SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 For the quarterly period ended June 30, 1998
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________to _________
Commission File Number 1-3410
AMERICAN BANKNOTE CORPORATION
(Exact name of Registrant as specified in its charter)
A Delaware I.R.S. Employer
Corporation No. 13-0460520
200 Park Avenue, New York, New York 10166-4999
Telephone - Area Code 212-557-9100
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such filing for the
past 90 days. Yes [X] No [ ]
At July 28, 1998 - 22,079,787 shares of common stock were outstanding.
<PAGE>
AMERICAN BANKNOTE CORPORATION
FORM 10-Q
I N D E X
PAGE
NO.
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Unaudited Condensed Consolidated Balance Sheets
June 30, 1998 and December 31, 1997 . . . . . . . . . 3
Unaudited Condensed Consolidated Statements of Operations
For the Six and Three Months Ended June 30, 1998
and 1997. . . . . . . . . . . . . . . . . . . . . . 4
Unaudited Condensed Consolidated Statements of Cash Flows
For the Six Months Ended June 30, 1998 and 1997 . . . 5
Unaudited Condensed Consolidated Statement of Stockholders'
Equity For the Six Months Ended June 30, 1998 . . . . 6
Notes to Unaudited Condensed Consolidated
Financial Statements. . . . . . . . . . . . . . . . . 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations . . . . 12
PART II - OTHER INFORMATION
Item 1. Legal Proceedings. . . . . . . . . . . . . . . . . 19
Item 4. Submission of Matters to a Vote of
Security Holders . . . . . . . . . . . . . . . . . 19
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . 20
<PAGE>
PART I - Financial Information
ITEM 1. Financial Statements
AMERICAN BANKNOTE CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands, except share data)
June December
30, 1998 31, 1997
-------- --------
(Unaudited)
ASSETS
Current assets
Cash and cash equivalents . . . . . . . . . . . . . $ 6,980 $ 17,323
Accounts receivable, net of allowance for
doubtful accounts of $947 and $986. . . . . . . . 57,947 57,422
Costs in excess of billings, of $10,916 and
$2,848, on uncompleted contracts. . . . . . . . . 4,197 5,442
Inventories . . . . . . . . . . . . . . . . . . . . 47,526 41,686
Deferred income taxes . . . . . . . . . . . . . . . 3,759 3,046
Prepaid expenses and other. . . . . . . . . . . . . 17,998 11,371
-------- --------
Total current assets . . . . . . . . . . . . . 138,407 136,290
Property, plant and equipment, at cost,
net of accumulated depreciation and
amortization of $121,377 and $113,939 . . . . . . . 249,485 258,724
Other assets . . . . . . . . . . . . . . . . . . . . 26,324 25,918
Excess of cost of investment in subsidiaries
over net assets acquired, net of accumulated
amortization of $10,165 and $8,863 . . . . . . . . 79,555 82,604
-------- --------
$493,771 $503,536
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Revolving credit facilities . . . . . . . . . . . . $ 9,872 $ 7,523
Current portion of long-term debt . . . . . . . . . 13,416 17,886
Accounts payable and accrued expenses . . . . . . . 66,782 54,761
-------- --------
Total current liabilities . . . . . . . . . . . 90,070 80,170
Long-term debt . . . . . . . . . . . . . . . . . . . 295,229 293,215
Other liabilities . . . . . . . . . . . . . . . . . . 19,372 21,466
Deferred income taxes . . . . . . . . . . . . . . . . 28,640 32,808
Minority interest . . . . . . . . . . . . . . . . . . 19,202 20,836
-------- --------
452,513 448,495
Commitments and Contingencies
Stockholders' equity
Preferred Stock, authorized 5,000,000 shares,
no shares issued or outstanding . . . . . . . . . - -
Zero Coupon Convertible Subordinated Debentures . . 7,193 8,326
Common Stock, par value $.01 per share,
authorized 50,000,000 shares; issued
22,360,787 shares and 21,134,769 shares . . . . . 224 211
Capital surplus . . . . . . . . . . . . . . . . . . 79,143 74,713
Retained-earnings (deficit) . . . . . . . . . . . . (34,485) (23,282)
Unearned compensation . . . . . . . . . . . . . . . (1,889)
Treasury stock, at cost (281,000 shares) . . . . . (1,253) (1,253)
Cumulative currency translation adjustment . . . . (7,675) (3,674)
-------- --------
Total stockholders' equity . . . . . . . . . . 41,258 55,041
-------- --------
$493,771 $503,536
======== ========
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
AMERICAN BANKNOTE CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS - UNAUDITED
(Amounts in thousands, except per share data)
Six Months Ended Three Months Ended
June 30 June 30
1998 1997 1998 1997
------- ------- ------ -----
Sales. . . . . . . . . . . . . . . $164,006 $160,264 $87,166 $79,168
-------- -------- ------- -------
Costs and expenses:
Cost of goods sold . . . . . . . 121,310 107,828 64,408 52,457
Selling and administrative . . . 26,620 22,919 14,037 10,994
Depreciation and amortization. . 11,817 11,453 6,117 5,706
-------- ------- ------- -------
159,747 142,200 84,562 69,157
-------- ------- ------- -------
4,259 18,064 2,604 10,011
Other (expense) income:
Interest expense . . . . . . . . (17,550) (15,902) (8,868) (8,130)
Other, net . . . . . . . . . . . 200 1,552 (51) 1,035
-------- ------- ------- -------
(17,350) (14,350) (8,919) (7,095)
-------- ------- ------- -------
Income (loss) before taxes on income
(benefit) and minority interest. (13,091) 3,714 (6,315) 2,916
Taxes on income (benefit). . . . . (4,134) (436) (2,582) (269)
-------- ------- ------- -------
Income (loss) before
minority interest. . . . . . . (8,957) 4,150 (3,733) 3,185
Minority interest. . . . . . . . . 310 1,894 255 1,046
-------- ------- ------- -------
Net income (loss). . . . . . . . $ (9,267) $ 2,256 $(3,988) $ 2,139
======== ======= ======= =======
Accreted interest of other
equity security. . . . . . . . $ (281) $ --- $ (128) $ ---
======== ======= ======= ======
Net income (loss) available for
common stockholders. . . . . . $ (9,548) $ 2,256 $(4,116) $ 2,139
======== ======= ======= =======
Net income (loss) per share:
Basic. . . . . . . . . . . . . $ (0.45) $ .11 $ (0.19) $ .11
======== ======= ======= =======
Diluted. . . . . . . . . . . . $ (0.45) $ .11 $ (0.19) $ .10
======== ======= ======= =======
Shares used in computing per share amounts:
Basic. . . . . . . . . . . . 21,130 19,820 21,420 19,840
======== ======= ======= =======
Diluted. . . . . . . . . . . 21,130 20,630 21,420 20,650
======== ======= ======= =======
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
AMERICAN BANKNOTE CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS - UNAUDITED
(Dollars in thousands)
Six Months Ended
June 30
1998 1997
---- ----
Operating Activities:
Net cash from operations, after adjustments
to reconcile income (loss) to net cash
provided by operating activities. . . . . . . . . $(2,492) $ 12,738
Changes in operating assets and labilities,
net of effects from acquisitions:
Marketable securities. . . . . . . . . . . . . . 1,175
Accounts receivables. . . . . . . . . . . . . . . 1,411 7,333
Inventories . . . . . . . . . . . . . . . . . . . (7,386) (3,140)
Prepaid and other assets. . . . . . . . . . . . . (5,210) (3,666)
Accounts payable and accrued expenses . . . . . . 8,683 (8,667)
Other . . . . . . . . . . . . . . . . . . . . . . (1,882) (1,336)
------- --------
Net cash provided by (used in)
operating activities . . . . . . . . . . . . . . (6,876) 4,437
------- --------
Investing Activities:
Acquisitions of subsidiaries. . . . . . . . . . . . (1,047) (2,520)
Capital expenditures. . . . . . . . . . . . . . . . (2,515) (4,117)
------- --------
Net cash used in investing activities . . . . . . . . (3,562) (6,637)
------- --------
Financing Activities:
Long-term borrowings (net of related
expenses in 1998 of $1,520) . . . . . . . . . . . 54,224 6,191
Payment of long-term debt . . . . . . . . . . . . . (56,029) (7,854)
Revolving credit facilities, net. . . . . . . . . . 2,606 1,946
Dividend to minority shareholder. . . . . . . . . . (839) (2,533)
Other . . . . . . . . . . . . . . . . . . . . . . . 127
------- --------
Net cash provided by or (used in)
financing activities . . . . . . . . . . . . . . . 89 (2,250)
------- --------
Effect of foreign currency exchange rate
changes on cash and cash equivalents. . . . . . . . 6 80
------- --------
Decrease in cash and cash equivalents . . . . . . . . (10,343) (4,370)
Cash and cash equivalents beginning of period . . . . 17,323 14,256
------- --------
Cash and cash equivalents end of period . . . . . . . $ 6,980 $ 9,886
======= ========
Supplemental cash payments:
Taxes . . . . . . . . . . . . . . . . . . . . . . . $ 4,100 $ 3,400
Interest . . . . . . . . . . . . . . . . . . . . . $15,700 $14,800
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
AMERICAN BANKNOTE CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY - UNAUDITED
SIX MONTHS ENDED JUNE 30, 1998
(Amounts in thousands)
<TABLE>
<CAPTION>
Zero Coupon Cumulative
Convertible Retained Currency
Subordinated Common Capital Earnings Unearned Treasury Transl. Total
Debentures Stock Surplus (Deficit) Compensation Stock Adjust. Equity
---------- ----- ------- --------- ------------ ----- ------- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance-
January 1, 1998 $8,326 $211 $74,713 $(23,282) $(1,253) $(3,674) $55,041
Issuances in
connection with:
Options exercised 1 99 100
Compensation
plans 6 2,270 $(1,889) 387
Acquisition 2 651 653
Zero coupon
convertible
subordinated
debentures:
Accreted interest 281 (281)
Conversion (1,414) 4 1,410
Foreign
currency
translation
adjustments (1,655) (4,001) (5,656)
Net loss (9,267) (9,267)
---------- ----- ------- --------- ------------ ------- -------- ------
Balance-
June 30, 1998 $7,193 $224 $79,143 $(34,485) $(1,889) $(1,253) $(7,675) $41,258
========== ===== ======= ========= ============ ======= ======== =======
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
AMERICAN BANKNOTE CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - UNAUDITED
Note A - Basis of Presentation
The accompanying unaudited condensed consolidated financial statements do not
contain all disclosures required by generally accepted accounting principles.
Reference should be made to the Company's Annual Report on Form 10-K for the
year ended December 31, 1997. The accompanying unaudited condensed consolidated
financial statements reflect all adjustments (consisting of normal recurring
adjustments) which are, in the opinion of management, necessary for a fair
statement of the results of the interim periods presented and are not
necessarily indicative of the results which may be expected for a full year.
The 1998 basic and diluted income (loss) per share was computed after deducting
the accretion of interest attributable to the Zero Coupon Convertible
Subordinated Debentures. The shares used to compute loss per share for 1998
excludes approximately 4.9 million shares of Common Stock that are reserved for:
conversion of zero coupon subordinated convertible debentures into approximately
2.3 million shares, the exercise of warrants to purchase approximately 1.6
million shares and the exercise of approximately 1.0 million stock options and
other stock awards. The exercise or conversion prices of these securities is
greater than the average market price of the common shares and or their
inclusion would be antidilutive to diluted loss per share in 1998. In the fourth
quarter of 1997, the Company adopted Financial Accounting Standards ("SFAS") No.
128, "Earnings Per Share" and all prior period earnings per share data have been
restated to conform to the provisions of this statement.
Note B - Changes in Common Stock Outstanding
Balance January 1, 1998 21,135
Stock options exercised 54
Restricted stock compensation plans 585
Acquisitions 156
Conversion of zero coupon convertible
subordinated debenture 431
------
Balance June 30, 1998 22,361
======
On March 23, 1998, a total of approximately 585,000 shares of restricted stock
was awarded to various employees under the Company's Long Term Performance Plan.
Restrictions on the shares lapse over three years. The aggregate market value of
the shares on the date of issuance ($2.2 million) is being charged to operations
over the period that the restrictions lapse.
<PAGE>
AMERICAN BANKNOTE CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - UNAUDITED
Note C - Translation of ABNB's Financial Statements
Change in Accounting
As a result of the decreased inflation rate in Brazil, effective January 1,
1998, the method of translating the financial statements of the Company's
subsidiary in Brazil, American Bank Note Grafica e Servicos Ltda. ("ABNB"), was
changed to reflect translation gains and losses as a separate component of
equity. Prior to 1998, ABNB's financial statements were translated using the
method applicable to hyperinflationary economies in which gains and losses
resulting from translation and transactions were determined using a combination
of current and historical rates and were reflected in earnings. Such charge
included in the condensed consolidated statement of operations for the six
months ended June 30, 1997 was approximately $107,000. As a result of this
change in accounting method, the Company adjusted its deferred income tax
liability with a corresponding charge of approximately $1.7 million to
stockholders' equity as of the beginning of 1998.
Note D - Acquisitions
As of March 31, 1998, the Company acquired check and card personalization
businesses in France. The acquisition purchase price of approximately $3.3
million was financed with approximately $1.6 million of non-recourse term loans
in France, $1.0 million of cash and the issuance of and 155,503 shares of the
Company's Common Stock valued at approximately $0.7 million. The acquisitions
were accounted for by the purchase method of accounting. The purchase price was
allocated on a preliminary basis as follows: assets acquired $14.4 million;
liabilities assumed $11.7 million; and excess cost of investment in subsidiaries
over net assets acquired $0.6 million.
Note E - Accounting Pronouncements
The AICPA Accounting Standards Executive Committee issued in April 1998,
Statement of Position ("SOP") 98-5, "Reporting on the Costs of Start-Up
Activities," and is effective for the fiscal years beginning after December 15,
1998. SOP 98-5 provides guidance on the financial reporting of start-up costs
and organization costs. It requires cost of start-up activities and organization
costs to be expensed as incurred. The Company is evaluating the effect of this
pronouncement. Effective January 1, 1998, the Company adopted Statement of
Financial Accounting Standards ("SFAS") No. 130, "Reporting Comprehensive
Income." The comprehensive loss for the six months ended June 30, 1998 was
approximately $15.0 million, inclusive of the foreign currency translation
adjustments of $5.7 million.
<PAGE>
AMERICAN BANKNOTE CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - UNAUDITED
Note E - Accounting Pronouncements - continued
SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities,"
issued in June 1998, is effective for periods beginning after June 15, 1999 The
Company is currently evaluating the effect of this standard.
Note F - Inventories
June December
30, 1998 31, 1997
-------- --------
(in thousands)
Finished goods. . . . . . . . . . . . . $ 5,706 $ 6,454
Work in process . . . . . . . . . . . . 19,767 17,356
Raw materials and supplies. . . . . . . 22,053 17,876
------- -------
$47,526 $41,686
======= =======
Note G - Commitments and Contingencies
The Company is involved in various litigation, reference is made to
"Part II - Other Information, Item 1. Legal Proceedings."
On June 10, 1998, the Company reached agreement with De La Rue, plc concerning
the settlement of the three pending lawsuits with De La Rue and its affiliated
companies. Such actions have been dismissed with prejudice. Terms of the
settlement are subject to a confidentiality agreement and the amounts previously
provided are sufficient to cover the settlement.
The Company and its subsidiaries are parties to various additional lawsuits (as
both plaintiff and defendant) related to various matters in the normal course of
business, which in the opinion of management, are not anticipated to have a
material adverse impact on its consolidated financial position or results of
operations.
<PAGE>
AMERICAN BANKNOTE CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - UNAUDITED
Note H - Subsequent Events
Effective July 20, 1998, the Company completed its previously announced public
offering of all of the shares of its wholly-owned subsidiary, American Bank Note
Holographics, Inc. The Company received approximately $107 million in proceeds
from the offering before taxes, and certain legal, accounting, printing and
miscellaneous expenses. The Company estimates its pre-tax gain on the sale to be
approximately $78 million.
The following operations of ABNH are included in the Condensed Consolidated
Statement of Operations:
Six Months Ended
June 30
1998 1997
---- ----
Sales. . . . . . . . . . . . . . . . . $16,616 $11,537
------- -------
Costs and expenses:
Cost of goods sold . . . . . . . . . 6,445 5,220
Selling and administrative . . . . . 2,758 2,413
Depreciation and amortization . . . 584 581
------- -------
Total costs and expenses 9,787 8,214
------- -------
Operating income . . . . . . . . . . . 6,829 3,323
Other income, net. . . . . . . . . . . 72 63
Intercompany interest income . . . . . 152 152
Interest expense . . . . . . . . . . . (245) -
------- -------
Income before taxes on income . . . 6,808 3,538
Taxes on income . . . . . .. . . . . . 2,736 1,459
------- -------
Net income . . . . . . . . . . . $ 4,072 $ 2,079
======= =======
The following balance sheet amounts of ABNH are included in the Condensed
Consolidated Balance Sheet as of June 30, 1998:
Current assets . . . . . . . . . . . . $23,614
Total assets . . . .. . . . . . . . . $37,806
Current liabilities . . . . . . . . . $ 8,651
Total liabilities . . . . . . . . . . $10,687
Total liabilities and
stockholders' equity . . . . . . . . $37,806
The Company and ABNH have entered into several agreements in connection with the
offering pursuant to which certain services may continue to be performed by the
Company for ABNH following the Offering, and the companies will continue to
maintain certain business ties. The Company and ABNH have also exchanged certain
releases and indemnification agreements and following the date of the sale, ABNH
will no longer be a member of the Company's consolidated group for tax purposes.
On June 9, 1998, in connection with its authorization of the sale of ABNH, the
Board of Directors of the Company approved an amendment to the employment
arrangements for Mr. Weissman pursuant to which he may serve up to 20% of his
time in the capacity of Chairman of the Board and Chief Executive Officer of
ABNH.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
General
Consolidated operations in 1998 include the operations of the Sati Group's
check personalization, electronic printing and document management business,
acquired in August 1997, and the Menno plastic card business, acquired in May
1997, for the entire 1998 period. The acquisitions were accounted for as
purchase transactions. In addition, on March 31, 1998 the Company acquired in
France the check and card personalization business of MCE and CPS.
