Exhibit 99.3
GUARANTY
THIS GUARANTY is entered into as of August 23, 2006 (this "Guaranty"),
by MEGGITT PLC, a public limited company organized under the laws of England and
Wales ("Guarantor"), in favor of and for the benefit of FIREARMS TRAINING
SYSTEMS, INC., a Delaware corporation (the "Company"), and in favor of and for
the benefit of the stockholders of the Company listed on the signature pages
hereto (the "Principal Stockholders"; the Company and each Principal
Stockholder, a "Guaranteed Party", and collectively, the "Guaranteed Parties").
WHEREAS Meggitt-USA, Inc., a Delaware corporation and a wholly owned
subsidiary of Guarantor ("Parent") and Xxxxx Acquisition Corp., a Delaware
corporation and direct wholly owned subsidiary of Parent ("Merger Sub" and,
together with Parent, the Guarantor Subsidiaries") are wholly owned subsidiaries
of the Guarantor;
WHEREAS Parent, Merger Sub and the Company are party to that certain
Agreement and Plan of Merger dated as of the date hereof (as such agreement may
hereafter be amended, supplemented or modified from time to time, the "Merger
Agreement"; capitalized terms defined therein and not otherwise defined herein
being used herein as therein defined);
WHEREAS Parent and the Principal Stockholders are party to that
certain Principal Stockholders Agreement dated as of the date hereof (as such
agreement may hereafter be amended, supplemented or modified from time to time,
the "Principal Stockholders Agreement" and, together with the Merger Agreement,
the "Transaction Agreements");
WHEREAS it is desired that Guarantor fully and unconditionally
guarantee the Guaranteed Obligations (as defined below) as provided herein for
the benefit of the Guaranteed Parties; and
WHEREAS as a condition and inducement to the willingness of the
Company to enter into the Merger Agreement and the Principal Stockholders to
enter into the Principal Stockholders Agreement, each of the Company and each
Principal Stockholder has required Guarantor to enter into this Guaranty.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. GUARANTY. (a) In order to induce the Company to enter into the
Merger Agreement and the Principal Stockholders to enter into the Principal
Stockholders Agreement, Guarantor irrevocably and unconditionally guaranties, as
primary obligor and not merely as surety, the due and punctual performance and
payment in full of all Guaranteed Obligations (as hereinafter defined) when the
same shall become due, whether
under the Transaction Agreements, by operation of Law or otherwise. The Guaranty
is a guaranty of performance and payment when due and not merely of collection.
The obligations of Guarantor hereunder are independent of the Guaranteed
Obligations, and a separate action or actions may be brought and prosecuted
against the Guarantor regardless of whether any action is brought against either
or both of the Guarantor Subsidiaries or whether either or both of the Guarantor
Subsidiaries is joined in any such action or actions. The Guaranty shall be
unconditional regardless of any lack of enforceability arising from or relating
to actions, omissions or characteristics of Parent, Merger Sub or their
respective Affiliates of either or both of the Transaction Agreements or any
bankruptcy, insolvency or similar proceeding with respect to either or both of
the Guarantor Subsidiaries. Guarantor acknowledges that the Guaranteed
Obligations are being incurred for and will inure to the benefit of each
Guaranteed Party.
(b) For the avoidance of doubt, it is the intention of the parties to
this Guaranty that this Guaranty grant to the Guaranteed Parties full access and
full recourse against Guarantor as if Guarantor was a party to the Merger
Agreement and the Principal Stockholder Agreement.
(c) The term "Guaranteed Obligations" is hereby defined, and is used
herein, in its most comprehensive sense, and includes any and all obligations of
the Guarantor Subsidiaries however arising under, pursuant to or in connection
with (i) the Merger Agreement with respect to the Company and (ii) the Principal
Stockholders' Agreement with respect to the Principal Stockholders, in each
case, including all liabilities, indemnities, interest, fees, costs and expenses
(including legal fees and expenses of counsel) of whatsoever nature, now or
hereafter made, incurred or created, whether absolute or contingent, liquidated
or unliquidated, whether due or not due and, without limiting in any way the
generality of the foregoing, further including, with respect to the Merger
Agreement, Sections 4.1, 4.2, 4.3, 5.2(g), 6.8 and 6.9 of the Merger Agreement
and, with respect to the Principal Stockholders Agreement, Sections 2(c), 3(II)
and 4 of the Principal Stockholders' Agreement.
