EXHIBIT 4.11
Execution Copy
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COMMON EQUITY REGISTRATION RIGHTS AGREEMENT
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THIS COMMON EQUITY REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
as of May 10, 2000, by JOSTENS, INC., a Minnesota corporation (the "Company")
for the benefit of the Holders (as defined below).
R E C I T A L S
A. The Company is a party to an Agreement and Plan of Merger dated as of
December 27, 1999 (as amended, the "Merger Agreement") by and between the
Company and Saturn Acquisition Corporation, a Minnesota corporation
("MergerCo"), pursuant to which MergerCo will, subject to the terms and
conditions of the Merger Agreement, be merged with and into the Company (the
"Merger").
B. The Company is willing to grant the registration rights set forth below
to the shareholders of the Company as of the Effective Time (as defined in the
Merger Agreement).
A G R E E M E N T
In consideration of the equity investment in the Company made by the
Initial Holders (as defined below) and for other good and valuable consideration
and intending to be legally bound hereby, the Company hereby agrees as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" means (a) any Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person
or (b) any Person who is a director or officer (i) of such Person, (ii) of
any subsidiary of such Person or (iii) of any Person described in clause
(a) above. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, (x) to vote 50% or more of the securities
having ordinary voting power for the election of directors of such Person
whether by ownership of securities, contract, proxy or otherwise, or (y) to
direct or cause the direction of the management and policies of such Person
whether by ownership of securities, contract, proxy or otherwise.
"Agreement" is defined in the preamble.
"Charter" means the Articles of Incorporation of the Company in effect
immediately following the Effective Time, as such Charter thereafter from
time to time be amended in accordance with applicable law and such Charter.
"Commission" means the U.S. Securities and Exchange Commission and any
successor federal agency having similar powers.
"Company" is defined in the preamble.
"DB Investors" as of any date of determination, means all of the
following who are then Holders: DB Capital Investors, L.P. and its
Affiliates and any DB Transferee.
"DB Transferee" means any Person who acquires from a DB Investor more
than 10,000 shares (as adjusted, after the date hereof, to account for
stock dividends, stock splits and similar events of the Company) of the
common stock (including shares issued or issuable upon exercise of
Warrants) of the Company acquired as of the Effective Time by DB Capital
Investors, L.P.
"Effective Time" shall have the meaning ascribed to that term in the
Merger Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor law, as amended from time to time, including the various rules
and regulations issued pursuant to that Act or any successor law.
"Holders," as of any date of determination, means the holders of
record of Registrable Securities other than any Persons to whom Registrable
Securities have been transferred who are not Permitted Assignees under
Section 3(b) hereof.
"Initial Holders" means the shareholders set forth on Schedule I
attached hereto.
"Initial Public Offering" shall have the meaning ascribed to that term
in the Charter.
"Investcorp Investors," as of any date of determination, means all of
the following who are then Holders: Investcorp Bank E.C. and its Affiliates
and any other investor with whom Investcorp Bank E.C. or any Affiliate
thereof has an administrative relationship.
"Merger" is defined in Recital A.
"Merger Agreement" is defined in Recital A.
"MergerCo" is defined in Recital A.
"Nonconvertible Preferred Shares" means shares of preferred stock of
the Company which are not convertible into common stock of the Company.
"Person" means an individual, limited or general partnership, joint
venture, limited liability company, corporation, trust, unincorporated
organization or other entity or a government or any department or agency
thereof.
