-----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, FcOjVVb56XZ123bkg1nFZ4vq9vGKWcYEvLrTJDarh3hEtjH9GPur2iFPd6NVH/g1 p1KZ/Oh/dRHMbuZks1D+zg== 0000950131-01-501347.txt : 20010514 0000950131-01-501347.hdr.sgml : 20010514 ACCESSION NUMBER: 0000950131-01-501347 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20010331 FILED AS OF DATE: 20010511 FILER: COMPANY DATA: COMPANY CONFORMED NAME: APTARGROUP INC CENTRAL INDEX KEY: 0000896622 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 363853103 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-11846 FILM NUMBER: 1629563 BUSINESS ADDRESS: STREET 1: 475 W TERRA COTTA AVE STREET 2: STE E CITY: CRYSTAL LAKE STATE: IL ZIP: 60014 BUSINESS PHONE: 8154770424 MAIL ADDRESS: STREET 1: 475 W. TERRA COTTA AVE. SUITE E CITY: CRYSTAL LAKE STATE: IL ZIP: 60014 10-Q 1 d10q.txt FORM 10-Q ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549-1004 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 March 31, 2001 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 1-11846 AptarGroup, Inc. (Exact Name of Registrant as Specified in its Charter) DELAWARE 36-3853103 -------- ---------- (State of Incorporation) (I.R.S. Employer Identification No.) 475 West Terra Cotta Avenue, Suite E, Crystal Lake, Illinois 60014 - ------------------------------------------------------------ ----- (Address of Principal Executive Offices) (Zip Code) 815-477-0424 ------------ (Registrant's Telephone Number, Including Area Code) 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 requirements for the past 90 days. Yes X No ________ ------- Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date (May 8, 2001). Common Stock 35,758,379 ================================================================================ AptarGroup, Inc. Form 10-Q Quarter Ended March 31, 2001 INDEX
Page ---- Part I. FINANCIAL INFORMATION Item 1. Financial Statements Consolidated Statements of Income - Three Months Ended March 31, 2001 and 2000 (Unaudited) 3 Consolidated Balance Sheets - March 31, 2001 and December 31, 2000 (Unaudited) 4 Consolidated Statements of Cash Flows - Three Months Ended March 31, 2001 and 2000 (Unaudited) 6 Notes to Consolidated Financial Statements 7 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 11 Item 3. Quantitative and Qualitative Disclosures about Market Risk 16 Part II. OTHER INFORMATION Item 2. Changes in Securities and Use of Proceeds 17 Item 6. Exhibits and Reports on Form 8-K 17 SIGNATURE 18
2 AptarGroup, Inc. Consolidated Statements of Income For the Three Months Ended March 31, 2001 and 2000 (Amounts in Thousands, Except Per Share Data) (Unaudited)
Three Months Ended March 31, ------------------- 2001 2000 -------- -------- Net Sales.............................................. $232,899 $217,646 -------- -------- Operating Expenses: Cost of sales......................................... 146,347 134,318 Selling, research & development and administrative.... 36,581 36,357 Depreciation and amortization......................... 18,697 18,380 -------- -------- 201,625 189,055 -------- -------- Operating Income....................................... 31,274 28,591 -------- -------- Other Income (Expense): Interest expense...................................... (4,634) (4,122) Interest income....................................... 671 179 Equity in results of affiliates....................... (36) (225) Minority interests.................................... (240) (57) Miscellaneous, net.................................... 252 829 -------- -------- (3,987) (3,396) -------- -------- Income Before Income Taxes............................. 27,287 25,195 Provision for Income Taxes............................. 9,113 8,919 -------- -------- Net Income Before Cumulative Effect of a Change in Accounting Principle for Derivative Instruments and Hedging Activities.................................... $ 18,174 $ 16,276 -------- -------- Cumulative Effect of a Change in Accounting Principle.. (64) -- -------- -------- Net Income............................................. $ 18,110 $ 16,276 ======== ======== Net Income Per Common Share: Basic................................................. $ .51 $ .45 ======== ======== Diluted............................................... $ .50 $ .45 ======== ========= Average number of shares outstanding: Basic................................................. 35,683 36,136 Diluted............................................... 36,344 36,466
See accompanying notes to consolidated financial statements. 3 AptarGroup, Inc. Consolidated Balance Sheets (Amounts in Thousands, Except Per Share Data) (Unaudited)
March 31, December 31, 2001 2000 --------- ------------ Assets Current Assets: Cash and equivalents........................................ $ 55,689 $ 55,559 Accounts and notes receivable, less allowance for doubtful accounts of $6,708 in 2001 and $6,927 in 2000.............. 206,105 210,794 Inventories................................................. 122,706 121,522 Prepayments and other....................................... 20,482 19,674 --------- --------- 404,982 407,549 --------- --------- Property, Plant and Equipment: Buildings and improvements.................................. 106,442 108,905 Machinery and equipment..................................... 662,362 665,991 -------- --------- 768,804 774,896 Less: Accumulated depreciation.............................. (408,980) (402,412) --------- --------- 359,824 372,484 Land........................................................ 4,695 4,949 --------- --------- 364,519 377,433 --------- --------- Other Assets: Investments in affiliates................................... 10,587 11,127 Goodwill, less accumulated amortization of $13,479 in 2001 and $13,093 in 2000................................ 124,454 127,754 Miscellaneous............................................... 26,838 28,376 --------- --------- 161,879 167,257 --------- --------- Total Assets............................................ $ 931,380 $ 952,239 ========= =========
See accompanying notes to consolidated financial statements. 4 AptarGroup, Inc. Consolidated Balance Sheets (Amounts in Thousands, Except Per Share Data) (Unaudited)
March 31, December 31, 2001 2000 --------- ------------ Liabilities and Stockholders' Equity Current Liabilities: Notes payable...................................... $ 24,110 $ 29,248 Current maturities of long-term obligations........ 8,460 10,326 Accounts payable and accrued liabilities........... 160,361 163,528 --------- -------- 192,931 203,102 --------- -------- Long-Term Obligations............................... 252,819 252,752 --------- -------- Deferred Liabilities and Other: Deferred income taxes.............................. 35,334 35,873 Retirement and deferred compensation plans......... 12,162 12,597 Minority interests................................. 4,998 5,050 Deferred and other non-current liabilities......... 1,824 2,325 --------- -------- 54,318 55,845 --------- -------- Stockholders' Equity: Common stock, $.01 par value....................... 368 366 Capital in excess of par value..................... 117,105 115,034 Retained earnings.................................. 455,584 439,258 Accumulated other comprehensive income............. (116,053) (89,163) Less treasury stock at cost, 1,025 shares in 2001 and 1,000 shares in 2000........................ (25,692) (24,955) --------- -------- 431,312 440,540 --------- -------- Total Liabilities and Stockholders' Equity......... $ 931,380 $952,239 ========= ========
See accompanying notes to consolidated financial statements. 5 AptarGroup, Inc. Consolidated Statements of Cash Flows (Amounts in Thousands, brackets denote cash outflows) (Unaudited)