(d) Any interest on any portion of the Guaranteed Obligations that
accrues after the commencement of any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of either or both of the Guarantor Subsidiaries (or, if interest
on any portion of the Guaranteed Obligations ceases to accrue by operation of
law by reason of the commencement of said proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if said proceeding
had not been commenced) shall be included in the Guaranteed Obligations because
it is the intention of Guarantor and Guaranteed Parties that the Guaranteed
Obligations should be determined without regard to any rule of law or order that
may relieve either or both of the Guarantor Subsidiaries of any portion of such
Guaranteed Obligations.
(e) In the event that all or any portion of the Guaranteed Obligations
is performed (by payment or otherwise) by Parent and/or Merger Sub, the
obligations of Guarantor hereunder shall continue and remain in full force and
effect or be reinstated, as the case may be, in the event that all or any part
of such performance (by payment or
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otherwise) is rescinded or recovered directly or indirectly from Guaranteed
Parties as a preference, fraudulent transfer or otherwise, and any such payments
that are so rescinded or recovered shall constitute Guaranteed Obligations.
(f) Upon the failure of either or both of the Guarantor Subsidiaries
to perform or pay any of the Guaranteed Obligations when and as the same shall
become due, Guarantor will upon demand by any Guaranteed Party perform or cause
to be performed such Guaranteed Obligations as are to be performed, and pay in
cash or cause to be paid in cash such Guaranteed Obligations as are to be paid,
in each case as the Transaction Agreements shall provide.
2. GUARANTY ABSOLUTE; CONTINUING GUARANTY. The obligations of
Guarantor hereunder are irrevocable, absolute, independent and unconditional and
shall not be affected by any circumstance which constitutes a legal or equitable
discharge of a guarantor or surety other than indefeasible payment in full of
the Guaranteed Obligations. In furtherance of the foregoing and without limiting
the generality thereof, Guarantor agrees that: (a) Guaranteed Parties may
enforce this Guaranty upon the occurrence of any failure of either or both of
the Guarantor Subsidiaries to perform under the Transaction Agreements (unless
and solely to the extent there exists a bona fide dispute with respect to a
Guaranteed Obligation that would, if resolved by a final non-appealable judgment
of a court of competent jurisdiction in favor of a Guarantor Subsidiary, entitle
such Guarantor Subsidiary to withhold performance of such Guaranteed Obligation;
provided that if such dispute is not ultimately so resolved then this
parenthetical shall cease to apply); (b) the obligations of Guarantor hereunder
are independent of the obligations of the Guarantor Subsidiaries under the
Transaction Agreements and the obligations of any other guarantor of obligations
of the Guarantor Subsidiaries and a separate action or actions may be brought
and prosecuted against Guarantor whether or not any action is brought against
either Guarantor Subsidiary or any of such other guarantors and whether or not
either or both of the Guarantor Subsidiaries is joined in any such action or
actions; and (c) Guarantor's payment of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge
Guarantor's liability for any portion of the Guaranteed Obligations that has not
been indefeasibly paid. This Guaranty is a continuing guaranty and shall be
binding upon Guarantor and its successors and assigns, and Guarantor irrevocably
waives any right to revoke this Guaranty as to future transactions giving rise
to any Guaranteed Obligations.
3. ACTIONS BY GUARANTEED PARTIES. Any Guaranteed Party may from time
to time, without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any limitation, impairment or
discharge of Guarantor's liability hereunder, (a) renew, extend, accelerate or
otherwise change the time, place, manner or terms of performance (by payment or
otherwise) of the Guaranteed Obligations, (b) settle, compromise, release or
discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto
and/or subordinate the performance (by payment or otherwise) of the same to the
performance (by payment or otherwise) of any other obligations, (c) request and
accept other guaranties of the Guaranteed Obligations and take and hold security
for the payment of this Guaranty or the Guaranteed Obligations, (d) release,
exchange, compromise,
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subordinate or modify, with or without consideration, or exercise any right or
remedy with respect to, any security for payment of the Guaranteed Obligations,
any other guaranties of the Guaranteed Obligations, or any other obligation of
any Person with respect to the Guaranteed Obligations, and (e) exercise any
other rights available to Guaranteed Parties under the Transaction Agreements,
at Law or in equity.