"Registrable Securities," as of any date of determination, means (a)
the shares of Class A Common Stock, Class B Common Stock, Class C Common
Stock, Class D Common Stock and Class E Common Stock of the Company issued
to the Initial Holders in the Merger as set forth on Exhibit A attached
hereto, (b) any additional shares of capital stock of the Company acquired
prior to the Initial Public Offering by an Initial Holder, other than
Nonconvertible Preferred Shares, (c) the Warrants and the shares of Class E
Common Stock issuable upon
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exercise of the Warrants, (d) any shares of capital stock of the Company
issued upon conversion of any of the foregoing pursuant to the Charter, (e)
any shares of capital stock issued on account of any of the foregoing in
connection with any stock split or stock dividend effected after the
Effective Time and (f) equity securities of any other issuer issued in
exchange for any of the foregoing in connection with any merger,
consolidation, reorganization or recapitalization effected after the
closing Effective Time (other than equity securities of another issuer
which are issued pursuant to an effective registration statement under the
Securities Act). Notwithstanding the foregoing, any particular Registrable
Securities shall cease to be such when (i) a registration statement with
respect to the sale of such securities shall have become effective under
the Securities Act and such securities have been disposed of in accordance
with such registration statement, or (ii) they shall have ceased to be
outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with its obligations hereunder including,
without limitation, all Commission and any stock exchange registration,
listing, filing or NASD fees, all fees and expenses of complying with
securities or blue sky laws (including reasonable fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications),
all messenger and delivery expenses, the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any special audits or "comfort" letters required by or incident
to such performance and compliance, any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained in connection
with the requested registration and the fees and disbursements of one
counsel for the Sellers (which counsel shall be selected by the holders of
a majority in interest of the Registrable Securities included in such
registration), but excluding underwriting discounts and commissions and
fees and disbursements of any additional counsel employed by any Seller (as
defined in Section 2(b) hereof) other than in-house counsel of the Company
and outside counsel employed by the Company for purposes of the
registration.
"Securities Act" means the Securities Act of 1933, or any successor
law, as amended from time to time, including the various rules and
regulations issued pursuant to that Act or any successor law.
"Seller" means any Holder whose Registrable Securities are included in
any registration pursuant to Section 2(a) or 2(b) of this Agreement.
"Warrants" means the Class E Stock Purchase Warrants to purchase
531,325 shares of Class E Common Stock of the Company (as such shares may
be adjusted from time to time) being issued by the Company in connection
with the Merger.
Certain other terms are defined elsewhere in this Agreement.
SECTION 2. Registration Rights.
(a) Demand Rights.
(i) Commencing 90 days after the occurrence of the Initial Public
Offering, Holders who are Investcorp Investors shall have the right,
exercisable for up to a total of four (4) effective registration
statements (any one or all of which may be a continuous or delayed
"shelf"
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registration pursuant to Rule 415 under the Securities Act), to
require the Company to register under the Securities Act such number
of Registrable Securities as such Holders shall designate for sale in
a written request to the Company (the "Investcorp Demand
Registration") provided, however, that the number of Registrable
Securities designated for sale by the Investcorp Investors in any
Investcorp Demand Registration may not represent less than 2% of the
total number of shares of common stock of the Company then
outstanding.
(ii) Commencing 90 days after the occurrence of the Initial
Public Offering, Holders who are DB Investors beneficially owning at
least one-third of the total common Registrable Securities held by DB
Investors (assuming for this purpose the exercise of the Warrants)
shall have the right, exercisable for up to a total of two (2)
effective registration statements (any one or both of which may be a
continuous or delayed "shelf" registration pursuant to Rule 415 under
the Securities Act), to require the Company to register under the
Securities Act all or a portion of such number of Registrable
Securities as such Holders shall designate for sale in a written
request to the Company (the "DB Demand Registration") provided,
however, that the Company shall have the right to delay any DB Demand
Registration for any two periods not to exceed 90 days in the
aggregate for both such periods in any 12 month period if, in the good
faith determination of the Company, the sale of such Registrable
Securities or the required disclosure of information in any related
registration statement, prospectus or prospectus supplement would
materially interfere with any material financing, acquisition or other
material event or transaction which is then intended or the public
disclosure of which at the time would be materially prejudicial to the
Company; provided, further, that the Company shall not be required to
effect more than one DB Demand Registration in any 12 month period.
(iii) The Company will not, without the written consent of a
majority in interest of the Investcorp Investors, include in any
Investcorp Demand Registration securities for sale for the account of
any Person (including the Company) other than Investcorp Investors,
except that the Company shall include securities held by other Holders
having the contractual right to be so included pursuant to (A) this
Agreement, (B) the Warrant Registration Rights Agreement dated as of
the date hereof among the Company, Deutsche Bank Securities Inc., UBS
Warburg LLC and Xxxxxxx, Xxxxx & Co.(the "Warrant Registration Rights
Agreement") or (C) the Management Shareholder Agreements dated as of
the date hereof entered into with members of senior management of the
Company or any Management Shareholder Agreements with substantially
similar terms (the "Management Shareholder Agreements") (in each case
subject to the applicable provisions of such Agreements).
