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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 21, 1996
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Armor Holdings, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-18863 59-3392443
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State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of incorporation)
191 Nassau Place Road, Yulee, Florida 32097
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (904) 261-4035
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American Body Armor & Equipment, Inc.
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(Former name or former address, if changed since last report.)
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ITEM 5 OTHER EVENTS
On August 21, 1996 (the "Effective Time"), in order to effect a change in
domicile from Florida to Delaware (the "Reincorporation"), American Body Armor &
Equipment, Inc., a Florida corporation ("ABA"), was merged with and into Armor
Holdings, Inc., a Delaware corporation. Prior to the Effective Time, Armor
Holdings, Inc. had been a wholly-owned subsidiary corporation of ABA organized
for the purpose of effecting the Reincorporation. At the Effective Time, Armor
Holdings, Inc. (the "Registrant") became the surviving entity of the merger
pursuant to which the Reincorporation was completed. The merged entity is
governed by the Delaware General Corporation Law ("DGCL") and the certificate of
incorporation and bylaws of the Registrant.
The Reincorporation (as more fully described in ABA's definitive proxy
statement dated July 1, 1996) was consummated pursuant to an Agreement and Plan
of Merger dated July 23, 1996 (the "Merger Agreement"), by and among ABA and the
Registrant, and was approved by the shareholders of ABA at its Annual Meeting of
Shareholders held on July 16, 1996 (the "Annual Meeting").
At the Effective Time, the directors and executive officers of ABA became
the directors and executive officers of the Registrant. The Registrant's
business, mailing address, principal executive offices and telephone number are
the same as those of ABA.
Upon the Effective Time, each outstanding share of common stock, $.03 par
value per share (the "ABA Common Stock") and each share of ABA Common Stock held
in the treasury of ABA was automatically converted into one share of common
stock, $.01 par value per share (the "Registrant Common Stock") of the
Registrant. Outstanding options to purchase shares of ABA Common Stock were
automatically converted into options to purchase the same number of shares of
Registrant Common Stock. Each employee stock plan and any other employee benefit
plan to which ABA was a party, whether or not such plan was related to ABA
Common Stock, were assumed by the Registrant and, to the extent any such plans
provided for the issuance or purchase of ABA Common Stock, such plans now
provide for the issuance or purchase of shares of Registrant Common Stock.
It was not and is not necessary for shareholders to exchange their existing
ABA stock certificates for new certificates bearing the name of the Registrant.
Shares of ABA Common Stock, traded under the symbol "ABE" on the American Stock
Exchange (the "Exchange") prior to the Reincorporation, continue to be traded on
the Exchange under such symbol as Registrant Common Stock. The Exchange will
consider the existing ABA stock certificates as constituting "good delivery" in
post-Reincorporation transactions involving Registrant Common Stock.
The foregoing description of the Reincorporation is not intended to be
complete and is qualified in its entirety by the complete texts of the Merger
Agreement set forth in Exhibit
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2.1 hereto, the certificate of merger filed with the Secretary of State of the
State of Delaware set forth in Exhibit 3.2 hereto, and the description of the
purposes and effects of the Reincorporation and the manner in which it was
accomplished, which are described in more detail on pages 23-34 of ABA's
definitive proxy statement dated July 1, 1996, prepared in connection with the
Annual Meeting, which pages are set forth in Exhibit 20.1 hereto.
The shares of Registrant Common Stock are deemed registered under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder. The class of Registrant Common Stock is deemed registered under the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Unrelated to the Reincorporation, on August 26, 1996, the Registrant
announced in a press release (set forth in Exhibit 20.2 hereto) that it had
entered into a definitive purchase agreement to acquire substantially all of the
assets of Defense Technology Corporation of America ("DTCoA"), based in Casper,
Wyoming. DTCoA is a leading manufacturer and distributor of Less-Than-Lethal
products including pepper sprays, distraction devices, flameless expulsion
grenades, specialty impact munitions and dry powdered OC to law enforcement and
military agencies in the United States and abroad. In addition, DTCoA
distributes other similar products including gas masks, riot helmets and gun
holsters. The closing of the transaction is subject to, among other things, the
completion of due diligence and other customary requirements and will occur on,
or about, September 30, 1996.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
The following Exhibits are hereby filed as part of this Current Report
on Form 8-K.
EXHIBIT DESCRIPTION
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2.1 Agreement and Plan of Merger, dated July 23, 1996, by and between ABA
and the Registrant.
3.1 Certificate of Incorporation of the Registrant, as filed with the
Secretary of State of the State of Delaware on July 23, 1996.
3.2 Certificate of Merger of ABA and the Registrant, as filed with the
Secretary of State of the State of Delaware on August 21, 1996.
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EXHIBIT DESCRIPTION
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3.3 Bylaws of the Registrant.
20.1 Pages 23-34 of the Definitive Proxy Statement of ABA, dated July 1,
1996 in connection with the 1996 ABA Annual Meeting of Shareholders
held on July 16, 1996.
20.2 Press Release of the Registrant dated August 26, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ARMOR HOLDINGS, INC.
/s/ Jonathan M. Spiller
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Jonathan M. Spiller
President and Chief Executive Officer
Dated: September 3, 1996
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EXHIBIT INDEX
The following Exhibits are filed herewith:
EXHIBIT DESCRIPTION
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2.1 Agreement and Plan of Merger, dated July 23, 1996, by and between ABA
and the Registrant.
3.1 Certificate of Incorporation of the Registrant, as filed with the
Secretary of State of the State of Delaware on July 23, 1996.
3.2 Certificate of Merger of ABA and the Registrant, as filed with the
Secretary of State of the State of Delaware on August 21, 1996.
3.3 Bylaws of the Registrant.
20.1 Pages 23-34 of the Definitive Proxy Statement of ABA, dated July 1,
1996 in connection with the 1996 ABA Annual Meeting of Shareholders
held on July 16, 1996.
20.2 Press Release of the Registrant dated August 26, 1996.
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of July 23, 1996 (the "Merger
Agreement"), between American Body Armor & Equipment, Inc., a Florida
corporation ("ABA") and Armor Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of ABA ("Armor Holdings").
W I T N E S S E T H
WHEREAS, on the date hereof, ABA has authority to issue 15,000,000 shares
of Common Stock, par value of $.03 per share (the "ABA Common Stock"), of which
there are 7,192,506 shares outstanding and no shares held in treasury, and
1,700,000 shares of 3% Convertible $1.00 stated value Preferred Stock, of which
there are no shares issued and outstanding and no shares held in treasury;
WHEREAS, on the date hereof, Armor Holdings has authority to issue
50,000,000 shares of Common Stock, par value $.01 per share (the "Armor Holdings
Common Stock"), of which there are 100 shares issued and outstanding and no
shares held in treasury, and 5,000,000 shares of preferred stock, of which there
are no shares issued and outstanding and no shares held in treasury.
WHEREAS, the respective Boards of Directors of ABA and Armor Holdings have
determined that it is advisable and in the best interests of each of such
corporations that ABA merge with and into Armor Holdings upon the terms and
subject to the conditions set forth herein for the purpose of effecting the
change of the state of incorporation of ABA from the State of Florida to the
State of Delaware;
WHEREAS, the Board of Directors of ABA has by resolutions duly adopted and
approved this Merger Agreement;
WHEREAS, ABA has approved this Merger Agreement in its capacity as the sole
stockholder of Armor Holdings; and
WHEREAS, the Board of Directors of ABA has directed that this Merger
Agreement be submitted to a vote of its shareholders at the annual meeting of
shareholders to be held on July 16, 1996, or at any and all adjournments and
postponements thereof, and the shareholders of ABA have so approved this Merger
Agreement at such annual meeting;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained, ABA and Armor Holdings hereby agree as follows:
Section 1. Merger. ABA shall be merged with and into Armor Holdings (the
"Merger"), and Armor Holdings shall be the surviving corporation (hereinafter
sometimes referred to as the "Surviving Corporation"). The Merger shall become
effective upon the date
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and time of filing of appropriate articles of merger, providing for the Merger,
with the Secretary of State of the State of Florida and an appropriate
certificate of merger, providing for the Merger, with the Secretary of State of
the State of Delaware, whichever later occurs (the "Effective Time").
Section 2. Governing Documents. The Certificate of Incorporation of Armor
Holdings, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation without change or
amendment until thereafter amended in accordance with the provisions thereof and
applicable law. The Bylaws of Armor Holdings, as in effect immediately prior to
the Effective Time, shall be the Bylaws of the Surviving Corporation without
change or amendment until thereafter amended in accordance with the provisions
thereof, the Certificate of Incorporation of the Surviving Corporation and
applicable law.
Section 3. Succession. At the Effective Time, the separate corporate
existence of ABA shall cease, and Armor Holdings shall succeed to all of the
assets and properties (whether real, personal or mixed), rights, privileges,
franchises, immunities and powers of ABA, and Armor Holdings shall assume and be
subject to all of the duties, liabilities, obligations and restrictions of every
kind and description of ABA, including, without limitation, all outstanding
indebtedness of ABA, all in the manner and as more fully set forth in Section
259 of the General Corporation Law of the State of Delaware.
Section 4. Directors. The directors and the members of the various
committees of the Board of Directors of ABA immediately prior to the Effective
Time shall be the directors and members of such committees of the Surviving
Corporation at and after the Effective Time to serve until the expiration of
their respective terms and until their successors are duly elected and
qualified.
Section 5. Officers. The officers of ABA immediately preceding the
Effective Time shall be the officers of the Surviving Corporation at and after
the Effective Time until their successors are duly elected and qualified.
