Exhibit 10.3


 


	
   

  	
  CONFIDENTIAL TREATMENT

  
	
   

  	
  REQUESTED PURSUANT TO RULE

  
	
   

  	
  24b-2 OF THE SECURITIES

  
	
   

  	
  EXCHANGE ACT OF 1934

  



 


Certain portions of this exhibit have been omitted pursuant to a
request for confidential

treatment under Rule 24b-2 of the Securities Exchange Act of 1934. The
omitted materials

have been filed separately with the Securities and Exchange Commission.


 





 


VISA
INTERNATIONAL

HOLOGRAPHIC MAGNETIC STRIPE TAPE MANUFACTURING APPROVAL

AGREEMENT


 


THIS AGREEMENT, entered into this 8th day of April 2005
(“Effective Date”), is by and between VISA
INTERNATIONAL SERVICE ASSOCIATION (“Visa”), a membership corporation
organized under the laws of the State of Delaware, U.S.A., with its principal
place of business at 900 Metro Center Boulevard, Foster City, California 94404
(mailing address P. O. Box 8999, San Francisco, CA 94128-8999), U.S.A. (jointly
and severally hereinafter referred to as “Visa”) and AMERICAN BANK NOTE HOLOGRAPHICS, INC. (“MANUFACTURER”),
with its principal place of business at 2 Applegate Drive, Robbinsville, NJ 08691.


 


WHEREAS,
MANUFACTURER is engaged in manufacturing holographic magnetic stripe tape and
wishes to manufacture holographic magnetic stripe tape bearing the trade or
service marks of Visa (“HMS”);


 


WHEREAS, Visa wishes to include HMS as a feature on Visa-branded
payment cards;


 


WHEREAS,
the Visa International Operating Regulations require that all HMS is purchased
from Visa-approved HMS manufacturers in order to control security risks and to
ensure that HMS is of uniform high quality and appearance;


 


WHEREAS,
MANUFACTURER desires to become a Visa-approved HMS manufacturer in order to
sell HMS to Visa-approved card manufacturers that produce Visa-branded payment
cards on behalf of Members that issue Visa-branded payment cards (collectively,
“CUSTOMER” or “CUSTOMERS”);


 


WHEREAS,
Visa seeks to ensure that MANUFACTURER is capable of producing HMS of uniform
high quality and appearance under the most secure conditions available; and


 










The information furnished herein is CONFIDENTIAL and proprietary to
Visa International.  It shall not be
duplicated, published, or disclosed in whole or in part without prior written
permission of Visa International.


 


Visa International Holographic Magnetic Stripe Tape Manufacturing
Approval Agreement


 


1





















 


WHEREAS, MANUFACTURER has created at its own expense, a custom
holographic image, and an implementation plan for supply of HMS to
Visa-approved card manufacturers that Visa has approved and MANUFACTURER has
proceeded in good faith to implement this plan on behalf of Visa.


 


NOW
THEREFORE, MANUFACTURER and Visa hereby agree as follows:


 


1.             TERM


 


The
term of this Agreement shall commence on the date indicated above when signed
by both parties.  It shall continue until
terminated in accordance with the provisions of Section 6 herein.


 


2.             SPECIFICATIONS


 


2.1           HOLOGRAPHIC MAGNETIC STRIPE Specifications


 


All
HMS manufactured by MANUFACTURER and/or its agents shall conform i) to the holographic origination that MANUFACTURER created
and Visa approved based on the two-dimensional drawing provided by Visa to MANUFACTURER as set forth in Exhibit D attached hereto and made a
part hereof by reference (the “Design”), and ii) to the ISO Standards related to magnetic stripe
properties and formats (“ISO Specifications”) (collectively the “Standards and
Specifications”).  Visa may modify said Standards and
Specification by written notice to and delivery to MANUFACTURER of such amended
Specifications and Standards, in which case the Specifications and Standards
shall be deemed to incorporate such modifications, and MANUFACTURER will
implement said amended Standards and specifications as soon as reasonably
practicable.  Visa may direct MANUFACTURER
not to manufacture HMS, except to finish HMS which may be in progress, until
such time as the modification(s) can be implemented by MANUFACTURER.


 


2.2           Use of Visa Proprietary Material for HMS
Manufacturing


 


MANUFACTURER
shall not use any of the proprietary material, standards, specifications, or
other material provided to the MANUFACTURER in connection with the manufacture
of HMS which is or may be considered proprietary to Visa, for any other purpose
without the prior written consent of Visa.


 


3.             APPROVAL


 


3.1           MANUFACTURER’S Capability


 


Prior
to the initial manufacture of HMS, MANUFACTURER shall provide evidence
satisfactory to Visa that it is capable of fulfilling all obligations expressed
herein.


 


3.2           Acceptance of Orders


 


Upon
approval by Visa of sample HMS, MANUFACTURER may commence accepting orders from
CUSTOMERS for HMS, subject to the provisions of this Agreement. Under no
circumstances shall MANUFACTURER sell or otherwise make available HMS other
than to CUSTOMERS.


 


3.3           Notice of Approval


 


Visa
may withhold its approval under this Section 3 until the MANUFACTURER and
all of its agents and subcontractors, have satisfied a security inspection by
Visa or has received a written waiver from Visa and has satisfied all other
requirements of the Visa approval process, including payment of applicable
fees.  Each approval granted hereunder
will have a term of no more than one year. 


 


2





















 


3.4           Registration Renewal


 


Upon
satisfaction of Visa that all approval requirements continue to be met Visa
will re-approve MANUFACTURER annually. 
Visa shall use reasonable efforts to conduct its re-approval process in
a timely fashion.


