1 EXHIBIT 4.28
EXHIBIT B
TO
SECURITIES
PURCHASE
AGREEMENT
THIS WARRANT AND THE SHARES ISSUABLE UPON THE
EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. EXCEPT
AS OTHERWISE SET FORTH HEREIN OR IN A
SECURITIES PURCHASE AGREEMENT DATED AS OF JULY 24,
1997, NEITHER THIS WARRANT NOR ANY OF SUCH SHARES
MAY BE SOLD, OFFERED FOR SALE, ASSIGNED,
TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER SUCH ACT OR AN
OPINION OF COUNSEL THAT REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT
TO RULE 144 UNDER SUCH ACT. ANY SUCH SALE,
ASSIGNMENT OR TRANSFER MUST ALSO COMPLY WITH
APPLICABLE STATE SECURITIES LAWS.
Right to
Purchase
140,000
Shares of
Common Stock,
par value $.01 per share
STOCK PURCHASE WARRANT (A-WARRANT)
THIS CERTIFIES THAT, for value received, RGC International
Investors, LDC or its registered assigns, is entitled to purchase
from American Banknote Corporation, a Delaware corporation (the
"Company"), at any time or from time to time during the period
specified in Paragraph 2 hereof, One Hundred Forty Thousand
(140,000) fully paid and nonassessable shares of the Company's
Common Stock, par value $.01 per share (the "Common Stock"), at
an exercise price of $5.70 per share (the "Exercise Price"). The
term "Warrant Shares", as used herein, refers to the shares of
Common Stock purchasable hereunder. The Warrant Shares and the
Exercise Price are subject to adjustment as provided in
Paragraph 4 hereof. The term Warrants means this Warrant and the
other A-Warrants, B-Warrants and Redemption Warrants issued
pursuant to that certain Securities Purchase Agreement, dated
July 24, 1997, by and among the Company and the Buyers listed on
the execution page thereof (the "Securities Purchase Agreement").
This Warrant is subject to the following terms, provisions,
and conditions:
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1. Manner of Exercise; Issuance of Certificates;
Payment for Shares. Subject to the provisions hereof, this
Warrant may be exercised by the holder hereof, in whole or in
part, by the surrender of this Warrant, together with a completed
exercise agreement in the form attached hereto (the "Exercise
Agreement"), to the Company during normal business hours on any
business day at the Company's principal executive offices (or
such other office or agency of the Company as it may designate by
notice to the holder hereof), and upon (i) payment to the Company
in cash, by certified or official bank check or by wire transfer
for the account of the Company of the Exercise Price for the
Warrant Shares specified in the Exercise Agreement or (ii)
delivery to the Company of a written notice of an election to
effect a "Cashless Exercise" (as defined in Section 11(c) below)
for the Warrant Shares specified in the Exercise Agreement. The
Warrant Shares so purchased shall be deemed to be issued to the
holder hereof or such holder's designee, as the record owner of
such shares, as of the close of business on the date on which
this Warrant shall have been surrendered, the completed Exercise
Agreement shall have been delivered, and payment shall have been
made for such shares as set forth above. Certificates for the
Warrant Shares so purchased, representing the aggregate number of
shares specified in the Exercise Agreement, shall be delivered to
the holder hereof within a reasonable time, not exceeding three
(3) business days, after this Warrant shall have been so
exercised. The certificates so delivered shall be in such
denominations as may be requested by the holder hereof and shall
be registered in the name of such holder or such other name as
shall be designated by such holder. If this Warrant shall have
been exercised only in part, then, unless this Warrant has
expired, the Company shall, at its expense, at the time of
delivery of such certificates, deliver to the holder a new
Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised.
Notwithstanding anything in this Warrant to the
contrary, in no event shall the Holder of this Warrant be
entitled to exercise a number of Warrants (or portions thereof)
in excess of the number of Warrants (or portions thereof) upon
exercise of which the sum of (i) the number of shares of Common
Stock beneficially owned by the Holder and its affiliates (other
than shares of Common Stock which may be deemed beneficially
owned through the ownership of the unexercised Warrants and
unconverted Debentures (as defined in the Securities Purchase
Agreement) and (ii) the number of shares of Common Stock issuable
upon exercise of the Warrants (or portions thereof) with respect
to which the determination described herein is being made, would
result in beneficial ownership by the Holder and its affiliates
of more than 4.9% of the outstanding shares of Common Stock. For
purposes of the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934, as amended, and Regulation
13D-G thereunder, except as otherwise provided in clause (i)
hereof.
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2. Period of Exercise. This Warrant is exercisable at
any time or from time to time on or after the date on which this
Warrant is issued and delivered pursuant to the terms of the
Securities Purchase Agreement and before 5:00 p.m., New York City
time on July 24, 1999 (the "Exercise Period").
3. Certain Agreements of the Company. The Company
hereby covenants and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares
will, upon issuance in accordance with the terms of this Warrant,
be validly issued, fully paid, and nonassessable and free from
liens and charges with respect to the issue thereof.
(b) Reservation of Shares. During the Exercise
Period, the Company shall at all times have authorized, and
reserved for the purpose of issuance upon exercise of this
Warrant, a sufficient number of shares of Common Stock to provide
for the exercise of this Warrant.
(c) Listing. The Company shall promptly secure the
listing of the shares of Common Stock issuable upon exercise of
the Warrant upon each national securities exchange or automated
quotation system, if any, upon which shares of Common Stock are
then listed (subject to official notice of issuance upon exercise
of this Warrant) and shall maintain, so long as any other shares
of Common Stock shall be so listed, such listing of all shares of
Common Stock from time to time issuable upon the exercise of this
Warrant; and the Company shall so list on each national
securities exchange or automated quotation system, as the case
may be, and shall maintain such listing of, any other shares of
capital stock of the Company issuable upon the exercise of this
Warrant if and so long as any shares of the same class shall be
listed on such national securities exchange or automated
quotation system.
(d) Certain Actions Prohibited. The Company will
not, by amendment of its charter or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or
sale of securities, or any other voluntary action, avoid or seek
to avoid the observance or performance of any of the terms to be
observed or performed by it hereunder, but will at all times in
good faith assist in the carrying out of all the provisions of
this Warrant and in the taking of all such action as may
reasonably be requested by the holder of this Warrant in order to
protect the exercise privilege of the holder of this Warrant
against dilution or other impairment, consistent with the tenor
and purpose of this Warrant. Without limiting the generality of
the foregoing, the Company (i) will not increase the par value of
any shares of Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, and (ii) will
take all such actions as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the exercise of this
Warrant.
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(e) Successors and Assigns. This Warrant will be
binding upon any entity succeeding to the Company by merger,
consolidation, or acquisition of all or substantially all the
Company's assets.
4. Antidilution Provisions. During the Exercise
Period, the Exercise Price and the number of Warrant Shares shall
be subject to adjustment from time to time as provided in this
Paragraph 4.
In the event that any adjustment of the Exercise Price as
required herein results in a fraction of a cent, such Exercise
Price shall be rounded up to the nearest cent.
(a) Adjustment of Exercise Price and Number of
Shares upon Issuance of Common Stock. Except as otherwise
provided in Paragraphs 4(c) and 4(e) hereof, if and whenever on
or after the date of issuance of this Warrant the Company issues
or sells, or in accordance with Paragraph 4(b) hereof is deemed
to have issued or sold, any shares of Common Stock for no
consideration or for a consideration per share (before deduction
of reasonable expenses or commissions or underwriting discounts
or allowances in connection therewith) less than the Market Price
(as hereinafter defined) on the date of issuance (a "Dilutive
Issuance"), then immediately upon the Dilutive Issuance, the
Exercise Price will be reduced to a price determined by
multiplying the Exercise Price in effect immediately prior to the
Dilutive Issuance by a fraction, (i) the numerator of which is an
amount equal to the sum of (x) the number of shares of Common
Stock actually outstanding immediately prior to the Dilutive
Issuance, plus (y) the quotient of the aggregate consideration,
calculated as set forth in Paragraph 4(b) hereof, received by the
Company upon such Dilutive Issuance divided by the Market Price
in effect immediately prior to the Dilutive Issuance, and (ii)
the denominator of which is the total number of shares of Common
Stock Deemed Outstanding (as defined below) immediately after the
Dilutive Issuance.
