days prior to the end of the then-current term.



          (b) Termination Under Certain Circumstances. Notwithstanding anything to
the contrary herein contained:



               (i) Death. Employee’s employment shall be automatically terminated,
without notice, effective upon the date of Employee’s death.



               (ii) Disability. If Employee shall fail, for a period of more than 60
consecutive days, or for 90 days within any 180-day period, to perform any of
Employee’s duties under this Agreement as the result of illness or other
incapacity, Employer, at its option and upon written notice to Employee, may
terminate Employee’s employment effective on the date of that notice.



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               (iii) Unilateral Decision of Employer. Employer may, at its option, upon
written notice to Employee, terminate Employee’s employment effective on the
date of that notice.



               (iv) Unilateral Decision by Employee. Employee may, at Employee’s option
and upon written notice to Employer, terminate Employee’s employment effective
on the date of that notice.



               (v) Certain Acts. If Employee engages in an act or acts involving a
crime, moral turpitude, fraud, or dishonesty, or if Employee willfully violates
in a material respect Employer’s Corporate Governance Guidelines, Code of
Conduct, or Code of Ethics for the CEO and Senior Financial Officers,
including, without limitation, the provisions thereof relating to conflicts of
interest or related party transactions, Employer may, at its option and upon
written notice to Employee, terminate Employee’s employment effective on the
date of that notice.



               (vi) Change in Control. Employee may, at Employee’s option and upon
written notice to Employer, terminate Employee’s employment effective on the
date of the notice in the event of a “Change in Control” of Employer (as
defined below) unless the Change in Control shall have been specifically
approved by the Board of Directors and the provisions of this Agreement remain
in full force and effect as to Employee and Employee suffers reduction in
Employee’s status, duties, authority, and compensation following such Change in
Control.



          (c) Result of Termination. In the event of the termination of Employee’s
employment pursuant to Sections 4(b)(i), 4(b)(ii), 4(b)(iv), or 4(b)(v) above,
Employee shall receive no further compensation under this Agreement. In the
event of the termination of Employee’s employment pursuant to Section 4(b)(iii)
or 4(b)(vi) above, Employee shall continue to receive Employee’s base salary as
provided in Section 3(a) above as well as any fringe benefits being received by
him pursuant to Section 3(d) above at the date of termination for a period of
one year after such termination. Employee shall receive no additional
compensation following any termination. In the event of any termination,
Employee shall resign all positions (including positions on the Board of
Directors) with Employer and its subsidiaries.



          (d) Change in Control. The term “Change in Control” of Employer shall
mean a change in control of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 as in effect on the date of this Agreement or,
if Item 6(e) is no longer in effect, any regulations issued by the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934 that
serve similar purposes; provided that, without limitation, such a Change in
Control shall be deemed to have occurred if and when (i) any person (as such
term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) directly or indirectly of equity securities of
Employer representing 20 percent or more of the combined voting power of
Employer’s then-outstanding equity securities, except that this provision shall
not apply to any person currently owning at least five percent or more of the
combined voting power of Employer’s currently outstanding equity securities or
to an acquisition



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that has been approved by at least 75 percent of the members of the Board
of Directors who are not affiliates or associates of such person; (ii) during
the period of this Agreement, individuals who, at the beginning of such period,
constituted the Board of Directors of Employer (the “Original Directors”),
cease for any reason to constitute at least a majority thereof unless the
election or nomination for election of each new director was approved (an
“Approved Director”) by the vote of a Board of Directors constituted entirely
of Existing Directors and/or Approved Directors; (iii) a tender offer or
exchange offer is made whereby the effect of such offer is to take over and
control Employer, and such offer is consummated for the equity securities of
Employer representing 20 percent or more of the combined voting power of
Employer’s then-outstanding voting securities; (iv) Employer is merged,
consolidated, or enters into a reorganization transaction with another person
and, as the result of such merger, consolidation, or reorganization, less than
75 percent of the outstanding equity securities of the surviving or resulting
person shall then be owned in the aggregate by the former stockholders of
Employer; or (v) Employer transfers substantially all of its assets to another
person or entity that is not a wholly owned subsidiary of Employer. Sales of
Employer’s Common Stock beneficially owned or controlled by Employee shall not
be considered in determining whether a Change in Control has occurred.