 


4.             SECURITY AND INTEGRITY STANDARDS


 


4.1           Location of Manufacturing Facilities


 


Exhibit A
attached hereto and made a part hereof by reference sets forth the location of
all facilities of MANUFACTURER at which HMS may be manufactured.  MANUFACTURER warrants and represents that it
will not perform any functions related to the manufacture of HMS at any other
facility without the prior written consent of Visa. 


 


4.2           Plant Security Standards


 


The
plant security standards contained in the Visa International Security
Validation Requirements for Card Vendors manual (“Manual”) set the minimum
security and integrity processing standards to be maintained by MANUFACTURER
during the term of this Agreement. 
MANUFACTURER warrants and represents that during the term of this
Agreement it will, at a minimum, maintain the security controls, production
standards, and transportation standards set forth in said Manual, the contents
of which are incorporated by reference herein, unless and then only to the
extent excused by Visa in a written waiver.


 


4.3           Standards Modification


 


Visa
may modify said standards in the Manual from time to time by written notice and
delivery to MANUFACTURER of such amended standards, which shall become part of
the Manual, and MANUFACTURER agrees to conform to such standards, as amended,
as soon as reasonably practicable.


 


4.4           Security Inspections


 


MANUFACTURER
authorizes Visa to designate a representative(s) to inspect MANUFACTURER’s
facilities where HMS is manufactured and/or stored during normal business
hours, with or without advance notice, to ensure, among other things, that
MANUFACTURER is complying with the Manual, transportation requirements,
background investigation checks, and standards of professional conduct as set
forth herein.  MANUFACTURER shall
cooperate fully with such representative(s) in the conduct of such inspection.


 


4.5           Financial Statements


 


a.             MANUFACTURER shall furnish to Visa when
requested by Visa, copies of all audited financial statements of MANUFACTURER as provided by MANUFACTURER to the United States Securities and Exchange Commission and, upon Visa’s request, shall make
qualified personnel available to Visa to discuss MANUFACTURER’s financial
status.


 


b.             MANUFACTURER shall inform Visa immediately if
there has occurred a material or adverse change in the MANUFACTURER’s financial
condition not reflected in the latest financial statements furnished to Visa by
the MANUFACTURER.


 


3





















 


4.6           Change of Control


 


To the greatest extent possible, MANUFACTURER shall notify Visa in
writing at least thirty (30) days in advance of any merger, consolidation, or
substantial change of control.


 


4.7           Visa Standards of Conduct


 


MANUFACTURER will comply, and ensure that
any and all MANUFACTURER subcontractors comply, with the Visa Standards of
Conduct set out in Exhibit B attached hereto and made a part hereof by
reference.


 


5.             MANUFACTURER’S
INDEMNIFICATION OF VISA


 


In
addition to any indemnification obligations imposed on MANUFACTURER elsewhere
in this Agreement, MANUFACTURER shall indemnify and hold harmless Visa and its
regional entities, subsidiaries, affiliates, member financial institutions and
the respective directors, officers, employees, agents, representatives,
independent contractors, attorneys, successors, and assigns of the foregoing (“Indemnified
Parties”) from all third party claims, losses, liabilities, damages, suits, actions,
government procedures, taxes, penalties or interest, associated auditing and
legal expenses and other costs incurred by Indemnified Parties (“Damages”), provided that Visa promptly notifies
MANUFACTURER in writing of such claim, arising from (i) any claim of
infringement of patent or other industrial or intellectual property right
(including, without limitation, copyrights and rights in proprietary
information) arising from the manufacture, sale, offer for sale, importation,
exportation, distribution or use of HMS manufactured by MANUFACTURER unless modified by Visa or
any third party; (ii) the
loss, theft, or unexplained disappearance of any materials or any
non-manufactured or manufactured HMS in the possession or under the control of
the MANUFACTURER or its agent(s) at the time of the loss, theft, or unexplained
disappearance; (iii) the use of any counterfeit HMS, or HMS not approved
by Visa,  which was manufactured by
MANUFACTURER or its employees or agent(s) or by others with the cooperation or by
virtue of the negligence of the MANUFACTURER, its employees, or agent(s); (iv) the
manufacture, sale, distribution or use of HMS which was not manufactured in
accordance with the Standards and Specifications and/or other guidelines or
documentation provided to MANUFACTURER by Visa; (v) the failure by
MANUFACTURER, its officers, employees, or agents, to comply with the security
and integrity standards set forth in this Agreement and as may be supplemented
from time to time; (vi) the failure of HMS to perform in accordance with
the Standards and Specifications; or (vii) violation of any law, rule, or
regulation or the breach of any of the terms of this Agreement, including but
not limited to those terms pertaining to confidentiality and intellectual
property.  Costs and expenses for which MANUFACTURER
shall be liable to indemnify and hold harmless the Indemnified Parties
hereunder include, without limitation, reasonable costs and expenses documented by the Indemnified Parties for travel,
inspections, rewards, overtime compensation and benefits, laboratory and
scientific tests, consultants, and reasonable
attorneys’ fees.    The
obligation of MANUFACTURER to indemnify and hold harmless the Indemnified
Parties as set forth herein shall not limit and shall not be lessened by the
Indemnified Parties’ right, in their sole discretion, to defend, settle or
otherwise remediate or mitigate any claim, loss, liability, or other event that
is covered by this Section 5.


 


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6.             REVOCATION AND TERMINATION


 


6.1           Revocation


 


Visa
may temporarily (“PROBATION”) or permanently (“DE-APPROVAL”) revoke
MANUFACTURER’s right to manufacture HMS for any or all CUSTOMERS upon the
occurrence of any of the following:


 


a.             MANUFACTURER’s actual merger, consolidation,
change of control or financial condition which creates, in Visa’s opinion,
unreasonable potential for damage or financial loss to Visa or its CUSTOMERS if
the manufacture of HMS, possession of HMS, and/or possession of
materials necessary to manufacture HMS were to continue.


