Exhibit 4.3
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
June 18, 1998
NatWest Capital Markets Limited
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Dear Sirs:
Anacomp Inc., an Indiana corporation (the "Company"), proposes to issue
and sell to you (the "Initial Purchaser"), upon the terms set forth in a
purchase agreement dated June 12, 1998 (the "Purchase Agreement"),
$135,000,000 principal amount of its 10 7/8% Series C Senior Subordinated
Notes due 2004 (the "Securities") which Securities shall be unsecured and
will be subordinated to all existing and future Senior Indebtedness (as
defined in the Indenture) of the Company and will be effectively subordinated
to all obligations of each subsidiary of the Company as may exist from time
to time. Unless otherwise indicated, capitalized terms used but not
specifically defined herein have the respective meanings ascribed thereto in
the Purchase Agreement. As an inducement to the Initial Purchaser to enter
into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Company agrees with you, for the benefit of the
holders of the Securities (including the Initial Purchaser) (the "Holders"),
as follows:
1. Registered Exchange Offer. The Company shall prepare and, not later
than 60 days following the date on which the original Securities were sold to
the Initial Purchaser pursuant to the Purchase Agreement (the "Issue Date"),
shall file with the Securities and Exchange Commission (the "Commission") a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to a proposed offer (the "Registered Exchange
Offer") to the Holders to issue and deliver to such Holders, in exchange for
the Securities, a like aggregate principal amount of debt securities of the
Company (the "Exchange Securities") identical in all material respects to the
Securities, except for the transfer restrictions, registration rights and
liquidated damages relating to the Securities, shall use its reasonable
efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 180 days after the Issue
Date and to cause the Registered Exchange Offer to be consummated no later
than 215 days after the Issue Date, and shall keep the Registered Exchange
Offer open for not less than 20 business days (or longer, if required by
applicable law) commencing the date notice of the Registered Exchange Offer
is mailed to the Holders (such period being called the "Exchange Offer
Registration Period").
Upon the effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Registered Exchange Offer, it being the
objective of such
Registered Exchange Offer to enable each Holder electing to exchange
Securities for Exchange Securities (assuming that such Holder (a) is not (i)
an affiliate of the Company within the meaning of the Securities Act or (ii)
an Exchanging Dealer (as defined below) not complying with the requirements
of the next sentence, (b) acquires the Exchange Securities in the ordinary
course of such Holder's business and (c) has no arrangements or
understandings with any person to participate in the distribution of the
Exchange Securities) and to trade such Exchange Securities from and after
their receipt without any limitations or restrictions, except as provided
herein, under the Securities Act and without material restrictions under the
securities laws of the several states of the United States. The Company, the
Initial Purchaser and each Exchanging Dealer acknowledge that, pursuant to
current interpretations of Section 5 of the Securities Act by the
Commission's staff, (i) each Holder which is a broker-dealer electing to
exchange Securities, acquired for its own account as a result of market
making activities or other trading activities, for Exchange Securities (an
"Exchanging Dealer"), is required to deliver a prospectus containing the
information set forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section, and in Annex C hereto in the "Plan of Distribution" section
of such prospectus in connection with a sale of any such Exchange Securities
received by such Exchanging Dealer pursuant to the Registered Exchange Offer
and (ii) if the Initial Purchaser elects to sell Exchange Securities acquired
in exchange for Securities constituting any portion of an unsold allotment it
is required to deliver a prospectus containing the information required by
Items 507 or 508 of Regulation S-K under the Securities Act, as applicable,
in connection with such a sale.
If, prior to consummation of the Registered Exchange Offer, the Initial
Purchaser does not hold any Securities acquired by it and having the status
of an unsold allotment in the initial distribution, the Company shall, upon
the request of the Initial Purchaser, simultaneously with the delivery of the
Exchange Securities in the Registered Exchange Offer, issue and deliver to
the Initial Purchaser in exchange (the "Private Exchange") for Securities
held by the Initial Purchaser a like principal amount of debt securities of
the Company, that are identical in all material respects to the Exchange
Securities (the "Private Exchange Securities") (and which are issued pursuant
to the same Indenture as the Exchange Securities) except for the placement of
a restrictive legend on such Private Exchange Securities. The Private
Exchange Securities shall if permissible bear the same CUSIP number as the
Exchange Securities.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days commencing the date notice of the Registered Exchange
Offer is mailed to the Holders (or longer if required by applicable
law);
(c) utilize the services of a Depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York;
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(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws applicable to
the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange Offer, as applicable, the Company shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer or the Private
Exchange Offer, as applicable;
(b) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Securities, Exchange Securities or Private Exchange Securities, as
applicable, equal in principal amount to the Securities of such Holder
so accepted for exchange.
