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REGISTRATION RIGHTS AGREEMENT
AMONG
AMERICAN BANKNOTE CORPORATION
THE GUARANTORS NAMED HEREIN
AND
CHASE SECURITIES INC.
BEAR, XXXXXXX & CO. INC.
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
SOCIETE GENERALE SECURITIES CORPORATION
DATED AS OF DECEMBER 12, 1997
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
December 12, 1997, by and among American Banknote Corporation, a Delaware
corporation (the "Company"), American Bank Note Company and ABN Securities
Systems, Inc., each a New York corporation, Horsham Holdings Company Inc., a
Pennsylvania corporation, American Bank Note Holgraphics Inc., American
Banknote Card Services, Inc., American Banknote Merchant Services, Inc., ABN
Investments, Inc., ABN Equities, Inc., ABNH Equities, Inc., American Banknote
Australasia Holdings, Inc., ABN Government Services, Inc., ABN CBA, Inc. and
USBC Capital Corp., each a Delaware corporation (collectively with each of the
Company's subsidiaries formed or acquired after the Closing Date required to
become a guarantor hereunder, the "Guarantors," and, together with the Company,
the "Issuers"), and CHASE SECURITIES INC., BEAR, XXXXXXX & CO. INC.,
NATIONSBANC XXXXXXXXXX SECURITIES, INC. and SOCIETE GENERALE SECURITIES
CORPORATION (collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase Agreement,
dated December 5, 1997, by and among the Issuers and the Initial Purchasers
(the "Purchase Agreement") relating to the sale by the Issuers to the Initial
Purchasers of 95,000 units (the "Units"), consisting of $95,000,000 aggregate
principal amount of the Company's 11 1/4% senior subordinated notes due 2007
(the "Notes") and 95,000 warrants to purchase an aggregate of 1,185,790 shares
of the Company's common stock (the "Warrants"). The Notes have been guaranteed
(the "Guarantees" and, together with the Notes, the "Securities") on a senior
subordinated basis by each of the Guarantors. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Issuers have agreed to
provide the registration rights set forth in this Agreement for the benefit of
the Initial Purchasers and their direct and indirect transferees. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligation to purchase the Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 4(a).
Advice: See the last paragraph of Section 5.
Applicable Period: See Section 2(b).
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Closing Date: The Closing Date as defined in the Purchase Agreement.
Company: See the introductory paragraph to this Agreement.
Effectiveness Date: The 120th day after the Closing Date; provided,
however, that with respect to the Initial Shelf Registration Statement, (i) if
the Filing Date in respect thereof is fewer than 45 days prior to the 120th day
after the Closing Date, then the Effectiveness Date in respect thereof shall be
the 45th day after such Filing Date and (ii) if the Filing Date is after the
filing of the Exchange Offer Registration Statement with the SEC, then the
Effectiveness Date in respect thereof shall be the 45th day after such Filing
Date.
Effectiveness Period: See Section 3.
Event Date: See Section 4.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Exchange Securities: See Section 2(a).
Expiration Date: The 30th day after the commencement of the Exchange
Offer: provided, however, that if the Exchange Offer is required by applicable
law to be open for a period of more than 30 days, the Expiration Date shall
mean the last date of such period.
Filing Date: The 45th day after the Closing Date; provided, however,
that with respect to the Initial Shelf Registration Statement, (i) if a Shelf
Registration Event shall have occurred fewer than 30 days prior to the 45th day
after the Closing Date, then the Filing Date in respect thereof shall be the
30th day after such Shelf Registration Event and (ii) if a Shelf Registration
Event shall have occurred after the filing of the Exchange Offer Registration
Statement with the SEC, then the Filing Date in respect thereof shall be the
30th day after such Shelf Registration Event.
Guarantees: See the second introductory paragraph to this Agreement.
Guarantors: See the introductory paragraph to this Agreement.
Holder: Any record holder of Registrable Securities.
Indemnified Person: See the third paragraph of Section 7.
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Indemnifying Person: See the third paragraph of Section 7.
Indenture: The Indenture, dated December 12, 1997, among the Company,
the Guarantors and The Bank of New York, as trustee, pursuant to which the
Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this Agreement.
Initial Shelf Registration Statement: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date of original issuance of the Securities.
Issuers: Section introductory paragraph to this Agreement.
NASD: See Section 5(t).
Notes: See the second introductory paragraph to this Agreement.
Participant: See the first paragraph of Section 7.
Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, limited or general partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
Private Exchange: See Section 2(b).
Private Exchange Securities: See Section 2(b).
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph to this
Agreement.
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Records: See Section 5(o).
Registrable Securities: The Securities, upon original issuance thereof
and at all times subsequent thereto, each Exchange Security as to which Section
2(c)(v) hereof is applicable upon original issuance and at all times subsequent
thereto and, if issued, the Private Exchange Securities, until in the case of
any such Securities, Exchange Securities or Private Exchange Securities, as the
case may be, (i) a Registration Statement (other than, with respect to any
Exchange Security as to which Section 2(c)(v) hereof is applicable, the
Exchange Offer Registration Statement) covering such Securities, Exchange
Securities or Private Exchange Securities has been declared effective by the
SEC and such Securities, Exchange Securities or Private Exchange Securities, as
the case may be, have been disposed of in accordance with such effective
Registration Statement, (ii) such Securities, Exchange Securities or Private
Exchange Securities, as the case may be, are sold in compliance with Rule 144,
(iii) such Security has been exchanged for an Exchange Security pursuant to the
Exchange Offer and Section 2(c)(v) is not applicable thereto or (iv) such
Securities, Exchange Securities or Private Exchange Securities, as the case may
be, cease to be outstanding.