 


b.             MANUFACTURER fails in Visa’s opinion, to
maintain sufficient quality control standards to enable MANUFACTURER to comply
with the Standards and Specifications as documented herein.


 


c.             MANUFACTURER does not maintain security and
audit integrity processing controls consistent with the Manual, or if Visa agrees to alternative controls and
procedures, and MANUFACTURER does not maintain security controls consistent
with such alternative controls and procedures.


 


d.             MANUFACTURER is unable to maintain in force
the insurance coverage provided for in this Agreement.


 


e.             MANUFACTURER enters bankruptcy, voluntary or
involuntary, reorganization, liquidation, dissolution, rationalization, or any
other event of insolvency or form of debtor relief proceeding.


 


f.              Failure of MANUFACTURER to comply with any
other provision of this Agreement.


 


6.2           Probation


 


Upon
receipt of a written notice of PROBATION from Visa in accordance with Section 6.1, MANUFACTURER shall stop manufacturing HMS
products until MANUFACTURER has been re-approved by Visa.  MANUFACTURER will immediately follow all
standards and procedures set forth in the Manual relative to PROBATION.  Visa shall promptly re-approve MANUFACTURER
after MANUFACTURER corrects the condition(s) giving rise to PROBATION.  MANUFACTURER
shall pay all expenses associated with the re-approval.


 


6.3           Termination and De-approval by Visa


 


Visa
may permanently terminate MANUFACTURER’s approval (“DE-APPROVAL”) and this
Agreement (i) immediately and at any time in the event that any of the
conditions giving rise to PROBATION continue uncorrected for a period of sixty
(60) days following the written receipt of notice of PROBATION (except for
probation under 6.1.e., which shall be terminable immediately), (ii) until
June 30, 2007, for any reason upon one hundred eighty (180) days prior
written notice to MANUFACTURER, or (iii) beginning July 1, 2007, for
any reason upon ninety (90) days prior written notice to MANUFACTURER.  MANUFACTURER will immediately follow all
standards and procedures set forth in the Manual relative to DE-APPROVAL.


 


6.4           Termination by MANUFACTURER


 


MANUFACTURER
may terminate this Agreement upon one years’ prior written notice to Visa.  MANUFACTURER will immediately follow all standards
and procedures set forth in the Manual relative to DE-APPROVAL.


 


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6.5           Termination Liability


 


Upon
termination of this Agreement for any reason, the provisions of Sections 2.2,
5, 7.1, 7.2,  7.3 and the “Royalty” section of
Exhibit C of this Agreement shall continue in force indefinitely.  In addition, in the event of termination of
this Agreement, all provisions of this Agreement shall continue in full force
and effect until all contracts between MANUFACTURER and CUSTOMERS expire or are
terminated according to their terms or by mutual consent of the parties.  In the event of termination of this Agreement
under Sections 6.3 or 6.4, MANUFACTURER shall return upon demand all Visa
materials and property specified by Visa, including but not limited to all
Design-bearing HMS master plates, without any right of reimbursement.


 


7.             PROPERTY RIGHTS


 


7.1           Property Rights


 


[*]


 


Visa acknowledges that MANUFACTURER owns or otherwise has intellectual
property rights and technology relating to the processes for the production of (i) holographic magnetic stripe; and (ii) plates for
the production of holographic magnetic stripe, (including but not limited to trademarks and trade
secrets) (“MANUFACTURER IP Rights”), and Visa agrees with respect to such
MANUFACTURER IP Rights (i) not to take any action inconsistent with
MANUFACTURER IP Rights and (ii) not to furnish said property or
disclose information relating to said property to any third party, including
any CUSTOMER, without MANUFACTURER’s prior written approval.


 


MANUFACTURER
and Visa acknowledge that in the event of a breach or threatened breach of this
Section by either party, the non-breaching party’s remedies at law may be inadequate and, as a
result, such non-breaching party shall be entitled to injunctive relief in
addition to any other remedy to which it would be otherwise entitled.


 


The restrictions on use and disclosure set forth in this Agreement
shall not apply to any information: (i) which is known by the receiving
party before it is disclosed by the disclosing party; (ii) is or becomes
publicly known or available from industry sources without any disclosure by the
receiving party; (iii) is acquired by the receiving party from a third
party who in providing such information to the receiving party is not, to the
knowledge of the receiving party, violating any agreement or duty owed to the
disclosing party; or (iv) provided the receiving party provides the
disclosing party with reasonable notice thereof and discloses only information
that the receiving party is legally obligated or compelled to disclose whether
pursuant to discovery, subpoena, investigative demand or similar process.


 


7.2           [*]


 


a.             [*]


 


b.             [*]


 


c.             [*]


 


d.             Use of Work Product.  MANUFACTURER shall ensure that neither it nor any MANUFACTURER
subcontractor shall use the Design, holographic origination and master plates
for production of the HMS for any purpose except as necessary for


 










*
Confidential


 


6





















 


manufacture
of HMS for CUSTOMERS or testing of HMS on an ongoing basis or as
otherwise requested by Visa.


 


e.             Grant of License. 
Pursuant [*], Visa hereby grants to
MANUFACTURER (i)  a revocable, non-exclusive right and license to possess
and use the Design, Visa holographic origination and Visa master plates, and
any derivative works or tools MANUFACTURER creates, for the purpose of
MANUFACTURER’S performance of its obligations under this Agreement and to
manufacture and sell HMS to Visa authorized card manufacturers under the terms
hereof, and (ii) [*].


