REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
March 18, 1998 between American Banknote Corporation, a Delaware corporation,
with an address of 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Buyer") and
Financiere Jet Services, a French Societe anonyme, having its principal office
at 00 Xxxxxx Xxxxxxx XX 0000- 00000 Xxxx, Cedex 07 registered with the Registry
of Commerce and Companies of Lyon under no B 973 505 357 ("Seller").
WHEREAS, pursuant to that certain Share Purchase Agreement dated as of
November 17, 1997, as amended (the "Purchase Agreement"), Seller has agreed to
sell and Buyer has agreed to purchase, on the Closing Date, certain business and
assets, as more fully described therein, 100% of the shares of MCE ("MCE") and
100% of the shares of CPS Finances ("CPS") including 100% of the shares of SNC
Arnaud ("SNC")(collectively, the "Assets"); and
WHEREAS, pursuant to the Purchase Agreement, the Purchase Price for the
Assets consists of cash and shares (the "Shares") of Buyer's Common Stock, par
value $0.01 per share (the "Common Stock") in such amount as shall be determined
in accordance with the Purchase Agreement, and
WHEREAS, the parties desire to set forth the terms and conditions of
the parties' covenants and agreements in respect of the registration of the
Shares with the United States Securities and Exchange Commission and applicable
state securities agencies and the exchange on which the Common Stock is then
trading;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the Purchase
Agreement and this Agreement, Buyer and Seller agree as follows:
1. CERTAIN DEFINITIONS
Terms not otherwise defined herein shall have the meanings ascribed thereto in
the Purchase Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or government or agency or political subdivision
thereof.
"Registrable Securities" shall mean the Shares issued pursuant to the
Purchase Agreement.
"Restricted Securities" shall mean the Registrable Securities until (i)
such Registrable
Securities have been effectively registered under the Securities Act and
disposed of by Seller; (ii) such Registrable Securities have been distributed to
the public pursuant to Rule 144 (or similar provision) or the provisions of Rule
144 (k) are applicable to such shares; or (iii) such Registrable Securities have
been transferred and a new certificate not having any restrictive legend or stop
transfer order has been delivered and no other restrictions on transfer exist.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2. SECURITIES SUBJECT TO THIS AGREEMENT
The Securities entitled to the benefits of this Agreement are the
Registrable Securities but, with respect to any particular Registrable Security,
only so long as such security continues to be a Restricted Security.
3. DEMAND REGISTRATION
(a) Seller, at any time or from time to time following the Closing, may make a
written request to the Buyer for registration under and in accordance with the
provisions of the Securities Act of all if its Registrable Securities (the
"Demand Registration").
(b) The Buyer and its security holders shall have the right to include any
shares of Common Stock in any Demand Registration, subject to subparagraph (c)
hereof.
(c) If any of the Registrable Securities registered pursuant to any Demand
Registration are to be sold in one or more firm commitment underwritten
offerings, and the managing underwriters advise in writing the Seller that in
their opinion the number of shares of Common Stock proposed to be sold in such
offering exceeds the maximum number of shares of Common Stock which can be sold
on the basis and price contemplated in such offering, there shall be included in
such firm commitment underwritten offering the number of shares of Common Stock
which in the opinion of such underwriters can be sold. If shares of Common Stock
are being offered for the account of the Buyer or persons or entities other than
Seller, such reduction shall first be made from the shares of Common Stock
intended to be offered by the Seller or such other persons or entities, but only
to the extent that such a reduction is permitted in any agreement pursuant to
which such other persons or entities are seeking registration of their shares.
