-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IJsgm6G4ZtICWK5JcXgLK0SrCBH0e2WCct2U4jK+vNvYi7pkYXQfjWcXKw58Y2wd 6hGB8MjGsdlNPYMXmx40ZA== 0001047469-99-004061.txt : 19990210 0001047469-99-004061.hdr.sgml : 19990210 ACCESSION NUMBER: 0001047469-99-004061 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN NATIONAL FINANCIAL INC CENTRAL INDEX KEY: 0001068843 STANDARD INDUSTRIAL CLASSIFICATION: TITLE INSURANCE [6361] IRS NUMBER: 330731648 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: SEC FILE NUMBER: 333-62353 FILM NUMBER: 99526075 BUSINESS ADDRESS: STREET 1: 17911 VON KARMAN AVENUE SUITE 240 CITY: IRVINE STATE: CA ZIP: 92614 BUSINESS PHONE: 9496224700 MAIL ADDRESS: STREET 1: 17911 VON KARMAN AVENUE SUITE 240 CITY: IRVINE STATE: CA ZIP: 92614 S-1/A 1 S-1/A AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 9, 1999. REGISTRATION NO. 333-62353 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------- AMENDMENT NO. 4 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- AMERICAN NATIONAL FINANCIAL, INC. (Exact name of registrant as specified in charter) CALIFORNIA 6361 33-0731648 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
-------------------------- 17911 VON KARMAN, SUITE 200 IRVINE, CALIFORNIA 92614 (949) 622-4700 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ------------------------------ MICHAEL C. LOWTHER CHIEF EXECUTIVE OFFICER 17911 VON KARMAN, SUITE 200 IRVINE, CALIFORNIA 92614 (949) 622-4700 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------------------- COPIES TO: THOMAS G. BROCKINGTON, ESQ. NICK E. YOCCA, ESQ. SCOTT SANTAGATA, ESQ. J. MICHAEL VAUGHN, ESQ. RUTAN & TUCKER, LLP STRADLING YOCCA CARLSON & RAUTH 611 Anton Boulevard, Suite 1400 660 Newport Center Drive, Suite 1600 Costa Mesa, California 92626 Newport Beach, California 92660 (714) 641-5100 (949) 725-4000
-------------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE. -------------------------- If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box. / / If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. / / -------------------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION It is estimated that the following expenses will be incurred in connection with the proposed offering hereunder. All of such expenses will be borne by the Company:
AMOUNT ---------- SEC filing fee.................................................................... $ 5,620 Legal fees and expenses........................................................... 268,000* Accounting fees and expenses...................................................... 175,000* Blue sky fees and expenses (including counsel fees)............................... 10,000* Printing expenses................................................................. 75,000* Nonaccountable Expense Allowance.................................................. 240,000* Insurance premiums................................................................ 24,000 Miscellaneous..................................................................... 2,380* ---------- TOTAL........................................................................... $ 800,000* ---------- ----------
- ------------------------ * Estimated. ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Underwriting Agreement (Exhibit 1.1 hereto) provides for indemnification by the Underwriters of the Registrant and its officers and directors, and by the Registrant of the Underwriters for certain liabilities arising under the Securities Act or otherwise. The Registrant's Articles of Incorporation provide that the liability of the Registrant's directors for monetary damages shall be eliminated to the fullest extent permissible under California law. This is intended to eliminate the personal liability of a director for monetary damages in an action brought by or in the right of the Registrant for breach of a director's duties to the Registrant or its shareholders subject to certain limitations in Section 204 of the California Corporations Code described below. The Articles also provide that the Registrant is authorized to provide indemnification to its agents (as defined in Section 317 of the California Corporations Code), through the Registrant's Bylaws or through agreements with such agents or both, for breach of duty to the Registrant and its shareholders, in excess of the indemnification otherwise permitted by Section 317 of the California Corporations Code, subject to the limits on such excess indemnification set forth in Section 204 of the California Corporations Code. Section 317 of the California Corporations Code provides that a corporation may indemnify an agent who is, or who is threatened to be made a party to any proceeding (as that term is defined therein) for actions taken in their corporate capacity upon a determination that such agent acted in good faith and in a manner which such agent believed to be in the best interest of the corporation. In addition, Section 317 provides for mandatory indemnification of an agent who is successful on the merits in defense of any such proceeding. Indemnification is prohibited under this section (with certain express exceptions) in