 


 


7.3           Disclosure of Terms


 


MANUFACTURER
shall not disclose the terms of this Agreement or the nature of its undertaking
hereunder to any third party except under the following circumstances:


 


a.             To a subsidiary company of the MANUFACTURER
charged with work related to the security or manufacture or personalization of
HMS.


 


b.             To an insurance company where such disclosure
is necessary to secure the required insurance coverage as indicated herein.


 


c.             Where it is necessary to the negotiation or
fulfillment of a contract with an CUSTOMER.


 


d.             To a government agency or under court
subpoena.


 


e.             To the MANUFACTURER’s auditors where such
disclosure is necessary to assess the financial conditions of the MANUFACTURER.


 


f.              In
any mandatory filing with the Securities and Exchange Commission, provided that
MANUFACTURER shall seek the greatest possible confidential treatment of the
Agreement and the confidential information herein in connection with any such
filing.


 


Nothing
herein contained shall prevent MANUFACTURER from disclosing to a CUSTOMER that
MANUFACTURER has received written notice of approval from Visa.


 


The
MANUFACTURER and Visa acknowledge that in the event of a breach or threatened
breach of this Section by MANUFACTURER, Visa’s remedies at law may be
inadequate and, as a result, Visa shall be entitled to injunctive relief in
addition to any other remedy to which it would be otherwise entitled.


 


7.4           Information Disclosure


 


Confidential information and materials provided to Visa by MANUFACTURER
and designated as “Confidential” shall not be disclosed or given by Visa to any
third party, including CUSTOMER, without prior written approval from
MANUFACTURER, except when required by a government agency or under subpoena from
a court of competent jurisdiction.


 










*Confidential


 


7





















 


The
MANUFACTURER and Visa acknowledge that in the event of a breach or threatened
breach of this Section by Visa, MANUFACTURER’s remedies at law may be
inadequate and, as a result, MANUFACTURER shall be entitled to injunctive
relief in addition to any other remedy to which it would be otherwise entitled.


 


The
obligations of confidentiality assumed under Sections 7.3 and 7.4 of this
Agreement shall not apply to the extent the receiving party can demonstrate, by
clear and convincing evidence, that such information:


 


a.             is
or has become generally available to the public other than as a result of any
breach of the provisions of this Agreement or any other applicable agreement
between the parties hereto;


 


b.             was rightfully in the possession of the receiving party,
without confidentiality restrictions, prior to such party’s receipt pursuant to
this Agreement;


 


c.             was rightfully acquired by the receiving party from a
third party who was entitled to disclose such information, without
confidentiality or proprietary restrictions;


 


8.             INSURANCE.  Prior to the manufacture of HMS under this
Agreement, MANUFACTURER shall procure the following insurance coverageat its
own expense, with respect to the manufacture of HMS.  Such insurance shall be issued by financially
responsible and properly licensed insurance carriers rated at least A VIII by
Best’s Rating Guide (or otherwise acceptable to Visa) and with minimum limits
as set forth below.  Such insurance shall
be maintained in full force and effect for the duration of this Agreement and
any renewals thereof:


 


WORKERS’
COMPENSATION: Statutory Workers Compensation as required by applicable law.


 


EMPLOYER’S
LIABILITY with a minimum limit of $1,000,000.


 


COMMERCIAL
GENERAL LIABILITY INSURANCE including PRODUCTS, COMPLETED OPERATIONS including
CONTRACTUAL LIABILITY INSURANCE with the following minimum limits for Bodily
Injury and Property Damage on an Occurrence basis: $1,000,000 per occurrence
and $2,000,000 annual aggregate.


 


COMMERCIAL
AUTOMOBILE INSURANCE including owned, leased, hired or non-owned autos subject
to minimum limits of $1,000,000 for bodily injury and physical damage.


 


COMMERCIAL
EXCESS/UMBRELLA LIABILITY INSURANCE subject to minimum limits of $5,000,000 for
bodily injury and physical damage.


 


CRIME/FIDELITY
BOND including employee dishonesty, robbery, fraud, theft, forgery, alteration,
mysterious disappearance and destruction. 
The minimum limit shall be $1,000,000 per loss.


 


PROFESSIONAL
LIABILITY for negligent acts, errors or omissions in connection with the
Services provided under this agreement with a minimum limit of $1,000,000 per
occurrence.


 


INTELLECTUAL
PROPERTY coverage for protection of copyright and trademark infringement or
proprietary right violation involving any HMS provided by MANUFACTURER under
this Agreement with a minimum limit of $1,000,000 per occurrence and annual
aggregate.


 


If
any of the above insurance is written on a claims-made basis, then MANUFACTURER
shall maintain such insurance for five (5) years after the termination of
this Agreement.


 


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Without
limiting MANUFACTURER’s indemnification duties as outlined in the
Indemnification Section herein, Visa shall be named as an additional
insured under the Commercial General Liability, 
Commercial Automobile Liability and Commercial Excess/Umbrella Liability
listed above for any claims and losses arising out of, allegedly arising out of
or in any way connected to the MANUFACTURER’s manufacture of HMS under this
Agreement.  The insurers shall agree that
the MANUFACTURER’s insurance is primary and any insurance maintained by Visa
shall be excess and non-contributing to the MANUFACTURER’s insurance.


