Exhibit 10.26
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT (this "AGREEMENT"), dated as of 22nd September
2000, among AMERICAN BANKNOTE CORPORATION, a Delaware corporation having its
principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("ABN"), AMERICAN BANK NOTE COMPANY, a New York Corporation with its principal
place of business at 0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000
("ABNCO"), and LIETUVOS XXXXXX, Xxxxxxxx Xxxxxx, Xx. 0, Xxxxxxx, Xxxxxxxx of
Lithuania (the "BANK").
W I T N E S S E T H
WHEREAS, pursuant to that certain Memorandum of Agreement, dated
August 5, 1993, by and between ABN and the Bank (the "MEMORANDUM AGREEMENT") and
those certain printing contracts between ABN and the Bank entered into on
December 19, 1990 and November 5, 1992, as amended, and the memorandum dated
October 1, 1992 that comprise the subject thereof (collectively, the
"CONTRACTS"), the parties resolved all controversies then outstanding relating
to disputes arising under the Contracts, subject to certain conditions; and
WHEREAS, the Bank called for tenders for currency printing contracts
in April 1996 (the "Tenders") but ultimately did not award the contracts to
ABNCo, which had submitted bids pursuant to the call for such Tenders;
WHEREAS, on Xxxxx 0, 0000, XXX commenced an arbitration proceeding
against the Bank for breach of its obligations under the Memorandum Agreement
before an arbitral tribunal (the "ARBITRAL TRIBUNAL") of the International
Chamber of Commerce (the "ICC") in Paris, France (the "ARBITRATION"), and on May
13, 1997, the Bank filed a counterclaim against ABN in the Arbitration; and
WHEREAS, ABN is the debtor and debtor-in-possession in the Chapter 11
reorganization case no. 99 B 11577 (PCB) (the "CHAPTER 11 CASE") filed on
December 8, 1999 under Chapter 11 of title 11 of the United States Code, 11
U.S.C. xx.xx. 101-1330, as amended (the "BANKRUPTCY CODE"), in the United States
Bankruptcy Court for the Southern District of New York (the "BANKRUPTCY COURT");
and
WHEREAS, on January 21, 2000, the Bank filed a proof of claim against
ABN in the Chapter 11 Case (the "CLAIM"); and
WHEREAS, on Xxxxx 00, 0000, XXX filed a counterclaim against the Bank
in the Bankruptcy Court (the "COUNTERCLAIM"); and
WHEREAS, on February 18, 2000, the Bank filed a motion under section
362 of the Bankruptcy Code for modification of the automatic stay to permit it
to liquidate its Claim in the Arbitration rather than the Bankruptcy Court; and
WHEREAS, ABN, ABNCo, and the Bank wish to voluntarily settle and
release each other from any and all claims relating to the Contracts, the
Memorandum Agreement, and/or the Tenders upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the promises and of the releases,
representations, covenants, and obligations contained herein, the parties hereto
agree as follows:
1. SETTLEMENT AMOUNT. Subject to the terms hereof, ABN agrees to pay
the Bank US$ 2,200,000.00 in accordance with section 2 hereof.
2. PAYMENT TERMS.
a. Scheduled Payment Amounts. Payments under this Agreement shall
be begin upon the consummation of ABN's Chapter 11 reorganization plan in the
Chapter 11 Case (the "CONSUMMATION DATE") and conclude upon the third
anniversary of the Consummation Date. Specifically, payments shall be made as
follows: (i) $300,000 to be paid on the Consummation Date; (ii) $200,000 to be
paid six months after the Consummation Date; (iii) $500,000 to be paid upon the
first anniversary of the Consummation Date; (iv) $300,000 to be paid eighteen
months after the Consummation Date; (v) $300,000 to be paid upon the second
anniversary of the Consummation Date; (vi) $300,000 to be paid thirty months
after the Consummation Date; and (vii) $300,000 to be paid upon the third
anniversary of the Consummation Date. Each of the foregoing payments shall be
referred to as a "SCHEDULED PAYMENT AMOUNT." A Scheduled Payment Amount shall be
deemed made upon the date of receipt by ABN of confirmation of a federal funds
wire transfer to the Bank in respect of such Scheduled Payment Amount (each, a
"RECEIPT"). A Scheduled Payment Amount shall be deemed timely made if the
Receipt with respect to such Scheduled Payment Amount is dated on or prior to
the date when such Scheduled Payment Amount is due pursuant to the terms of this
Agreement (a "Due Date"), and such Receipt indicates that the wire transfer was
effected on or before such Due Date. Nothing herein shall preclude ABN from
making timely payment of a Scheduled Payment Amount by means other than federal
funds wire transfer.
b. INTEREST. Interest shall accrue upon the outstanding principal
amount of the Settlement Amount at the prevailing LIBOR rate for U.S. Dollars
for terms corresponding to the period between the maturity date of a Scheduled
Payment Amount and the maturity date of the immediately following Scheduled
Payment Amount (the "INTEREST PERIOD"). The first Interest Period shall commence
on the Consummation Date and shall end six months thereafter. Each subsequent
Interest Period shall commence at the end of the immediately previous Interest
Period and shall end on the maturity date of the immediately following Scheduled
Payment Amount. The interest accrued during each Interest Period shall be paid
on the same maturity date as each Scheduled Payment Amount.
c. PAYMENT DATE. If the Due Date of any Scheduled Payment Amount
shall fall upon a weekend or a day that is a holiday in the United States, the
payment shall be made upon the next business day that is neither a weekend day
nor a holiday.
d. DEFAULT. If ABN shall fail to make a Scheduled Payment Amount
when due, the Bank, after the expiration of five (5) business days (the "GRACE
PERIOD"), may declare the entire Settlement Amount hereby evidenced to be due,
payable, and collectible then or thereafter, as the Bank may elect without
notice to ABN. The Bank may waive any default before or after the same has
occurred, and restore this Agreement to full force and effect without impairing
any rights hereunder, such right of waiver being a continuing one. After the
Grace Period, interest shall accrue upon any outstanding principal amount of the
Settlement Amount at three hundred basis points above the prevailing LIBOR rate
for U.S. Dollars, until payment of the outstanding Settlement Payment Amount,
including previously accrued interest, has been made.
