Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-3 Registration Statement for Securities Offered HTML 320K
Pursuant to a Transaction
2: EX-4.6 Instrument Defining the Rights of Security Holders HTML 206K
3: EX-5.1 Opinion re: Legality HTML 38K
4: EX-23.2 Consent of Experts or Counsel HTML 7K
5: EX-25.1 Statement re: Eligibility of Trustee HTML 151K
The Trustee is trustee for certain 0.75% Convertible Senior Subordinated Notes
due 2024 issued by the Obligor under an Indenture dated as of December 7,2004.
-3-
5.
Interlocking Directorates and Similar Relationships with the Obligor or Underwriters.
None.
6.
Voting Securities of the Trustee Owned by the Obligor or its Officials.
None.
7.
Voting Securities of the Trustee Owned by Underwriters or their Officials.
None.
8.
Securities of the Obligor Owned or Held by the Trustee.
None.
9.
Securities of Underwriters Owned or Held by the Trustee.
None.
10.
Ownership or Holdings by the Trustee of Voting Securities of Certain Affiliates or Security Holders of the Obligor.
None.
11.
Ownership or Holdings by the Trustee of any Securities of a Person Owning 50 Percent or More of the Voting Securities
of the Obligor.
A copy of the Certificate of Authority of the Trustee to commence
business – Exhibit 2
T-1.4 -
Limited Liability Trust Company Agreement of the Trustee -
Exhibit 3
T-1.6 -
The consent of the Trustee required by Section 312(b) of the Trust
Indenture Act of 1939 – Exhibit 4
T-1.7 -
A copy of the latest report of condition of the
Trustee published pursuant to law or the
requirements of its supervising or examining
authority — Exhibit 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, American Stock
Transfer & Trust Company, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of
New York, on the 13th day of November, 2008.
We, the undersigned, all being of full age, four of us being citizens of the United States,
having associated ourselves together for the purposes of forming a limited liability trust
company under and pursuant to the Banking Law of the State of New York, do hereby certify the
following:
First.
The name by which the limited liability trust company is to be known is
American Stock Transfer & Trust Company, LLC.
Second.
The place where its principal office is to be located is 59 Maiden Lane, Borough
of Manhattan, City, County, and State of New York.
Third.
The amount of its capital contributions is to be Five Million Dollars ($5,000,000),
and the number of units into which such capital contributions are to be
divided is five million (5,000,000) units with a par value of $1.00 each.
Fourth.
The company will not have classes or groups of members, therefore there is only
one class of members. Each member shall share the same relative rights,
powers, preferences, limitations, and voting powers.
Fifth.
The name, place of residence, and citizenship of each organizer are as follows:
The limited liability trust company is to exercise the powers conferred by Section
100 of the Banking Law. The limited liability trust company shall neither
accept
deposits nor make loans except for deposits and loans arising directly from
the exercise of the fiduciary powers specified in Section 100 of the Banking
Law.
IN
WITNESS WHEREOF, We have made, signed, and acknowledged this certificate in duplicate
this _____ day of March 2008.
deposits nor make loans except for deposits and loans arising directly from
the exercise of the fiduciary powers specified in Section 100 of
the Banking Law.
IN
WITNESS WHEREOF, We have made, signed, and acknowledged this certificate in duplicate
this ____ day of March 2008.
deposits
nor make loans except for deposits and loans arising directly from
the exercise of the fiduciary powers specified in Section 100 of the Banking
Law.
IN
WITNESS WHEREOF, We have made, signed, and acknowledged this certificate in duplicate
this _____ day of March 2008.
Whereas, the Articles of Organization of AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, of New
York, New York, have heretofore been duly approved and said AMERICAN STOCK TRANSFER & TRUST
COMPANY, LLC has complied with the provisions of Chapter 2 of the Consolidated Laws,
Now Therefore I, David S. Fredsall, as Deputy Superintendent of Banks of the State of New York, do
hereby authorize the said AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC to transact the business of
a Limited Liability Trust Company, at 59 Maiden Lane, Borough of Manhattan, City of New York within
this State.
In Witness Whereof, I have hereunto set my hand and affixed the
official seal of the Banking Department, this 30thday of May in the year two thousand and eight.
THIS LIMITED LIABILITY TRUST COMPANY AGREEMENT (the “Agreement”) of American Stock Transfer &
Trust Company, LLC (the “Company”) dated as of this 28th day of May, 2008, by Armor
Holding II LLC, as the sole member of the Company (the “Member”).
RECITAL
The Member has converted the Company into a limited liability trust company under the laws of
the State of New York and desires to enter into a written agreement, in accordance with the
provisions of the Limited Liability Company Law of the State of New York and any successor statute,
as amended from time to time (the “Act”) and the Banking Law of the State of New York and any
successor statute, as amended from time to time (the “Banking Law”), governing the affairs of the
Company and the conduct of its business.