 


Prior
to commencing manufacture of HMS under this Agreement and annually thereafter,
MANUFACTURER shall furnish a certificate, satisfactory to Visa from each
insurance company evidencing that the above insurance is in force in compliance
with the terms of this insurance section, stating policy numbers, dates of
expiration and limits of liability, and further providing that the insurance
will not be canceled or materially changed until the expiration of at least
thirty (30) days after written notice of such cancellation or change has been
mailed to and received by Visa. 
MANUFACTURER shall send Certificate(s) of Insurance confirming such
coverage to Visa International Service Association, Attn: Procurement Department,
P. O. Box 8999, M/S: M3-6A, San Francisco, CA 94128-8999.  Fulfillment of obligations to procure
insurance shall not otherwise relieve MANUFACTURER of any liability hereunder
or modify MANUFACTURER’s obligations to indemnify Visa. In the event the above
insurance requirements are not met, Visa may, at its option, purchase such
coverage at the expense of the MANUFACTURER.


 


In
the event that MANUFACTURER subcontracts or assigns any portion of the
manufacture of HMS in this Agreement, the MANUFACTURER shall, other than with
respect to intellectual property insurance, (i) require any such
subcontractor to purchase and maintain insurance coverage and provide waiver of
subrogation as required herein; and/or (ii) ensure that, for purposes of
this Section 8, MANUFACTURER’s own insurance coverage covers such
subcontractor and its actions in the same way as it does the MANUFACTURER
itself.


 


WAIVER
OF SUBROGATION:  MANUFACTURER agrees to
waive subrogation against Visa for any injuries to its employees arising out of
or in any way related to MANUFACTURER’s manufacture of HMS under this Agreement
or for damage or loss to MANUFACTURER’s personal property.  Further, MANUFACTURER agrees that it shall
ensure that the Workers’ Compensation/Employer’s Liability and All Risk
Replacement Cost (Property) insurers, providing the coverages required above,
agree to waive subrogation,  in favor of
Visa, for any claims arising out of or in any way connected to MANUFACTURER’s
performance of the manufacture of HMS under this Agreement or property covered
by the MANUFACTURER’s property insurance.


 


9.             WARRANTIES.


 


a.             Intellectual Property. MANUFACTURER warrants and represents that it will not knowingly use or infringe any
intellectual property or other proprietary right of a third party in the
manufacture of HMS.  MANUFACTURER further
warrants and represents that it has not granted and will not grant any right in
the Design, holographic origination and master plates for production of the HMS
to a third party that would be inconsistent with the rights granted to Visa
under this Agreement.


 


b.             Other Contracts. 
MANUFACTURER warrants and represents that entering into this Agreement
and manufacture of HMS hereunder does not contravene the terms of any agreement
with a third party.


 


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c.             Inducements. 
MANUFACTURER warrants and represents that it has not provided and shall
not provide any gift, gratuity, service, or other inducement to any Visa
Personnel or agency involved in retaining MANUFACTURER’s services for this
Agreement.


 


d.             Compliance. 
MANUFACTURER warrants and represents that it shall comply with all
applicable laws and regulations, including, without limitation, employment,
immigration, and tax laws and regulations, in connection with the performance
of its obligations hereunder. 
MANUFACTURER warrants and represents that all personnel manufacturing
HMS have the legal right to work in the United States.  MANUFACTURER warrants and represents that it
qualifies under applicable tax laws and regulations as an “independent
contractor” of Visa.


 


e.             Performance.  MANUFACTURER warrants and represents that its Personnel
shall use reasonable care and judgment in the manufacturing of HMS hereunder.


 


10.           PRODUCTION


 


Subject
to the terms hereof, MANUFACTURER will adhere to the provisions in Exhibit C,
which is made a part hereof by reference.


 


11.          ASSIGNMENT


 


No
assignment by MANUFACTURER of this Agreement, MANUFACTURER’s written notice of
approval, or any contract to manufacture HMS to a CUSTOMER, including
assignments to subsidiaries, affiliates, and/or parents of MANUFACTURER, shall
be permitted without prior written consent of Visa, and any such assignment
without consent shall be void.


 


12.          INDEPENDENT CONTRACTORS


 


MANUFACTURER
and Visa are independent contractors, and nothing contained herein shall be
construed to create a partnership, joint venture, agency, or other business
relationship between them.


 


13.          SUBCONTRACTING


 


MANUFACTURER
shall not subcontract with any third party for any purpose related to this
Agreement without first obtaining Visa’s prior written authorization.  Failure to obtain Visa’s prior written
authorization may result in DE-APPROVAL. 
MANUFACTURER shall retain full responsibility and liability with respect
to all work done pursuant to this Agreement, whether or not such work has been
properly subcontracted to a third party. 


 


14.          GOVERNING LAW


 


This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of California, U.S.A., without regard to any law of conflicts
that would require the application of the law of another jurisdiction. Visa and
MANUFACTURER consent to the exclusive jurisdiction of state and federal courts
in the City and County of San Francisco, California and expressly waive any
objection or defense based upon lack of personal jurisdiction or venue in
connection with any dispute arising out of or relating to this Agreement or its
breach.


 


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15.          ATTORNEYS’ FEES


 


If
any action at law or in equity, including an action for declaratory relief, is
brought to enforce or interpret the provisions of this Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees in addition to
any other relief to which it may be entitled, as allowed by law.


 


16.          SUCCESSORS
AND ASSIGNS


 


Subject
to the provisions regarding assignment, this Agreement shall be binding upon
the successors and assigns of the respective parties.


 


17.          ENTIRE AGREEMENT


 


This
Agreement, including the Exhibits hereto, supersedes any and all other agreements,
either verbal or written, between the parties hereto with respect to the
subject matter hereof, and contains all the covenants and agreements between
the parties with respect to said matter. Each party to this Agreement
acknowledges that no representation, inducements, promises, or agreements,
verbally or otherwise, have been made by any party or anyone acting on behalf
of any party which are not embodied herein; and no other agreement, statement,
or promise not contained in this Agreement shall be valid or binding.  For the avoidance of any doubt, this
Agreement is between Visa and MANUFACTURER and the terms of this Agreement are
not intended to provide any right to indemnification to any
Visa card manufacturer or affect any party’s obligations under any MANUFACTURER-card manufacturer
agreements which may be entered into by MANUFACTURER, except as explicitly set
out herein.