(d) The Buyer will use its reasonable best efforts to cause the Seller's Shares
to be registered under the Securities Act, all to the extent requisite to permit
the sale or other disposition by Seller of the Seller's Shares; provided,
however, that the Buyer may at any time withdraw or cease proceeding with any
such registration if it shall at the same time withdraw or cease proceeding with
the registration of such other Common Stock originally proposed to be registered
4. REGISTRATION PROCEDURES.
If and whenever Buyer is required to effect the registration of any
Registrable Securities, Buyer will:
(a) prepare and file (within 15 days of the Closing) with the
Commission the requisite registration statement to effect such registration and
thereafter use its efforts to cause such registration statement to become
effective within 90 days, provided that Buyer may discontinue any registration
of its securities which are not Registrable Securities at any time prior to the
effective date of the registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than 12 months and to comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have been
disposed of in accordance with the intended methods of disposition by the Seller
set forth in such registration statement;
(c) furnish to the Seller such number of conformed copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the 1933 Act, in conformity with the requirements of the 1933 Act, and such
other documents as the Seller may reasonably request;
(d) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such United States
jurisdictions as each seller thereof shall reasonably request, to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and to take any other action which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such seller, except
that Buyer shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would not but
for the requirements of this subdivision (d) be obligated to be so qualified, to
subject itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other U.S. governmental agencies or authorities as may be necessary to enable
the Seller to consummate the disposition of such Registrable Securities;
(f) notify the Seller, at any time when a prospectus relating
thereto is required to be delivered under the 1933 Act, upon discovery that, or
upon the happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be
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stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and at the request of the
Seller, if prepared, furnish to the Seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made and,
upon the happening of such an event prior to the effectiveness of any
Registration Statement the Buyer may delay or suspend any registration until the
event shall have terminated, provided, however, that nothing contained herein
shall require the Buyer to prepare or update such prospectus (or proceed with
such registration) if in doing so it would be required to disclose any
non-public confidential information or which disclosure would jeopardize any
ongoing negotiations or discussions of the Buyer or its Affiliates relating to
any material corporate event or transaction of any such party. Buyer may delay
or suspend any registration in the event that Seller is in material breach of
any of its obligations, representations, warranties, covenants or agreements
contained in the Purchase Agreement or any document or agreement in executed in
connection therewith;
(g) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act, and will furnish to the Seller at
least five business days prior to the filing thereof a copy of each registration
statement and prospectus used in connection therewith, and any amendment or
supplement to such registration statement or prospectus and shall not file any
thereof which any such seller shall have reasonably objected on the grounds that
such registration statement, prospectus, amendment or supplement does not comply
in all material respects with the requirements of the 1933 Act or the rules or
regulations thereunder;
(h) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement;
(i) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange on which
similar securities issued by Buyer are then listed, and shall take any other
action necessary or advisable to facilitate the disposition of such Registrable
Securities;
(j) Buyer may require the Seller to furnish Buyer such
information regarding the Seller and the distribution of such securities Buyer
may from time to time reasonably request in writing; and
(k) Seller agrees by acquisition of its Registrable Securities
that upon receipt
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of any notice from Buyer of the happening of any event of the kind described in
subparagraph (f) of this Paragraph 4, it will forthwith discontinue its
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until its receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (f) of this
Paragraph 4 (if prepared) and, if so directed by Buyer, will deliver to Buyer
(at Buyer's expense) all copies, other than permanent file copies, then in the
Seller's possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
5. INDEMNIFICATION
(a) Indemnification by the Buyer. In the event of any
registration of any securities of the Buyer under the Securities Act, the Buyer
will, and hereby does, indemnify and hold harmless in the case of any
registration statement filed pursuant to Paragraph 3, the Seller, its directors
and officers, each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who controls
the Seller or any such underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such seller or any such director or officer or underwriter or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Buyer will reimburse the Seller, and each such director, officer,
underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that the Buyer shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the Buyer
by the Seller, specifically stating that it is for use in the preparation
thereof and, provided further, that the Buyer shall not be liable to any Person
who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within the
meaning of the Securities Act, in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in such
final prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Seller or any such
director, officer, underwriter or controlling person and shall
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survive the transfer of such securities by the Seller.
(b) Indemnification by the Seller. In the event of any
registration of any Seller's Registrable Securities pursuant under the
Securities Act, the Seller will, and hereby does, indemnify and hold harmless
the Buyer, its attorneys, accountants, underwriters and each other Person, if
any, who controls the Buyer within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which the Buyer
or such other Person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained (on the effective date thereof) in any
registration statement under which such Seller's Shares were registered under
the Securities Act, any preliminary prospectus, prospectus subject to completion
or final prospectus contained therein, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, said preliminary prospectus, prospectus subject to
completion or said amendment or supplement in reliance upon and in conformity
with information furnished to the Buyer by Seller specifically for use in the
preparation thereof, and Seller will reimburse the Buyer and each such other
person for any legal or any other expenses reasonably incurred by the Buyer or
such other person in connection with investigating or defending any such loss,
claim, damage, liability or action.