The Exchange Securities and the Private Exchange Securities are to be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event shall provide that (1) the
Exchange Securities shall not be subject to the transfer restrictions set
forth in the Indenture and (2) the Private Exchange Securities shall be
subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities shall vote and consent
together on all matters as to which they have the right to vote or consent as
one class and that none of the Exchange Securities, the Private Exchange
Securities or the Securities will have the right to vote or consent as a
separate class on any matter.
If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the Commission, the Company is not permitted
to effect a Registered Exchange Offer, (ii) the Registered Exchange Offer is
not consummated within 215 days after the Issue Date, (iii) any holder of
Private Exchange Securities so requests at any time after the consummation of
the Private Exchange, or (iv) any Holder (other than the Initial Purchaser)
is not eligible to participate in the Registered Exchange Offer, then the
Company shall promptly deliver to the Holders and the Trustee written notice
thereof to the Trustee and, in the case of clauses (i) and (ii) above, all
Holders, in the case of clause (iii) above, the Holders of the Private
Exchange Securities and, in the case of clause (iv) above, the affected
Holder, and shall file a Shelf Registration pursuant to Section 2 hereof;
provided, however, that in the case of clause (iii) above such Holders shall
pay all reasonable registration expenses of the Company as described in
Section 5 hereof in connection with such Shelf Registration.
The Company shall make available for a period of 90 days after the
consummation of the Registered Exchange Offer, a copy of a prospectus which
meets the requirements of the
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Securities Act and forms part of the Exchange Offer Registration Statement to
any broker-dealer for use in connection with any resale of any Exchange
Securities.
Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which
interest was paid on the Securities surrendered in exchange therefor or, if
no interest has been paid on the Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in
the distribution of the Exchange Securities within the meaning of the
Securities Act and (iii) such Holder is not an "affiliate" of the Company
within the meaning of Rule 405 of the Securities Act, or if it is an
affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies
in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include, as of the
consummation of the Registered Exchange Offer, an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
2. Shelf Registration. If (i) applicable interpretations of the staff
of the Commission do not permit the Company to effect the Registered Exchange
Offer as contemplated by Section 1 hereof, or (ii) any Holder notifies the
Company not more than 15 days after the consummation of the Registered
Exchange Offer that such Holder either (A) was not eligible to participate in
the Registered Exchange Offer or (B) participated in the Registered Exchange
Offer and did not receive freely transferrable Exchange Securities in
exchange for tendered Securities or (iii) for any other reason the Registered
Exchange Offer is not consummated within 215 days after the Issue Date, the
following provisions shall apply:
(a) The Company shall as promptly as practicable file with the
Commission and thereafter shall use its reasonable efforts to cause to be
declared effective a shelf registration statement on an appropriate form
under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities (as defined below) by the Holders from time to time in
accordance with the methods of distribution set forth in such registration
statement (hereafter, a "Shelf Registration Statement" and, together with any
Exchange Offer Registration Statement, a "Registration Statement"); provided,
however, that no Holder of Securities or Exchange Securities (other than the
Initial Purchaser) shall be entitled to have Securities or Exchange
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Securities held by it covered by such Shelf Registration Statement unless
such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use its reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by Holders for a period of two
years from the Issue Date or such shorter period that will terminate when all
the Securities and Exchange Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (in any
such case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Securities or
Exchange Securities covered thereby not being able to offer and sell such
Securities or Exchange Securities during that period, unless such action is
required by applicable law; provided, however, that the foregoing shall not
apply to actions taken by the Company in good faith and for valid business
reasons (not including avoidance of its obligations hereunder), including,
without limitation, the acquisition or divestiture of assets, so long as the
Company within 120 days thereafter complies with the requirements of Section
4(i) hereof. Any such period during which the Company fails to keep the
Shelf Registration Statement effective and usable for offers and sales of
Securities and Exchange Securities is referred to as a "Suspension Period."