 


18.          PARTIAL INVALIDITY


 


If
any term, provision, covenant, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions shall remain in full force and effect and shall in
no way be affected, impaired, or invalidated.


 


19.          NON-WAIVER


 


No
waiver of any default of this Agreement shall be effective unless in writing
and executed by an officer of the party against which such waiver is
asserted.  A waiver of a specific default
shall not be a waiver of any other or subsequent default.  No waiver or any provision hereof shall
constitute a waiver of any other matter. 
No failure or delay on the part of either party to exercise any right or
remedy in this Agreement shall operate as a waiver thereof.


 


20.          CAPTIONS


 


The
captions of paragraphs of this Agreement are for reference only and are not to
be construed as part of this Agreement.


 


21.          CORRESPONDENCE AND NOTICE


 


All
correspondence and notifications relating to this Agreement shall be written in
the English language and delivered or dispatched by prepaid first class mail,
facsimile or courier service addressed to the addressee at its office listed
above, to the attention of the representative indicated


 


11





















 


below;
or, in each case, at such address, and/or to the attention of such other
representative as may hereafter have been designated most recently in writing
by the addressee to the addresser, and will be deemed received five business
days after submission for delivery, in the case of first class mail, and upon
sender’s receipt of delivery confirmation, in the case of facsimile or courier
service.


 


12





















 


	
  VISA REPRESENTATIVE:

  	
   

  	
  Michael Hosken

  
	
   

  	
   

  	
   

  
	
  MANUFACTURER REPRESENTATIVE:

  	
   

  	
  Kenneth Traub

  



 


22.          LIMITATION OF LIABILITY


 


EXCEPT FOR DAMAGES CAUSED BY WILLFUL MISCONDUCT OF A PARTY , IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, HOWEVER CAUSED, WHETHER UNDER THEORY
OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO
INDEMNIFICATION OWED TO THE OTHER PARTY FOR THIRD PARTY CLAIMS.


 


 


IN
WITNESS WHEREOF, the parties hereto have executed this Holographic Magnetic
Stripe Tape Manufacturing Approval Agreement as of the date first above
written.


 


	
  AMERICAN BANK NOTE HOLOGRAPHICS,
  INC.

  	
   

  	
  VISA INTERNATIONAL SERVICE

  
	
  (“MANUFACTURER”)

  	
   

  	
  ASSOCIATION (“VISA”)

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Kenneth Traub

  	
   

  	
   

  	
  By:

  	
  /s/ Karen Gullett

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Kenneth Traub

  	
   

  	
   

  	
  Name:

  	
  Karen Gullett

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
    President and CEO

  	
   

  	
   

  	
  Title:

  	
    Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
    April 8, 2005

  	
   

  	
   

  	
  Date:

  	
    April 25, 2005

  	
   

  
																		



 


13





















 


EXHIBIT A


 


Location of all
facilities of MANUFACTURER at which HMS can be manufactured:


 


American Bank Note Holographics, Inc.

399 Executive Blvd

Elmsford, NY 10523



American Bank Note Holographics, Inc.

1448 County Line Road

Huntingdon Valley, PA 19006



American Bank Note Holographics, Inc.

2 Applegate Drive

Robbinsville, NJ 08691


 


14





















 


EXHIBIT B

VISA STANDARDS OF CONDUCT


 


MANUFACTURER,
including MANUFACTURER personnel engaged in manufacturing Holographic Magnetic
Stripe tape bearing the trade or service marks of Visa (“HMS”) for Members that
issue Visa-branded payment cards while traveling on behalf of Visa, and, if
applicable, performing work outside of Visa offices, shall follow the following
standards of conduct.  These standards are
intended to clarify the most common questions about the extent of MANUFACTURER
involvement in daily Visa events.  The
term “MANUFACTURER” includes the agents and employees (collectively “personnel”)
of MANUFACTURER. It is the MANUFACTURER’s responsibility to ensure all of its
personnel are fully aware of the standards of conduct stated herein. Moreover,
MANUFACTURER will ensure that all work is managed and conducted in full
compliance with these standards.


 


Office Privileges


 


Generally
MANUFACTURER personnel will perform their services at MANUFACTURER’s
offices.  Visa will provide office
accommodations at its sole discretion only when necessary for security reasons
or because the use of proprietary equipment or programs is required.  If Visa does provide office accommodations,
MANUFACTURER may be asked to move to different locations within Visa at any
time.  Office amenities such as coffee
bars, restrooms, and the cafeteria are available to guests, including
MANUFACTURER, with the exception of particular occasions when the cafeteria or
a similar area has been reserved for employee functions.


 


Use of Company Equipment, Systems and Information


 


Visa
equipment (including printers, copiers, and telephones), systems, information
(including information in InSite, electronic mail, and company mail) and supplies
(collectively “Visa Property”) may be used by MANUFACTURER only when required
to work on-site with secured or proprietary materials or equipment.  Personal use of Visa Property may be
considered grounds for immediate termination of a MANUFACTURER’s
engagement.  Visa expects vendor to use
Visa Property to which MANUFACTURER has been given access according to the
following guidelines:


 


1.      The use must be for legitimate business
directly related to the MANUFACTURER’S engagement and not for non-business-related
communications.  Telephone service may be
made available to MANUFACTURER for the sole purpose of conducting Visa business
when MANUFACTURER is on site to work with secured or proprietary materials.  Calls unrelated to Visa business (personal or
to other clients) will be kept to a minimum, and MANUFACTURER should not ask a
secretary or receptionist to handle personal telephone calls.  Long-distance personal calls will be made
only with the MANUFACTURER’s credit/calling card.  Misuse of Visa telephones may result in
immediate contract termination.