4. NO DISCHARGE. This Guaranty and the obligations of Guarantor
hereunder shall be valid and enforceable and shall not be subject to any
limitation, impairment or discharge for any reason (other than performance of
such Guaranteed Obligations as are to be performed and by indefeasible payment
in full of such Guaranteed Obligations as are to be paid), including the
occurrence of any of the following, whether or not Guarantor shall have had
notice or knowledge of any of them: (a) (i) any failure to assert or enforce any
claim or demand or any right, power or remedy with respect to the Guaranteed
Obligations or any agreement relating thereto, or with respect to any other
guaranty of or security for the payment of the Guaranteed Obligations, or (ii)
the stay or enjoining, by order of court (except solely to the extent such
Guaranteed Obligation that is so stayed or enjoined is a condition precedent to
Parent's obligations to consummate the Merger), by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy with respect to the Guaranteed Obligations or any agreement
relating thereto, or with respect to any other guaranty of or security for the
payment of the Guaranteed Obligations, (b) any waiver or modification of, or any
consent to departure from, any of the terms or provisions of the Transaction
Agreements or any agreement or instrument executed pursuant thereto, or of any
other guaranty or security for the Guaranteed Obligations, (c) the Guaranteed
Obligations, or any agreement relating thereto, at any time being found to be
illegal, invalid or unenforceable in any respect to the extent arising from or
relating to actions, omissions or characteristics of Parent, Merger Sub or their
respective Affiliates, (d) the application of performance or payments received
from any source to the performance or payment of liabilities other than the
Guaranteed Obligations, even though any Guaranteed Party might have elected to
apply such performance or payment to any part or all of the Guaranteed
Obligations, (e) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guaranteed Obligations and
(f) any defenses (except solely to the extent there exists a a bona fide dispute
with respect to a Guaranteed Obligation that would, if resolved by a final
non-appealable judgment of a court of competent jurisdiction in favor of a
Guarantor Subsidiary, entitle such Guarantor Subsidiary to withhold performance
of such Guaranteed Obligation; provided that if such dispute is not ultimately
so resolved then this parenthetical shall cease to apply), set-offs or
counterclaims that either or both of the Guarantor Subsidiaries may assert
against any Guaranteed Party in respect of the Guaranteed Obligations, including
but not limited to failure of consideration, breach of warranty, payment,
statute of frauds, statute of limitations, accord and satisfaction and usury.
5. WAIVERS. Guarantor waives, for the benefit of Guaranteed Parties:
(a) any right to require Guaranteed Parties, as a condition of payment or
performance by Guarantor, to (i) proceed against either or both of the Guarantor
Subsidiaries, any other guarantor of the Guaranteed Obligations or any other
Person, (ii) proceed against or exhaust any security held from either or both of
the Guarantor Subsidiaries, any other
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guarantor of the Guaranteed Obligations or any other Person, (iii) proceed
against or have resort to any balance of any deposit account or credit on the
books of any Guaranteed Party in favor of either or both of the Guarantor
Subsidiaries or any other Person, or (iv) pursue any other remedy in the power
of any Guaranteed Party; (b) (i) any defense arising by reason of the
incapacity, lack of authority or any disability of either or both of the
Guarantor Subsidiaries or (ii) any other defense (but excluding an "other
defense" in respect of and to the extent there exists a bona fide dispute with
respect to a Guaranteed Obligation that would, if resolved by a final
non-appealable judgment of a court of competent jurisdiction in favor of a
Guarantor Subsidiary, entitle such Guarantor Subsidiary to withhold performance
of such Guaranteed Obligation; provided that if such dispute is not ultimately
so resolved then this parenthetical shall cease to apply) of either or both of
the Guarantor Subsidiaries, including any defense based on or arising out of the
lack of validity or the unenforceability arising from or related to actions,
omissions or characteristics of Parent, Merger Sub or their respective
Affiliates of the Guaranteed Obligations or any agreement or instrument relating