(iv) The Company will not, without the written consent of a
majority in interest of the DB Investors, include in any DB Demand
Registration securities for sale for the account of any Person
(including the Company) other than DB Investors, except that the
Company shall include securities held by other Holders having the
contractual right to be so included pursuant to (A) this Agreement,
(B) the Warrant Registration Rights Agreement or (C) any Management
Shareholder Agreements (in each case subject to the applicable
provisions of such Agreements).
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(b) Piggyback Registration Rights.
If the Company proposes to file a registration statement with respect
to common equity securities of the Company in connection with or following
the Initial Public Offering (including without limitation pursuant to an
Investcorp Demand Registration or DB Demand Registration, but excluding any
registration statement on Form S-8 or S-4 or comparable successor forms or
a registration statement relating to a dividend reinvestment plan), which
is available for use for the sale of Registrable Securities under the
Securities Act, then the Company shall give written notice of such proposed
filing to each Holder at least 10 business days before the anticipated
filing date of such registration statement, and such notice shall offer
each Holder the opportunity to include in such registration statement the
Registrable Securities then owned by such Holder, as such Holder may
request in writing within 5 days after receipt of the Company's notice
(which request shall specify the number of Registrable Securities to be
included in such registration statement and the intended method of
disposition).
(c) Registration Procedures. If and whenever the Company is required
to effect the registration of any Registrable Securities under the
Securities Act as provided in Section 2(a) or (b) hereof, the Company will
as expeditiously as practicable:
(i)(A) prepare and file with the Commission a registration
statement on the appropriate form which includes such Registrable
Securities, and furnish to each Seller at least 5 business days prior
to the filing thereof a copy of such registration statement, and not
file any such registration statement to which any Seller shall have
reasonably objected on the grounds that such registration statement
does not comply in all material respects with the requirements of the
Act or of the rules or regulations thereunder, (B) promptly respond to
all comments received with respect to such registration statement and
make and file all necessary amendments thereto, and (C) thereafter use
its reasonable best efforts to cause such registration statement to
become effective at the earliest practicable date;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement accurate and effective and to comply with the provisions of
the Act with respect to the disposition of all Registrable Securities
and other securities covered by such registration statement until the
earlier of such time as all of such Registrable Securities have been
disposed of by the Sellers thereof set forth in such registration
statement or for the longer of (A) nine months or (B) if such
registration is a continuous secondary offering pursuant to Rule 415
under the Act, two years; and will furnish to each such Seller at
least 2 business days prior to the filing thereof a copy of any
amendment or supplement to such registration statement or prospectus
and shall not file any such amendment or supplement to which any such
Seller shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with
the requirements of the Act or of the rules or regulations thereunder;
(iii) furnish to each Seller of such Registrable Securities, upon
their request, one signed copy of such registration statement and of
each such amendment thereof and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary
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prospectus), in conformity with the requirements of the Act, such
documents, if any, incorporated by reference in such registration
statement or prospectus, and such other documents as such Seller may
reasonably request;
(iv) notify each Seller of such Registrable Securities and, if
requested, confirm such notice in writing, as soon as practicable
after notice thereof is received by the Company, (A) when such
registration statement or such amendment thereof or supplement thereto
has been filed or becomes effective and when the prospectus or any
amendment thereof or supplement thereto has been filed, (B) of any
request by the Commission for any amendments or supplements to the
registration statement or the prospectus or for additional
information, (C) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Securities for offering or sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (D) of any stop
order issued, or the receipt of notification by the Company that any
such stop order is threatened to be issued, by the Commission, and use
its reasonable best efforts to prevent the entry of such stop order or
to remove it if entered;
(v) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as each
Seller shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement
remains in effect, and do any and all other acts and things that may
be necessary or advisable to enable such Seller to consummate the
disposition in such jurisdictions of its Registrable Securities
covered by such registration statement, except that the Company shall
not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subdivision (v) be obligated to
be so qualified, or to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction;
(vi) if such registration statement relates to an underwritten
offering, (A) obtain and furnish to each Seller a signed counterpart,
addressed to such Seller, of the legal opinions and accountants'