The Company operates in both Brazil and Australia which had significant
foreign exchange rate fluctuations in 1998 and 1997. The comparison below
reflects the effect of changes in foreign exchange rates.
COMPARISON OF RESULTS OF THE SIX MONTHS ENDED JUNE 30, 1998 WITH THE
SIX MONTHS ENDED JUNE 30, 1997
The Company operates in a single industry, secured products and systems,
with three principal product lines. The following table presents these product
lines for the six-months ended June 30 (Dollars in millions):
1998 1997
$ % $ %
---- ---- ---- ---
Transaction Cards & Systems . . . . . 46.0 28.0 55.5 34.6
Printing Services
& Document Management . . . . . . . 41.5 25.3 26.7 16.7
Security Printing Solutions . . . . . 76.5 46.7 78.1 48.7
----- ----- ----- -----
164.0 100.0 160.3 100.0
===== ===== ===== =====
Sales increased by $3.7 million or 2.3% from 1997 after giving effect to an
$11.8 million reduction in sales resulting from changes in foreign exchange
rates. Transaction Cards & Systems ("TCS") sales decreased $9.5 million or
17.1%. Printing Services & Document Management ("PSDM") sales increased $14.8
million or 55.4% and Security Printing Solutions ("SPS") sales decreased $1.6
million or 2.0%.
The decrease in TCS sales was principally due to lower volume requirements
for stored-value telephone cards in Brazil($13.8 million) and in Australia,
lower equipment sales ($2.0 million) and lower volume requirements for
transaction cards and card personalization ($0.8 million). This decrease was
partially offset by a stronger demand in Brazil for transaction cards and the
acquisition in May 1997 of the Menno card business ($2.4 million), increased
sales of optical variable devices ($3.0 million) and increased card
personalization sales resulting from the March 1998 acquisition in France ($1.1
million).
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS - CONTINUED
The increase in PSDM sales is primarily due to the acquisition of Sati in
France ($12.5 million) and the award of a new outsourcing contract in Brazil
($2.3 million).
The decrease in SPS sales ($1.6 million) is principally due to lower volume
requirements at ABN on travelers checks and foreign and domestic government
products, partially offset by increased currency sales.
Sales by foreign subsidiaries represented 70% and 72% of the Company's
consolidated sales in 1998 and 1997, respectively.
Cost of goods sold increased $13.5 million or 12.5%, after giving effect to
a $9.3 million reduction in costs resulting from changes in foreign exchange
rates. As a percentage of sales, cost of goods sold was 74.0% in 1998 as
compared to 67.3% in 1997. This increase is primarily attributable to a shift in
product mix primarily in Brazil and Australia. In Brazil, lower volumes on the
higher margin stored- value telephone cards was partially offset with lower
margin PSDM sales. In Australia, higher costs associated with new customers and
products resulted in lower margins. The product mix in any given period is not
indicative of the expected product mix in any future period.
Selling and administrative expenses increased $3.7 million (16.1%) from
1997 after giving effect to a $1.0 million reduction resulting from changes in
foreign exchange rates. The increase was principally due to the inclusion of the
Sati Group's operations in 1998 ($1.4 million), higher amortization of
restricted stock and severance payments ($0.9 million), a reversal of pre-tax
liabilities no longer required in 1997 ($0.8 million) and higher commissionable
sales ($0.6 million). As a percentage of sales, selling and administrative
expenses increased to 16.2% in 1998 from 14.3% in 1997.
Depreciation expense increased by $0.4 million from 1997 after giving
effect to a $0.6 million reduction resulting from changes in foreign exchange
rates.
Interest expense increased $1.6 million in 1998, primarily due to higher
incremental borrowings resulting from the sale of $95 million 11 1/4% Senior
Subordinated Notes in December 1997.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS - CONTINUED
Other income, net decreased by $1.4 million primarily due to decreased
interest and investment income when compared to 1997.
Taxes on income (benefit) are calculated using an estimated annual
effective income tax rate at the end of each reporting period. The rate is
reviewed and adjusted periodically to reflect changes in estimates by tax
jurisdictions in regulations, rates, deductibility of expenses, utilization of
tax credits, potential tax exposures, and state and local taxes.
COMPARISON OF RESULTS OF THE THREE MONTHS ENDED JUNE 30, 1998 WITH THE
THREE MONTHS ENDED JUNE 30, 1997
The following table presents the three product lines for the three-month periods
ended June 30:
1998 1997
(in millions)
$ % $ %
---- ----- ---- -----
Transaction Cards & Systems . . . . 25.7 29.4 28.9 36.5
Printing Services
& Document Management . . . . . . 22.0 25.2 11.5 14.5
Security Printing Solutions . . . . 39.5 45.4 38.8 49.0
---- ----- ---- -----
87.2 100.0 79.2 100.0
==== ===== ==== =====
Sales increased by $8.0 million or 10.1% from 1997 after giving effect to a
$6.6 million reduction in sales resulting from changes in foreign exchange
rates. Transaction Cards & Systems ("TCS") sales decreased $3.2 million or
11.1%. Printing Services & Document Management ("PSDM") sales increased $10.5
million or 91.3% and Security Printing Solutions ("SPS") sales increased $0.7
million or 1.8%.
The decrease in TCS sales was principally due to lower volume requirements
for stored-value telephone cards ($5.3 million) in Brazil and lower equipment
sales in Australia ($0.9 million). This decrease was partially offset by
increased sales of optical variable devices ($2.2 million) and increased card
personalization sales resulting from the March 1998 acquisition in France ($1.1
million).
The increase in PSDM sales is primarily due to the acquisition of Sati in
France ($7.8 million) and the award of a new outsourcing bank contract in Brazil
($2.5 million).
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS - CONTINUED
The increase in SPS sales ($0.7 million) is principally due to an increase
in sales of currency and product authentication products offset in part by lower
sales of domestic government products and checks in Brazil.
Sales by foreign subsidiaries represented 70% and 71% of the Company's
consolidated sales in 1998 and 1997, respectively.
Cost of goods sold increased $12.0 million or 22.8%, after giving effect to
a $5.4 million reduction in costs resulting from changes in foreign exchange
rates. As a percentage of sales, cost of goods sold was 73.9% in 1998 as
compared to 66.3% in 1997. This increase is primarily attributable to a shift in
product mix primarily in Brazil and Australia. In Brazil, lower volumes on the
higher margin stored- value telephone cards was partially offset with lower
margin PSDM sales. In Australia, higher costs associated with new customers and
products resulted in lower margins. The product mix in any given period is not
indicative of the expected product mix in any future period.
Selling and administrative expenses increased $3.0 million (27.7%)
from 1997 after giving effect to a $0.8 million reduction resulting from changes
in foreign exchange rates. The increase was principally due to the inclusion of
the Sati's operations in 1998 ($0.9 million), higher amortization of restricted
stock and severance payments ($0.9 million) and higher commissionable sales
($0.7 million). As a percentage of sales, selling and administrative expenses
increased to 16.1% in 1998 from 13.9% in 1997.
Depreciation expense increased by $0.4 million from 1997, after giving
effect to a $0.4 million reduction resulting from changes in foreign exchange
rates.
Interest expense increased $0.7 million in 1998, primarily due to higher
incremental borrowings resulting from the sale of $95 million 11 1/4% Senior
Subordinated Notes in December 1997.
Other income, net decreased by $1.1 million primarily due to decreased
interest and investment income when compared to 1997.
Taxes on income (benefit) are calculated using an estimated annual
effective income tax rate at the end of each reporting period. The rate is
reviewed and adjusted periodically to reflect changes in estimates by tax
jurisdictions in regulations, rates, deductibility of expenses, utilization of
tax credits, potential tax exposures, and state and local taxes.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
Operating cash flows decreased $15.2 million for the six months ended June
30, 1998 as compared to the same period in 1997 (before changes in operating
assets and liabilities) primarily as a result of decreased earnings.
Operating assets and liabilities also affected cash flows. The net increase
in operating cash flows from such changes of $4.0 million in 1998 as compared to
1997 is primarily due to the timing of payments of accounts payable and accrued
expenses offset in part by the timing of accounts receivable collections and an
increase in inventories.
Investing activities for 1998 included $1.0 million for an acquisition in
France as compared to $2.5 million during 1997 in Brazil of a leading
manufacturer of personalized financial transaction cards. The acquisition in
1998 did not have a significant effect on the Company's results of operations.
The reduction in the level of capital expenditures to $2.5 million in 1998 from
$4.1 million in 1997 reflected the completion of the expansion of manufacturing
capacity in Brazil in 1997.
Financing activities for the six months ended June 30, 1998 included the
refinancing of the Leigh-Mardon ("LM") debt in Australia, increased working
capital revolver borrowings and reduced dividend payments to ABNB's minority
shareholder. The LM refinancing included a five-year $55.3 million amortizing
revolving credit facility. The revolving credit facility expires in March 2003
with semi-annual commitment step downs and is initially priced at the bank bill
rate plus 1.75%. On March 26, 1998, in connection with the refinancing,
Leigh-Mardon entered into a three-year floating-to-fixed interest rate swap with
two of the syndicate banks. The notional principal amount of the swap is equal
to 75% of the initial borrowings under the facilities or approximately $37.3
million. The notional principal amount of the swap will amortize in line with
the semi-annual commitment reductions under the five-year revolving credit
facility. Under the terms of the swap agreement, Leigh-Mardon will pay the
counterparty an average fixed rate of 5.62% and will receive an amount equal to
the 90-day bank bill rate (approximately 5.1% at June 30, 1998).
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES - CONTINUED
At June 30, 1998, the Company had approximately $7.0 million in cash and
cash equivalents. The Company's subsidiaries, ABN and ABNH, are parties to a
three-year, $20.0 million revolving credit facility for general working capital
purposes and letters of credit which expires on October 30,1998. The Company is
currently negotiating an extension or a new facility. At June 30, 1998, the
Company had approximately $12.8 million of availability under its Credit
Facility before reductions for $3.5 million of outstanding letters of credit and
$8.3 million of borrowings. In addition, LM and the Sati Group had available
unused lines of credit of approximately $2.6 million and $1.4 million,
respectively.
The Syndicate Banks for the LM credit facility have amended certain
covenants as of June 30, 1998. LM is in compliance with the covenants of the
credit facility, as amended, as of June 30, 1998.
The Company's long-term debt included $126.5 million of 10 3/8% Senior
Notes, $95.0 million principal amount of 11 1/4% Senior Subordinated Notes, $8.0
million of 11 5/8% Senior Notes, $50.4 million of LM revolving credit facility,
$12.3 million of borrowings in Brazil, $12.3 million of the Sati Group debt and
$4.1 million of other debt.
Management of the Company believes that cash flows from operations together
with cash balances and availability of funds under its and its subsidiaries
credit facilities and asset sales will be sufficient to service debt and fund
capital expenditures for the foreseeable future. The Company also believes that
it and its subsidiaries possess sufficient unused debt capacity and access to
debt and equity markets to pursue additional acquisition opportunities and meet
extraordinary working capital needs as they arise.
Reference is made to the Company's Annual Report on Form 10-K for the year
ended December 31, 1997 "Liquidity and Capital Resources."
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES - CONTINUED
IMPACT OF INFLATION
Reference is made to the Company's Form 10-K for the year ended December
31, 1997 "Impact of Inflation."
Effective January 1, 1998, as a result of substantial decrease in inflation
rates in Brazil, the method of translating ABNB's financial statements was
changed to reflect gains and losses as a separate component of stockholders'
equity. Prior to 1998, the Company translated ABNB's financial statements as if
ABNB were operating in a hyperinflationary economy. In prior years gains and
losses resulting from translation and transactions were determined using a
combination of current and historical rates and are reflected in earnings. The
effect of the change reduced stockholders' equity by approximately $1.7 million
with a corresponding credit to deferred income taxes. The Company's domestic,
Australian, New Zealand and French operations are not significantly affected by
inflation. ABNB's sales represented 38% and 45% of consolidated sales in 1998
and 1997, respectively.
YEAR 2000 ISSUE
The Year 2000 issue involves the risk that computer systems using two-digit
date fields will fail to properly recognize the Year 2000, resulting in computer
system failures for businesses, government agencies, service providers, vendors
and customers. The Company has formed a cross-functional task force for
assessing the Company's Year 2000 readiness. The task force has developed a plan
to assess the Company's Year 2000 risk and is in the process of performing its
review. The Company has initiated discussions with its key suppliers and
customers to determine whether they have any Year 2000 issues which could impact
the Company.
The Company anticipates that certain software will require replacement or
modification. However, based on its review to date, the Company does not expect
the cost of software replacement or modification to be material to its financial
position or results of operations. Estimates of the related costs are based on
assumptions, including the continued availability of certain resources, the
ability to correct all relevant applications and third party modification plans.
There is no guarantee that the estimates will be achieved and actual costs could
differ materially from those anticipated.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RECENT DEVELOPMENTS
Effective July 20, 1998, the Company completed its previously announced
public offering of all of the shares of its wholly-owned subsidiary, American
Bank Note Holographics, Inc. The Company received approximately $107 million in
proceeds from the offering before taxes, and certain legal, accounting, printing
and miscellaneous expenses. The Company estimates its pre-tax gain on the sale
to be approximately $78 million.
The Company plans to use the net proceeds from the offering in accordance
with the terms of the indentures governing the Company's indebtedness. The
Company will use the net proceeds it received to repay indebtedness on its 10
3/8% Senior Notes due 2002 and for general corporate purposes.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this Form 10-Q and in certain documents incorporated
by reference herein constitute "forward-looking" statements within the meaning
of the Private Securities Litigation Reform Act of 1995 (the "Reform Act"). Such
"forward-looking" statements involve known and unknown risks, uncertainties and
other factors which may cause the actual results, performance or achievements of
the Company, or industry results, to be materially different from any future
results, performance, or achievements expressed or implied by such
"forward-looking" statements. Such factors are more fully described in the
Company's Annual Report on Form 10-K for the year ended December 31, 1997 which
should be considered in connection with a review of this report.
<PAGE>
Part II Other Information
Item 1. Legal Proceedings
On June 10, 1998, the Company reached agreement with De La Rue, plc
concerning the settlement of the three pending lawsuits with De La Rue and its
affiliated companies. Such actions have been dismissed with prejudice. Terms of
the settlement are subject to a confidentiality agreement and the amounts
previously provided are sufficient to cover the settlement.
Reference is made to the Company's Annual Report on Form 10-K for the year
ended December 31, 1997.
Item 4. Submission of Matters to a Vote of Security Holders
As a result of a vote of stockholders at the Annual Meeting of Stockholders
held on June 9, 1998, it was resolved that:
1. The Directors nominated for election were elected with the votes cast as
follows:
Nominee Votes In Favor Votes Withheld
Bette B. Anderson 20,269,443 262,077
Dr. Oscar Arias S. 18,678,612 1,852,908
C. Gerald Goldsmith 20,269,492 268,028
Ira J. Hechler 20,269,045 262,475
Sidney Levy 20,270,534 260,986
David S. Rowe-Beddoe 20,270,787 260,733
Alfred Teo 20,270,761 260,759
Morris Weissman 20,268,291 263,229
2. The proposal to approve the proposed appointment by the Board of
Directors of Deloitte & Touche LLP as independent auditors for the Company for
the fiscal year ending December 31, 1998 was approved by a vote of 20,243,040 in
favor, 61,512 against and 226,968 abstained.
<PAGE>
Item 6. Exhibits and Reports on Form 8-k
(a) Exhibits:
Exhibit
Number
10.1 Form of Separation Agreement by and between American Banknote
Corporation and American Bank Note Holographics, Inc. dated
as of 1998. **
10.2 American Bank Note Holographics, Inc. Form of Underwriting
Agreement dated June 1998 **
27 Article 5 Financial Data Schedule **
** Filed electronically herewith
(b) Report on Form 8-K - Form 8-K filed August 3, 1998
Items 2 and 7
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company
has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
American Banknote Corporation
By /s/ Patrick J. Gentile
----------------------
Patrick J. Gentile
Senior Vice President and
Chief Accounting Officer
Date: August 14, 1998
<PAGE>
Exhibit Index
List of Exhibits Pursuant to Item 601 of Regulation S-K:
Exhibit
10.1 Form of Separation Agreement by and between American Banknote
Corporation and American Bank Note Holographics, Inc. dated
as of 1998.
10.2 American Bank Note Holographics, Inc. Form of Underwriting
Agreement dated June 1998
27 Article 5 Financial Data Schedule
Exhibit 10.1
FORM OF
SEPARATION AGREEMENT
BY AND BETWEEN
AMERICAN BANKNOTE CORPORATION
AND
AMERICAN BANK NOTE HOLOGRAPHICS, INC.
DATED AS OF [________ __,] 1998
SEPARATION AGREEMENT
SEPARATION AGREEMENT (this "Agreement"), dated as of the IPO Effective
Date, is entered into by and between Parent and ABNH. Capitalized terms used in
this Agreement and not otherwise defined herein shall have the respective
meanings assigned to them in Section 1.
WHEREAS, the Board of Directors of Parent has determined that it is
appropriate and desirable for Parent to sell for its account all of the shares
of ABNH Common Stock owned by Parent; and
WHEREAS, it is appropriate and desirable to set forth certain
agreements of the parties in connection with the Separation;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto agree as follows:
Section 1. Definitions.
For the purpose of this Agreement the following terms shall have the
following meanings:
"Action" means any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local,
foreign or international Governmental Authority or any arbitration or mediation
tribunal.
"Affiliate" of any Person means a Person that controls, is controlled
by, or is under common control with such Person. As used herein, "control" of
<PAGE>
any Person means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through ownership of voting securities or other interests, by contract or
otherwise.
"Agreement" means this Separation Agreement, including any Schedules
hereto.
"Ancillary Agreements" means any and all supplemental and other
agreements and instruments contemplated by this Agreement or entered into in
connection with this Agreement.
"ABNH" means American Bank Note Holographics, Inc., a Delaware
corporation.
"ABNH Common Stock" means the Common Stock, $0.01 par value per share,
of ABNH.