Registration Statement: Any registration statement of the Issuers,
including, but not limited to, the Exchange Offer Registration Statement, that
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities. Together, the Notes and the related Guarantees.
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Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration Statement: See Section 3(b).
Shelf Registration Event: See Section 2(c).
Subsequent Shelf Registration Statement: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: Each Note until (i) the date on which
such Note has been exchanged for a freely transferable Exchange Note in the
Exchange Offer, (ii) the date on which such Note has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement or (iii) the date on which such Note is
distributed to the public pursuant to Rule 144 under the Securities Act or is
salable pursuant to Rule 144(k) under the Securities Act.
Trustee: The trustee under the Indenture and, if applicable, the trustee
under any indenture governing the Exchange Securities and Private Exchange
Securities (if any).
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to
the public.
2. EXCHANGE OFFER
(a) The Issuers agree to file with the SEC, on or before the Filing Date,
an offer to exchange (the "Exchange Offer") any and all of the Registrable
Securities for a like aggregate principal amount of senior subordinated debt
securities of the Company which are identical to the Notes and are guaranteed,
jointly and severally, by each of the Guarantors with terms identical to the
Guarantees (the "Exchange Securities") (and which are entitled to the benefits
of a trust indenture that is substantially identical to the Indenture (other
than such changes as are necessary to comply with any requirements of the SEC
to effect or maintain the qualification of such trust indenture under the TIA)
and which has been qualified under the TIA), except that the Exchange
Securities shall have been registered pursuant to an effective Registration
Statement under the Securities Act and shall contain no restrictive legend
thereon. The Exchange Offer will be registered under the Securities Act on the
appropriate form (the "Exchange Offer Registration Statement") and will comply
with all applicable tender offer rules and regulations under the Exchange Act.
Each of the Issuers agrees to use its best efforts (i) to cause the Exchange
Offer Registration Statement to become effective and to commence the Exchange
Offer on or prior to the Effectiveness Date, (ii) to keep the Exchange
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Offer open for at least 30 days (or longer if required by applicable law) and
(iii) to exchange Exchange Securities for all Securities validly tendered and
not withdrawn pursuant to the Exchange Offer on or prior to the fifth day
following the Expiration Date. The Issuers shall not permit any securities
other than the Registration Securities to be included in the Exchange Offer
Registration Statement.
Each Holder who participates in the Exchange Offer will be deemed to
represent that any Exchange Securities received by it will be acquired in the
ordinary course of its business, that at the time of the consummation of the
Exchange Offer such Holder will have no arrangement with any Person to
participate in the distribution of the Exchange Securities in violation of the
provisions of the Securities Act and that such Holder is not an "affiliate" of
any of the Issuers, as defined in Rule 405 under the Securities Act.
Upon consummation of the Exchange Offer in accordance with Section 2 of
this Agreement, the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Securities that are
Private Exchange Securities, Exchange Securities to which Section 2(c)(v) is
applicable and Exchange Securities held by Participating Broker-Dealers, and
the Issuers shall have no further obligation to register Registrable Securities
(other than Private Exchange Securities and other than Exchange Securities as
to which Section 2(c)(v) hereof applies) pursuant to Section 3 of this
Agreement. No securities other than the Exchange Securities shall be included
in the Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the
Staff of the SEC (and publicly disseminated) with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received
by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer").
Such "Plan of Distribution" section shall also allow the use of the Prospectus
by all Persons subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Securities.
Each of the Issuers shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery requirements of the
Securities Act for at least 180 days following the first bona fide offering of
securities under such Registration Statement (or such shorter time as such
Persons must comply with such requirements in order to resell the Exchange
Securities) (the "Applicable Period").
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If, prior to consummation of the Exchange Offer, the Initial Purchasers
hold any Securities acquired by them and having, or which are reasonably likely
to be determined to have, the status of an unsold allotment in the initial
distribution, the Issuers upon the request of the Initial Purchasers shall,
simultaneously with the delivery of the Exchange Securities in the Exchange
Offer, issue and deliver to the Initial Purchasers, in exchange (the "Private
Exchange") for the Securities held by the Initial Purchaser, a like principal
amount of debt securities of the Company that are identical to the Exchange
Securities and are guaranteed, jointly and severally, by each of the Guarantors
with terms identical to the Guarantees (the "Private Exchange Securities") (and
which are issued pursuant to the same indenture as the Exchange Securities)
(except for the placement of a restrictive legend on such Private Exchange
Securities). The Private Exchange Securities shall bear the same CUSIP number
as the Exchange Securities. Interest on the Exchange Securities and Private
Exchange Securities will accrue from the last interest payment date on which
interest was paid on the Securities surrendered in exchange therefor or, if no
interest has been paid on the Securities, from the Issue Date.
