DATED 16 APRIL 1997
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(1) ARMOR HOLDINGS, INC
(2) ALASTAIR MORRISON and others
- and -
(3) ASHURST MORRIS CRISP
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ESCROW AGREEMENT
RELATING TO
SHARES OF COMMON STOCK
IN
ARMOR HOLDINGS, INC.
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ASHURST MORRIS CRISP
Broadwalk House
5 Appold Street
London EC2A 2HA
Tel: 0171-638-1111
Fax: 0171-972-7990
CNA/CY469282
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is entered into as a DEED on 16 April 1997
BETWEEN:-
(1) ARMOR HOLDINGS, INC whose principal place of business is at 13386
International Parkway, Jacksonville, Florida 32218 USA ("AHI");
(2) THE SEVERAL PERSONS whose names and addresses are set out in the
Schedule hereto (the "Warrantors"); and
(3) ASHURST MORRIS CRISP of Broadwalk House, 5 Appold Street, London EC2A
2HA (the "Escrow Agent" which term shall include any successor escrow
agent appointed in accordance with clause 7.2 hereof).
WHEREAS:
The parties hereto are entering into this Escrow Agreement pursuant to clause
4 of the agreement dated 16 April 1997 (the "Purchase Agreement") made
between AHI, Armor Holdings Limited ("AHL"), the Institutional Vendors (as
defined therein), the Management Vendors (as defined therein) and Martin
Brayshaw.
IT IS HEREBY AGREED as follows:
1. APPOINTMENT OF ESCROW AGENT
The Escrow Agent is hereby appointed to act as escrow agent hereunder
and the Escrow Agent agrees to act as such, pursuant to the terms
hereinafter set forth.
2. ESCROW FUND
On the date hereof, each of the Warrantors shall deliver to the
Escrow Agent a stock certificate or certificates registered in the
name of the relevant Warrantor (save that the stock certificate
delivered by Martin Brayshaw shall be in the name of Alastair
Morrison) in respect of that number of shares of common stock of AHI,
$.01 par value per share ("Common Stock") as is set forth next to the
relevant Warrantor's name in the Schedule hereto (the "Escrow
Shares") and together with each such certificate shall further
deliver (or as soon as reasonably practicable and in any event within
14 days after such delivery shall deliver) a stock power duly
endorsed in blank (together the "Escrow Fund") and shall deliver to
AHI any power of attorney pursuant to which this Escrow Agreement and
the stock power is executed on behalf of the relevant Warrantor. The
Escrow Fund shall be held in escrow by the Escrow Agent, pending its
disposition as hereinafter provided.
3. DISPOSITION OF ESCROW FUND
3.1 The stock certificates delivered pursuant to clause 2 hereof
represent the Common Stock that shall be held in escrow in accordance
with the terms of this Escrow
Agreement. Save as otherwise provided in clause 5 hereof, the Escrow
Agent shall hold the Escrow Fund until the earlier of:
(a) 16 April 1998; and
(b) the receipt by the Escrow Agent of notice in writing from AHI
that the audited accounts of AHI for the year ending 31
December 1997 have been issued (and AHI undertakes to the
Warrantors that it will deliver such notification to the
Escrow Agent forthwith upon the audited accounts of AHI for
the year ending 31 December 1997 being issued)
(the earlier of such dates being the "Expected Release Date")
PROVIDED THAT the Escrow Shares deposited by a Warrantor shall be
retained in escrow by the Escrow Agent beyond the Expected Release
Date if, prior to the Expected Release Date:
(c) the Escrow Agent has received notice in writing from AHI that
AHI has notified that Warrantor that AHI believes that it has
a Claim against that Warrantor, accompanied by a copy of its
notification to the Warrantor of that Claim pursuant to the
provisions of clause 6.6 of the Purchase Agreement; or
(d) the Escrow Agent has received notice in writing from the
Warrantor owning such Escrow Shares that such Warrantor
unconditionally consents to such retention.