Three Months Ended March 31, ---------------------------- 2001 2000 -------- -------- Cash Flows From Operating Activities: Net income................................................................. $ 18,110 $ 16,276 Adjustments to reconcile net income to net cash provided by operations: Depreciation.............................................................. 17,571 17,069 Amortization.............................................................. 1,126 1,311 Provision for bad debts................................................... 385 323 Minority interests........................................................ 240 57 Cumulative effect of accounting change, net of tax........................ 64 -- Deferred income taxes..................................................... (1,168) (58) Retirement and deferred compensation plans................................ (1,053) 1,102 Equity in results of affiliates in excess of cash distributions received.. 36 225 Changes in balance sheet items, excluding effects from foreign currency adjustments: Accounts receivable..................................................... (8170) (15,501) Inventories............................................................. (6,928) (12,801) Prepaid and other current assets........................................ (1,789) (8,033) Accounts payable and accrued liabilities................................ 2,193 7,877 Other changes, net...................................................... 8,598 12,804 -------- -------- Net Cash Provided by Operations............................................. 29,215 20,651 -------- -------- Cash Flows From Investing Activities: Capital expenditures....................................................... (20,462) (16,381) Disposition of property and equipment...................................... 209 1,988 Acquisition of businesses.................................................. -- (2,271) Investments in affiliates.................................................. (32) -- -------- -------- Net Cash (Used) by Investing Activities..................................... (20,285) (16,664) -------- -------- Cash Flows From Financing Activities: Change in notes payable.................................................... (4,854) 11,165 Proceeds from long-term obligations........................................ 3,068 1,534 Repayments of long-term obligations........................................ (2,821) (2,959) Dividends paid............................................................. (1,782) (1,808) Proceeds from stock options exercised...................................... 2,073 290 Purchase of treasury stock................................................. (737) (9,363) -------- -------- Net Cash (Used) by Financing Activities..................................... (5,053) (1,141) -------- -------- Effect of Exchange Rate Changes on Cash..................................... (3,747) (1,100) -------- -------- Net Increase in Cash and Equivalents........................................ 130 1,746 Cash and Equivalents at Beginning of Period................................. 55,559 32,416 -------- -------- Cash and Equivalents at End of Period....................................... $ 55,689 $ 34,162 ======== ========
See accompanying notes to consolidated financial statements. 6 AptarGroup, Inc. Notes to Consolidated Financial Statements (Amounts in Thousands, Except per Share Data, or Otherwise Indicated) (Unaudited) Note 1 - Basis of Presentation The accompanying unaudited consolidated financial statements include the accounts of AptarGroup, Inc. and its subsidiaries. The terms "AptarGroup" or "Company" as used herein refer to AptarGroup, Inc. and its subsidiaries. In the opinion of management, the unaudited consolidated financial statements include all adjustments, consisting of only normal recurring adjustments, necessary for a fair presentation of consolidated financial position and results of operations for the interim periods presented. The accompanying unaudited consolidated financial statements have been prepared by the Company, without audit, pursuant to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosure normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America (GAAP) have been condensed or omitted pursuant to such rules and regulations, although the Company believes that the disclosures made are adequate to make the information presented not misleading. Accordingly, these unaudited consolidated financial statements and related notes should be read in conjunction with the consolidated financial statements and notes thereto included in the Company's Annual Report to Shareholders incorporated by reference into the Company's Annual Report on Form 10-K for the year ended December 31, 2000. The results of operations of any interim period are not necessarily indicative of the results that may be expected for the year. Note 2 - Inventories At March 31, 2001 and December 31, 2000, approximately 23% and 25%, respectively, of the total inventories are accounted for by the LIFO method. Inventories, by component, consisted of:
March 31, December 31, 2001 2000 --------- ------------ Raw materials................. $ 53,029 $ 55,429 Work in progress.............. 21,860 20,975 Finished goods................ 49,729 46,805 -------- -------- 124,618 123,209 Less LIFO Reserve............. (1,912) (1,687) -------- -------- Total......................... $122,706 $121,522 ======== ========
Inventories are stated at cost, which is lower than market. Costs included in inventories are raw materials, direct labor and manufacturing overhead. The cost of certain domestic and foreign inventories are determined by using the last-in, first-out "LIFO" method, while the remaining inventories are valued using the first-in, first-out (FIFO) method. 7 Note 3 - Comprehensive (Loss)/Income AptarGroup's total comprehensive (loss)/income was as follows:
Three Months Ended March 31, ---------------------------- 2001 2000 ------- ------- Net income..................................... $ 18,110 $ 16,276 Less: foreign currency translation adjustment.. (26,890) (16,086) ------- -------- Total comprehensive (loss) income.............. $ (8,780) $ 190 ======== ========
Note 4 - Stock Repurchase Program In 1999, the Board of Directors authorized the repurchase of a maximum of one million shares of the Company's outstanding shares and in the fourth quarter of 2000, the Board of Directors authorized the repurchase of up to an additional two million of the Company's outstanding shares. The timing of and total amount expended for the share repurchase depends upon market conditions. During the quarter ended March 31, 2001, the Company repurchased 25 thousand shares for an aggregate amount of $737 thousand. The cumulative total number of shares repurchased at March 31, 2001 was 1,025,000 shares for an aggregate amount of $25.7 million. Note 5 - Derivative Instruments and Hedging Activities Effective January 1, 2001, the Company adopted Statement of Financial Account Standards ("SFAS") No. 133, "Accounting for Derivative Instruments and Hedging Activities", and its related amendment SFAS No. 138, "Accounting for Certain Derivative Instruments and Certain Hedging Activities." These standards require that all derivative financial instruments be recorded in the consolidated balance sheets at fair value as either assets or liabilities. Changes in the fair value of derivatives will be recorded in each period in earnings or accumulated other comprehensive income, depending on whether a derivative is designated and effective as part of a hedge transaction. In accordance with the transition provisions of SFAS 133, the Company recorded the following cumulative effect adjustment in earnings as of January 1, 2001: Related to designated fair value hedging relationships Fair value of interest rate swaps $ 1,868 Offsetting changes in fair value of debt (1,868) Related to foreign currency forward exchange contracts Fair value of foreign currency forward exchange contracts (965) Previously deferred gains and losses 1,027 Related to cross currency swap Fair value of cross currency swap 1,436 Previously deferred gains and losses (1,576) Tax effect on above items 14 ------- Total cumulative effect of adoption on earnings, net of tax $ (64) =======