ARTICLE 1 The Limited Liability Trust Company
a. Formation. The Member has converted the Company into a limited liability trust
company pursuant to the Act and the Banking Law. The conversion of the Company from a New York
trust company into a New York limited liability trust company was approved by the New York Banking
Board on April 17, 2008 in conformity with Section 102-a(3) of the Banking Law. The conversion to a
limited liability trust company will become effective on the date that the New York State Banking
Department issues an Authorization Certificate for the converted entity.
b. Name. The name of the Company shall be “American Stock Transfer & Trust Company,
LLC” and its business shall be carried on in such name with such variations and changes as the
Board (as hereinafter defined) shall determine or deem necessary to comply with requirements of the
jurisdictions in which the Company’s operations are conducted.
c. Business Purpose; Powers. The purposes for which the Company is formed are:
(i) to exercise the powers conferred by Section 100 of the Banking Law, including corporate trust
powers; personal trust powers; pension trust powers for tax qualified, pension trusts and
retirement plans; and common or collective trust powers; provided, however, that the Company shall
neither accept deposits nor make loans except for deposits and loans arising directly from the
exercise of its fiduciary powers as specified in this Section l(c); and
(ii) in furtherance of the foregoing, to engage in any lawful act or activity for
which limited liability trust companies may be formed under the Banking Law.
d. Registered Office and Agent. The Secretary of State is designated as
agent of the limited liability company upon whom process against it
may be served. The
post office address within or without this state to which the Secretary of State shall
mail a copy of any process against the limited liability company served upon him or her
is 59 Maiden Lane, Plaza Level, New York NY 10038.
e. Term. Subject to the provisions of Article 6 below, the Company shall
continue until December 31, 2030, unless the Members agree to extend such date.
ARTICLE 2 The Member
a. The Member. The name and address of the Member is as follows:
b. Actions by the Member; Meetings. All actions taken by a member must be
duly authorized by the board of managers of the Member (the “Member’s Board”) in
accordance with the Shareholders Agreement (as hereinafter defined). Subject to the
foregoing sentence, the Member may approve a matter or take any action at a meeting or
without a meeting by the written consent of the Member. Meetings of the Member may be
called at any time by the Member.
c. Liability of the Member. All debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be solely the debts,
obligations and liabilities of the Company, and the Member shall not be obligated
personally for any such debt, obligation or liability of the Company solely by reason of being a
member, except as otherwise provided for by law.
d. Power to Bind the Company. Except as required by the Act or the Banking Law, the
Member (acting in its capacity as such) shall have no authority to bind the Company to any third
party with respect to any matter.
e. Admission of Members. New members shall be admitted only upon the approval
of the Member and the Board in accordance with Section 3(c)(i)(A).
f. Engagement of Third Parties. Subject to the provisions of Article 3, the Company,
may, from time to time, employ any Person or engage third parties to render services to the Company
on such terms and for such compensation as the Member may reasonably determine, including,
attorneys, investment consultants, brokers or finders, independent auditors and printers. Such
employees and third parties may be affiliates of any Member. Persons retained, engaged or employed
by the Company may also be engaged, retained or employed by and act on behalf of one or more Member
or any of their respective affiliates.
ARTICLE 3 The Board
a. Management By Board of Managers.
(i) Subject to Section 3(f) and such matters which are expressly reserved hereunder, under the
Act, under the Banking Law or under that certain Shareholders Agreement, dated as of May 27, 2008,
among the Shareholders of Armor Holdco, Inc. and Armor Holdco, Inc. (the “Shareholders Agreement”),
to the Member for decision, the business and affairs of the Company shall be managed by a board of
managers (the “Board”), which shall be responsible for policy setting, approving the overall
direction of the Company and making all decisions affecting the
business and affairs of the
Company. The Board shall consist of seven (7) individuals (the “Managers”). The initial Board shall
consist of seven (7) members, who shall be George Karfunkel, Michael Karfunkel (each of George
Karfunkel and Michael Karfunkel, and any of their respective successors, individually, a “Family
Manager”), Cameron Blanks, Timothy J. Sims, Paul James McCullagh, Joseph John O’Brien, and Jay
Frederick Krehbiel (each of Cameron Blanks, Timothy J. Sims, Paul James McCullagh, Joseph John
O’Brien, and Jay Frederick Krehbiel, and any of their respective successors, individually, a “PEP
Manager”).
(ii) Each Manager shall be elected by the Member and shall serve until his or her successor
has been duly elected and qualified, or until his or her earlier removal, resignation, death or
disability. Subject to the provisions of clause (iii) below, the Member may remove any Manager from
the Board or from any other capacity with the Company at any time, with or without cause. A Manager
may resign at any time upon written notice to the Member.