thereto or by reason of the cessation of the liability of either or both of the
Guarantor Subsidiaries from any cause other than indefeasible payment in full in
cash of the Guaranteed Obligations to be paid and the performance of all the
other Guaranteed Obligations or to the extent of a final nonappealable judgment
of a court of competent jurisdiction of the cessation of such liability due to a
bona fide defense of such Guarantor Subsidiary in respect of a Guaranteed
Obligation; (c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal; (d) any defense based upon
any Guaranteed Party's errors or omissions in the administration of the
Guaranteed Obligations, except behavior that amounts to bad faith; (e) (i) any
principles or provisions of law, statutory or otherwise, that are or might be in
conflict with the terms of this Guaranty and any legal or equitable discharge of
Guarantor's obligations hereunder, (ii) the benefit of any statute of
limitations affecting Guarantor's liability hereunder or the enforcement hereof,
(iii) any rights to set-offs, recoupments and counterclaims, and (iv)
promptness, diligence and any requirement that any Guaranteed Party protect,
secure, perfect or insure any Encumbrance or any property subject thereto; (f)
notices, demands, presentments, protests, notices of protest, notices of
dishonor and notices of any action or inaction, including acceptance of this
Guaranty, notices of default under the Transaction Agreements, or any agreement
or instrument related thereto, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to either or both of the Guarantor Subsidiaries and notices
of any of the matters referred to in Sections 3 and 4 and any right to consent
to any thereof; and (g) to the fullest extent permitted by Law, any defenses or
benefits that may be derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may conflict with the terms of
this Guaranty.
6. GUARANTOR'S RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.;
SUBORDINATION OF OTHER OBLIGATIONS. Until the Guaranteed Obligations shall have
been paid in full, Guarantor shall withhold exercise of (a) any claim, right or
remedy, direct or indirect, that Guarantor now has or may hereafter have against
either or both of the Guarantor Subsidiaries or any of its assets in connection
with this Guaranty or the performance by Guarantor of its obligations hereunder,
in each case whether such claim,
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right or remedy arises in equity, under contract, by statute, under common law
or otherwise and including (i) any right of subrogation, reimbursement or
indemnification that Guarantor now has or may hereafter have against either or
both of the Guarantor Subsidiaries, (ii) any right to enforce, or to participate
in, any claim, right or remedy that any Guaranteed Party now has or may
hereafter have against either or both of the Guarantor Subsidiaries, and (iii)
any benefit of, and any right to participate in, any collateral or security now
or hereafter held by any Guaranteed Party and (b) any right of contribution
Guarantor now has or may hereafter have against any other guarantor of any of
the Guaranteed Obligations. Guarantor further agrees that, to the extent the
agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification Guarantor may have against either
or both of the Guarantor Subsidiaries or against any collateral or security, and
any rights of contribution Guarantor may have against any such other guarantor,
shall be junior and subordinate to any rights Guaranteed Parties may have
against either or both of the Guarantor Subsidiaries, to all right, title and
interest Guaranteed Parties may have in any such collateral or security, and to
any right Guaranteed Parties or the other Guaranteed Parties may have against
such other guarantor. Any indebtedness of either or both of the Guarantor
Subsidiaries now or hereafter held by Guarantor is subordinated in right of
payment to the Guaranteed Obligations.
7. EXPENSES. Guarantor agrees to pay, or cause to be paid, on demand,
and to save Guaranteed Parties harmless against liability for, (i) any and all
costs and expenses (including fees, costs of settlement and disbursements of
counsel and allocated costs of internal counsel) incurred or expended by any
Guaranteed Party in connection with the enforcement of or preservation of any
rights under this Guaranty and (ii) any and all costs and expenses (including
those arising from rights of indemnification) required to be paid by Guarantor
under the provisions of any Transaction Agreement.