any circumstances where it appears that it would be inconsistent with (i) any provision of the corporation's articles of incorporation or bylaws, any resolution of the shareholders or any agreement in effect at the time of the alleged cause of action asserted in the proceeding; and (ii) any condition expressly imposed by a court in approving a settlement. In addition, the ability of a corporation to indemnify its agents and to eliminate the liability of a director for monetary damages is further limited by Section 204 of the California Corporations Code which II-1 provides that a corporation may not provide for indemnification of agents or eliminate the liability of a director for monetary damages for (i) acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; (ii) for acts or omissions that a director believes to be contrary to the best interests of the corporation or its shareholders or that involve the absence of good faith on the part of the director; (iii) for any transaction from which a director derived an improper personal benefit; (iv) for acts or omissions that show a reckless disregard for the director's duty to the corporation or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to the corporation or its shareholders; (v) for acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director's duty to the corporation or its shareholders; (vi) with respect to certain transactions, or the approval of transactions in which a director has a material financial interest; and (vii) expressly imposed by statute, for approval of certain improper distributions to shareholders or certain loans or guarantees. The Bylaws of the Registrant provide that the Registrant shall indemnify each of its agents (as defined in Section 317 of the California Corporations Code) to the fullest extent permissible under the California Corporations Code against expenses, judgments, fines, settlements and other amounts, actually and reasonably incurred by such person by reason of such person's having been made or having been threatened to be made a party to a proceeding. The Bylaws further provide that the Registrant shall advance the expenses reasonably expected to be incurred by such agent in defending against any such proceeding upon receipt of the agent's undertaking to return repay such amounts to the Registrant if it is determined that the agent was not entitled to indemnification. The Registrant has entered into agreements to indemnify its directors in addition to the indemnification provided for in the Articles of Incorporation and Bylaws. Among other things, these agreements provide that the Registrant will indemnify, subject to certain requirements, each of the Registrant's directors for certain expenses (including attorneys' fees), judgments, fines and settlement amounts incurred by such person in any action or proceeding, including any action by or in the right of the Registrant, on account of services by such person as a director or officer of the Registrant, or as a director or officer of any other company or enterprise to which the person provides services at the request of the Registrant. The above provisions may have the effect of reducing the likelihood of derivative litigation against directors and may discourage or deter shareholders or management from bringing a lawsuit against directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefitted the Registrant and its shareholders. At present, there is no litigation or proceeding pending involving a director of the Registrant as to which indemnification is being sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification by any director. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES In March 1997, the Registrant issued 3,026,400 shares of common stock to its founding shareholders in connection with the initial capitalization of the Registrant. The founding shareholders paid $0.40 per share in this transaction. These securities were issued to the Registrant's founding shareholders, who were also employees of the Registrant, pursuant to Section 4(2) of the Securities Act. In July 1997, the Registrant issued options to purchase 332,904 shares of common stock to William P. Foley, II, the Chairman of the Board of Directors. The options are exercisable for a period of five years at an exercise price of $0.66 per share. These securities were issued in a private transaction to a single accredited investor pursuant to Section 4(2) of the Securities Act and Rule 506 promulgated thereunder. II-2 In November 1998, the Company issued 2,099,996 shares of Common Stock to FNFI in exchange for 40% of the outstanding shares of common stock of ATC and subject to the other terms of the Reorganization. These securities were issued in a private transaction pursuant to Section 4(2) of the Securities Act and Rule 506 promulgated thereunder. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) The following exhibits are filed herewith:
EXHIBIT NUMBER DESCRIPTION - ------ -------------------------------------------------------------------------- 1.1 Form of Underwriting Agreement.+ 1.2 Form of Representative's Warrant Agreement.+ 2.1 Stock Purchase Agreement dated January 1, 1997 by and among the Registrant, Fidelity National Financial, Inc. and American Title Company, together with amendment.+ 2.2 Stock Purchase Agreement dated December 31, 1996 by and among American Title Company, Fidelity National Asset Recovery Services, Inc. and Fidelity National Financial, Inc.+ 2.3 Stock Purchase Agreement dated December 31, 1996 by and among American Title Company, Nations Title Insurance of Arizona, Inc. and Fidelity National Financial, Inc.+ 2.4 Stock Purchase Agreement dated March 16, 1998 by and among Fidelity National Title Insurance Company of New York, National Title Insurance of New York, Inc. and American Title Company.+ 2.5 Stock Purchase Agreement dated August 9, 1997 by and between Pacific Coast Title of Santa Barbara County and American Title Company.+ 2.6 Stock Exchange Agreement dated August 21, 1998 between the Registrant and Fidelity National Financial, Inc.+ 3.1 Amended and Restated Articles of Incorporation.+ 3.2 Bylaws of the Registrant, as amended.+ 4.1 Form of Common Stock Certificate.+ 5.1 Opinion of Rutan & Tucker, LLP.+ 10.1 1998 Stock Incentive Plan, together with form of Nonqualified Stock Option Agreement and form of Incentive Stock Option Agreement.+ 10.2 Employment Agreement between the Registrant and Michael C. Lowther.+ 10.3 Employment Agreement between the Registrant and Wayne D. Diaz.+ 10.4 Employment Agreement between the Registrant and Dennis R. Duffy.+ 10.5 Employment Agreement between the Registrant and Barbara Ferguson.+ 10.6 Issuing Agency Agreement dated July 1, 1997 between Fidelity National Title Insurance Company and American Title Company.+ 10.7 Issuing Agency Agreement dated August 25, 1997 between Fidelity National Title Insurance Company and Santa Barbara Title Company.+ 10.8 Credit Agreement dated August 7, 1997 between the Registrant and Imperial Bank.+ 10.9 Note dated August 7, 1997 of the Registrant in favor of Imperial Bank.+ 10.10 Addendum to Note dated August 7, 1997 between the Registrant and Imperial Bank.+ 10.11 Standard Sublease dated January 28, 1998 between American Title Company and Fidelity National Financial, Inc.+ 10.12 Form of Indemnification Agreement.+ 10.13 Title Plant Lease Agreement dated July 1, 1997 between Fidelity National Title Insurance Company and American Title Company.+ 10.14 Letter of Grant dated July 1, 1997 granting William P. Foley, II options to purchase 55,000 shares of common stock of the Registrant.
II-3
EXHIBIT NUMBER DESCRIPTION - ------ -------------------------------------------------------------------------- 21 List of Subsidiaries of Registrant.+ 23.1 Consent of KPMG LLP.+ 23.2 Consent of Rutan & Tucker, LLP (included in the opinion filed as Exhibit 5.1).+ 24 Power of Attorney.+ 27 Financial Data Schedule.+
- ------------------------ + Previously filed. (b) The following financial statement schedules were previously filed: SCHEDULE I -- Balance Sheet of American National Financial, Inc. (Parent Company only) as of December 31, 1997 and related Statements of Operations and Retained Earnings and Cash Flows for the year ended December 31, 1997, and accompanying notes. SCHEDULE II -- Valuation and Qualifying Accounts of American National Financial, Inc. and Subsidiaries for the year ended December 31, 1997 and of American National Financial, Inc. (Predecessor) for the year ended December 31, 1996 and the six months ended June 30, 1997. ITEM 17. UNDERTAKINGS The Registrant hereby undertakes to provide the Underwriters at the closing specified in the Underwriting Agreement certificates in such denominations and registered in such names as required by the Underwriters to permit prompt delivery to each purchaser. The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of Prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in the form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For purposes of determining any liability under the Securities Act, each post-effective amendment that contains a form of Prospectus shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 24 hereof, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person thereof in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, California, on February 9, 1999. AMERICAN NATIONAL FINANCIAL, INC. By: /s/ WAYNE D. DIAZ ----------------------------------------- Wayne D. Diaz, PRESIDENT
In accordance with the requirements of the Securities Act of 1933, this Registration Statement was signed by the following persons in the capacities and on the dates stated. NAME TITLE DATE - ------------------------------ -------------------------- ------------------- * Chief Executive Officer - ------------------------------ and Director (Principal February 9, 1999 Michael C. Lowther Executive Officer) Executive Vice President * and Chief Financial - ------------------------------ Officer (Principal February 9, 1999 Carl A. Strunk Financial and Accounting Officer) * - ------------------------------ Director February 9, 1999 William P. Foley, II /s/ WAYNE D. DIAZ - ------------------------------ Director February 9, 1999 Wayne D. Diaz * - ------------------------------ Director February 9, 1999 Dennis R. Duffy * - ------------------------------ Director February 9, 1999 Bruce Elieff * - ------------------------------ Director February 9, 1999 Barbara A. Ferguson * - ------------------------------ Director February 9, 1999 Robert Majorino - ------------------------------ Director February 9, 1999 Matthew K. Fong *By: /s/ WAYNE D. DIAZ ------------------------- Wayne D. Diaz ATTORNEY-IN-FACT II-5 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE - ------------- --------------------------------------------------------------------------------------------- --------- 1.1 Form of Underwriting Agreement.