8 The Company maintains a foreign exchange risk management policy designed to establish a framework to protect the value of the Company's foreign denominated transactions from adverse changes in exchange rates. Sales of the Company's products can be denominated in a currency different from the currency in which the related costs to produce the product are denominated. Changes in exchange rates on such inter-country sales impact the Company's results of operations. The Company's policy is not to engage in speculative foreign currency hedging activities, but to minimize its net foreign currency transaction exposure defined as firm commitments and transactions recorded and denominated in currencies other than the functional currency. The Company may use foreign currency forward exchange contracts, currency swaps, options and cross currency swaps to hedge these risks. The Company maintains an interest rate risk management strategy to minimize significant, unanticipated earnings fluctuations that may arise from volatility in interest rates. For derivative instruments designated as hedges, the Company formally documents the nature and relationships between the hedging instruments and the hedged items, as well as the risk management objectives, strategies for undertaking the various hedge transactions, and the method of assessing hedge effectiveness. Additionally, in order to designate any derivative instrument as hedges of anticipated transactions, the significant characteristics and expected terms of any anticipated transaction must be specifically identified, and it must be probable that the anticipated transaction will occur. Fair Value Hedges The Company uses interest rate swaps to convert a portion of its fixed-rate debt into variable-rate debt. Under the interest rate swap contracts, the Company exchanges at specified intervals, the difference between fixed-rate and floating-rate amounts, which is calculated based on an agreed upon notional amount. As of March 31, 2001, the Company has recorded the fair value of derivative instrument assets of $3 million in miscellaneous other assets with an offsetting adjustment to debt. No gain or loss was recorded in the income statement for the quarter ended March 31, 2001 since there was no hedge ineffectiveness. Cash Flow Hedges The Company did not use any cash flow hedges in the quarter ended March 31, 2001. Hedge of Net Investments in Foreign Operations A significant number of the Company's operations are located outside of the United States. Because of this, movements in exchange rates may have a significant impact on the translation of the financial conditions and results of operations of the Company's foreign entities. A strengthening U.S. dollar relative to foreign currencies has a dilutive translation effect on the Company's financial condition and results of operations. Conversely, a weakening U.S. dollar has an additive effect. The Company in some cases maintains debt in these subsidiaries to offset the net asset exposure. The Company does not otherwise actively manage this risk using derivative financial instruments. In the event the 9 Company plans on a full or partial liquidation of any of its foreign subsidiaries where the Company's net investment is likely to be monetized, corporate treasury will consider hedging the currency exposure associated with such a transaction. Other As of March 31, 2001, the Company has recorded the fair value of foreign currency forward exchange contracts of $398 thousand in the accounts payable and accrued liabilities in the balance sheet. Note 6 - Contingencies The Company, in the normal course of business, is subject to a number of lawsuits and claims both actual and potential in nature. Management believes the resolution of these claims and lawsuits will not have a material adverse effect on the Company's financial position or results of operations. 10 Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Results of Operations Net sales for the quarter ended March 31, 2001 totaled $232.9 million, an increase of approximately $15.3 million or 7% from the corresponding period of 2000. Net sales were negatively affected by the translation of AptarGroup's foreign sales into U.S. dollars due to the stronger U.S. dollar relative to the same three-month period of 2000. Net sales, excluding changes in foreign currency exchange rates ("Core Sales"), grew 12% compared to the prior year. Core Sales to the fragrance/cosmetics market continued at a strong level. Core Sales to the European personal care market also remained strong while sales to the U.S. personal care market showed modest signs of improvement. Core Sales to the food/beverage and pharmaceutical markets also improved over the prior year. Increased selling prices did not have a material impact on Core Sales growth in the first quarter 2001. The following table sets forth (in thousands of dollars), for the periods indicated, net sales by geographic region. 2000 % of Total 1999 % of Total - ------------------------------------------------------------------------------- Domestic $ 84,927 37% $ 83,947 39% Europe 128,653 55% 117,538 54% Other Foreign 19,315 8% 16,161 7%
Cost of sales as a percent of net sales increased to 62.8% in the first quarter of 2001 compared to 61.7% in the same period a year ago. The effect of LIFO inventory valuation increased cost of sales $225 thousand in the first quarter 2001. The cost of sales percentage was negatively impacted by the following factors: . The consolidation of a former joint venture for the entire quarter ended March 31, 2001 that was accounted for on the equity method of accounting for the first two months of 2000; and . The mix of the products sold in the quarter compared to the prior year; and Offsetting these negative factors were the following positive impacts: . Better utilization of fixed costs in Europe due to the strong sales to the fragrance/cosmetic market; and . The effect of the Company manufacturing products in Europe and incurring costs in Euros and selling these products in countries outside of Europe in currencies that were stronger than the Euro relative to the prior year. Selling, research & development and administrative expenses (SG&A) increased slightly to $36.6 million in the first quarter of 2001 compared to $36.4 million in the same period a year ago. SG&A decreased as a percentage of net sales to 15.7% from 16.7% recorded a year ago. The decrease in SG&A as a percentage of net sales is primarily due to cost containment efforts while continuing to grow the business. 11 Depreciation and amortization increased approximately $300 thousand to $18.7 million compared to $18.4 million a year ago. The increase in depreciation and amortization is primarily related to higher depreciation charges associated with expenditures for new products and increases in capacity offset somewhat by the effect of translating the depreciation of foreign entities into U.S. dollars using a stronger U.S. dollar relative to the same period a year ago. Operating income increased to $31.3 million compared to $28.6 million in the prior year primarily due to the reasons mentioned above. This includes the negative effect of translating the Company's foreign denominated results into a stronger U.S. dollar relative to the same period a year ago. The net of this negative translation impact with the positive impact of incurring manufacturing costs in Europe and selling in currencies that gained strength against the Euro in 2001 was a negative impact of approximately $500 thousand. Net other expenses increased to $4.0 million in the first quarter 2001 from $3.4 million in the prior year. The change was due primarily to less gains on foreign exchange transactions in 2001 compared to the prior year. Interest expense in excess of interest income (Net Interest Expense) remained unchanged from the prior year. The effective tax rate for the three months ended March 31, 2001 was 33.4%, compared to 35.4% for the same period a year ago. The decrease in the effective tax rate is primarily attributed to lower corporate tax rates in both France and Germany. The Company expects the effective tax rate for 2001 to be in the range of 33% to 34%. Net income after cumulative effect of a change in accounting principle for the first quarter increased 11% to $18.1million compared to $16.3 million in the first quarter of 2000. Foreign Currency A significant number of the Company's operations are located outside of the United States. Because of this, movements in exchange rates may have a significant impact on the translation of the financial conditions and results of operations of AptarGroup's foreign entities. The Company's primary foreign exchange exposure is to the Euro, but the Company also has foreign exchange exposure to South American and Asian currencies as well as the British Pound. A strengthening U.S. dollar relative to foreign currencies has a dilutive translation effect on the Company's financial condition and results of operations. Conversely, a weakening U.S. dollar has an additive effect. Additionally, in some cases, the Company sells products denominated in a currency different from the currency in which the related costs are incurred. Changes in exchange rates on such inter-country sales impact the Company's results of operations. Quarterly Trends AptarGroup's results of operations in the second half of the year typically are negatively impacted by European summer holidays and customer plant shutdowns in December. In the future, AptarGroup's results of operations in a quarterly period could be impacted by factors