EXHIBIT 4.5
WARRANT REGISTRATION RIGHTS AGREEMENT
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THIS WARRANT REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
May 10, 2000, by and between JOSTENS, INC., a Minnesota corporation (the
"Company"), and Deutsche Bank Securities Inc., UBS Warburg LLC and Xxxxxxx,
Xxxxx & Co. (the "Initial Purchasers").
R E C I T A L S
This Agreement is entered into in connection with the Purchase Agreement by
and between the Company and the Initial Purchasers, dated as of May 5, 2000 (the
"Purchase Agreement"), which provides for, among other things, the issuance and
sale by the Company to the Initial Purchasers of 225,000 units consisting in the
aggregate of $225,000,000 principal amount of the Company's 12 3/4% Senior
Subordinated Notes due 2010 (the "Notes") and warrants to purchase 425,060
shares of Class E Common Stock of the Company. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement for the benefit of
the Initial Purchasers and any subsequent holder or holders of the Warrants and
Warrant Shares. The execution and delivery of this Agreement is a condition to
the Initial Purchasers' obligations under the Purchase Agreement. Capitalized
terms used without definition herein have the meanings given to them in the
Warrant Agreement (as defined below).
A G R E E M E N T
The Parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Charter" means the Articles of Incorporation of the Company in effect
immediately following the Effective Time, as such Charter may 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.
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"Effective Time" shall have the meaning ascribed to that term in the
Merger Agreement.
"Holders," as of any date of determination, means the holders of
record of Registrable Securities as of such date.
"Initial Public Offering" shall have the meaning ascribed to that term
in the Charter as in effect immediately following the Effective Time.
"Merger Agreement" means the merger agreement dated as of December 27,
1999 by and between the Company and Saturn Acquisition Corporation, a
Minnesota corporation.
"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.
"Prospectus" means the Prospectus included in any Registration
Statement (including, without limitation, any Prospectus subject to
completion and 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.
"Registrable Securities," as of any date of determination, means (a)
the Warrants, (b) the Warrant Shares, (c) any shares of Capital Stock of
the Company issued upon conversion of any of the foregoing pursuant to the
Charter, (d) 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, (e) 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), and (f) if notice has been given under Section 2(c)(i),
during the period that a Shelf Registration is required to be effective
under Section 2(c)(ii), any shares of Capital Stock that is of the same
class or series as any securities referred to in clause (b), (c), (d) or
(e). 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;
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provided that clause (i) shall not apply during the period that a Shelf
Registration is required to be effective under Section 2(c)(ii).
"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.
"Registration Statement" means any Registration Statement of the
Company, including but not limited to a shelf 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.
"Seller" means any Holder whose Registrable Securities are included in
any registration pursuant to Section 2(a) or 2(b) of this Agreement.
"Warrant Agreement" means the Warrant Agreement dated as of May 10,
2000 between the Company and The Bank of New York, as warrant agent,
relating to the Warrants.
"Warrants" means the warrants issued by the Company pursuant to the
Purchase Agreement.
Certain other terms are defined elsewhere in this Agreement.
SECTION 2. Registration Rights.
(a) Demand Right.
(i) Commencing 90 days after the occurrence of the Initial Public
Offering (subject to any lock-up agreement under Section 2(f) that may be
in effect), Holders who beneficially own at least 25% of the total
outstanding Registrable Securities (assuming
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exercise of all Warrants) referred to in clauses (a)-(e) of the definition
thereof (the "Demanding Holders") shall have the right to require the
Company to register under the Securities Act all or a portion of such
number of Registrable Securities as such Demanding Holders shall designate
for sale in a written request to the Company (the "Demand Registration");
provided, however, that the Company shall have the right to delay the
Demand Registration for an aggregate of up to 60 days if the Board of
Directors of the Company determines in good faith (a "Registration Delay
Determination") that (i) required disclosure of information in any related
Registration Statement, Prospectus or prospectus supplement at such time
would have a material adverse effect on the Company's business, operations
or prospects or (ii) a material business transaction that has not yet been
publicly disclosed would be required to be disclosed in a Registration
Statement, Prospectus or prospectus supplement and such disclosure would
jeopardize the success of such transaction. The Company shall not be
required to effect more than one Demand Registration.
(ii) The Company will not, without the written consent of a majority
in interest of the Demanding Holders, include in any Demand Registration
securities for sale for the account of any Person (including the Company)
other than the Demanding Holders, except that the Company shall include
securities held by other holders of securities of the Company from time to
time having the contractual right to be so included (subject to the
applicable provisions of this Agreement).
(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 after the
Initial Public Offering (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), then the Company shall give written
notice of such proposed filing to each Holder 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 15 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) (a "Piggyback Registration").
(c) Shelf Registration.
(i) If any Initial Purchaser notifies the Company in writing that such
Initial Purchaser intends to deliver a Prospectus in connection with any
market-making resales of Registrable Securities, the Registration Statement
to be filed pursuant to a Demand Registration or (except in the case of an
underwritten offering) a Piggyback Registration, shall provide for an
offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act covering all of the Registrable Securities (a "Shelf
Registration"). The Shelf
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Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Securities for resale by such Initial
Purchaser in the manner or manners designated by them.