Any indenture under which the Exchange Securities or the Private Exchange
Securities will be issued shall provide that the holders of any of the Exchange
Securities and the Private Exchange Securities will vote and consent together
on all matters to which such holders are entitled to vote or consent as one
class and that none of the holders of the Exchange Securities and the Private
Exchange Securities will have the right to vote or consent as a separate class
on any matter.
(c) If (i) the Company reasonably determines in good faith, after
consultation with counsel, that it is not permitted to effect the Exchange
Offer because of any change in law or applicable interpretations thereof by the
staff of the SEC, (ii) the Exchange Offer is not commenced on or prior to the
160th day after the issue date, (iii) the Exchange Offer is not consummated on
or prior to the fifth business day after the Expiration Date, (iv) any Holder
that participates in the Exchange Offer does not receive Exchange Securities on
the date of the exchange that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such Holders or
an affiliate of any of the Issuers within the meaning of the Securities Act),
(v) any applicable law or interpretation thereof does not permit any holder of
Notes to participate in the Exchange Offer, (vi) any Initial Purchaser or other
Holder so requests with respect to Notes not eligible to be exchanged for
Exchange Notes in the Exchange Offer, or (vii) the Company so elects (the
occurrence of any such event, a "Shelf Registration Event"), then, in the case
of each of clauses (i) through (vii) of this sentence, the Company shall
promptly deliver to the Holders and the Trustee notice thereof (the "Shelf
Notice") and thereafter the Issuers shall file an Initial Shelf Registration
Statement pursuant to Section 3.
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3. SHELF REGISTRATION
If a Shelf Registration Event has occurred (and whether or not an Exchange
Offer Registration Statement has been filed with the SEC or has become
effective or the Exchange Offer has been consummated), then:
Initial Shelf Registration Statement. The Issuers shall promptly prepare
and file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable
Securities (the "Initial Shelf Registration Statement"). The Issuers shall
file with the SEC the Initial Shelf Registration Statement on or prior to the
Filing Date. The Initial Shelf Registration Statement shall be on Form S-1 or
another appropriate form, if available, permitting registration of such
Registrable Securities for resale by such holders in the manner designated by
them (including, without limitation, in one or more underwritten offerings).
The Issuers shall not permit any securities other than the Registrable
Securities to be included in the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement (as defined below). Each of the
Issuers shall use their best efforts to cause the Initial Shelf Registration
Statement to be declared effective under the Securities Act on or prior to the
Effectiveness Date, and to keep the Initial Shelf Registration Statement
continuously effective under the Securities Act until the date which is 24
months from the Issue Date, or such shorter period ending when (i) all
Registrable Securities covered by the Initial Shelf Registration Statement have
been sold in the manner set forth and as contemplated in the Initial Shelf
Registration Statement or (ii) a Subsequent Shelf Registration Statement
covering all of the Registrable Securities has been declared effective under
the Securities Act (such 24 month or shorter period, the "Effectiveness
Period").
Subsequent Shelf Registration Statements. If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered thereunder), each
of the Issuers shall use their best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event the Issuers
shall within 45 days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional
"shelf" Registration Statement pursuant to Rule 415 covering all of the
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, each of the Issuers shall use
their best efforts to cause the Subsequent Shelf Registration Statement to be
declared effective as soon as reasonably practicable after such filing and to
keep such Registration Statement continuously effective until the end of the
Effectiveness Period. As used herein, the term "Shelf Registration Statement"
means the Initial Shelf Registration Statement and any Subsequent Shelf
Registration Statement.
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Supplements and Amendments. The Issuers shall promptly supplement and
amend the Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration Statement, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Securities covered by such Registration Statement or by any
underwriter of such Registrable Securities.
4. ADDITIONAL INTEREST
(a) The Issuers and the Initial Purchasers agree that the Holders of the
Securities will suffer damages if the Issuers fail to fulfill their obligations
under Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Company
agrees to pay, as liquidated damages, additional interest on the Securities
("Additional Interest") under the circumstances and to the extent set forth
below (each of which shall be given independent effect):
(i) if either the Exchange Offer Registration Statement or the Initial
Shelf Registration Statement has not been filed on or prior to the Filing
Date (unless, with respect to the Exchange Offer Registration Statement,
a Shelf Event described in clause (i) of Section 2(c) shall have
occurred prior to the Filing Date), Additional Interest shall accrue on
the Securities over and above the stated interest in an amount equal to
$0.192 per week (or any part thereof) per $1,000 principal amount of the
Securities constituting Transfer Restricted Securities;
(ii) if either the Exchange Offer Registration Statement or the Initial
Shelf Registration Statement is not declared effective by the SEC on or
prior to the Effectiveness Date (unless, with respect to the Exchange
Offer Registration Statement, a Shelf Event described in clause (i) of
Section 2(c) shall have occurred), Additional Interest shall accrue on
the Securities over and above the stated interest in an amount equal to
$0.192 per week (or any part thereof) per $1,000 principal amount of
Securities constituting Transfer Restricted Securities; and
(iii) if (A) the Issuers have not exchanged Exchange Securities for all
Securities validly tendered and not withdrawn in accordance with the
terms of the Exchange Offer on or prior to the 5th day after the
Expiration Date, (B) the Exchange Offer Registration Statement ceases to
be effective at any time prior to the Expiration Date or (C) if
applicable, any Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective at any time
during the Effectiveness Period, then Additional Interest shall accrue on
the Securities over and above the stated interest in an amount equal to
$0.192 per week (or any part thereof) per $1,000 principal amount of the
Securities commencing on (x) the sixth day after the Expiration Date, in
the case of (A) above, or (y) the day the Exchange Offer Reg
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istration Statement ceases to be effective in the case of (B) above, or
(z) the day such Shelf Registration Statement ceases to be effective in
the case of (C) above;
provided, however, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration Statement as required hereunder (in the case
of clause (i) of this Section 4(a)), (2) upon the effectiveness of the Exchange
Offer Registration Statement or the Shelf Registration Statement as required
hereunder (in the case of clause (ii) of this Section 4(a)) or (3) upon the
exchange of Exchange Securities for all Securities validly tendered and not
withdrawn (in the case of clause (iii)(A) of this Section 4(a)), or upon the
effectiveness of the Exchange Offer Registration Statement which had ceased to
remain effective (in the case of clause (iii)(B) of this Section 4(a)), or
upon the effectiveness of the Shelf Registration Statement which had ceased to
remain effective (in the case of clause (iii)(C) of this Section 4(a)),
Additional Interest on the Securities as a result of such clause (or the
relevant subclause thereof), as the case may be, shall cease to accrue (but any
accrued amount shall be payable).