 


2.      MANUFACTURER must not use Visa Property
for soliciting outside business ventures, charitable or community activities,
or political or religious causes.


 


3.      MANUFACTURER personnel using a Visa
computer must use only the computer to which the individual is assigned.
MANUFACTURER personnel must not use or try to use (i) other individuals’
passwords or (ii) any files, systems or networks that are not required to
perform services under this Agreement or to which Visa has not authorized
access. MANUFACTURER personnel who want to connect to Visa’s network with
non-Visa equipment must receive prior written approval from Visa’s Information
Security department.


 


15





















 


4.      Offensive communications, including
racial, ethnic, or sexual slurs, are not permitted.


 


5.      When handling Visa information,
MANUFACTURER will comply with Visa’s Key Controls.


 


To
ensure compliance with Visa’s policies, as well as local, state, and federal
laws, and to ensure employee safety, Visa reserves the right to search all Visa
Property at any time, with or without MANUACTURER’s knowledge or presence.  Inspections and searches may include, but are
not limited to, desks, storage areas, company mail, electronic mail, phones,
voice mail, faxes, copiers, printers, and vehicles.  Any such inspections or searches are
conducted only with approval from Visa Legal and Security Departments.  In addition, Visa reserves the right to
collect and maintain electronic records of use of, or access to, Visa Property,
and to use these records for business purposes, including detecting
unauthorized use or intrusion. 
MANUFACTURER’s use of Visa Property is not considered private, and is
subject to the inspection and searches outlined above, regardless of password
protection.


 


Scope of Company Participation


 


Visa
Project Managers will ask MANUFACTURER to attend only those meetings that
relate to their contracted scope of work or specific project.  MANUFACTURER will not attend corporate,
division or department staff meetings. 
When in doubt about whether or not participation in meetings is expected
or permitted, MANUFACTURER should check with the Visa Project Manager with whom
the MANUFACTURER is contracting.  As a
rule, MANUFACTURER is not included in company-sponsored holiday or annual
celebrations.


 


Management


 


The
Visa Project Manager is responsible for project management, as well as
evaluation on completed work.  In this
regard, such supervisor will give guidance as to the required outcome of the
contracted project.  It will be up to the
MANUFACTURER to determine how to accomplish the desired results.  If a MANUFACTURER provides one of its employees
to Visa to complete a contractual arrangement, the Visa Project Manager may
provide project guidance to that employee. 
However, it is the MANUFACTURER’s responsibility to handle all issues
regarding the worker’s compensation, satisfaction with Visa, assignments, time
off, or Visa personnel interactions.


 


Conflict of Interest and Gifts


 


Visa
expects MANUFACTURER personnel to avoid conflicts of interest or the appearance
of such conflicts with Visa or its employees. 
When MANUFACTURER uses its position or Visa’s resources or influence for
personal advantage, or for the advantage of parties other than Visa, it results
in a conflict of interest.  Examples of
conflicts of interest include, but are not limited to:


 


1.      Receipt of cash, goods, stock, or
services from Visa Members, merchants, other vendors, or business partners;


 


2.      Influencing or pressuring Visa employees to
award additional business or contracts to MANUFACTURER or other businesses in
which MANUFACTURER has a personal or financial interest;


 


3.      Using MANUFACTURER’s position to secure an
unfair advantage over other vendors in securing additional business or
contracts;


 


16





















 


4.      Ownership in, including
significant stock holding, or a personal relationship with, a Visa Member,
merchant, vendor, business partner, or a Visa/Inovant Competitor where
MANUFACTURER stands to realize a personal gain;


 


5.      Spending time for which MANUFACTURER is being
compensated by Visa, or using Visa Property (see also “Use of Company
Equipment, Systems and Information”, above) to secure additional business or
contracts;


 


6.      Real or perceived conflicts of interest might
also arise in connection with MANUFACTURER offering a Visa employee
consultancies, directorships, freelance commercial activities, or other
financial or professional opportunities; etc.


 


Visa
expects MANUFACTURER to conduct business in a way that avoids even the
perception of illegal or unethical conduct. 
When offering entertainment, gifts, favors, or gratuities, to a Visa
employee, Visa Member, merchant, or business partner, follow these guidelines:


 


1.      The entertainment, gift, favor, or gratuity
cannot be meant or expected to influence the recipient’s judgment or to secure
preferential treatment for the giver;


 


2.      The entertainment, gift, favor, or gratuity
must be of a limited value so that it cannot be perceived to affect the
recipient’s judgment;


 


3.      Public disclosure of the receipt of any gift,
favor, or gratuity would not embarrass Visa, Visa’s Members, or the recipient.


 


In
general, the receipt by an Visa employee from MANUFACTURER of gifts,
entertainment, or favors valued at more than $200 carries the presumption of a
conflict of interest.


 


Prohibition of Solicitation


 


Visa
employees should be able to work without interference from people whose purpose
is not related to company business. 
Accordingly, MANUFACTURER may not enter Visa’s premises, nor take
advantage of access granted to Visa’s premises, for other purposes, to solicit
additional business, to distribute literature or other materials, or to engage
in any business not directly related to the project or assignment for which
MANUFACTURER was engaged by Visa, etc., unless
specifically invited by Visa to do so.