such as changes in product mix, changes in material costs, changes in growth rates in the industries to which AptarGroup's 12 products are sold, and changes in general economic conditions in any of the countries in which AptarGroup does business. Liquidity and Capital Resources Historically, AptarGroup has generated positive cash flow from operations and has utilized the majority of such cash flows for acquisitions and to invest in capital projects. Net cash provided by operations in the first three months of 2001 was $29.2 million compared to $20.7 million in the same period a year ago. The increase is primarily attributed to less cash used for working capital related accounts in 2001 than for the same period a year ago as well as higher net income. Net cash used by investing activities in the three months of 2001 increased to $20.3 million from $16.7 million in the same period a year ago. Capital expenditures in the first quarter of 2001 were approximately $20 million or $4 million higher than capital expenditures in the first quarter of 2000 as the Company continues to invest in property, plant and equipment primarily for product line enhancements, new products and capacity increases. Management anticipates that cash outlays for capital expenditures for all of 2001 will be approximately $90 million. Net cash used by financing activities increased to $5.1 million in the first three months of 2001 compared to $1.1 million in 2000. The increase in net cash used by financing activities is primarily due to a decrease or repayment in short term notes payable in 2001 compared to an increase in the prior year. The ratio of net debt to total net capitalization was 34.7% and 35.0% at March 31, 2001 and December 31, 2000, respectively. Net debt is defined as debt less cash and cash equivalents and total net capitalization is defined as stockholder's equity plus net debt. The Company amended its multi-year, multi-currency unsecured revolving credit agreement in December of 2000 to increase maximum borrowings allowed from $75 million to $100 million. Under this credit agreement, interest on borrowings is payable at a rate equal to LIBOR plus an amount based on the financial condition of the Company. At March 31, 2001, the amount unused and available under this agreement was $17 million. At December 31, 2000, the amount unused and available under this agreement was $15 million. The Company is required to pay a fee for the unused portion of the commitment. The agreement expires on June 30, 2004. The credit available under the revolving credit agreement provides management with the ability to refinance certain short-term obligations on a long-term basis. As it is management's intent to do so, an additional $17 million and $15 million of short-term obligations representing the unused and available amount under the credit agreement have been reclassified as long-term obligations as of March 31, 2001 and December 31, 2000, respectively. The Company's foreign operations have historically met cash requirements with the use of internally generated cash and borrowings. Foreign subsidiaries have financing arrangements with several foreign banks to fund operations located outside of the U.S., but all of these lines are uncommitted. Cash generated by foreign operations has been reinvested locally and the Company intends to continue to reinvest the undistributed earnings of foreign subsidiaries. A decision to change this past practice and to transfer such cash to the United States in the future may be impacted to the extent management believes the transaction costs and taxes associated with such transfers are less than the expected benefits of continued reinvestment. 13 The Company believes that it has the financial resources needed to meet business requirements and stock repurchases in the foreseeable future, including capital expenditures, working capital requirements, future dividends and potential acquisitions. The Board of Directors declared a quarterly dividend of $.05 per share payable on May 23, 2001 to shareholders of record as of May 2, 2001. Outlook The demand for the Company's fragrance/cosmetic products remains strong for the second quarter. Sales to the pharmaceutical market are expected to be slightly better in the second quarter compared to the first quarter of 2001 and are expected to continue to increase for the remainder of the year as certain new customer projects are expected to be launched in the second half of 2001. The outlook for the sales of the Company's products to the other markets for the second quarter also remains positive. In the second quarter of 2001, the Company has begun a strategic initiative to improve the efficiency of operations that produce pumps for the mass-market fragrance/cosmetic and personal care customers. Certain manufacturing operations will be consolidated in order to realize production efficiencies in making base cartridges (standard internal components) of the pumps, while final assembly will remain in local geographic areas. The Company expects these changes to be completed by the end of 2002 with cash savings estimated to exceed $5 million annually. Expenses related to this initiative are expected to include non- recurring cash outlays of approximately $3 million that primarily relate to a net labor reduction of approximately 100 people. In addition, based upon a preliminary evaluation of plant and equipment, the Company anticipates non- recurring non-cash charges to be in the range of $6 to $9 million. These charges will be recorded in future quarters based on when they are recognizable for accounting purposes. The Company expects to achieve its previously announced full year 2001 guidance of earnings per share of $1.95 to $2.05 per share excluding any non-recurring charges relating to the strategic initiative discussed above. 14 Forward-Looking Statements In addition to the historical information presented in this quarterly report, the Company has made and will make certain forward-looking statements in this report, other reports filed by the Company with the Securities and Exchange Commission, reports to stockholders and in certain other contexts relating to future net sales, costs of sales, other expenses, profitability, financial resources, products and production schedules. Statements relating to the foregoing or that predict or indicate future events and trends and which do not relate solely to historical matters identify forward-looking statements. Forward-looking statements are made pursuant to the safe harbor provisions of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 and are based on management's beliefs as well as assumptions made by and information currently available to management. Accordingly, the Company's actual results may differ materially from those expressed or implied in such forward-looking statements due to known and unknown risks and uncertainties that exist in the Company's operations and business environment, including, among other factors, government regulation including tax rate policies, competition and technological change, intellectual property rights, the failure by the Company to produce anticipated cost savings or improve productivity, the ability to successfully execute the Company's strategic initiative, the timing and magnitude of capital expenditures and acquisitions, currency exchange rates, economic and market conditions in North America, Europe and the rest of the world, changes in customer spending levels, the demand for existing and new products, the cost and availability of raw materials, the successful integration of the Company's acquisitions, and other risks associated with the Company's operations. Although the Company believes that its forward-looking statements are based on reasonable assumptions, there can be no assurance that actual results, performance or achievements will not differ materially from any future results, performance or achievements expressed or implied by such forward-looking statements. Readers are cautioned not to place undue reliance on forward-looking statements. 15 Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK The Company manages its exposures to foreign exchange principally with forward exchange contracts to hedge certain firm purchase and sales commitments and intercompany cash transactions denominated in foreign currencies. The table below provides information as of March 31, 2001 about the Company's forward currency exchange contracts. All the contracts expire before the end of the third quarter of 2001.