(c) Procedure. In the event of any claim for which indemnity
is sought under this Paragraph, the party seeking indemnification shall give
prompt notice of its claim to the other party and shall permit the other party
to engage counsel and to defend against the same. Buyer shall have the right to
settle or compromise any claims for which indemnity is claimed hereunder in its
sole discretion.
(d) Representations. Notwithstanding anything herein or in any
other document to the contrary, except as specifically set forth in this
Agreement, Buyer makes no representations or warranties, either express or
implied, oral or written, statutory or otherwise concerning the Shares.
6. MISCELLANEOUS
(a) All expenses incurred by the Buyer in complying with this
Agreement, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), printing expenses, fees and disbursements of counsel
for the Buyer, the expense of any special audits incident to or required by any
such registration, and the expense (including counsel fees) of complying with
securities or Blue Sky laws shall be paid by the Buyer; provided in no event
shall the Buyer be liable for any fees payable to counsel or accountants
retained by Seller or for underwriting fees, discounts or
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selling commissions attributable to the Seller's Shares.
(b) The Buyer may issue such "stop transfer" instructions to
its transfer agent with respect to all or any of the Seller's Shares as it deems
appropriate to prevent any violation of the provisions of the Securities Act.
(c) The Buyer shall not be required to issue a certificate for
Seller's Shares which does not contain an appropriate legend restricting
transfer thereof unless (i) the shares represented by any such certificate are
sold pursuant to a Registration Statement (including a current Prospectus) which
has become and is effective under the Securities Act, or (ii) the staff of the
Commission shall have issued a "no action" letter, reasonably satisfactory to
counsel for the Buyer, to the effect that, or counsel reasonably acceptable to
the Buyer shall have rendered its opinion, which opinion shall be reasonably
acceptable to the Buyer, that, such securities may be freely sold publicly
without registration under the Securities Act.
(d) All decisions and actions with respect to a registrations
under this Agreement of securities of Buyer other than the Sellers' Shares, if
made by the Buyer, including, but not limited to, whether and when such offering
is to be made the proposed selling price of the securities. the selecting of and
arrangements with underwriters, if the securities are to be sold through
underwriters, including changes in such arrangements, the postponement or
withdrawal of any such public offering and the contents of the registration
statement and the prospectus, shall be entirely in the scope and uncontrolled
discretion of the Buyer.
(e) The Buyer covenants that it will, so long as any Seller's
Registrable Securities remain outstanding, file all reports required to be filed
by it under the Securities Act or the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by Commission thereunder, or,
if it is not required to file such reports, it will, upon the request of Seller,
make publicly available such information as will enable Seller to sell such
Registrable Securities without registration within the limitations of the
exemptions provided by (i) Rule 144 promulgated under the Securities Act, as
such rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter promulgated by the Securities and Exchange Commission. The
obligations of this Paragraph to register the Registrable Securities pursuant to
the Securities Act shall terminate upon the availability to Seller of any
exemption from registration permitting Seller the opportunity to dispose of the
Seller's shares without registration thereof (such as Regulation S or Rule 144
(k) under the Securities Act).
(f) Seller agrees that, without the prior written consent of
Buyer, that Seller shall neither sell, assign, pledge, transfer or otherwise
dispose of Seller's Shares or any Registrable Securities or enter any agreement
or understanding with respect thereto, to any single purchaser or Person or
Persons who comprise a group within the meaning of Paragraph 13(d) of the
Securities Exchange Acto of 1934 (as amended) known publicly or known to Seller
to have acquired or shall have the right to acquire "beneficial ownership" of in
excess of 5% of the outstanding equity securities of Buyer. The restrictions of
this subparagraph (f) shall not apply to open market transactions conducted on
any United States national securities exchange,
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including the NYSE.
Dated:
AMERICAN BANKNOTE CORPORATION
By /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
FINANCIERE JET SERVICES, S.A.
By /s/ Yves Prud-Hom
----------------------------
Yves Prud-Hom
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