3.2 In the event of AHI notifying the Escrow Agent as provided in clause
3.1(c) hereof or the Warrantor owning the relevant Escrow Shares
notifying the Escrow Agent as provided in clause 3.1(d) hereof, the
Escrow Agent shall hold the Escrow Fund until the receipt by the
Escrow Agent of notice in writing from AHI that:
(a) the relevant Warrantor has admitted liability in writing to
AHI in respect of the Claim; or
(b) AHI has obtained judgment of a court of competent
jurisdiction in respect of the Claim in favour of AHI and
that such judgment is not capable of appeal or the time for
any appeal in respect of that judgment has elapsed; or
(c) the relevant Warrantor has obtained judgment of a court of
competent jurisdiction in respect of the Claim in favour of
the relevant Warrantor and that such judgment is not capable
of appeal or the time for any appeal in respect of that
judgment has elapsed; or
(d) AHI has waived all rights which it has in respect of the
Claim or has otherwise agreed with the relevant Warrantor
that it will not proceed with the Claim
PROVIDED THAT in the event of AHI notifying the Escrow Agent as
provided in clause 3.1(c) hereof, the Escrow Agent shall hold the
Escrow Fund only until the expiry of 90 days from the date of the
notification unless prior to the expiry of such 90 days AHI further
notifies the Escrow Agent in writing that AHI has received a written
opinion from Queen's Counsel that AHI has a reasonable prospect of
success in respect of the relevant Claim. AHI undertakes to the
Warrantors that it will deliver
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to the Warrantors' Agent a copy of any such written opinion, as soon
as reasonably practicable following the receipt by AHI of the same.
3.3 AHI shall have the right, upon written notice to the Escrow Agent
given with any such notification as is referred to in clause 3.2(a)
or 3.2(b) hereof, to set-off and deduct from the Escrow Fund and to
cause the Escrow Agent to release from escrow and deliver to AHI or
its order the stock certificates representing that number of Escrow
Shares having a value equal to the amount of any liability owed by a
Warrantor to AHI as a result of the relevant Claim, as agreed by the
relevant Warrantor or determined by a court of competent
jurisdiction, up to the maximum number of Escrow Shares deposited by
that Warrantor pursuant to clause 2 hereof, together with the
relative stock power as delivered to the Escrow Agent as provided in
clause 2 hereof. Any notification from AHI to the Escrow Agent
pursuant to this clause 3.3 shall include the following information:
(a) the identity of the relevant Warrantor;
(b) the total number of Escrow Shares that the Escrow Agent is
thereby directed to release from the Escrow Fund, up to the
maximum number of Escrow Shares deposited by the relevant
Warrantor pursuant to clause 2 hereof;
(c) the party or parties to whom the Escrow Agent is thereby
directed to release the relevant Escrow Shares, together with
the relative stock power as delivered to the Escrow Agent as
provided in clause 2 hereof; and
(d) the date upon which the Escrow Agent is directed to release
such Escrow Shares and related documents.
3.4 For all purposes of this Escrow Agreement, the value of each share of
Common Stock to be released from escrow by the Escrow Agent shall be
$8.56875 (being the value attributed to the Common Stock for the
purposes of the calculation of the price payable by AHI pursuant to
the Purchase Agreement).
3.5 Any Escrow Shares released by the Escrow Agent pursuant to clause 3.3
hereof shall be treated as pro tanto discharging or reducing the
liability of the relevant Warrantor to make payment to AHI in respect
of the relevant Claim.
3.6 If prior to the Expected Release Date the Escrow Agent has not
received notice as referred to in clause 3.1(c) or clause 3.1(d)
hereof then as soon as reasonably practicable after the Expected
Release Date the Escrow Agent shall release from escrow and deliver
to the relevant Warrantor who delivered the same the stock
certificates representing the Escrow Shares deposited by that
Warrantor pursuant to clause 2 hereof, together with the relative
stock power as delivered to the Escrow Agent as provided in clause 2
hereof.