(b) Effect on Exercise Price of Certain Events.
For purposes of determining the adjusted Exercise Price under
Paragraph 4(a) hereof, the following will be applicable:
(i) Issuance of Rights or Options. If the
Company in any manner issues or grants any warrants, rights or
options, whether or not immediately exercisable, to subscribe for
or to purchase Common Stock or other securities convertible into
or exchangeable for Common Stock ("Convertible Securities") (such
warrants, rights and options to purchase Common Stock or
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Convertible Securities are hereinafter referred to as "Options")
and the price per share for which Common Stock is issuable upon
the exercise of such Options is less than the Market Price on the
date of issuance or grant of such Options, then the maximum total
number of shares of Common Stock issuable upon the exercise of
all such Options will, as of the date of the issuance or grant of
such Options, be deemed to be outstanding and to have been issued
and sold by the Company for such price per share. For purposes
of the preceding sentence, the "price per share for which Common
Stock is issuable upon the exercise of such Options" is
determined by dividing (i) the total amount, if any, received or
receivable by the Company as consideration for the issuance or
granting of all such Options, plus the minimum aggregate amount
of additional consideration, if any, payable to the Company upon
the exercise of all such Options, plus, in the case of
Convertible Securities issuable upon the exercise of such
Options, the minimum aggregate amount of additional consideration
payable upon the conversion or exchange thereof at the time such
Convertible Securities first become convertible or exchangeable,
by (ii) the maximum total number of shares of Common Stock
issuable upon the exercise of all such Options (assuming full
conversion of Convertible Securities, if applicable). No further
adjustment to the Exercise Price will be made upon the actual
issuance of such Common Stock upon the exercise of such Options
or upon the conversion or exchange of Convertible Securities
issuable upon exercise of such Options.
(ii) Issuance of Convertible Securities.
If the Company in any manner issues or sells any Convertible
Securities, whether or not immediately convertible (other than
where the same are issuable upon the exercise of Options) and the
price per share for which Common Stock is issuable upon such
conversion or exchange is less than the Market Price on the date
of issuance, then the maximum total number of shares of Common
Stock issuable upon the conversion or exchange of all such
Convertible Securities will, as of the date of the issuance of
such Convertible Securities, be deemed to be outstanding and to
have been issued and sold by the Company for such price per
share. For the purposes of the preceding sentence, the "price
per share for which Common Stock is issuable upon such conversion
or exchange" is determined by dividing (i) the total amount, if
any, received or receivable by the Company as consideration for
the issuance or sale of all such Convertible Securities, plus the
minimum aggregate amount of additional consideration, if any,
payable to the Company upon the conversion or exchange thereof at
the time such Convertible Securities first become convertible or
exchangeable, by (ii) the maximum total number of shares of
Common Stock issuable upon the conversion or exchange of all such
Convertible Securities. No further adjustment to the Exercise
Price will be made upon the actual issuance of such Common Stock
upon conversion or exchange of such Convertible Securities.
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(iii) Change in Option Price or Conversion
Rate. If there is a change at any time in (i) the amount of
additional consideration payable to the Company upon the exercise
of any Options; (ii) the amount of additional consideration, if
any, payable to the Company upon the conversion or exchange of
any Convertible Securities; or (iii) the rate at which any
Convertible Securities are convertible into or exchangeable for
Common Stock (other than under or by reason of provisions
designed to protect against dilution), the Exercise Price in
effect at the time of such change will be readjusted to the
Exercise Price which would have been in effect at such time had
such Options or Convertible Securities still outstanding provided
for such changed additional consideration or changed conversion
rate, as the case may be, at the time initially granted, issued
or sold.
(iv) Treatment of Expired Options and
Unexercised Convertible Securities. If, in any case, the total
number of shares of Common Stock issuable upon exercise of any
Option or upon conversion or exchange of any Convertible
Securities is not, in fact, issued and the rights to exercise
such Option or to convert or exchange such Convertible Securities
shall have expired or terminated, the Exercise Price then in
effect will be readjusted to the Exercise Price which would have
been in effect at the time of such expiration or termination had
such Option or Convertible Securities, to the extent outstanding
immediately prior to such expiration or termination (other than
in respect of the actual number of shares of Common Stock issued
upon exercise or conversion thereof), never been issued.
(v) Calculation of Consideration Received.
If any Common Stock, Options or Convertible Securities are
issued, granted or sold for cash, the consideration received
therefor for purposes of this Warrant will be the amount received
by the Company therefor, before deduction of reasonable
commissions, underwriting discounts or allowances or other
reasonable expenses paid or incurred by the Company in connection
with such issuance, grant or sale. In case any Common Stock,
Options or Convertible Securities are issued or sold for a
consideration part or all of which shall be other than cash, the
amount of the consideration other than cash received by the
Company will be the fair value of such consideration, except
where such consideration consists of securities, in which case
the amount of consideration received by the Company will be the
Market Price thereof as of the date of receipt. In case any
Common Stock, Options or Convertible Securities are issued in
connection with any acquisition, merger or consolidation in which
the Company is the surviving corporation, unless the Board of
Directors of the Company specifically provides otherwise, the
amount of consideration therefor will be deemed to be equal to
the Market Price of such Common Stock, Options or Convertible
Securities, as the case may be, on the date of issuance. The
fair value of any consideration other than cash or securities
will be determined in good faith by the Board of Directors of the
Company.
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(vi) Exceptions to Adjustment of Exercise
Price. No adjustment to the Exercise Price will be made (i) upon
the exercise of any warrants, options or convertible securities
granted, issued and outstanding on the date of issuance of this
Warrant; (ii) upon the grant or exercise of any stock or options
which may hereafter be granted or exercised under any employee
benefit plan of the Company now existing or to be implemented in
the future, so long as the issuance of such stock or options is
approved by a majority of the independent members of the Board of
Directors of the Company or a majority of the members of a
committee of independent directors established for such purpose;
(iii) upon the exercise of the Warrants; (iv) upon the conversion
of the Debentures issued pursuant to the Securities Purchase
Agreement or (v) upon issuance, exercise or conversion of any
securities purchased by the Holder pursuant to the provisions of
Section 4(e) of the Securities Purchase Agreement.
(c) Subdivision or Combination of Common Stock.
If the Company at any time subdivides (by any stock split, stock
dividend, recapitalization, reorganization, reclassification or
otherwise) the shares of Common Stock acquirable hereunder into a
greater number of shares, then, after the date of record for
effecting such subdivision, the Exercise Price in effect
immediately prior to such subdivision will be proportionately
reduced. If the Company at any time combines (by reverse stock
split, recapitalization, reorganization, reclassification or
otherwise) the shares of Common Stock acquirable hereunder into a
smaller number of shares, then, after the date of record for
effecting such combination, the Exercise Price in effect
immediately prior to such combination will be proportionately
increased.
(d) Adjustment in Number of Shares. Upon each
adjustment of the Exercise Price pursuant to the provisions of
this Paragraph 4, the number of shares of Common Stock issuable
upon exercise of this Warrant shall be adjusted by multiplying a
number equal to the Exercise Price in effect immediately prior to
such adjustment by the number of shares of Common Stock issuable
upon exercise of this Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted
Exercise Price.