+ 1.2 Form of Representative's Warrant Agreement.+ 2.1 Stock Purchase Agreement dated January 1, 1997 by and among the Registrant, Fidelity National Financial, Inc. and American Title Company, together with amendment.+ 2.2 Stock Purchase Agreement dated December 31, 1996 by and among American Title Company, Fidelity National Asset Recovery Services, Inc. and Fidelity National Financial, Inc.+ 2.3 Stock Purchase Agreement dated December 31, 1996 by and among American Title Company, Nations Title Insurance of Arizona, Inc. and Fidelity National Financial, Inc.+ 2.4 Stock Purchase Agreement dated March 16, 1998 by and among Fidelity National Title Insurance Company of New York, National Title Insurance of New York, Inc. and American Title Company.+ 2.5 Stock Purchase Agreement dated August 9, 1997 by and between Pacific Coast Title of Santa Barbara County and American Title Company.+ 2.6 Stock Exchange Agreement dated August 21, 1998 between the Registrant and Fidelity National Financial, Inc.+ 3.1 Amended and Restated Articles of Incorporation.+ 3.2 Bylaws of the Registrant, as amended.+ 4.1 Form of Common Stock Certificate.+ 5.1 Opinion of Rutan & Tucker, LLP.+ 10.1 1998 Stock Incentive Plan, together with form of Nonqualified Stock Option Agreement and form of Incentive Stock Option Agreement.+ 10.2 Employment Agreement between the Registrant and Michael C. Lowther.+ 10.3 Employment Agreement between the Registrant and Wayne D. Diaz.+ 10.4 Employment Agreement between the Registrant and Dennis R. Duffy.+ 10.5 Employment Agreement between the Registrant and Barbara Ferguson.+ 10.6 Issuing Agency Agreement dated July 1, 1997 between Fidelity National Title Insurance Company and American Title Company.+ 10.7 Issuing Agency Agreement dated August 25, 1997 between Fidelity National Title Insurance Company and Santa Barbara Title Company.+ 10.8 Credit Agreement dated August 7, 1997 between the Registrant and Imperial Bank.+ 10.9 Note dated August 7, 1997 of the Registrant in favor of Imperial Bank.+ 10.10 Addendum to Note dated August 7, 1997 between the Registrant and Imperial Bank.+ 10.11 Standard Sublease dated January 28, 1998 between American Title Company and Fidelity National Financial, Inc.+ 10.12 Form of Indemnification Agreement.+ 10.13 Title Plant Lease Agreement dated July 1, 1997 between Fidelity National Title Insurance Company and American Title Company.+
EXHIBIT NO. DESCRIPTION PAGE - ------------- --------------------------------------------------------------------------------------------- --------- 10.14 Letter of Grant dated July 1, 1997 granting William P. Foley, II options to purchase 55,000 shares of common stock of the Registrant. 21 List of Subsidiaries of Registrant.+ 23.1 Consent of KPMG LLP.+ 23.2 Consent of Rutan & Tucker, LLP (included in the opinion filed as Exhibit 5.1).+ 24 Power of Attorney+ 27 Financial Data Schedule.+
- ------------------------ + Previously filed. EX-10.14 2 EXHIBIT 10.14 EXHIBIT 10.14 ATC HOLDINGS, INC. 17911 VON KARMAN, SUITE 200 IRVINE, CALIFORNIA 92614 LETTER OF GRANT --------------- PERSONAL AND CONFIDENTIAL - ------------------------- July 1, 1997 William P. Foley, II 4181 Creciente Drive Hope Ranch Santa Barbara, CA 93110 Re: Non-Qualified Stock Option Dear Mr. Foley: In order to provide additional incentive to certain personnel, the Company is offering you by means of this letter certain non-qualified stock options. The options granted to you hereunder are subject to the following terms and conditions: 1. NUMBER OF SHARES. The Company hereby grants to you non-qualified stock options (the "Options") to purchase FIFTY-FIVE THOUSAND (55,000) shares of the common stock (the "Shares") of the Company. The number of Shares subject to this Option shall be proportionately adjusted in the event of a stock split, stock dividend or similar recapitalization. 2. PURCHASE PRICE. The purchase price at which the Shares may be acquired upon the exercise of an Option shall be Four Dollars ($4.00) per Share, which price is not less than 100% of the fair market value on the date of the grant. The purchase price for the Shares shall be proportionately adjusted in the event of a stock split, stock dividend or similar recapitalization. William P. Foley, II July 1, 1997 Page Two 3. EXERCISE DATE. The Options granted hereunder shall be exercisable as of the date of grant in full subject to the remaining terms and conditions hereof. The Options granted hereunder shall expire on June 30, 2007 after which date any unexercised Options shall be void for all purposes. 