3. NECESSARY APPROVALS. This Agreement shall be (i) contained in ABN's
Chapter 11 reorganization plan and approved by the Bankruptcy Court, (ii)
presented to and confirmed by the Arbitral Tribunal in the form of an ICC award
by consent, and (iii) approved by all necessary action of the Board of each of
the Bank and ABN so as to constitute a legally binding obligation of the Bank
and ABN, respectively.
4. RELEASES. Effective upon the approval of this Agreement by each of
the Bankruptcy Court and the Arbitral Tribunal, and subject to the payment of
each Scheduled Payment Amount hereunder, each of ABN, ABNCo, and the Bank shall
be deemed to release each other from, and shall be enjoined from making, any and
all claims, charges, complaints, liens, demands, causes of action, obligations,
damages, or liabilities, known or unknown, that each had, now has, or may
hereafter claim to have against the other by reason of any matter, cause, or
thing whatsoever, whether or not previously asserted before any court or
arbitral tribunal, relating to or arising under (i) the Memorandum Agreement
and/or the Tenders; (ii) the Contracts; (iii) the Claim; (iv) the Counterclaim
(as defined below); and (v) the Arbitration, including, but not limited to (a)
all claims and counterclaims asserted by ABN and the Bank (whether or not
subsequently withdrawn), (b) all arbitration fees or advances made therefor,
including ICC administrative fees and arbitrators' fees and expenses, which have
been paid out of the advances already made by the Bank, (c) all direct and
indirect costs borne by each party, including the fees and expenses of its legal
counsel, experts, and advisors, and (d) all rights of either party under any
awards, partial awards, interim awards, or procedural orders issued by the
Arbitral Tribunal that have not yet been enforced or executed, including the
Award of the Arbitral Tribunal dated February 10, 2000 ordering ABN to post
security for arbitration costs; and (vi) any statements, allegations, or
communications, written or oral, concerning the arbitration, the conduct
thereof, the claims asserted therein, or the actions of any of the parties in
relation thereto, made by any of the parties (or their legal representatives,
agents, or employees) to any other party or any third party, including any
official of any government or governmental agency or the press (collectively,
the "Releases").
5. ARBITRATION. All fees arising out of the Arbitration in relation to
the ICC administrative fees and arbitrators' fees and expenses which have been
advanced by the Bank, shall be paid by the Bank. The parties shall request that
the Arbitral Tribunal specifically note, in the award incorporating or
acknowledging this Agreement, the annulment of all remaining executory
obligations and enforcement rights arising from all awards, partial awards,
interim awards, and procedural orders issued by the Arbitral Tribunal. Each
party shall bear the costs of its own legal counsel, experts, and other
advisors. Any additional fees and costs arising out of the Arbitration after the
date hereof in excess of the advances already made shall be borne by ABN.
6. REPRESENTATIONS AND ACKNOWLEDGMENTS.
Each of ABN, ABNCo, and the Bank represents and acknowledges that:
a. it is duly authorized to execute and deliver this Agreement;
b. it has not filed any claim against the other in any
jurisdiction, except for the Arbitration, the Claim, and the Counterclaim;
c. it shall not make any oral or written statement disparaging
the other or the other's directors, officers, employees, agents, or business;
PROVIDED, however, that in the event of the failure by one party to comply with
the terms hereof, nothing in this paragraph 6.c shall prevent the other party
from making any statement in good faith referring to such failure;
d. as stated in the minutes of the December 15, 1997 meeting of
the Arbitral Tribunal, although the Contracts have been signed by the Bank and
the Government of Lithuania (the "GOVERNMENT"), the Bank, being a separate legal
entity, took over and assumed all rights and duties in relation to the
Contracts, and the Government and State of Lithuania are therefore released from
all obligations;
e. nothing in this Agreement is intended as an admission of
liability or the truth of or evidence of any facts asserted by any party in
support of any of the claims subject to the Releases;
f. this Agreement is not a solicitation of acceptance or
rejection of a plan of reorganization; and
g. except to the extent expressly set forth herein, it is
expressly understood and agreed that there have not been any promises,
agreements, warranties, representations, or inducements, whether oral or
written, expressed or implied, made by any party hereto.
7. COUNTERPARTS; COPIES. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement. Four original copies of
this Agreement shall be executed, two of which shall be in English and two of
which shall be in Lithuanian. In the event of a dispute regarding the
interpretation of this Agreement, the English language version shall prevail.
IN WITNESS WHEREOF, ABN, ABNCo, and the Bank have executed this
Agreement as of the date and year set forth below.
American Banknote Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
Its Senior Vice President - Finance
Chief Accounting Officer
Dated: September 19, 2000
American Bank Note Company
AS TO THE RELEASES AND
REPRESENTATIONS AND
ACKNOWLEDGMENTS ONLY
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
Its Senior Vice President - Finance
Chief Accounting Officer
Dated: September 19, 2000
Lietuvos Bankas
By: /s/ Reinoldijus Sarkinas
----------------------------
Reinoldijus Sarkinas
Its Governor
Dated: September 22, 2000