(b) The Company shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). The Company shall pay the
Additional Interest due on the Registrable Securities by depositing with the
Trustee, in trust, for the benefit of the Holders thereof, on or before the
applicable semi-annual interest payment date, immediately available funds in
sums sufficient to pay the Additional Interest then due to Holders of
Registrable Securities. Each obligation to pay Additional Interest shall be
deemed to accrue immediately following the occurrence of the applicable Event
Date. Any accrued Additional Interest amount shall be due and payable on each
interest payment date immediately after the applicable Event Date to the record
Holder of Registrable Securities entitled to receive the interest payment to be
made on such date as set forth in the Indenture. The parties hereto agree that
the Additional Interest provided for in Section 4 of this Agreement constitutes
a reasonable estimate of the damages that may be incurred by Holders of
Registrable Securities by reason of the failure of a Shelf Registration
Statement or Exchange Offer Registration Statement to be filed or declared
effective, or a Shelf Registration Statement or an Exchange Offer Registration
Statement to remain effective, as the case may be, in accordance with Section 4
of this Agreement.
(c) Each of the Guarantors, jointly and severally, guarantee the payment
of the Additional Interest to the same extent and in the same manner as the
guarantee provisions set forth in the Indenture, which provisions are
incorporated herein by reference mutatis mutandis.
5. REGISTRATION PROCEDURES
In connection with the registration of any Registrable Securities pursuant
to Section 2 or Section 3 hereof, each of the Issuers shall use their best
efforts to effect such
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registrations to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant
thereto the Issuers shall:
(a) prepare and file with the SEC on or before the Filing Date, a
Registration Statement or Registration Statements as prescribed by Section 2 or
Section 3, and to use their best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein, provided
that, if (1) such filing is pursuant to Section 3, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Issuers shall furnish to and afford the
Holders of the Registrable Securities and each such Participating
Broker-Dealer, as the case may be, covered by such Registration Statement,
their counsel and the managing underwriters, if any, a reasonable opportunity
to review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed (at least five days prior to such filing); the Issuers shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto
in respect of which the Holders must be afforded a reasonable opportunity to
review prior to the filing of such document, if the Holders of a majority in
aggregate principal amount of the Registrable Securities covered by such
Registration Statement, or each such Participating Broker-Dealer, as the case
may be, their counsel, or the managing underwriters, if any, shall reasonably
object;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period, in the case of a
Shelf Registration Statement, or until the later of the Expiration Date and the
Applicable Period, in the case of the Exchange Offer Registration Statement;
cause the related Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to it with respect to
the disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus;
(c) if (1) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, notify the selling Holders of Registrable Securities, or
each such Participating Broker-Dealer, as the case may
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be, their counsel and the managing underwriters, if any, promptly (but in any
event within three business days), and confirm such notice in writing, (i) when
a Prospectus or any prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective (including in such notice a
written statement that any Holder may, upon request, obtain, without charge,
one conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits); (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any preliminary prospectus or
the initiation of any proceedings for that purpose; (iii) if at any time when a
prospectus is required by the Securities Act to be delivered in connection with
sales of the Registrable Securities the representations and warranties of any
of the Issuers contained in any agreement (including any underwriting
agreement) contemplated by Section 5(n) below cease to be true and correct;
(iv) of the receipt by any of the Issuers of any notification with respect to
the suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities or the Exchange
Securities to be sold by any Participating Broker-Dealer for offer or sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose; (v) of the happening of any event or any information becoming known
that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that such
notification need not specifically identify such event if notification of the
occurrence thereof would, in the Company's reasonable judgment, involve the
disclosure of confidential non-public information; and (vi) of the Company's
reasonable determination that a post-effective amendment to the Registration
Statement would be appropriate;
(d) if (1) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, use their best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer for sale in any jurisdiction,
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and, if any such order is issued, to use their best efforts to obtain the
withdrawal of any such order at the earliest possible moment;
(e) if a Shelf Registration Statement is filed pursuant to Section 3 and
if requested by the managing underwriters, if any, or the Holders of a majority
in aggregate principal amount of the Registrable Securities being sold in
connection with an underwritten offering or any Participating Broker-Dealer,
(i) promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriters, if any, such Holders, any
Participating Broker-Dealer or their respective counsel reasonably request to
be included therein; (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as reasonably practicable
after the Company has received notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment and (iii) supplement
or make amendments to such Registration Statement;
(f) if (1) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, furnish to each selling Holder of Registrable Securities
and to each such Participating Broker-Dealer who so requests and upon request
to their respective counsel and each managing underwriter, if any, without
charge, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including all financial
statements, schedules, and documents incorporated or deemed to be incorporated
therein by reference, and all exhibits;
(g) if (1) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, deliver to each selling Holder of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be, their
counsel, and the underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of preliminary prospectus) and
each amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject to the
last paragraph of Section 5 of this Agreement, each of the Issuers hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and sale
of the Registrable Securities covered by or the sale by Participating
Broker-Dealers of the Exchange Securities pursuant to such Prospectus and any
amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement by any
Participating