"ABNH Indemnitees" has the meaning set forth in Section 11.3.
"Closing" means the receipt by Parent of the net proceeds of the shares
of ABNH Common Stock sold by it in the IPO in accordance with the terms of the
Underwriting Agreement.
"Closing Date" means the date on which the Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, including
the members of its staff.
"Environmental Law" means any federal, state, local, foreign or
international statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, common law (including tort and environmental
nuisance law), legal doctrine, order, judgment, decree, injunction, requirement
or agreement with any Governmental Authority, now or hereafter in effect,
relating to health, safety, pollution or the environment (including ambient air,
surface water, groundwater, land surface or subsurface strata) or to emissions,
discharges, releases or threatened releases of any substance currently or at any
subsequent time listed, defined, designated or classified as hazardous, toxic,
waste, radioactive or dangerous, or otherwise regulated, under any of the
foregoing, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of any such substances,
including the Comprehensive Environmental Response, Compensation and Liability
Act, the Superfund Amendments and Reauthorization Act and the Resource
Conservation and Recovery Act and comparable provisions in state, local, foreign
or international law.
"Environmental Liabilities" means all Liabilities relating to, arising
out of or resulting from any Environmental Law or contract or agreement relating
to environmental, health or safety matters (including all removal, remediation
or cleanup costs, investigatory costs, governmental response costs, natural
resources damages, property damages, personal injury damages, costs of
compliance with any settlement, judgment or other determination of Liability and
indemnity, contribution or similar obligations) and all costs and expenses
(including allocated costs of in-house counsel and other personnel), interest,
fines, penalties or other monetary sanctions in connection with such
liabilities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
together with the rules and regulations promulgated under the Exchange Act.
"GAAP" means generally accepted accounting principles.
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<PAGE>
"Governmental Authority" shall mean any federal, state, local, foreign
or international court, government, department, commission, board, bureau,
agency, official or other regulatory, administrative or governmental authority.
"Indemnifying Party" has the meaning set forth in Section 11.4.
"Indemnitee" has the meaning set forth in Section 11.4.
"Indemnity Payment" has the meaning set forth in Section 11.4.
"Information" means information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
"Insurance Proceeds" means those monies:
(a) received by an insured from an insurance carrier;
(b) paid by an insurance carrier on behalf of the insured; or
(c) received (including by way of set-off) from any third party in the
nature of insurance, contribution or indemnification in respect of any
Liability; in any such case net of any applicable premium adjustments (including
reserves and retrospectively rated premium adjustments) and net of any costs or
expenses (including allocated costs of in-house counsel and other personnel)
incurred in the collection of proceeds.
"IPO" means the public offering of shares of ABNH Common Stock pursuant
to the IPO Registration Statement.
"IPO Effective Date" means [_____ __], 1998, which is the date on which
the IPO Registration Statement was declared effective by the Commission.
"IPO Registration Statement" means the registration statement,
Registration No. 333-51845, on Form S-1 filed under the Securities Act, pursuant
to which the ABNH Common Stock to be sold in the IPO has been registered.
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<PAGE>
"Liabilities" means any and all losses, claims, charges, debts,
demands, actions, causes of action, suits, damages, obligations, costs and
expenses, including those arising under any law, rule, regulation, Action,
threatened or contemplated Action (including the costs and expenses of demands,
assessments, judgments, settlements and compromises relating thereto and
attorneys' fees and any and all costs and expenses (including allocated costs of
in-house counsel and other personnel) whatsoever reasonably incurred in
investigating, preparing or defending against any such Actions or threatened or
contemplated Actions), order or consent decree of any Governmental Authority or
any award of any arbitrator or mediator of any kind.
"Parent" means American Banknote Corporation, a Delaware corporation.
"Parent Group" means Parent and each Person (other than ABNH) that is
an Affiliate of Parent immediately after the Closing Date.
"Parent Indemnitees" has the meaning set forth in Section 11.2.
"Person" means an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a limited
liability entity, any other entity and any Governmental Authority.
"Prime Rate" means the rate which The Chase Manhattan Bank (or any
successor or other major money center commercial bank agreed to by the parties)
announces from time to time as its prime lending rate, as in effect from time to
time.
"Prospectus" means each preliminary, final or supplemental prospectus
forming a part of the IPO Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended, together
with the rules and regulations promulgated under the Securities Act.
"Separation" means the transactions, arrangements and agreements
embodied in this Agreement entered into by the parties in preparation for the
sale by Parent of all ABNH Common Stock held by Parent.
"Subsidiary" of any Person means any corporation or other organization
whether incorporated or unincorporated of which at least a majority of the
securities or interests having by the terms thereof ordinary voting power to
elect at least a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization is directly or
indirectly owned or controlled by such Person or
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<PAGE>
by any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; provided, however that no Person that is not directly or
indirectly wholly owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person.
"Tax" or "Taxes" means all taxes, charges, fees, levies or other
assessments, including, without limitation, income, gross receipts, excise,
property, sales, withholding, social security, occupations, use, service,
service use, license, payroll, franchise, transfer and recording taxes, fees and
charges, imposed by the United States, or any state, local or foreign government
or subdivision or agency thereof, whether computed on a separate, consolidated,
unitary, combined or any other basis; and such term shall include any interest,
fines, penalties or additional amounts attributable to or imposed on or with
respect to any such taxes, charges, fees, levies or other assessments.
"Third Party Claim" has the meaning set forth in Section 11.5.
"Underwriters" means the managing underwriters for the IPO.
"Underwriting Agreement" means the underwriting agreement entered into
among Parent, ABNH and the Underwriters with respect to the IPO.
Section 2. Effect of Agreement. This Agreement is being executed and
delivered on the IPO Effective Date to memorialize actions that have been taken
by the parties prior to the IPO Effective Date in connection with the
Separation, and to govern the conduct of the parties subsequent to the IPO
Effective Date as to the matters addressed in this Agreement. If the Closing
does not occur, this Agreement shall terminate.
Section 3. Closing Date Unrestricted Cash. The parties acknowledge and
agree that, as of the Closing Date, ABNH's unrestricted cash on hand is not
likely to exceed a nominal amount, and that there is no requirement that Parent
take any action to cause ABNH's unrestricted cash on hand to be any particular
amount. Prior to the Closing Date, Parent shall be entitled to all unrestricted
cash of ABNH.
Section 4. Certain Tax Matters.
4.1 Consolidated, Combined and Unitary Income Tax Returns. Parent will
include the income of ABNH (including any deferred income required to be
recognized under Treasury
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<PAGE>
Regulation Sections 1.1502-13 and any excess loss account taken into income
under Treasury Regulation Sections 1.1502-19) on the Parent consolidated federal
income tax returns (and on any state, local and foreign income tax returns filed
by Parent on a consolidated, combined or unitary basis) for all periods that end
prior to or include the Closing Date and will pay all Taxes assessed, and retain
for its own account any refunds received, with respect to such income tax
returns, provided that ABNH shall, no later than 10 days following receipt of
notice from Parent requesting such payment, pay to Parent the amount of any
Taxes to the extent incurred or treated as being incurred by ABNH or arising
with respect to the activities of ABNH. ABNH will furnish all information
reasonably required by Parent for inclusion in Parent' consolidated, combined or
unitary income tax returns in accordance with ABNH's past custom and practice.
Parent will allow ABNH an opportunity to review and comment on such income tax
returns (including any amended returns) to the extent they relate to ABNH. ABNH
will include its income on its separate income tax returns for all taxable
periods beginning after the Closing Date. The income of ABNH will be apportioned
to the period up to and including the Closing Date and the period after the
Closing Date by closing the books of ABNH as of the end of the Closing Date,
unless Parent and ABNH elect ratable allocation pursuant to Treasury Regulation
Sections 1.1502-76(b)(2)(ii). ABNH shall assign and pay over to Parent all
refunds of Taxes with respect to any period ending on or before the Closing
Date, or with respect to which Parent has agreed to indemnify ABNH under Section
11.3(iii). For all purposes of this Section and Sections 4.3, 11.2 and 11.3,
Taxes shall be treated as incurred by ABNH, whether or not actually assessed or
paid, if and to the extent such Taxes would be incurred and payable by ABNH if
ABNH filed its returns on a separate company basis.
4.2 Separate Tax Returns. For all periods following the Closing Date,
and for all periods ending prior to or on the Closing Date with respect to
state, local and foreign income and other tax returns not filed by Parent and
ABNH on a consolidated, combined or unitary basis, Parent and ABNH will file
their tax returns for state, local and foreign income tax purposes and all other
tax returns on a separate basis and, subject to Sections 11.2 and 11.3, shall be
separately responsible for all Taxes assessed with respect to such returns.
4.3 Audits. Parent will allow ABNH and its counsel to participate at
ABNH's own expense in any audits of the federal, state, local or foreign
consolidated, combined or unitary income tax returns of Parent to the extent
that such returns relate to ABNH. ABNH shall indemnify Parent for attorneys'
fees and any and all costs and expenses (including allocated costs of in-house
counsel and other personnel) whatsoever reasonably incurred in connection with
any such audit to the extent such audit relates to Taxes incurred by ABNH or
arising with respect to the activities of ABNH. Parent will not settle any such
audit in a manner that would adversely affect ABNH after the Closing Date,
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<PAGE>
unless such settlement would be reasonable in the case of a person that owned
ABNH both before and after the Closing Date.
4.4 Post-Closing Elections. At Parent's request, ABNH will make or join
with Parent in making any election for Tax purposes if the making of such
election does not have a material adverse impact on ABNH for any taxable period
after the Closing Date.
4.5 Termination of Other Tax Sharing Agreements. Any Tax sharing or
allocation agreements between Parent and ABNH other than this Agreement shall
terminate on the Closing Date.
Section 5. Insurance Matters.
5.1 New Policies. On or prior to the date hereof, ABNH obtained binders
for such new business insurance policies as it deems necessary and proper for
the conduct of its business, which policies by their terms became or become
effective no later than the Closing Date. ABNH is responsible for paying all
premiums required under such policies and, to the extent any such premiums
became due prior to the IPO Effective Date, ABNH has paid such premiums.
5.2 Tail Coverages. ABNH is or has been a named insured under various
blanket business insurance policies owned by Parent (the "Parent Blanket
Policies"). Parent has made available to ABNH the opportunity to purchase
extended discovery period coverage for the benefit of ABNH under the Parent
Blanket Policies, and ABNH has purchased such extended discovery period
coverages as it deems necessary and proper for the conduct of its business.
5.3 Refunds and Adjustments, etc. The parties acknowledge that certain
of the premiums paid by Parent under the Parent Blanket Policies are subject to
reduction after the applicable insurer audits the related claims history.
Refunds reflecting any such reductions shall be solely for the account of
Parent, and ABNH shall have no claim with respect thereto. To the extent that
ABNH receives any such refund, ABNH shall immediately pay it over to Parent.
ABNH shall indemnify Parent for the full amount of any retroactive premium
adjustment or similar charge, with respect to workers' compensation or other
insurance, arising out of the activities of ABNH. Any retroactive adjustments
for ABNH from prior years shall be paid by ABNH.
5.4 Workers' Compensation. Effective as of Closing Date (the "WC Switch
Date"), ABNH obtained such workers' compensation insurance arrangements as it
deems necessary and proper for the conduct of its business, and ABNH shall be
solely responsible for all workers' compensation claims of ABNH employees
incurred after the WC Switch Date.
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<PAGE>
Section 6. Lien and Guaranty Releases. It is the parties' intention
that, from and after the Closing Date, (a) no assets (including, without
limitation, cash balances in bank accounts and rights as lessee) or capital
stock of ABNH will be subject to any lien, security interest, mortgage or other
encumbrance relating to any indebtedness of Parent or of any member of the
Parent Group, and ABNH will have no obligation, as guarantor or otherwise, for
any indebtedness of Parent or of any member of the Parent Group, and (b) no
assets (including, without limitation, cash balances in bank accounts and rights
as lessee) or capital stock of Parent will be subject to any lien, security
interest, mortgage or other encumbrance relating to any indebtedness of ABNH,
and Parent will have no obligation, as guarantor or otherwise, for any
indebtedness of ABNH. If, after the Closing Date, any lien or guaranty is
discovered that encumbers any asset or capital stock of ABNH, or under which
ABNH has any obligation, and that relates to any indebtedness of Parent or of
any member of the Parent Group, Parent shall take all actions that shall be
necessary to obtain the release of such lien or guaranty. If, after the Closing
Date, any lien or guaranty is discovered that encumbers any asset or capital
stock of Parent, or under which Parent has any obligation, and that relates to
any indebtedness of ABNH, ABNH shall take all actions that shall be necessary to
obtain the release of such lien or guaranty.
Section 7. Asset Transfer. As of the Closing Date, (a) Parent shall
execute and deliver to ABNH a quitclaim bill of sale, transferring to ABNH any
interest Parent might have in any of the assets used by ABNH in the conduct of
its business and (b) ABNH shall execute and deliver to Parent a quitclaim deed,
transferring to Parent any interest ABNH might have in any of the assets used by
Parent in the conduct of its business which are not necessary for the conduct of
ABNH's business.
Section 8. Bank Accounts/Cash Management. Prior to the IPO Effective
Date, ABNH has established such bank accounts as it deems to be necessary to
conduct its business (and/or, with the assistance of Parent, has amended the
authorizations relating to mutually agreed existing bank accounts so that they
are controlled exclusively by ABNH personnel), and, where applicable, all
authorizations, standing wire instructions and the like relating to ABNH's
participation in Parent's cash management system have been terminated.
Section 9. Employee Benefit Plans. Simultaneously with the execution of
this Agreement, ABNH and Parent have executed the Employee Benefits Allocation
Agreement attached as Schedule 13 hereto, which agreement constitutes the
agreement between ABNH and Parent with respect to employee benefit aspects of
the Separation.
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<PAGE>
Section 10. Termination of Agreements. Except for this Agreement and
any Ancillary Agreements, in furtherance of the Separation, ABNH and Parent
hereby terminate any and all agreements, arrangements, commitments or
understandings, whether or not in writing, between or among ABNH, on the one
hand, and Parent and/or any member of the Parent Group, on the other hand,
effective as of the Closing Date.
Section 11. Mutual Releases; Indemnification.
11.1 Release of Pre-Closing Claims. (a) Except as provided in Section
11.1(c), effective as of the Closing Date, ABNH does, for itself and its
successors and assigns, remise, release and forever discharge Parent, the
members of the Parent Group, their respective Affiliates (other than ABNH),
successors and assigns, and all Persons who at any time prior to the Closing
Date have been shareholders, directors, officers, agents or employees of any
member of the Parent Group (in each case, in their respective capacities as
such), and their respective heirs, executors, administrators, successors and
assigns, from any and all Liabilities to ABNH, whether at law or in equity
(including any right of contribution), whether arising under any contract or
agreement, by operation of law or otherwise, existing or arising from any acts
or events occurring or failing to occur or alleged to have occurred or to have
failed to occur or any conditions existing or alleged to have existed on or
before the Closing Date.
(b) Except as provided in Section 11.1(c), effective as of the Closing
Date, Parent does, for itself and each other member of the Parent Group, their
respective Affiliates (other than ABNH), successors and assigns, remise, release
and forever discharge ABNH, and all Persons who at any time prior to the Closing
Date have been shareholders, directors, officers, agents or employees of ABNH
(in each case, in their respective capacities as such), and their respective
heirs, executors, administrators, successors and assigns, from any and all
Liabilities to Parent or any of the Parent Group, whether at law or in equity
(including any right of contribution), whether arising under any contract or
agreement, by operation of law or otherwise, existing or arising from any acts
or events occurring or failing to occur or alleged to have occurred or to have
failed to occur or any conditions existing or alleged to have existed on or
before the Closing Date, except to the extent of such product warranty
obligations or other Liabilities, if any, as may arise out of the provision of
goods by ABNH to Parent or other members of the Parent Group or their respective
Affiliates which are or have been customers of ABNH, which shall not be subject
to or affected by the foregoing release.
(c) Nothing contained in Section 11.1(a) or (b) shall impair any
obligation under this Agreement or any Ancillary
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Agreement or any right of any Person to enforce this Agreement or any Ancillary
Agreement.
11.2 Indemnification by ABNH. Except as provided in Section 11.4, ABNH
shall indemnify, defend and hold harmless Parent, each member of the Parent
Group and each of their respective directors, officers, agents and employees,
and each of the heirs, executors, successors and assigns of any of the foregoing
(collectively, the "Parent Indemnitees"), from and against any and all
Liabilities of the Parent Indemnitees relating to, arising out of or resulting
from any of the following items (without duplication):
(i) the IPO, the conduct by ABNH of its business, whether
before or after the Closing Date, including as a result of guarantees
by Parent of any obligations of ABNH, and the purchase of any goods or
services from or through Parent prior to the Closing;
(ii) any breach by ABNH of this Agreement or any Ancillary
Agreement;
(iii) Taxes incurred by ABNH (including any amounts assessed
by a federal, state or local taxing authority), or arising with respect
to the activities of, ABNH, with respect to any and all periods,
whether ending before, on or after the Closing Date; and
(iv) the IPO, provided that such indemnification will be
subordinate to any indemnity provided by ABNH to the Underwriters in
connection with the IPO pursuant to the Underwriting Agreement, among
ABNH, Parent and the Underwriters listed on Schedule A thereto, and no
amount shall be paid pursuant to such indemnification until any amount
which is then payable under the Underwriting Agreement is paid in full.
11.3 Indemnification by Parent. Parent shall indemnify, defend and hold
harmless ABNH, and each of its directors, officers, agents and employees, and
each of the heirs, executors, successors and assigns of any of the foregoing
(collectively, the "ABNH Indemnitees"), from and against any and all Liabilities
of the ABNH Indemnitees relating to, arising out of or resulting from any of the
following items (without duplication):
(i) the conduct by Parent or any member of the Parent Group,
of their respective businesses at any time, including as a result of
guarantees by ABNH of any obligations of Parent or any member of the
Parent Group;
(ii) any breach by Parent or any member of the Parent Group of
this Agreement or any Ancillary Agreement; and
(iii) Taxes incurred by, or arising with respect to the
activities of, Parent or any member of the Parent Group, other than
Taxes incurred by, or arising with respect to the activities of, ABNH,
during or with respect to any and all periods ending before, on or
after the Closing Date.