Section 6. Further Assurances. From time to time, as and when required by
the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of ABA such deeds and other instruments, and
there shall be taken or caused to be taken by it all such further and other
action, as shall be appropriate, advisable or necessary in order to vest,
perfect or conform, of record or otherwise, in the Surviving Corporation, the
title to and lien of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of ABA, and otherwise to carry out
the purposes of this Merger Agreement, and the officers and directors of the
Surviving Corporation are fully authorized, in the name and on behalf of ABA or
otherwise, to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
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Section 7. Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof:
(a) each share of ABA Common Stock issued and outstanding immediately
prior to the Effective Time shall be changed and converted into and shall be one
fully paid and nonassessable share of Armor Holdings Common Stock;
(b) each share of ABA Common Stock held in the treasury of ABA
immediately prior to the Effective Time shall be automatically converted into
one share of Armor Holdings Common Stock, which shares shall continue to be
retained and held by the Surviving Corporation in the treasury thereof;
(c) each option, warrant, purchase right, unit or other security of
ABA issued and outstanding immediately prior to the Effective Time shall be
changed and converted into and shall be an identical security of Armor Holdings,
and the same number of shares of Armor Holdings Common Stock shall be reserved
for purposes of the exercise of such options, warrants, purchase rights, units
or other securities as is equal to the number of shares of ABA Common Stock so
reserved as of the Effective Time; and
(d) each share of Armor Holdings Common Stock issued and outstanding
in the name of ABA immediately prior to the Effective Time shall be canceled and
retired and resume the status of authorized and unissued shares of Armor
Holdings Common Stock, and no shares of Armor Holdings Common Stock or other
securities of Armor Holdings shall be issued in respect thereof.
Section 8. Employee Option and Benefit Plans. Each option or other right to
purchase or otherwise acquire shares of ABA Common Stock granted under any
employee option, stock purchase or other benefit plan of ABA (collectively, the
"Plans") which is outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become an option or right to acquire (and Armor Holdings
hereby assumes the obligation to deliver) the same number of shares of Armor
Holdings Common Stock, at the same price per share, and upon the same terms, and
subject to the same conditions, as set forth in the respective Plan as in effect
immediately prior to the Effective Time. The same number of shares of Armor
Holdings Common Stock shall be reserved for purposes of the Plans as is equal to
the number of shares of ABA Common Stock so reserved immediately prior to the
Effective Time. Armor Holdings hereby assumes, as of the Effective Time, (i) the
Plans and all obligations of ABA under the Plans, including the outstanding
options, stock purchase rights or awards or portions thereof granted pursuant to
the Plans and the right to grant additional options and stock purchase right
thereunder and (ii) all obligations of ABA under all other benefit plans in
effect as of the Effective Time with respect to which employee rights or accrued
benefits are outstanding as of the Effective Time.
Section 9. Dividends and Distributions. In the event that any dividend or
other distribution shall hereafter be declared by the Board of Directors of ABA
in respect of the
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outstanding shares of ABA Common Stock payable subsequent to the Effective Time,
the obligation to make payment of such dividend or other distribution shall, by
virtue of the Merger, become the obligation of the Surviving Corporation and
shall be satisfied in the manner specified in such declaration, except that, to
the extent such dividend or other distributions shall have been declared payable
in whole or in part in shares of ABA Common Stock, the Surviving Corporation
shall issue, in place thereof, to the persons entitled thereto, the identical
number of shares of Armor Holdings Common Stock.
Section 10. Conditions to the Merger. The consummation of the Merger and
the other transactions herein provided are subject to the following conditions:
(a) receipt prior to the Effective Time of the requisite approval of
the Merger by the holders of ABA Common Stock pursuant to the Florida Business
Corporation Act; and
(b) receipt by ABA of any required third party consents, including,
but not limited to, if required, the consent of the United States Bankruptcy
Court, Middle District of Florida, Jacksonville Division.
Section 11. Certificates. At and after the Effective Time all of the
outstanding certificates which immediately prior thereto represented shares of
ABA Common Stock or warrants, units or other securities of ABA shall be deemed
for all purposes to evidence ownership of and to represent the shares of Armor
Holdings Common Stock or warrants, units or other securities of Armor Holdings,
as the case may be, into which the shares of ABA Common Stock or warrants, units
or other securities of ABA represented by such certificates have been converted
as herein provided and shall be so registered on the books and records of the
Surviving Corporation or its transfer agent. The registered owner of any such
outstanding certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to the Surviving Corporation
or its transfer agent, have and be entitled to exercise any voting and other
rights with respect to, and to receive any dividends and other distributions
upon, the shares of Armor Holdings Common Stock or warrants, units or other
securities of Armor Holdings, as the case may be, evidenced by such outstanding
certificate, as above provided.
Section 12. Amendment. The parties hereto may amend, modify or supplement
this Merger Agreement prior to the Effective Time; provided, however, that no
amendment, modification or supplement may be made after the adoption of this
Merger Agreement by the shareholders of ABA which changes this Merger Agreement
in a way which, in the judgment of the Board of Directors of ABA, would have a
material adverse effect on the shareholders of ABA, unless such amendment,
modification or supplement is approved by such shareholders.
Section 13. Termination. This Merger Agreement may be terminated, and the
Merger and the other transactions provided for herein may be abandoned, at any
time prior to the Effective Time, whether before or after approval of this
Merger Agreement by the shareholders of ABA, by action of the Board of Directors
of ABA if:
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(a) the condition specified in Section 10 hereof shall not have been
satisfied or waived;
(b) the Board of Directors of ABA determines for any reason, in its
sole judgment and discretion, that the consummation of the Merger would be
inadvisable or not in the best interests of ABA and its shareholders; or
(c) ABA fails to obtain all required third party consents and the
Board of Directors of ABA determines that such failure will have a material
adverse effect on the Company if the merger is consummated.
Section 14. Counterparts. This Merger Agreement may be executed in one or
more counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement.
Section 15. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Merger Agreement.
Section 16. Florida Appointment. The Surviving Corporation hereby agrees
that it may be served with process in the State of Florida in any action or
special proceeding for enforcement of any liability or obligation of ABA or the
Surviving Corporation arising from the Merger. The Surviving Corporation
appoints the Secretary of State of the State of Florida as its agent to accept
service of process in any such suit or other proceeding and a copy of such
process shall be mailed by the Secretary of State of the State of Florida to the
Surviving Corporation at 191 Nassau Place Road, Yulee, Florida 32097 Attention:
Mr. Jonathan M. Spiller, President.
Section 17. Governing Law. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, ABA and Armor Holdings have caused this Merger
Agreement to be executed and delivered as of the date first above written.
AMERICAN BODY ARMOR & EQUIPMENT, INC.
a Florida corporation
By: /s/ Warren B. Kanders
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Warren B. Kanders
Chairman of the Board of Directors
ARMOR HOLDINGS, INC.
a Delaware corporation
By: /s/ Warren B. Kanders
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Warren B. Kanders
Chairman of the Board of Directors
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CERTIFICATE OF INCORPORATION
OF
ARMOR HOLDINGS, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware" or the
"General Corporation Law"), hereby certifies that:
FIRST: The name of the corporation (hereinafter referred to as the
"Corporation") is:
Armor Holdings, Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road, Wilmington, Delaware 19805, County of New Castle; and the name of the
registered agent of the Corporation in the State of Delaware is Corporation
Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which Corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of capital stock which the corporation
shall have authority to issue is Fifty-Five Million (55,000,000) shares of the
par value of one cent ($.01) each, divided into (a) Fifty Million (50,000,000)
shares of common stock (the "Common Stock") and (b) Five Million (5,000,000)
shares of preferred stock (the "Preferred Stock"). There is hereby expressly
vested in the Board of Directors the authority to fix in the resolution or
resolutions providing for the issue of each series of Preferred Stock, the
voting power and the designations, preferences and relative, participating,
optional or other rights of each such series, and the qualifications,
limitations or restrictions thereof. Shares of Preferred Stock may be issued
from time to time in one or more series as may from time to time be determined
by the Board of Directors, each such series to be distinctly designated.
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FIFTH: The name and the mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
c/o Kane Kessler, P.C.
Robert L. Lawrence 1350 Avenue of the Americas, 26th Fl.
New York, New York 10019
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of any receiver or receivers appointed for this Corporation under
Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders of this Corporation, as the case
may be, and also on this Corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall not be
less than three (3) nor more than fifteen (15) as fixed by, or in the
manner provided in, the Bylaws. The phrase "whole Board" and the phrase
"total number of directors" shall be deemed to have the same meaning to
wit, the total number of directors which the Corporation would have if
there were no vacancies. No election of directors need be by written
ballot.
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2. After the original or other Bylaws of the Corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the Corporation has received any payment for any of
its stock, the power to adopt, amend, or repeal the Bylaws of the
Corporation may be exercised by the Board of Directors of the Corporation;
provided, however, that any provision for the classification of Directors
of the Corporation for staggered terms pursuant to the provisions of
subsection (d) of Section 141 of the General Corporation Law of the State
of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by
the stockholders entitled to vote of the Corporation unless provisions for
such classification shall be set forth in this Certificate of
Incorporation.
3. Whenever the Corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever
the Corporation shall be authorized to issue more than one class of stock,
no outstanding share of any class of stock which is denied voting power
under the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of Section 242 of the
General Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or
decrease in the number of authorized shares of said class.
NINTH: (1) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person seeking
indemnification did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful. The right to indemnification conferred
upon such persons by this Article NINTH shall be a contract right.
(2) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he
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is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(3) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections (1) and (2) of this Article
NINTH, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(4) Any indemnification under Sections (1) and (2) of this Article
NINTH (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in such Sections (1) and
(2). Such determination shall be made (a) by the Board of Directors of the
Corporation by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (c) by the
stockholders of the Corporation.
(5) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer at the commencement of
such action, suit or proceeding to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation
authorized in this Article NINTH. Such expenses (including attorneys' fees)
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors of the Corporation deems
appropriate.
(6) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other sections of this Article NINTH shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under law, by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
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(7) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of Section 145 of the General Corporation
Law.
(8) For purposes of this Article NINTH, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article NINTH with respect to
the resulting or surviving corporation as he would have with respect to such
consistent corporation if its separate existence had continued.
(9) For purposes of this Article NINTH, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves service by, such director,
officer, employee or agent with respect to any employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article NINTH.
(10) The indemnification and advance of expenses provided by, or
granted pursuant to, this Article NINTH shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
TENTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the
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Corporation by this Certificate of Incorporation are granted subject to the
provisions of this Article TENTH.
Signed on July 22, 1996.
/s/ Robert L. Lawrence
----------------------------------
ROBERT L. LAWRENCE, Incorporator
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CERTIFICATE OF MERGER
OF
AMERICAN BODY ARMOR & EQUIPMENT, INC.