(e) Consolidation, Merger or Sale. In case of
any consolidation of the Company with, or merger of the Company
into any other corporation, or in case of any sale or conveyance
of all or substantially all of the assets of the Company other
than in connection with a plan of complete liquidation of the
Company, then as a condition of such consolidation, merger or
sale or conveyance, adequate provision will be made whereby the
holder of this Warrant will have the right to acquire and receive
upon exercise of this Warrant in lieu of the shares of Common
Stock immediately theretofore acquirable upon the exercise of
this Warrant, such shares of stock, securities or assets as may
be issued or payable with respect to or in exchange for the
number of shares of Common Stock immediately theretofore
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acquirable and receivable upon exercise of this Warrant had such
consolidation, merger or sale or conveyance not taken place. In
any such case, the Company will make appropriate provision to
insure that the provisions of this Paragraph 4 hereof will
thereafter be applicable as nearly as may be in relation to any
shares of stock or securities thereafter deliverable upon the
exercise of this Warrant. The Company will not effect any
consolidation, merger or sale or conveyance unless prior to the
consummation thereof, the successor corporation (if other than
the Company) assumes by written instrument the obligations under
this Paragraph 4 and the obligations to deliver to the holder of
this Warrant such shares of stock, securities or assets as, in
accordance with the foregoing provisions, the holder may be
entitled to acquire.
(f) Distribution of Assets. In case the Company
shall declare or make any distribution of its assets (including
cash) to holders of Common Stock as a partial liquidating
dividend, by way of return of capital or otherwise, then, after
the date of record for determining stockholders entitled to such
distribution, but prior to the date of distribution, the holder
of this Warrant shall be entitled upon exercise of this Warrant
for the purchase of any or all of the shares of Common Stock
subject hereto, to receive the amount of such assets which would
have been payable to the holder had such holder been the holder
of such shares of Common Stock on the record date for the
determination of stockholders entitled to such distribution.
(g) Notice of Adjustment. Upon the occurrence of
any event which requires any adjustment of the Exercise Price,
then, and in each such case, the Company shall give notice
thereof to the holder of this Warrant, which notice shall state
the Exercise Price resulting from such adjustment and the
increase or decrease in the number of Warrant Shares purchasable
at such price upon exercise, setting forth in reasonable detail
the method of calculation and the facts upon which such
calculation is based. Such calculation shall be certified by the
chief financial officer of the Company.
(h) Minimum Adjustment of Exercise Price. No
adjustment of the Exercise Price shall be made in an amount of
less than 5% of the Exercise Price in effect at the time such
adjustment is otherwise required to be made, but any such lesser
adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment which, together
with any adjustments so carried forward, shall amount to not less
than 5% of such Exercise Price.
(i) No Fractional Shares. No fractional shares
of Common Stock are to be issued upon the exercise of this
Warrant, but the Company shall pay a cash adjustment in respect
of any fractional share which would otherwise be issuable in an
amount equal to the same fraction of the Market Price of a share
of Common Stock on the date of such exercise.
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(j) Other Notices. In case at any time:
(i) the Company shall declare any dividend
upon the Common Stock payable in shares of stock of any class or
make any other distribution (including dividends or distributions
payable in cash out of retained earnings) to the holders of the
Common Stock;
(ii) the Company shall offer for subscription
pro rata to the holders of the Common Stock any additional shares
of stock of any class or other rights;
(iii) there shall be any capital
reorganization of the Company, or reclassification of the Common
Stock, or consolidation or merger of the Company with or into, or
sale of all or substantially all its assets to, another
corporation or entity; or
(iv) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, in each such case, the Company shall give to the holder of
this Warrant (a) notice of the date on which the books of the
Company shall close or a record shall be taken for determining
the holders of Common Stock entitled to receive any such
dividend, distribution, or subscription rights or for determining
the holders of Common Stock entitled to vote in respect of any
such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up and (b) in the case
of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up, notice of
the date (or, if not then known, a reasonable approximation
thereof by the Company) when the same shall take place. Such
notice shall also specify the date on which the holders of Common
Stock shall be entitled to receive such dividend, distribution,
or subscription rights or to exchange their Common Stock for
stock or other securities or property deliverable upon such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up, as the case may be.
Such notice shall be given at least 30 days prior to the record
date or the date on which the Company's books are closed in
respect thereto. Failure to give any such notice or any defect
therein shall not affect the validity of the proceedings referred
to in clauses (i), (ii), (iii) and (iv) above.
(k) Certain Events. If any event occurs of the
type contemplated by the adjustment provisions of this Paragraph
4 but not expressly provided for by such provisions, the Company
will give notice of such event as provided in Paragraph 4(g)
hereof, and the Company's Board of Directors will make an
appropriate adjustment in the Exercise Price and the number of
shares of Common Stock acquirable upon exercise of this Warrant
so that the rights of the Holder shall be neither enhanced nor
diminished by such event.
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(l) Certain Definitions.
(i) "Common Stock Deemed Outstanding"
shall mean the number of shares of Common Stock actually
outstanding (not including shares of Common Stock held in the
treasury of the Company), plus (x) pursuant to Paragraph 4(b)(i)
hereof, the maximum total number of shares of Common Stock
issuable upon the exercise of Options, as of the date of such
issuance or grant of such Options, if any, and (y) pursuant to
Paragraph 4(b)(ii) hereof, the maximum total number of shares of
Common Stock issuable upon conversion or exchange of Convertible
Securities, as of the date of issuance of such Convertible
Securities, if any.
(ii) "Market Price," as of any date, (i)
means the average of the last reported sale prices for the shares
of Common Stock on the New York Stock Exchange ("NYSE") for the
five (5) trading days immediately preceding such date as reported
by Bloomberg, L.P. ("Bloomberg"), or (ii) if the NYSE is not the
principal trading market for the shares of Common Stock, the
average of the last reported sale prices on the principal trading
market for the Common Stock during the same period as reported by
Bloomberg, or (iii) if market value cannot be calculated as of
such date on any of the foregoing bases, the Market Price shall
be the fair market value as reasonably determined in good faith
by (a) the Board of Directors of the Corporation or, at the
option of a majority-in-interest of the holders of the
outstanding Warrants by (b) an independent investment bank of
nationally recognized standing in the valuation of businesses
similar to the business of the corporation. The manner of
determining the Market Price of the Common Stock set forth in the
foregoing definition shall apply with respect to any other
security in respect of which a determination as to market value
must be made hereunder.
(iii) "Common Stock," for purposes of this
Paragraph 4, includes the Common Stock, par value $.01 per share,
and any additional class of stock of the Company having no
preference as to dividends or distributions on liquidation,
provided that the shares purchasable pursuant to this Warrant
shall include only shares of Common Stock, par value $.01 per
share, in respect of which this Warrant is exercisable, or shares
resulting from any subdivision or combination of such Common
Stock, or in the case of any reorganization, reclassification,
consolidation, merger, or sale of the character referred to in
Paragraph 4(e) hereof, the stock or other securities or property
provided for in such Paragraph.
5. Issue Tax. The issuance of certificates for
Warrant Shares upon the exercise of this Warrant shall be made
without charge to the holder of this Warrant or such shares for
any issuance tax or other costs in respect thereof, provided that
the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than the holder of
this Warrant.
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6. No Rights or Liabilities as a Shareholder. This
Warrant shall not entitle the holder hereof to any voting rights
or other rights as a shareholder of the Company. No provision of
this Warrant, in the absence of affirmative action by the holder
hereof to purchase Warrant Shares, and no mere enumeration herein
of the rights or privileges of the holder hereof, shall give rise
to any liability of such holder for the Exercise Price or as a
shareholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
7. Transfer, Exchange, and Replacement of Warrant.
(a) Restriction on Transfer. This Warrant and the
rights granted to the holder hereof are transferable, in whole or
in part, upon surrender of this Warrant, together with a properly
executed assignment in the form attached hereto, at the office or
agency of the Company referred to in Paragraph 7(e) below,
provided, however, that any transfer or assignment shall be
subject to the conditions set forth in Paragraph 7(f) hereof and
to the applicable provisions of the Securities Purchase
Agreement. Until due presentment for registration of transfer on
the books of the Company, the Company may treat the registered
holder hereof as the owner and holder hereof for all purposes,
and the Company shall not be affected by any notice to the
contrary. Notwithstanding anything to the contrary contained
herein, the registration rights described in Paragraph 8 are
assignable only in accordance with the provisions of that certain
Registration Rights Agreement, dated as of July 24, 1997, by and
among the Company and the other signatories thereto (the
"Registration Rights Agreement").
