CONFORMED COPY
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Dated 9 June 1997
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(1) DEFENCE SYSTEMS LIMITED
(2) ARMOR HOLDINGS, INC.
(3) DSL (OVERSEAS) LIMITED
(4) GORANDEL TRADING LIMITED
(5) ▇▇▇▇ ▇▇▇▇▇▇▇
DEED OF COVENANT
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Telephone ▇▇▇▇-▇▇▇ ▇▇▇▇
Facsimile ▇▇▇▇-▇▇▇ ▇▇▇▇
THIS AGREEMENT is made on 9 June 1997
BETWEEN:-
(1) DEFENCE SYSTEMS LIMITED, a company incorporated and registered in England
(Registration No. 1540857) whose registered office is at 7th Floor, Egginton
House, ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("Defence Systems");
(2) ARMOR HOLDINGS, INC. a corporation established under the laws of the state
of Delaware, USA, whose address for the purposes of this Agreement is 13386
International Parkway, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("AHI");
(3) DSL (OVERSEAS) LIMITED, a company incorporated and registered in Cyprus
(Registration No. 56708) whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ("DSL");
(4) GORANDEL TRADING LIMITED, a company incorporated and registered in Cyprus
(Registration No. 56442) whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ("GTL"); and
(5) ▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
("IO").
IT IS AGREED as follows:-
1. Definitions and interpretation
1.1 The following words and expressions where used in this Agreement have the
meanings given to them below:-
AHI Group AHI, its subsidiaries and associates for the time
being and "AHI Group Company" shall be
construed accordingly;
Business in relation to a person, any business of that
person providing Security Goods and Security
Services to any firm, company, organisation or
individual requiring the same in any part of the
Relevant Area, whether carried on by such
person itself or through any agent, contractor
or subcontractor or in conjunction in whole or
part with one or more other persons;
Client in relation to a person carrying on a business,
any person who, in the course of such
business, has been provided with Security
Goods or supplied with Security Services in the
Relevant Area, including any person who has
asked (or enquired about) such business to
provide Security Goods or provide Security
Services in the Relevant Area;
Relevant Area as defined in the Services Agreement;
Security Goods all goods and products required in order to
provide Security Services;
Security Services the provision and management of security of all
kinds, including (without limitation) guard and
other protection services, courier services,
logistical management, medical management,
supervision and training of security personnel,
advice and consultation on all types of security
arrangements and on situations involving
security needs, equipment supply, investigative
services and all services ancillary to or relating
to such matters;
Services Agreement the services agreement dated the same date as this
Agreement between GTL and Alpha-A Limited and
others.
1.2 Where used in this Agreement the terms "subsidiary" and "holding company"
shall have the meanings respectively attributed to them by the Companies ▇▇▇
▇▇▇▇ at the date of this Agreement.
1.3 A reference to any statutory provision in this Agreement:-
1.3.1 includes any order, instrument, plan, regulation, permission and
direction made or issued under such statutory provision or deriving
validity from it; and
1.3.2 shall be construed as a reference to such statutory provision as
in force at the date of this Agreement (including, for the avoidance
of doubt, any amendments made to such statutory provision that are in
force at the date of this Agreement); and
1.3.3 shall also be construed as a reference to any statutory
provision of which such statutory provision is a re-enactment or
consolidation.
1.4 The headings in this Agreement are for convenience only and shall not
affect its meaning.
1.5 References to a clause are (unless otherwise stated) to a clause of this
Agreement.
1.6 Words importing one gender shall (where appropriate) include any other
gender and words importing the singular shall (where appropriate) include the
plural and vice versa.
2. Undertakings by IO
2.1 In consideration of AHI entering into the share acquisition agreement of
even date herewith in relation to the acquisition by AHI from Strontian
Holdings Limited of shares in GTL at the request of IO, IO undertakes with each
of DSL, Defence Systems, GTL and AHI that he will not either on his own account
or in conjunction with or on behalf of any other person or persons, whether
directly or indirectly, for the period of:-
2.1.1 5 years from the date of this Agreement, at any time during
such period
supply Security Goods to or provide Security Services for any person
which is at the date of this Agreement or was during the immediately
preceding period of twelve months a Client of any Business of any AHI
Group Company where such Security Goods or Security Services are the
same as or compete with Security Goods supplied or Security Services
provided in the course of any Business of any AHI Group Company at the
date of this Agreement or during the immediately preceding period of
twelve months;
2.1.2 5 years from the date of this Agreement at any time during such
period solicit or endeavour to solicit the custom of any person which
is at the date of this Agreement or was in the immediately preceding
period of twelve months a Client of any Business of any AHI Group
Company for the supply of Security Goods or the provision of Security
Services which are the same as or compete with those supplied or
provided in the course of any Business of any AHI Group Company at the
date of this Agreement or during the immediately preceding period of
twelve months;
2.1.3 5 years from the date of this Agreement, at any time during such
period solicit or entice away or endeavour to solicit or entice away
from any AHI Group Company any person who is at the date of this
Agreement, or was during the immediately preceding period of twelve
months, employed in any Business of any AHI Group Company whether or
not such person would commit a breach of his or her contract of
employment by reason of leaving service, save that this clause 4.1.3
shall not apply to any individual employed by such AHI Group Company
in a purely secretarial or non-managerial administrative role; and
2.1.4 5 years from the Completion Date, at any time during such period
carry on or be engaged, concerned or interested in the Relevant Area
in any business which competes with the Business of any AHI Group
Company as the same is carried on from time to time, other than as
holder of common stock of any company.