3.7 If prior to the Expected Release Date the Escrow Agent has received
notice as referred to in clause 3.1(c) hereof but prior to the expiry
of 90 days from the date of such notification the Escrow Agent has
not received notice as referred to in the proviso to clause 3.2
hereof then as soon as reasonably practicable after the expiry of
such 90 days the Escrow Agent shall release from escrow and deliver
to the relevant
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Warrantor who delivered the same the stock certificates representing
the Escrow Shares deposited by that Warrantor pursuant to clause 2
hereof, together with the relative stock power as delivered to the
Escrow Agent as provided in clause 2 hereof.
3.8 If prior to the Expected Release Date the Escrow Agent has received
notice as referred to in clause 3.1(c) hereof and prior to the expiry
of 90 days from the date of such notification the Escrow Agent has
also received notice as referred to in the proviso to clause 3.2
hereof then, provided that the Escrow Agent has also received notice
pursuant to clause 3.2(c) or 3.2(d) hereof, as soon as reasonably
practicable after the receipt of the notice pursuant to clause 3.2(c)
or 3.2(d) hereof the Escrow Agent shall release from escrow and
deliver to the relevant Warrantor who delivered the same the stock
certificates representing the Escrow Shares deposited by that
Warrantor pursuant to clause 2 hereof, together with the relative
stock power as delivered to the Escrow Agent as provided in clause 2
hereof.
3.9 If prior to the Expected Release Date the Escrow Agent has received
notice as referred to in clause 3.1(c) or 3.1(d) hereof and, in the
event of such notice being pursuant to clause 3.1(c) hereof, prior to
the expiry of 90 days from the date of such notification the Escrow
Agent has also received notice as referred to in the proviso to
clause 3.2 hereof then, if the Escrow Agent has also received notice
pursuant to clause 3.2(a) or 3.2(b) hereof, as soon as reasonably
practicable after the receipt of any notice pursuant to clause 3.3
hereof the Escrow Agent shall release from escrow and deliver to the
relevant Warrantor who delivered the same the stock certificates
representing the balance of Escrow Shares deposited by that Warrantor
pursuant to clause 2 hereof.
3.10 Until such time as an Escrow Share is released from the Escrow Fund
pursuant to clause 3.3 hereof, subject to any rights in favour of
third parties that may be granted by the Warrantors, the Warrantor
owning such Escrow Share shall be entitled to vote the same and to
receive dividends thereon, when, as and if declared by the Board of
Directors of AHI and to exercise all other rights and powers
available to him as the holder of the said share of Common Stock.
4. RIGHTS TO ESCROW FUND
The Escrow Fund shall be for the exclusive benefit of AHI and the
Warrantors and their respective successors and assigns, and no other
person or entity shall have any right, title or interest therein,
except as otherwise contemplated herein or by the Purchase Agreement.
For the avoidance of doubt, the Escrow Agent shall not be deemed to
be a trustee in respect thereof and shall have no obligations in
respect of the Escrow Fund or to AHI or the Warrantors save as
provided in this Escrow Agreement.
5. DISTRIBUTIONS FROM THE ESCROW FUND
5.1 The Escrow Agent shall continue to hold the Escrow Fund until
authorised under this Escrow Agreement to distribute the Escrow Fund,
or any specified portion thereof, as follows:
4
(a) pursuant to clause 3 hereof;
(b) as provided in clause 6 hereof;
(c) as provided in clause 7(b) hereof; or
(d) as directed by an order, decree or judgment of a court of
competent jurisdiction.
5.2 It is agreed that the Escrow Agent may disburse any portion of the
Escrow Fund without any instructions if such distribution is pursuant
to clause 5.1(b), 5.1(c) or 5.1(d) hereof.