8. SET OFF. In addition to any other rights any Guaranteed Party may
have under law or in equity, if any amount shall at any time be due and owing by
Guarantor to any Guaranteed Party under this Guaranty, such Guaranteed Party is
authorized at any time or from time to time, without notice (any such notice
being expressly waived), to set off and to appropriate and to apply any and all
indebtedness of such Guaranteed Party owing to Guarantor and any other property
of Guarantor held by a Guaranteed Party to or for the credit or the account of
Guarantor against and on account of the Guaranteed Obligations and liabilities
of Guarantor to any Guaranteed Party under this Guaranty.
9. TAX MATTERS. Any payment made pursuant to this Guaranty shall be
made free and clear of and without deduction for any and all Taxes. If Guarantor
shall be required by applicable law to deduct or withhold any Taxes imposed by
any taxing authority or other governmental authority from or in respect of any
sum payable under this Guaranty, the sum payable shall be increased as may be
necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to additional sums payable
under this section), such Guaranteed Party receives an amount equal to the sum
it would have received had no such deductions or withholdings been
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required. Guarantor shall pay the full amount deducted or withheld to the
relevant taxation authority or other governmental authority in accordance with
applicable law and shall furnish, as soon as possible thereafter, the Guaranteed
Party with the original or a certified copy of any receipt evidencing payment
thereof. Guarantor further agrees to indemnify each Guaranteed Party for the
full amount of Taxes to be paid by the Guaranteed Party, on or with respect to
any payment by or on account of any obligation of the Guarantor hereunder and
any liability (including penalties, additions to tax, interest and reasonable
expenses) arising therefrom or with respect thereto, to the extent such amounts
exceed the amounts that would have been borne by the Guaranteed Party had each
Guarantor Subsidiary fulfilled its obligations under the Transaction Agreements.
This indemnification shall be made within 10 days from the date a Guaranteed
Party makes written demand therefor (which shall be presumed correct absent
manifest error).
10. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. Guarantor hereby
represents and warrants to each Guaranteed Party as follows:
(a) AUTHORITY; ENFORCEABILITY. Guarantor has all requisite corporate
power and authority to execute this Guaranty and to consummate the transactions
contemplated hereby. The execution and delivery by Guarantor of this Guaranty
and consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of Guarantor.
(b) EXECUTION; DELIVERY. Guarantor has duly executed and delivered
this Guaranty, and this Guaranty constitutes the valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms, subject
to the Bankruptcy and Equity Exception. No consent of, or registration or filing
with, any Governmental Entity is required to be obtained or made by or with
respect to Guarantor in connection with the execution, delivery and performance
of this Guaranty. No approval of Guarantor's shareholders or any third party is
required in order for either or both of the Guarantor Subsidiaries to consummate
the Merger or the other transactions contemplated by the Merger Agreement or the
Principal Stockholders Agreement, or for the Guarantor to perform its
obligations hereunder. This Guaranty has been executed under seal.
(c) NO CONFLICTS. The execution, delivery and performance of this
Guaranty by Guarantor will not constitute or result in (i) a breach or violation
of, or a default under, the organizational documents of Guarantor, (ii) a
violation of any Law or Order applicable to the Guarantor or (iii) a breach or
violation of, a termination (or right of termination) or a default under, the
acceleration of any obligations or the creation of an Encumbrance on the assets
of the Guarantor (with or without notice, lapse of time or both) pursuant to any
Contract to which the Guarantor or any Subsidiary is a party or otherwise
binding upon the Guarantor or any of its Subsidiaries or any of the Guarantor's
Permits or Approvals.
(d) LITIGATION AND LIABILITIES. As of the date hereof there are no
Actions pending, or to the knowledge of Guarantor, threatened against Guarantor
or any of its Subsidiaries, except for those that would not, individually or in
the aggregate, have a material adverse effect on the ability of (i) Guarantor to
perform its obligations hereunder
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or (ii) the Guarantor Subsidiaries to consummate the transactions contemplated
by the Merger Agreement. The term "knowledge" as used in this paragraph with
respect to Guarantor shall mean the knowledge of Xxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxx Xxxxx and Xxxx Xxxxxxxx.
