BK Technologies Corp 8-K, filed Jan 11, 2022
BK Technologies Corp (BKTI)
About this 8-K
BK Technologies Corp filed this 8-K on January 11, 2022.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter) |
(State or other jurisdiction of | (Commission | (IRS Employer | ||
incorporation or organization) | File No.) | Identification Number) |
(Address of principal executive offices) | (Zip Code) |
(
(Registrant’s telephone number including area code)
N/A |
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class |
| Trading Symbol(s) |
| Name of Each Exchange on Which Registered |
|
|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
On January 11, 2022, BK Technologies Corporation (the “Company”) announced the upcoming retirement of its current Chief Financial Officer, William P. Kelly. As of the date of this Report, the Company was actively searching for Mr. Kelly’s replacement. The Company anticipates that Mr. Kelly’s retirement will be effective when his replacement begins full time work with the Company, but no later than June 30, 2022. The Company will file a subsequent current report on Form 8-K when Mr. Kelly’s retirement is effective and his replacement has been appointed.
In connection with Mr. Kelly’s retirement, on January 11, 2022, the Company and Mr. Kelly entered into a Separation Agreement and General Release (“Separation Agreement”). Pursuant to the Separation Agreement, upon Mr. Kelly’s retirement, the Company will pay to Mr. Kelly one hundred sixty-six thousand eighty-seven dollars and fifty cents ($166,087.50), which amounts to nine months of compensation at Mr. Kelly’s current normal base pay rate, less taxes, social security and other required withholdings, to be paid in bi-weekly increments in accordance with the Company’s regular payroll practices. Also pursuant to the Separation Agreement, upon Mr. Kelly’s retirement, the Company will pay or reimburse the monthly premium or cost of COBRA health care coverage (approximately $1,119.96 monthly) for Mr. Kelly’s wife, until August 7, 2022. Pursuant to the Separation Agreement, Mr. Kelly granted a general release to the Company from any and all claims (known or unknown), rights, or demands that Mr. Kelly has or may have against the Company and other released parties described in the Separation Agreement. In the Separation Agreement, Mr. Kelly was given required opportunities to seek advice of counsel and to revoke the Separation Agreement.
The preceding description of the Separation Agreement is a summary of its material terms, does not purport to be complete, and is qualified in its entirety by reference to the Separation Agreement, a copy of which is being filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure
On January 11, 2022, the Company issued a press release announcing the planned retirement of Mr. Kelly. A copy of the press release is furnished herewith as Exhibit 99.1.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
Exhibit No. |
| Description of Exhibit |
| ||
|
2 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| BK TECHNOLOGIES CORPORATION |
| ||
|
|
| ||
Date: January 11, 2022 |
| By: | /s/ John M. Suzuki |
|
|
| John M. Suzuki |
| |
|
| Chief Executive Officer |
| |
3 |
EXHIBIT 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE (hereinafter referred to as “Agreement”) is made and entered into between BK Technologies, Inc., 7100 Technology Drive, West Melbourne, FL 32904, for itself and on behalf of its directors, officers, employees, representatives, agents, successors-in-interest, assigns, sister companies and affiliates (collectively referred to herein as the “Employer”), and William Kelly, 409 Magnolia Ending Mount Dora, FL 32757, and his heirs, devisees, legatees, legal representatives, and assigns, (collectively referred to herein as “Employee”). Employer and Employee may individually be referred to as a “Party” or collectively “Parties,” as appropriate, throughout this Agreement.