WITH AND INTO
ARMOR HOLDINGS, INC.
The undersigned hereby files this Certificate of Merger pursuant to Section
252(c) of the Delaware General Corporation Law:
1. The name and state of incorporation of each of the constituent
corporations is American Body Armor & Equipment, Inc., a Florida corporation,
and Armor Holdings, Inc., a Delaware corporation.
2. An Agreement and Plan of Merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in accordance
with Section 252(c) of the Delaware General Corporation Law.
3. The name of the surviving corporation is Armor Holdings, Inc.
4. The certificate of incorporation of Armor Holdings, Inc., the surviving
corporation, shall be its certificate of incorporation, with the following
additions thereto:
(a) A new Article TENTH shall be added to the certificate of
incorporation of Armor Holdings, Inc., the surviving corporation, to read in its
entirety as follows:
"TENTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted by paragraph
(7) of subsection (b) of Section 102 of the General Corporation Law of the State
of Delaware, as the same may be amended or supplemented."
(b) The existing Article TENTH of the certificate of incorporation of
Armor Holdings, Inc., the surviving corporation, shall be renumbered Article
"ELEVENTH", and the reference to Article TENTH therein shall become "Article
ELEVENTH".
5. The executed Agreement and Plan of Merger is on file at the principal
place of business of Armor Holdings, Inc., the surviving corporation, at 191
Nassau Place Road, Yulee, Florida 32097.
6. A copy of the Agreement and Plan of Merger will be furnished by Armor
Holdings, Inc., the surviving corporation, on request and without cost, to any
stockholder of any constituent corporation.
<PAGE>
7. The authorized capital stock of American Body Armor & Equipment, Inc., a
Florida corporation, is 15,000,000 shares of common stock, par value $.03 per
share, and 1,700,000 shares of convertible preferred stock, stated value $1.00
per share.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Merger
this 19th day of August, 1996.
ARMOR HOLDINGS, INC.
By: /s/ Warren B. Kanders
----------------------------------
Warren B. Kanders
Chairman of the Board of Directors
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BYLAWS
OF
ARMOR HOLDINGS, INC.
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. Subject to change by resolution of the Board of
Directors, the annual meeting of the stockholders of the Corporation for the
purpose of electing directors and for the transaction of such other business as
may be brought before the meeting shall be held on a date fixed, from time to
time, by the Board of Directors of the Corporation, and each successive annual
meeting shall be held on a date within thirteen months after the date of the
preceding annual meeting. The meeting may be held at such time and such place
within or without the State of Delaware as shall be fixed by the Board of
Directors and stated in the notice of the meeting.
SECTION 2. Special Meetings. Special meetings of the stockholders may be
called at any time by the President, a majority of the Board of Directors or the
Chairman of the Board or by a majority of the stockholders of record of all
shares entitled to vote. Special meetings shall be held on the date and at the
time and place either within or without the State of Delaware as specified in
the notice thereof
SECTION 3. Notice of Meetings. Except as otherwise expressly required by
law or the Certificate of Incorporation of the Corporation, written notice
stating the place and time of the meeting and the purpose or purposes of such
meeting shall be given by the Secretary to each stockholder entitled to vote
thereat at his address as it appears on the records of the Corporation not less
than ten nor more than sixty days prior to the meeting. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy; and if any stockholder shall, in
person or by attorney hereunto duly authorized, waive notice of any meeting, in
writing or by telephone or facsimile, whether before or after such meeting be
held, the notice thereof need not be given to him. The attendance of any
stockholder at a meeting, in person or by proxy, without protesting prior to the
conclusion of the meeting the lack of notice of such meeting, shall constitute a
waiver of notice by him. Notice of any adjourned meeting of stockholders need
not be given except as provided in Section 5 of this Article I.
SECTION 4. Quorum. Subject to the provisions of law in respect of the vote
that shall be required for a specific action, the number of shares the holders
of which shall be present or represented by proxy at any meeting of stockholders
in order to constitute a quorum for the transaction of any business shall be at
least a majority of all the shares issued and outstanding and entitled to vote
at such meeting. Where a separate vote by a class or classes is required, a
majority of the outstanding shares of such class or classes, present in person
or represented by proxy, shall constitute a quorum entitled to take action with
respect
<PAGE>
to that vote on that matter and the affirmative vote of the majority of shares
of such class or classes present in person or represented by proxy at the
meeting shall be the act of such class.
SECTION 5. Adjournment. At any meeting of stockholders, whether or not
there shall be a quorum present, the holders of a majority of the shares voting
at the meeting, whether present in person at the meeting or represented by proxy
at the meeting, may adjourn the meeting from time to time. Except as provided by
law, notice of such adjourned meeting need not be given otherwise than by
announcement of the time and place of such adjourned meeting at the meeting at
which the adjournment is taken. At any adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting as originally called.
SECTION 6. Organization. The Chairman of the Board or, in his absence or
non-election, the Vice Chairman or, in his absence or non-election, the
President or, in the absence of both the foregoing officers, a Vice President
shall call meetings of the stockholders to order and shall act as Chairman of
such meetings. In the absence of all of the foregoing officers, holders of a
majority in number of the shares of the capital stock of the Corporation present
in person or represented by proxy and entitled to vote at such meeting shall
elect a Chairman, who may be the Secretary of the Corporation. The Secretary of
the Corporation shall act as secretary of all meetings of the stockholders; but
in the absence of the Secretary, the Chairman may appoint any person to act as
secretary of the meeting.
SECTION 7. Voting. Each stockholder shall, except as otherwise provided by
law or by the Certificate of Incorporation, at every meeting of the stockholders
be entitled to one vote in person or by proxy for each share of capital stock
entitled to vote held by such stockholder, but no proxy shall be voted on after
three years from its date, unless said proxy provides for a longer period. Every
proxy must be signed by the stockholder or by his attorney-in-fact, and shall be
filed with the Inspectors of Election, if any, prior to being voted upon.
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors. Any other action shall be authorized by a vote of a
majority of the votes cast except where the General Corporation Law prescribes a
different percentage of votes and/or a different exercise of voting power, and
except as may be otherwise prescribed by the provisions of the Certificate of
Incorporation and these Bylaws. In the election of directors, and for any other
action, voting need not be by ballot, unless the Board of Directors in its
discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his or her discretion, may require that any votes cast at such
meeting shall be cast by written ballot.
SECTION 8. Stockholders List. The officer of the Corporation who has charge
of the stock ledger of the Corporation shall prepare and make a complete list of
the stockholders entitled to vote at any meeting of stockholders, arranged in
alphabetical order with the address of each and the number of shares held by
each, shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall
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also be produced and kept at the time and place of the meeting during the whole
thereof and may be inspected by any stockholder who is present. The stock ledger
of the Corporation shall be the only evidence as to who are the stockholders
entitled to examine the ledger, the list required by this Section 8 of Article I
or the books of the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
SECTION 9. Addresses of Stockholders. Each stockholder shall designate to
the Secretary of the Corporation an address at which notices of meetings and all
other corporate notices may be served upon or mailed to him, and if any
stockholder shall fail to designate such address, corporate notices may be
served upon him by mail directed to him at his last known post office address.
SECTION 10. Inspectors of Election. The Board of Directors may at any time
appoint one or more persons to serve as Inspectors of Election at the next
succeeding annual meeting of stockholders or at any other meeting or meetings
and the Board of Directors may at any time fill any vacancy in the office of
Inspector. If the Board of Directors fails to appoint Inspectors, or if any
Inspector appointed be absent or refuses to act, or if his office becomes vacant
and be not filled by the Board of Directors, the Chairman of any meeting of the
stockholders may appoint one or more temporary Inspectors for such meeting. Each
Inspector, if any, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspectors at such meeting
with strict impartiality and according to the best of his ability. The
Inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots, or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots, or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. On request of
the person presiding at the meeting, the Inspector or Inspectors, if any, shall
make a report in writing of any challenge, question, or matter determined by him
or them and execute a certificate of any fact found by him or them. Except as
otherwise required by subsection (e) of Section 231 of the General Corporation
Law, the provisions of that Section shall not apply to the corporation. All
proxies shall be filed with the Inspectors of Election of the meeting before
being voted upon.
SECTION 11. Action by Consent. Unless otherwise provided in the Certificate
of Incorporation, any action required to be taken at any meeting of
stockholders, or any action which may be taken at any meeting of such
stockholders, may be taken without a meeting, without prior notice and without a
vote if a consent in writing, setting forth the action so taken, shall be signed
by the holders of all of the outstanding voting stock of the Corporation. In
addition, any action required by the General Corporation Law to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
any annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
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<PAGE>
stockholders who have not consented in writing. Action taken pursuant to this
paragraph shall be subject to the provisions of Section 228 of the General
Corporation Law.
ARTICLE II
Board of Directors
SECTION 8. General Powers. The property, affairs and business of the
Corporation shall be managed by or under the direction of the Board of
Directors. The Board of Directors shall have the power and authority to
authorize the officers of the Corporation to enter into such agreements as the
Board of Directors shall deem appropriate, including the power and authority to
authorize the seal of the Corporation to be affixed to all papers that may
require it.
SECTION 9. Number, Qualification and Term of Office. The initial number of
directors shall consist of six (6) persons. Thereafter, the number of directors
may be fixed from time to time by action of the Board of Directors within the
maximum and minimum limits provided by the Certificate of Incorporation.
Directors need not be stockholders. The directors shall be elected at the annual
meeting of stockholders except as otherwise provided for filling vacancies. Each
director shall hold office for the term for which he is appointed or elected and
until his successor shall have been elected and shall qualify, or until his
death or until he shall resign or shall have been removed in the manner
hereinafter provided. Directors need not be elected by ballot, except upon
demand of any stockholder. The Chairman of the Board, if one be elected, and the
Vice Chairman of the Board, if one be elected, shall be chosen from among the
directors. The number of directors may be increased or decreased by action of
the stockholders or of the directors.