6. TERMINATION OF ESCROW
This Escrow Agreement may be terminated at any time by and upon the
receipt by the Escrow Agent of 10 days' prior written notice of
termination executed by AHI and all the Warrantors, directing the
distribution of all property then held by the Escrow Agent under and
pursuant to this Escrow Agreement.
7. THE ESCROW AGENT
7.1 Obligations
This Escrow Agreement sets forth all of the duties of the Escrow
Agent, which are administrative in nature, with respect to any and
all matters pertinent hereto. Except as otherwise expressly provided
herein, the Escrow Agent shall not be subject to nor be bound by the
provisions of any other agreement. The Escrow Agent may consult with
counsel and take such professional or legal advice (including the
advice of a partner of Ashurst Morris Crisp) as it shall consider fit
with respect to any issue in connection with the performance of its
duties hereunder and all acts taken or omitted in reliance upon such
advice shall be conclusively deemed to have been made in good faith.
7.2 Resignation and Removal
The Escrow Agent may resign from its duties hereunder at any time by
giving at least 45 days' prior written notice of such resignation to
AHI and the Warrantors and specifying a date upon which such
resignation shall take effect. Notwithstanding the foregoing,
however, the Escrow Agent shall, in the alternative, have the right,
at any time, following 10 days written notice to the other parties
hereto, to resign as Escrow Agent and deposit the Escrow Fund with a
court of competent jurisdiction and the Escrow Agent shall thereupon
have no further obligation with respect thereto. Upon receipt of such
notice, a successor escrow agent shall be appointed by AHI and the
Warrantors, such successor escrow agent to become the Escrow Agent
hereunder on the resignation date specified in such notice. AHI and
the Warrantors, acting jointly, may at any time remove the Escrow
Agent and substitute a new escrow agent by giving 10 days' prior
written notice hereof to the Escrow Agent then acting and paying all
fees and expenses of such Escrow Agent through the date of
termination.
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7.3 Indemnification
(a) AHI and the Warrantors jointly and severally undertake to
hold the Escrow Agent harmless from and against and indemnify
the Escrow Agent for any loss, liability, expense (including
its reasonable fees and expenses), claim or demand arising
out of or in connection with its acting as Escrow Agent under
this Escrow Agreement, except for any of the foregoing
arising out of the gross negligence or fraud of the Escrow
Agent.
(b) Neither the Escrow Agent nor its partners, employees or
agents shall be liable for any loss or damage occurring as a
result of any act or omission made by it in good faith or by
reason of any other matter or thing (save arising out of the
gross negligence or fraud of the Escrow Agent).
(c) The foregoing indemnities in this clause 7.3 shall survive
the resignation or substitution of the Escrow Agent and the
termination of this Escrow Agreement.
7.4 Expenses of the Escrow Agent
AHI shall bear the cost of all reasonable expenses incurred by the
Escrow Agent in the performance of services pursuant to this Escrow
Agreement including, but not limited to, reasonable legal fees
(including any fees incurred in defending any action brought by any
person against the Escrow Agent in connection with or arising out of
its holding or dealing with the Escrow Fund), and AHI agrees to
reimburse promptly the Escrow Agent upon receipt of a written request
for reimbursement and the presentation of proper vouchers or receipts
therefor.
7.5 Right to rely on notices
The Escrow Agent is authorised and directed to assume without enquiry
that any letter, notice or other document purporting to be given to
it by AHI or any of the Warrantors (or the Warrantors' Agent) whether
holographically signed or copied has been duly and validly given and
has been signed by a person authorised to do so. The Escrow Agent
shall not be liable for acting on any statement, notification,
instruction, direction, advice or opinion sent by or contained in a
letter, notice or other document notwithstanding that the same may
contain some error or may not be authentic. Any such reliance or
action aforesaid will in no circumstances amount to negligence for
the purpose of any provision of this Escrow Agreement or otherwise.