A Suspension Period shall commence on and include the date that the Company
gives notice that the Shelf Registration Statement is no longer effective or
the prospectus included therein is no longer usable for offers and sales of
Securities and Exchange Securities and shall end on the date when each Holder
of Securities and Exchange Securities covered by such registration statement
either receives the copies of the supplemented or amended prospectus
contemplated by Section 4(i) hereof or is advised in writing by the Company
that use of the prospectus may be resumed. If one or more Suspension Periods
occur, the two-year time period referenced above shall be extended by the
number of days included in each such Suspension Period.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies
in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto (in either case, other than with respect to information
included therein in reliance upon or in conformity with written information
furnished to the Company by or on behalf of any Holder specifically for use
therein (the "Holders' Information")) does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Shelf
Registration Statement, and any supplement to such prospectus (in either
case, other than with respect to Holders' Information), does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. Additional Interest. (a) The parties hereto agree that the
Holders of Securities will suffer damages if the Company fails to fulfill its
obligations under Section 1 or Section 2, as applicable, and that it would
not be feasible to ascertain the extent of such damages.
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Accordingly, if (i) the applicable Registration Statement is not filed with
the commission on or prior to 60 days after the Issue Date, (ii) the Exchange
Offer Registration Statement is not declared effective within 180 days after
the Issue Date, (iii) the Registered Exchange Offer is not consummated or a
Shelf Registration Statement has not been declared effective on or prior to
215 days after the Issue Date (or in the case of a Shelf Registration
Statement required to be filed in response to a change in law or the
applicable interpretations of the Commission's Staff, if later, within 60
days after publication of the change in law or interpretation) but shall
thereafter cease to be effective (at any time that the Company is obligated
to maintain the effectiveness thereof) without being succeeded within 60 days
by an additional Registration Statement filed and declared effective (each
such event referred to in clauses (i) through (iii), a "Registration
Default"), then the interest rate borne by the Securities shall be increased
by one-quarter of one percent per annum following such 60-day period in the
case of clause (i) above, following such 180-day period in the case of clause
(ii) above or following such 215-day period in the case of clause (iii)
above, which rate will be increased by an additional one-quarter of one
percent per annum for each 90-day period that any additional interest
continues to accrue; provided, that the aggregate increase in such annual
interest rate may in no event exceed one percent. Upon (A) the filing of the
Exchange Offer Registration Statement after the 60-day period described in
clause (i) above, (B) the effectiveness of the Exchange Offer Registration
Statement after the 180-day period described in clause (ii) above or (C) the
consummation of the Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after the 215-day period
described in clause (iii) above, the interest rate borne by the Securities
from the date of such filing, effectiveness or consummation, as the case may
be, will be reduced to the original interest rate if the Company is otherwise
in compliance with this Section; provided, however, that if, after any such
reduction in interest rate, a different event specified in clause (i), (ii)
or (iii) above occurs, the interest rate may again be increased and
thereafter reduced pursuant to the foregoing provisions.
Pending the announcement of a material corporate transaction, if the
Company issues a notice that the Shelf Registration Statement is unusable, or
such a notice is required under applicable securities laws to be issued by
the Company and the aggregate number of days in any consecutive twelve-month
period for which all such notices are issued or required to be issued exceeds
30 days in the aggregate, then the interest rate borne by the Securities will
be increased by one-quarter of one percent per annum following the date that
such Shelf Registration Statement ceases to be usable beyond the 30-day
period permitted above, which rate shall be increased by an additional
one-quarter of one percent per annum at the beginning of each subsequent
90-day period that such additional interest continues to accrue; provided,
that the aggregate increase in such annual interest rate may in no event
exceed one percent per annum. Upon the Company declaring that the Shelf
Registration Statement is usable after the period of time described in the
preceding sentence, the interest rate borne by the Securities will be reduced
to the original interest rate if the Company is otherwise in compliance with
this Section; provided, however, that if after any such reduction in interest
rate the Shelf Registration Statement again ceases to be usable beyond the
period permitted above, the interest rate may again be increased and
thereafter reduced pursuant to the foregoing provisions. "Transfer Restricted
Securities" means each Security or Private Exchange Security until (i) the
date on which such Security or Private Exchange Security has been exchanged
for a freely transferrable Exchange Security in the
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Registered Exchange Offer, (ii) the date on which such Security or Private
Exchange Security has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (iii)
the date on which such Security or Private Exchange Security is distributed
to the public pursuant to Rule 144 under the Securities Act or is salable
pursuant to Rule 144(k) under the Securities Act.