SECTION 10. Chairman of the Board. The Chairman of the Board, if any, shall
preside, if present, at all meetings of the stockholders and at all meetings of
the Board of Directors and shall perform such other duties and have such other
powers as from time to time may be assigned by the Board of Directors or
prescribed by these Bylaws.
SECTION 11. Vice Chairman of the Board. The Vice Chairman of the Board, if
any, shall, at the request of the Chairman of the Board or in his absence or
disability, perform the duties of the Chairman of the Board and when so acting
shall, have all the powers of, and be subject to all restrictions upon, the
Chairman of the Board and shall perform such other duties and have such other
powers as from time to time may be assigned to him by the Chairman of the Board
or prescribed by these Bylaws.
SECTION 12. Quorum and Manner of Action. Except as otherwise provided by
law or these Bylaws, a majority of the entire Board of Directors shall be
required to constitute a quorum for the transaction of business at any meeting,
except when a vacancy or vacancies prevents such majority, whereupon a majority
of the directors in office shall constitute a quorum, provided that such
majority shall constitute at least one-half of the
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whole Board. The act of a majority of a quorum of the Board of Directors shall
be the act of the Board of Directors. In the absence of a quorum, a majority of
the directors present may adjourn any meeting from time to time until a quorum
be had. Notice of any adjourned meeting need not be given. The directors shall
act only as a board and individual directors shall have no power as such. In the
event that the Board of Directors shall be unable to take action on any matter
because of a deadlock, upon the motion of any director the matter shall be
submitted to a vote of the stockholders. Any action so approved by a majority
vote of the stockholders shall be the action of the Board of Directors, however,
any director who voted against the action taken by the stockholders prior to the
submission of such matter to the stockholders may, within ten days following
such stockholder vote, dissent in writing to such action to the Secretary of the
Corporation, who shall enter such dissent in the minutes of the Corporation.
SECTION 13. Place of Meetings; Etc. The Board of Directors may hold its
meetings, have one or more offices and keep the books and records of the
Corporation at such place or places within or without the State of Delaware as
the Board may from time to time determine or as shall be specified or fixed in
the respective notices or waivers of notice thereof.
SECTION 14. Regular Meetings. A regular meeting of the Board of Directors
shall be held for the election of officers and the transaction of other business
as soon as practicable after each annual meeting of stockholders, and other
regular meetings of said Board shall be held at such times and places as said
Board shall direct. No notice shall be required for any regular meeting of the
Board of Directors but a copy of every resolution fixing or changing the time or
place of regular meetings shall be mailed to every director at least three days
before the first meeting held in pursuance thereof.
SECTION 15. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President, or any one Director.
The Secretary or any Assistant Secretary shall give notice of the time and place
of each special meeting by mailing a written notice of the same to each director
at his last known post office address at least three business days before the
meeting or by causing the same to be delivered personally or to be transmitted
by telecopier, overnight mail, telegraph, cable, wireless, telephone or orally
at least twenty-four hours before the meeting to each director. In the event the
Secretary or Assistant Secretary shall fail to give the notice of a special
meeting called in accordance with this Section 8, the person who called such
meeting shall be empowered to give notice of such meeting in accordance with the
immediately preceding sentence.
SECTION 16. Action by Consent. Any action required or permitted to be taken
at any meeting of the Board or of any committee thereof may be taken without a
meeting, if a written consent thereto is signed by all members of the Board or
of such committee, as the case may be, and such written consent is filed with
the minutes of proceedings of the Board or committee.
SECTION 17. Organization. At each meeting of the Board of Directors, the
Chairman of the Board or in his absence, the Vice Chairman of the Board, or in
his absence,
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the President, or in his absence or non-election, a director chosen by a
majority of the directors present shall act as Chairman. The Secretary or, in
his absence, an Assistant Secretary or, in the absence of both the Secretary and
an Assistant Secretary, any person appointed by the Chairman shall act as
secretary of the meeting.
SECTION 18. Resignations. Any director of the Corporation may resign at any
time by giving written notice to the Board of Directors, the President or the
Secretary of the Corporation. The resignation of any director shall take effect
at the time specified therein, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective
SECTION 19. Removal of Directors. Except as otherwise provided by law, any
director or the entire Board of Directors may be removed, with or without cause,
by the affirmative vote of the holders of a majority of the shares then entitled
to vote at an election of directors.
SECTION 20. Vacancies. Any vacancy in the Board of Directors caused by
death, resignation, removal, disqualification, an increase in the number of
directors or any other cause shall be filled by a majority of the directors then
in office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and qualified, or until
their earlier resignation or removal.
SECTION 21. Compensation of Directors. Directors may receive such
reasonable sums for their services and expenses as may be directed by resolution
of the Board; provided that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for their services and expenses.
SECTION 22. Committees. By resolution or resolutions passed by a majority
of the whole Board at any meeting of the Board of Directors, the directors may
designate one or more committees of the Board of Directors, each committee to
consist of two or more directors. To the extent provided in said resolution or
resolutions, unless otherwise provided by law, such committee or committees
shall have and may exercise all of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, including the power
and authority to authorize the seal of the Corporation to be affixed to all
papers that may require it. No committee, however, shall have the power to
declare dividends or to authorize the issuance of shares of capital stock of the
Corporation. Further, the Board of Directors may designate one or more directors
as alternate members of a committee who may replace an absent or disqualified
member at any meeting. If an alternative member of a committee is not selected
by the Board of Directors, and in the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. A committee may
make such rules for the conduct of its business and may appoint such committees
and assistants as
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it shall from time to time deem necessary. A majority of the members of a
committee shall constitute a quorum for the transaction of business of such
committee. Regular meetings of a committee shall be held at such times as such
committee shall from time to time by resolution determine. No notice shall be
required for any regular meeting of a committee but a copy of every resolution
fixing or changing the time or place of regular meetings shall be mailed to
every member of such committee at least three days before the first meeting held
in pursuance thereof. Special meetings of a committee may be called by the
Chairman of such committee or the Secretary of such committee, or any two
members thereof. The Secretary of the Corporation or the Secretary of such
committee shall give notice of the time and place of each special meeting by
mail at least two days before such meeting or by telegraph, cable, wireless,
telephone or orally at least twenty-four hours before the meeting to each member
of such committee
SECTION 23. Participation in Meetings. Members of the Board of Directors or
of any committee may participate in any meeting of the Board or committee, as
the case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation shall constitute presence in person at such
meeting.
SECTION 24. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted by such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or the committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts to his
or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE III
Officers
SECTION 1. Number. The officers of the Corporation shall consist of a
President, a Treasurer and a Secretary and, if deemed necessary, expedient or
desirable by
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the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board,
an Executive Vice President and one or more other Vice-Presidents. In addition,
the Board may elect one or more Vice Presidents and such other officers as may
be appointed in accordance with the provisions of Section 3 of this Article III.
Any number of offices may be held by the same person, as the directors may
determine. Except as may otherwise be provided in the resolutions of the Board
of Directors choosing him, no officer other than the Chairman or Vice-Chairman
of the Board, if any, need be a director.
SECTION 2. Election, Term of Office and Qualification. The officers shall
be elected annually by the Board of Directors at their first meeting after each
annual meeting of the stockholders of the Corporation. Each officer, except such
officers as may be appointed in accordance with the provisions of Section 3 of
this Article, shall hold office until his successor shall have been duly elected
and qualified, or until his death or until he shall have resigned or shall have
become disqualified or shall have been removed in the manner hereinafter
Provided.
SECTION 3. Subordinate Officers. The Board of Directors or the President
may from time to time appoint such other officers, including one or more
Assistant Treasurers and one or more Assistant Secretaries, and such agents and
employees of the Corporation as may be deemed necessary or desirable. Such
officers, agents and employees shall hold office for such period and upon such
terms and conditions, have such authority and perform such duties as in these
Bylaws provided or as the Board of Directors or the President may from time to
time prescribe. The Board of Directors or the President may from time to time
authorize any officer to appoint and remove agents and employees and to
prescribe the powers and duties thereof.
SECTION 4. Removal. Any officer may be removed, either with or without
cause, by the affirmative vote of a majority of the Board of Directors
SECTION 5. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors, the President or the Secretary. Any
such resignation shall take effect at the date of receipt of such notice or at
any later time specified therein; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 6. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed in these Bylaws for
regular election or appointment to such office.
SECTION 7. President. The President shall be the Chief Executive Officer of
the Corporation and shall have general direction of the affairs of the
Corporation and general supervision over its several officers, subject, however,
to the control of the Board of Directors, and in general shall perform such
duties and, subject to the other provisions of these Bylaws, have such powers
incident to the office of President and perform such other duties and have such
other powers as from time to time may be assigned to him by the Board
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of Directors.
SECTION 8. Vice Presidents. A Vice President may sign with the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary certificates
of stock of the Corporation and shall have such other powers and shall perform
such other duties as from time to time may be assigned to him by the Board of
Directors or the President or prescribed by these Bylaws.
SECTION 9. Secretary. The Secretary shall keep or cause to be kept, in
books provided for the purpose, the minutes of the meetings of the stockholders,
the Board of Directors and any committee when so required, shall see that all
notices are duly given in accordance with the provisions of these Bylaws and as
required by law, shall be custodian of the records and the seal of the
Corporation and see that the seal is affixed to all documents, the execution of
which on behalf of the Corporation under its seal is duly authorized in
accordance with the provisions of these Bylaws, shall keep or cause to be kept a
register of the post office address of each stockholder, may sign with the
Chairman of the Board, the President or any Vice President certificates of stock
of the Corporation, and in general shall perform such duties and have such
powers incident to the office of Secretary and shall perform such other duties
and have such other powers as from time to time may be assigned to him by the
Board of Directors or the President or prescribed by these Bylaws.
SECTION 10. Assistant Secretaries. Any Assistant Secretary shall, at the
request of the Secretary or in his absence or disability, perform the duties of
the Secretary and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the Secretary and shall perform such other duties and
have such other powers as from time to time may be assigned to him by the
President, the Secretary or the Board of Directors or prescribed by these
Bylaws.
SECTION 11. Chief Financial Officer. The Chief Financial Officer shall be
responsible to the Board of Directors and the President for all financial
control and internal audit of the Corporation and its subsidiaries. He shall
perform such other duties as may be assigned to him by the Board of Directors,
the President or prescribed by these Bylaws.