(b) Warrant Exchangeable for Different
Denominations. This Warrant is exchangeable, upon the surrender
hereof by the holder hereof at the office or agency of the
Company referred to in Paragraph 7(e) below, for new Warrants of
like tenor representing in the aggregate the right to purchase
the number of shares of Common Stock which may be purchased
hereunder, each of such new Warrants to represent the right to
purchase such number of shares as shall be designated by the
holder hereof at the time of such surrender.
(c) Replacement of Warrant. Upon receipt of
evidence reasonably satisfactory to the Company of the loss,
theft, destruction, or mutilation of this Warrant and, in the
case of any such loss, theft, or destruction, upon delivery of an
indemnity agreement reasonably satisfactory in form and amount to
the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company, at its
expense, will execute and deliver, in lieu thereof, a new Warrant
of like tenor.
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(d) Cancellation; Payment of Expenses. Upon the
surrender of this Warrant in connection with any transfer,
exchange, or replacement as provided in this Paragraph 7, this
Warrant shall be promptly canceled by the Company. The Company
shall pay all taxes (other than securities transfer taxes) and
all other expenses (other than legal expenses, if any, incurred
by the Holder or transferees) and charges payable in connection
with the preparation, execution, and delivery of Warrants
pursuant to this Paragraph 7.
(e) Register. The Company shall maintain, at its
principal executive offices (or such other office or agency of
the Company as it may designate by notice to the holder hereof),
a register for this Warrant, in which the Company shall record
the name and address of the person in whose name this Warrant has
been issued, as well as the name and address of each transferee
and each prior owner of this Warrant.
(f) Exercise or Transfer Without Registration. If,
at the time of the surrender of this Warrant in connection with
any exercise, transfer, or exchange of this Warrant, this Warrant
(or, in the case of any exercise, the Warrant Shares issuable
hereunder), shall not be registered under the Securities Act of
1933, as amended (the "Securities Act") and under applicable
state securities or blue sky laws, the Company may require, as a
condition of allowing such exercise, transfer, or exchange, (i)
that the holder or transferee of this Warrant, as the case may
be, furnish to the Company a written opinion of counsel, which
opinion and counsel are acceptable to the Company, to the effect
that such exercise, transfer, or exchange may be made without
registration under said Act and under applicable state securities
or blue sky laws, (ii) that the holder or transferee execute and
deliver to the Company an investment letter in form and substance
acceptable to the Company, and (iii) that the transferee be an
"accredited investor" as defined in Rule 501(a) promulgated under
the Securities Act; provided that no such opinion, letter or
status as an "accredited investor" shall be required in
connection with a transfer pursuant to Rule 144 under the
Securities Act. The first holder of this Warrant, by taking and
holding the same, represents to the Company that such holder is
acquiring this Warrant for investment and not with a view to the
distribution thereof.
8. Registration Rights. The initial holder of this
Warrant (and certain assignees thereof) is entitled to the
benefit of such registration rights in respect of the Warrant
Shares as are set forth in Section 2 of the Registration Rights
Agreement.
9. Notices. All notices, requests, and other
communications required or permitted to be given or delivered
hereunder to the holder of this Warrant shall be in writing, and
shall be personally delivered, or shall be sent by certified or
registered mail or by recognized overnight mail courier, postage
prepaid and addressed, to such holder at the address shown for
13
such holder on the books of the Company, or at such other address
as shall have been furnished to the Company by notice from such
holder. All notices, requests, and other communications required
or permitted to be given or delivered hereunder to the Company
shall be in writing, and shall be personally delivered, or shall
be sent by certified or registered mail or by recognized
overnight mail courier, postage prepaid and addressed, to the
office of the Company at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Secretary, or at such other address
as shall have been furnished to the holder of this Warrant by
notice from the Company. Any such notice, request, or other
communication may be sent by facsimile, but shall in such case be
subsequently confirmed by a writing personally delivered or sent
by certified or registered mail or by recognized overnight mail
courier as provided above. All notices, requests, and other
communications shall be deemed to have been given either at the
time of the receipt thereof by the person entitled to receive
such notice at the address of such person for purposes of this
Paragraph 9, or, if mailed by registered or certified mail or
with a recognized overnight mail courier upon deposit with the
United States Post Office or such overnight mail courier, if
postage is prepaid and the mailing is properly addressed, as the
case may be.
10. Governing Law. THIS WARRANT SHALL BE GOVERNED BY
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF DELAWARE WITHOUT REGARD TO THE BODY OF LAW
CONTROLLING CONFLICTS OF LAW.
11. Miscellaneous.
(a) Amendments. This Warrant and any provision
hereof may only be amended by an instrument in writing signed by
the Company and the holder hereof.
(b) Descriptive Headings. The descriptive
headings of the several paragraphs of this Warrant are inserted
for purposes of reference only, and shall not affect the meaning
or construction of any of the provisions hereof.
(c) Cashless Exercise. Notwithstanding anything
to the contrary contained in this Warrant, this Warrant may be
exercised by presentation and surrender of this Warrant to the
Company at its principal executive offices with a written notice
of the holder's intention to effect a cashless exercise,
including a calculation of the number of shares of Common Stock
to be issued upon such exercise in accordance with the terms
hereof (a "Cashless Exercise"). In the event of a Cashless
Exercise, in lieu of paying the Exercise Price in cash, the
holder shall surrender this Warrant for that number of shares of
Common Stock determined by multiplying the number of Warrant
Shares to which it would otherwise be entitled by a fraction, the
numerator of which shall be the difference between the then
current Market Price per share of the Common Stock and the
Exercise Price, and the denominator of which shall be the then
current Market Price per share of Common Stock.
14
(d) Other Agreements. This Warrant is subject
to the rights and restrictions set forth in the Securities
Purchase Agreement and the Registration Rights Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the Company has caused this Warrant to
be signed by its duly authorized officer.
AMERICAN BANKNOTE CORPORATION
By:___________________________
Xxxxxx X. Xxxxxx, Esq.
Executive Vice President, General Counsel
and Secretary
Dated as of July 24, 1997
16
FORM OF EXERCISE AGREEMENT
Dated: ________, ____.
To:_____________________________
The undersigned, pursuant to the provisions set forth in
the within Warrant, hereby agrees to purchase ________ shares of
Common Stock covered by such Warrant, and makes payment herewith
in full therefor at the price per share provided by such Warrant
in cash or by certified or official bank check in the amount of,
or, if the resale of such Common Stock by the undersigned is not
currently registered pursuant to an effective registration
statement under the Securities Act of 1933, as amended, by
surrender of securities issued by the Company (including a
portion of the Warrant) having a market value (in the case of a
portion of this Warrant, determined in accordance with Section
11(c) of the Warrant) equal to $_________. Please issue a
certificate or certificates for such shares of Common Stock in
the name of and pay any cash for any fractional share to:
Name: ___________________________________
Signature: ______________________________
Address: ______________________________
______________________________
Note: The above signature should
correspond exactly with the
name on the face of
the within Warrant.
and, if said number of shares of Common Stock shall not be all
the shares purchasable under the within Warrant, a new Warrant is
to be issued in the name of said undersigned covering the balance
of the shares purchasable thereunder less any fraction of a share
paid in cash.
17
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns,
and transfers all the rights of the undersigned under the within
Warrant, with respect to the number of shares of Common Stock
covered thereby set forth hereinbelow, to:
Name of Assignee Address No of Shares
, and hereby irrevocably constitutes and appoints
_______________________________ as agent and attorney-in-fact to
transfer said Warrant on the books of the within-named
corporation, with full power of substitution in the premises.