(ii) Effectiveness Period. The Company shall use its reasonable best
efforts to keep the Shelf Registration continuously effective under the
Securities Act until the date that is two years from the Issue Date or such
shorter period ending when all Registrable Securities covered by the Shelf
Registration have been sold in the manner set forth and as contemplated in
the Shelf Registration (the "Effectiveness Period"); provided, however,
that upon notice from any Initial Purchaser pursuant to Section 2(c)(i)
hereof, the Effectiveness Period shall be extended for a period not beyond
the second anniversary of the date on which the Shelf Registration
Statement became effective (as extended by any Shelf Blackout Period)
solely for the purpose of facilitating resales of Registrable Securities by
any Initial Purchaser until such time as each Initial Purchaser shall have
notified the Company that neither such Initial Purchaser nor any of its
affiliates is required by applicable law or SEC policy to deliver a
prospectus in connection with any resales of Registrable Securities.
(iii) Shelf Blackout Period. Notwithstanding the foregoing, the
Company, upon advising the Holders, may suspend the use of the Prospectus
included in any Shelf Registration in the event that and for a period of
time (the "Shelf Blackout Period") not to exceed an aggregate of 60 days in
any 12-month period if the Board of Directors of the Company has made a
Registration Delay Determination; provided, that, upon the termination of
such Shelf Blackout Period, the Company promptly shall advise the Initial
Purchasers that such Shelf Blackout Period has been terminated.
(d) 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 Securities 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
Securities Act with respect to the disposition of all Registrable
Securities
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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 Securities
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 Securities 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 Prospectus), in conformity with the requirements of the Securities
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;
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(vi) if such Registration Statement relates to an underwritten
offering, 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;
(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;
(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 Securities
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.
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(e) 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.
(f) Lock-Up. 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 the period requested by the managing underwriter,
not to exceed in any event 180 days following effectiveness of the Registration
Statement relating to the Initial Public Offering, or (y) effect any other
transfer of any of the foregoing during such lock-up period unless the
transferee agrees in writing to be bound by the terms and conditions of this
Section 2(f), in each case, on terms not less favorable than those applicable to
holders of shares of Common Stock generally.
(g) 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.
(h) Indemnification and Contribution.
(i) The Company agrees, to indemnify and hold harmless each Initial
Purchaser, each Holder of Registrable Securities, and each Person, if any,
who controls such
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Person or its affiliates within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each, a "Participant") against any
losses, claims, damages or liabilities to which any Participant or such
controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(a) any untrue statement or alleged untrue statement made by the
Company contained in any application or any other document or any
amendment or supplement thereto executed by the Company based upon
written information furnished by or on behalf of the Company filed in
any jurisdiction in order to qualify the Registrable Securities under
the securities or "Blue Sky" laws thereof or filed with the SEC or any
securities association or securities exchange (each, an
"Application");
(b) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus; or
(c) the omission or alleged omission to state, in any
Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if any of the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus or
any Application or any other document or any amendment or supplement
thereto, a material fact required to be stated therein or necessary to
make the statements therein not misleading;
and will reimburse, as incurred, the Participant and each such controlling
person for any legal or other expenses incurred by the Participant or such
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or Application or any
amendment or supplement thereto in reliance upon and in conformity with
information relating to any Participant furnished to the Company by such
Participant specifically for use therein, and (ii) the Company shall not be
liable to any Participant under the indemnity agreement in this subsection
(a) with respect to the preliminary prospectus to the extent that any such
loss, claim, damage, liability or expense of such Participant results from
the fact that such
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Participant sold Registrable Securities to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (or the Prospectus as
then amended or supplemented if the Company shall have furnished such
Participant with such amendment or supplement thereto on a timely basis),
in any case where such delivery is required by applicable law and the loss,
claim, damage, liability or expense of such Participant results from an
untrue statement or omission of a material fact contained in the
preliminary prospectus which was corrected in the Prospectus (or in the
Prospectus as then amended or supplemented if the Company shall have
furnished such Participant with such amendment or supplement thereto on a
timely basis). The indemnity provided for in this Section (h) will be in
addition to any liability that the Company may otherwise have to the
indemnified parties. The Company shall not be liable under this Section (h)
for any settlement of any claim or action effected without its prior
written consent, which shall not be unreasonably withheld.
(ii) Each Participant, severally and not jointly, agrees to indemnify
and hold harmless the Company, its directors, its officers and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which the Company or any such director,
officer or controlling person may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary prospectus, or (ii) the omission or
the alleged omission to state therein a material fact necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information concerning such Participant, furnished to the
Company by the Participant, specifically for use therein; and subject to
the limitation set forth immediately preceding this clause, will reimburse,
as incurred, any legal or other expenses incurred by the Company or any
such director, officer or controlling person in connection with
investigating or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action in
respect thereof. The indemnity provided for in this Section (h) will be in
addition to any liability that the Participants may otherwise have to the
indemnified parties. The Participants shall not be liable under this
Section (h) for any settlement of any claim or action effected without
their consent, which shall not be unreasonably withheld. The Company shall
not, without the prior written consent of such Participant, effect any
settlement or compromise of any pending or threatened proceeding in respect
of which any Participant is or could have been a party, or indemnity could
have been sought hereunder by any Participant, unless such settlement (A)
includes an unconditional written release of the Participants, in form and
substance reasonably satisfactory to the Participants, from all liability
on claims that are the subject matter of such
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proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any Participant.