Average Contractual Buy/Sell Contract Amount Exchange Rate - ----------------------------------------------------- EURO/USD.. $17,214 1.1006 EURO/YEN.. 1,342 .009836 EURO/GBP.. 1,235 1.587303 Other..... 973 ------- Total..... $20,764 =======
The other contracts in the above table represent contracts to buy or sell various other currencies (principally Asian and Australian). If the Company cancelled the forward exchange contracts at March 31, 2001, the Company would have paid approximately $0.4 million based on the fair value of the contracts on that date. All forward exchange contracts outstanding as of March 31, 2000 had an aggregate contract amount of $29.1 million. The Company had a cross-currency interest rate swap to hedge an intercompany lending transaction that was cancelled during the quarter. The loss on cancellation of this swap was immaterial. At March 31, 2001, the Company has fixed-to-variable interest rate swap agreements with a notional principal value of $50 million which require the Company to pay an average variable interest rate of 6.61% and receive a fixed rate of 6.62%. The variable rates are adjusted semiannually based on London Interbank Offered Rates ("LIBOR"). Variations in market interest rates would produce changes in the Company's net income. If there were a hypothetical 10% increase in interest rates, net income related to the interest rate swap agreements would decrease by approximately $0.2 million assuming a tax rate of 33%. If the Company canceled the swaps at March 31, 2001, the Company would have received approximately $3.0 million based on the fair value of the swaps on that date. 16 PART II - OTHER INFORMATION ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS During the quarter ended March 31, 2001, the FCP Aptar Savings Plan (the "Plan") purchased 60 shares of Common Stock of the Company on behalf of the participants at an average price of $27.00 per share for an aggregate amount of $1,620. During the same quarter, the Plan sold 200 shares of Common Stock of the Company at the average price of $30.24 per share for an aggregate amount of $6,048. At March 31, 2001, the Plan owns 3,795 shares of Common Stock of the Company. Employees of AptarGroup S.A., a French subsidiary of the Company, are eligible to participate in the Plan. All eligible participants are located outside of the United States. An agent independent of the Company purchases shares of Common Stock available under the Plan for cash on the open market and the Company issues no shares. The Company does not receive any proceeds from the purchase of Common Stock under the Plan. The agent under the Plan is Banque Nationale de Paris. No underwriters are used under the Plan. All shares are sold in reliance upon the exemption from registration under the Securities Act of 1933 provided by Regulation S promulgated under that Act. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K a) See the attached Index To Exhibits b) No reports on Form 8-K were filed for the quarter ended March 31, 2001. 17 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. AptarGroup, Inc (Registrant) By /s/ Stephen J. Hagge -------------------- Stephen J. Hagge Executive Vice President, Chief Financial Officer and Secretary (Duly Authorized Officer and Principal Financial Officer) Date: May 11, 2001 18 INDEX TO EXHIBITS Number and Description of Exhibit - --------------------------------- 10.25* Indemnification Agreement dated January 1, 1996, between AptarGroup, Inc. and King Harris. * Filed herewith. 19 EX-10.25 2 dex1025.txt INDEMNIFICATION AGREEMENT DTD 01/01/96 INDEMNIFICATION AGREEMENT AGREEMENT made as of January 1, 1996, between AptarGroup, Inc., a Delaware corporation (the "Company"), and King Harris (the "Indemnitee"). WHEREAS, it is essential to the Company and its stockholders to attract and retain qualified and capable directors; WHEREAS, the Amended and Restated Certificate of Incorporation of the Company (the "Certificate of Incorporation") requires the Company to indemnify directors to the extent not prohibited by law and to advance expenses to its directors in defending any threatened, pending or completed action, suit or proceeding; WHEREAS, historically, basic protection against undue risk of personal liability of directors has been provided through insurance coverage affording reasonable protection at reasonable cost; WHEREAS, it is presently uncertain whether, and to what extent, such insurance is or will continue to be available to the Company at a reasonable cost for the protection of Indemnitee; WHEREAS, in recognition of Indemnitee's need for protection against personal liability in order to induce Indemnitee to serve as Chairman of the Board or the Company in a non-executive capacity commencing January 1, 1996 and to supplement [or replace] the Company's liability insurance coverage, and in part to provide Indemnitee with specific contractual assurance that the protection required by the Certificate of Incorporation will be available to Indemnitee (regardless of, among other things, any amendment to or revocation of the Certificate of Incorporation or any change in the composition of the Company's Board of Directors or any acquisition transaction relating to the Company), the Company wishes to provide Indemnitee with the benefits contemplated by this Agreement; and WHEREAS, Indemnitee has agreed to serve as Chairman of the Board of the Company in a non-executive capacity commencing January 1, 1996; NOW, THEREFORE, the parties hereto hereby agree as follows: 1. Definitions. The following terms used herein shall have the following respective meanings: (a) An Affiliate: of a specified Person is a Person who directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. The term Associate used to indicate a relationship with any Person shall mean (1) any corporation or organization (other than the Company or a Subsidiary) of which such Person is an officer or partner or is, directly or indirectly, the Beneficial Owner of ten percent (10%) or more of any class of Equity Securities, (2) any trust or other estate in which such Person has a substantial beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity (other than an Employee Plan Trustee (as defined in Section 1(b) hereof)), (3) any Relative of such Person or (4) any officer or director of any corporation controlling or controlled by such Person. (b) Beneficial Ownership: shall be determined, and a Person shall be the Beneficial Owner of all securities which such Person is deemed to own beneficially, pursuant to Rule 13d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (or any successor rule or statutory provision), or, if such Rule 13d-3 shall be rescinded and there shall be no successor rule or statutory provision thereto, pursuant to such Rule 13d-3 as in effect on the date hereof; provided, however, that a Person shall, in any event, also be deemed to be the Beneficial Owner of any Voting Shares: (1) of which such Person or any of its Affiliates or Associates is, directly or indirectly, the Beneficial Owner, or (2) of which such Person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) sole or shared voting or investment power with respect thereto pursuant to any agreement, arrangement, understanding, relationship or otherwise (but shall not be deemed to be the Beneficial Owner of any Voting Shares solely by reason of a revocable proxy granted for a particular meeting of stockholders, pursuant to a public solicitation of proxies for such meeting, with respect to shares of which neither such Person nor any such Affiliate or Associate is otherwise deemed the Beneficial Owner), or (3) of which any other Person is, directly or indirectly, the Beneficial Owner if such first mentioned Person or any of its Affiliates or Associates acts with such other Person as a partnership, syndicate or other group pursuant to any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Company; and provided further, however, that (X) no director or officer of the Company, nor any Associate or Affiliate of any such director or officer, shall, solely by reason of any or all of such directors and officers acting in their capacities as such, be deemed for any purposes hereof, to be the Beneficial Owner of any Voting Shares of which any other such director or officer (or any Associate or Affiliate thereof) is the Beneficial Owner and (Y) no trustee of an employee stock ownership or similar plan of the Company or any Subsidiary ("Employee Plan Trustee") or any Associate or Affiliate of any such Trustee, shall, solely by reason of being an Employee Plan Trustee or Associate or Affiliate of an Employee Plan Trustee, be deemed for any purposes hereof to be the Beneficial Owner of any Voting Shares held by or under any such plan. 2 (c) A Change in Control: shall be deemed to have occurred (1) upon the occurrence of a Stock Acquisition Date, as defined in the Company's