Consulting Agreement - Kanders & Co. Inc. and Armor Holdings Inc.
KANDERS & COMPANY, INC.
2 Soundview Drive
Greenwich, Connecticut 06830
March 8, 1999
Armor Holdings, Inc.
13386 International Parkway
Jacksonville, Florida 32218
Dear Sirs:
We are pleased to set forth in this agreement (the "Agreement") the
terms of the retention of Kanders & Company, Inc. (the "Consultant") by Armor
Holdings, Inc. and its affiliates and subsidiaries (collectively, the
"Company").
1. The Consultant will act as the non-exclusive consultant to the
Company, and will, subject to the provisions hereinafter set forth:
(a) Render investment banking and financial advisory services to
the Company, including assisting in the development and
structuring of a corporate financing and acquisition strategy
for the Company. The Company and the Consultant will execute
engagement letters or letters of intent at the appropriate
time in connection with specific transactions for which the
Consultant will be entitled to receive compensation; and
(b) Any other matter as may be mutually agreed upon by the
Consultant and the Company.
In connection with the Consultant's activities on the Company's behalf,
the Consultant will familiarize itself with the business, operations, properties
and financial condition of the Company. Nothing contained in this Agreement
shall require the Consultant to render a fairness opinion to the Company.
2. If the Company requests that the Consultant assist the Company in
any debt or equity financing for the Company, or in any acquisition by, or
recapitalization of, the Company, in any form, including but not limited to any
merger, consolidation, stock or asset acquisition or divestiture, any such
further action by the Consultant will be subject to a separate agreement
containing provisions and terms to be mutually agreed upon but in any event
shall be subject to the provisions of paragraph 10 below. The Consultant's
compensation for any such services shall be separately identified in such other
agreement, and shall be in addition to the compensation set forth in paragraph 4
below.
3. In connection with the Consultant's activities on the Company's
behalf, the Company will cooperate with the Consultant and will furnish the
Consultant with all information and data concerning the Company which the
Consultant reasonably believes appropriate to its assignment (all such
information so furnished being the "Information") and will provide the
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Armor Holdings, Inc.
March 8, 1999
Page 2
Consultant with access to the Company's officers, directors, employees,
independent accountants and legal counsel. The Company recognizes and confirms
that the Consultant (a) will use and rely primarily on the Information and on
information available from generally recognized public sources in performing the
services contemplated by this Agreement, without having independently verified
same, (b) does not assume responsibility for the accuracy or completeness of the
Information and such other information and (c) will not make an independent
appraisal of any of the Company's assets. The Information to be furnished by the
Company, when delivered, will be true and correct in all material respects and
will not contain any material misstatement of fact or omit to state any material
fact necessary to make the statements contained therein not misleading. The
Company will promptly notify the Consultant if it learns of any material
inaccuracy or misstatement in, or material omission from, any information
theretofore delivered to the Consultant. The Consultant agrees to keep
confidential and not disclose, without the Company's prior written consent, any
Information delivered to the Consultant by the Company that the Company has
identified in writing as not publicly available and confidential for a period of
six months after termination of this Agreement.
4. In addition to the fees described in paragraph 10 herein, the
Company agrees to reimburse the Consultant, upon request from time to time, for
reasonable out-of-pocket expenses incurred (including, but not limited to,
travel and other costs, reasonable fees and disbursements of counsel, and of
other consultants and Consultants retained by the Consultant).
5. The Company agrees to the indemnification and other agreements set
forth in the Indemnification Agreement attached hereto, the provisions of which
are incorporated herein by reference and shall survive the termination of this
Agreement.
6. This Agreement shall commence on the date hereof and continue for a
period of two years. Either party hereto may terminate this Agreement at any
time after one year from the date hereof upon three months prior written notice,
without liability or continuing obligation to you (except for our
confidentiality obligations) or to us (except for any compensation earned, or
expenses incurred, by us up to the date of termination) and except as set forth
in paragraphs 4, 5 and 10.
7. This Agreement will be governed by, and construed in accordance
with, the laws of the State of New York applicable to agreements made and to be
fully performed therein.
8. The benefits of this Agreement shall inure to the parties hereto and
their respective successors and assigns, and the obligations and liabilities
assumed in this Agreement by the parties hereto shall be binding upon their
respective successors and assigns.
9. For the convenience of the parties hereto, any number of
counterparts of this Agreement may be executed by the parties hereto. Each such
counterpart shall be, and shall be deemed to be, an original instrument, but all
such counterparts taken together shall constitute one and the same Agreement.
This Agreement may not be modified or amended except in
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Armor Holdings, Inc.
March 8, 1999
Page 3
writing signed by the parties hereto.
If the foregoing correctly sets forth our Agreement, please sign the
enclosed copy of this letter in the space provided and return it to us.
Very truly yours,
KANDERS & COMPANY, INC.
By:
-------------------------------------
Warren B. Kanders
President
AGREED TO AND ACCEPTED:
Armor Holdings, Inc. hereby accepts the terms and
provisions of, and agrees to be bound by the terms
and provisions of the foregoing letter, as of this 8th
day of March, 1999.
ARMOR HOLDINGS, INC.
By:
-----------------------------------------
Name:
Title:
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ARMOR HOLDINGS, INC.
13386 International Parkway
Jacksonville, Florida 32218
March 8, 1999
Kanders & Company, Inc.