(iii) The Member may take all actions necessary to cause the Board to consist of the same
managers that compose the Member’s Board. Accordingly, if any person who is a member of the
Members’ Board ceases to be a member of such board for any reason, the Member may take such action
as is necessary to remove such person from the Board and elect to the Board the person appointed to
the Member’s Board in place of such person.
(iv) Any vacancy occurring on the Board as a result of the resignation, removal, death or
disability of a Manager or an increase in the size of the Board shall be filled by the Member. A
Manager chosen to fill a vacancy resulting from the resignation, removal, death or disability of a
Manager shall serve the unexpired term of his or her predecessor in office.
b. Action By the Board.
(i) Meetings of the Board shall be held at least once per quarter. Each Manager may call a
meeting of the Board upon two (2) days prior written notice to each Manager. The presence of a
majority of the Managers then in office shall constitute a quorum at any meeting of the Board,
provided that such majority includes at least two (2) Family Managers and two (2) PEP Managers.
Subject to Section 3(c) below, all actions of the Board shall require the affirmative vote of a
majority of the Managers then in office.
(ii) Meetings of the Board may be conducted in person or by conference telephone facilities.
Any action required or permitted to be taken at any meeting of the Board may be taken without a
meeting if such number of Managers sufficient to approve such action pursuant to the terms of this
Agreement consent thereto in writing. Notice of any meeting may be waived by any Manager.
c. Notwithstanding anything in this Agreement to the contrary (but subject in all cases to the
provisions of this Section 3(c)), the Company shall not take any Fundamental Actions, or enter into
any arrangement or contract to do any Fundamental Actions, unless such Fundamental Action shall
have received the following approvals: (1) the approval of Managers holding a majority of the votes
entitled to be cast by all members of the Board of Managers and (2), until the earlier
of the Put Closing (if any) and the date on which the Family Shareholders cease to own Holdco
Shares in accordance with the terms of the Shareholders Agreement, the approval of Family Managers
holding a majority of the votes entitled to be cast by the Family Managers. Terms capitalized but
not defined in this Section 3(c) shall have the meaning ascribed to such term in the Shareholders
Agreement.
(i) Until the first to occur of (a) the Put Termination Date (or if such date occurs before
June 30, 2010, then June 30, 2010) and (b) the date on which the Family Shareholders cease to own a
number of Holdco Shares equal to or greater than 10.0% of the Holdco Shares then outstanding
(calculated on a fully-diluted basis), “Fundamental Actions” shall mean:
A.
Issuance of Equity. Any issuance, redemption, repurchase or acquisition of
any Equity Securities of the Company or any of its Subsidiaries;
B.
Amendment of Securities or Governing Documents. Any (i) repeal or material
amendment or alteration in any manner of the Governing Documents of the Company or any
of its Subsidiaries, including any change in the number of managers; or (ii) except as
expressly required by the terms of this Agreement or the Shareholders Agreement, any
amendment of any rights, powers, preferences, privileges or other terms of any Equity
Securities of the Company or any of its Subsidiaries, or any conversion of any Equity
Securities of the Company or any of its Subsidiaries into, or any exchange of such
Equity Securities for, any other securities or other instruments of any Person to the
extent such event would be adverse to the Family Shareholders;
C.
Affiliate Transactions. Any contract, commitment, arrangement or transaction
between any Shareholder or any officer, director, employee, Affiliate or direct or
indirect equityholder of any Shareholder, the Company or any Subsidiary of the
Company, or any individual in such officer’s, director’s, Affiliate’s or
equityholder’s immediate family, or any Person controlled by such officer, director,
employee, Affiliate or equityholder or any member of the immediate family (other than
Holdco or any of its Subsidiaries) of any of the foregoing (other than immediate
family members of employees), on the one hand, and the Company or any Subsidiary of
the Company, on the other hand, other than employment agreements or other agreements
or plans regarding compensation or employee benefits, with officers of the Company and
its Subsidiaries who are not part of Senior Management;
D.
Bankruptcy. Pursuant to or within the meaning of any Bankruptcy Law: (1) the
commencement of a voluntary case; (2) the consent to the entry of any order for relief
against the Company in an involuntary case; (3) the consent to the appointment of a
custodian of the Company; or (4) a general assignment for the benefit of the Company’s
creditors;
E.
Mergers, Acquisitions. Subject to the provisions of Section 6.3 of the
Shareholders Agreement, any merger, consolidation, reconstitution or reorganization
of the Company or any of its Subsidiaries with any other Person (other than Holdco or
any of its Subsidiaries), or any acquisitions of any material business or Person by
any manner, whether in a single transaction or a series of related transactions;
F.