(e) AVAILABLE FUNDS. Guarantor has and will continue to have available
to it through the Closing all funds necessary to satisfy all of the Guarantor
Subsidiaries obligations under the Merger Agreement and otherwise in connection
with the Merger and the other transactions contemplated by the Merger Agreement,
to repay, in full, all indebtedness of the Company that will become due and
payable as a result of the consummation of the Merger, and to pay all charges
and expenses required to be paid by Guarantor, Merger Sub or the Surviving
Corporation pursuant to Section 6.8 of the Merger Agreement.
11. COVENANTS. Guarantor covenants and agrees that if Guarantor or any
of its successors or assigns (i) shall consolidate with, amalgamate with or
merge into any other Person and shall not be the continuing or surviving Person
of such consolidation, amalgamation or merger or (ii) shall transfer all or
substantially all of its properties and assets to any other Person, then, and in
each such case, proper provisions shall be made so that the successors and
assigns of Guarantor shall assume all of its obligations set forth in this
Guaranty.
12. AMENDMENTS AND WAIVERS. No amendment, modification, termination or
waiver of any provision of this Guaranty, and no consent to any departure by
Guarantor therefrom, shall in any event be effective without the written
concurrence of Guaranteed Parties and, in the case of any such amendment or
modification, Guarantor. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
13. MISCELLANEOUS. (a) The rights, powers and remedies given to
Guaranteed Parties by this Guaranty are cumulative and shall be in addition to
and independent of all rights, powers and remedies given to Guaranteed Parties
by virtue of any statute or rule of law or in any of the Transaction Agreements
or any agreement between Guarantor and one or more Guaranteed Parties or between
Parent, Merger Sub and one or more Guaranteed Parties. Any forbearance or
failure to exercise, and any delay by any Guaranteed Party in exercising, any
right, power or remedy hereunder shall not impair any such right, power or
remedy or be construed to be a waiver thereof, nor shall it preclude the further
exercise of any such right, power or remedy.
(b) The Section headings herein are for convenience of reference only,
do not constitute part of this Guaranty and shall not be deemed to limit or
otherwise affect any of the provisions hereof. Where a reference in this
Guaranty is made to a Section, such reference shall be to a Section of this
Guaranty unless otherwise indicated. Unless otherwise indicated, whenever the
words "include," "includes" or "including" are used in this Guaranty, they shall
be deemed to be followed by the words "without limitation."
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(c) In case any provision in or obligation under this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(d) Guarantor agrees that irreparable damage would occur to each
Guaranteed Party in the event any of the provisions of this Guaranty were not
performed in accordance with the terms hereof and that each Guaranteed Party is
entitled to specific performance of the terms of this Guaranty in addition to
any other remedies at Law or in equity.
(e) Guarantor may not assign its rights or delegate it's obligations
under this Guaranty, in whole or in part without the prior written consent of
each Guaranteed Party. Any purported assignment or delegation in violation of
the terms of this Guaranty is void. This Guaranty shall inure to the benefit of
Guaranteed Parties and their respective successors and assigns. Except with
respect to Guaranteed Obligations relating to (i) Article IV (Effect of the
Merger on Capital Stock; Exchange of Certificates) of the Merger Agreement,
which Guaranteed Obligations shall be enforceable by the holders of the Common
Shares and the holders of the Series C Preferred Shares after the Effective
Time, (ii) Section 6.9 (Indemnification; Directors' and Officers' Insurance) of
the Merger Agreement, which Guaranteed Obligations shall be enforceable by the
Indemnified Parties after the Effective Time, (iii) the last sentence of Section
4.3(b)(i) of the Merger Agreement, which Guaranteed Obligations shall be
enforceable by the Principal Stockholders, and (iv) the last sentence of Section
4.3(b)(ii) of the Merger Agreement, which Guaranteed Obligations shall be
enforceable by the holders of the Series C Preferred Shares, this Guaranty is
not intended to confer upon any Person other than the parties hereto any rights
or remedies hereunder.