2 Soundview Drive
Greenwich, Connecticut 06830
Gentlemen:
In connection with the engagement of Kanders & Company, Inc.
(the "Consultant") to advise and assist us with the matters set forth in the
Agreement dated the date hereof between us and the Consultant, we hereby agree
to indemnify and hold harmless the Consultant, its affiliated companies, and
each of the Consultant's and such affiliated companies' respective officers,
directors, agents, employees and controlling persons (within the meaning of
each of Section 20 of the Securities Exchange Act of 1934 and Section 15 of the
Securities Act of 1933) (each of the foregoing, including the Consultant, being
hereinafter referred to as an "Indemnified Person") to the fullest extent
permitted by law from and against any and all losses, claims, damages, expenses
(including reasonable fees and disbursements of counsel), actions (including
shareholder derivative actions), proceedings or investigations (whether formal
or informal), or threats thereof (all of the foregoing being hereinafter
referred to as "Liabilities"), based upon, relating to or arising out of such
engagement or any Indemnified Person's role therein; provided, however, that we
shall not be liable under this paragraph: (a) for any amount paid in settlement
of claims without our consent, which consent shall not be unreasonably
withheld, or (b) to the extent that it is finally judicially determined that
such Liabilities resulted primarily from the willful misconduct, bad faith or
gross negligence of the Indemnified Person seeking indemnification. In
connection with our obligation to indemnify for expenses as set forth above, we
further agree to reimburse each Indemnified Person for all such expenses
(including reasonable fees and disbursements of counsel) as they are incurred
by such Indemnified Person; provided, however, that if an Indemnified Person is
reimbursed hereunder for any expenses, such reimbursement of expenses shall be
refunded to the extent it is finally judicially determined that the Liabilities
in question resulted primarily from the willful misconduct, bad faith or gross
negligence of such Indemnified Person.
Promptly after the Consultant receives notice of the
commencement of any action or other proceeding in respect of which
indemnification or reimbursement may be
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Kanders & Company, Inc.
March 8, 1999
Page 2
sought hereunder, the Consultant will notify us thereof; but the omission so to
notify us shall not relieve us from any obligation hereunder unless, and only
to the extent that, such omission results in our forfeiture of substantive
rights or defenses. If any such action or other proceeding shall be brought
against any Indemnified Person, we shall, upon written notice given reasonably
promptly following your notice to us of such action or proceeding, be entitled
to assume the defense thereof at our expense with counsel chosen by us and
reasonably satisfactory to the Indemnified Person; provided, however, that any
Indemnified Person may at its own expense retain separate counsel to
participate in such defense. Notwithstanding the foregoing, such Indemnified
Person shall have the right to employ separate counsel at our expense and to
control its own defense of such action or proceeding if (i) there are or may be
legal defenses available to such Indemnified Person or to other Indemnified
Persons that are different from or additional to those available to us, or (ii)
in the reasonable opinion of counsel to such Indemnified Person, a conflict or
potential conflict exists between us and such Indemnified Person that would
make such separate representation advisable; provided, however, that in no
event shall we be required to pay fees and expenses under this indemnity for
more than one firm of attorneys in any jurisdiction in any one legal action or
group of related legal actions.
If the indemnification or reimbursement provided for
hereunder is finally judicially determined by a court of competent jurisdiction
to be unavailable to an Indemnified Person in respect of any Liabilities (other
than as a consequence of a final judicial determination of willful misconduct,
bad faith or gross negligence of such Indemnified person), then we agree, in
lieu of indemnifying such Indemnified Person, to contribute to the amount paid
or payable by such Indemnified Person as a result of such Liabilities (i) in
such proportion as is appropriate to reflect the relative benefits received, or
sought to be received, by us on the one hand and by such Indemnified Person on
the other hand from the transactions in connection with which the Consultant
has been engaged or (ii) if (but only if) the allocation provided in clause (i)
of this sentence is not permitted by applicable law, in such a proportion as is
appropriate to reflect not only the relative benefits referred to in such
clause (i) but also the relative fault of us and of such Indemnified Person;
provided, however, that in no event shall the aggregate amount contributed by
the Indemnified Person exceed the amount of fees actually received by the
Consultant pursuant to this engagement. The relative benefits received or
sought to be received by us on the one hand and by the Consultant on the other
shall be deemed to be in the same proportion as (a) the total value of the
transactions with respect to which the Consultant has been engaged bears to (b)
the fees paid or payable to the Consultant with respect to such engagement.
The rights accorded to Indemnified Persons hereunder shall be
in addition to any rights that any Indemnified Person may have at common law,
by separate agreement or otherwise.
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Kanders & Company, Inc.
March 8, 1999
Page 3
This agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such state. This agreement may not be amended
or otherwise modified except by an instrument signed by both the Consultant and
us. If any provision hereof shall be determined to be invalid or unenforceable
in any respect, such determination shall not effect such provision in any other
respect or any other provision of this agreement, which shall remain in full
force and effect.
The foregoing indemnification agreement shall remain in
effect indefinitely, notwithstanding any termination of the Consultant's
engagement.
Very truly yours,
ARMOR HOLDINGS, INC.
By:_________________________________
Name:
Title:
ACKNOWLEDGED AND AGREED TO:
KANDERS & COMPANY, INC.
By:_____________________________________
Warren B. Kanders
President