SECTION 12. Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds and securities of the Corporation, and deposit all
such funds in the name of the Corporation in such banks, trust companies or
other depositaries as shall be selected in accordance with the provisions of
these Bylaws, shall at all reasonable times exhibit his books of account and
records, and cause to be exhibited the books of account and records of any
corporation controlled by the Corporation to any of the directors of the
Corporation upon application during business hours at the office of the
Corporation, or such other corporation, where such books and records are kept,
shall, if called upon to do so, receive and give receipts for monies due and
payable to the Corporation from any source whatsoever, may sign with the
Chairman of the Board, the President or any Vice President certificates of stock
of the Corporation, and in general shall perform such duties and have such
powers incident to the office of Treasurer and such other duties and have such
other powers as from time to time may be assigned to him by the Board of
Directors or the President or prescribed by these Bylaws.
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SECTION 13. Assistant Treasurers. Any Assistant Treasurer shall, at the
request of the Treasurer or in his absence or disability, perform the duties of
the Treasurer and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the Treasurer and shall perform such duties and have
such other powers as from time to time may be assigned to him by the President,
the Treasurer or the Board of Directors or prescribed by these Bylaws.
SECTION 14. Other Officers. Such officers as the Board of Directors may
choose shall perform such duties and have such powers as may be appropriate to
such officer or as from time to time may be assigned to them by the Board of
Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their
respective duties and powers.
SECTION 15. Salaries. The salaries of the officers shall be fixed from time
to time by the Board of Directors. No officer shall be prevented from receiving
such salary by reason of the fact that he is also a director of the Corporation.
SECTION 16. Authority of Officers. The officers of the Corporation shall
have such duties and authority as set forth in these Bylaws and as shall be
determined from time to time by the Board of Directors.
ARTICLE IV
Shares and Their Transfer
SECTION 1. Certificates of Stock. Certificates for shares of the capital
stock of the Corporation shall be in such form not inconsistent with law as
shall be approved by the Board of Directors. They shall be numbered in order of
their issue and shall be signed by the Chairman of the Board or the President or
any Vice President and the Treasurer or any Assistant Treasurer, or the
Secretary or any Assistant Secretary of the Corporation, and the seal of the
Corporation shall be affixed thereto. Any of or all the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who shall have signed or whose facsimile signature shall have been placed upon
any such certificate or certificates shall cease to be such officer or officers
of the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates shall have been delivered by the Corporation,
such certificate or certificates may nevertheless be adopted by the Corporation
and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature shall have been used
thereon had not ceased to be such officer or officers of the Corporation.
SECTION 2. Uncertificated Shares. Subject to any conditions imposed by the
General Corporation Law, the Board of Directors of the Corporation may provide
by resolution or resolutions that some or all of any or all classes or series of
the stock of the Corporation shall be uncertificated shares. Within a reasonable
time after the issuance or transfer of any uncertificated shares, the
Corporation shall send to the registered owner
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thereof any written notice prescribed by the General Corporation Law.
SECTION 3. Fractional Share Interests. The Corporation may, but shall not
be required to, issue fractions of a share. If the Corporation does not issue
fractions of a share, it shall (1) arrange for the disposition of fractional
interests by those entitled thereto, (2) pay in cash the fair value of fractions
of a share as of the time when those entitled to receive such fractions are
determined, or (3) issue scrip or warrants in registered form (either
represented by a certificate or uncertificated) or bearer form (represented by a
certificate) which shall entitle the holder to receive a full share upon the
surrender of such scrip or warrants aggregating a full share. A certificate for
a fractional share or an uncertificated fractional share shall, but scrip or
warrants shall not unless otherwise provided therein, entitle the holder to
exercise voting rights, to receive dividends thereon, and to participate in any
of the assets of the Corporation in the event of liquidation. The Board of
Directors may cause scrip or warrants to be issued subject to the conditions
that they shall become void if not exchanged for certificates representing the
full shares or uncertificated full shares before a specified date, or subject to
the conditions that the shares for which scrip or warrants are exchangeable may
be sold by the Corporation and the proceeds thereof distributed to the holders
of scrip or warrants, or subject to any other conditions which the Board of
Directors may impose.
SECTION 4. Transfer of Stock. Transfer of shares of the capital stock of
the Corporation shall be made only on the books of the Corporation by the holder
thereof, or by his attorney hereunto authorized by a power of attorney duly
executed and filed with the Secretary of the Corporation, or a transfer agent of
the Corporation, if any, on surrender of the certificate or certificates for
such shares properly endorsed. A person in whose name shares of stock stand on
the books of the Corporation shall be deemed the owner thereof as regards the
Corporation, and the Corporation shall not be bound to recognize any equitable
or other claim to or interest in such shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Delaware.
SECTION 5. Lost, Destroyed and Mutilated Certificates. The holder of any
stock issued by the Corporation shall immediately notify the Corporation of any
loss, destruction or mutilation of the certificate therefor or the failure to
receive a certificate of stock issued by the Corporation, and the Board of
Directors or the Secretary of the Corporation may, in its or his discretion,
cause to be issued to such holder a new certificate or certificates of stock,
upon compliance with such rules, regulations and/or procedures as may be
prescribed or have been prescribed by the Board of Directors with respect to the
issuance of new certificates in lieu of such lost, destroyed or mutilated
certificate or certificates of stock issued by the Corporation which are not
received, including reasonable indemnification to indemnify it against any claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new certificate.
SECTION 6. Transfer Agent and Registrar; Regulations. The Corporation
shall, if and whenever the Board of Directors shall so determine, maintain one
or more transfer offices or agencies, each in the charge of a transfer agent
designated by the Board of
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Directors, where the shares of the capital stock of the Corporation shall be
directly transferable, and also one or more registry offices, each in the charge
of a registrar designated by the Board of Directors, where such shares of stock
shall be registered, and no certificate for shares of the capital stock of the
Corporation, in respect of which a Registrar and/or Transfer Agent shall have
been designated, shall be valid unless countersigned by such Transfer Agent and
registered by such Registrar, if any. The Board of Directors shall also make
such additional rules and regulations as it may deem expedient concerning the
issue, transfer and registration of certificates for shares of the capital stock
of the Corporation.
SECTION 7. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, to express
consent to corporate action in writing without a meeting, to receive payment of
any dividend or other distribution or allotment of any rights, to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action,
and only such stockholders as shall be stockholders of record of the date so
fixed shall be entitled to such notice of and to vote at such meeting and any
adjournment thereof, to express consent to any such corporate action to receive
payment of such dividend or to receive such allotment of rights, or to exercise
such rights, as the case may be, notwithstanding any transfer of any stock on
the books of the Corporation after any such record date fixed as aforesaid. If
the stock transfer books are to be closed for the purpose of determining
stockholders entitled to notice of or to vote at a meeting in the case of a
merger or consolidation, the books shall be closed at least twenty days before
such meeting.
SECTION 8. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE V
General Provisions
SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on
such date of each year as shall be determined by the Board of Directors of the
Corporation.
SECTION 2. Waivers of Notice. Whenever any notice of any nature is required
by law, the provisions of the Certificate of Incorporation or these Bylaws to be
given, a waiver thereof in writing, signed by the person or persons entitled to
said notice,
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whether before or after the time stated therein, shall be deemed equivalent
thereto.
SECTION 3. Qualifying in Foreign Jurisdiction. The Board of Directors shall
have the power at any time and from time to time to take or cause to be taken
any and all measures which they may deem necessary for qualification to do
business as a foreign corporation in any one or more foreign jurisdictions and
for withdraw; therefrom
SECTION 4. Registered Office. The registered office of the Corporation
shall be in the City of Dover, County of Kent, State of Delaware.
SECTION 5. Other Offices. The Corporation may also have offices at such
other places, both within and without the State of Delaware as the Board of
Directors may from time to time determine.
SECTION 6. Proxies. Except as otherwise provided in these Bylaws or in the
Certificate of Incorporation of the Corporation, and unless otherwise provided
by resolution of the Board of Directors, the Chairman of the Board may appoint
from time to time an attorney or attorneys, or agent or agents, of the
Corporation, on behalf and in the name of the Corporation, to cast the votes
which the Corporation may be entitled to cast as a stockholder or otherwise in
any other corporation any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, or to consent in writing to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed on behalf and in the name of the Corporation and under its corporate
seal, or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
SECTION 7. Seal. The Board of Directors shall provide a suitable seal
containing the name of the Corporation, which seal shall be in the charge of the
Secretary and which may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise. If and when so directed by the
Board of Directors, a duplicate of the seal may be kept and be used by an
officer of the Corporation designated by the Board.
SECTION 8. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be
paid in cash, in property, or in shares of the capital stock. Before payment of
any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
SECTION 9. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons at the Board of Directors may from time to time designate.
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ARTICLE VI
Amendments
These Bylaws may be altered, amended or repealed, in whole or in part, or
new Bylaws may be adopted by either the stockholders or by the Board of
Directors, provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. All such amendments must
be approved by either the holders of a majority of the outstanding capital stock
entitled to vote thereon or by a majority of the entire Board of Directors then
in office.
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PROPOSAL NO. 3
REINCORPORATION IN DELAWARE
General
On March 4, 1996, the Board of Directors unanimously approved, and
recommends for Shareholder approval, the change of the Company's state of
incorporation from Florida to Delaware (the "Reincorporation"). The transaction
will not result in any change in the business, management, assets, liabilities
or net worth of the Company. Reincorporation in Delaware will allow the Company
to take advantage of certain provisions of the corporate laws of Delaware. The
purposes and effects of the proposed transaction are summarized below.
In order to effect the Company's Reincorporation in Delaware, the Company
will be merged with and into Armor Holdings, Inc. ("Armor Holdings"), a newly
formed, wholly-owned subsidiary of the Company incorporated in Delaware.