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Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, use their best efforts to register or qualify, and to cooperate with
the selling Holders of Registrable Securities or each such Participating
Broker-Dealer, as the case may be, the underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities or Exchange Securities, as the case may be, for offer and sale under
the securities or Blue Sky laws of such jurisdictions within the United States
as any selling Holder, Participating Broker-Dealer, or the managing
underwriters reasonably request in writing; provided , however, that where
Exchange Securities held by Participating Broker-Dealers or Registrable
Securities are offered other than through an underwritten offering, the Issuers
shall cause their counsel to (i) perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(h), (ii) use their best efforts to keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective hereunder and (iii) do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Securities held by
Participating Broker-Dealers or the Registrable Securities covered by the
applicable Registration Statement; provided, further, however, that none of the
Issuers shall in any case be required to (A) qualify generally to do business
in any jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction where
it is not then so subject or (C) subject itself to taxation in excess of a
nominal dollar amount in any such jurisdiction;
(i) if a Shelf Registration Statement is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Securities and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or Holders may reasonably
request;
(j) use their best efforts to cause the Registrable Securities covered by
the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller
or sellers thereof or the underwriters, if any, to consummate the disposition
of such Registrable Securities, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case the
Issuers will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals;
(k) if (1) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, upon the occur
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rence of any event contemplated by paragraphs 5(c)(v) or 5(c)(vi) above, as
promptly as practicable prepare and (subject to Section 5(a) above) file with
the SEC, solely at the expense of the Issuers, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities being sold thereunder or to the
purchasers of the Exchange Securities to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain 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, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the Issuers shall not be required to amend or supplement a
Registration Statement, any related Prospectus or any document incorporated
therein by reference, in the event that, and for a period not to exceed 90 days
or an aggregate of 120 days in any 18-month period) year if, (i) an event
occurs and is continuing as a result of which a Shelf Registration Statement
would, in the Issuers' good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and (ii) (a) the Issuers determine in their good faith
judgment that the disclosure of such event at such time would have a material
adverse effect on the business, operations or prospects of the Issuers or (b)
the disclosure otherwise relates to a pending material business transaction
that has not been publicly disclosed;
(l) use their best efforts to cause the Registrable Securities covered by
a Registration Statement or the Exchange Securities, as the case may be, to be
rated with the appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Registrable Securities covered by
such Registration Statement or a Participating Broker-Dealer selling Exchange
Securities, as the case may be, or the managing underwriters, if any;
(m) prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with printed
certificates for the Registrable Securities in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Securities;
(n) in connection with an underwritten offering of Registrable Securities
pursuant to a Shelf Registration Statement, enter into an underwriting
agreement as is customary in underwritten offerings and take all such other
actions as are reasonably requested by the managing underwriters in order to
expedite or facilitate the registration or the disposition of such Registrable
Securities, and in such connection (i) make such representations and warranties
to and covenants with, the underwriters, with respect to the business of the
Issuers and their subsidiaries and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily
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made by issuers to underwriters in underwritten offerings, and confirm the same
if and when reasonably requested; (ii) obtain the written opinions of counsel
to the Issuers and updates thereof in form and substance reasonably
satisfactory to the managing underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
underwriters; (iii) use their best efforts to obtain "cold comfort" letters and
updates thereof in form and substance reasonably satisfactory to the managing
underwriters from the independent certified public accountants of the Issuers
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company or any of
its subsidiaries for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by
underwriters; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures comparable to those set
forth in Section 7 hereof (or such other provisions and procedures reasonably
acceptable to the Holders of a majority in aggregate principal amount of
Registrable Securities covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section, all of which shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder;
(o) if (1) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, subject to the prior receipt by the Company of
undertakings to use reasonable efforts to preserve the confidentiality of any
information disclosed by the Issuers pursuant hereto in form and substance
reasonably satisfactory to the Company, make available for inspection by one
representive of the selling Holders of such Registrable Securities being sold,
or each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Securities, if any, and
any attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all relevant financial and other records, pertinent
corporate documents and properties of the Issuers and their subsidiaries
(collectively, the "Records") as shall be necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuers and their subsidiaries to supply all
information in each case requested by any such Inspector in connection with
such Registration Statement; provided, however, that records which the Company
determines, in good faith, to be confidential and any Records which the Company
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless: (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement; (ii) the
release of such Re
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cords is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction; (iii) the information in such Records has been made
generally available to the public; or (iv) release thereof is necessary or
advisable in connection with any action, suit or proceeding involving any
Holder or other Inspector; provided, further, however, that prior notice shall
be provided as soon as practicable to the Issuers of the potential disclosure
of any information by such Inspector pursuant to clauses (i), (ii), (iii) or
(iv) of this sentence to permit the Issuers to obtain a protective order (or
waive the provisions of this paragraph (o)) and that such Inspector shall take
such actions as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and