Public Offering. Any public offering of Equity Securities (whether or not
involving an issuance of equity or solely a public offering of outstanding equity) of
the Company or any of its Subsidiaries (or any corporation into which the Company or
any of its Subsidiaries is converted at a future date); or
G.
Dispositions. Any transfers or other dispositions by the Company or any of
its Subsidiaries (other than to Holdco or any of its Subsidiaries) of all or a
substantial amount of its properties or assets, including by way of dividend or
distribution other than cash dividends on a pro rata basis to all Members in
accordance with the number of Common Interests (as hereinafter defined) owned by
them.
(ii) Following the first to occur of (a) the Put Termination Date (or if such date occurs
before June 30, 2010, then June 30, 2010) and (b) the date on which the Family Shareholders ceases
to own a number of Holdco Shares equal to or greater than 10.0% of the Holdco Shares then
outstanding (calculated on a fully-diluted basis), “Fundamental Actions” shall mean:
A.
Issuance of Equity. Any issuance, redemption, repurchase or acquisition of
any Equity Securities of the Company or any of its Subsidiaries other than with
respect to a public offering of the shares or other equity interests in the Company or
any of its Subsidiaries in which the Family Shareholders are entitled to participate
as selling shareholders in such public offering with cutback obligations that are no
less favorable than on a pro rata basis with any other Shareholder and with no other
Shareholder being provided more favorable registration rights in connection therewith
than those provided to the Family Shareholders;
B.
Governing Documents. Any (i) repeal or material amendment or alteration in any
manner of the Governing Documents of the Company or any of its Subsidiaries, including
any change in the number of managers; or (ii) except as expressly required by the
terms of this Agreement, any amendment of any rights, powers, preferences, privileges
or other terms of any Equity Securities of the Company or any of its Subsidiaries, or
any conversion of any Equity Securities of the Company or any of its Subsidiaries
into, or any exchange of such Equity Securities for, any other securities or other
instruments of any Person to the extent such event would be adverse to the Family
Shareholders; or
C.
Affiliate Transactions. Any contract, commitment, arrangement or
transaction between any Shareholder or any officer, director, employee, Affiliate or
direct or indirect equityholder of any Shareholder, the Company or any Subsidiary of
the Company, or any individual in such officer’s, director’s, Affiliate’s or
equityholder’s immediate family, or any Person controlled by such officer, director,
employee, Affiliate or equityholder or any member of the immediate family (other than
Holdco or any of its Subsidiaries) of any of the foregoing (other than immediate
family members of employees), on the one hand, and the Company or any Subsidiary of
the Company, on the other hand, other than employment agreements or other agreements
or plans regarding compensation or employee benefits, with officers of the Company
and its Subsidiaries who are not part of Senior Management.
d.
Power to Bind Company. None of the Managers (acting in their capacity as such)
shall have authority to bind the Company to any third party with respect to any matter unless the
Board shall have approved such matter and authorized such Manager(s) to bind the Company with
respect thereto.
e. President. Upon execution of this Agreement, the Member agrees to take such action
and to cause the Board to take such action as is necessary to cause Michael Karfunkel to be
appointed by the Board to serve as Chairman, Chief Executive Officer and President of the Company
(the “President”) and Herbert Lemmer to be appointed by the Board to serve as Secretary of the
Company.
f. Powers of President. Terms capitalized but not defined in this Section 3(f) shall
have the meaning ascribed to such term in the Shareholders Agreement. At the discretion of the
President, provided that such actions are taken in good faith and in the best interests of the
Company and the Shareholders, the Company and its Subsidiaries shall:
i.
Debt. Incur, assume, guarantee or prepay indebtedness for borrowed money
up to $1,000,000 in the aggregate, during any calendar year; provided that the
Company and its Subsidiaries shall, at all times, be entitled to incur, assume,
guarantee or prepay trade payables arising in the ordinary course of business;
ii.
Capital Expenditures. Make capital expenditures up to $1,000,000,
in the aggregate, during any calendar year,
iii.
Information Technology/Intellectual Property Development. Make any
payment for the development, purchase or license of any new information technology or
intellectual property which, together with all other such payments, during the
calendar year of such payment, is up to $1,000,000;
Officers. Appoint or terminate any other officers and employees of
the Company and its Subsidiaries; and
vi.