11.4 Indemnification Obligations Net of Insurance Proceeds and Other
Amounts. The parties intend that any Liability subject to indemnification or
reimbursement pursuant to this Section 11 will be net of Insurance Proceeds.
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11.5 Procedures for Indemnification of Third Party Claims. (a) If an
Indemnitee shall receive notice or otherwise learn of the assertion by a Person
of any claim or of the commencement by any such Person of any Action
(collectively, a "Third Party Claim") with respect to which an Indemnifying
Party may be obligated to provide indemnification to such Indemnitee pursuant to
Section 11.2 or 11.3, or any other Section of this Agreement or any Ancillary
Agreement, such Indemnitee shall give such Indemnifying Party written notice
within 20 days after becoming aware of such Third Party Claim. Any such notice
shall describe the Third Party Claim in reasonable detail. Notwithstanding the
foregoing, the failure of any Indemnitee or other Person to give notice as
provided in this Section 11.5(a) shall not relieve the related Indemnifying
Party of its obligations under this Section 11, except to the extent that such
Indemnifying Party is actually prejudiced by such failure to give notice.
(b) An Indemnifying Party may elect to defend (or, with respect to a
Third partly Claim relating to Taxes to which Section 11.2(iii) applies,
participate), and to seek to settle or compromise, at such Indemnifying Party's
own expense and by such Indemnifying Party's own counsel, any Third Party Claim.
Within 30 days after the receipt of notice from an Indemnitee in accordance with
Section 11.5(a) (or sooner, if the nature of such Third Party Claim so
requires), the Indemnifying Party shall notify the Indemnitee whether the
Indemnifying Party will assume responsibility for defending such Third Party
Claim.
(c) If an Indemnifying Party elects not to assume responsibility for
defending a Third Party Claim, or fails to notify an Indemnitee of its election
as provided in Section 11.5(d), such Indemnitee may defend such Third Party
Claim at the cost and expense (including allocated costs of in-house counsel and
other personnel) of the Indemnifying Party.
(d) Unless the Indemnifying Party has failed to assume the defense of
the Third Party Claim in accordance with the terms of this Agreement, no
Indemnitee may settle or compromise any Third Party Claim without the consent of
the Indemnifying Party.
(e) No Indemnifying Party shall consent to entry of any judgment or
enter into any settlement of the Third Party Claim without the consent of the
Indemnitee if the effect thereof is to permit any injunction, declaratory
judgment, other order or other nonmonetary relief to be entered, directly or
indirectly, against any Indemnitee.
11.6 Additional Matters. (a) Any claim on account of a Liability that
does not result from a Third Party Claim shall be asserted by written notice
given by the Indemnitee to the related Indemnifying Party. Such Indemnifying
Party shall have a period of 30 days after the receipt of such notice within
which to respond. If such Indemnifying Party does not respond within
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such 30-day period, such Indemnifying Party shall be deemed to have refused to
accept responsibility to make payment. If such Indemnifying Party does not
respond within such 30-day period or rejects such claim in whole or in part,
such Indemnitee shall be free to pursue such remedies as may be available to
such party as contemplated by this Agreement and any Ancillary Agreement.
(b) In the event of payment by or on behalf of any Indemnifying Party
to any Indemnitee in connection with any Third Party Claim, such Indemnifying
Party shall be subrogated to and shall stand in the place of such Indemnitee as
to any events or circumstances in respect of which such Indemnitee may have any
right, defense or claim relating to such Third Party Claim against any claimant
or plaintiff asserting such Third Party Claim or against any other person. Such
Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner,
and at the cost and expense (including allocated costs of in-house counsel and
other personnel) of such Indemnifying Party, in prosecuting any subrogated
right, defense or claim.
11.7 Remedies Cumulative. The remedies provided in this Section 11
shall be cumulative and shall not preclude assertion by any Indemnitee of any
other rights or the seeking of any and all other remedies against any
Indemnifying Party.
11.8 Survival of Indemnities. The rights and obligations of each of
Parent and ABNH and their respective Indemnitees under this Section 11 shall
survive the Closing for a period of three years or, in the case of any Tax, for
the longer of such period or the period of the applicable statute of limitations
(including any period for which such statute is tolled or waived by agreement or
otherwise).
Section 12. Certain Business Matters. (a) Neither ABNH, Parent nor any
member of the Parent Group shall have any duty to refrain from (i) engaging in
the same or similar activities or lines of business as any other of such
Persons, (ii) doing business with any potential or actual supplier or customer
of any other of such Persons, or (iii) engaging in, or refraining from, any
other activities relating to any of the potential or actual suppliers or
customers of any other of such Persons. Until the first anniversary of the
Closing Date, ABNH shall not solicit any employee of Parent or of any member of
the Parent Group to become an employee of ABNH, and neither Parent nor any
member of the Parent Group shall solicit any employee of ABNH to become an
employee of Parent or of any member of the Parent Group.
Section 13. Late Payments. Any amount not paid when due pursuant to
this Agreement or any Ancillary Agreement shall accrue interest at a rate per
annum equal to the Prime Rate plus 1%.
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Section 14. Exchange of Information. Each of Parent and ABNH agrees to
provide, or cause to be provided, to each other, at any time after the Closing
Date, as soon as reasonably practicable after written request, any Information
in its possession or under its control that the requesting party reasonably
needs (i) to comply with reporting, disclosure, filing or other requirements
imposed on the requesting party (including under applicable securities or tax
laws) by a Governmental Authority having jurisdiction over the requesting party,
(ii) for use in any other judicial, regulatory, administrative, tax or other
proceeding or in order to satisfy audit, accounting, claims, regulatory,
litigation, tax or other similar requirements, or (iii) to comply with its
obligations under this Agreement or any Ancillary Agreement; provided, however,
that if any party determines that any such provision of Information could be
commercially detrimental, violate any law or agreement, or waive any
attorney-client privilege, the parties shall take all reasonable measures to
permit the compliance with such obligations in a manner that avoids any such
harm or consequence.
Section 15. Confidentiality. Each of Parent and ABNH agrees to hold,
and to cause its respective directors, officers, employees, agents, accountants,
counsel, other advisors and representatives, and Subsidiaries to hold, in strict
confidence, with at least the same degree of care that applies to Parent's
confidential and proprietary information pursuant to policies in effect as of
the Closing Date, all Information concerning the other that is either in its
possession (including Information in its possession prior to the Closing Date)
or furnished by such other or its respective directors, officers, employees,
agents, accountants, counsel and other advisors and representatives at any time
pursuant to this Agreement, any Ancillary Agreement or otherwise, and shall not
use any such Information other than for such purposes as contemplated by such
agreements, except, in each case, to the extent that such Information has been
(i) in the public domain through no fault of such party or any of its directors,
officers, employees, agents, accountants, counsel and other advisors and
representatives, (ii) later lawfully acquired from other sources by such party,
which sources are not themselves bound by a confidentiality obligation, or (iii)
independently generated without reference to any proprietary or confidential
Information of the other party. In the event that any party either determines on
the advice of its counsel that it is required to disclose any Information
pursuant to applicable law or receives any demand under lawful process or from
any Governmental Authority to disclose or provide Information of any other party
that is subject to the confidentiality provisions of this Agreement, such party
shall notify the other party prior to disclosing or providing such Information
and shall cooperate at the expense of the requesting party in seeking any
reasonable protective arrangements requested by such other party. Subject to the
foregoing, the Person that received such request may
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subsequently disclose or provide Information to the extent required by such law
(as so advised by counsel) or by lawful process or such Governmental Authority.
Section 16. Further Assurances. In addition to the actions specifically
provided for elsewhere in this Agreement, each of the parties hereto shall use
its reasonable best efforts, prior to, on and after the Closing Date, to take,
or cause to be taken, all actions, and to do, or cause to be done, all things,
reasonably necessary, proper or advisable under applicable laws, regulations and
agreements to consummate and make effective the transactions contemplated by
this Agreement and the Ancillary Agreements.
Section 17. Miscellaneous.
17.1 Counterparts; Entire Agreement. (a) This Agreement and each
Ancillary Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other party.
(b) This Agreement, any Ancillary Agreements and the Schedules hereto
and thereto contain the entire agreement between the parties with respect to the
subject matter hereof, supersede all previous agreements, negotiations,
discussions, writings, understandings, commitments and conversations with
respect to such subject matter and there are no agreements or understandings
between the parties other than those set forth or referred to herein or therein.
17.2 Governing Law. This Agreement and each Ancillary Agreement shall
be governed by and construed and interpreted in accordance with the laws of the
State of New York, irrespective of the choice of laws principles of the State of
New York, as to all matters, including matters of validity, construction,
effect, enforceability, performance and remedies.
17.3 Assignability. This Agreement and each Ancillary Agreement shall
be binding upon and inure to the benefit of the parties to such agreements,
respectively, and their respective successors and assigns; provided, however,
that no party may assign its respective rights or delegate its respective
obligations under this Agreement or any Ancillary Agreement without the express
prior written consent of the other parties.
17.4 Third Party Beneficiaries. Except for the indemnification rights
under this Agreement of any Parent Indemnitee or ABNH Indemnitee in their
respective capacities as such, (a) the provisions of this Agreement and each
Ancillary Agreement are solely for the benefit of the parties and are not
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intended to confer upon any Person except the parties any rights or remedies
under this Agreement, and (b) there are no third party beneficiaries of this
Agreement or any Ancillary Agreement and neither this Agreement nor any
Ancillary Agreement shall provide any third person with any remedy, claim,
liability, reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement or any Ancillary Agreement.
17.5 Notices. All notices or other communications under this Agreement
or any Ancillary Agreement shall be in writing and shall be deemed to be duly
given when (a) delivered in person or (b) deposited in the United States mail or
private express mail, postage prepaid, addressed as follows:
If to Parent, to: Secretary
American Banknote Corporation
200 Park Avenue
New York, NY 10166
If to ABNH, to: Secretary
American Bank Note
Holographics, Inc.
399 Executive Boulevard
Elmsford, NY 10523
Any party may, by notice to the other party, change the address to which such
notices are to be given.
17.6 Severability. If any provision of this Agreement or any Ancillary
Agreement or its application to any Person or circumstance is determined by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions of such agreement, or the application of such provision to
Persons or circumstances or in jurisdictions other than those as to which it has
been held invalid or unenforceable, shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, so long as the economic or
legal substance of the transactions contemplated by such agreement, as the case
may be, is not affected in any manner adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to effect the original intent of
the parties.
17.7 Force Majeure. No party shall be deemed in default of this
Agreement or any Ancillary Agreement to the extent that any delay or failure in
the performance of its obligations under this Agreement or any Ancillary
Agreement results from any cause beyond its reasonable control and without its
fault or negligence, such as acts of God, acts of civil or military authority,
embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes,
floods, unusually severe weather conditions, labor problems or unavailability of
parts, or, in the case of computer systems, any failure in
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electrical or air conditioning equipment. In the event of any such excused
delay, the time for performance shall be extended for a period equal to the time
lost by reason of the delay.
17.8 Publicity; Expenses. Prior to the Closing Date, each of ABNH and
Parent shall consult with each other prior to issuing any press releases or
otherwise making public statements with respect to the IPO, the Separation or
any of the other transactions contemplated hereby. All expenses of ABNH and
Parent incurred in connection with the implementation of the IPO and the
Separation shall be for the account of ABNH, except for expenses incurred by
Parent in connection with the Separation and Underwriters' commission for the
shares of ABNH Common Stock to be sold in the IPO which shall be for the account
of Parent. Notwithstanding the provisions of the foregoing sentence and of
Section 11.2(i), Parent shall pay all SEC filing fees and legal, accounting,
printing and other similar out-of-pocket expenses directly relating to ABNH's
participation in the completion of the IPO; provided however, that in the event
the Underwriters exercise their over-allotment option to purchase Common Stock
from ABNH, such expenses shall be allocated in such amounts and percentages as
the parties shall agree.
17.9 Waivers of Default. Waiver by any party of any default by the
other party of any provision of this Agreement or any Ancillary Agreement shall
not be deemed a waiver by the waiving party of any subsequent or other default,
nor shall it prejudice the rights of the other party.
17.10 Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement or any Ancillary Agreement, the party or parties who are or are to be
aggrieved shall have the right to specific performance and injunctive or other
equitable relief of its rights under this Agreement or such Ancillary Agreement,
in addition to any and all other rights and remedies at law or in equity, and
all such rights and remedies shall be cumulative. The parties agree that the
remedies at law for any breach or threatened breach, including monetary damages,
are inadequate compensation for any loss and that any defense in any action for
specific performance that a remedy at law would be adequate is waived. Any
requirements for the securing or posting of any bond with such remedy are
waived.
17.11 Amendments. No provision of this Agreement or any Ancillary
Agreement shall be deemed waived, amended, supplemented or modified by any
party, unless such waiver, amendment, supplement or modification is in writing
and signed by the authorized representative of the party against whom it is
sought to enforce such waiver, amendment, supplement or modification.
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IN WITNESS WHEREOF, each of the parties has caused this Separation
Agreement to be duly executed by its duly authorized officer as of the day and
year first written above.
AMERICAN BANKNOTE CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
AMERICAN BANK NOTE HOLOGRAPHICS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
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Exhibit 10.2
13,636,000 SHARES
AMERICAN BANK NOTE
HOLOGRAPHICS, INC.
COMMON STOCK
FORM OF
UNDERWRITING AGREEMENT
DATED JUNE __, 1998
TABLE OF CONTENTS
SECTION 1. REPRESENTATIONS AND WARRANTIES................................... 2
A. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SELLING STOCKHOLDER.................................................... 2
(a) Compliance with Registration Requirements.......................... 2
(b) Offering Materials Furnished to Underwriters........................ 3
(c) Distribution of Offering Material by the Company.................... 3
(d) The Underwriting Agreement.......................................... 3
(e) Authorization of the Common Shares.................................. 3
(f) No Applicable Registration or Other Similar Rights.................. 3
(g) No Material Adverse Change.......................................... 4
(h) Independent Accountants............................................. 4
(I) Preparation of the Financial Statements............................. 4
(j) Incorporation and Good Standing of the Company and its Subsidiaries. 5
(k) Capitalization and Other Capital Stock Matters...................... 5
(l) Stock Exchange Listing.............................................. 5
(m) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required................................ 5
(n) No Material Actions or Proceedings.................................. 6
(o) Intellectual Property Rights........................................ 6
(p) All Necessary Permits, etc.......................................... 7
(q) Title to Properties................................................. 7
(r) Tax Law Compliance.................................................. 7
(s) Company Not an "Investment Company"................................. 7
(t) Insurance........................................................... 8
(u) No Price Stabilization or Manipulation.............................. 8
(v) Related Party Transactions.......................................... 8
(w) Contracts Described................................................. 8
(x) Compliance with Environmental Laws.................................. 8
(y) ERISA Compliance.................................................... 9
(z) No Unlawful Contributions or Other Payments.........................10
(aa) Compliance with Cuba Act..........................................10
(bb) Company's Accounting System........................................10
B. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDER....10
(a) Incorporation and Good Standing of the Selling Stockholder..........10
(b) The Underwriting Agreement..........................................10
(c) Title to Common Shares to be Sold; All Authorizations Obtained......10
(d) Delivery of the Common Shares to be Sold............................11
(e) Non-Contravention; No Further Authorizations or Approvals Required..11
(f) No Registration or Other Similar Rights.............................11
(g) No Further Consents, etc............................................11
(h) Disclosure Made by the Selling Stockholder in the Prospectus........12
(I) No Price Stabilization or Manipulation..............................12
(j) Sale of Common Stock................................................12
(k) Statements by the Selling Stockholder...............................12
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES.................12
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(a) The Firm Common Shares..............................................12
(b) The First Closing Date..............................................13
(c) The Optional Common Shares; the Second Closing Date.................13
(d) Public Offering of the Common Shares................................14
(e) Payment for the Common Shares.......................................14
(f) Delivery of the Common Shares.......................................14
(g) Delivery of Prospectus to the Underwriters..........................15
SECTION 3. ADDITIONAL COVENANTS.............................................15
A. COVENANTS OF THE COMPANY................................................15
(a) Representatives' Review of Proposed Amendments and Supplements......15
(b) Securities Act Compliance...........................................15
(c) Amendments and Supplements to the Prospectus and
Other Securities Act Matters.....................................16
(d) Copies of any Amendments and Supplements to the Prospectus..........16
(e) Blue Sky Compliance.................................................16
(f) Use of Proceeds.....................................................17
(g) Transfer Agent......................................................17
(h) Earnings Statement..................................................17
(I) Periodic Reporting Obligations......................................17
(j) Agreement Not To Offer or Sell Additional Securities................17
(k) Future Reports to the Representatives...............................18
B. COVENANTS OF THE SELLING STOCKHOLDER....................................18
(a) Delivery of Form W8.................................................18
(b) Use of Proceeds.....................................................18
SECTION 4. PAYMENT OF EXPENSES..............................................18
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS................19
(a) Accountants' Comfort Letter.........................................20
(b) Compliance with Registration Requirements; No Stop Order;
Additional Information
Requests Complies With; No Objection from NASD......................20
(c) No Material Adverse Change..........................................20
(d) Opinion of Counsel for the Company..................................20
(e) Opinion of Counsel for the Underwriters.............................21
(f) Officers' Certificate...............................................21
(g) Bring-down Comfort Letter...........................................21
(h) Lock-Up Agreement from Certain Stockholders of the Company..........21
(I) Listing of Common Shares on New York Stock Exchange.................22
(j) Opinion of Counsel for the Selling Stockholder......................22
(k) Selling Stockholder Certificate.....................................22
(l) Company and Selling Stockholder Documents...........................22
(m) Additional Documents................................................22
SECTION 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES..........................23
SECTION 7. EFFECTIVENESS OF THIS AGREEMENT..................................23
SECTION 8. INDEMNIFICATION..................................................23
(a) Indemnification of the Underwriters.................................23
(b) Indemnification of the Company, its Directors and Officers..........24
(c) Notifications and Other Indemnification Procedures..................25
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(d) Settlements........................................................ 26
SECTION 9. CONTRIBUTION..................................................... 26
SECTION 10. DEFAULT OF ONE OR MORE OF THE SEVERAL UNDERWRITERS............. 28
SECTION 11. TERMINATION OF THIS AGREEMENT.................................. 28
SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY............ 29
SECTION 13. NOTICES........................................................ 29
SECTION 14. SUCCESSORS..................................................... 30
SECTION 15. PARTIAL UNENFORCEABILITY....................................... 30
SECTION 16. GOVERNING LAW PROVISIONS....................................... 30
SECTION 17. GENERAL PROVISIONS............................................. 30
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UNDERWRITING AGREEMENT
June __, 1998
NATIONSBANC MONTGOMERY SECURITIES LLC
LAZARD FRERES & CO. LLC
RAYMOND JAMES & ASSOCIATES, INC.