WHEREAS Employer and Employee desire to amicably end their at-will employment relationship and to terminate the March 5, 2019 Employment Agreement without cause, and the Parties have previously negotiated agreeable terms for this Agreement in that certain writing dated December 1, 2021, which are intended to be fully and finally agreed upon in this definitive Agreement; and
WHEREAS and to fully and finally settle all existing or potential claims and disputes between them, whether known or unknown, the Parties agree as follows:
1. Obligations of the Employer. In consideration of Employee's agreement to the terms herein, including the release set forth in Section 3, Employer shall provide the following separation benefits to Employee, which Employer is not otherwise legally obligated to provide:
|
| (a) | The Employer shall pay to Employee one hundred sixty-six thousand eighty-seven dollars and fifty cents ($166,087.50), which amounts to nine-months of compensation at Employee’s current normal base pay rate, to be paid in nineteen bi-weekly increments in accordance with Employer’s regular payroll practices, less taxes, social security and other required withholdings (the “Separation Payment”). If Employee does not revoke this Agreement pursuant to Section 14 prior to the Revocation Period defined in Section 14, the payments constituting the Separation Payment will commence on Employer’s first regular payday that is ten (10) or more days after Employee delivers a copy of this Agreement to the Employer signed by him or the Employer’s regular payday following the Separation Date (as defined in Section 2(a) below), whichever date is later. |
|
|
|
|
|
| (b) | The Employer shall pay the monthly premium or cost of COBRA health care coverage for Employee’s spouse ($1,119.96 monthly), commencing on the Separation Date through August 7, 2022. |
| Page 1 of 6 |
2. Employee Obligations, Acknowledgements, and Representations. In consideration of the terms of this Agreement and the separation benefits provided by Employer, including the Separation Payment, described in Section 1 above, Employee agrees as follows:
|
| (a) | Employee will resign as the Executive Vice President and Chief Financial Officer (“CFO”) of Employer and as an employee of Employer on June 30, 2022 or, if a new Executive Vice President and CFO (“Employee’s Replacement”) shall begin full time work to replace Employee before June 30, 2022, on the date that Employee’s Replacement begins full time work for Employer (such date, the “Separation Date”). Employee shall be paid his salary through the Separation Date in accordance with the Employer’s normal payroll practices and policies and such salary will continue to be subject to payroll taxes and required withholdings. |
|
|
|
|
|
| (b) | Employee acknowledges and agrees that the Separation Payment and the payment of any COBRA premium or cost as contemplated by Section 1 above shall constitute the entire, maximum, and only obligation of Employer to Employee under this Agreement or otherwise, and Employee is not entitled to any other benefit, payment or compensation in any form from Employer, including, but not limited to, an annual bonus. This provision does not alter or change Employer’s obligation to continue to pay to Employee his salary through the Separation Date as contemplated by Section 2(a) above. |
|
|
|
|
|
| (c) | Employee agrees that he will not make any disparaging, denigrating, demeaning, or untrue statements about Employer, or any person or entity associated with Employer, including any officer, director, member, consultant, expert, or legal representative of Employer, as well as any of Employer’s products, services, or business practices. Disparaging statements include, but are not limited to, statements that are false, statements that are misleading, and statements that might tend to cast Employer in a negative light, regardless of their truth or falsity. In the event that Employee breaches this non-disparagement provision, Employer may seek any and all appropriate relief, both legal and equitable, including, without limitation, temporary and/or permanent injunctive relief and the immediate return and/or forfeiture of the severance payment. |
|
|
|
|
|
| (d) | Employee shall be reasonably available to answer questions and for general consultation with the Employer for a period of six (6) months after the Separation Date (the “Consultation Obligation”). Employee will not be required to spend more than three (3) hours in any workweek or be required to undertake any travel on behalf of the Employer performing the Consultation Obligation. Employee will cooperate in good faith with any such questions and/or requests from the Employer. Employer expressly agrees that the Separation Payment due and owing to Employee shall not be withheld, reduced or otherwise impacted based on Employee’s post-separation consultation and/or assistance to the Employer. |
|
|
|
|
|
| (e) | Employee agrees that Employer shall have no obligation to consider him for reinstatement or rehire. |
|
|
|
|
|
| (f) | Employee represents that he has reported all workplace injuries or illnesses, if any, to Employer. |
| Page 2 of 6 |
3. General Release. Employee acknowledges and understands that Employer is willing to offer this Agreement to Employee only on Employee's explicit and express agreement, as evidenced by Employee's execution below, that Employee's voluntary acceptance of this Agreement will preclude any possibility of controversy arising in the future between Employee and Employer, regarding Employee's employment with Employer. Accordingly, as a material term of this Agreement and in exchange for the Severance Payment and other benefits set forth herein, Employee hereby unconditionally releases BK Technologies Inc., its predecessors, successors, assigns, and affiliated companies and their respective officers, directors, shareholders, employees, benefit plans, administrators and agents (collectively, the “Released Parties”), from any and all claims (known or unknown), rights or demands that Employee has or may have against any of the Released Parties as a result of or arising from his employment with or separation from BK Technologies Inc., including but not limited to, any and all claims for breach of contract, express or implied, any form of compensation or benefits (except the Separation Payment and other benefits expressly set forth in this Agreement), wrongful termination, notice, pay-in-lieu of notice, constructive discharge, discrimination of any type, harassment, retaliation, negligence, fraud and any tort of any nature, and any and all claims arising under any federal, state or local statute, law, ordinance or regulation, including, but not limited to, the Civil Rights Acts of 1866, 1964 (Title VII) and 1991, the Age Discrimination in Employment Act of 1967 (“ADEA”), the Employee Retirement Income Security Act of 1974, the Equal Pay Act of 1963, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act, the Florida Civil Rights Act, the Rehabilitation Act of 1973, the Older Workers Benefit Protection Act of 1990, the Genetic Information Nondiscrimination Act of 2008 (“GINA”), and all amendments to such laws, and further covers administrative charges, actions and suits under the National Labor Relations Act, as amended; the Fair Labor Standards Act of 1938 (“FLSA”), as amended; the Worker Adjustment and Retraining Notification Act of 1988 (“WARN Act”); 42 U.S.C. §1981; and the Sarbanes-Oxley Act of 2002, up to and including the effective date of this Agreement. This Release does not waive any rights or claims that may arise under the ADEA after execution of this Agreement. This Release does not waive any rights that Employee has regarding a violation or breach of this Agreement by Employer.