 


17





















 


EXHIBIT C


 


Capacity


 


MANUFACTURER will deliver HMS to CUSTOMERS in the form
as required and designated by CUSTOMER, and the following numbers are based on
an anticipated yield of approximately [*] cards from
a [*] foot reel.


 


During the initial production ramp up period,
MANUFACTURER shall cooperate with Visa personnel and take all reasonable steps
to increase HMS production quantities, and will in any case meet the following
minimum production quantities with the formats and characteristics as
designated by Visa and dates:


 


	
  Monthly Card Production

  	
   

  	
  Total Card Yield

  	
   

  	
  Date

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  



 










*Confidential


18





















 


MANUFACTURER will use best efforts to ensure that, no
later than October 2005, it will be capable of producing enough HMS for [*] cards per month.


 


Service Levels


 


Beginning
no later than June 30, 2006 and until at least June 30, 2007,
MANUFACTURER will use best efforts to maintain an on-hand inventory of at least
[*] HMS units and will use all reasonable efforts to fulfill and ship [*]% of all CUSTOMER
orders within two business days. Beginning July 1, 2007, MANUFACTURER will
use best efforts to maintain an on-hand inventory of at least [*] HMS units and use
all reasonable efforts to fulfill and ship [*]% of CUSTOMER orders within two business
days.  Nothing in this section shall
obligate MANUFACTURER to fulfill or ship HMS units to potential CUSTOMERS that
fail to meet MANUFACTURER’S reasonable standards of customer credit worthiness.


 


Visa
acknowledges that the production of HMS is always subject to normal manufacturing variations
including the impact of the plate gap, image alignment, brightness, spots,
etc., consistent with the samples provided by MANUFACTURER to Visa prior to
execution of this Agreement, and that such variations will always be taken into
account in applying the specification set out in Section 2.1(i) of
the Agreement.


 


Distribution of HMS


 


Because of the limited amount of HMS that will be initially available
from MANUFACTURER, Visa shall have oversight over MANUFACTURER’s distribution
of HMS to Visa-approved card manufacturers. 
Until March 31, 2006, Visa shall exercise oversight over
MANUFACTURERS distribution of HMS to ensure that HMS is only delivered to
Visa-approved card manufacturers that have received orders from Visa Members
that have been authorized by Visa to receive the initial amounts of HMS
produced by MANUFACTURER.


 


Card Manufacturers Guide


 


In
connection with all sales to CUSTOMERS, MANUFACTURER will make available a
mutually agreed ‘best practices’ guide for use by CUSTOMERS in successfully
integrating HMS into payment card products. 
MANUFACTURER shall provide on-site support to Visa-approved card
manufacturer when requested.


 










*Confidential


 


19





















 


Visa Authorized Card Manufacturers


 


Visa
will provide MANUFACTURER with a list of Visa-approved payment card
manufacturers, which Visa may update from time to time, that may manufacture
Visa-branded payment cards on behalf of Visa Members.


 


Royalty


 


Visa shall not authorize a third party to produce Design-bearing HMS
unless such third party has entered into a license agreement with MANUFACTURER
consistent with the terms of this section.  
[*].


 










*  Confidential


 


20





















 


EXHIBIT D


 


DESIGN


 


(Attached)


 


21





















 


CONFIDENTIAL


 


3 TRACK VISA HOLOMAG STRIPE

Holographic security features


 





 


	
  1.

  	
   

  	
  Doves are exposed with high resolution
  system depicting multiple color animation.

  	
  

  	
   

  
	
   

  	
   

  	
  •     Nano-text
  [*] microscope.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  When hologram is tipped left and right,
  smallest dove appears to travel on top of vertical lines.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Black dot behind middle dove’s wing
  displays parallax clue when hologram is tipped left and right.

  	
   

  
	
   

  	
   

  	
   

  	
  

  
	
  4.

  	
   

  	
  [*].

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Micro text [*].

  	
  

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Secondary flip image “VISA” appears and
  disappears on top of “sun” when the hologram is tipped top and bottom.

  
	
   

  	
   

  	
   

  	
  Actual Size

  
	
  7.

  	
   

  	
  Micro text [*] across the horizon line,
  viewable with [*].

  	
  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Machine readable hidden image [*] viewable
  with ABNH’s proprietary reader.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Machine readable optical codes, readable
  with [*].

  	
  

  	
   

  
	
   

  	
   

  	
   

  
	
  CONFIDENTIALITY NOTICE.  [*].

  	
  

  
									



 










* Confidential


 





















 


CONFIDENTIAL


 


2 TRACK VISA HOLOMAG STRIPE

Holographic security features


 





 


	
  1.

  	
   

  	
  Doves are exposed with high resolution
  system depicting multiple color animation.

  	
  

  	
   

  
	
   

  	
   

  	
  •     Nano-text
  [*] microscope.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  When hologram is tipped left and right,
  smallest dove appears to travel on top of vertical lines.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Black dot behind middle dove’s wing
  displays parallax clue when hologram is tipped left and right.

  	
   

  
	
   

  	
   

  	
   

  	
  

  
	
  4.

  	
   

  	
  [*].

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Micro text [*].

  	
  

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Secondary flip image “VISA” appears and
  disappears on top of “sun” when the hologram is tipped top and bottom.

  
	
   

  	
   

  	
   

  	
  Actual Size

  
	
  7.

  	
   

  	
  Micro text [*] across the horizon line,
  viewable with [*].

  	
  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Machine readable hidden image [*] viewable
  with ABNH’s proprietary reader.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Machine readable optical codes, readable
  with [*].

  	
  

  	
   

  
	
   

  	
   

  	
   

  
	
  CONFIDENTIALITY NOTICE.
    [*]

  	
  

  
									



 










* Confidential