7.6 Withholdings
Notwithstanding any other provision of this Escrow Agreement, the
Escrow Agent make or authorise the making of any deduction or other
withholding required by law from the Escrow Fund or from any release
from the Escrow Fund and (if required) the payment of the same to the
relevant authority.
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8. DISPUTES
If any dispute should arise with respect to the release and/or
ownership or right of possession of the Escrow Fund, the Escrow Agent
is authorised and directed to retain in its possession, without
liability to anyone, all of any portion of the Escrow Fund until such
dispute shall have been settled either by agreement of the parties
concerned or by an order, decree or judgment of a court of competent
jurisdiction, but the Escrow Agent shall be under no duty whatsoever
to institute or defend any such proceedings.
9. COSTS
AHI and the Warrantors shall each bear all of their own fees and
expenses incurred by them in resolving any dispute arising under this
Escrow Agreement. Any costs incurred by the Escrow Agent in
connection with any dispute arising under this Escrow Agreement shall
be reimbursed to the Escrow Agent pursuant to the provisions of
clause 7.4 hereof.
10. CONFLICT OF INTEREST
AHI and each of the Warrantors hereby acknowledge that the Escrow
Agent is merely serving as a depository hereunder and that the Escrow
Agent has served as solicitors for AHI and AHL with respect to the
transactions contemplated by the Purchase Agreement. The Warrantors
agree that the Escrow Agent shall be entitled to serve as solicitors
and to represent AHI and AHL in any dispute between the parties
hereto, whether arising out of this Escrow Agreement, the Purchase
Agreement or otherwise and no claim of conflict of interest or
privilege shall be asserted against the Escrow Agent in any such
matter as a result of Escrow Agent's service as Escrow Agent
hereunder.
11. NOTICES
All notices or other communications which are required or permitted
to be given hereunder shall be in writing and shall personally be
delivered, sent by certified or registered mail, return receipt
requested, or sent by a reputable overnight courier to the parties
hereto at the addresses first above written or to such other
addresses as the party to whom notice is to be given may have
furnished to the other parties in writing. Any such communication
shall be deemed to have been given when (i) delivered, if personally
delivered, (ii) on the tenth business day after mailing, if sent by
mail, and (iii) on the second business day after dispatch, if sent by
overnight courier.
12. APPOINTMENT OF WARRANTORS' AGENT
By his execution of this Escrow Agreement, each Warrantor hereby
names, constitutes and appoints Alastair Morrison as its agent and
attorney, with full power of substitution and delegation, to act on
behalf of the Warrantors (the "Warrantors' Agent"). For purposes of
this Escrow Agreement, any required action or decision of the
Warrantors as a group shall be made on their behalf by the
Warrantors' Agent. For all purposes under this Escrow Agreement
notice to the Warrantors' Agent shall be deemed to be notice to each
of the Warrantors. If at any time the person named
7
herein as Warrantors' Agent is unable or fails to act as the
Warrantors' Agent, a successor shall be designated by the vote of the
Warrantors who own a majority of the Escrow Shares (the "Required
Warrantors"). Upon notice to the other parties hereto, the
Warrantors' Agent may be removed or discharged at any time by the
Required Warrantors, and a new Warrantors' Agent appointed by the
Required Warrantors.
13. COUNTERPARTS
This Escrow Agreement may be executed in any number of counterparts,
and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but
one agreement.
14. GOVERNING LAW AND SUBMISSION TO JURISDICTION
14.1 This Escrow Agreement shall be governed by and construed in
accordance with English law.
14.2 The parties agree, for the benefit of the Escrow Agent, to submit to
the exclusive jurisdiction of the English courts in London. The
parties hereto irrevocably waive, to the fullest extent permitted by
law, any objection which they may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating
to this Escrow Agreement, or any judgment entered by any court in
respect hereof brought in London, England and further irrevocably
waive any claim that any suit, action or proceeding brought in
London, England has been brought in an inconvenient forum.