Nothing in this Agreement is intended to, or shall, interfere with Employee’ rights under federal, state, or local civil rights or employment discrimination laws, including Title VII, GINA, the ADA, the UAA, USERRA, FMLA, the ADEA, or the EPA to file or otherwise submit a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of any of the provisions of this Agreement. Employee shall not, however, be entitled to any relief, recovery, damages, or monies in connection with any such brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding. Employee acknowledges and understands that if he violates this Agreement by filing or bringing any claims or actions contrary to this Separation Agreement and General Release, in addition to any other remedies that may be available to Employer, including, but not limited to, remedies for breach of contract, Employer shall be entitled to all reasonable costs and expenses in defense or prosecution of such charges, claims, or actions, including its reasonable attorney's fees and costs.
| Page 3 of 6 |
4. Confidentiality and Non-disclosure. During Employee’s employment with Employer, he came to know certain Confidential Information and proprietary information relating to Employer and its operations, strategies, training information, finances, employees, and customers. Employee agrees that he will not disclose or discuss any Confidential Information with any other person or entity and that he will not use any Confidential Information for his own purposes, for the purposes of any other person or entity, or to the detriment of the Company. Further, Employee understands and agrees that the above Separation Payment is specifically conditioned upon hi strict compliance to his obligations set forth in this Section 4.
The term “Confidential Information” as used in this Agreement means any confidential, proprietary or trade secret information, whether or not marked or otherwise designated as confidential, whether in document, electronic or some other form, and includes, without limitation, information that is not generally known to the public. Such information includes, but is not limited to, information regarding Employer’s finances, operations, sales and marketing plans and strategies, product costs and revenues, pricing, projections, sales and market research, existing and prospective customers and contact information. Employee also hereby acknowledges that Employer has informed him, in accordance with 18 U.S.C. § 1833(b), that he may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret where the disclosure: (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
5. Return of Employer’s Property. Employee agrees to return to Employer all of Employer’s equipment and property, including, but not limited to, keys, pagers, facility access cards, backup tapes and systems, software, laptop, equipment of any kind, and the originals and copies of any and all files, records, notebooks, manuals, drawings, photographs, recordings, reports, summaries, correspondence (including e-mail), work papers, documents and computer files, that is in his possession, custody, or control no later than the Separation Date. Excepted from this provision is the Microsoft Office Surface (Serial # 059330182153), which may be retained by Employee. Employee represents that he has not retained any copies (including electronic copies) of any Employer’s documents or records. Employee understands and agrees that the above Separation Payment is specifically conditioned upon returning all company property in his possession or control. Employee agrees to access Employer’s information and computer systems after the Separation Date only as permitted by Employer.
| Page 4 of 6 |
6. No Other Claims. Employee represents and agrees that he has not filed any claim, complaint or charge against the Released Parties (including Employer), and all of their officers, agents, owners, members, shareholders, employees, representatives, attorneys, and all persons acting on behalf of them, with any governmental agency or any state or federal court. Employee further represents and warrants that he has not assigned any claims or causes of action that he may have against Employer, any affiliates of Employer, any of the Released Parties, and all of their officers, agents, owners, members, shareholders, employees, representatives, attorneys, and all persons acting on behalf of them, to any other person or entity.
7. Opportunity to Consider and Confer. Employee has 21 days to review and consider this Agreement and the release set forth in Section 3. Employee acknowledges that pursuant to the federal law known as the Older Workers Benefit Protection Act (“OWBPA”), which is part of the federal ADEA, he has been advised to consult with an attorney of his choosing and at his expense prior to executing this Agreement. Employee is signing this Agreement voluntarily; no one is making or forcing him to enter into it. Employee has read and fully understand this Agreement. If Employee does not return the signed Agreement within 21 days after receipt of this Agreement, then this Agreement will have no force or effect.