Rights Agreement, dated as of April 6, 1993, and as amended from time to time (provided that if a successor rights agreement is adopted, then as defined in such agreement, and if the Company's Rights Agreement is (i) terminated or expires without a successor agreement thereto, then as defined in the latest terminating or expiring rights agreement at the time of such termination or expiration, or (ii) amended or a successor rights agreement is adopted and, in either such case, does not define Stock Acquisition Date, then as last defined in the Company's Rights Agreement or successor rights agreement); (2) when individuals who, as of April 23, 1993, constitute the Board of Directors (the "Incumbent Board") cease for any reason to constitute at least a majority of such Board; provided, however, that any individual who becomes a director of the Company subsequent to such date whose election, or nomination for election by the Company's stockholders, was approved by the vote of at least a majority of the directors then comprising the Incumbent Board shall be deemed to have been a member of the Incumbent Board; and provided, further, that no individual who was initially elected as a director of the Company as a result of an actual or threatened election contest, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended, or any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board shall be deemed to have been a member of the Incumbent Board; (3) upon approval by the stockholders of the Company of a reorganization, merger or consolidation unless, in any such case, immediately after such reorganization, merger or consolidation, (i) more than 60% of the combined voting power of the securities of the corporation then outstanding and entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals or entities who were the beneficial owners of the outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Company Voting Securities") immediately prior to such reorganization, merger or consolidation and in substantially the same proportions relative to each other as their ownership, immediately prior to such reorganization, merger or consolidation, of the outstanding Company Voting Securities, (ii) no person shall be an Acquiring Person (an "Acquiring Person"), as defined in the Company's Rights Agreement dated as of April 6, 1993, and as amended from time to time (provided that if a successor rights agreement is adopted, then as defined in such agreement, and if the Company's Rights Agreement is (A) terminated or expires without a successor agreement thereto, then as defined in the latest terminating or expiring rights agreement at the time of such termination or expiration or (B) amended or a successor rights agreement is adopted and, in either such case, does not define Acquiring Person, then as last defined in the Company's Rights Agreement or successor rights agreement), and (iii) at least a majority of the members of the board of directors of the corporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board of Directors providing for such reorganization, merger or consolidation; or (4) upon approval by the stockholders of the Company of (i) a plan of complete liquidation or dissolution of the Company or (ii) the sale or other disposition of all or substantially all of the assets of the Company other than to a corporation with respect to which, immediately after such sale or other disposition, (A) more than 60% of the combined voting power of the securities of the corporation then outstanding and entitled to vote generally in the election of directors is then beneficially owned, directly or 3 indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding Company Voting Securities immediately prior to such sale or other disposition and in substantially the same proportions relative to each other as their ownership, immediately prior to such sale or other disposition, of the outstanding Company Voting Securities, as the case may be, (B) no person shall be an Acquiring Person, and (C) at least a majority of the members of the board of directors thereof were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other disposition. (d) Claim: means any threatened, pending or completed action, suit, arbitration or proceeding, or any inquiry or investigation, whether brought by or in the right of the Company or otherwise, that Indemnitee in good faith believes might lead to the institution of any such action, suit, arbitration or proceeding, whether civil, criminal, administrative, investigative or other, or any appeal therefrom. (e) Equity Security: shall have the meaning given to such term under Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on the date hereof. (f) D&O Insurance: means any valid directors' and officers' liability insurance policy maintained by the Company for the benefit of Indemnitee, if any. (g) Determination: means a determination, and Determined means a matter which has been determined based on the facts known at the time, by: (1) a majority vote of a quorum of disinterested directors, or (2) if such a quorum is not obtainable, or even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or, in the event there has been a Change in Control, by the Special Independent Counsel (as defined in Section 6 hereof), in a written opinion, selected by Indemnitee as set forth in Section 6, or (3) a majority of the disinterested stockholders of the Company, or (4) a final adjudication by a court of competent jurisdiction. (h) Excluded Claim: means any payment for Losses or Expenses in connection with any Claim: (1) based upon or attributable to Indemnitee gaining in fact any personal profit or advantage to which Indemnitee is not entitled; or (2) for the return by Indemnitee of any remuneration paid to Indemnitee without the previous approval of the stockholders of the Company which is illegal; or (3) for an accounting of profits in fact made from the purchase or sale by Indemnitee of securities of the Company within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, or similar provisions of any state law; or (4) resulting from Indemnitee's knowingly fraudulent, dishonest or willful misconduct; or (5) the payment of which by the Company under this Agreement is not permitted by applicable law. 4 (i) Expenses: means any reasonable expenses incurred by Indemnitee as a result of a Claim or Claims made against Indemnitee for Indemnifiable Events including, without limitation, attorneys' fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in any Claim relating to an Indemnifiable Event. (j) Fines: means any fine, penalty or, with respect to an employee benefit plan, any excise tax or penalty assessed with respect thereto. (k) Indemnifiable Event: means any event or occurrence, occurring prior to or on or after the date of this Agreement, related to the fact that Indemnitee is, was or has agreed to serve as, a director, officer, employee, trustee, agent or fiduciary of the Company, or is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, or by reason of anything done or not done by Indemnitee, including, but not limited to, any breach of duty, neglect, error, misstatement, misleading statement, omission, or other act done or wrongfully attempted by Indemnitee, or any of the foregoing alleged by any claimant, in any such capacity. (l) Losses: means any amounts or sums which Indemnitee is legally obligated to pay as a result of a Claim or Claims made against Indemnitee for Indemnifiable Events including, without limitation, damages, judgements and sums or amounts paid in settlement of a Claim or Claims, and Fines. (m) Person: means any individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature. (n) Potential Change in Control: shall be deemed to have occurred if (1) the Company enters into an agreement, the consummation of which would result in the occurrence of a Change in Control; (2) any Person (including the Company) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control; or (3) the Board of Directors adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control has occurred. (o) Relative: means a Person's spouse, parents, children, siblings, mother-and father-in-law, sons-and daughters-in-law, and brothers-and sister-in- law, including an adoptive relationship. (p) Reviewing Party: means any appropriate person or body consisting of a member or members of the Company's Board of Directors or any other person or body appointed by the Board (including the Special Independent Counsel referred to in Section 6) who is not a party to the particular Claim for which Indemnitee is seeking indemnification. 5 (q) Subsidiary: means any corporation of which a majority of any class of Equity Security is owned, directly or indirectly, by the Company. (r) Trust: means the trust established pursuant to Section 7 hereof. (s) Voting Shares: means any issued and outstanding shares of capital stock of the Company entitled to vote generally in the election of directors. 