comfort letters which are to be delivered to the underwriters and (B)
notify each Seller of such Registrable Securities (and, if requested,
confirm such notice in writing) as soon as practicable after notice
thereof is received by the Company, if at any time in which the
underwriting agreement contemplated by Section 2(d) remains in effect
any representation or warranty of the Company contained therein shall
cease to be true and correct;
(vii) promptly notify each Seller whose Registrable Securities
are covered by such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing, and the Company shall promptly prepare a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances then existing;
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(viii) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
available to its securities holders, as soon as reasonably
practicable, an earnings statement covering the period of at least
twelve months, but not more than eighteen months, beginning with the
first month of the first fiscal quarter after the effective date of
such registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder;
(ix) promptly make available for inspection by any Seller or
underwriter participating in any disposition pursuant to any
registration statement, and by any attorney, accountant or other agent
or representative retained by any Seller or underwriter, all financial
and other records, pertinent corporate documents and properties of the
Company, as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested
by any such Seller or underwriter in connection with such registration
statement;
(x) if the Common Stock of the Company is listed on a national
securities exchange or quoted on Nasdaq, use its best efforts to
comply with the requirements of such exchange or Nasdaq to include
shares of Registrable Securities covered by such registration
statement for listing on each such securities exchange or for
quotation on Nasdaq.
The Company may require each Seller of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such Seller and the distribution of such securities as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection with such registration.
(d) Underwriting Agreement. If requested by the underwriters for any
underwritten offering of Registrable Securities on behalf of Sellers
pursuant to a registration covered by Section 2(a) or (b) hereof, the
Company will enter into an underwriting agreement with such underwriters
for such offering, such agreement to contain representations and warranties
by the Company and other terms and provisions not inconsistent with this
Section 2 as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
indemnities to the effect and to the extent provided in Section 2(g)
hereof, and the Company will cooperate with such Sellers to the end that
the conditions precedent to the obligations of such Sellers under such
underwriting agreement shall not include conditions that are not customary
in underwriting agreements with respect to secondary distributions and
shall be otherwise satisfactory to such Sellers. Sellers on whose behalf
shares are to be distributed by such underwriters shall be parties to any
such underwriting agreement and the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of
such underwriters, shall also be made to and for the benefit of such
Sellers. Such Sellers shall not be required by the Company to make any
representations or warranties to or agreements with the Company or the
underwriters other than reasonable representations, warranties or
agreements regarding such Sellers, such Sellers' Registrable Securities and
such Sellers' intended method or methods of disposition and any other
representation required by law.
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(e) Lock-Up.
(i) If and to the extent requested by the managing underwriter in
connection with the Initial Public Offering, such Holder shall agree
in writing that such Holder will not, without the consent of the
managing underwriter and except for shares included in the Initial
Public Offering, if any: (x) effect any public sale or distribution of
any common equity securities of the Company, or any securities
convertible into, or exercisable or exchangeable for, any such common
equity securities for a period of 180 days following effectiveness of
the registration statement relating to such Offering or (y) effect any
other transfer of any of the foregoing during such 180 day period
unless the transferee agrees in writing to be bound by the terms and
conditions of this Section 2(e).
(ii) If and to the extent requested by the managing underwriter
in connection with any other underwritten offering of common equity
securities of the Company (whether for the account of the Company,
selling shareholders or both) which occurs within two (2) years
following the effectiveness of the Initial Public Offering, such
Holder shall agree in writing that such Holder will not, without the
consent of the managing underwriter: (x) effect any public sale or
distribution of any common equity securities of the Company, or any
securities convertible into, or exercisable or exchangeable for, any
such common equity securities for a period of 90 days following
effectiveness of the registration statement relating to such Offering
or (y) effect any other transfer of any of the foregoing during such
90 day period unless the transferee agrees in writing to be bound by
the terms and conditions of this Section 2(e).
(f) Registration Expenses. The Company agrees to pay, in connection
with each registration of Registrable Securities covered by Section 2(a) or
2(b) hereof, all Registration Expenses. All other expenses not paid by the
Company which are otherwise not attributable to a particular Seller will be
the responsibility of and paid for by all of the Sellers on a pro rata
basis.