8. Termination and Recovery of Benefits. If Employer demonstrates a breach of any of the terms of this Agreement by Employee, Employee shall reimburse Employer all the money it paid Employee under this Agreement along with reasonable attorneys’ fees and costs to enforce the terms of this Agreement.
9. Non-Admission. Neither this Agreement, nor anything contained herein, is to be construed as an admission by the Employer or Employee or as evidence of any liability, wrongdoing or unlawful conduct whatsoever.
10. Severability. If any provision, term or part of this Agreement is invalidated or found to be illegal or unenforceable, in whole or in part, by a court of competent jurisdiction, the Parties agree that such invalid, illegal or unenforceable provision, term or part may be modified or reformed to make said provision, term or part enforceable to achieve the Parties intent or may be severed from this Agreement, with all remaining provisions, terms or parts of this Agreement continuing unabated and remaining in full force and effect.
11. Entire Agreement. This Agreement contains the entire understanding and agreement between the parties and shall not be modified or suspended except upon express written consent of the parties to this Agreement. Employee represents and acknowledges that in executing this Agreement, he does not rely and has not relied upon any representation or statement made by the Employer or its agents, representatives or attorneys which is not set forth in this Agreement. Employer represents and acknowledges that in executing this Agreement, Employer does not rely and has not relied upon any representation or statement made by the Employee.
| Page 5 of 6 |
12. Supersedes Past Agreements. Except as expressly provided herein, this Agreement supersedes and renders null and void any previous employment agreements or contracts, whether written or oral, between Employee and the Employer; if in the event that Employee has entered into a non-compete agreement or confidentiality agreement with the Employer, that agreement will remain in full force and effect, along with any survival provisions of any written employment agreement. Employee expressly agrees that Section 7 of the March 5, 2019 Employment Agreement remains in full force and effect and is enforceable against Employee.
13. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Florida. Venue for any action to enforce or defend the terms of this Agreement shall lie exclusively in Broward County, Florida, and the Parties hereby unconditionally consent to same and waive any other jurisdiction and venue.
14. 7-Day Revocation Period. Employee may revoke this Agreement within seven (7) calendar days following his execution of the Agreement (the “Revocation Period”). Employee understands that he will not receive the above referenced Separation Payment or other benefits under this Agreement if he revokes this Agreement. If Employee chooses to revoke the Agreement, he understands that he needs to return the Agreement marked “revoked” to Gerardo Urbina, BK Technologies, Inc.’s Vice President of Human Resources, before the expiration of the Revocation Period. This Agreement shall not become effective or enforceable until the Revocation Period has expired.
[Signature Page Follows]
| Page 6 of 6 |
EMPLOYEE'S RECEIPT OF SEPARATION AGREEMENT AND GENERAL RELEASE. By signing and dating below, Employee acknowledges and agrees that Employee received this Separation Agreement and General Release on January 11, 2021, and that Employee has twenty-one (21) days to consider and accept this Separation Agreement and General Release.
|
| /s/ William Kelly |
|
|
| William Kelly |
|
|
|
|
|
| Date: | January 11, 2022 |
|
ACCEPTANCE AND EXECUTION OF SEPARATION AGREEMENT AND GENERAL RELEASE
IN WITNESS WHEREOF, and intending to be legally bound, Employer by its authorized representative, and Employee execute this Separation Agreement and General Release by voluntarily signing below and with full knowledge of the significance of all its provisions.
PLEASE READ CAREFULLY. THE SEPARATION AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, AND YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS.
Executed in Brevard County, State of Florida, this 11th day of January 2022.
| /s/ Marie Yochens |
| /s/ William Kelly |
|
| Witness as to Employee |
| William Kelly |
|
|
|
|
|
|
| Marie Yochens |
|
|
|
| Print Witness Name |
|
|
|
|
|
|
|
|
| /s/ Timothy A. Vitou |
| /s/ Gerardo Urbina |
|
| Witness as to Employer |
| Employer, BK Technologies, Inc. |
|
|
|
| By: Gerardo Urbina |
|
|
|
| Title: Vice President of Human Resources |
|
|
|
|
|
|
| Timothy A. Vitou |
|
|
|
| Print Witness Name |
|
|
|
Signature Page
EXHIBIT 99.1
BK Technologies Announces Planned Retirement of Chief Financial Officer
Bill Kelly After Distinguished 26-Year Career With The Company
WEST MELBOURNE, FL / ACCESSWIRE / January 11, 2022 / BK Technologies Corporation (NYSE American: BKTI) today announced that Executive Vice President and Chief Financial Officer Bill Kelly, 65, will retire after a distinguished 26-year career with the Company. BK Technologies has initiated an external search for a new Chief Financial Officer and Kelly has agreed to stay on board through this process (no later than June 30, 2022) and serve in a consulting role through the transition as needed.
