EXHIBIT 10.1
EXIT FINANCING AGREEMENT
THIS EXIT FINANCING AGREEMENT (this "Agreement") is entered into this
17th day of January, 2005, by the undersigned parties hereto.
RECITALS:
WHEREAS, American Banknote Corporation, a Delaware corporation (the
"COMPANY") intends to file a petition for protection from its creditors under
Chapter 11 of the United States Bankruptcy Code (the "CHAPTER 11 CASE");
WHEREAS, the Company will file a proposed Plan of Reorganization in the
form attached hereto as EXHIBIT A (the "PLAN") with the United States Bankruptcy
Court for the District of Delaware ("BANKRUPTCY COURT") when it initiates the
Chapter 11 Case;
WHEREAS, pursuant to the Plan, the Company, as reorganized under and
pursuant to the Plan (the "REORGANIZED COMPANY"), will issue a total of
10,000,000 shares of the common stock, par value $0.001 per share (the "COMMON
STOCK") of the Reorganized Company to those investors who are parties hereto at
a price of approximately $8.55 per share contemporaneously with the effective
date of the Plan;
WHEREAS, the undersigned investors (each an "INVESTOR", and
collectively, the "INVESTORS") desire to irrevocably subscribe for and purchase
shares of Common Stock of the Reorganized Company on the terms set forth in this
Agreement; and
WHEREAS, pursuant to the Plan, the Reorganized Company will assume this
Agreement;
NOW, THEREFORE, in consideration of the recitals and the respective
representations, warranties, covenants and indemnities contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and intending to be legally bound hereby, the parties hereby
agree as follows:
1. PURCHASE. Subject to the terms and conditions hereof, each Investor,
severally but not jointly, hereby irrevocably subscribes and offers to purchase
from the Reorganized Company the number of shares of Common Stock of the Company
set forth on such Investor's signature page hereto (the "SHARES"), for a
purchase price of approximately $8.55 per Share (the "PURCHASE PRICE"). The
Company hereby agrees that the Reorganized Company will issue and sell the
Shares to each such Investor at the Closing (as hereinafter defined) subject to
the terms and conditions hereof.
2. CLOSING. The closing of the purchase of the Shares (the "CLOSING")
shall occur on the effective date of the Plan (the "EFFECTIVE DATE"). At the
closing, each Investor shall pay the Purchase Price for its Shares to the
Reorganized Company by wire transfer of immediately available funds to such
account as the Company shall have informed the Investors in writing at least two
business days prior to the Effective Date. At the closing, the Reorganized
Company shall deliver to each Investor a stock certificate for its Shares.
3. CLOSING CONDITIONS.
(a) It shall be a condition to each Investor's obligation to
purchase its Shares at the closing that each of the following
shall have occurred or have been waived in writing by such
Investor:
(1) any amendments to the Plan shall have been approved
by such Investor;
(2) an order will have been entered by the Bankruptcy
Court confirming the Plan and the order shall not be
subject to a stay or injunction; and
(3) the representations and warranties of the Reorganized
Company shall be true and correct in all material
respects as of the Effective Date.
(b) It shall be a condition to the Reorganized Company's
obligation to issue to an Investor such Investor's Shares at
the Closing that each of the following shall have occurred or
have been waived in writing by the Reorganized Company:
(1) an order will have been entered by the Bankruptcy
Court confirming the Plan and the order shall not be
subject to a stay or injunction;
(2) the Plan (as amended) shall have become effective;
and
(3) the representations and warranties of such Investor
shall be true and correct in all material respects as
of the date hereof and as of the Effective Date.