(g) Indemnification and Contribution.
(i) Indemnification by Company. The Company agrees to indemnify,
to the full extent permitted by law, each Seller, and any of their
officers, directors, employees and partners, and each Person who
controls such Seller within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act (each a
"Shareholder Indemnified Party") against any and all losses, claims,
damages, liabilities or expenses, joint or several (collectively,
"Damages") to which they or any of them may become subject: (i) under
the Securities Act, the Exchange Act, or otherwise, insofar as such
Damages (or actions in respect thereof) arise out of or are based upon
any untrue or alleged untrue statement of a material fact contained in
any registration statement, prospectus, preliminary prospectus or any
amendment to any of the foregoing, or arise out of or are based upon
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; or (ii) as a result of or in connection with
any violation of applicable Federal, state or foreign laws or
regulations (collectively, "Laws") by the Company (other than as a
result of any act committed by or knowing omission of a Shareholder
Indemnified Party without the Company's approval) or any of the
Company's employees, officers or directors in connection with any such
registration; provided, however, that the Company will not be liable
if any such Damages arise out of or are based upon any such untrue
statement or alleged untrue statement or
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omission or alleged omission made therein in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of such Shareholder Indemnified Party in a signed document
stating that such information is specifically for use therein;
provided, further, that the foregoing indemnity is subject to the
condition that, insofar as it related to any untrue statement, alleged
untrue statement, omission or alleged omission made in a preliminary
prospectus but eliminated or remedied in the final prospectus (filed
pursuant to Rule 424(b) under the Securities Act), such indemnity
shall not inure to the benefit of the Sellers from whom the Person
asserting any Damages purchased the Registrable Securities which are
the subject thereof, if copies of such final prospectus were delivered
to such Seller on a timely basis and such Seller did not deliver to
such Person the final prospectus with or prior to the written
confirmation for the sale of such Registrable Securities to such
Person. In connection with an underwritten offering, the Company will
indemnify the underwriters thereof to the same extent as provided
above with respect to the indemnification of Shareholder Indemnified
Parties and use its reasonable best efforts to obtain a reciprocal and
mutual indemnity from the underwriters. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on
behalf of such Shareholder Indemnified Party and shall survive any
transfer by the same of the Registrable Securities of the Sellers.
(ii) Indemnification by Sellers. Each Seller will furnish to the
Company in writing such information and affidavits with respect to
such Seller as the Company reasonably requests for use in connection
with any registration statement or prospectus to be filed or used
under this Agreement and each of them, upon executing and delivering
an underwriting agreement or otherwise upon registration of the
Registrable Securities pursuant to the terms of this Agreement, shall
agree to indemnify and hold harmless to the fullest extent permitted
by law, the Company, each person who signed the registration
statement, any underwriter, and each Person who controls the Company
within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act (each, a "Company Indemnified Party" and,
collectively with Shareholder Indemnified Parties, the "Indemnified
Parties") against joint or several Damages to which they or any of
them may become subject: (i) under the Securities Act, the Exchange
Act or otherwise, insofar as such Damages (or actions in respect
thereof) arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in any registration statement,
prospectus, preliminary prospectus or any amendment thereof or
supplement thereto, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
any Damages arise out of or are based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with information furnished
in writing by such Seller or on such Seller's behalf to the Company in
a signed document stating that such information is specifically for
use therein; or (ii) as a result of or in connection with any
violation of applicable Laws by such Seller or any general or limited
partners, employees, officers or directors of such Seller in
connection with any such registration; provided that, as to any
underwriter or any person controlling any underwriter, the foregoing
indemnity does not apply to any Damages based upon any untrue
statement, alleged untrue statement, omission or alleged omission made
in a preliminary prospectus but eliminated or remedied in the final
prospectus (filed pursuant to Rule 424(b) under the Securities Act) if
a copy of the final prospectus was not sent to or given by or on
behalf of any underwriter to such person asserting such Damages at or
prior to the written confirmation of the sale of the Registrable
Securities as required by the Securities Act.