2. Basic Indemnification Agreement. In consideration of, and as an inducement to, Indemnitee rendering valuable services to the Company as the Chairman of the Board of the Company in a non-executive capacity, the Company agrees that in the event Indemnitee is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company will indemnify and hold harmless Indemnitee to the fullest extent authorized by law, against any and all Losses and Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such Losses and Expenses) of such Claim, whether or not such Claim proceeds to judgement or is settled or otherwise is brought to a final disposition, subject in each case, to the further provisions of this Agreement. 3. Limitations on Indemnification. Notwithstanding the provisions of Section 2, Indemnitee shall not be indemnified and held harmless from any Losses or Expenses (a) which have been Determined, as provided herein, to constitute and Excluded Claim; (b) to the extent Indemnitee is indemnified by the Company and has actually received payment pursuant to the Certificate of Incorporation, D&O Insurance or otherwise; or (c) other than pursuant to the last sentence of Section 4 (d) or Section 15, in connection with any claim initiated by Indemnitee, unless the Company has joined in or the Board of Directors has authorized such claim. 4. Indemnification Procedures. (a) Promptly after receipt by Indemnitee of notice of any Claim, Indemnitee shall, if indemnification with respect thereto may be sought from the Company under this Agreement, notify the Company of the commencement thereof; provided, however, that the failure to give such notice promptly shall not affect or limit the Company's obligations with respect to the matters described in the notice of such Claim, except to the extent that the Company is prejudiced thereby. Indemnitee agrees further not to make any admission or effect any settlement with respect so such Claim without the consent of the Company, except any Claim with respect to which the Indemnitee has undertaken the defense in accordance with the second to last sentence of Section 4(d). (b) If, at the time of the receipt of such notice, the Company has D&O Insurance in effect, the Company shall give prompt notice of the commencement of Claim to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all Losses and Expenses payable as a result of such Claim. 6 (c) To the extent the Company does not, at the time of the Claim have applicable D&O Insurance, or if a Determination is made that any Expenses arising out of such Claim will not be payable under the D&O Insurance then in effect, the Company shall be obligated to pay the Expenses of any claim in advance of the final disposition thereof and the Company, if appropriate, shall be entitled to assume the defense of such Claim, with counsel satisfactory to Indemnitee, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, the Company will not be liable to Indemnitee under this Agreement for any legal or other Expenses subsequently incurred by Indemnitee in connection with such defense other than reasonable Expenses of investigation; provided that Indemnitee shall have the right to employ counsel in such Claim but the fees and expenses of such counsel incurred after delivery of notice from the Company of its assumption of such defense shall be at the Indemnitee's expense; provided further that if: (i) the employment of counsel by Indemnitee has been previously authorized by the Company, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (iii) the Company shall not, in fact, have employed counsel to assume the defense of such action, the reasonable fees and expenses of counsel shall be at the expense of the Company. (d) All payments on account of the Company's indemnification obligations under this Agreement shall be made within sixty (60) days of Indemnitee's written request therefore unless a Determination is made that the Claims giving rise to Indemnitee's request are Excluded Claims or otherwise not payable under this Agreement; provided that all payments on account of the Company's obligation to pay Expenses under Section 4 (c) of this Agreement prior to the final disposition of any Claim shall be made within 20 days of Indemnitee's written request therefor and such obligation shall not be subject to any such Determination but shall be subject to Section 4 (e) of this Agreement. In the event the Company takes the position that Indemnitee is not entitled to indemnification in connection with the proposed settlement of any Claim, Indemnitee shall have the right at his own expense to undertake defense of any such Claim, insofar as such proceeding involves Claims against the Indemnitee, by written notice given to the Company within 10 days after the Company has notified Indemnitee in writing of its contention that Indemnitee is not entitled to indemnification; provided, however, that the failure to give such notice within such 10-day period shall not affect or limit the Company's obligations with respect to any such Claim if such Claim is subsequently determined not to be an Excluded Claim or otherwise to be payable under this Agreement, except to the extent that the Company is prejudiced thereby. If it is subsequently determined in connection with such proceeding that the Indemnifiable Events are not Excluded Claims and that Indemnitee, therefore, is entitled to be indemnified under the provisions of Section 2 hereof, the Company shall promptly indemnify Indemnitee. (e) Indemnitee hereby expressly undertakes and agrees to reimburse the Company for all Losses an Expenses paid by the Company in connection with any Claim against Indemnitee in the event and only to the extent that a Determination shall have been made by a court of competent jurisdiction in a decision from which there is no further right to appeal that Indemnitee is not entitled to be indemnified by the company for such Losses and Expenses because the Claim is an Excluded Claim or because Indemnitee is otherwise not entitled to payment under this agreement. 7 (f) In connection with any Determination as to whether Indemnitee is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee is not so entitled. 5. Settlement. The Company shall have no obligation to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any claim effected without the Company's prior written consent. The Company shall not settle any Claim in which it takes the position that Indemnitee is not entitled to indemnification in connection with such settlement without the prior written consent of Indemnitee, nor shall the Company settle any Claim in any manner which would impose any prior Fine or any obligation on Indemnitee, without Indemnitee's written consent. Neither the Company nor Indemnitee shall unreasonably withhold its or his consent to any proposed settlement. 6. Change in control; Extraordinary Transactions. The Company and Indemnitee agree that if there is a Change in Control of the Company (other that a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control or a majority of the disinterested directors of the Company immediately prior to such Change in Control) then all Determinations thereafter with respect to the rights of Indemnitee to be paid Losses and Expenses under this Agreement shall be made only by a special independent counsel (the "Special Independent Counsel") selected by Indemnitee and approved in writing by the Company (which approval shall not be unreasonably withheld) or by a court of competent jurisdiction. The Company shall pay the reasonable fees of such Special Independent Counsel and shall indemnify such Special Independent Counsel against any and all reasonable expenses (including reasonable attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. The Company convenants and agrees that, in the event of a Change in Control of the type described in clause (3) or (4) of Section 1(c), the Company will use its best efforts (1) to have the obligations of the Company under this Agreement including, but not limited to those under Section 7, expressly assumed by the surviving, purchasing or succeeding entity, or (2) to otherwise adequately provide for the satisfaction of the Company's obligations under this Agreement, in a manner reasonably acceptable to the Indemnitee. 