interests of the Holder or any Inspector; each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Issuers unless and
until such information is generally available to the public; each selling
Holder of such Registrable Securities and each such Participating Broker-Dealer
will be required to further agree that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give notice to
the Issuers and allow the Issuers to undertake appropriate action to prevent
disclosure of the Records deemed confidential at the Issuers' sole expense;
(p) provide for an indenture trustee for the Registrable Securities or the
Exchange Securities, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a), as the case may be, to be qualified
under the TIA not later than the effective date of the Exchange Offer or the
first Registration Statement relating to the Registrable Securities; and in
connection therewith, cooperate with the trustee under any such indenture and
the holders of the Registrable Securities to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use their best efforts
to cause such trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be filed with the
SEC to enable such indenture to be so qualified in a timely manner;
(q) comply with all applicable rules and regulations of the SEC to the
extent and so long as they are applicable to the Exchange Offer Registration
Statement or the Shelf Registration Statement and make generally available to
their securityholders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of
any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering; and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter of
the Company after the effective date of a Registration Statement, which
statements shall cover said 12-month periods;
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(r) upon consummation of an Exchange Offer or a Private Exchange, obtain
an opinion of counsel to the Company in customary form, relating to the
Exchange Securities or the Private Exchange Securities, as the case may be,
addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or the Private Exchange, as the
case may be, and which includes an opinion that (i) each of the Issuers have
duly authorized, executed and delivered the Exchange Securities and Private
Exchange Securities, the Guarantees to be endorsed thereon and the related
indenture; and (ii) each of the Exchange Securities or the Private Exchange
Securities, as the case may be, the Guarantees endorsed thereon and the related
indenture and guarantees thereunder constitute legal, valid and binding
obligations of each of the Issuers party thereto, enforceable against each of
the Issuers party thereto in accordance with their respective terms (with
customary exceptions);
(s) if an Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Securities by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, xxxx, or
caused to be marked, on such Registrable Securities that such Registrable
Securities are being cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall such
Registrable Securities be marked as paid or otherwise satisfied;
(t) cooperate with each seller of Registrable Securities covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc. (the "NASD"); and
(u) use their best efforts to take all other steps necessary to effect the
registration of the Registrable Securities covered by a Registration Statement
contemplated hereby.
The Issuers may require each seller of Registrable Securities or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Securities or Exchange
Securities of any selling Holder or Participating Broker-Dealer, as the case
may be, who unreasonably fails to furnish such information within a reasonable
time after receiving such request.
Each Holder of Registrable Securities and each Participating Broker-Dealer
agrees by acquisition of such Registrable Securities or Exchange Securities to
be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Sections 5(c)(ii), 5(c)(iv),
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5(c)(v) or 5(c)(vi), such Holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus or
Exchange Securities to be sold by such Participating Broker-Dealer, as the case
may be, until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k), or until it is advised in
writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed, and has received copies of any amendments or supplements
thereto. In the event that the Issuers shall give any such notice, each of the
Effectiveness Period and the Applicable Period shall be extended by the number
of days during such periods from and including the date of the giving of such
notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement or Exchange Securities to be sold by
such Participating Broker-Dealer, as the case may be, shall have received (x)
the copies of the supplemented or amended Prospectus contemplated by Section
5(k) hereof or (y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers whether or not
the Exchange Offer Registration Statement or a Shelf Registration Statement is
filed or becomes effective, including, without limitation, (i) all registration
and filing fees (including, without limitation, (A) fees with respect to
filings required to be made with the NASD in connection with an underwritten
offering and (B) fees and expenses of compliance with state securities or Blue
Sky laws (including, without limitation, reasonable fees and disbursements of
counsel in connection therewith) in such jurisdictions (x) where the
Registrable Securities may be sold, in the case of the Exchange Securities, or
(y) as provided in Section 5(h), in the case of Registrable Securities to be
sold in a public offering or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period)); (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities or Exchange Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses if the printing
of prospectuses is requested by the managing underwriters, if any, or, in
respect of Registrable Securities or Exchange Securities to be sold by any
Participating Broker-Dealer during the Applicable Period, by the Holders of a
majority in aggregate principal amount of the Registrable Securities included
in any Registration Statement or a Participating Broker-Dealer selling Exchange
Securities, as the case may be); (iii) messenger, telephone and delivery
expenses incurred by the Issuers; (iv) fees and disbursements of counsel for
the Issuers and reasonable fees and disbursements of special counsel for the
sellers of Registrable Securities (subject to the provisions of Section 6(b));
(v) fees and disbursements of all independent certified public accountants
referred to in Section 5(n)(iii) (including, without limitation, the expenses
of any special audit and "cold comfort" letters required by or incident to such
performance); (vi) the reasonable fees and expenses of any "qualified
independent underwriter" or other independent appraiser participating in an
offering pursuant to Rule 2710 or Rule 2720 of the Conduct Rules of the NASD;
(vii) rating agency fees; (viii) Securities Act liability in
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surance, if the Issuers desire such insurance; (ix) fees and expenses of all
other Persons retained by the Issuers; (x) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties); (xi) the
expense of any annual audit of the Issuers; (xii) the fees and expenses
incurred by the Issuers in connection with the listing of the Registrable
Securities on any securities exchange; and (xiii) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements, indentures and any other
documents necessary in order to comply with this Agreement.