4. TRANSFERABILITY. No Option shall be transferable by you other than by will or the laws of descent and distribution, and the Options may not be exercised by anyone other than you during your lifetime. Following your death, the Options may be exercised during the periods described in Paragraph 5 (but not more than 10 years from the date hereof) by your estate or the person to whom the Options pass by will or the laws of descent and distribution, but only to the extent that you could have exercised the Options on the date of your death and only during the periods described in Paragraph 5. 5. EMPLOYMENT STATUS. No Options shall be exercisable after the expiration of the earliest of (i) three months after your service as a board member with the Company terminates, if such termination is for any reason other than permanent disability, death or cause, (ii) one year after the date your service as a board member terminates if such termination is the result of death or permanent disability, or (iii) June 30, 2007. 6. MANNER OF EXERCISE. You may exercise the Options only by giving the Company written notice by registered or certified mail, postage prepaid, at the following address of your intent to exercise an Option, including the number of Shares that you intend to acquire and the full consideration therefore: ATC Holdings, Inc. 17911 Von Karman Avenue, Suite 200 Irvine, California 92614 Attn: M'Liss Jones Kane 7. CONSIDERATION. If you exercise any Options, the purchase price provided for pursuant to Paragraph 2 of this Letter of Grant must be paid by you in cash or stock. The Shares will not be transferred to you on the exercise of an Option until the full consideration therefor has been received by the Company. William P. Foley, II July 1, 1997 Page Three 8. VALUATION AND WITHHOLDING. The Company shall, at the time of issuance of any Shares purchased pursuant to the Plan, provide you with a statement of valuation of the Shares issued. At the time of exercise of all or any portion of the Options, the Company shall be entitled to withhold amounts from your compensation in an amount necessary to adequately provide for applicable federal, state and local taxes. The withholding may be made in a manner determined by the Company, including, without limitation, the following: (i) withholding other compensation payable to you, (ii) holding back the number of Shares necessary to satisfy the withholding amount, or (iii) obtaining cash from you in an amount sufficient to satisfy the withholding requirements. Until the Company is satisfied that any applicable withholding taxes have been adequately provided for, the Shares will not be transferred to you on the exercise of an Option. 9. CONDITIONS OF ISSUANCE OF SHARES. Any Shares issued upon exercise of any Options shall not be issued unless the issuance and delivery of Shares pursuant thereto shall comply with all relevant provisions of law including, without limitation, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, any applicable state securities or "Blue Sky" law or laws (or an exemption from such provision if available), and the requirements of any stock exchange upon which the Shares may then be listed and shall be further subject to the approval of counsel for the Company with respect to such compliance. No transfer of any Shares issued upon the exercise of any such Options will be permitted by the Company, unless any request for transfer is accompanied by evidence satisfactory to the Company that the proposed transfer will not result in a violation of any applicable law, rule or regulation, whether federal or state, including in the discretion of the Company an opinion of counsel reasonable and acceptable to the Company. Inability of the Company to obtain approval from any regulatory body having jurisdictional authority deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder shall relieve the Company of any liability in the respect of the nonissuance or sale of such Shares as to which such requisite authority shall not have been obtained. 10. EFFECTIVE DATE OF GRANT. The effective date of grant of the Options is July 1, 1997. You should execute the enclosed copy of this Letter of Grant and return the executed document to the Company as soon as possible. The additional copies are for your records. William P. Foley, II July 1, 1997 Page Four 11. ACKNOWLEDGEMENT. You acknowledge receipt of a copy of the Plan and represent that you are familiar with the terms and provisions thereof. You hereby accept this Letter of Grant and the Options granted hereby subject to all terms and provisions hereof. You agree to accept as binding, conclusive and final all decisions or interpretations of the Board of Directors or a committee thereof upon any questions arising under the Plan. You agree to consult your independent tax advisors with respect to the income tax consequences to you, if any, of participating in the Plan. Sincerely, ATC HOLDINGS, INC. By: /s/ WAYNE D. DIAZ ------------------------------- Wayne D. Diaz President ACCEPTED AND AGREED TO: /s/ WILLIAM P. FOLEY, II - ---------------------------------- William P. 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