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Notwithstanding the foregoing, the liability of a Seller, except for
any liability resulting from the willful misconduct or intentional
action of such Seller, shall not exceed an amount equal to the
proceeds realized by such Seller of Registrable Securities sold as
contemplated herein.
(iii) Conduct of Indemnification Proceedings. Promptly after
receipt by an Indemnified Party under subsection (a) or (b) above of
notice of the commencement of any action, such Indemnified Party
shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing at the commencement
thereof (but the failure so to notify an indemnifying party shall not
relieve it from any liability which such party may have under this
Section 2(g) except to the extent that the indemnifying party has been
prejudiced in any material respect by such failure or from any
liability which such party may have otherwise). In case any such
action is brought against any Indemnified Party, and the Indemnified
Party notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party, if
any, so notified, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the indemnifying party to
such Indemnified Party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
Indemnified Party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. Notwithstanding the foregoing,
the Indemnified Party shall have the right to employ its counsel in
any such case, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying
party in connection with the defense of such action, (ii) the
indemnifying party shall not have employed counsel to take charge of
the defense of such action within a reasonable time after notice of
the commencement of the action, or (iii) the named parties to any such
action or proceeding (including any impleaded parties) include both
such Indemnified Party and the indemnifying party, and such
Indemnified Party has been advised in good faith by counsel that there
is a conflict of interest on the part of counsel employed by the
indemnifying party to represent such Indemnified Party (in which case,
if such Indemnified Party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party will not have the right to
assume the defense of such action or proceeding on behalf of such
Indemnified Party; it being understood, however, that the indemnifying
party will not, in connection with any one such action or proceeding
or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate
local counsel) at any time for all such Indemnified Parties). Anything
in this subsection to the contrary notwithstanding: (A) an
indemnifying party shall not be liable for any settlement of any claim
or action effected without its written consent; and (B) no
indemnifying party shall, without the consent of the Indemnified
Party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.
(iv) Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in this
Section 2(g) is for any reason held to be unavailable or is
insufficient to hold harmless an Indemnified Party, then the
indemnifying party and the Indemnified Party shall contribute to the
aggregate Damages of the nature contemplated
10
by such indemnification provision (including any investigation, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted,
but after deducting from Damages suffered by the Indemnified Party any
contribution received by the Indemnified Party from Persons, other
than the indemnifying party, who may also be liable for contribution,
including Persons who control the indemnifying party within the
meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act) to which the indemnifying party, on the one hand, and
the Indemnified Party, on the other hand, may be subject, in such
proportions as are appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the Indemnified Party, on the
other hand, in connection with the statements or omissions which
resulted in Damages, as well as any other relevant equitable
considerations.
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 omission or alleged omission to state
a material fact relates to information supplied by a party and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
parties agree that it would not be just and equitable if contribution
pursuant to this Section 2(g)(iv) was determined by pro rata
allocation or by any other method of allocation which does not take
into account the equitable considerations referred to above.
Notwithstanding the foregoing, (i) any underwriting agreement entered
into pursuant hereto may provide that in no case shall any underwriter
(except as may be provided in any agreement among underwriters) be
liable or responsible for any amount in excess of the underwriting
discount applicable to the Registrable Securities purchased by such
underwriters, and (ii) 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. Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another
party or parties under this Section 2(g)(iv), notify such party or
parties from which contribution may be sought of any obligation it or
they may have under this Section 2(g)(iv) or otherwise. No party shall
be liable for contribution with respect to any action or claim settled
without its consent, which consent may not be unreasonably withheld or
delayed. Notwithstanding the foregoing, the liability of a Seller,
except for any liability resulting from the willful misconduct or
intentional action of such Seller, shall not exceed an amount equal to
the proceeds realized by such Seller of the Registrable Securities
sold as contemplated herein.
(h) Rule 144 Sales.
(i) Compliance. The Company covenants that, to the extent that it
is subject to the reporting requirements of the Exchange Act, it will
use its reasonable best efforts to file the reports required to be
filed by it under the Exchange Act so as to enable any Holder to sell
Registrable Securities without registration pursuant to Rule 144 under
the Securities Act.