Dated: _____________________, ____,
In the presence of
__________________
Name:___________________________________
Signature:_________________________
Title of Signing Officer or Agent (if any):
__________________________________
Address:___________________________
___________________________
Note: The above signature should
correspond exactly with the
name on the face of the
within Warrant.
1 EXHIBIT 4.28
EXHIBIT C
TO
SECURITIES
PURCHASE
AGREEMENT
THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
EXCEPT AS OTHERWISE SET FORTH HEREIN OR IN A
SECURITIES PURCHASE AGREEMENT DATED AS OF JULY
24, 1997, NEITHER THIS WARRANT NOR ANY OF SUCH
SHARES MAY BE SOLD, OFFERED FOR SALE, ASSIGNED,
TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF REGISTRATION UNDER SUCH ACT OR AN
OPINION OF COUNSEL THAT REGISTRATION IS NOT
REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT
TO RULE 144 UNDER SUCH ACT. ANY SUCH SALE,
ASSIGNMENT OR TRANSFER MUST ALSO COMPLY WITH
APPLICABLE STATE SECURITIES LAWS.
Right to
Purchase
75,000
Shares of
Common
Stock, par
value $.01
per share
STOCK PURCHASE WARRANT (B-WARRANT)
THIS CERTIFIES THAT, for value received, RGC International
Investors, LDC or its registered assigns, is entitled to purchase
from American Banknote Corporation, a Delaware corporation (the
"Company"), at any time or from time to time during the period
specified in Paragraph 2 hereof, Seventy-Five Thousand (75,000)
fully paid and nonassessable shares of the Company's Common
Stock, par value $.01 per share (the "Common Stock"), at an
exercise price of $6.4125 per share (the "Exercise Price"). The
term "Warrant Shares", as used herein, refers to the shares of
Common Stock purchasable hereunder. The Warrant Shares and the
Exercise Price are subject to adjustment as provided in
Paragraph 4 hereof. The term Warrants means this Warrant and the
other A-Warrants, B-Warrants and Redemption Warrants issued
pursuant to that certain Securities Purchase Agreement, dated
July 24, 1997, by and among the Company and the Buyers listed on
the execution page thereof (the "Securities Purchase Agreement").
2
This Warrant is subject to the following terms, provisions, and
conditions:
1.Manner of Exercise; Issuance of Certificates; Payment for
Shares. Subject to the provisions hereof, this Warrant may be
exercised by the holder hereof, in whole or in part, by the
surrender of this Warrant, together with a completed exercise
agreement in the form attached hereto (the "Exercise Agreement"),
to the Company during normal business hours on any business day
at the Company's principal executive offices (or such other
office or agency of the Company as it may designate by notice to
the holder hereof), and upon (i) payment to the Company in cash,
by certified or official bank check or by wire transfer for the
account of the Company of the Exercise Price for the Warrant
Shares specified in the Exercise Agreement or (ii) delivery to
the Company of a written notice of an election to effect a
"Cashless Exercise" (as defined in Section 11(c) below) for the
Warrant Shares specified in the Exercise Agreement. The Warrant
Shares so purchased shall be deemed to be issued to the holder
hereof or such holder's designee, as the record owner of such
shares, as of the close of business on the date on which this
Warrant shall have been surrendered, the completed Exercise
Agreement shall have been delivered, and payment shall have been
made for such shares as set forth above. Certificates for the
Warrant Shares so purchased, representing the aggregate number of
shares specified in the Exercise Agreement, shall be delivered to
the holder hereof within a reasonable time, not exceeding three
(3) business days, after this Warrant shall have been so
exercised. The certificates so delivered shall be in such
denominations as may be requested by the holder hereof and shall
be registered in the name of such holder or such other name as
shall be designated by such holder. If this Warrant shall have
been exercised only in part, then, unless this Warrant has
expired, the Company shall, at its expense, at the time of
delivery of such certificates, deliver to the holder a new
Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised.
Notwithstanding anything in this Warrant to the contrary, in no
event shall the Holder of this Warrant be entitled to exercise a
number of Warrants (or portions thereof) in excess of the number
of Warrants (or portions thereof) upon exercise of which the sum
of (i) the number of shares of Common Stock beneficially owned by
the Holder and its affiliates (other than shares of Common Stock
which may be deemed beneficially owned through the ownership of
the unexercised Warrants and unconverted Debentures (as defined
in the Securities Purchase Agreement) and (ii) the number of
shares of Common Stock issuable upon exercise of the Warrants (or
portions thereof) with respect to which the determination
described herein is being made, would result in beneficial
3
ownership by the Holder and its affiliates of more than 4.9% of
the outstanding shares of Common Stock. For purposes of the
immediately preceding sentence, beneficial ownership shall be
determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation 13D-G
thereunder, except as otherwise provided in clause (i) hereof.
2.Period of Exercise. This Warrant is exercisable at any time or
from time to time on or after the date on which this Warrant is
issued and delivered pursuant to the terms of the Securities
Purchase Agreement and before 5:00 p.m., New York City time on
July 24, 2000 (the "Exercise Period").
3.Certain Agreements of the Company. The Company hereby
covenants and agrees as follows:
(a) Shares to be Fully Paid. All Warrant Shares will, upon
issuance in accordance with the terms of this Warrant, be validly
issued, fully paid, and nonassessable and free from liens and
charges with respect to the issue thereof.
(b) Reservation of Shares. During the Exercise Period, the
Company shall at all times have authorized, and reserved for the
purpose of issuance upon exercise of this Warrant, a sufficient
number of shares of Common Stock to provide for the exercise of
this Warrant.
(c) Listing. The Company shall promptly secure the listing of
the shares of Common Stock issuable upon exercise of the Warrant
upon each national securities exchange or automated quotation
system, if any, upon which shares of Common Stock are then listed
(subject to official notice of issuance upon exercise of this
Warrant) and shall maintain, so long as any other shares of
Common Stock shall be so listed, such listing of all shares of
Common Stock from time to time issuable upon the exercise of this
Warrant; and the Company shall so list on each national
securities exchange or automated quotation system, as the case
may be, and shall maintain such listing of, any other shares of
capital stock of the Company issuable upon the exercise of this
Warrant if and so long as any shares of the same class shall be
listed on such national securities exchange or automated
quotation system.
(d) Certain Actions Prohibited. The Company will not, by
amendment of its charter or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms to be observed
4
or performed by it hereunder, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant
and in the taking of all such action as may reasonably be
requested by the holder of this Warrant in order to protect the
exercise privilege of the holder of this Warrant against dilution
or other impairment, consistent with the tenor and purpose of
this Warrant. Without limiting the generality of the foregoing,
the Company (i) will not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above
the Exercise Price then in effect, and (ii) will take all such
actions as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the exercise of this
Warrant.
(e) Successors and Assigns. This Warrant will be binding upon
any entity succeeding to the Company by merger, consolidation, or
acquisition of all or substantially all the Company's assets.
4.Antidilution Provisions. During the Exercise Period, the
Exercise Price and the number of Warrant Shares shall be subject
to adjustment from time to time as provided in this Paragraph 4.
In the event that any adjustment of the Exercise Price as
required herein results in a fraction of a cent, such Exercise
Price shall be rounded up to the nearest cent.