“On behalf of the entire BK Technologies team, I would like to thank Bill for his valuable contributions over the past 26 years with the Company,” said Chief Executive Officer John Suzuki. “His dedication has led to the creation of a first-class finance organization which positions us for success in the coming years. I look forward to working with Bill through the transition period and wish him the best in his well-earned retirement.”
Bill Kelly has served as Executive Vice President and Chief Financial Officer of BK Technologies since July 1997, and as the Company’s Secretary since June 2000. From October 1995 to June 1997, he was Vice President and Chief Financial Officer of the Company’s subsidiary, RELM Communications, Inc.
Mr. Kelly commented, “I am honored to have been a part of BK Technologies’ management team for the last twenty-six years and am proud of what the Company has accomplished during that time. BK is at an exciting point in its development with an enhanced product offering and strong balance sheet, and I look forward to ensuring a smooth transition to my successor and subsequently watching the Company’s continued success.”
About BK Technologies
BK Technologies Corporation manufactures high-specification, American-made communications equipment of unsurpassed reliability and value for use by public safety professionals and government agencies. BK Technologies is honored to serve these heroes with reliable equipment when every moment counts. The Company's common stock trades on the NYSE American market under the symbol "BKTI". Maintaining its headquarters in West Melbourne, Florida, BK Technologies can be contacted through its web site at www.bktechnologies.com or directly at 1-800-821-2900.
Forward-Looking Statements
This press release contains certain forward-looking statements that are made pursuant to the "Safe Harbor" provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements concern the Company's operations, economic performance and financial condition and are based largely on the Company's beliefs and expectations. These statements involve known and unknown risks, uncertainties and other factors that may cause the actual results, performance or achievements of the Company, or industry results, to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Such factors and risks, some of which have been, and may further be, exacerbated by the COVID-19 pandemic, include, among others, the following: changes or advances in technology; the success of our land mobile radio product line; successful introduction of new products and technologies, including our ability to successfully develop and sell our anticipated new multiband product and other related products in the planned new BKR Series product line; competition in the land mobile radio industry; general economic and business conditions, including federal, state and local government budget deficits and spending limitations, any impact from a prolonged shutdown of the U.S. Government, and the ongoing effects of the COVID-19 pandemic; the availability, terms and deployment of capital; reliance on contract manufacturers and suppliers; risks associated with fixed-price contracts; heavy reliance on sales to agencies of the U.S. Government and our ability to comply with the requirements of contracts, laws and regulations related to such sales; allocations by government agencies among multiple approved suppliers under existing agreements; our ability to comply with U.S. tax laws and utilize deferred tax assets; our ability to attract and retain executive officers, skilled workers and key personnel; our ability to manage our growth; our ability to identify potential candidates for, and consummate, acquisition, disposition or investment transactions, and risks incumbent to being a noncontrolling interest stockholder in a corporation; impact of the COVID-19 pandemic on the companies in which the Company holds investments; impact of our capital allocation strategy; risks related to maintaining our brand and reputation; impact of government regulation; rising health care costs; our business with manufacturers located in other countries, including changes in the U.S. Government and foreign governments' trade and tariff policies, as well as any further impact resulting from the COVID-19 pandemic; our inventory and debt levels; protection of our intellectual property rights; fluctuation in our operating results and stock price; acts of war or terrorism, natural disasters and other catastrophic events, such as the COVID-19 pandemic; any infringement claims; data security breaches, cyber-attacks and other factors impacting our technology systems; availability of adequate insurance coverage; maintenance of our NYSE American listing; risks related to being a holding company; and the effect on our stock price and ability to raise equity capital of future sales of shares of our common stock. Certain of these factors and risks, as well as other risks and uncertainties, are stated in more detail in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2020 and in the Company's subsequent filings with the SEC. These forward-looking statements are made as of the date of this press release, and the Company assumes no obligation to update the forward-looking statements or to update the reasons why actual results could differ from those projected in the forward-looking statements.
Company Contact:
IMS Investor Relations
John Nesbett/Jennifer Belodeau
bktechnologies@imsinvestorrelations.com
(203) 972-9200