(ii) Cooperation with Holders. In connection with any sale,
transfer or other disposition by any Holder of any Registrable
Securities pursuant to Rule 144 under the Securities Act, the Company
shall, to the extent permissible under applicable law, cooperate with
such Holder to facilitate the timely preparation and delivery of
certificates representing Registrable
11
Securities to be sold and not bearing any Securities Act legend, and
enable certificates for such Registrable Securities to be issued at
least two business days prior to any sale of such Registrable
Securities for such number of shares and registered in such names as
the Holder may reasonably request upon ten (10) business days prior
notice. The Company's obligation set forth in the previous sentence
shall be subject to the delivery, if reasonably requested by the
Company or its transfer agent, by counsel to such Holder (which
counsel shall be reasonably acceptable to the Company and its transfer
agent), in form and substance reasonably satisfactory to the Company
and its transfer agent, of an opinion that such Securities Act legend
need not appear on such certificate.
(i) Selection of Managing Underwriter. In the event that a Demand
Registration is proposed to be effected through an underwritten offering,
the Holders participating therein who are Investcorp Investors shall have
the right to select the managing underwriter or underwriters. With respect
to any other registration statement covered by Section 2(a) or (b) hereof,
the Company shall select the managing underwriter or underwriters subject
to the consent of a majority in interest of the Sellers, which consent will
not be unreasonably withheld.
(j) Underwriter Cutbacks. Notwithstanding anything in this Agreement
to the contrary and in addition to any other limitations on rights to
participate in a registration statement hereunder:
(A) if (x) the registration statement relates to an underwritten
offering which includes common shares to be offered and sold for the
account of the Company and (y) the managing underwriter of any such
offering advises the Company in writing (with a copy to the Holders
and the Other Rights Holders) that the total number of common shares
which the Company, the Holders, and other Persons whose contractual
rights (now existing or hereafter granted) give them the right to be
included in such registration (the "Other Rights Holders") intend to
include in such offering is sufficiently large to affect adversely the
ability of such underwriter to complete successfully an offering that
does not significantly and adversely impact the market price of the
common shares being offered, then the number of common shares to be
included in such registration statement and offering for the account
of the Holders and the Other Rights Holders shall be reduced pro rata
so that the aggregate amount of common shares included in such
registration statement and offering for the account of the Holders and
the Other Rights Holders, together with the common shares to be sold
for the account of the Company, does not exceed the amount that such
managing underwriter determines in good faith can be sold in such
offering without adversely affecting the ability of such managing
underwriter to complete successfully such offering without
significantly and adversely affecting the market price of the common
shares being offered; and
(B) if (x) the registration statement relates to an underwritten
offering which does not include common shares to be sold for the
account of the Company and (y) the managing underwriter advises (in
writing) the Holders and the Other Rights Holders who have requested
that common shares be included therein that the total number of common
shares which the Holders and the Other Rights Holders intend to
include in such offering is sufficiently large to affect adversely the
ability of such underwriter to complete successfully an offering that
does not significantly and adversely affect the market price of the
common shares being offered, then the number of common shares to be
included in such registration statement and offering for the
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accounts of the Holders and the Other Rights Holders shall be reduced
pro rata so that the aggregate amount of common shares included in
such registration statement and offering for the accounts of Holders
and the Other Rights Holders in the aggregate does not exceed the
amount that such managing underwriters determine in good faith can be
sold in such offering without adversely affecting the ability of such
managing underwriter to complete successfully such offering without
significantly and adversely affecting the market price of the common
shares being offered.
SECTION 3. Miscellaneous.
(a) Notices. Any notices in connection with this Agreement shall be in
writing and may be given by (i) personal delivery, (ii) fax, (iii)
certified mail, return receipt requested, postage prepaid, or (iv) a
nationally recognized overnight courier as follows: (x) if to an Initial
Holder, at the address of such Initial Holder set forth on Schedule I (or
such other address as such Initial Holder shall furnish the Company in
writing to receive notices hereunder); (y) if to any other Holder, at the
address of record for such Holder on the shareholder records of the Company
(or such other address as such Holder shall furnish the Company in writing
to receive notices hereunder); and (z) if to the Company, to Jostens, Inc.,
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, with a copy to
Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: E. Xxxxxxx Xxxxxxx.