Kaufthal. Modify, amend, restate or replace the Employment Agreement
between Amtrust Equity Plan Solutions, Inc. and Uri Kaufthal and the Shareholders
Agreement dated as of February 9, 2006 among Amtrust Equity Plan Solutions, Inc., Uri
Kaufthal, Michael Karfunkel and George Karfunkel in connection with providing equity
interests, equity incentives, options, performance units or other incentive-based
compensation to Mr. Uri Kaufthal by reason of his equity interest in AST Equity Plan
Solutions, Inc., provided that prior to any such modification, amendment, restatement
or replacement, the President shall receive oral or written consent (not to be
unreasonably withheld or delayed) to such modification, amendment, restatement or
replacement from the majority of the PEP Directors regarding the terms of such
modification, amendment, restatement or replacement
ARTICLE 4 Capital Structure and Contributions
a. Capital Structure. The capital structure of the Company shall consist of one class
of common interests, par value $1.00 (the “Common Interests”). Each Common Interest shall entitle
its holder to one vote per Common Interest on each matter on which the Member shall be entitled to
vote. All Common Interests
shall be
identical with each other in every respect. The Company shall be authorized to issue
5,000,000 Common Interests. In exchange for all of the outstanding shares of American Stock
Transfer & Trust Company held by the Member, the 5,000,000 Common Interests shall be issued to the
Member. The Member shall own all of the Common Interests issued and outstanding.
b.
Capital Contributions. From time to time, the Board may determine that the
Company requires capital and may request the Member to make capital contribution(s) in an
amount determined by the Board. A capital account shall be maintained for the Member, to
which contributions and profits shall be credited and against which distributions and losses
shall be charged.
c.
Right to Issue Certificates. The ownership of a Common Interest by a Member
shall be evidenced by a certificate (a “Certificate”) issued by the Company.
d.
Form of Certificates. Certificates attesting to the ownership of Common
Interests in the Company shall be in substantially the form set forth in Exhibit A hereto and
shall state that the Company is a limited liability trust company formed under the laws of
the State of New York, the name of the Member to whom such
Certificate is issued and that the
Certificate represents limited liability trust company interests within the meaning of the
Act and the Banking Law. Each Certificate shall bear the following legend:
“This Certificate evidences a Common Interest in the American Stock Transfer &
Trust Company, LLC (the “Company”) and shall be a security for purposes of Article
8 of the Uniform Commercial Code. The Common Interest represented by this
Certificate, and any sale, pledge, hypothecation or transfer thereof, are subject
to the provisions of the Limited Liability Trust Company Agreement of the Company
dated as of May 27, 2008 (the “LLTC Agreement”) and the Shareholders Agreement
dated as of May 27, 2008 among the shareholders of Armor Holdco, Inc. and Armor
Holdco, Inc. (together with the LLTC Agreement, the “Agreements”) which place
certain restrictions on the transfer of such Common Interest. Any Person accepting
the Common Interest represented by this Certificate shall agree to the provisions
of such Agreements. A copy of such Agreements will be furnished to the record
holder of this Certificate without charge upon written request to the Company at
its principal place of business.”
e.
Execution. Each Certificate shall be signed by the Chief Executive Officer or
the President of the Company and by the Secretary or an Assistant Secretary of the Company by
either manual or facsimile signature.
f.
Registrar. The Company shall maintain an office where Certificates may be
presented for registration of transfer or for exchange. Unless otherwise designated, the
Secretary of the Company shall act as registrar and shall keep a register of the Certificates
and of their transfer and exchange.
g.
Issuance. The Certificates of the Company shall be numbered and registered in
the interest register or transfer books of the Company as they are issued.
h.
Common Interest Holder Lists. The Company shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of all
holders of Common Interests.
i.
Transfer and Exchange. When Certificates are presented to the Company with a
request to register a transfer, the Company shall register the transfer or make the exchange on the
register or transfer books of the Company; provided, that any Certificates presented or
surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Company duly executed by the holder
thereof or his attorney duly authorized in writing. Notwithstanding the foregoing, the Company
shall not be required to register the transfer, or exchange, any Certificate if as a result the
transfer of the Common Interest at issue would cause the Company or the Member to violate the
Securities Act, the Exchange Act, the Investment Company Act, or the laws, rules, regulations,
orders and other directives of any Governmental Authority or otherwise violate the terms of this
Agreement or the Shareholders Agreement.
j.
Record Holder. Except to the extent that the Company shall have received written
notice of an assignment of Common Interests and such assignment complies with the requirements of
Section 7(a) of this Agreement, the Company shall be entitled to treat the individual or entity in
whose name any Certificates issued by the Company stand on the books of the Company as the absolute
owner thereof, and shall not be bound to recognize any equitable or other claim to, or interest in,
such Common Interests on the part of any other individual or entity.
k.
Replacement Certificates. If any mutilated Certificate is surrendered to the
Company, or the Company receives evidence to its satisfaction of the destruction, loss or theft of
any Certificate, the Company shall issue a replacement Certificate if the requirements of Section
8-405 of the Uniform Commercial Code are met. If required by the Company, an indemnity and/or the
deposit of a bond in such form and in such sum, and with such surety or sureties as the Company may
direct, must be supplied by the holder of such lost, destroyed or stolen Certificate that is
sufficient in the judgment of the Company to protect the Company from any loss that it may suffer
if a Certificate is replaced. The Company may charge for its expenses incurred in connection with
replacing a Certificate.