(f) This Guarantee is made in connection with an international
transaction in which the specification of dollars and payment in New York is of
the essence, and the obligations of the Guarantor under this Guarantee to make
payment to (or for the account of) the Guaranteed Parties in dollars shall not
be discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any other currency or in another place except to
the extent that such tender or recovery results in the effective receipt by the
relevant Guaranteed Party in New York of the full amount of dollars payable
thereto or to be deposited therein under this Guarantee or any other Transaction
Agreements. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which, in accordance with normal
banking procedures, the Guaranteed Party could purchase dollars with such other
currency on the business day preceding that on which final judgment is given.
The Guarantor's obligation in respect of any sum due from the Guarantor to the
relevant Guaranteed Party hereunder shall, notwithstanding any judgment in a
currency other than dollars, be discharged only to the extent that on the
Business Day following its receipt or the deposit of any sum adjudged to be so
due in such other currency, the relevant Guaranteed Party may, in accordance
with normal banking procedures, purchase (and remit in New York, New York)
dollars with such other
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currency; if the dollars so purchased and remitted are less than the sum
originally due in dollars, the Guarantor agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the relevant Guaranteed Party
against such loss.
(g) THIS GUARANTY SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of Delaware and the
Federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Guaranty and of the documents referred to in this Guaranty, and in respect
of the transactions contemplated hereby, and hereby waive and agree not to
assert, as a defense in any Action for the interpretation or enforcement hereof
or of any such document, that it is not subject thereto or that such Action may
not be brought or is not maintainable in said courts or that the venue thereof
may not be appropriate or that this Guaranty or any such document may not be
enforced in or by such courts, and the parties hereto irrevocably agree that all
claims with respect to such Action shall be heard and determined in such a
Delaware or Federal court. The parties hereby consent to and grant any such
court jurisdiction over the person of such parties and, to the extent permitted
by Law, over the subject matter of such dispute and agree that mailing of
process or other papers in connection with any such Action in the manner
provided in Section 9.6 of the Merger Agreement or in such other manner as may
be permitted by Law shall be valid and sufficient service thereof. Without
limiting the generality of the preceding sentence, Guarantor hereby irrevocably
appoints the registered agent of Parent in the State of Delaware, as its agent
(the "Agent") for service of process in any suit, action or proceeding described
above. Guarantor agrees that service of process in any such suit, action or
proceeding may be made upon it at the office of the Agent. Immediately after the
execution hereof, Guarantor shall provide the Company evidence of the
appointment of such Agent. Guarantor waives, to the fullest extent permitted by
law, any other requirements of or objections to personal jurisdiction with
respect thereto. Guarantor represents and warrants that the Agent has agreed to
act as agent for service of process, and agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect. The parties
hereby agree that in no event shall the other parties' respective stockholders,
directors or officers be liable for any claims or damages with respect to the
subject matter of this Guaranty, and the parties agree not to assert any such
claims or damages against the other parties' respective stockholders, directors
or officers.
(H) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS GUARANTY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES,
AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY, OR THE
TRANSACTIONS CONTEMPLATED BY THIS GUARANTY. EACH PARTY CERTIFIES AND
10
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 13.
14. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original for
all purposes; but all such counterparts together shall constitute but one and
the same instrument.
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
under seal by two of its duly elected directors thereunto duly authorized, and
Guaranteed Parties have caused this Guaranty to be duly executed and delivered
by their respective officers thereunto duly authorized, in each case as of the
date first written above.
MEGGITT PLC
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
FIREARMS TRAINING SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chairman & CEO
[GUARANTY SIGNATURE PAGE]
CENTRE CAPITAL INVESTORS II, L.P.
CENTRE CAPITAL TAX EXEMPT
INVESTORS II, L.P.
CENTRE CAPITAL OFFSHORE
INVESTORS II, L.P.
By: Centre Partners II, L.P.,
as General Partner
By: Centre Partners Management LLC, as
Attorney-in-Fact
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
CENTRE PARTNERS COINVESTMENT, L.P.
By: Centre Partners II LLC,
as General Partner
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
Centre Partners Management LLC,
as Attorneys-in-Fact
CENTRE PARTNERS II, LLC
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
Centre Partners Management LLC,
as Attorneys-in-Fact
[GUARANTY SIGNATURE PAGE]