2.2 Each of the undertakings contained in clause 2.1 is a separate undertaking
by IO in relation to himself and his interests and shall be enforceable by any
of DSL, GTL, Defence Systems and AHI separately and independently of their
respective right to enforce any one or more of the other undertakings contained
in clause 2.1 and in the event that any such undertaking shall be found to be
void but would be valid if some part were deleted or the period or area of
application were reduced, then such undertaking shall apply with such
modification as may be necessary to make it valid and effective.
2.3 The parties hereby agree and acknowledge that the undertakings contained in
clause 2.1 are reasonably necessary to protect the legitimate business
interests of those AHI Group Companies carrying on a Business from time to
time.
3. Announcements and confidentiality
3.1 No announcement relating to the subject matter of this Agreement or any
matter ancillary to this Agreement shall be made by or on behalf of the parties
to this Agreement without the prior written approval of the other parties
provided that nothing shall prevent any of Defence Systems, GTL, DSL or AHI
making (even in the absence of the approval of the other parties) any
announcement or disclosure required by law, the American Stock Exchange or any
other regulatory authority.
3.2 IO shall and shall procure that his associates shall keep confidential and
not at any time after the date of this Agreement disclose or make known in any
way to anyone (other than any member of the AHI Group) or use for its own or
any other person's benefit any know-how or confidential information relating to
any of the customers, suppliers or affairs of the Businesses (including any
prospective Businesses) of any AHI Group Company or otherwise relating to any
Business of any AHI Group Company.
4. Costs
Each party shall pay its own costs and expenses incurred in the negotiation,
preparation and execution of this Agreement.
5. Dispute Resolution
5.1 Any dispute arising out of or in connection with this Agreement, including
any question regarding the existence, scope, validity or termination of this
Agreement or this clause or any agreement or document forming an Annexure
(whether arising in contract, tort or otherwise), shall at the nomination of
the party initiating the action be referred to and finally resolved by
Arbitration under the Rule of the London Court of International Arbitration
("LCIA"), which Rule is deemed to be incorporated by reference into this clause
to the extent not inconsistent with its provisions.
5.2 The arbitral panel shall consist of three arbitrators, all of which at the
time of the arbitration must be independent of the parties. The party
initiating arbitration (the "Claimant") shall nominate its arbitrator in its
request (the "Request"). The other party (the "Respondent") shall nominate one
arbitrator within 30 days of receipt of the Request in accordance with Article
2.1 of the Rules of the LCIA. Where there is more than one Claimant or more
than one Respondent and the Claimants or the Respondents (as the case may be)
cannot agree between themselves on the nomination of an arbitrator, the
Arbitration Court of the LCIA shall forthwith appoint both parties' arbitrators
and such arbitrators shall stand as the parties' nominated arbitrators. Within
30 days of the appointment of the parties' nominated arbitrators by the
Arbitration Court of the LCIA or the nomination of the second arbitrator, the
two arbitrators shall nominate a third arbitrator to be the Chairman of the
tribunal, failing which the Arbitration Court of the LCIA shall forthwith
appoint the Chairman.
5.3 The place of the arbitration shall be London, England and the proceedings
shall be governed by the laws of England.
5.4 The language of the arbitration shall be English and the award shall be in
English.
5.5 The arbitral award may grant any relief deemed by the arbitrators to be
appropriate, including, without limitation, specific performance and
preliminary or interim relief (including but not limited to a preliminary
injunction or temporary restraining order). The arbitral award shall state the
reasons for the award and relief granted, shall be final and binding on the
parties to the arbitration, and may include an award of costs (including the
parties' legal and other costs). Any award rendered may be confirmed, judgment
upon any award rendered may be entered, and such award or the judgment thereon
may be enforced in any court of any state or country having competent
jurisdiction.
5.6 Notwithstanding the other provisions of this clause 5 any of Defence
Systems, AHI, DSL or GTL may seek from any court of competent jurisdiction any
interim, provisional or
injunctive relief that may be necessary to protect the rights or property of
Defence Systems, AHI, DSL or GTL (as the case may be) or maintain the status
quo during or after the pendency of the arbitration proceeding, subject to the
provisions of Article 13.2 of the Rules of the LCIA (but excluding therefrom
reference to paragraph (h) of Article 13.1 save in circumstances where the
relief sought from the Court has already been sought from and refused by the
arbitral tribunal). The institution and maintenance of any judicial action or
proceeding for any such interim, provisional or injunctive relief shall not
constitute a waiver of the right of any party to submit the dispute to
arbitration.