Following the Reincorporation, Armor Holdings will qualify to conduct business
in Florida as a foreign corporation. Armor Holdings has not engaged in any
activities except in connection with the proposed transaction. The mailing
address of its principal executive offices and its telephone number are the same
as those of the Company. As part of its approval and recommendation of the
Company's Reincorporation in Delaware, the Board of Directors has approved, and
recommends to the Shareholders for their adoption and approval, an Agreement and
Plan of Merger (the "Reincorporation Agreement") pursuant to which the Company
will be merged with and into Armor Holdings. The full texts of the
Reincorporation Agreement and the Certificate of Incorporation (the "Armor
Holdings Certificate of Incorporation") and Bylaws (the "Armor Holdings Bylaws")
of the successor Delaware company under which the Company's business would be
conducted after the Reincorporation are set forth as Appendices A, B and C,
respectively, hereto. The discussion contained in this Proxy Statement is
qualified in its entirety by reference to such Appendices.
In the following discussion of the proposed Reincorporation, the term
"Company" includes either or both, the Company and Armor Holdings as the context
may require, without regard to the state of incorporation.
Upon Shareholder approval of the Reincorporation and the receipt by the
Company of any required third party consents to the Reincorporation, including,
but not limited to, the consent of the Bankruptcy Court, if required, and upon
the filing of appropriate certificates of merger by the Secretaries of State of
the States of Florida and Delaware, the Company will be merged with and into
Armor Holdings pursuant to the Reincorporation Agreement, resulting in a change
in the Company's state of incorporation from Florida to Delaware. The Company
will then be subject to the Delaware General Corporation Law ("DGCL") and the
Armor Holdings Certificate of Incorporation and the Armor Holdings Bylaws set
forth as Appendix B and Appendix C, respectively. The effectiveness of the
Reincorporation and the merger contemplated to result therefrom is conditioned
upon the filing by both the Company and Armor Holdings of Articles of Merger
with the State of Florida and a Certificate of Merger with the State of
Delaware. Upon the effective time of the Reincorporation, each outstanding share
of Common Stock and each share of Common Stock held in the treasury of the
Company will be automatically converted into one share of Common Stock of Armor
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Holdings. Outstanding options to purchase shares of Common Stock will be
converted automatically into options to purchase the same number of shares of
Common Stock of Armor Holdings. Each employee stock plan and any other employee
benefit plan to which the Company is a party, whether or not such plan relates
to the Common Stock, will be assumed by Armor Holdings and, to the extent any
such plan provides for the issuance or purchase of Common Stock, it will be
deemed to provide for the issuance or purchase of shares of Common Stock of
Armor Holdings.
IT WILL NOT BE NECESSARY FOR SHAREHOLDERS OF THE COMPANY TO EXCHANGE THEIR
EXISTING STOCK CERTIFICATES FOR CERTIFICATES OF ARMOR HOLDINGS; OUTSTANDING
STOCK CERTIFICATES OF THE COMPANY SHOULD NOT BE DESTROYED OR SENT TO THE
COMPANY. The Common Stock of the Company will continue to be traded on AMEX,
which will consider the existing stock certificates as constituting "good
delivery" in transactions subsequent to the Reincorporation.
Principal Reasons For Changing The Company's State Of Incorporation
The Board of Directors of the Company believes that the Reincorporation
will provide flexibility for both the management and business of the Company.
Delaware is recognized both domestically and internationally as a favorable
legal and regulatory environment within which to operate. Such an environment
will enhance the Company's operations and its ability to effect acquisitions and
other transactions. For many years, Delaware has followed a policy of
encouraging incorporation in that state and, in furtherance of that policy, has
adopted comprehensive, modern and flexible corporate laws which are periodically
updated and revised to meet changing business needs. As a result, many major
companies have initially chosen Delaware for their domicile or have subsequently
reincorporated in Delaware. The Delaware courts have developed considerable
expertise in dealing with corporate issues, and a substantial body of case law
has developed construing Delaware law and establishing public policies with
respect to Delaware companies, thereby providing greater predictability with
respect to corporate legal affairs.
Delaware law is more familiar to lenders and investors, and therefore may
provide the Company with a more favorable legal environment in which to seek
additional financing. Because Delaware corporate law is more predictable and
familiar to lenders and investors than is Florida corporate law, and because
Delaware courts have substantially greater experience in handling matters of a
corporate nature, the Board of Directors believes that changing the Company's
domicile from Florida to Delaware would make the Company more attractive to new
and existing shareholders, lenders and investors. The Board of Directors also
believes that the Reincorporation will provide flexibility for both the
management and business of the resulting Company.
The Board of Directors has determined that the most practical and
economical means of reincorporating the Company in the State of Delaware would
be through a reincorporation merger of the Company with and into a wholly-owned
subsidiary of the Company incorporated in Delaware for such purpose. Merger with
a wholly-owned subsidiary is the usual means of reincorporation in another
jurisdiction, since it is inexpensive to accomplish and will qualify as a
tax-free reorganization. Since a reincorporation merger is the usual and most
practical and economical means of reincorporating the Company in Delaware, it
was the only alternative considered by the Board of Directors.
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Dissenters' Rights
The Shareholders of the Company will not have dissenters' rights in
connection with the Reincorporation and the merger to occur pursuant thereto.
Dissenters' rights are not available under the FBCA to shareholders if, on the
record date fixed to determine the shareholders entitled to vote at the meeting
of shareholders at which such action is to be acted upon, the shares were listed
on a national securities exchange. The Common Stock of the Company is listed on
AMEX.
Effects On The Company
Upon the effective date of the Reincorporation, the business and internal
affairs of the Company will be governed by the DGCL. The Armor Holdings
Certificate of Incorporation provides greater limitations on the personal
liability of directors to the Company and its Shareholders and expanded
indemnification provisions. The Reincorporation will not result in a change in
the business, assets and liabilities of the Company. If the Reincorporation
Agreement is approved, the Board of Directors of the Company will be comprised
of the same six members elected at the Meeting to comprise the Company's Board
of Directors. The directors elected in connection with the current Proposal No.
1 for election of Company directors will serve until the next annual meeting of
the Shareholders of the Company, or until their respective successors are
elected and qualified. The Armor Holdings Bylaws will continue to allow a
minimum of three and a maximum of fifteen directors, as provided for currently
in the Company's Charter and Bylaws. Armor Holdings will also have the same
executive officers as did the Company prior to the Reincorporation.
Capitalization
The Armor Holdings Certificate of Incorporation authorizes the issuance of
50,000,000 shares of common stock, par value $.01 per share, and creates a
series of preferred stock, with a corresponding right conferred upon the Board
of Directors to set the dividend, voting, conversion and liquidation rights as
well as such redemption or sinking fund provisions of such preferred stock as
the Board may from time to time determine. Currently, the Company is authorized
to issue (i) 15,000,000 shares of Common Stock, par value $.03 per share, of
which 6,812,490 are outstanding, and (ii) 1,700,000 shares of Old Preferred
Stock. There are no shares of Old Preferred Stock available for issuance because
all of such shares were issued in connection with the Company's Plan of
Reorganization and subsequently redeemed or converted to shares of Common Stock.
The Reincorporation into Delaware will have an effect on the capital
structure of the Company. The change in the par value of the Common Stock from
$.03 per share to $.01 per share will result in a reduction in the capital
account of the Company and an increase in its additional paid-in capital
account. The preferred stock authorized in the Armor Holdings Certificate of
Incorporation will not have an effect on the Company's capital structure until
such time as the Board of Directors elects to issue such shares.
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COMPARATIVE RIGHTS OF SHAREHOLDERS
Upon the effective date of the Reincorporation, holders of the Common Stock
will become holders of Armor Holdings common stock and the rights of former
Company Shareholders will be governed by the Armor Holdings Certificate of
Incorporation, the Armor Holdings Bylaws and the DGCL.
Shareholders should note the following significant differences between the
DGCL and the Florida Business Corporation Act (the "FBCA") as they affect the
rights of shareholders. The following comparison of the DGCL and the Armor
Holdings Certificate of Incorporation and the Armor Holdings Bylaws, on the one
hand, and the FBCA and the Company's existing Charter and Bylaws, on the other,
is not intended to be complete and is qualified in its entirety by reference to
the Armor Holdings Certificate of Incorporation and the Armor Holdings Bylaws
and the Company's Charter and Bylaws. Copies of the Armor Holdings Certificate
of Incorporation and the Armor Holdings Bylaws are attached hereto as Appendix B
and C, respectively. Copies of the Company's existing Charter and Bylaws are
available for inspection at the offices of the Company and copies will be sent
to the holders of the Common Stock upon written or telephone request.
Distributions To Shareholders
A Delaware corporation may pay dividends out of surplus or, if there is no
surplus, out of net profits for the fiscal year in which declared or for the
preceding fiscal year. A Florida corporation may make distributions to
shareholders as long as, after giving effect to such distribution, the
corporation will be able to pay its debts as they become due in the usual course
of business and the corporation's total assets will not be less than the sum of
its total liabilities plus (unless the articles of incorporation permit
otherwise) the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are superior to those
receiving the distribution.
Business Combinations
The FBCA and the DGCL have "Control-Share Acquisition" and "Business
Combination" statutes, respectively, which are designed to encourage potential
acquirers of publicly traded corporations to obtain the consent and approval of
the proposed target's Board of Directors prior to commencing a tender offer for
the target company's shares. This encouragement is accomplished by prohibiting
or restricting acquirers from undertaking many post-acquisition financial
restructuring alternatives.
Both the FBCA and the DGCL permit a corporation to opt out of the
ControlShare Acquisition statute and the Business Combination statute,
respectively. The Company has opted out of the Florida Control-Share Acquisition
statute, and therefore is not governed by the provisions contained therein.
Armor Holdings would be governed by the Business Combination statute of the
DGCL.
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Liability and Indemnification of Directors, Officers and Employees
The DGCL and the FBCA both have provisions and limitations regarding
directors' liability and indemnification by a corporation of its directors,
officers and employees.
The DGCL permits a Delaware corporation to include in its certificate of
incorporation a provision which eliminates or limits the personal liability of a
director to the corporation or its shareholders for monetary damages for breach
of fiduciary duties as a director; provided, however, that no such provision may
eliminate or limit the liability of a director: (i) for any breach of the
director's duty of loyalty to the corporation or its shareholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) for declaration of unlawful dividends or illegal
redemptions or stock repurchases; or (iv) for any transaction from which the
director derived an improper personal benefit. The Armor Holdings Certificate of
Incorporation includes such a provision.