SMITH BARNEY INC.
As Representatives of the several Underwriters
c/o NATIONSBANC MONTGOMERY SECURITIES LLC
600 Montgomery Street
San Francisco, California 94111
Ladies and Gentlemen:
INTRODUCTORY. American Bank Note Corporation, a Delaware corporation
(referred to herein as the "Selling Stockholder"), the sole stockholder of
American Bank Note Holographics, Inc., a Delaware Corporation (the "Company"),
proposes to sell to the several underwriters named in Schedule A (the
"Underwriters") an aggregate of 13,636,000 shares of common stock, par value
$.01 per share (the "Common Stock") of the Company. The 13,636,000 shares of
Common Stock to be sold by the Selling Stockholder are called the "Firm Common
Shares". In addition, the Company has granted to the Underwriters an option to
purchase up to an additional 2,045,400 shares (the "Optional Common Shares") of
Common Stock, as provided in Section 2. The Firm Common Shares and, if and to
the extent such option is exercised, the Optional Common Shares are collectively
called the "Common Shares." NationsBanc Montgomery Securities LLC ("NMS"),
Lazard Freres & Co. LLC, Raymond James & Associates Inc. and Smith Barney Inc.
and have agreed to act as representatives of the several Underwriters (in such
capacity, the "Representatives") in connection with the offering and sale of the
Common Shares.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (File No.
333-51845), which contains a form of prospectus to be used in connection with
the public offering and sale of the Common Shares. Such registration statement,
as amended, including the financial statements, exhibits and schedules thereto,
in the form in which it was declared effective by the Commission under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Securities Act"), including any information
deemed to be a part thereof at the time of effectiveness pursuant to Rule 430
aor Rule 434 under the Securities Act, is called the "Registration Statement".
Any registration statement filed by the Company pursuant to Rule 462(b) under
the Securities Act is called the "Rule 462(b) Registration Statement", and from
and after the date and time of filing of the Rule 462(b) Registration Statement
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. Such prospectus, in the form first used by the Underwriters to
confirm sales of the Common Shares, is called the "Prospectus"; provided,
however, if the Company has, with the consent of NMS, elected to rely upon Rule
434 under the Securities Act, the term "Prospectus" shall mean the Company's
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prospectus subject to completion (each, a "preliminary prospectus") dated ___
(such preliminary prospectus is called the "Rule 434 preliminary prospectus"),
together with the applicable term sheet (the "Term Sheet") prepared and filed by
the Company with the Commission under Rules 434 and 424(b) under the Securities
Act and all references in this Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. All references in this Agreement to the
Registration Statement, the Rule 462(b) Registration Statement, a preliminary
prospectus, the Prospectus or the Term Sheet, or any amendments or supplements
to any of the foregoing, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("EDGAR").
The Company, the Selling Stockholder and the Underwriters hereby
confirm their respective agreements as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES
A. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDER. Each of the Company and the Selling Stockholder hereby, jointly and
severally, represent warrant and covenant to each Underwriter as follows:
(a) Compliance with Registration Requirements. The Registration
Statement and any Rule 462(b) Registration Statement have been declared
effective by the Commission under the Securities Act. The Company has
complied with all requests of the Commission for additional or supplemental
information. No stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement is in effect and no
proceedings for such purpose have been instituted or are pending or, to the
best knowledge of the Company, are contemplated or threatened by the
Commission.
Each preliminary prospectus and the Prospectus when filed complied
in all material respects with the Securities Act and, if filed by
electronic transmission pursuant to EDGAR (except as may be permitted by
Regulation S-T under the Securities Act), was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale
of the Common Shares. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the
time it became effective and at all subsequent times, complied and will
comply in all material respects with the Securities Act and did not and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as amended or
supplemented, as of its date and at all subsequent times, did not and will
not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
representations and warranties set forth in the two immediately preceding
sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements
thereto, made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by the
Representatives expressly for use therein. There are no contracts or other
documents required to be described in the
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Prospectus or to be filed as exhibits to the Registration Statement which
have not been described or filed as required.
(b) Offering Materials Furnished to Underwriters. The Company has
delivered to the Representatives four complete manually signed copies of
the Registration Statement and of each consent and certificate of experts
filed as a part thereof, and conformed copies of the Registration Statement
(without exhibits) and preliminary prospectuses and the Prospectus, as
amended or supplemented, in such quantities and at such places as the
Representatives have reasonably requested for each of the Underwriters.
(c) Distribution of Offering Material by the Company. Neither the
Company nor the Selling Stockholder has distributed and will not
distribute, prior to the later of the Second Closing Date (as defined
below) and the completion of the Underwriters' distribution of the Common
Shares, any offering material in connection with the offering and sale of
the Common Shares other than a preliminary prospectus, the Prospectus or
the Registration Statement.
(d) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, except as rights
to indemnification hereunder may be limited by applicable law and except as
the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors or by general equitable principles.
(e) Authorization of the Common Shares. The Common Shares to be sold to
the Underwriters by the Selling Stockholders, are duly authorized, validly
issued and are fully paid and nonassessable. The Common Shares to be sold
to the Underwriters by the Company, if any, pursuant to the option granted
in Section 2 of this Agreement, have been duly authorized for issuance and
sale pursuant to this Agreement, and, when delivered by the Company
pursuant to this Agreement, will be validly issued, fully paid and
nonassessable.
(f) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or
debt securities registered for sale under the Registration Statement or
included in the offering contemplated by this Agreement, other than the
Selling Stockholder with respect to the Common Shares included in the
Registration Statement, except for such rights as have been duly waived.
(g) No Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates as of which information is
given in the Prospectus: (I) there has been no material adverse change, or
any development that could reasonably be expected to result in a material
adverse change, in the condition, financial or otherwise, or in the
earnings, business, operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity (any such change is called a
"Material Adverse Change"); (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability or
obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except
for dividends paid to the Company or other subsidiaries, any of its
subsidiaries on any class of capital stock or repurchase or redemption by
the Company or any of its subsidiaries of any class of capital stock.
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(h) Independent Accountants. Deloitte & Touche LLP, who have expressed
their opinion with respect to the financial statements (which term as used
in this Agreement includes the related notes thereto) and supporting
schedules filed with the Commission as a part of the Registration Statement
and included in the Prospectus, are independent public or certified public
accountants as required by the Securities Act.
<PAGE>
(i) Preparation of the Financial Statements. The financial statements
filed with the Commission as a part of the Registration Statement and
included in the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as of and at the dates
indicated and the results of their operations and cash flows for the
periods specified. The supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
Such financial statements and supporting schedules have been prepared in
conformity with generally accepted accounting principles as applied in the
United States applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes thereto.
No other financial statements or supporting schedules are required to be
included in the Registration Statement. The financial data set forth in the
Prospectus under the captions "Prospectus Summary--Summary Historical
Financial Data", "Selected Historical Financial Data" and "Capitalization"
fairly present the information set forth therein on a basis consistent with
that of the audited financial statements contained in the Registration
Statement. The pro forma financial statements of the Company and its
subsidiaries and the related notes thereto included under the caption
"Prospectus Summary - Selected Historical and Pro Forma Financial Data",
"Selected Historical and Pro Forma Financial Data" and elsewhere in the
Prospectus and in the Registration Statement present fairly the information
contained therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements and
have been properly presented on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(j) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and, in the case of the
Company, to enter into and
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perform its obligations under this Agreement. The Company and each
subsidiary is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. All of the issued and
outstanding capital stock of each subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim. The Company does
not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 22i to the
Registration Statement.
(k) Capitalization and Other Capital Stock Matters. The authorized,
issued and outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" (other than for subsequent
issuances, if any, pursuant to employee benefit plans described in the
Prospectus or upon exercise of outstanding options described in the
Prospectus). The Common Stock (including the Common Shares) conforms in all
material respects to the description thereof contained in the Prospectus.
All of the issued and outstanding shares of Common Stock (including the
shares of Common stock owned by Selling Stockholder) have been duly
authorized and validly issued, are fully paid and nonassessable and have
been issued in compliance with federal and state securities laws. None of
the outstanding shares of Common Stock were issued in violation of any
preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights of
first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock of
the Company or any of its subsidiaries other than those accurately
described in the Prospectus. The description of the Company's stock option,
stock bonus and other stock plans or arrangements, and the options or other
rights granted thereunder, set forth in the Prospectus accurately and
fairly presents the information required to be shown with respect to such
plans, arrangements, options and rights.
(l) Stock Exchange Listing. The Common Shares have been approved for
listing on the New York Stock Exchange, subject only to official notice of
issuance.
(m) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or is in default
(or, with the giving of notice or lapse of time, would be in default)
("Default") under any indenture, mortgage, loan or credit agreement, note,
contract, franchise, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be bound
(including, without limitation, the Company's $30,000,000 Credit Facility,
dated _______, 1998, with The Chase Manhattan Bank (formerly Chemical Bank,
N.A.), as lender), or to which any of the property or assets of the Company
or any of its subsidiaries is subject (each, an "Existing Instrument"),
except for such Defaults as would not, individually or in the aggregate,
result in a Material Adverse
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<PAGE>
Change. The Company's execution, delivery and performance of this Agreement
and consummation of the transactions contemplated hereby and by the
Prospectus (I) have been duly authorized by all necessary corporate action
and will not result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary, (ii) will not conflict with or
constitute a breach of, or Default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, or require the
consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as would not,
individually or in the aggregate, result in a Material Adverse Change and
(iii) will not result in any violation of any law, administrative
regulation or administrative or court decree applicable to the Company or
any subsidiary. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency, is required for the Company's execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby and by the Prospectus, except such as have been
obtained or made by the Company and are in full force and effect under the
Securities Act, under applicable state securities or blue sky laws and from
the NASD Regulation, Inc. (the "NASD").
(n) No Material Actions or Proceedings. Except as otherwise disclosed
in the Prospectus, there are no legal or governmental actions, suits or
proceedings pending or, to the best of the Company's and the Selling
Stockholder's knowledge, threatened (I) against or affecting the Company or
any of its subsidiaries, (ii) which has as the subject thereof any officer
or director of, or property owned or leased by, the Company or any of its
subsidiaries or (iii) relating to environmental or discrimination matters,
where in any such case (A) there is a reasonable possibility that such
action, suit or proceeding might be determined adversely to the Company or
such subsidiary and (B) any such action, suit or proceeding, if so
determined adversely, would reasonably be expected to result in a Material
Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement. No material labor dispute with the
employees of the Company or any of its subsidiaries, or with the employees
of any principal supplier of the Company, exists or, to the best of the
Company's knowledge, is threatened or imminent.
(o) Intellectual Property Rights. Except as otherwise disclosed in the
Prospectus, the Company and its subsidiaries own or possess sufficient
trademarks, trade names, patent rights, copyrights, licenses, approvals,
trade secrets and other similar rights (collectively, "Intellectual
Property Rights") reasonably necessary to conduct their businesses as now
conducted; and the expected expiration of any of such Intellectual Property
Rights will not result in a Material Adverse Change. Neither the Company
nor any of its subsidiaries has received any notice of infringement or
conflict with asserted Intellectual Property Rights of others, which
infringement or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Change.
(p) All Necessary Permits, etc. The Company and each subsidiary possess
such valid and current certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, as presently conducted,
and neither the Company nor any subsidiary has received any notice of
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<PAGE>
proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could result in a Material Adverse Change.
(q) Title to Properties. The Company and each of its subsidiaries has
good and marketable title to all the properties and assets reflected as
owned in the financial statements referred to in Section 1(I) above (or
elsewhere in the Prospectus), in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect the value of
such property and do not materially interfere with the use made or proposed
to be made of such property by the Company or such subsidiary. The real
property, improvements, equipment and personal property held under lease by
the Company or any subsidiary are held under valid and enforceable leases,
with such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such real property,
improvements, equipment or personal property by the Company or such
subsidiary.
(r) Tax Law Compliance. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns or
have properly requested extensions thereof and have paid all taxes required
to be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them except as may be
being contested in good faith and by appropriate proceedings. The Company
has made adequate charges, accruals and reserves in the applicable
financial statements referred to in Section 1(I) above in respect of all
federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not
been finally determined.
(s) Company Not an "Investment Company". The Company is not, and after
giving effect to the offering and sale of the Common Shares will not be, an
"investment company" within the meaning of Investment Company Act of 1940
and will conduct its business in a manner so that it will not become
subject to the Investment Company Act of 1940.
(t) Insurance. Each of the Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with policies in
such amounts and with such deductibles and covering such risks as are
generally deemed adequate and customary for their businesses including, but
not limited to, policies covering real and personal property owned or
leased by the Company and its subsidiaries against theft, damage,
destruction, acts of vandalism and earthquakes. The Company has no reason
to believe that it or any subsidiary will not be able (I) to renew its
existing insurance coverage as and when such policies expire or (ii) to
obtain comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that
would not result in a Material Adverse Change. Neither of the Company nor
any subsidiary has been denied any insurance coverage which it has sought
or for which it has applied.
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<PAGE>
(u) No Price Stabilization or Manipulation. The Company has not taken
and will not take, directly or indirectly, any action designed to or that
might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or
resale of the Common Shares.
(v) Related Party Transactions. There are no business relationships or
related-party transactions involving the Company or any subsidiary or any
other person (including the Selling Stockholder) required to be described
in the Prospectus which have not been described as required.
(w) Contracts Described. There are no Existing Instruments required to
be described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed
or incorporated by reference as exhibits thereto; and the descriptions
thereof and references thereto are correct in all material respects.
(x) Compliance with Environmental Laws. Except as would not,
individually or in the aggregate, result in a Material Adverse Change (I)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign law or regulation relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including without limitation, laws and
regulations relating to emissions, discharges, releases or threatened
releases of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum and petroleum products (collectively,
"Materials of Environmental Concern"), or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its
subsidiaries under applicable Environmental Laws, or noncompliance with the
terms and conditions thereof, nor has the Company or any of its
subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that alleges
that the Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of action filed
with a court or governmental authority, no investigation with respect to
which the Company has received written notice, and no written notice by any
person or entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys' fees or penalties arising
out of, based on or resulting from the presence, or release into the
environment, of any Material of Environmental Concern at any location
owned, leased or operated by the Company or any of its subsidiaries, now or
in the past (collectively, "Environmental Claims"), pending or, to the best
of the Company's and the Selling Stockholder's knowledge, threatened
against the Company or any of its subsidiaries or any person or entity
whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation
of law; and (iii) to the best of the Company's knowledge, there are no past
or present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release,
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<PAGE>
emission, discharge, presence or disposal of any Material of Environmental
Concern, that reasonably could result in a violation of any Environmental
Law or form the basis of a potential Environmental Claim against the
Company or any of its subsidiaries or against any person or entity whose
liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation
of law.
(y) ERISA Compliance. Except as otherwise disclosed in the Prospectus,
the Company and its subsidiaries and any "employee benefit plan" (as
defined under the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in
compliance in all material respects with ERISA. "ERISA Affiliate" means,
with respect to the Company or a subsidiary, any member of any group of
organizations described in Sections 414(b),(c),(m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such
subsidiary is a member. No "reportable event" (as defined under ERISA) has
occurred or is reasonably expected to occur with respect to any "employee
benefit plan" established or maintained by the Company, its subsidiaries or
any of their ERISA Affiliates. No "employee benefit plan" established or
maintained by the Company, its subsidiaries or any of their ERIAS
Affiliates, if such "employee benefit plan" were terminated, would have
any "amount of unfunded benefit liabilities" (as defined under ERISA).
Neither the Company, its subsidiaries nor any of their ERISA Affiliates has
incurred or reasonably expects to incur any liability under (I) Title IV of
ERISA with respect to termination of, or withdrawal from, any "employee
benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or failure to act, which would cause the loss
of such qualification.
(z) No Unlawful Contributions or Other Payments. Neither the Company
nor any of its subsidiaries nor, to the best of the Company's and the
Selling Stockholder's knowledge, any employee or agent of the Company or
any such subsidiary, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in
violation of any law or of the character required to be disclosed in the
Prospectus.
(aa) Compliance with Cuba Act. The Company has complied with, and is
and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
or is exempt therefrom.
(bb) Company's Accounting System. The Company maintains a system of
accounting controls sufficient to provide reasonable assurance that (I)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
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generally accepted accounting principles as applied in the United States
and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
B. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE SELLING
STOCKHOLDER. In addition to the representations, warranties and covenants set
forth in Section 1(A), the Selling Stockholder hereby represents, warrants and
covenants to each Underwriter as follows:
(a) Incorporation and Good Standing of the Selling Stockholder. The
Selling Stockholder has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement.
(b) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement
of, the Selling Stockholder, enforceable in accordance with its terms,
except as rights to indemnification hereunder may be limited by applicable
law and except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles.
(c) Title to Common Shares to be Sold; All Authorizations Obtained. The
Selling Stockholder has, and on the First Closing Date (as defined below)
will have, good and valid title to all of the Common Shares which may be
sold by the Selling Stockholder pursuant to this Agreement on such date and
the legal right and power, and all authorizations and approvals required by
law and under its charter or by-laws, to enter into this Agreement, to
sell, transfer and deliver all of the Common Shares which may be sold by
the Selling Stockholder pursuant to this Agreement and to comply with the
Selling Stockholder's other obligations hereunder and thereunder.