     5. Competition and Confidential Information.



          (a) Interests to be Protected. The parties acknowledge that Employee will
perform essential services for Employer, its employees, and its stockholders
during the term of Employee’s employment with Employer. Employee will be
exposed to, have access to, and work with, a considerable amount of
Confidential Information (as defined below). The parties also expressly
recognize and acknowledge that the personnel of Employer have been trained by,
and are valuable to, Employer and that Employer will incur substantial
recruiting and training expenses if Employer must hire new personnel or retrain
existing personnel to fill vacancies. The parties expressly recognize that it
could seriously impair the goodwill and diminish the value of Employer’s
business should Employee compete with Employer in any manner whatsoever. The
parties acknowledge that this covenant has an extended duration; however, they
agree that this covenant is reasonable and it is necessary for the protection
of Employer, its stockholders, and employees. For these and other reasons, and
the fact that there are many other employment opportunities available to
Employee if he should terminate his employment, the parties are in full and
complete agreement that the following restrictive covenants are fair and
reasonable and are entered into freely, voluntarily, and knowingly.
Furthermore, each party was given the opportunity to consult with independent
legal counsel before entering into this Agreement.



          (b) Non-Competition. During the term of Employee’s employment with
Employer and for the period ending 12 months after the termination of
Employee’s employment with Employer, regardless of the reason therefor,
Employee shall not (whether directly or indirectly, as owner, principal, agent,
stockholder, director, officer, manager, employee, partner, participant, or in
any other capacity) engage or become financially interested in any competitive
business conducted within the Restricted Territory (as defined below). As used
herein, the term “competitive business” shall mean any business that sells or
provides or attempts to sell or provide products or services the same as or
substantially similar to the products or services sold or provided by Employer
during Employee’s employment hereunder,



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and the term “Restricted Territory” shall mean any state or other
geographical in which Employer sells products or provides services during
Employee’s employment hereunder.




          (c) Non-Solicitation of Employees. During the term of Employee’s
employment and for a period of 12 months after the termination of Employee’s
employment with Employee, regardless of the reason therefor, Employee shall not
directly or indirectly, for Employee, or on behalf of, or in conjunction with,
any other person, company, partnership, corporation, or governmental entity,
seek to hire or hire any of Employer’s personnel or employees for the purpose
of having any such employee engage in services that are the same as or similar
or related to the services that such employee provided for Employer.



          (d) Confidential Information. Employee shall maintain in strict secrecy
all confidential or trade secret information relating to the business of
Employer (the “Confidential Information”) obtained by Employee in the course of
Employee’s employment, and Employee shall not, unless first authorized in
writing by Employer, disclose to, or use for Employee’s benefit or for the
benefit of, any person, firm, or entity at any time either during or subsequent
to the term of Employee’s employment, any Confidential Information, except as
required in the performance of Employee’s duties on behalf of Employer. For
purposes hereof, Confidential Information shall include without limitation any
materials, trade secrets, knowledge, or information with respect to management,
operational, or investment policies and practices of Employer; any business
methods or forms; any names or addresses of customers or data on customers or
suppliers; and any business policies or other information relating to or
dealing with the management, operational, or investment policies or practices
of Employer.



          (e) Return of Books and Papers. Upon the termination of Employee’s
employment with Employer for any reason, Employee shall deliver promptly to
Employer all files, lists, books, records, manuals, memoranda, drawings, and
specifications; all cost, pricing, and other financial data; all other written
or printed materials that are the property of Employer (and any copies of
them); and all other materials that may contain Confidential Information
relating to the business of Employer, which Employee may then have in
Employee’s possession, whether prepared by Employee or not.



          (f) Disclosure of Information. Employee shall disclose promptly to
Employer, or its nominee, any and all ideas, designs, processes, and
improvements of any kind relating to the business of Employer, whether
patentable or not, conceived or made by Employee, either alone or jointly with
others, during working hours or otherwise, during the entire period of
Employee’s employment with Employer or within six months thereafter.



          (g) Assignment. Employee hereby assigns to Employer or its nominee, the
entire right, title, and interest in and to all inventions, discoveries, and
improvements, whether patentable or not, that Employee may conceive or make
during Employee’s employment with Employer, or within six months thereafter,
and which relate to the business of Employer.



          (h) Equitable Relief. In the event a violation of any of the restrictions
contained in this Section is established, Employer shall be entitled to
preliminary and permanent injunctive relief as well as damages and an equitable
accounting of all earnings, profits, and



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other benefits arising from such violation, which right shall be
cumulative and in addition to any other rights or remedies to which Employer
may be entitled. In the event of a violation of any provision of subsection
(b), (c), (f), or (g) of this Section, the period for which those provisions
would remain in effect shall be extended for a period of time equal to that
period beginning when such violation commenced and ending when the activities
constituting such violation shall have been finally terminated in good faith.