7. Establishment of Trust. In the event of a Potential Change in Control, the Company shall, upon written request by Indemnitee, create a trust (the "Trust") for the benefit of Indemnitee and from time to time upon written request of Indemnitee shall fund the Trust in an amount sufficient to satisfy any and all Losses and Expenses which are actually paid or which Indemnitee reasonably determines from time to time may be payable by the Company under this Agreement. The amount or amounts to be deposited in the Trust pursuant to the foregoing funding obligation shall be determined by the Reviewing Party, in any case in which the Special Independent Counsel is involved. The terms of the Trust shall provide that upon a Change in Control: (a) the Trust shall not be revoked or the principal thereof invaded without the prior written consent of Indemnitee; (b) the trustee of the Trust shall advance, within 20 days of a written request by Indemnitee, any and all Expenses to Indemnitee (and Indemnitee hereby agrees to reimburse the Trust under the circumstances under which Indemnitee would be 8 required to reimburse the Company under Section 4 (e) of this Agreement); (c) the Company shall continue to fund the Trust from time to time in accordance with the funding obligations set forth above; (d) the trustee of the Trust shall promptly pay to Indemnitee all Losses and Expenses for which Indemnitee shall be entitled to indemnification pursuant to this Agreement; and (e) all unexpended funds in the Trust shall revert to the Company upon a final determination by a court of competent jurisdiction in a final decision from which there is no further right of appeal that Indemnitee has been fully indemnified under the terms of this Agreement. The trustee of the Trust shall be chosen by Indemnitee. 8. No Presumption. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. 9. Non-exclusivity, Etc. The rights of Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Certificate of Incorporation, the Company's By-laws, the Delaware General Corporation Law, any vote of stockholders or disinterested directors or otherwise, both as to action in Indemnitee's official capacity and as to action in any other capacity by holding such office, and shall continue after Indemnitee ceases to serve the Company as a director, officer, employee, agent or fiduciary, for so long as Indemnitee shall be subject to any Claim by reason of (or arising in part out of) an Indemnifiable Event. To the extent that a change in the Delaware General Corporation Law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Certificate of Incorporation and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. 10. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors' and officers' liability insurance, Indemnitee, if an officer or director of the Company, shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any director of officer of the Company. 11. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. 9 12. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the losses and Expenses of a Claim but not, however, for all of the total amount thereof, the company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to any Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. 13. Contribution. If the indemnification or reimbursement provided for hereunder is finally judicially determined by a court of competent jurisdiction to be unavailable to Indemnitee in respect of any Losses or Expenses of a Claim (other than for any reason specified in Section 3 hereof), then the Company agrees, to the extent permitted by applicable law, in lieu of indemnifying Indemnitee, to contribute to the amount paid or payable by Indemnitee as a result of such Losses or Expenses in such proportion as is appropriate to reflect the relative benefits accruing to the Company and Indemnitee with respect to the events giving rise to such Losses or Expenses. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then the Company agrees to contribute to the amount paid or payable by Indemnitee as a result of such Losses or Expenses in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and of Indemnitee with respect to the events giving rise to such Losses or Expenses. For purposes of this Section 13, (a) the relative benefits accruing to the Company shall be deemed to be the benefits accruing to it and to all of its directors, officers, employees and agents (other than Indemnitee), as a group and treated as one person (the "Company Group"), and the relative benefits accruing to Indemnitee shall be deemed to be an amount not greater than Indemnitee's compensation from the Company during the first year in which the events giving rise to such Losses or Expenses are alleged to have occurred, and (b) the relative fault of the Company shall be deemed to be the fault of the Company Group, and the relative fault of the Company and Indemnitee shall be determined by reference to the relative intent, knowledge and access to information of the Company Group and Indemnitee and their relative opportunity to have altered or prevented the events giving rise to such Losses or Expenses. 14. Liability of Company. Indemnitee agrees that neither the stockholders nor the directors nor any officer, employee, representative or agent of the Company shall be personally liable for the satisfaction of the Company's obligations under this Agreement and Indemnitee shall look solely to the assets of the Company for satisfaction of any claims hereunder. 10 15. Enforcement. (a) Indemnitee's right to indemnification and other rights under this Agreement shall be specifically enforceable by Indemnitee only in the state or Federal courts of the States of Delaware or Illinois and shall be enforceable notwithstanding any adverse Determination by the Company's Board of Directors, independent legal counsel, the Special Independent Counsel or the Company's stockholders and no such Determination shall create a presumption the Indemnitee is not entitled to be indemnified hereunder. In any such action the Company shall have the burden of proving that indemnification is not required under this Agreement. (b) In the event that any action is instituted by Indemnitee under this Agreement, or to enforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paid all court costs and reasonable expenses, including reasonable counsel fees and disbursements, incurred by Indemnitee with respect to such action, unless the court determines that each of the material assertions made by Indemnitee as a basis for such action was not made in good faith or was frivolous. 16. Severability. In the event that any provision of this Agreement is determined by a court to require the Company to do or to fail to do an act which is in violation of applicable law, such provision (including any provision within a single section, paragraph or sentence) shall be limited or modified in its application to the minimum extent necessary to avoid a violation of law, and, as so limited or modified, such provision and the balance of this Agreement shall be enforceable in accordance with their terms to the fullest extent permitted by law. 17. Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State. 18. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably consents to the jurisdiction of the courts of the States of Delaware and Illinois for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement and agrees that any action instituted under this Agreement shall be brought only in the state and Federal courts of the States of Delaware and Illinois. 19. Notices. All notices or other communications required or permitted hereunder shall be sufficiently given for all purposes if in writing and personally delivered, sent by facsimile transmission or overnight delivery service, or sent by registered or certified mail, return receipt requested, with postage prepaid addressed as follows, or to such other address as the parties shall have given notice of pursuant hereto: 11 (a) If to the Company, to: AptarGroup, Inc. 475 West Terra Cotta Ave. Suite E Crystal Lake, Illinois 60014 Attention: Secretary (b) If to Indemnitee, to: King Harris 209 East Lake Shore Drive Chicago, IL 60611 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be an original and all of which, when taken together, shall constitute one and the same instrument. 21. Successors and Assigns. This Agreement shall be (i) binding upon all successors and assigns of the Company, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, and (ii) binding upon and inure to the benefit of any successors and assigns, heirs, and personal or legal representatives of Indemnitee. 22. Amendment; Waiver. No amendment, modification, termination or cancellation of this Agreement shall be effective unless made in a writing signed by each of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. 12 IN WITNESS WHEREOF, the Company and Indemnitee have executed this Agreement as of the day and year first above written. APTARGROUP, INC. ---------------- (Registrant) By /s/ Stephen J. Hagge ------------------------ Stephen J. Hagge Executive Vice President, Chief Financial Officer and Secretary ATTEST: By /s/ Ralph Poltermann ----------------------- Ralph Poltermann Vice President, Treasurer of AptarGroup By /s/ King Harris ------------------- King Harris Chairman of the Board and Director WITNESS: By /s/ Peggy A. Odegaard ------------------------- Peggy A. Odegaard 13 -----END PRIVACY-ENHANCED MESSAGE-----