(d) Delivery of the Common Shares to be Sold. Delivery of the Common
Shares which are sold by the Selling Stockholder pursuant to this Agreement
will pass good and valid title to such Common Shares, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or other claim.
(e) Non-Contravention; No Further Authorizations or Approvals Required.
The execution and delivery by the Selling Stockholder of, and the
performance by the Selling Stockholder of the Selling Stockholder's
obligations under, this Agreement will not contravene or conflict with,
result in a breach of, or constitute a Default under, or require the
consent of any other party to, its charter or by-laws or any other
agreement or instrument to which the Selling Stockholder is a party or by
which the Selling Stockholder is bound or under which the Selling
Stockholder is entitled to any right or benefit, any provision of
applicable law or any judgment, order, decree or regulation applicable to
the Selling
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<PAGE>
Stockholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Selling
Stockholder, except for such contraventions, conflicts, breaches and
defaults which would not, and in the case of required consents the failure
of which to obtain would not, individually or in the aggregate, result in a
Material Adverse Change. No consent, approval, authorization or other order
of, or registration or filing with, any court or other governmental
authority or agency, is required for the consummation by the Selling
Stockholder of the transactions contemplated in this Agreement, except such
as have been obtained or made or are required under the Securities Act,
under applicable state or blue sky laws and from the NASD, and to the
extent obtained or made, are in full force and effect under the Securities
Act, under applicable state securities or blue sky laws and from the NASD.
(f) No Registration or Other Similar Rights. The Selling Stockholder
does not have any registration or other similar rights to have any equity
or debt securities registered for sale by the Company under the
Registration Statement or included in the offering contemplated by this
Agreement, except with respect to the Common Shares being registered under
the Registration Statement.
(g) No Further Consents, etc. No consent, approval or waiver is
required under any instrument or agreement to which the Selling Stockholder
is a party or by which the Selling Stockholder is bound or under which the
Selling Stockholder is entitled to any right or benefit, in connection with
the offering, sale or purchase by the Underwriters of any of the Common
Shares which may be sold by the Selling Stockholder under this Agreement or
for the consummation by the Selling Stockholder of any of the other
transactions contemplated hereby.
(h) Disclosure Made by the Selling Stockholder in the Prospectus. All
information furnished by or on behalf of the Selling Stockholder in writing
expressly for use in the Registration Statement and Prospectus is, and on
the First Closing Date will be, true, correct, and complete in all material
respects, and does not, and on the First Closing Date will not, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make such information not misleading. The Selling Stockholder
confirms as accurate the number of shares of Common Stock set forth
opposite the Selling Stockholder's name in the Prospectus under the caption
"Principal and Selling Stockholders" (both prior to and after giving effect
to the sale of the Common Shares).
(i) No Price Stabilization or Manipulation. The Selling Stockholder has
not taken and will not take, directly or indirectly, any action designed to
or that might be reasonably expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Common Shares.
(j) Sale of Common Stock. The Selling Stockholder is not prompted to
sell shares of Common Stock by any information concerning the Company which
is not set forth in the Registration Statement and the Prospectus.
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(k) Statements by the Selling Stockholder. To the extent that any
statements or omissions made in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement thereto are made
in reliance upon and in conformity with written information furnished to
the Company by the Selling Stockholder expressly for use therein, such
preliminary prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus will, when they become effective or are filed
with the Commission, as the case may be, conform in all material respects
to the requirements of the Securities Act and not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading.
Any certificate signed by or on behalf of the Selling Stockholder
and delivered to the Underwriters or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Selling Stockholder to each
Underwriter as to the matters covered thereby.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES
(a) The Firm Common Shares . Upon the terms herein set forth, the
Selling Stockholder agrees to sell to the several Underwriters an aggregate
of 13,636,000 Firm Common Shares. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but subject
to the conditions herein set forth, the Underwriters agree, severally and
not jointly, to purchase from the Selling Stockholder the Firm Common
Shares. The purchase price per Firm Common Share to be paid by the several
Underwriters to the Selling Stockholder shall be $___ per share.
(b) The First Closing Date. Delivery of certificates for the Firm
Common Shares to be purchased by the Underwriters and payment therefor
shall be made at the offices of NMS, 600 Montgomery Street, San Francisco,
California (or such other place as may be agreed to by the Selling
Stockholder and the Representatives) at 6:00 a.m. San Francisco time, on
___, or such other time and date not later than 10:30 a.m. San Francisco
time, on ___(1) as the Representatives shall designate by notice to the
Selling Stockholder (the time and date of such closing are called the
"First Closing Date"). The Company and the Selling Stockholder hereby
acknowledge that circumstances under which the Representatives may provide
notice to postpone the First Closing Date as originally scheduled include,
but are in no way limited to, any determination by the Company, the Selling
Stockholder or the Representatives to recirculate to the public copies of
an amended or supplemented Prospectus or a delay as contemplated by the
provisions of Section 10.
(c) The Optional Common Shares; the Second Closing Date. In addition,
on the basis of the representations, warranties and agreements herein
contained, and upon the terms but
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(1) Insert a date ten business days following the original contemplated
First Closing Date.
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<PAGE>
subject to the conditions herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly,
up to an aggregate of 2,045,400 Optional Common Shares from the Company at
the purchase price per share to be paid by the Underwriters for the Firm
Common Shares. The option granted hereunder is for use by the Underwriters
solely in covering any over-allotments in connection with the sale and
distribution of the Firm Common Shares. The option granted hereunder may be
exercised at any time (but not more than once) upon notice by the
Representatives to the Company, which notice may be given at any time
within 30 days from the date of this Agreement. Such notice shall set forth
(I) the aggregate number of Optional Common Shares as to which the
Underwriters are exercising the option, (ii) the names and denominations in
which the certificates for the Optional Common Shares are to be registered
and (iii) the time, date and place at which such certificates will be
delivered (which time and date may be simultaneous with, but not earlier
than, the First Closing Date; and in such case the term "First Closing
Date" shall refer to the time and date of delivery of certificates for the
Firm Common Shares and the Optional Common Shares ). Such time and date of
delivery, if subsequent to the First Closing Date, is called the "Second
Closing Date" and shall be determined by the Representatives and shall not
be earlier than three nor later than five full business days after delivery
of such notice of exercise. If any Optional Common Shares are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of Optional Common Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that
bears the same proportion to the total number of Optional Common Shares to
be purchased as the number of Firm Common Shares set forth on Schedule a
opposite the name of such Underwriter bears to the total number of Firm
Common Shares. The Representatives may cancel the option at any time prior
to its expiration by giving written notice of such cancellation to the
Company.
(d) Public Offering of the Common Shares . The Representatives hereby
advise the Company and the Selling Stockholder that the Underwriters intend
to offer for sale to the public, as described in the Prospectus, their
respective portions of the Common Shares as soon after this Agreement has
been executed and the Registration Statement has been declared effective as
the Representatives, in their sole judgment, have determined is advisable
and practicable.
(e) Payment for the Common Shares. Payment for the Common Shares to be
sold by the Selling Stockholder shall be made at the First Closing Date by
wire transfer of immediately available funds to the order of the Selling
Stockholder. Payment for the Common Shares to be sold by the Company shall
be made, if applicable, at the First Closing Date or the Second Closing
Date, as the case may be, by wire transfer of immediately available funds
to the order of the Company.
It is understood that the Representatives have been authorized, for
their own accounts and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for,
the Firm Common Shares and any Optional Common Shares the Underwriters have
agreed to purchase. NMS, individually and not as a Representative of the
Underwriters, may (but shall not be obligated to) make payment for any
Common Shares to be purchased by any Underwriter whose funds shall not have
been
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<PAGE>
received by the Representatives by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter, but
any such payment shall not relieve such Underwriter from any of its
obligations under this Agreement.
The Selling Stockholder hereby agrees that such Selling
Stockholder will pay all stock transfer taxes, stamp duties and other
similar taxes, if any, payable upon the sale or delivery of the Common
Shares to be sold by such Selling Stockholder to the several Underwriters,
or otherwise in connection with the performance of such Selling
Stockholder's obligations hereunder.
(f) Delivery of the Common Shares. The Selling Stockholder shall
deliver, or cause to be delivered, to the Representatives for the accounts
of the several Underwriters certificates for the Firm Common Shares to be
sold by them at the First Closing Date, against the irrevocable release of
a wire transfer of immediately available funds for the amount of the
purchase price therefor. The Company shall also deliver, or cause to be
delivered, to the Representatives for the accounts of the several
Underwriters, certificates for the Optional Common Shares the Underwriters
have agreed to purchase from the Company at the First Closing Date or the
Second Closing Date, as the case may be, against the irrevocable release of
a wire transfer of immediately available funds for the amount of the
purchase price therefor. The certificates for the Common Shares shall be in
definitive form and registered in such names and denominations as the
Representatives shall have requested at least two full business days prior
to the First Closing Date (or the Second Closing Date, as the case may be)
and shall be made available for inspection on the business day preceding
the First Closing Date (or the Second Closing Date, as the case may be) at
a location in New York City as the Representatives may designate. Time
shall be of the essence, and delivery at the time and place specified in
this Agreement is a further condition to the obligations of the
Underwriters.
(g) Delivery of Prospectus to the Underwriters. Not later than 12:00
p.m. on the second business day following the date the Common Shares are
released by the Underwriters for sale to the public, the Company shall
deliver or cause to be delivered copies of the Prospectus in such
quantities and at such places as the Representatives shall reasonably
request.
SECTION 3. ADDITIONAL COVENANTS
A. COVENANTS OF THE COMPANY. The Company further covenants and agrees
with each Underwriter as follows:
(a) Representatives' Review of Proposed Amendments and Supplements.
During such period beginning on the date hereof and ending on the later of
the First Closing Date or such date, as in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered
in connection with sales by an Underwriter or dealer (the "Prospectus
Delivery Period"), prior to amending or supplementing the Registration
Statement (including any registration statement filed under Rule 462(b)
under the Securities Act) or the Prospectus, the Company shall furnish to
the Representatives for review a copy of each such proposed amendment or
supplement, and the Company shall not file any such
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<PAGE>
proposed amendment or supplement to which the Representatives reasonably
object.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Representatives in writing (I) of the
receipt of any comments of, or requests for additional or supplemental
information from, the Commission, (ii) of the time and date of any filing
of any post-effective amendment to the Registration Statement or any
amendment or supplement to any preliminary prospectus or the Prospectus,
(iii) of the time and date that any post-effective amendment to the
Registration Statement becomes effective and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of any
order preventing or suspending the use of any preliminary prospectus or the
Prospectus, or of any proceedings to remove, suspend or terminate from
listing or quotation the Common Stock from any securities exchange upon
which the it is listed for trading or included or designated for quotation,
or of the threatening or initiation of any proceedings for any of such
purposes. If the Commission shall enter any such stop order at any time,
the Company will use its best efforts to obtain the lifting of such order
at the earliest possible moment. Additionally, the Company agrees that it
shall comply with the provisions of Rules 424(b), 430A and 434, as
applicable, under the Securities Act and will use its reasonable efforts to
confirm that any filings made by the Company under such Rule 424(b) were
received in a timely manner by the Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities
Act Matters. If, during the Prospectus Delivery Period, any event shall
occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if in the opinion of the Representatives or counsel for
the Underwriters it is otherwise necessary to amend or supplement the
Prospectus to comply with law, the Company agrees to promptly prepare
(subject to Section 3(A)(a) hereof), file with the Commission and furnish
at its own expense to the Underwriters and to dealers, amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The
Company agrees to furnish the Representatives, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and any
amendments and supplements thereto as the Representatives may reasonably
request.
(e) Blue Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the
Common Shares for sale under (or obtain exemptions from the application of)
the state securities or blue sky laws or Canadian provincial securities
laws of those jurisdictions designated by the Representatives, shall
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<PAGE>
comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the
Common Shares. The Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general service
of process in any such jurisdiction where it is not presently qualified or
where it would be subject to taxation as a foreign corporation. The Company
will advise the Representatives promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the
Common Shares for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its best efforts to obtain
the withdrawal thereof at the earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Common Shares sold by it in the manner described under the
caption "Use of Proceeds" in the Prospectus.
(g) Transfer Agent. The Company shall engage and maintain, at its
expense, a registrar and transfer agent for the Common Stock.
(h) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders and to the Representatives an
earnings statement (which need not be audited) covering the twelve-month
period ending [___](2) that satisfies the provisions of Section 11(a) of
the Securities Act.
(i) Periodic Reporting Obligations. During the Prospectus Delivery
Period the Company shall file, on a timely basis, with the Commission and
the New York Stock Exchange all reports and documents required to be filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(j) Agreement Not To Offer or Sell Additional Securities. During the
period of 180 days following the date of the Prospectus, the Company will
not, without the prior written consent of NMS (which consent may be
withheld at the sole discretion of NMS), directly or indirectly, sell,
offer, contract or grant any option to sell, pledge, transfer or establish
an open "put equivalent position" within the meaning of Rule 16a-1(h) under
the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the Securities Act in
respect of, any Common Stock, options or warrants to acquire shares of the
Common Stock or securities exchangeable or exercisable for or
- ----------
(2) Insert the date of the end of the Company's first quarter ending after one
year following the "effective date of the Registration Statement" (as
defined in Rule 158(c) under the Securities Act).
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<PAGE>
convertible into shares of Common Stock (other than as contemplated by this
Agreement with respect to the Common Shares); provided, however, that the
Company may issue its Common Stock or options to purchase shares of its
Common Stock, or Common Stock upon exercise of options, pursuant to any
stock option, stock bonus or other stock plan or arrangement described in
the Prospectus, but only if the holders of such shares, options, or shares
issued upon exercise of such options, agree in writing not to sell, offer,
dispose of or otherwise transfer any such shares or options during such 180
day period without the prior written consent of NMS (which consent may be
withheld at the sole discretion of the NMS).
(k) Future Reports to the Representatives. During the period of five
years hereafter the Company will furnish to the Representatives at 600
Montgomery Street, San Francisco, CA 94111 Attention: Gaurang Desai: (I) as
soon as practicable after the end of each fiscal year, copies of the Annual
Report of the Company containing the balance sheet of the Company as of the
close of such fiscal year and statements of income, stockholders' equity
and cash flows for the year then ended and the opinion thereon of the
Company's independent public or certified public accountants; (ii) as soon
as practicable after the filing thereof, copies of each proxy statement,
Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report
on Form 8-K or other report filed by the Company with the Commission, the
NASD or any securities exchange; and (iii) as soon as available, copies of
any report or communication of the Company mailed generally to holders of
its capital stock.
B. COVENANTS OF THE SELLING STOCKHOLDER. The Selling Stockholder
further covenants and agrees with each Underwriter.
(a) Agreement not to Offer or Sell Additional Securities. During the
period of 180 days following the date of the Prospectus, the Selling
Stockholder will, not, without the prior written consent of NMS (which
consent may be withheld in its sole discretion), directly or indirectly,
sell, offer, contract or grant any option to sell (including without
limitation any short sale), pledge, transfer, establish an open "put
equivalent position" within the meaning of Rule 16a-1(h) under the Exchange
Act, or otherwise dispose of any shares of Common Stock, options or
warrants to acquire shares of Common Stock, or securities exchangeable or
exercisable for or convertible into shares of Common Stock currently or
hereafter owned either of record or beneficially (as defined in Rule13d-3
under Exchange Act) by the undersigned, or publicly announce the
undersigned's intention to do any of the foregoing.
(b) Delivery of Form W8. To deliver to the Underwriters prior to the
First Closing Date a properly completed and executed United States Treasury
Department Form W-8.
(c) Use of Proceeds. The Selling Stockholder shall apply the net
proceeds from the sale of the Common Shares sold by it in the manner
described under the caption "Use of Proceeds" in the Prospectus.
NMS, on behalf of the several Underwriters, may, in its sole
discretion, waive in writing the performance by the Company or the Selling
Stockholder of any one or more of the foregoing covenants or extend the
time for their performance.
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<PAGE>
SECTION 4. PAYMENT OF EXPENSES. The Company and the Selling
Stockholder, jointly and severally, agree to pay in such proportions as
they may agree upon among themselves all costs, fees and expenses incurred
in connection with the performance of their respective obligations
hereunder and in connection with the transactions contemplated hereby,
including without limitation (I) all expenses incident to the issuance and
delivery of the Common Shares (including all printing and engraving costs),
(ii) all fees and expenses of the registrar and transfer agent of the
Common Stock, (iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Common Shares to the
Underwriters, (iv) all fees and expenses of the Company's counsel,
independent public or certified public accountants and other advisors, (v)
all costs and expenses incurred in connection with the preparation,
printing, filing, shipping and distribution of the Registration Statement
(including financial statements, exhibits, schedules, consents and
certificates of experts), each preliminary prospectus and the Prospectus,
and all amendments and supplements thereto, and this Agreement, (vi) all
filing fees, attorneys' fees and expenses incurred by the Company or the
Underwriters in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of
the Common Shares for offer and sale under the state securities or blue sky
laws or the provincial securities laws of Canada, and, if requested by the
Representatives, preparing and printing a "Blue Sky Survey" or memorandum,
and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions, (vii) the filing fees
incident to, and the reasonable fees and expenses of counsel for the
Underwriters in connection with, the NASD's review and approval of the
Underwriters' participation in the offering and distribution of the Common
Shares, (viii) the fees and expenses associated with listing the Common
Stock on the New York Stock Exchange, and (ix) all other fees, costs and
expenses referred to in Item 13 of Part II of the Registration Statement.
Except as provided in this Section 4, Section 6, Section 8 and Section 9
hereof, the Underwriters shall pay their own expenses, including the fees
and disbursements of their counsel.
The Selling Stockholder further agrees with each Underwriter to pay
(directly or by reimbursement) all fees and expenses incident to the
performance of its obligations under this Agreement which are not otherwise
specifically provided for herein, including but not limited to (I) fees and
expenses of counsel and other advisors for such Selling Stockholder, and
(ii) expenses and taxes incident to the sale and delivery of the Common
Shares to be sold by such Selling Stockholder to the Underwriters hereunder
(which taxes, if any, may be deducted by the Underwriters under the
provisions of Section 2 of this Agreement).