(a)Adjustment of Exercise Price and Number of Shares upon
Issuance of Common Stock. Except as otherwise provided in
Paragraphs 4(c) and 4(e) hereof, if and whenever on or after the
date of issuance of this Warrant the Company issues or sells, or
in accordance with Paragraph 4(b) hereof is deemed to have issued
or sold, any shares of Common Stock for no consideration or for a
consideration per share (before deduction of reasonable expenses
or commissions or underwriting discounts or allowances in
connection therewith) less than the Market Price (as hereinafter
defined) on the date of issuance (a "Dilutive Issuance"), then
immediately upon the Dilutive Issuance, the Exercise Price will
be reduced to a price determined by multiplying the Exercise
Price in effect immediately prior to the Dilutive Issuance by a
fraction, (i) the numerator of which is an amount equal to the
sum of (x) the number of shares of Common Stock actually
outstanding immediately prior to the Dilutive Issuance, plus (y)
the quotient of the aggregate consideration, calculated as set
forth in Paragraph 4(b) hereof, received by the Company upon such
Dilutive Issuance, divided by the Market Price in effect
immediately prior to the Dilutive Issuance, and (ii) the
denominator of which is the total number of shares of Common
Stock Deemed Outstanding (as defined below) immediately after the
Dilutive Issuance.
5
(b)Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Exercise Price under Paragraph 4(a)
hereof, the following will be applicable:
(i)Issuance of Rights or Options. If the Company in any manner
issues or grants any warrants, rights or options, whether or not
immediately exercisable, to subscribe for or to purchase Common
Stock or other securities convertible into or exchangeable for
Common Stock ("Convertible Securities") (such warrants, rights
and options to purchase Common Stock or Convertible Securities
are hereinafter referred to as "Options") and the price per share
for which Common Stock is issuable upon the exercise of such
Options is less than the Market Price on the date of issuance or
grant of such Options, then the maximum total number of shares of
Common Stock issuable upon the exercise of all such Options will,
as of the date of the issuance or grant of such Options, be
deemed to be outstanding and to have been issued and sold by the
Company for such price per share. For purposes of the preceding
sentence, the "price per share for which Common Stock is issuable
upon the exercise of such Options" is determined by dividing (i)
the total amount, if any, received or receivable by the Company
as consideration for the issuance or granting of all such
Options, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the exercise
of all such Options, plus, in the case of Convertible Securities
issuable upon the exercise of such Options, the minimum aggregate
amount of additional consideration payable upon the conversion or
exchange thereof at the time such Convertible Securities first
become convertible or exchangeable, by (ii) the maximum total
number of shares of Common Stock issuable upon the exercise of
all such Options (assuming full conversion of Convertible
Securities, if applicable). No further adjustment to the
Exercise Price will be made upon the actual issuance of such
Common Stock upon the exercise of such Options or upon the
conversion or exchange of Convertible Securities issuable upon
exercise of such Options.
(ii)Issuance of Convertible Securities. If the Company in any
manner issues or sells any Convertible Securities, whether or not
immediately convertible (other than where the same are issuable
upon the exercise of Options) and the price per share for which
Common Stock is issuable upon such conversion or exchange is less
than the Market Price on the date of issuance, then the maximum
total number of shares of Common Stock issuable upon the
conversion or exchange of all such Convertible Securities will,
as of the date of the issuance of such Convertible Securities, be
deemed to be outstanding and to have been issued and sold by the
Company for such price per share. For the purposes of the
preceding sentence, the "price per share for which Common Stock
is issuable upon such conversion or exchange" is determined by
dividing (i) the total amount, if any, received or receivable by
6
the Company as consideration for the issuance or sale of all such
Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the
conversion or exchange thereof at the time such Convertible
Securities first become convertible or exchangeable, by (ii) the
maximum total number of shares of Common Stock issuable upon the
conversion or exchange of all such Convertible Securities. No
further adjustment to the Exercise Price will be made upon the
actual issuance of such Common Stock upon conversion or exchange
of such Convertible Securities.
(iii)Change in Option Price or Conversion Rate. If there is a
change at any time in (i) the amount of additional consideration
payable to the Company upon the exercise of any Options; (ii) the
amount of additional consideration, if any, payable to the
Company upon the conversion or exchange of any Convertible
Securities; or (iii) the rate at which any Convertible Securities
are convertible into or exchangeable for Common Stock (other than
under or by reason of provisions designed to protect against
dilution), the Exercise Price in effect at the time of such
change will be readjusted to the Exercise Price which would have
been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed additional
consideration or changed conversion rate, as the case may be, at
the time initially granted, issued or sold.
(iv)Treatment of Expired Options and Unexercised Convertible
Securities. If, in any case, the total number of shares of
Common Stock issuable upon exercise of any Option or upon
conversion or exchange of any Convertible Securities is not, in
fact, issued and the rights to exercise such Option or to convert
or exchange such Convertible Securities shall have expired or
terminated, the Exercise Price then in effect will be readjusted
to the Exercise Price which would have been in effect at the time
of such expiration or termination had such Option or Convertible
Securities, to the extent outstanding immediately prior to such
expiration or termination (other than in respect of the actual
number of shares of Common Stock issued upon exercise or
conversion thereof), never been issued.
(v)Calculation of Consideration Received. If any Common Stock,
Options or Convertible Securities are issued, granted or sold for
cash, the consideration received therefor for purposes of this
Warrant will be the amount received by the Company therefor,
before deduction of reasonable commissions, underwriting
discounts or allowances or other reasonable expenses paid or
incurred by the Company in connection with such issuance, grant
or sale. In case any Common Stock, Options or Convertible
Securities are issued or sold for a consideration part or all of
which shall be other than cash, the amount of the consideration
7
other than cash received by the Company will be the fair value of
such consideration, except where such consideration consists of
securities, in which case the amount of consideration received by
the Company will be the Market Price thereof as of the date of
receipt. In case any Common Stock, Options or Convertible
Securities are issued in connection with any acquisition, merger
or consolidation in which the Company is the surviving
corporation, unless the Board of Directors of the Company
specifically provides otherwise, the amount of consideration
therefor will be deemed to be equal to the Market Price of such
Common Stock, Options or Convertible Securities, as the case may
be, on the date of issuance. The fair value of any consideration
other than cash or securities will be determined in good faith by
the Board of Directors of the Company.
(vi)Exceptions to Adjustment of Exercise Price. No adjustment to
the Exercise Price will be made (i) upon the exercise of any
warrants, options or convertible securities granted, issued and
outstanding on the date of issuance of this Warrant; (ii) upon
the grant or exercise of any stock or options which may hereafter
be granted or exercised under any employee benefit plan of the
Company now existing or to be implemented in the future, so long
as the issuance of such stock or options is approved by a
majority of the independent members of the Board of Directors of
the Company or a majority of the members of a committee of
independent directors established for such purpose; (iii) upon
the exercise of the Warrants; (iv) upon the conversion of the
Debentures issued pursuant to the Securities Purchase Agreement
or (v) upon issuance, exercise or conversion of any securities
purchased by the Holder pursuant to the provisions of Section
4(e) of the Securities Purchase Agreement.
(c)Subdivision or Combination of Common Stock. If the Company at
any time subdivides (by any stock split, stock dividend,
recapitalization, reorganization, reclassification or otherwise)
the shares of Common Stock acquirable hereunder into a greater
number of shares, then, after the date of record for effecting
such subdivision, the Exercise Price in effect immediately prior
to such subdivision will be proportionately reduced. If the
Company at any time combines (by reverse stock split,
recapitalization, reorganization, reclassification or otherwise)
the shares of Common Stock acquirable hereunder into a smaller
number of shares, then, after the date of record for effecting
such combination, the Exercise Price in effect immediately prior
to such combination will be proportionately increased.
(d)Adjustment in Number of Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Paragraph 4,
the number of shares of Common Stock issuable upon exercise of
this Warrant shall be adjusted by multiplying a number equal to
8
the Exercise Price in effect immediately prior to such adjustment
by the number of shares of Common Stock issuable upon exercise of
this Warrant immediately prior to such adjustment and dividing
the product so obtained by the adjusted Exercise Price.