5.7 In the event that any or part of any arbitral award is unenforceable
outside the United Kingdom by reason of it granting injunctive relief or
specific performance (whether interim or final relief), the parties to the
arbitration agree that any of them shall be at liberty to apply to any court of
competent jurisdiction for identical relief and further agree that all
decisions of the arbitral tribunal giving rise to such relief shall be treated
by the parties to the arbitration as giving rise to res judicata between them
and may not be re-opened by any of them.
5.8 IO irrevocably authorises and appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of 7th Floor,
Egginton House, ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as its agent for service
of proceedings in relation to any matter arising out of or in connection with
this Agreement and service on such agent shall be deemed to be service IO.
6. Law of Agreement
6.1 This Agreement shall be governed and construed in accordance with the laws
of England.
6.2 The parties irrevocably submit to the non-exclusive jurisdiction of the
Courts of England and Wales in respect of any claim, dispute or difference
arising out of or in connection with this Agreement. Nothing contained in this
clause shall be taken to have limited the right of any of the parties to
proceed in the courts of any other competent jurisdiction.
7. General
7.1 This Agreement constitutes the entire and only legally binding agreement
between the parties relating to its subject matter and no variation of this
Agreement shall be effective unless made in writing signed by or on behalf of
all the parties and expressed to be such a variation.
7.2 Any remedy or right conferred by this Agreement on any of GTL, DSL, Defence
Systems or AHI for breach of this Agreement shall be in addition to and without
prejudice to any other right or remedy available to any of them.
7.3 No failure or delay by any of GTL, DSL, Defence Systems or AHI or time or
indulgence given by any of them in or before exercising any remedy or right
under or in relation to this Agreement shall operate as a waiver of the same
nor shall any single or partial exercise of any remedy or right preclude any
further exercise of the same or the exercise of any other remedy or right.
7.4 No waiver by any party of any requirement of this Agreement or of any
remedy or right under this Agreement shall have effect unless given by notice
in writing signed by
such party. No waiver of any particular breach of the provisions of this
Agreement shall operate as a waiver of any repetition of such breach.
7.5 This Agreement may be executed in two or more counterparts and execution by
each of the parties of any one of such counterparts will constitute due
execution of this Agreement.
7.6 IO shall and shall procure that any third party shall, do, execute and
perform all such further deeds, documents, assurances, acts and things as may
be necessary to give effect to this Agreement.
7.7 IO acknowledges that he is entering into this Agreement without reliance on
any undertaking or representation given by or on behalf of any of GTL, DSL,
Defence Systems or AHI other than as expressly contained in this Agreement
provided that nothing herein shall exclude any of them from liability for
fraudulent misrepresentation.
8. Notices
8.1 Any notice shall be in writing and signed by or on behalf of the person
giving it. Except in the case of personal service, any notice shall be sent or
delivered to the party to be served at the address stated at the beginning of
this Agreement. Any alteration in such details shall, to have effect, be
notified to the other parties in accordance with this clause.
8.2 Service of a notice must be effected by one of the following methods:-
8.2.1 personally on a director or the secretary of any party and
shall be treated as served at the time of such service;
8.2.2 by prepaid first class post (or by airmail if from one country
to another) and shall be treated as served on the second (or if by
airmail the fourth) Business Day after the date of posting. In proving
service it shall be sufficient to prove that the envelope containing
the notice was correctly addressed, postage paid and posted; or
8.2.3 by delivery of the notice through the letterbox of the party to
be served and shall be treated as served on the first Business Day
after the date of such delivery.
9. Applicable law and jurisdiction
9.1 This Agreement shall be governed by and construed in accordance with the
laws of England.
9.2 The parties irrevocably submit for the benefit of DSL, Defence Systems, GTL
and AHI to the non-exclusive jurisdiction of the Courts of England and Wales in
respect of any claim, dispute or difference arising out of or in connection
with this Agreement. Nothing contained in this clause shall be taken to have
limited the right of any of GTL, DSL, Defence Systems or AHI to proceed in the
courts of any other competent jurisdiction.
This Agreement has been duly executed by the parties on the date stated above.
AS WITNESS this Agreement has been executed as a deed by or on behalf of the
parties the day and year first before written.
EXECUTED as a DEED by )
DEFENCE SYSTEMS LIMITED )
acting by:- ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Secretary
EXECUTED as a DEED by )
ARMOR HOLDINGS, INC. )
acting by:- ) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
...................................
Authorised Signatory
EXECUTED as a DEED by )
DSL (OVERSEAS) LIMITED )
acting by:- ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
...................................
Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Director
EXECUTED as a DEED by )
GORANDEL TRADING LIMITED )
acting by:- ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Director
▇▇▇▇▇▇▇ GOLOVATOV
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Director
SIGNED as a DEED by )
▇▇▇▇ ▇▇▇▇▇▇▇ acting by his )
duly appointed attorney ▇▇▇▇▇▇▇ )
GOLOVATOV in the presence of:- ) ▇▇▇▇▇▇▇ GOLOVATOV
...................................
Name: ▇▇▇▇ ▇▇▇▇▇▇
Address: ▇/▇ ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation Solicitor