This Section 4 shall not affect or modify any separate, valid
agreement relating to the allocation of payment of expenses between the
Company, on the one hand, and the Selling Stockholder, on the other hand.
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<PAGE>
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Common
Shares as provided herein on the First Closing Date and, with respect to
the Optional Common Shares, the Second Closing Date, shall be subject to
the accuracy of the representations and warranties on the part of the
Company and the Selling Stockholder set forth in Sections 1(A) and 1(B)
hereof as of the date hereof and as of the First Closing Date as though
then made and, with respect to the Optional Common Shares, as of the Second
Closing Date as though then made, to the timely performance by the Company
and the Selling Stockholder of their respective covenants and other
obligations hereunder, and to each of the following additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the
Representatives shall have received from Deloitte & Touche LLP, independent
public or certified public accountants for the Company, a letter dated the
date hereof addressed to the Underwriters, in form and substance
satisfactory to the Representatives, containing statements and information
of the type ordinarily included in accountant's "comfort letters" to
underwriters, delivered according to Statement of Auditing Standards No. 72
(or any successor bulletin), with respect to the audited and unaudited
financial statements and certain financial information contained in the
Registration Statement and the Prospectus (and the Representatives shall
have received an additional four conformed copies of such accountants'
letter for each of the several Underwriters).
(b) Compliance with Registration Requirements; No Stop Order;
Additional Information Requests Complies With; No Objection from NASD. For
the period from and after effectiveness of this Agreement and prior to the
First Closing Date and, with respect to the Optional Common Shares, the
Second Closing Date:
(i) the Company shall have filed the Prospectus with the
Commission (including the information required by Rule 430A under the
Securities Act) in the manner and within the time period required by
Rule 424(b) under the Securities Act; or the Company shall have filed
a post-effective amendment to the Registration Statement containing the
information required by such Rule 430A, and such post-effective
amendment shall have become effective; or, if the Company elected to
rely upon Rule 434 under the Securities Act and obtained the
Representatives' consent thereto, the Company shall have filed a Term
Sheet with the Commission in the manner and within the time period
required by such Rule 424(b);
(ii) no stop order suspending the effectiveness of the
Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in
effect and no proceedings for such purpose shall have been instituted
or threatened by the Commission;
(iii) all requests for additional information on the part of the
Commission shall have been complied with to the satisfaction of counsel
to the Underwriters; and
(iv) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
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(c) No Material Adverse Change. For the period from and after the date
of this Agreement and prior to the First Closing Date and, with respect to
the Optional Common Shares, the Second Closing Date, in the judgment of the
Representatives there shall not have occurred any Material Adverse Change.
(d) Opinion of Counsel for the Company. On each of the First Closing
Date and the Second Closing Date the Representatives shall have received
the favorable opinion of Paul, Hastings, Janofsky & Walker LLP, counsel for
the Company, dated as of such Closing Date, the form of which is attached
as Exhibit A (and the Representatives shall have received an additional
four conformed copies of such counsel's legal opinion for each of the
several Underwriters).
(e) Opinion of Counsel for the Underwriters. On each of the First
Closing Date and the Second Closing Date the Representatives shall have
received the favorable opinion of Fried, Frank, Harris, Shriver & Jacobson,
counsel for the Underwriters, dated as of such Closing Date, the form of
which is attached as Exhibit B (and the Representatives shall have received
an additional four conformed copies of such counsel's legal opinion for
each of the several Underwriters).
(f) Officers' Certificate. On each of the First Closing Date and the
Second Closing Date the Representatives shall have received a written
certificate executed by the Chief Executive Officer or President of the
Company and the Chief Financial Officer or Chief Accounting Officer of the
Company, dated as of such Closing Date, to the effect set forth in
subsection (b)(ii) of this Section 5, and further to the effect that:
(i) for the period from and after the date of this Agreement and
prior to such Closing Date, there has not occurred any Material Adverse
Change;
(ii) the representations, warranties and covenants of the Company
set forth in Section 1(A) of this Agreement are true and correct with
the same force and effect as though expressly made on and as of such
Closing Date; and
(iii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date.
(g) Bring-down Comfort Letter. On each of the First Closing Date and
the Second Closing Date the Representatives shall have received from
Deloitte & Touche LLP, independent public or certified public accountants
for the Company, a letter dated such date, in form and substance
satisfactory to the Representatives, to the effect that they reaffirm the
statements made in the letter furnished by them pursuant to subsection (a)
of this Section 5, except that the specified date referred to therein for
the carrying out of procedures shall be no more than three business days
prior to the First Closing Date or Second Closing Date, as the case may be
(and the Representatives shall have received an additional four conformed
copies of such accountants' letter for each of the several Underwriters).
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<PAGE>
(h) Lock-Up Agreement from Certain Stockholders of the Company. On the
date hereof, the Company shall have furnished to the Representatives an
agreement in the form of Exhibit C hereto from each director and officer of
the Company.
(i) Listing of Common Shares on New York Stock Exchange. The Common
Shares to be sold by the Selling Stockholder and the Company at the First
Closing Date and the Second Closing Date, respectively, shall have been
duly accepted, subject to notice of issuance, for listing on the New York
Stock Exchange.
(j) Opinion of Counsel for the Selling Stockholder. On the First
Closing Date the Underwriters shall have received the favorable opinion of
Kramer, Levin, Naftalis & Frankel, counsel for the Selling Stockholder,
dated as of the First Closing Date, the form of which is attached as
Exhibit D.
(k) Selling Stockholder Certificate. On each of the First Closing Date
and the Second Closing Date the Underwriters shall received a written
certificate executed by the Selling Stockholder, dated as of such Closing
Date, to the effect that:
(i) the representations, warranties and covenants of the Selling
Stockholder set forth in Section 1 of this Agreement are true and
correct with the same force and effect as though expressly made by the
Selling Stockholder on and as of such Closing Date; and
(ii) the Selling Stockholder has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
(l) Company and Selling Stockholder Documents. On the date hereof, the
Company and the Selling Stockholder shall have furnished for review by the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
(m) Additional Documents. On or before each of the First Closing Date
and the Second Closing Date, the Representatives and counsel for the
Underwriters shall have received such information, documents and opinions
as they may reasonably require for the purposes of enabling them to pass
upon the issuance and sale of the Common Shares as contemplated herein, or
in order to evidence the accuracy of any of the representations and
warranties, or the satisfaction of any of the conditions or agreements,
herein contained.
If any condition specified in this Section 5 is not satisfied when and
as required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the Company and the Selling Stockholder at any time
on or prior to the First Closing Date and, with respect to the Optional Common
Shares, at any time prior to the Second Closing Date, which termination shall be
without liability on the part of any party to any other party, except that
Section 4, Section 6, Section 8 and Section 9 shall at all times be effective
and shall survive such termination.
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SECTION 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If this Agreement is
terminated by the Representatives pursuant to Section 5, Section 7, Section 10
or Section 11, or if the sale to the Underwriters of the Common Shares on the
First Closing Date is not consummated because of any refusal, inability or
failure on the part of the Company or the Selling Stockholder to perform any
agreement herein or to comply with any provision hereof, the Company and the
Selling Stockholder, in such proportions as they may agree upon among
themselves, agree to reimburse the Representatives and the other Underwriters
(or such Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by the Representatives and the Underwriters in
connection with the proposed purchase and the offering and sale of the Common
Shares, including but not limited to fees and disbursements of counsel, printing
expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 7. EFFECTIVENESS OF THIS AGREEMENT. This Agreement shall not become
effective until the later of (I) the execution of this Agreement by the parties
hereto and (ii) notification by the Commission to the Company and the
Representatives of the effectiveness of the Registration Statement under the
Securities Act.
Prior to such effectiveness, this Agreement may be terminated by any
party by notice to each of the other parties hereto, and any such termination
shall be without liability on the part of (a) the Company or the Selling
Stockholder to any Underwriter, except that the Company and the Selling
Stockholder shall be obligated to reimburse the expenses of the Representatives
and the Underwriters pursuant to Sections 4 and 6 hereof, (b) of any Underwriter
to the Company or the Selling Stockholder or (c) of any party hereto to any
other party except that the provisions of Section 8 and Section 9 shall at all
times be effective and shall survive such termination.
SECTION 8. INDEMNIFICATION.
(a) Indemnification of the Underwriters . The Company and the Selling
Stockholder, jointly and severally, agree to indemnify and hold harmless
each Underwriter, its officers and employees, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act and the
Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Underwriter or such controlling person may become
subject, under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the
written consent of the Company), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based (I) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or
any amendment thereto, including any information deemed to be a part
thereof pursuant to Rule 430A or Rule 434 under the Securities Act, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading;
or (ii) upon any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; or (iii) in whole or in part upon any inaccuracy in the
representations and warranties of the Company or the Selling Stockholder
contained herein; or (iv) in whole or in part upon any
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failure of the Company or the Selling Stockholder to perform their
respective obligations hereunder or under law; or (v) any act or failure to
act or any alleged act or failure to act by any Underwriter in connection
with, or relating in any manner to, the Common Stock or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon any
matter covered by clause (I) or (ii) above, provided that neither the
Company nor the Selling Stockholder shall be liable under this clause (v)
to the extent that a court of competent jurisdiction shall have determined
by a final judgment that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Underwriter through its bad faith or willful
misconduct; and to reimburse each Underwriter and each such controlling
person for any and all expenses (including the fees and disbursements of
counsel chosen by NMS) as such expenses are reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability
or expense to the extent, but only to the extent, arising out of or based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Representatives expressly for
use in the Registration Statement, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); provided, further,
that with respect to any preliminary prospectus, the foregoing indemnity
agreement shall not inure to the benefit of any Underwriter from whom the
person asserting any loss, claim, damage, liability or expense purchased
Common Shares, or any person controlling such Underwriter, if copies of the
Prospectus were timely delivered to the Underwriter pursuant to Section 2
and a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Common Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or expense; and
provided, further, that the liability of the Selling Stockholder under the
foregoing indemnity agreement shall be limited to an amount equal to the
initial public offering price of the Common Shares sold by the Selling
Stockholder, less the underwriting discount with respect to such shares, as
set forth on the front cover page of the Prospectus. The indemnity
agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company and the Selling Stockholder may otherwise
have.
(b) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, the Selling Stockholder, each of its
directors, and each person, if any, who controls the Company or the Selling
Stockholder within the meaning of the Securities Act or the Exchange Act,
against any loss, claim, damage, liability or expense, as incurred, to
which the Company, or any such director, officer, Selling Stockholder or
controlling person may become subject, under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter),
insofar as such loss, claim, damage, liability or
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expense (or actions in respect thereof as contemplated below) arises out of
or is based upon any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or arises out of or is
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any preliminary
prospectus, the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the
Company by the Representatives expressly for use therein; and to reimburse
the Company, or any such director, officer, Selling Stockholder or
controlling person for any legal and other expense reasonably incurred by
the Company, or any such director, officer, Selling Stockholder or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The Company and the Selling Stockholder hereby acknowledge that the
only information that the Underwriters have furnished to the Company and
the Selling Stockholder expressly for use in the Registration Statement,
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) are the statements set forth (A) as the first paragraph
on the inside front cover page of the Prospectus concerning stabilization
by the Underwriters and (B) in the table in the first paragraph and as the
second, seventh and ninth paragraphs under the caption "Underwriting" in
the Prospectus; and the Underwriters confirm that such statements are
correct. The indemnity agreement set forth in this Section 8(b) shall be in
addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
for contribution or otherwise than under the indemnity agreement contained
in this Section 8 or to the extent it is not prejudiced as a proximate
result of such failure. In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly
with all other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by
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the indemnified party of counsel, the indemnifying party will not be liable
to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof unless (I) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate counsel (together
with local counsel), approved by the indemnifying party (NMS in the case of
Section 8(b) and Section 9), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action, in each of which cases the fees and expenses of counsel shall
be at the expense of the indemnifying party.
(d) Settlement. The indemnifying party under this Section 8 shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by Section 8(c) hereof, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (I) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement, compromise or consent to
the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been
a party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent includes
an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding.
SECTION 9. CONTRIBUTION If the indemnification provided for in Section 8 is
for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (I) in such proportion as is appropriate to reflect the
relative benefits received by each of the Company and the Selling Stockholder,
individually, as the case may be, on the one hand, and the Underwriters, on the
other hand, from the offering of the Common Shares pursuant to this Agreement or
(ii) if the allocation provided by clause (I) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (I) above but also the relative fault of
the Company and the Selling Stockholder, on the one hand, and the Underwriters,
on the other hand, in connection with the statements or omissions or
inaccuracies in the representations and warranties herein which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholder,
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individually, as the case may be, on the one hand, and the Underwriters, on the
other hand, in connection with the offering of the Common Shares pursuant to
this Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the Common Shares pursuant to this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholder, individually, as the case may be, and the total underwriting
discount received by the Underwriters, in each case as set forth on the front
cover page of the Prospectus (or, if Rule 434 under the Securities Act is used,
the corresponding location on the Term Sheet) bear to the aggregate initial
public offering price of the Common Shares as set forth on such cover. The
relative fault of the Company and the Selling Stockholder, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact or any such
inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company or the Selling Stockholder, on the one hand,
or the Underwriters, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 9; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8(c) for purposes of indemnification.
The Company, the Selling Stockholder and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Common Shares underwritten
by it and distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several, and not joint, in proportion to their
respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each officer and employee of an
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company with the meaning of the Securities Act and the Exchange
Act shall have the same rights to contribution as the Company.
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<PAGE>
SECTION 10. DEFAULT OF ONE OR MORE OF THE SEVERAL UNDERWRITERS. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the several Underwriters shall fail or refuse to purchase Common Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Common Shares to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportions that the number
of Firm Common Shares set forth opposite their respective names on Schedule A
bears to the aggregate number of Firm Common Shares set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as may be
specified by the Representatives with the consent of the non-defaulting
Underwriters, to purchase the Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the Underwriters shall fail or refuse to purchase Common Shares and the
aggregate number of Common Shares with respect to which such default occurs
exceeds 10% of the aggregate number of Common Shares to be purchased on such
date, and arrangements satisfactory to the Representatives and the Company for
the purchase of such Common Shares are not made within 48 hours after such
default, this Agreement shall terminate without liability of any party to any
other party except that the provisions of Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination. In
any such case either the Representatives or the Company shall have the right to
postpone the First Closing Date or the Second Closing Date, as the case may be,
but in no event for longer than seven days in order that the required changes,
if any, to the Registration Statement and the Prospectus or any other documents
or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
10. Any action taken under this Section 10 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
SECTION 11. TERMINATION OF THIS AGREEMENT. Prior to the First Closing Date
this Agreement may be terminated by the Representatives by notice given to the
Company and the Selling Stockholder if at any time (I) trading or quotation in
any of the Company's securities shall have been suspended or limited by the
Commission or by the Nasdaq Stock Market or trading in securities generally on
either the Nasdaq Stock Market or the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally
established on any of such stock exchanges by the Commission or the NASD; (ii) a
general banking moratorium shall have been declared by any of federal, New York,
Delaware or California authorities; (iii) there shall have occurred any outbreak
or escalation of national or international hostilities or any crisis or
calamity, or any change in the United States or international financial markets,
or any substantial change or development involving a prospective substantial
change in United States' or international political, financial or economic
conditions, as in the judgment of the Representatives is material and adverse
and makes it impracticable to market the Common Shares in the manner and on the
terms described in the Prospectus or to enforce contracts for the sale of
securities; (iv) in the judgment of the Representatives there shall have
occurred any Material Adverse Change; or (v) the Company shall have sustained a
loss by strike, fire, flood, earthquake, accident or other calamity of such
character as in the judgment of the Representatives may interfere materially
with the conduct of
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<PAGE>
the business and operations of the Company regardless of whether or not such
loss shall have been insured. Any termination pursuant to this Section 11 shall
be without liability on the part of (a) the Company or the Selling Stockholder
to any Underwriter, except that the Company and the Selling Stockholder shall be
obligated to reimburse the expenses of the Representatives and the Underwriters
pursuant to Sections 4 and 6 hereof, (b) any Underwriter to the Company or the
Selling Stockholder, or (c) of any party hereto to any other party except that
the provisions of Section 8 and Section 9 shall at all times be effective and
shall survive such termination.
SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholder and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
officers or directors or any controlling person, or the Selling Stockholder as
the case may be, and will survive delivery of and payment for the Common Shares
sold hereunder and any termination of this Agreement.
SECTION 13. NOTICES. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Representatives:
NationsBanc Montgomery Securities LLC
600 Montgomery Street
San Francisco, California 94111
Facsimile: 415-249-5558
Attention: Richard A. Smith
with a copy to:
NationsBanc Montgomery Securities LLC
600 Montgomery Street
San Francisco, California 94111
Facsimile: (415) 249-5553
Attention: David A. Baylor, Esq.
If to the Company:
American Bank Note Holographics, Inc.
399 Executive Boulevard
Elmsford, NY 10523
Facsimile: (212) 328-0728
Attention: Morris Weissman
If to the Selling Stockholder:
American Banknote Corporation
200 Park Avenue
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<PAGE>
New York, NY 10166
Facsimile: (212) 328-0728
Attention: Morris Weissman
Any party hereto may change the address for receipt of communications
by giving written notice to the others.
SECTION 14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 10 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and personal representatives, and no
other person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Common Shares as such from any of the
Underwriters merely by reason of such purchase.
SECTION 15. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
SECTION 16. GOVERNING LAW PROVISIONS. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE ENTIRELY PERFORMED IN SUCH STATE.
SECTION 17. GENERAL PROVISIONS. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Table of Contents and the Section headings herein are for the convenience of
the parties only and shall not affect the construction or interpretation of this
Agreement.
Each of the parties hereto acknowledges that it is a sophisticated
business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties
hereto further acknowledges that the provisions of Sections 8 and 9 hereto
fairly allocate the risks in light of the ability of the parties to investigate
the Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, any preliminary
prospectus and the Prospectus (and any amendments and supplements thereto), as
required by the Securities Act and the Exchange Act.