(e)Consolidation, Merger or Sale. In case of any consolidation
of the Company with, or merger of the Company into any other
corporation, or in case of any sale or conveyance of all or
substantially all of the assets of the Company other than in
connection with a plan of complete liquidation of the Company,
then as a condition of such consolidation, merger or sale or
conveyance, adequate provision will be made whereby the holder of
this Warrant will have the right to acquire and receive upon
exercise of this Warrant in lieu of the shares of Common Stock
immediately theretofore acquirable upon the exercise of this
Warrant, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for the number
of shares of Common Stock immediately theretofore acquirable and
receivable upon exercise of this Warrant had such consolidation,
merger or sale or conveyance not taken place. In any such case,
the Company will make appropriate provision to insure that the
provisions of this Paragraph 4 hereof will thereafter be
applicable as nearly as may be in relation to any shares of stock
or securities thereafter deliverable upon the exercise of this
Warrant. The Company will not effect any consolidation, merger
or sale or conveyance unless prior to the consummation thereof,
the successor corporation (if other than the Company) assumes by
written instrument the obligations under this Paragraph 4 and the
obligations to deliver to the holder of this Warrant such shares
of stock, securities or assets as, in accordance with the
foregoing provisions, the holder may be entitled to acquire.
(f)Distribution of Assets. In case the Company shall declare or
make any distribution of its assets (including cash) to holders
of Common Stock as a partial liquidating dividend, by way of
return of capital or otherwise, then, after the date of record
for determining stockholders entitled to such distribution, but
prior to the date of distribution, the holder of this Warrant
shall be entitled upon exercise of this Warrant for the purchase
of any or all of the shares of Common Stock subject hereto, to
receive the amount of such assets which would have been payable
to the holder had such holder been the holder of such shares of
Common Stock on the record date for the determination of
stockholders entitled to such distribution.
9
(g) Notice of Adjustment. Upon the occurrence of any event
which requires any adjustment of the Exercise Price, then, and in
each such case, the Company shall give notice thereof to the
holder of this Warrant, which notice shall state the Exercise
Price resulting from such adjustment and the increase or decrease
in the number of Warrant Shares purchasable at such price upon
exercise, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
Such calculation shall be certified by the chief financial
officer of the Company.
(h)Minimum Adjustment of Exercise Price. No adjustment of the
Exercise Price shall be made in an amount of less than 5% of the
Exercise Price in effect at the time such adjustment is otherwise
required to be made, but any such lesser adjustment shall be
carried forward and shall be made at the time and together with
the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to not less than 5%
of such Exercise Price.
(i)No Fractional Shares. No fractional shares of Common Stock
are to be issued upon the exercise of this Warrant, but the
Company shall pay a cash adjustment in respect of any fractional
share which would otherwise be issuable in an amount equal to the
same fraction of the Market Price of a share of Common Stock on
the date of such exercise.
(j) Other Notices. In case at any time:
(i) the Company shall declare any dividend upon the Common Stock
payable in shares of stock of any class or make any other
distribution (including dividends or distributions payable in
cash out of retained earnings) to the holders of the Common
Stock;
(ii) the Company shall offer for subscription pro rata to the
holders of the Common Stock any additional shares of stock of any
class or other rights;
(iii) there shall be any capital reorganization of the Company,
or reclassification of the Common Stock, or consolidation or
merger of the Company with or into, or sale of all or
substantially all its assets to, another corporation or entity;
or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
10
then, in each such case, the Company shall give to the holder of
this Warrant (a) notice of the date on which the books of the
Company shall close or a record shall be taken for determining
the holders of Common Stock entitled to receive any such
dividend, distribution, or subscription rights or for determining
the holders of Common Stock entitled to vote in respect of any
such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up and (b) in the case
of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding-up, notice of
the date (or, if not then known, a reasonable approximation
thereof by the Company) when the same shall take place. Such
notice shall also specify the date on which the holders of Common
Stock shall be entitled to receive such dividend, distribution,
or subscription rights or to exchange their Common Stock for
stock or other securities or property deliverable upon such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up, as the case may be.
Such notice shall be given at least 30 days prior to the record
date or the date on which the Company's books are closed in
respect thereto. Failure to give any such notice or any defect
therein shall not affect the validity of the proceedings referred
to in clauses (i), (ii), (iii) and (iv) above.
(k)Certain Events. If any event occurs of the type contemplated
by the adjustment provisions of this Paragraph 4 but not
expressly provided for by such provisions, the Company will give
notice of such event as provided in Paragraph 4(g) hereof, and
the Company's Board of Directors will make an appropriate
adjustment in the Exercise Price and the number of shares of
Common Stock acquirable upon exercise of this Warrant so that the
rights of the Holder shall be neither enhanced nor diminished by
such event.
(l)Certain Definitions.
(i)"Common Stock Deemed Outstanding" shall mean the number of
shares of Common Stock actually outstanding (not including shares
of Common Stock held in the treasury of the Company), plus (x)
pursuant to Paragraph 4(b)(i) hereof, the maximum total number of
shares of Common Stock issuable upon the exercise of Options, as
of the date of such issuance or grant of such Options, if any,
and (y) pursuant to Paragraph 4(b)(ii) hereof, the maximum total
number of shares of Common Stock issuable upon conversion or
exchange of Convertible Securities, as of the date of issuance of
such Convertible Securities, if any.
11
(ii)"Market Price," as of any date, (i) means the average of the
last reported sale prices for the shares of Common Stock on the
New York Stock Exchange ("NYSE") for the five (5) trading days
immediately preceding such date as reported by Bloomberg, L.P.
("Bloomberg"), or (ii) if the NYSE is not the principal trading
market for the shares of Common Stock, the average of the last
reported sale prices on the principal trading market for the
Common Stock during the same period as reported by Bloomberg, or
(iii) if market value cannot be calculated as of such date on any
of the foregoing bases, the Market Price shall be the fair market
value as reasonably determined in good faith by (a) the Board of
Directors of the Corporation or, at the option of a
majority-in-interest of the holders of the outstanding Warrants
by (b) an
independent investment bank of nationally recognized standing in
the valuation of businesses similar to the business of the
corporation. The manner of determining the Market Price of the
Common Stock set forth in the foregoing definition shall apply
with respect to any other security in respect of which a
determination as to market value must be made hereunder.
(iii)"Common Stock," for purposes of this Paragraph 4, includes
the Common Stock, par value $.01 per share, and any additional
class of stock of the Company having no preference as to
dividends or distributions on liquidation, provided that the
shares purchasable pursuant to this Warrant shall include only
shares of Common Stock, par value $.01 per share, in respect of
which this Warrant is exercisable, or shares resulting from any
subdivision or combination of such Common Stock, or in the case
of any reorganization, reclassification, consolidation, merger,
or sale of the character referred to in Paragraph 4(e) hereof,
the stock or other securities or property provided for in such
Paragraph.
5.Issue Tax. The issuance of certificates for Warrant Shares
upon the exercise of this Warrant shall be made without charge to
the holder of this Warrant or such shares for any issuance tax or
other costs in respect thereof, provided that the Company shall
not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any
certificate in a name other than the holder of this Warrant.
0.Xx Rights or Liabilities as a Shareholder. This Warrant shall
not entitle the holder hereof to any voting rights or other
rights as a shareholder of the Company. No provision of this
Warrant, in the absence of affirmative action by the holder
hereof to purchase Warrant Shares, and no mere enumeration herein
of the rights or privileges of the holder hereof, shall give rise
to any liability of such holder for the Exercise Price or as a
shareholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
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7.Transfer, Exchange, and Replacement of Warrant.
(a) Restriction on Transfer. This Warrant and the rights
granted to the holder hereof are transferable, in whole or in
part, upon surrender of this Warrant, together with a properly
executed assignment in the form attached hereto, at the office or
agency of the Company referred to in Paragraph 7(e) below,
provided, however, that any transfer or assignment shall be
subject to the conditions set forth in Paragraph 7(f) hereof and
to the applicable provisions of the Securities Purchase
Agreement. Until due presentment for registration of transfer on
the books of the Company, the Company may treat the registered
holder hereof as the owner and holder hereof for all purposes,
and the Company shall not be affected by any notice to the
contrary. Notwithstanding anything to the contrary contained
herein, the registration rights described in Paragraph 8 are
assignable only in accordance with the provisions of that certain
Registration Rights Agreement, dated as of July 24, 1997, by and
among the Company and the other signatories thereto (the
"Registration Rights Agreement").