Under the DGCL, a director or officer may, in general, be indemnified by
the corporation if he or she has acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. No indemnification
is permitted if the person is adjudged liable to the corporation in a derivative
suit unless the court determines that indemnification would be appropriate.
Under the FBCA, a director is not personally liable for monetary damages to
any person for his actions as a director unless the director breached his duties
by way of: (i) a criminal violation, unless the director has reasonable cause to
believe his conduct was lawful or had no reasonable cause to believe his conduct
was unlawful; (ii) a transaction from which the director derived an improper
personal benefit; (iii) declaration of unlawful distributions; (iv) in a
derivative action, conscious disregard by the director for the best interests of
the corporation or willful misconduct by the director; or (v) in a third party
action, recklessness or actions or omissions committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety or property.
Under the FBCA, a corporation has the power to indemnify any director,
officer, employee or agent of the corporation against liability incurred in
connection with any proceeding, including any appeal, if the director acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any criminal action
or proceeding, he had no reasonable cause to believe his conduct was unlawful.
No indemnification is permitted if the person is adjudged liable unless the
court determines that in view of all of the circumstances of the case,
indemnification would be proper. In addition, no indemnification is permitted
for criminal violations (unless the director, officer, employee or agent had
reasonable cause to believe his conduct was lawful or had no reasonable cause to
believe his conduct was unlawful), transactions in which the director or officer
derived an improper personal benefit, declaration of unlawful dividends or, in
derivative actions, willful misconduct or conscious disregard for the best
interests of the corporation.
As a result of the additional limitations on the liability of directors and
the additional indemnification that would be afforded by the Company to its
directors, officers and employees under the DGCL if the Reincorporation is
approved, the directors of the Company may benefit personally from the approval
of this Proposal No. 3.
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Calling A Special Meeting Of Shareholders
Under the DGCL, a special meeting of shareholders can be called by the
corporation's board of directors or by such person or persons as may be
authorized by the corporation's certificate of incorporation or bylaws. The
Armor Holdings Certificate of Incorporation does not authorize any person to
call a special meeting of shareholders. The Armor Holdings Bylaws, however,
provide that a special meeting may be called by the Chairman of the Board of
Directors, the President, a majority of the Board of Directors or a majority of
the shareholders of record of all shares entitled to vote.
The FBCA provides that a special meeting of shareholders can be called by:
(i) a corporation's board of directors; (ii) the persons authorized by the
articles of incorporation or bylaws; or (iii) the holders of not less than 10%
of all votes entitled to be cast on any issue to be considered at the proposed
special meeting. A corporation's articles of incorporation can require a higher
percentage of votes, up to a maximum of 50%, to call a special meeting of
shareholders. The Company's Charter does not include any such provision. The
Bylaws of the Company do, however, provide that a special meeting of
Shareholders may be called by the President or a majority of the Board of
Directors.
Amendments To Bylaws
Under the DGCL, directors can amend the bylaws of a corporation only if
such right is expressly conferred upon the directors in its certificate of
incorporation. Under the FBCA, a corporation's board of directors may amend or
repeal the bylaws unless such power is expressly reserved to the shareholders in
the articles of incorporation or the FBCA or the shareholders expressly provide,
in amending or repealing all or any part of the bylaws, that the board of
directors may not amend or repeal the affected bylaws. The Armor Holdings
Certificate of Incorporation permits the Board of Directors to adopt, alter or
amend the Armor Holdings Bylaws. The Company's Charter provides the Board of
Directors with the authority to adopt, alter or amend the Bylaws.
Merger With Subsidiary
Under the DGCL, a parent corporation may merge into a subsidiary and a
subsidiary may merge into its parent, without shareholder approval, where such
parent corporation owns at least 90% of the outstanding shares of each class of
capital stock of its subsidiary. The FBCA permits such a merger of a subsidiary
without shareholder approval if 80% of each class of capital stock of the
subsidiary is owned by the parent corporation.
Removal Of Directors; Filling Vacancies On The Board Of Directors
Under the DGCL, any director or the entire board of directors generally may
be removed, with or without cause, by the holders of a majority of the shares
entitled to vote at an election of directors. Under the FBCA, shareholders may
remove one or more directors with or without cause, unless the articles of
incorporation provide that directors may be removed only with cause, at a
meeting of the shareholders called expressly, at least in part, for that
purpose. The Company's Charter does not refer to removal of directors.
Therefore, any member of the Company's Board of Directors may be removed with or
without cause.
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Under the Armor Holdings Bylaws, newly created directorships resulting from
any increase in the number of directors or any vacancies on the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office. In addition, the Armor Holdings Bylaws provide that the
directors elected to fill vacancies on the Board of Directors will hold office
until the next election of directors.
The Company's existing Bylaws provide that vacancies on the Board of
Directors will be filled by a majority vote of the remaining members of the
Board of Directors.
Regardless of whether the Reincorporation is effected, there will be no
vacancies on the Board of Directors of either Armor Holdings or the Company, as
the Armor Holdings Certificate of Incorporation and the Company's Charter each
provide for a minimum of three and a maximum of fifteen directors, and all such
directorships shall be filled by Messrs. Kanders, Spiller, Ehrlich, Sokolow,
Strauss and Bartlett.
Amendment Or Repeal Of The Certificate
Under the DGCL, unless the certificate of incorporation otherwise provides,
amendments of the certificate of incorporation generally require the approval of
the holders of a majority of the outstanding stock entitled to vote thereon, and
if the amendment would increase or decrease the number of authorized shares of
any class or series or the par value of such shares or would adversely affect
the rights, powers or preferences of such class or series, a majority of the
outstanding stock of such class or series also would have to approve the
amendment. The Armor Holdings Certificate of Incorporation does not provide
otherwise.
Except with regard to minor amendments, all amendments to the articles of
incorporation of a Florida corporation must be approved by a majority of all the
votes entitled to be cast by each voting group, unless the articles require a
greater or lesser vote. The Company's Charter does not provide for a greater or
lesser vote.
Vote Required For Mergers
The FBCA provides that the sale, lease, exchange or disposal of all, or
substantially all, of the assets of a Florida corporation, not in the ordinary
course of business, as well as any merger, consolidation or share exchange,
generally must be recommended by the Board of Directors and approved by a vote
of a majority of the shares of each class of the stock of the corporation
entitled to vote on such matters. Under the FBCA, the vote of the shareholders
of a corporation surviving a merger is not required if: (i) the articles of
incorporation of the surviving corporation will not substantially differ from
its articles before the merger; and (ii) and each shareholder of the surviving
corporation before the effective date will hold the same number of shares, with
identical designations, preferences, limitations and relative rights immediately
after the merger. The DGCL has a similar provision requiring shareholder
approval in the case of the disposition of assets or a merger or a share
exchange.
Dissenters' Rights in Mergers
Under both the DGCL and the FBCA, a shareholder of a corporation
participating in certain merger transactions may, under certain circumstances,
receive cash in the amount of the fair market value of his or her shares (as
determined by a court) in lieu of the consideration
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he or she would otherwise receive in the merger. Unless a corporation's
certificate of incorporation provides otherwise, the DGCL does not require that
such dissenters' rights of appraisal be afforded to shareholders with respect
to: (i) a merger or consolidation by a corporation the shares of which are
either listed on a national securities exchange or designated as a national
market security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or widely held (by at least 2,000 shareholders), if
the shareholders of such corporation receive only shares of the surviving
corporation or of such a listed or widely held corporation; or (ii) those
shareholders who are the shareholders of a corporation surviving a merger if no
vote of such shareholder is required because, among other things, the number of
shares to be issued in the merger plus those initially issuable upon conversion
of any other securities to be issued or delivered pursuant to such merger does
not exceed 20% of the shares of the surviving corporation outstanding
immediately prior to the merger (if certain other conditions are met).
Unless a corporation's articles of incorporation provide otherwise, the
FBCA does not require that dissenters' rights be afforded to holders of shares
which, on the record date fixed to determine the shareholders entitled to vote
at the meeting of shareholders at which such action is to be acted upon, were
listed on a national securities exchange.
Stock Redemptions and Repurchases
Both Delaware and Florida corporations may generally purchase or redeem
their own shares of capital stock. Under the DGCL, a Delaware corporation may
purchase or redeem its own shares of capital stock except when the capital of
the corporation is impaired or when such purchase or redemption would cause any
impairment of the capital of the corporation. Subject to any restrictions
imposed by its articles of incorporation (the Company's Charter contains no such
restriction), a Florida corporation may make distributions to shareholders as
long as, after giving effect to such distribution: (i) the corporation would be
able to pay its debts as they become due in the usual course of business; and
(ii) the corporation's total assets would not be less than the sum of its total
liabilities plus, unless the articles of incorporation permit otherwise, (which
the Company's Charter does not) the amount that would be needed if the
corporation were to be dissolved at the time of the distribution to satisfy the
preferential rights upon dissolution of shareholders whose preferential rights
are superior to those receiving the distribution (the Company currently has no
shares authorized or outstanding with such preferential rights).
Shareholder Records
Under both the DGCL and the FBCA, any Shareholder with a proper purpose may
inspect and copy the books, records and stockholder lists of the Company.
Corporate Action Without A Shareholder Meeting
The DGCL and the FBCA both permit corporate action without a meeting of
shareholders upon the written consent of the holders of that number of shares
necessary to authorize the proposed corporate action being taken, unless the
certificate of incorporation or articles of incorporation, respectively,
expressly provide otherwise. In the event such proposed corporate action is
taken without a meeting by less than the unanimous written consent of
shareholders, the DGCL requires that prompt notice of the taking of such action
be sent to those
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shareholders who have not consented in writing. The FBCA provides that such
notice must be given within ten days of the date such shareholder authorization
is granted.
Rights And Options
The DGCL and the FBCA do not require shareholder approval of rights or
option plans, although various other applicable legal requirements, such as the
rules of the SEC, may make shareholder approval of certain rights or option
plans necessary or desirable.