(b) In connection with any Shelf Registration Statement hereunder, the
Issuers shall reimburse the Holders of the Registrable Securities being
registered in such registration for the reasonable fees and disbursements of
not more than one counsel (in addition to appropriate local counsel) chosen by
the Holders of a majority in aggregate principal amount of the Registrable
Securities to be included in such Registration Statement and other reasonable
out-of-pocket expenses of the Holders of Registrable Securities incurred in
connection with the registration of the Registrable Securities.
7. INDEMNIFICATION
Each of the Issuers, jointly and severally, agrees to indemnify and hold
harmless each Holder of Registrable Securities and each Participating
Broker-Dealer selling Exchange Securities during the Applicable Period, the
officers and directors of each such Person, and each Person, if any, who
controls any such Person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Participant"), from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Issuers shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to such Holder of
Registrable Securities or Participating Broker-Dealer, as the case may be,
furnished to the Company in writing by such Holder of Registrable Securities or
Participating Broker-Dealer, as the case may be, expressly for use therein;
provided, however, that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Holder of Registrable
Securities or Participating Broker-Dealer, as the case may be (or to the
benefit of any officer or director of, or of any Person controlling, such
Holder of Registrable Securities or Participating Broker-Dealer) from whom the
Person asserting any such losses, claims, damages or liabilities purchased
Registra
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ble Securities or Exchange Securities, as the case may be, to the extent that
such untrue statement or omission or alleged untrue statement or omission made
in such preliminary prospectus is eliminated or remedied in the related
Prospectus (as amended or supplemented if the Issuers shall have furnished any
amendments or supplements thereto) and such Prospectus does not contain any
other untrue statement or omission or alleged untrue statement or omission of a
material fact and, to the extent required by applicable law, a copy of the
related Prospectus (as so amended or supplemented) shall not have been
furnished to such Person at or prior to the sale of such Registrable Securities
or Exchange Securities, as the case may be, to such Person, unless such failure
to furnish was a result of non-compliance by the Issuers with Section 5(g).
Each Holder of Registrable Securities and each Participating Broker-Dealer
selling Exchange Securities during the Applicable Period will be required to
agree, severally and not jointly, to indemnify and hold harmless each of the
Issuers, its directors, its officers who sign the Registration Statement and
each Person who controls any Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuers to each Participant, but only with
reference to information relating to such Holder of Registrable Securities or
Participating Broker-Dealer, as the case may be, furnished to the Company in
writing by such Holder of Registrable Securities or Participating
Broker-Dealer, as the case may be, expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. The liability of any such Holder of Registrable
Securities or Participating Broker-Dealer, as the case may be, under this
paragraph shall in no event exceed the proceeds received by such Holder of
Registrable Securities or Participating Broker-Dealer, as the case may be, from
sales of Registrable Securities or Exchange Securities, as the case may be,
giving rise to such obligations.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses incurred by such counsel related to such
proceeding; provided, however, that the failure to so notify the Indemnifying
Person shall not relieve it of any obligation or liability which it may have
hereunder or otherwise (unless and only to the extent that the Indemnifying
Person was otherwise unaware that such suit, action, proceeding, claim, or
demand shall have been brought or asserted and such failure actually materially
prejudices the Indemnifying Person (through the forfeiture of substantive
rights or defenses)). In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but, other than in circumstances
involv
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ing a conflict among Indemnified Persons, the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to an actual or
potential conflict of interest. It is understood that, other than in
circumstances involving a conflict among Indemnified Persons, the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons,
and that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for the Participants shall be designated in writing by
the Holders of Registrable Securities or Participating Broker-Dealers selling
Exchange Securities during the Applicable Period, as the case may be, who sold
a majority in interest of Registrable Securities or Exchange Securities, as the
case may be, sold by all such Holders of Registrable Securities or
Participating Broker-Dealers, as the case may be. Any such separate firm for
the Issuers, its directors, its officers and such control Persons of the
Issuers shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses incurred by counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and
(ii) such Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant to this sentence if the Indemnifying
Party is contesting, in good faith, such request for reimbursement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, (which consent shall not be unreasonably withheld) effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party, and indemnity could have been
sought hereunder by such indemnified party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional written release of such Indemnified Person in form and substance
satisfactory to the Indemnified Persons from all liability on claims that are
the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
Section 7 of this Agreement is for any reason unavailable to, or insufficient to
hold harmless, an
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Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the initial offering of the
Securities or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative benefits received by the
Issuers on the one hand and the Holders of Registrable Securities or
Participating Broker-Dealers selling Exchange Securities during the Applicable
Period, as the case may be, on the other shall be deemed to be in the same
proportion as the total proceeds from the initial offering (net of discounts
and commissions but before deducting expenses) of the Securities received by
the Issuers bears to the total proceeds received by such Holders of Registrable
Securities or Participating Broker-Dealers, as the case may be, from the sale
of Registrable Securities or Exchange Securities, as the case may be. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Issuers, on the one hand, or such Holder of
Registrable Securities or Participating Broker-Dealer, as the case may be, on
the other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