ARTICLE 5 Profits, Losses and Distributions
a.
Profits and Losses. For financial accounting and tax purposes, the Company’s
net profits or net losses shall be determined on an annual basis in accordance with the
manner determined by the Board. In each year, profits and losses shall be allocated entirely
to the Member.
b.
Distributions. The Board shall determine profits available for distribution
and the amount, if any, to be distributed to the Member, and shall authorize and distribute
on the Common Interests, the determined amount when, as and if declared by the Board. The
distributions of the Company shall be allocated entirely to the Member, provided, however,
such distributions are in accordance with the Banking Law.
ARTICLE 6 Events of Dissolution
The Company shall be dissolved and its affairs wound up only upon the occurrence of any of the
following events (each, an “Event of Dissolution”):
a. The Board votes for dissolution; or
b. A dissolution of the Company under Section 102-a(2) of the Banking Law or
Section 701 of the Act.
Except upon the approval of the Member’s Board in accordance with Section 4.2 of the
Shareholders Agreement, the Member may not sell, assign, transfer, convey, gift, exchange or
otherwise dispose of any or all of its Common Interests; provided, that the Member may
sell, assign (as collateral security or otherwise), transfer or otherwise dispose of such Common
Interests to the secured parties to the extent required by the Debt Facility and Mezzanine Note
Facility (as
defined in the Shareholders Agreement) (including any refinancings, replacements, restatements,
amendments or other modifications to those agreements), and such secured parties may sell, assign,
transfer or otherwise dispose of such Common Interests in connection with the enforcement of such
security interest to the extent provided in the Senior Finance Documents (as defined in the Debt
Facility) and the Mezzanine Note Finance Documents (as defined in the Mezzanine Note Facility), and
the restrictions in Article 3, this Article 7 or any other provision hereunder shall not apply with
respect to any such sale, assignment, transfer or other disposition. Subject to the foregoing
provisions of this Article 7, upon receipt by the Company of a written agreement executed by the
person or entity to whom such Common Interests are to be transferred agreeing to be bound by the
terms of this Agreement, such person shall be admitted as a member, provided, however, that
transfers of interests to a controlling party shall first be approved by the Banking Board as may
be required by section 143-b of the Banking Law.
ARTICLE 8 Exculpation and Indemnification
a.
Exculpation. The Member shall not have any liability for the obligations or
liabilities of the Company except to the extent provided in the Act or Banking Law.
Notwithstanding any other provisions of this Agreement, whether express or implied, or any
obligation or duty at law or in equity, none of the Member, Managers, or any officers,
directors, stockholders, partners, employees, affiliates, representatives or agents of any of
the foregoing, nor any officer, employee, representative or agent of the Company
(individually, a “Covered Person” and, collectively, the “Covered Persons”) shall be liable
to the Company or any other person for any act or omission (in relation to the Company, its
property or the conduct of its business or affairs, this Agreement, any related document or
any transaction or investment contemplated hereby or thereby) taken or omitted by
a Covered Person in the reasonable belief that such act or omission is in or is
not contrary to the best interests of the Company and is within the scope of
authority granted to such Covered Person by the Agreement, provided such act or
omission does not constitute fraud, willful misconduct, bad faith, or gross negligence.
b.
Indemnification. To the fullest extent permitted by law, the Company shall
indemnify and hold harmless each Covered Person from and against any and all losses, claims,
demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from
any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative
or investigative (“Claims”), in which the Covered Person may be involved, or threatened to be
involved, as a party or otherwise, by reason of its management of the affairs of the Company
or which relates to or arises out of the Company or its property, business or affairs. A
Covered Person shall not be entitled to indemnification under this Section 8 with respect to (i)
any Claim with respect to which such Covered Person has engaged in
fraud, willful misconduct, bad
faith or gross negligence or (ii) any Claim initiated by such Covered Person unless such Claim (or
part thereof) (A) was brought to enforce such Covered Person’s rights to indemnification hereunder
or (B) was authorized or consented to by the Board. Expenses incurred by a Covered Person in
defending any Claim shall be paid by the Company in advance of the final disposition of such Claim
upon receipt by the Company of an undertaking by or on behalf of such Covered Person to repay such
amount if it shall be ultimately determined that such Covered Person is not entitled to be
indemnified by the Company as authorized by this Article 8.
c.
Insurance. The Board in its discretion shall have the power to cause the
Company to purchase and maintain insurance in accordance with, and subject to, the Act and
Banking Law.
d.