PURPOSES AND EFFECTS OF CERTAIN PROVISIONS OF THE
CERTIFICATE OF INCORPORATION AND BYLAWS OF ARMOR HOLDINGS
Limitation Of Director, Officer and Employee Liability
The Armor Holdings Certificate of Incorporation contains a provision in
Article Ninth that provides for the indemnification by the Company of any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Company) by reason of the fact that he is or was a director, officer, employee
or agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
Armor Holdings Certificate of Incorporation also provides that the Company shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in manner he reasonably believed to be in or not opposed
to the best interests of the Company. As they relate to directors, these two
provisions eliminate a director's liability for monetary damages for breaches of
fiduciary duty of care, subject to certain exceptions described below (the
"Liability Provisions").
The Delaware legislature enacted an amendment to the DGCL in 1985 allowing
provisions such as the Liability Provisions as a response to changes in the
market for directors' liability insurance. The proliferation of shareholder
derivative and class action suits for breaches of directors' fiduciary duties
has in large part made it difficult to obtain liability insurance. Thus, the
Delaware legislature amended the DGCL in order to maintain qualified and able
directors to govern companies. While the Company has not experienced difficulty
in attracting and retaining qualified and able persons to serve on the Company's
Board of Directors, the ability to attract and retain qualified directors is
often contingent upon a corporation's ability to indemnify such persons against
certain liabilities. For this reason, among others, the Company
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wishes to avail itself of the broader indemnification provisions contained in
the DGCL so that it may continue to attract and retain qualified directors.
The Liability Provisions do not relieve a director of monetary liability
for breaches of the duty of loyalty, acts or omissions not in good faith or
involving intentional misconduct or knowing violations of law, the unlawful
repurchase or redemption of stock or payment of unlawful dividends or any
transaction from which a director derives an improper personal benefit. Thus,
liability for monetary damages will still exist under the Liability Provisions
if liability is based upon one of these grounds. The Liability Provisions will
have no effect on the availability of equitable remedies, such as an injunction
or rescission for the breach of a director's fiduciary duty, and will in no way
limit or otherwise affect liability for violation of the federal securities
laws.
The Liability Provisions do not eliminate the liability of directors of the
Company for monetary damages arising out of the directors' breach of their
fiduciary duty of care. The duty of care refers to the fiduciary duty of
directors to be sufficiently diligent and careful in considering a transaction
or taking or refusing to take some corporate action. Liability for a breach of
the duty of care arises when directors have failed to exercise sufficient care
in reaching decisions and otherwise attending to their responsibilities as
directors. The Liability Provisions do not eliminate the duty of care; they only
eliminate monetary damage awards occasioned by a breach of that duty in certain
circumstances. Thus a breach of the duty of care remains a valid basis for a
suit seeking to stop a proposed transaction from occurring. After the
transaction has occurred, however, except in certain limited circumstances, the
shareholders would no longer have a claim for monetary damages based on a breach
of the duty of care even if that breach involved gross negligence on the part of
the directors.
The indemnification provided by the Liability Provisions and the limitation
on the personal liability of a director to its shareholders for monetary damages
for violations of a director's fiduciary duty of care provided by the Liability
Provisions extend only so far as is legally permitted. If the DGCL is amended to
permit broader indemnification rights, the protection afforded to directors and
officers of the Company by the Liability Provisions will be expanded to the
fullest extent authorized by the DGCL, as so amended, without further
shareholder action. Similarly, if the DGCL is amended to permit the further
elimination or limitation of the personal liability of directors for breaches of
fiduciary duties, then the liability of directors shall be eliminated or limited
to the fullest extent authorized by the DGCL.
The Company believes that the indemnification provisions described above,
together with the limitation of directors' liability provided for by the Armor
Holdings Certificate of Incorporation, will ensure that the Shareholders will
continue to benefit from the services of qualified directors and officers.
Notwithstanding the foregoing, under certain circumstances, because of such
indemnification provisions, the Company may in the future be obligated to incur
additional expense in indemnifying its officers and directors, which may affect
the Company's future profitability. In addition, Shareholders should note that
limitations on directors' liability may have the effect of reducing the
likelihood of derivative litigation against directors and may also discourage or
deter Shareholders or Management from bringing a lawsuit against directors for
breach of their fiduciary duty of care, even though such an action, if
successful, might otherwise have benefitted the Company and its Shareholders.
Furthermore, because of the limitation of a director's liability, the Company's
Shareholders will lose the right to maintain certain causes of action in the
future that exist under common law, including a Shareholder's
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right on behalf of himself or the Company to recover monetary damages against
directors for negligence or gross negligence.
Accounting Treatment of Reincorporation
Federal Tax Consequences
It is the Company's belief that the merger which will take place in
connection with the Reincorporation will, under current law, constitute a
tax-free reorganization under Section 368 of the Internal Revenue Code of 1986,
as amended (the "Code"). However, no ruling has been, or is expected to be
requested from, the Internal Revenue Service (the "IRS") and no opinion of
counsel or of any other tax advisor has been obtained, nor will such an opinion
be requested, by the Company as to the tax consequences of the Reincorporation.
Since no ruling has been, or will be, obtained, no assurance can be given that
the IRS will agree with the Company's conclusions with respect to the tax-free
nature of the Reincorporation, or that a challenge by the IRS, if made, will not
be successful.
Assuming that the Reincorporation and the merger resulting therefrom
constitute a tax-free reorganization, there will be no adverse federal income
tax consequences to the Company or its Shareholders because no gain or loss will
be recognized to the Company or Armor Holdings as a result of the
Reincorporation. Shareholders will have the same tax basis in the shares of
Armor Holdings received in this transaction as the basis in the shares of the
Company exchanged therefor, and the holding period of the shares of Armor
Holdings will include the period during which the shares of the Company were
held, provided such shares of the Company were held as capital assets on the
effective date of the Reincorporation.
The foregoing summary of federal income tax consequences is included for
general information only and does not address the federal income tax
consequences to all Shareholders, including those who acquired shares of Common
Stock pursuant to the exercise of employee stock options or otherwise as
compensation and those subject to the alternative minimum tax. In view of the
individual nature of tax consequences, Shareholders are urged to consult their
own tax advisors as to the specific tax consequences of the Reincorporation,
including the application and effect of state, local and foreign income and
other tax laws.
Amendment
The Reincorporation Agreement may be amended, modified or supplemented
prior to the effective time of the Reincorporation upon the approval of the
Board of Directors of the Company and Armor Holdings. However, no amendment,
modification or supplement may be made after the adoption of the Reincorporation
Agreement by the Shareholders of the Company which changes the Reincorporation
Agreement in a way which, in the judgment of the Board of Directors of the
Company, would have a material adverse effect on the Shareholders of the
Company, unless such amendment, modification or supplement is approved by such
Shareholders.
Termination
The Reincorporation Agreement provides that the Board of Directors of the
Company may terminate the Reincorporation Agreement and abandon the merger
contemplated thereby at any time prior to its effective time, whether before or
after approval by the
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Shareholders of the Company, if: (i) the Reincorporation shall not have received
the requisite approval of the Shareholders of the Company; (ii) the Board of
Directors of the Company determines for any reason in its sole judgment that the
consummation of the transaction would be inadvisable or not in the best
interests of the Company and its Shareholders; or (iii) the Company shall not
have received all required third party consents, including, but not limited to,
the consent of the Bankruptcy Court, if required, and the Board of Directors
determines that such failure will have a material adverse effect on the Company
if the Reincorporation is consummated.
Vote Required
The affirmative vote of the holders of a majority of the outstanding shares
of the Company's Common Stock is required for the approval of the
Reincorporation of the Company under the FBCA.
Recommendation Of The Board Of Directors
The Board of Directors has adopted and recommends a vote FOR Proposal No. 3
on the Proxy Card.
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ARMOR HOLDINGS, INC. NEWS RELEASE
=======================================
For Immediate Release
Contact:
Jonathan M. Spiller, President & Chief Executive Officer
(904) 261-4035
ARMOR HOLDINGS, INC. ANNOUNCES
DEFINITIVE PURCHASE AGREEMENT TO ACQUIRE
DEFENSE TECHNOLOGY CORPORATION OF AMERICA
Fernandina Beach, Florida, August 26, 1996 - Armor Holdings, Inc. (the
"Company") (SYMBOL ABE - American Stock Exchange) announced today the execution
of a definitive purchase agreement to acquire substantially all of the assets of
Defense Technology Corporation of America (DTCoA) based in Casper, Wyoming. The
closing is subject to, among other things, the completion of due diligence and
other customary requirements. The closing will occur on, or about, September 30,
1996. The purchase consideration is undisclosed. The acquisition of DTCoA with
sales for fiscal 1995 of approximately $11 million would have approximately
doubled the Company's 1995 sales.
Defense Technology Corporation of America is a leading manufacturer and
distributor of Less-Than-Lethal products including pepper sprays, distraction
devices, flameless expulsion grenades, specialty impact munitions and dry
powdered OC to law enforcement and military agencies in the United States and
abroad. In addition, DTCoA distributes other similar products including gas
masks, riot helmets and gun holsters.
"The acquisition of Defense Technology Corporation of America is a milestone for
Armor Holdings," said Jonathan M. Spiller, President and Chief Executive
Officer. "With dominant market share in each of its major products, DTCoA offers
excellent profit and revenue growth opportunities. The Less-Than-Lethal product
market is dynamic and global. As the armies of today continue their trend of
taking on the role of peacekeeper, the Company believes these products will grow
in importance. In addition, the use of pepper spray and specialty impact
products are gaining greater acceptance with police forces worldwide. We will
continue to seek aggressively additional acquisition opportunities consistent
with our growth strategy."
Armor Holdings, Inc. and its subsidiaries are engaged in the development,
manufacture and distribution of products and services for the law enforcement,
military and security markets. The Company, doing business as American Body
Armor and Equipment, manufactures and distributes ballistic protection and
security equipment including bullet and projectile resistant garments, bomb
disposal suits and helmets, ballistic helmets, shields and customized armor for
vehicles. NIK Public Safety, Inc. manufactures and distributes Narcotic
Identification Kits, Flex-Cuf(R) Restraints, Specimen Collection Kits and
Tamper-Guard(R) Evidence Tape.