The parties shall agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by such Indemnified Person
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a Holder of
Registrable Securities or Participating Broker-Dealer be required to contribute
any amount in excess of the amount by which proceeds received by such Holder of
Registrable Securities or Participating Broker-Dealer, as the case may be, from
sales of Registrable Securities or Exchange Securities, as the case may be,
exceeds the amount of any damages that such Holder of Registrable Securities or
Participating Broker-Dealer, as the case may be, has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omis
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sion or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this Section 7 will
be in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
8. RULE 144 AND RULE 144A
Each of the Issuers covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any
time any of the Issuers is not required to file such reports, it will, upon the
request of any Holder of Registrable Securities, make publicly available other
information so long as necessary to permit sales pursuant to Rule 144 and Rule
144A under the Securities Act. Each of the Issuers further covenants that it
will take such further action as any Holder of Registrable Securities may
reasonably request, to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 and Rule 144A
under the Securities Act.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Securities included in such offering and reasonably acceptable to
the Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements
(however the terms applicable to each Holder shall be identical in all
respects) and (b) completes and executes all questionnaires, powers of
attorney, lock-up letters, indemnities, underwriting agreements and other
documents required under the terms of such underwriting arrangements applicable
to all Holders.
10. MISCELLANEOUS
(a) Remedies. In the event of a breach by any of the Issuers of any of
its obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Initial Purchasers, in the Purchase Agreement
or granted by law, including recovery of damages, will be
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entitled to specific performance of its rights under this Agreement. The
Issuers agree that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Inconsistent Agreements. None of the Issuers has, as of the date
hereof, entered into and each shall not, after the date of this Agreement,
enter into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. None of
the Issuers has entered into and each will not enter into any agreement with
respect to any of its securities which will grant to any Person "piggy-back"
rights with respect to a Registration Statement (other than any such agreements
that have been, or prior to the Filing Date, will be, amended or waived).
(c) Adjustments Affecting Registrable Securities. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(d) Joint and Several Obligations; Addition of Guarantors. The Guarantors
agree that their obligations under this agreement are joint and several. So
long as any Registrable Securities remain outstanding, the Company shall cause
each of its subsidiaries that becomes a guarantor of the Notes under the
Indenture to execute and deliver an instrument pursuant to which such
subsidiary agrees to be bound by the provisions of this agreement as a
Guarantor.
(e) Amendments and Waivers. Except as provided in paragraph (d) above,
the provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, otherwise than with the prior written consent of (A) the Holders of not
less than a majority in aggregate principal amount of the then outstanding
Registrable Securities and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Securities held
by all Participating Broker-Dealers; provided, however, that Section 7 and this
Section 10(e) may not be amended, modified or supplemented without the prior
written consent of each Holder and each Participating Broker-Dealer (including
any Person who was a Holder or Participating Broker-Dealer of Registrable
Securities or Exchange Securities, as the case may be, disposed of pursuant to
any Registration Statement) affected by any such amendment, modification or
supplement. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement
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and that does not directly or indirectly affect, impair, limit or compromise
the rights of other Holders of Registrable Securities may be given by Holders
of at least a majority in aggregate principal amount of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement.
(f) Notices. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Registrable Securities, at the most current address
given by the Trustee to the Company; and
(ii) if to the Issuers, at American Banknote Corporation, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Chief Financial
Officer.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the trustee under the
Indenture at the address specified in such Indenture.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Registrable Securities.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(J) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT
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TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be hereafter declared invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
(m) Securities Held by the Issuers or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by any of the
Issuers or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be deemed to be not outstanding for purposes of
determining whether such consent or approval was given by the Holders of such
required percentage.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN BANKNOTE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
AMERICAN BANK NOTE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
ABN SECURITIES SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
HORSHAM HOLDING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
AMERICAN BANK NOTE HOLGRAPHICS,
INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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AMERICAN BANKNOTE CARD SERVICES,
INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
AMERICAN BANKNOTE MERCHANT
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
ABN INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
ABN EQUITIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
AMERICAN BANKNOTE AUSTRALASIA
HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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ABN GOVERNMENT SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
ABN CBA, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
USBC CAPITAL CORP.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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CHASE SECURITIES INC.
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Vice President
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxxxxxxx XxXxxxx
Name: Xxxxxxxxxxx XxXxxxx
Title: Associate Director
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director
SOCIETE GENERALE SECURITIES CORPORATION
By: /s/ Xxx Xxxxxxxxxx
Name: Xxx Xxxxxxxxxx
Title: Managing Director
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