4. REPRESENTATIONS AND WARRANTIES OF EACH INVESTOR. Each Investor
hereby makes the following representations and warranties to the Company,
severally but not jointly, as of the date hereof and as of the Effective Date:
(a) That such Investor is an "Accredited Investor," as that term
is defined in Regulation D under the Securities Act of 1933,
as amended;
(b) That, except as specifically hereinafter set forth, such
Investor is the sole and true party in interest and is not
purchasing for the benefit of any other person or entity;
(c) That such Investor has read and analyzed and is familiar with
the Plan (and any supplements or amendments thereto), the
Corporation's Disclosure Statement with Respect to Debtor's
Plan of Reorganization under Chapter 11 of the Bankruptcy
Code, and this Agreement, and confirms that it has had the
opportunity to ask questions and receive answers concerning
the terms and conditions of the offer and sale of such
Investor's Shares and that all documents requested by it have
been made available to it, and that such Investor has been
supplied with all of the additional information concerning
this investment that it has requested;
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(d) That such Investor has sufficient knowledge and experience in
financial and business matters and that such Investor is
capable of evaluating the merits and risks of this investment;
(e) That such Investor is aware that an investment in the Shares
is highly speculative and subject to substantial risks, and
that such Investor is capable of bearing the high degree of
economic risk and burdens of this venture, including, but not
limited to, the possibility of the complete loss of all
contributed capital, the lack of a public market, and limited
transferability, with the result that it might not be able to
readily liquidate this investment and its ownership of its
Shares might continue indefinitely;
(f) That such Investor's overall commitment to investments that
are not readily marketable is not disproportionate to its net
worth, and such Investor has no need for liquidity in the
investment in its Shares;
(g) That the offer to sell the Shares was directly communicated to
such Investor and at no time was it presented with or
solicited by or through any leaflet, public promotional
meeting, television advertisement or any other form of general
advertising;
(h) That the Shares are being acquired solely for such Investor's
own account, for investment, and are not being purchased with
a view to the resale, distribution, subdivision or
fractionalization thereof;
(i) That such Investor will not resell its Shares, or any interest
therein, or otherwise dispose of same, unless the offer and
sale of its Shares or interest therein by such Investor is
subsequently registered under the Securities Act of 1933, as
amended, and appropriate state securities laws (or unless the
Reorganized Company receives an opinion of counsel
satisfactory to it that an exemption from registration is
available);
(j) That, in addition to the information presented in, or as more
fully described in, the Plan, such Investor is aware of the
following:
(1) There are substantial restrictions on the
transferability of its Shares; its Shares will not
be, and holders of the Shares have no rights to
require that the Shares be, registered under the
Securities Act of 1933, as amended, or any state's
securities laws, rules or regulations and any such
registration is unlikely in the immediate future and
may never occur, and the following legend will be
placed on any certificate representing the Shares:
THIS CERTIFICATE AND THE SECURITIES REPRESENTED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY OTHER SECURITIES
STATUTE. NO SALE, TRANSFER OR OTHER DISPOSITION
HEREOF OR THEREOF, OR OF ANY INTEREST HEREIN OR
THEREIN, MAY BE MADE OR SHALL BE RECOGNIZED UNLESS IN
THE SATISFACTORY WRITTEN OPINION OF COUNSEL FOR THE
ISSUER, OR SATISFACTORY TO THE ISSUER, SUCH
TRANSACTION WOULD NOT VIOLATE OR REQUIRE REGISTRATION
UNDER SUCH ACT OR OTHER STATUTE;
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(2) No federal or state agency has made any finding or
determination as to the fairness for public
investment, nor any recommendation nor endorsement,
of the Shares, and the Shares have not been
registered with the Securities and Exchange
Commission or with any state agency, nor is any
registration to be obtained in the immediate future
and registration may never be obtained; and
(3) The Reorganized Company may attempt to raise
additional equity and debt from external sources, but
the Reorganized Company cannot guarantee that it
would be successful in raising such capital, the form
this capital might take, or the price and terms that
investors and creditors might require for this
capital;
(k) None of the following information has ever been represented,
guaranteed, or warranted to such Investor expressly or by
implication, by any broker, the Company or any agent or
employee of the foregoing, or by any other person:
(1) The approximate or exact length of time that such
Investor will be required to remain as an owner of
its Shares;
(2) The percentage of profit or amount of or type of
consideration, profit or loss (including tax
deductions or tax benefits) to be realized, if any,
as a result of an investment in the Shares;
(3) The past performance or experience on the part of any
person, that will in any way indicate or predict tax
or economic results in connection with a purchase of
the Shares;
(l) Such Investor has sought such accounting, legal, and tax
advice as it considers necessary to make an informed
investment decision with respect to the Shares to be acquired
and it understands that there can be no assurance as to the
federal or state tax result of an investment in the Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE REORGANIZED COMPANY. The
Reorganized Company will be deemed to make the following representations and
warranties to the Investors as of the Effective Date:
(a) The Shares have been duly authorized and, when issued and
delivered to an Investor against payment therefor as provided
by this Agreement, will be validly issued, fully paid and
non-assessable.