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<PAGE>
[Remainder of Page Intentionally Left Blank]
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company and the Selling Stockholder the
enclosed copies hereof, whereupon this instrument, along with all counterparts
hereof, shall become a binding agreement in accordance with its terms.
Very truly yours,
AMERICAN BANK NOTE HOLOGRAPHICS, INC.
By: _________________________
Name:
Title:
AMERICAN BANKNOTE CORPORATION
By: _________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted
by the Representatives in San Francisco, California as of the date first above
written.
NATIONSBANC MONTGOMERY SECURITIES LLC
LAZARD FRERES & CO. LLC
RAYMOND JAMES & ASSOCIATES, INC.
SMITH BARNEY INC.
Acting as Representatives of the several Underwriters named in the attached
Schedule A.
By: NATIONSBANC MONTGOMERY SECURITIES LLC
By: _________________________
Richard A. Smith,
Authorized Signatory
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<PAGE>
SCHEDULE
<PAGE>
NUMBER OF
FIRM COMMON SHARES
TO BE PURCHASED
UNDERWRITERS
NationsBanc Montgomery Securities LLC .............. [___]
Lazard Freres & Co. LLC ............................ [___]
Raymond James & Associates, Inc. ................... [___]
Smith Barney Inc.................................... [___]
[___] .............................................. [___]
Total...................................... [___]
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EXHIBIT A
The final opinion in draft form should be attached as Exhibit A at the time this
Agreement is executed.
Opinion of Paul, Hastings, Janofsky & Walker LLP, counsel for the
Company, to be delivered pursuant to Section 5(d) of the Underwriting Agreement.
References to the Prospectus in this Exhibit A include any supplements
thereto at the Closing Date.
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing
would not, individually or in the aggregate, result in a Material Adverse
Change.
(iv) Each significant subsidiary (as defined in Rule 405 under the
Securities Act) has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and, to the best knowledge of such counsel, is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except for
such jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a Material
Adverse Change.
(v) All of the issued and outstanding capital stock of each such
significant subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or, to the best knowledge of such counsel, any
pending or threatened claim.
(vi) The authorized, issued and outstanding capital stock of the
Company (including the Common Stock) conforms to the description thereof
set forth in the Prospectus. All of the outstanding shares of Common Stock
including the shares of Common Stock owned by Selling Stockholder have been
duly authorized and validly issued, are fully paid and nonassessable and,
to the best of such counsel's knowledge, have been
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<PAGE>
issued in compliance with the registration and qualification requirements
of federal and state securities laws. The form of certificate used to
evidence the Common Stock is in due and proper form and complies with all
applicable requirements of the charter and by-laws of the Company and the
General Corporation Law of the State of Delaware. The description of the
Company's stock option, stock bonus and other stock plans or arrangements,
and the options or other rights granted and exercised thereunder, set forth
in the Prospectus accurately and fairly presents the information required
to be shown with respect to such plans, arrangements, options and rights.
(vii) No stockholder of the Company or any other person has any
preemptive right, right of first refusal or other similar right to
subscribe for or purchase securities of the Company arising (i) by
operation of the charter or by-laws of the Company or the General
Corporation Law of the State of Delaware or (ii) to the best knowledge of
such counsel, otherwise.
(viii) The Underwriting Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the
Company, enforceable in accordance with its terms, except as rights to
indemnification thereunder may be limited by applicable law and except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(ix) The Common Shares to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale pursuant to the
Underwriting Agreement and, when issued and delivered by the Company
pursuant to the Underwriting Agreement against payment of the consideration
set forth therein, will be validly issued, fully paid and nonassessable.
(x) Each of the Registration Statement and the Rule 462(b)
Registration Statement, if any, has been declared effective by the
Commission under the Securities Act. To the best knowledge of such counsel,
no stop order suspending the effectiveness of either of the Registration
Statement or the Rule 462(b) Registration Statement, if any, has been
issued under the Securities Act and no proceedings for such purpose have
been instituted or are pending or are contemplated or threatened by the
Commission. Any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Securities Act has been made in
the manner and within the time period required by such Rule 424(b).
(xi) The Registration Statement, including any Rule 462(b)
Registration Statement, the Prospectus, and each amendment or supplement to
the Registration Statement and the Prospectus, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included or incorporated by reference therein or in
exhibits to or excluded from the Registration Statement, as to which no
opinion need be rendered) comply as to form in all material respects with
the applicable requirements of the Securities Act.
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<PAGE>
(xii) The Common Shares have been approved for listing on the New York
Stock Exchange.
(xiii) The statements (i) in the Prospectus under the captions
"Description of Capital Stock", "Management's Discussion and Analysis and
Results of Operations--Liquidity and Capital Resources", "Business--Legal
Proceedings", "Business--Trademarks and Patents", "Certain Relationships
and Related Transactions", and "Underwriting" and (ii) in Item 14 and Item
15 of the Registration Statement, insofar as such statements constitute
matters of law, summaries of legal matters, the Company's charter or by-law
provisions, documents or legal proceedings, or legal conclusions, has been
reviewed by such counsel and fairly present and summarize, in all material
respects, the matters referred to therein.
(xiv) To the best knowledge of such counsel, there are no legal or
governmental actions, suits or proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than those
disclosed therein.
(xv) To the best knowledge of such counsel, there are no Existing
Instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto; and the descriptions thereof and references thereto are correct in
all material respects.
(xvi) No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental authority or
agency, is required for the Company's execution, delivery and performance
of the Underwriting Agreement and consummation of the transactions
contemplated thereby and by the Prospectus, except as required under the
Securities Act, applicable state securities or blue sky laws and from the
NASD.
(xvii) The execution and delivery of the Underwriting Agreement by
the Company and the performance by the Company of its obligations
thereunder (other than performance by the Company of its obligations under
the indemnification section of the Underwriting Agreement, as to which no
opinion need be expressed) (i) have been duly authorized by all necessary
corporate action on the part of the Company; (ii) will not result in any
violation of the provisions of the charter or by-laws of the Company or any
subsidiary; (iii) will not constitute a breach of, or Default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, (A) the Company's $30,000,000 Credit Facility, dated
___________, 1998 with The Chase Manhattan Bank, as lender, or (B) to the
best knowledge of such counsel, any other material Existing Instrument; or
(iv) to the best knowledge of such counsel, will not result in any
violation of any law, administrative regulation or administrative or court
decree applicable to the Company or any subsidiary.
(xviii) The Company is not, and after giving effect to the offering
of the Common Shares contemplated by the Underwriting Agreement, will not
be, an "investment company" within the meaning of Investment Company Act.
-3-
<PAGE>
(xix) To the best knowledge of such counsel, there are no persons
with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included
in the offering contemplated by the Underwriting Agreement, other than the
Selling Stockholder, except for such rights as have been duly waived.
(xx) To the best knowledge of such counsel, neither the Company nor
any subsidiary is in violation of its charter or by-laws or any law,
administrative regulation or administrative or court decree applicable to
the Company or any subsidiary or is in Default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any material Existing Instrument, except in each such case for such
violations or Defaults as would not, individually or in the aggregate,
result in a Material Adverse Change.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for
the Company and with representatives of the Underwriters at which the contents
of the Registration Statement and the Prospectus, and any supplements or
amendments thereto, and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than as specified above), and
any supplements or amendments thereto, on the basis of the foregoing, nothing
has come to their attention which would lead them to believe that either the
Registration Statement or any amendments thereto, at the time the Registration
Statement or such amendments became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or at the First Closing Date or the Second Closing
Date, as the case may be, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief as to
the financial statements or schedules or other financial or statistical dat
aderived therefrom, included in the Registration Statement or the Prospectus or
any amendments or supplements thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware or the State of New York or the federal
law of the United States, to the extent they deem proper and specified in such
opinion, upon the opinion (which shall be dated the First Closing Date or the
Second Closing Date, as the case may be, shall be satisfactory in form and
substance to the Underwriters, shall expressly state that the Underwriters may
rely on such opinion as if it were addressed to them and shall be furnished to
the Representatives) of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters; provided,
however, that such counsel shall further state that they believe that they and
the Underwriters are justified in relying upon such opinion of other counsel,
and
-4-
<PAGE>
(B) as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials.
-5-
<PAGE>
EXHIBIT B
Opinion of counsel for the Underwriters to be delivered pursuant to
Section 5(e) of the Underwriting Agreement.
References to the Prospectus in this Exhibit B include any supplements
thereto at the Closing Date.
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) No stockholder of the Company or any other person has any
preemptive right, right of first refusal or other similar right to
subscribe for or purchase securities of the Company arising by operation of
the charter or by-laws of the Company or the General Corporation Law of the
State of Delaware.
(iii) The Underwriting Agreement has been duly authorized, executed
and delivered by, and is a valid and binding agreement of, the Company,
enforceable against the Company in accordance with its terms, except as
rights to indemnification thereunder may be limited by applicable law and
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(iv) The Common Shares to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale pursuant to the
Underwriting Agreement and, when issued and delivered by the Company
pursuant to the Underwriting Agreement against payment of the consideration
set forth therein, will be validly issued, fully paid and nonassessable.
(v) Each of the Registration Statement and the Rule 462(b)
Registration Statement, if any, has been declared effective by the
Commission under the Securities Act. To the best knowledge of such counsel,
no stop order suspending the effectiveness of either of the Registration
Statement or the Rule 462(b) Registration Statement, if any, has been
issued under the Securities Act and no proceedings for such purpose have
been instituted or are pending or are contemplated or threatened by the
Commission. Any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Securities Act has been made in
the manner and within the time period required by such Rule 424(b).
(vi) The Registration Statement, including any Rule 462(b)
Registration Statement, the Prospectus, and each amendment or supplement to
the Registration Statement and the Prospectus, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included or incorporated by reference therein or in
exhibits to or excluded from the Registration Statement, as to which no
opinion need be rendered)
-1-
<PAGE>
appeared on their face to be responsive as to form in all material respects
with the applicable requirements of the Securities Act.
(vii) The Common Shares have been approved for testing on the New
York Stock Exchange, subject to official notice of issuance.
(viii) The statements in the Prospectus under the captions
"Description of Capital Stock" and "Underwriting", insofar as such
statements constitute matters of law, summaries of legal matters,
provisions of the charter or by-laws of the Company, documents or legal
conclusions, have been reviewed by such counsel and fairly present, in all
material respects, the matters referred to therein.
In addition, such counsel shall state that in the course of the
preparation by the Company and Company counsel of the Registration Statement and
the Prospectus, such counsel participated in conferences with certain of the
officers and representatives of, and the independent public accountants for, the
Company. Such counsel shall state that between the date of the Registration
Statement and the time of delivery of their opinion, they participated in
additional conferences with certain officers and representatives of the Company
at which the contents of the Registration Statement and the Prospectus were
discussed to a limited extent. Such counsel may state that given the limitations
inherent in the independent verification of factual matters and the character of
determinations involved in the registration process, they are not passing upon
and do not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the Prospectus.
Such counsel shall state that subject to the foregoing and on the basis of the
information they gained in the course of the performance of the services
referred to above, including information obtained from officers and
representatives of the Company, no facts have come to their attention that cause
them to believe that the Registration Statement, at the time the Registration
Statement became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of its
date, contained any untrue statement of a material fact or omitted to state
amaterial fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Also, such counsel shall state that, subject to the foregoing,
no facts have come to their attention in the course of the proceedings described
in the second sentence of this paragraph that cause them to believe that the
Prospectus, as of the date and time of delivery of their opinion letter,
contains any untrue statement of a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. In each case, however,
such counsel shall not be required to express any view or belief with respect to
(i) financial statements, notes or schedules included or omitted in the
Registration Statement or the Prospectus or (ii) other financial data included
or omitted in the Registration Statement or the Prospectus.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of
-2-
<PAGE>
Delaware or the State of New York or the federal law of the United States, to
the extent they deem proper and specified in such opinion, upon the opinion
(which shall be dated the First Closing Date or the Second Closing Date, as the
case may be, and shall be satisfactory in form and substance to the
Underwriters) of other counsel of good standing whom they believe to be
reliable; and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company, the Selling Stockholder and
public officials.
-3-
<PAGE>
EXHIBIT C
[Date]
NATIONSBANC MONTGOMERY SECURITIES LLC
LAZARD FRERES & CO. LLC
RAYMOND JAMES & ASSOCIATES INC.
SMITH BARNEY INC.
As Representatives of the Several Underwriters
c/o NationsBanc Montgomery Securities LLC
600 Montgomery Street
San Francisco, California 94111
RE: AMERICAN BANK NOTE HOLOGRAPHICS, INC. (the "Company")
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain shares of
Common Stock of the Company ("Common Stock") or securities convertible into or
exchangeable or exercisable for Common Stock. The Company proposes to carry out
a public offering of Common Stock (the "Offering") for which you will act as the
representatives of the underwriters. The undersigned recognizes that the
Offering will be of benefit to the undersigned and will benefit the Company. The
undersigned acknowledges that you and the other underwriters are relying on the
representations and agreements of the undersigned contained in this letter in
carrying out the Offering and in entering into underwriting arrangements with
the Company with respect to the Offering.
In consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not, without the prior written consent of NationsBanc
Montgomery Securities LLC ("NMS") (which consent may be withheld in its sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
otherwise dispose of any shares of Common Stock, options or warrants to acquire
shares of Common Stock, or securities exchangeable or exercisable for or
convertible into shares of Common Stock currently or hereafter owned either of
record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by the
undersigned, or publicly announce the undersigned's intention to do any of the
foregoing, for a period commencing on the date hereof and continuing through the
close of trading on the date 180 days after the date of the Prospectus. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of shares
of Common Stock or securities convertible into or exchangeable or exercisable
for Common Stock held by the undersigned except in compliance with the foregoing
restrictions.
-1-
<PAGE>
With respect to the Offering only, the undersigned waives any registration
rights relating to registration under the Securities Act of any Common Stock
owned either of record or beneficially by the undersigned, including any rights
to receive notice of the Offering.
This agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives, and assigns of the
undersigned.
- ---------------------------------
Printed Name of Holder
By:
- ---------------------------------
Signature
- ---------------------------------
Printed Name of Person Signing
(and indicate capacity of person signing if signing as
custodian, trustee, or on behalf of an entity)
-2-
<PAGE>
EXHIBIT D
The final opinion in draft form should be attached as Exhibit D at the time this
Agreement is executed.
The opinion of Kramer Levin Naftalis & Frankel, counsel for
the Selling Stockholder, pursuant to Section 5(j) shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
References to the Prospectus in this Exhibit D include any supplements thereto
at the Closing Date.
(i) The Underwriting Agreement has been duly authorized, executed
and delivered by or on behalf of, and is a valid and binding agreement of,
the Selling Stockholder, enforceable in accordance with its terms, except
as rights to indemnification thereunder may be limited by applicable law
and except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(ii) The execution and delivery by the Selling Stockholder of, and
the performance by the Selling Stockholder of the Selling Stockholder's
obligations under, the Underwriting Agreement will not contravene or
conflict with, result in a breach of, or constitute a default under, the
charter or by-laws or any other organizational documents of the Selling
Stockholder, or, to the best of such counsel's knowledge, violate or
contravene any provision of applicable law or regulation, or violate,
result in a breach of or constitute a default under the terms of any other
agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder is bound, or any judgment, order or decree
applicable to such Selling Stockholder of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over such Selling Stockholder.
(iii) Such Selling Stockholder has good and valid title to all of
the Common Stock which may be sold by the Selling Stockholder under the
Underwriting Agreement and has the legal right and power, and all
authorizations and approvals required under its charter and by-laws or
other organizational documents to enter into the Underwriting Agreement, to
sell, transfer and deliver all of the Common Shares which may sold by the
Selling Stockholder under the Underwriting Agreement and to comply with the
Selling Stockholder's other obligations under the Underwriting Agreement.
(iv) Assuming that the Underwriters purchase the Common Shares
which are sold by such Selling Stockholder pursuant to the Underwriting
Agreement for value and without notice of any adverse claim as such term is
used in Section 8-105 of the Uniform Commercial Code as currently in effect
in the State of New York, the delivery of the certificates representing
such Common Shares either registered in the name of the Underwriters or
effectively endorsed to the Underwriters or in blank pursuant to the
-1-
<PAGE>
Underwriting Agreement will pass to the Underwriters all rights that such
Selling Stockholder has in such Common Shares, free of all adverse claims.
(v) To the best of such counsel's knowledge, no consent, approval,
authorization or other order of, or registration or filing with, any court
or governmental authority or agency, is required for the consummation by
such Selling Stockholder of the transactions contemplated in the
Underwriting Agreement, except as required under the Securities Act,
applicable state securities or blue sky laws, and from the NASD.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware or the State of New York or the federal
law of the United States, to the extent they deem proper and specified in such
opinion, upon the opinion (which shall be dated the First Closing Date or the
Second Closing Date, as the case may be, shall be satisfactory in form and
substance to the Underwriters, shall expressly state that the Underwriters may
rely on such opinion and shall be furnished to the Underwriters) of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters; provided, however, that such
counsel shall further state that they believe that they and the Underwriters are
justified in relying upon such opinion of other counsel, and (B) as to matters
of fact, to the extent they deem proper, on certificates of the Selling
Stockholder and public officials.
-2-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted
from the financial statements contained in the body of the
accompanying Form 10-Q and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<CASH> 6,980
<SECURITIES> 0
<RECEIVABLES> 58,894
<ALLOWANCES> 947
<INVENTORY> 47,526
<CURRENT-ASSETS> 138,407
<PP&E> 370,862
<DEPRECIATION> 121,377
<TOTAL-ASSETS> 493,771
<CURRENT-LIABILITIES> 90,070
<BONDS> 295,229
0
0
<COMMON> 224
<OTHER-SE> 41,034
<TOTAL-LIABILITY-AND-EQUITY> 493,771
<SALES> 164,006
<TOTAL-REVENUES> 164,006
<CGS> 121,310
<TOTAL-COSTS> 159,747
<OTHER-EXPENSES> (200)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 17,550
<INCOME-PRETAX> (13,091)
<INCOME-TAX> (4,134)
<INCOME-CONTINUING> (9,627)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (9,627)
<EPS-PRIMARY> (.45)
<EPS-DILUTED> (.45)
</TABLE>