Amendments. Any repeal or modification of this Article 8 by the Member shall
not adversely affect any rights of such Covered Person pursuant to this Article 8, including
the right to indemnification and to the advancement of expenses of a Covered Person existing
at the time of such repeal or modification with respect to any acts or omissions occurring
prior to such repeal or modification.
ARTICLE 9 Miscellaneous
a.
Tax Treatment. Unless otherwise determined by the Member, the Company shall
be a disregarded entity for U.S. federal income tax purposes (as well as for any analogous
state or local tax purposes), and the Member and the Company shall timely make any and all
necessary elections and filings for the Company to be treated as a disregarded entity for
U.S. federal income tax purposes (as well as for any analogous state or local tax purposes).
b.
Amendments. Subject to approval by the Board in accordance with Section 3(c),
amendments to this Agreement and to the Certificate of Formation shall be approved in writing
by the Member. An amendment shall become effective as of the date specified in the approval
of the Member or if none is specified as of the date of such approval or as otherwise
provided in the Act.
c.
Severability. If any provision of this Agreement is held to be invalid or
unenforceable for any reason, such provision shall be ineffective to the extent of such
invalidity or unenforceability, Provided, however, that the remaining provisions will
continue in full force without being impaired or invalidated in any
way unless such invalid or unenforceable provision or clause shall be so significant as to
materially affect the expectations of the Member regarding this Agreement. Otherwise, any invalid
or unenforceable provision shall be replaced by the Member with a valid provision which most
closely approximates the intent and economic effect of the invalid or unenforceable provision.
d.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the principles of
conflicts of laws thereof.
e.
Limited Liability Trust Company. The Member intends to form a limited
liability trust company and does not intend to form a partnership under the laws of the State
of New York or any other laws.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day fast above
written.
American Stock Transfer & Trust Company, LLC
a limited liability trust company formed under the laws of the State of
New York Limited Liability Trust Company Common Interest
[Legend)
THIS CERTIFICATE EVIDENCES A COMMON INTEREST IN THE AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
(THE “COMPANY”) AND SHALL BE A SECURITY FOR PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE.
THE COMMON INTEREST REPRESENTED BY THIS CERTIFICATE, AND ANY SALE, PLEDGE, HYPOTHECATION OR
TRANSFER THEREOF, ARE SUBJECT TO THE PROVISIONS OF THE LIMITED LIABILITY TRUST COMPANY AGREEMENT OF
THE
COMPANY DATED AS OF [] (THE “LLTC AGREEMENT”) AND THE
SHAREHOLDERS AGREEMENT DATED AS OF [], 2008 AMONG THE
SHAREHOLDERS OF ARMOR HOLDCO, INC. AND ARMOR HOLDCO, INC. (TOGETHER WITH THE LLTC AGREEMENT, THE
“AGREEMENTS”) WHICH PLACE CERTAIN RESTRICTIONS ON THE TRANSFER OF SUCH COMMON INTEREST. ANY PERSON
ACCEPTING THE COMMON INTEREST REPRESENTED BY THIS CERTIFICATE SHALL AGREE TO THE PROVISIONS OF SUCH
AGREEMENTS. A COPY OF SUCH AGREEMENTS WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
This
Certifies that
is the owner of fully paid
and non-assessable Common Interests of the above-named Company and is entitled to the full benefits
and privileges of such Common Interest, subject to the duties and obligations, as more fully set
forth in the Agreements. This Certificate is transferable on the
books of the Company by the holder
hereof in person or by duly authorized attorney upon surrender of this Certificate properly
endorsed.
In Witness Whereof the said Limited Liability Trust Company has caused this Certificate, and
the Common Interest it represents, to be signed by its duly authorized officers this day of
,
20_______.
[Title of person executing]
[Title of person executing]
16
EXHIBIT 4
Securities and Exchange Commission
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321 (b) of the Trust Indenture Act of 1939, and subject to
the limitations therein contained, American Stock Transfer & Trust Company, LLC hereby consents
that reports of examinations of said corporation by Federal, State, Territorial or District
authorities may be furnished by such authorities to you upon request
therefor.
Consolidated Report of Condition for Insured Commercial and
State-Chartered Savings Banks for June 30, 2008
All schedules are to be reported in thousands of dollars. Unless otherwise indicated,
report the amount outstanding as of the last business day of the quarter.
Schedule RC — Balance Sheet
Dollar Amounts in Thousands
Bil
Mil
Thou
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin (1)
RCON0081
21,128
1.a.
b. Interest-bearing balances (2)
RCON0071
542
1.b.
2. Securities:
a.
Held-to-maturity securities (from Schedule RC-B, column A)
RCON1754
0
2.a.
b.
Available-for-sale securities (from Schedule RC-B, column D)
RCON1773
0
2.b.
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold
RCONB987
0
3.a.
b. Securities purchased under agreements to resell (3)
RCONB989
0
3.b.