14.3 Each of the Warrantors agrees that service of any writ, notice or
other document for the purpose of any proceedings in such court shall
be duly served upon him if delivered or sent by registered post to
Clyde & Co. of 51 Eastcheap, London, EC3M 1JP (marked for the
attention of Jon Rayman, reference "Project Cabernet").
15. BENEFIT OF ESCROW AGREEMENT
All the terms and provisions of this Escrow Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; and nothing in this Escrow
Agreement, express or implied, is intended to confer on any person,
corporation, group or other entity, other than the parties hereto or
their respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Escrow
Agreement. Anything contained herein to the contrary notwithstanding
this Escrow Agreement shall not be assignable by any party hereto
without the consent of the other parties hereto.
16. MODIFICATION
This Escrow Agreement shall not be altered or otherwise amended,
except pursuant to an instrument in writing signed by each of the
parties hereto.
17. DESCRIPTIVE HEADINGS
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The description headings in this Escrow Agreement are for convenience
only and shall not control or affect the meaning or constructing of
any provision of this Escrow Agreement.
18. TRANSFER
Each of the Warrantors shall not sell, assign, transfer, exchange or
otherwise dispose of, or grant any option or warranty with respect
to, all or any part of their respective portion of the Escrow Fund,
nor shall they create, incur or permit to exist any pledge, lien,
mortgage, hypothecation, security interest, charge or other
encumbrance with respect to all or part of their respective portion
of the Escrow Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be
executed as a Deed and delivered on the date first above written.
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SCHEDULE
THE WARRANTORS
==============================================================================
NAME ADDRESS SHARES OF COMMON
STOCK PLACED IN ESCROW
- ------------------------------------------------------------------------------
Alastair Morrison Flat 6, 21 Embankment
Gardens, London SW3
4LW
- ------------------------------------------------------------------------------
Richard Bethell 60 Bromfelde Road,
London SW4 6PR
- ------------------------------------------------------------------------------
Martin Brayshaw Redhalll, 87 Main Street,
Lyddington, Nr
Uppingham, Rutland LE15
9LS
- ------------------------------------------------------------------------------
Alan Golacinski 5116 Woodmire Lane,
Alexandria, Virginia
22311, USA
- ------------------------------------------------------------------------------
William Daniell Carrera 108A No.3-21,
Bogota, Colombia
- ------------------------------------------------------------------------------
Mikhail Golovatov 22-39 Bolshaya Nikitshaya
Street, Moscow 103009,
Russia
- ------------------------------------------------------------------------------
Noel Philp 75 Clabon Mews, London
SW1X 0EQ
- ------------------------------------------------------------------------------
David Abbot 2 Old Lane Gardens,
Cobham, Surrey KT1 1NN
==============================================================================
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EXECUTED and DELIVERED
as a DEED by
and
for and on behalf of
ARMOR HOLDINGS, INC
EXECUTED and DELIVERED
as a DEED by ALASTAIR MORRISON
in the presence of:
EXECUTED and DELIVERED
as a DEED by RICHARD BETHELL
in the presence of:
EXECUTED and DELIVERED
as a DEED by
MARTIN BRAYSHAW
in the presence of:
EXECUTED and DELIVERED
as a DEED by
as duly authorised attorney
for and on behalf of
ALAN GOLACINSKI
EXECUTED and DELIVERED
as a DEED by
as duly authorised attorney
for and on behalf of
WILLIAM DANIELL
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EXECUTED and DELIVERED
as a DEED by
as duly authorised attorney
for and on behalf of
MIKHAIL GOLOVATOV
EXECUTED and DELIVERED
as a DEED by
as duly authorised attorney
for and on behalf of
NOEL PHILP
EXECUTED and DELIVERED
as a DEED by
as duly authorised attorney
for and on behalf of
DAVID ABBOT
SIGNED by ASHURST MORRIS CRISP
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