(iii) Promptly after receipt by an indemnified party under this
Section (h) of notice of the commencement of any action for which such
indemnified party is entitled to indemnification under this Section (h),
such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section (h), notify the
indemnifying party of the commencement thereof in writing; but the omission
to so notify the indemnifying party (a) will not relieve it from any
liability under paragraph (i) or (ii) above unless and to the extent such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (b) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraphs (i) and (ii) above.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have been
advised by counsel that there may be one or more legal defenses available
to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after receipt by the indemnifying party of notice of the
institution of such action, then, in each such case, the indemnifying party
shall not have the right to direct the defense of such action on behalf of
such indemnified party or parties and such indemnified party or parties
shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable
to such indemnified party under this Section (h) for any legal or other
expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying
party shall not be liable for the expenses of more than one separate
counsel (in addition to local counsel) in any one action or separate but
substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by Participants who
sold a majority in interest of the Registrable Securities sold by all such
Participants in the case of paragraph (i) of this Section (h) or the
Company in the case of paragraph (ii) of this Section (h), representing the
indemnified parties under such paragraph (i) or paragraph (ii), as
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the case may be, who are parties to such action or actions) or (ii) the
indemnifying party has authorized in writing the employment of counsel for
the indemnified party at the expense of the indemnifying party. All fees
and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed
as they are incurred. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs
and expenses of any settlement of such action effected by such indemnified
party without the prior written consent of the indemnifying party (which
consent shall not be unreasonably withheld), unless such indemnified party
waived in writing its rights under this Section (h), in which case the
indemnified party may effect such a settlement without such consent.
(iv) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section (h) is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (a) the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Units or (b) if the allocation provided
by the foregoing clause (a) is not permitted by applicable law, not only
such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party 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). The relative benefits received by the Company
on the one hand and such Participant on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (before
deducting expenses) of the Units received by the Company bear to the total
net profit received by such Participant in connection with its resale of
its Registrable Securities. 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
Company on the one hand, or the Participants on the other, the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission or alleged statement or
omission, and any other equitable considerations appropriate in the
circumstances. The parties agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of
this paragraph (iv). Notwithstanding any other provision of this paragraph
(iv), no Participant shall be obligated to make contributions hereunder
that in the aggregate exceed the total net profit received by such
Participant in connection with the sale of its Registrable Securities, less
the aggregate amount of any damages that such Participant has otherwise
been required to pay by reason of the untrue or alleged untrue statements
or the omissions or alleged omissions to state a material fact, and no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
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from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (iv), each person, if any, who controls a
Participant within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution
as the Participants, and each director of the Company, each officer of the
Company and each person, if any, who controls any Issuer within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act,
shall have the same rights to contribution as the Company.
(i) 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 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.
(j) Selection of Managing Underwriter. With respect to any Registration
Statement covered by Section 2(a) or (b) hereof, the Company shall select the
managing underwriter or underwriters subject to the applicable provisions of the
Common Equity Registration Rights Agreement dated as of May 10, 2000 by and
among the Company and the holders of the Company's equity securities parties
thereto.
(k) 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 equity 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 equity
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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 exceeds the maximum amount of common equity that may be
distributed without adversely affecting the price, timing or distribution
of the common equity being offered, then the amount of common equity 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 equity included in such Registration Statement
and offering for the account of the Holders and the Other Rights Holders,
together with the common equity 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 causing such adverse
effect; and
(B) if (x) the Registration Statement relates to an underwritten
offering which does not include common equity 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 equity
be included therein that the total number of common equity which the
Holders and the Other Rights Holders intend to include in such offering
exceeds the maximum amount of common equity that may be distributed without
adversely affecting the price, timing or distribution of the common equity
being offered, then the amount of common equity to be included in such
Registration Statement and offering for the accounts of the Holders and the
Other Rights Holders shall be reduced pro rata so that the aggregate amount
of common equity 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 underwriter determines in good
faith can be sold in such offering without causing such adverse effect.
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 any Holder, at the address of record for
such Holder on the records of the Company (or such other address as such Holder
shall furnish the Company in writing to receive notices hereunder); and (y) 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.
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(b) Assignability. This Agreement shall be binding upon the Company and its
successors and upon the successors and all transferees and assignees of the
Holders.
(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. 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. Any such amendment or waiver shall be
binding upon all Holders.
(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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
JOSTENS, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ [Signature Illegible]
--------------------------------
Name:
Title:
UBS WARBURG LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
Leveraged Finance
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------
Name: X. Xxxxxxxxx Xxxxxxxx
Title: Director
Leveraged Finance
XXXXXXX, SACHS & CO.
/s/ XXXXXXX, XXXXX & CO.
-----------------------------------