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(b) As of the Effective Date, and after giving effect to the
issuance of the Shares to all of the Investors hereunder and
the other issuances of Common Stock of the Reorganized Company
pursuant to the Plan, there will be 10,000,000 shares of
Common Stock of the Reorganized Company issued and
outstanding.
6. ENFORCEABILITY BY THE REORGANIZED COMPANY. Each Investor hereby
acknowledges that the Reorganized Company shall have the right, power and
authority to enforce the obligations, duties and rights of the Investor under
the terms and conditions of this Agreement, and will be enforced according to
its terms pursuant to the Plan.
7. NOTICE. Notices required or permitted to be given hereunder shall be
in writing and shall be deemed to be sufficiently given when (A) personally
delivered (B) sent by overnight delivery by nationally recognized carrier, or
(C) sent by registered mail, return receipt requested, in each case addressed to
the other party at the address provided in this Agreement, or to such other
address furnished by advance written notice given to the other party hereto.
8. NO ASSIGNMENTS. No Investor shall transfer, assign or encumber any
of its rights, privileges, duties or obligations under this Agreement without
the prior written consent of the Company or the Reorganized Company, and any
attempt to so transfer, assign or encumber shall be void.
9. CHOICE OF LAW. This Agreement shall be enforced, governed, and
construed in all respects in accordance with the laws of the State of New York
and shall be binding upon the Investor, the Investor's successors and assigns
and shall inure to the benefit of the Company, and its successors and assigns
(including the Reorganized Company).
10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes any and all prior or contemporaneous representations, warranties,
agreements, and understandings in connection therewith. This Agreement may not
be modified or amended except, with respect to any Investor, by written
agreement executed by the Company or the Reorganized Company and such Investor.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this 17th day of
January, 2005.
AMERICAN BANKNOTE CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President and Chief
Financial Officer
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INVESTOR SIGNATURE PAGE
SHARES
BEING PURCHASED: 233,964
PRICE: approximately $8.55 per share
TOTAL AMOUNT DUE: $2,000,000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this _____ day
of January, 2005.
XXXXX X. XXXXXX, III
By ________________________________
Its:
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INVESTOR SIGNATURE PAGE
SHARES
BEING PURCHASED: 233,964
PRICE: approximately $8.55 per share
TOTAL AMOUNT DUE: $2,000,000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this _____ day
of January, 2005.
BAY HARBOUR PARTNERS, LTD.
By ________________________________
Its:
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INVESTOR SIGNATURE PAGE
SHARES
BEING PURCHASED: 233,964
PRICE: approximately $8.55 per share
TOTAL AMOUNT DUE: $2,000,000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this _____ day
of January, 2005.
POLLUX INVESTMENTS LLC
By ________________________________
Its:
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INVESTOR SIGNATURE PAGE
SHARES
BEING PURCHASED: 1,169,822
PRICE: approximately $8.55 per share
TOTAL AMOUNT DUE: $10,000,000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this _____ day
of January, 2005.
HIGHLAND CAPITAL MANAGEMENT L.P.
By ________________________________
Its:
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EXHIBIT A
DEBTOR'S PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
DATED JANUARY 18, 2005