4. Loans and lease financing receivables (from Schedule RC-C):
a. Loans and leases held for sale
RCON5369
0
4.a.
b. Loans and
leases, net of unearned income
RCONB528
0
4.b.
c. LESS:
Allowance for loan and lease losses
RCON3123
0
4.c.
d. Loans and
leases, net of unearned income and allowance (item 4.b
minus 4.c)
RCONB529
0
4.d.
5. Trading
assets (from Schedule RC-D)
RCON3545
0
5.
6. Premises and fixed assets (including capitalized leases)
RCON2145
36,689
6.
7. Other real estate owned (from Schedule RC-M)
RCON2150
0
7.
8.
Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)
RCON2130
0
8.
9. Not applicable
10. Intangible assets:
a. Goodwill
RCON3163
446,071
10.a.
b. Other
intangible assets (from Schedule RC-M)
RCON0426
489,940
10.b.
11. Other assets (from Schedule RC-F)
RCON2160
16,081
11.
12. Total
assets (sum of items 1 through 11)
RCON2170
1,009,431
12.
(1)
Includes cash items in process of collection and unposted debits.
(2)
Includes time certificates of deposit not held for trading.
(3)
Includes all securities resale agreements, regardless of maturity.
EXHIBIT 5
Schedule RC 15
Schedule RC — Continued
Dollar Amounts in Thousands
Bil
Mil
Thou
LIABILITIES
13. Deposits:
a. In
domestic offices (sum of totals of columns A and C from Schedule RC-E)
RCON2200
0
13.a.
(1) Noninterest-bearing (1)
RCON6631
0
13.a.
(1)
(2) Interest bearing
RCON6636
0
13.a.
(2)
b. Not applicable
14. Federal
funds purchased and securities sold under agreement to
repurchase;
a. Federal funds purchased (2)
RCONB993
0
14.a.
b. Securities Bold under agreements to repurchase (3)
RCONB995
0
14.b.
15. Trading
liabilities (from Schedule RC-D)
RCON3548
0
15.
16. Other borrowed money (includes mortgage Indebtedness and obligations
under capitalized leases) (from Schedule RC-M)
RCON3190
0
16.
17. Not applicable
18. Not applicable
19. Subordinated notes and debentures (4)
RCON3200
0
19.
20. Other
liabilities (from Schedule RC-G)
RCON2830
6,765
20.
21. Total liabilities (sum of items 13 through 20)
RCON2948
6,765
21.
22. Minority
interest in consolidated subsidiaries
RCON3000
0
22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus
RCON3838
0
23.
24. Common stock
RCON3230
5,000
24.
25. Surplus (exclude all surplus related to preferred stock)
RCON3839
995,011
25.
26.
a. Retained earnings
RCON3632
2,655
26.a.
b. Accumulated other comprehensive Income (5)
RCON8530
0
26.b.
27. Other equity capital components (6)
RCONA130
0
27.
28. Total equity capital (sum of items 23 through 27)
RCON3210
1,002,666
28.
29. Total liabilities, minority interest, and equity capital (sum of items 21, 22, and 28)
RCON3300
1,009,431
29.
Memorandum To be reported with the March Report of Condition.
Number
1. Indicate in the box at the right the number of the statement below
that best describes the most
comprehensive level of auditing work performed for the bank by
Independent external auditors as of
any date during 2007
RCON6724
N/A
M.1.
1
=
Independent audit of the bank conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which submits a report on the bank
2
=
Independent audit of the bank’s parent holding company conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits a report on the
consolidated holding company (but not on the bank separately)
3
=
Attestation on bank management’s assertion on the effectiveness of the bank’s internal control
over financial reporting by a certified public accounting firm
4
=
Directors’ examination of the bank conducted in accordance with generally accepted auditing
standards by a certified public accounting firm (may be required by state chartering authority)
5
=
Directors’ examination of the bank
performed by other external auditors (may be required by state chartering authority)
6
=
Review of the bank’s financial statements by external auditors
7
=
Compilation of the bank’s financial statements by external auditors
8
=
Other audit procedures (excluding tax preparation work)
9
=
No external audit work
(1)
Includes total demand deposits and noninterest-bearing
time and savings deposits.
(2)
Report overnight Federal Home Loan Bank advances in
Schedule RC, item 16, “Other borrowed
money.”
(3)
Includes all securities repurchase agreements,
regardless of maturity.
(4)
Includes limited-life
preferred stock end related surplus.
(5)
Includes net unrealized holding gains (losses) on
available-for-sale securities, accumulated
net gains (losses) on cash flow hedges, and minimum pension liability adjustments.
(6)
Includes treasury stock and unearned Employee Stock Ownership Plan shares.
Dates Referenced Herein and Documents Incorporated by Reference