(b) Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the holder
hereof at the office or agency of the Company referred to in
Paragraph 7(e) below, for new Warrants of like tenor representing
in the aggregate the right to purchase the number of shares of
Common Stock which may be purchased hereunder, each of such new
Warrants to represent the right to purchase such number of shares
as shall be designated by the holder hereof at the time of such
surrender.
(c) Replacement of Warrant. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of any such loss,
theft, or destruction, upon delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company, or, in
the case of any such mutilation, upon surrender and cancellation
of this Warrant, the Company, at its expense, will execute and
deliver, in lieu thereof, a new Warrant of like tenor.
(d) Cancellation; Payment of Expenses. Upon the surrender of
this Warrant in connection with any transfer, exchange, or
replacement as provided in this Paragraph 7, this Warrant shall
be promptly canceled by the Company. The Company shall pay all
taxes (other than securities transfer taxes) and all other
expenses (other than legal expenses, if any, incurred by the
Holder or transferees) and charges payable in connection with the
preparation, execution, and delivery of Warrants pursuant to this
Paragraph 7.
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(e) Register. The Company shall maintain, at its principal
executive offices (or such other office or agency of the Company
as it may designate by notice to the holder hereof), a register
for this Warrant, in which the Company shall record the name and
address of the person in whose name this Warrant has been issued,
as well as the name and address of each transferee and each prior
owner of this Warrant.
(f) Exercise or Transfer Without Registration. If, at the time
of the surrender of this Warrant in connection with any exercise,
transfer, or exchange of this Warrant, this Warrant (or, in the
case of any exercise, the Warrant Shares issuable hereunder),
shall not be registered under the Securities Act of 1933, as
amended (the "Securities Act") and under applicable state
securities or blue sky laws, the Company may require, as a
condition of allowing such exercise, transfer, or exchange, (i)
that the holder or transferee of this Warrant, as the case may
be, furnish to the Company a written opinion of counsel, which
opinion and counsel are acceptable to the Company, to the effect
that such exercise, transfer, or exchange may be made without
registration under said Act and under applicable state securities
or blue sky laws, (ii) that the holder or transferee execute and
deliver to the Company an investment letter in form and substance
acceptable to the Company, and (iii) that the transferee be an
"accredited investor" as defined in Rule 501(a) promulgated under
the Securities Act; provided that no such opinion, letter or
status as an "accredited investor" shall be required in
connection with a transfer pursuant to Rule 144 under the
Securities Act. The first holder of this Warrant, by taking and
holding the same, represents to the Company that such holder is
acquiring this Warrant for investment and not with a view to the
distribution thereof.
8.Registration Rights. The initial holder of this Warrant (and
certain assignees thereof) is entitled to the benefit of such
registration rights in respect of the Warrant Shares as are set
forth in Section 2 of the Registration Rights Agreement.
9.Notices. All notices, requests, and other communications
required or permitted to be given or delivered hereunder to the
holder of this Warrant shall be in writing, and shall be
personally delivered, or shall be sent by certified or registered
mail or by recognized overnight mail courier, postage prepaid and
addressed, to such holder at the address shown for such holder on
the books of the Company, or at such other address as shall have
been furnished to the Company by notice from such holder. All
notices, requests, and other communications required or permitted
to be given or delivered hereunder to the Company shall be in
writing, and shall be personally delivered, or shall be sent by
14
certified or registered mail or by recognized overnight mail
courier, postage prepaid and addressed, to the office of the
Company at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Secretary, or at such other address as shall
have been furnished to the holder of this Warrant by notice from
the Company. Any such notice, request, or other communication
may be sent by facsimile, but shall in such case be subsequently
confirmed by a writing personally delivered or sent by certified
or registered mail or by recognized overnight mail courier as
provided above. All notices, requests, and other communications
shall be deemed to have been given either at the time of the
receipt thereof by the person entitled to receive such notice at
the address of such person for purposes of this Paragraph 9, or,
if mailed by registered or certified mail or with a recognized
overnight mail courier upon deposit with the United States Post
Office or such overnight mail courier, if postage is prepaid and
the mailing is properly addressed, as the case may be.
10.Governing Law. THIS WARRANT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF DELAWARE WITHOUT REGARD TO THE BODY OF LAW
CONTROLLING CONFLICTS OF LAW.
11.Miscellaneous.
(a)Amendments. This Warrant and any provision hereof may only be
amended by an instrument in writing signed by the Company and the
holder hereof.
(b)Descriptive Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for purposes of reference
only, and shall not affect the meaning or construction of any of
the provisions hereof.
(c)Cashless Exercise. Notwithstanding anything to the contrary
contained in this Warrant, this Warrant may be exercised by
presentation and surrender of this Warrant to the Company at its
principal executive offices with a written notice of the holder's
intention to effect a cashless exercise, including a calculation
of the number of shares of Common Stock to be issued upon such
exercise in accordance with the terms hereof (a "Cashless
Exercise"). In the event of a Cashless Exercise, in lieu of
paying the Exercise Price in cash, the holder shall surrender
this Warrant for that number of shares of Common Stock determined
by multiplying the number of Warrant Shares to which it would
otherwise be entitled by a fraction, the numerator of which shall
be the difference between the then current Market Price per share
of the Common Stock and the Exercise Price, and the denominator
of which shall be the then current Market Price per share of
Common Stock.
15
(d)Other Agreements. This Warrant is subject to the rights and
restrictions set forth in the Securities Purchase Agreement and
the Registration Rights Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
AMERICAN BANKNOTE CORPORATION
By: ______________________________________
Xxxxxx X. Xxxxxx, Esq.
Executive Vice President, General Counsel
and Secretary
Dated as of July 24, 1997
17
FORM OF EXERCISE AGREEMENT
Dated: ________, ____.
To:_____________________________
The undersigned, pursuant to the provisions set forth in the
within Warrant, hereby agrees to purchase ________ shares of
Common Stock covered by such Warrant, and makes payment herewith
in full therefor at the price per share provided by such Warrant
in cash or by certified or official bank check in the amount of,
or, if the resale of such Common Stock by the undersigned is not
currently registered pursuant to an effective registration
statement under the Securities Act of 1933, as amended, by
surrender of securities issued by the Company (including a
portion of the Warrant) having a market value (in the case of a
portion of this Warrant, determined in accordance with Section
11(c) of the Warrant) equal to $_________. Please issue a
certificate or certificates for such shares of Common Stock in
the name of and pay any cash for any fractional share to:
Name: __________________________________
Signature: ______________________________
Address: ______________________________
______________________________
Note: The above signature
should correspond exactly
with the name on the face
of the within Warrant.
and, if said number of shares of Common Stock shall not be all
the shares purchasable under the within Warrant, a new Warrant is
to be issued in the name of said undersigned covering the balance
of the shares purchasable thereunder less any fraction of a share
paid in cash.
18
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers all the rights of the undersigned under the within
Warrant, with respect to the number of shares of Common Stock
covered thereby set forth hereinbelow, to:
Name of Assignee Address No of Shares
, and hereby irrevocably constitutes and appoints ______________
________________________ as agent and attorney-in-fact to
transfer said Warrant on the books of the within-named
corporation, with full power of substitution in the premises.
Dated: _____________________, ____,
In the presence of ______________________
Name: ___________________________________
Signature: _________________________
Title of Signing Officer or Agent (if any):
_________________________
Address: _________________________
_________________________
Note: The above signature
should correspond exactly
with the name on the face
of the within Warrant.