          (i) Restrictions Separable. If the scope of any provision of this
Agreement (whether in this Section 5 or otherwise) is found by a Court to be
too broad to permit enforcement to its full extent, then such provision shall
be enforced to the maximum extent permitted by law. The parties agree that the
scope of any provision of this Agreement may be modified by a judge in any
proceeding to enforce this Agreement, so that such provision can be enforced to
the maximum extent permitted by law. Each and every restriction set forth in
this Section 5 is independent and severable from the others, and no such
restriction shall be rendered unenforceable by virtue of the fact that, for any
reason, any other or others of them may be unenforceable in whole or in part.



     6. Miscellaneous.



          (a) Notices. All notices, requests, demands, and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made, and received (i) if personally delivered,
on the date of delivery, (ii) if by facsimile transmission, upon receipt, (iii)
if mailed, three days after deposit in the United States mail, registered or
certified, return receipt requested, postage prepaid, and addressed as provided
below, or (iv) if by a courier delivery service providing overnight or
“next-day” delivery, on the next business day after deposit with such service
addressed as follows:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	(1	)	 	 	 	If to Employer:
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	2100 Roosevelt Avenue
	 	 	 	 	 	 	 	 	Springfield, Massachusetts 01104
	 	 	 	 	 	 	 	 	Attention: Chairman of the Board
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	with a copy given in the manner
	 	 	 	 	 	 	 	 	prescribed above, to:
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Greenberg Traurig, LLP
	 	 	 	 	 	 	 	 	2375 East Camelback Road
	 	 	 	 	 	 	 	 	Suite 700
	 	 	 	 	 	 	 	 	Phoenix, Arizona 85016
	 	 	 	 	 	 	 	 	Attention: Robert S. Kant, Esq.
	 	 	 	 	 	 	 	 	Phone: (602) 445-8302
	 	 	 	 	 	 	 	 	Facsimile: (602) 445-8100
	 	 	 	 	 	 	 	 	E-Mail: KantR@gtlaw.com







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	 	 	 	(2	)	 	 	 	If to Employee:
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 	 	

	

	 	 	 	 	 	 	 	Phone:	 	 
	

	 	 	 	 	 	 	 	 	 	

	

	 	 	 	 	 	 	 	Facsimile:	 	 
	

	 	 	 	 	 	 	 	 	 	

	

	 	 	 	 	 	 	 	E-Mail:	 	 
	

	 	 	 	 	 	 	 	 	 	







Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 6 for the giving of notice.




          (b) Indulgences; Waivers. Neither any failure nor any delay on the part
of either party to exercise any right, remedy, power, or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power, or privilege preclude any other or
further exercise of the same or of any other right, remedy, power, or
privilege, nor shall any waiver of any right, remedy, power, or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power, or privilege with respect to any other occurrence. No waiver shall be
binding unless executed in writing by the party making the waiver.



          (c) Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be governed by and
construed in accordance with the laws of the state of Massachusetts,
notwithstanding any Massachusetts or other conflict-of-interest provisions to
the contrary.



          (d) Binding Nature of Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors, and assigns, except that no party may assign or
transfer such party’s rights or obligations under this Agreement without the
prior written consent of the other party.



          (e) Execution in Counterpart. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.



          (f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other or others of them may be invalid or unenforceable in whole
or in part.



          (g) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings,
inducements, and conditions, express or implied, oral or written, except as
herein contained. The express terms hereof control



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and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified
or amended other than by an agreement in writing.




          (h) Paragraph Headings. The paragraph headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.



          (i) Gender. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine, or neuter, as
the context requires.



          (j) Number of Days. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays, and
holidays; provided, however, that if the final day of any time period falls on
a Saturday, Sunday, or holiday, then the final day shall be deemed to be the
next day that is not a Saturday, Sunday, or holiday.



     7. Successors And Assigns.



     This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto; provided that because the
obligations of Employee hereunder involve the performance of personal services,
such obligations shall not be delegated by Employee. For purposes of this
Agreement successors and assigns shall include, but not be limited to, any
individual, corporation, trust, partnership, or other entity that acquires a
majority of the stock or assets of Employer by sale, merger, consolidation,
liquidation, or other form of transfer. Employer will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of Employer to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that Employer would be required to perform it if no such
succession had taken place. Without limiting the foregoing, unless the context
otherwise requires, the term “Employer” includes all subsidiaries of Employer.



     IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.



	 	 	 	 	 
	 	 	SMITH & WESSON HOLDING CORPORATION
	 
	 	 	 	 
	

	 	By:
	 	/s/ Barry Monheit
	

	 	 	 	

	 	 	Name: Barry Monheit
	 	 	Its: Chairman
	 
	 	 	 	 
	 	 	/s/ Michael Golden
	 	 	

	 	 	Michael Golden








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