Notices shall be deemed to have been given (A) when actually delivered
(including by fax with confirmation of transmission), (B) the next business
day if sent by overnight courier (with proof of delivery), and (C) on the
fifth day after mailing by certified mail.
(b) Assignability. This Agreement may not be assigned by any Holder
under any circumstances except in connection with a transfer of Registrable
Securities to a Permitted Assignee. As used herein, "Permitted Assignee"
means (i) a Person to whom record ownership of Registrable Securities is
transferred by a Holder without violation or breach of the Charter or any
agreement restricting such transfer or (ii) any Investcorp Investor. This
Agreement shall be binding upon the Company and its successors and upon the
successors and Permitted Assignees of the Holders. Any Holder wishing to
transfer Registrable Securities to a Permitted Assignee shall give at least
ten days' advance notice of such transfer to the Company; provided that the
failure to give such notice shall not deprive any assignee of its status as
a "Permitted Assignee" for all purposes of this Agreement.
(c) Amendment and Waiver. The rights of the Holders and the
obligations the Company hereunder are subject to amendment upon the written
consent of the Company and a majority in interest of the Holders; provided,
however, that any amendment which would have an adverse effect on the
rights of the DB Investors and would not similarly effect the rights of all
other Holders shall require the approval of DB Investors holding a majority
in interest of Registrable Securities held at such time by DB Investors.
Any noncompliance of any provision of this Agreement by the Company may be
waived by written consent of a majority in interest of the Holders;
provided, however, that any such waiver which would have an adverse effect
on the rights of the DB Investors and would not similarly effect the rights
of all other Holders shall require the approval of DB Investors holding a
majority in interest of Registrable Securities held at such time by DB
Investors. Any such amendment or waiver shall be binding upon all Holders.
13
(d) Governing Law. This Agreement shall be construed both as to
validity and performance in accordance with, and governed by, the laws of
the State of New York without regard to principles of conflict of laws of
such jurisdiction or any other jurisdiction.
(e) Headings; Sections. All headings and captions in this Agreement
are for purposes of reference only and shall not be construed to limit or
affect the substance of this Agreement. All references to Section in this
Agreement refer to Sections of this Agreement, unless the context otherwise
expressly provides.
(f) Entire Agreement. This Agreement contains, and is intended as, a
complete statement of all the terms of the arrangements provided for
herein, and supersedes any previous agreements and understandings with
respect to such arrangements.
(g) Specific Performance. The Company acknowledges and agrees that in
the event of any breach of this Agreement by the Company, the Holders would
be irreparably harmed and could not be made whole by monetary damages.
Accordingly, the Company hereby agrees that in addition to any other remedy
to which the Holders may be entitled at law or in equity, the Holders shall
be entitled to compel specific performance of this Agreement in any action
instituted in any court of the United States or any state thereof having
subject matter jurisdiction for such action.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
JOSTENS, INC.,
a Minnesota corporation
By: /s/ Xxx X. XxXxxxx
-------------------------------------
Name: Xxx X. XxXxxxx
Title: Vice President and Treasurer
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Schedule I
Initial Holders
Name Address Shares
---- ------- ------
Ballet Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Denary Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Gleam Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Highlands Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Noble Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Outrigger Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Quill Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Radial Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Shoreline Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Zinnia Limited West Wind Building 1,840 shares of Class D
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Investcorp Investments West Wind Building 1,600 shares of Class D
Equity Limited P.O. Box 1111 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Xxxxxxx Limited West Wind Building 1,325,000 shares of Class B
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Cloquet Limited West Wind Building 1,325,000 shares of Class B
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Xxxxxxx Limited West Wind Building 1,325,000 shares of Class B
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
17
Paynesville Limited West Wind Building 1,325,000 shares of Class B
P.O. Box 2197 Common Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Saturn Equity Limited West Wind Building 811,020 shares of Class C
P.O. Box 2197 Comon Stock
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
DB Capital Investors, L.P. 000 Xxxxxxx Xxxxxx, 00xx Xxxxx 590,000 shares of Class A
Xxx Xxxx, Xxx Xxxx 00000 Common Stock
1,346,036 shares of Class E
Common Stock
Warrants to purchase 531,325 shares
of Class E Common Stock
First Union Leveraged One First Union Center, 5th Floor 198,019 shares of Class A
Capital, LLC 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
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