(b) The Company shall notify the Trustee within three business days
after each and every date on which an event occurs in respect of which
additional interest is required to be paid. The Company shall pay the
additional interest due on the Transfer Restricted Securities by depositing
with the Paying Agent (as defined in the Indenture) (which shall not be the
Company for these purposes) for the Transfer Restricted Securities, in trust,
for the benefit of the Holders, prior to 10:00 a.m. on the next interest
payment date specified by the Indenture (or such other indenture), sums
sufficient to pay the additional interest then due. Any amounts of
additional interest due pursuant to clauses (a)(i), (a)(ii) or (a)(iii) of
this Section 4 will be payable to the Holders of affected Notes in cash
semi-annually on each interest payment date specified by the Indenture (or
such other indenture) to the record holders entitled to receive the interest
payment to be made on such date commencing with the first such date occurring
after any such additional interest commences to accrue. The amount of
additional interest will be determined by multiplying the applicable
additional interest rate by the principal amount of the affected Securities
of such Holders, multiplied by a fraction, the numerator of which is the
number of days such additional interest rate was applicable during such
period (determined on the basis of a 360-day year composed of twelve 30-day
months and, in the case of a partial month, the actual number of days
elapsed), and the denominator of which is 360.
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to you, prior to the filing thereof
with the Commission, a copy of the Registration Statement and each amendment
thereof and each supplement, if any, to the prospectus included therein and,
in the event that the Initial Purchaser (with respect to any portion of an
unsold allotment from the original offering) is participating in the
Registered Exchange Offer or the Shelf Registration, shall use reasonable
efforts to reflect in each such document, when so filed with the Commission,
such comments as you reasonably may propose; (ii) if applicable, include the
information set forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section and in Annex C hereto in the "Plan of Distribution" section of
the prospectus forming a part of the Exchange Offer Registration Statement,
and include the information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer; and (iii) if
requested by the Initial Purchaser, include the information required by Items
507 or 508 of Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement.
(b) The Company shall advise you and, if requested by the Holders or by
you, confirm such advice in writing (which advice pursuant to clauses
(ii)-(iv) hereof shall be
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accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included
therein or for additional information;
(iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities or
the Exchange Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and
(iv) of the happening of any event that requires the making of
any changes in any Registration Statement or the prospectus so that,
as of such date, the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Company will furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits (including
those incorporated by reference).
(d) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies
of the prospectus (including each preliminary prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Company consents to the use in
accordance with applicable law of the prospectus or any amendment or
supplement thereto by each of the selling Holders of Transfer Restricted
Securities in connection with the offering and sale of the Transfer
Restricted Securities covered by the prospectus or any amendment or
supplement thereto.
(e) The Company will furnish to each Exchanging Dealer or the Initial
Purchaser, as applicable, which so requests, without charge, at least one
copy of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Exchanging Dealer or Initial Purchaser, as applicable, so requests in
writing, all exhibits (including those incorporated by reference) except
those previously filed by XXXXX.
(f) The Company will, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer or the Initial Purchaser, as
applicable, without charge, as many copies of the prospectus included within
the coverage of the Exchange Offer Registration Statement and any amendment
or supplement thereto as such Exchanging Dealer or
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the Initial Purchaser, as applicable, may reasonably request for delivery by
(i) such Exchanging Dealer in connection with a sale of Exchange Securities
received by it pursuant to the Registered Exchange Offer or (ii) the Initial
Purchaser in connection with a sale of Exchange Securities received by it in
exchange for Securities constituting any portion of an unsold allotment; and
the Company consents to the use in accordance with applicable law of the
prospectus or any amendment or supplement thereto by any such Exchanging
Dealer or the Initial Purchaser, as applicable, as aforesaid.
(g) Prior to any public offering of Securities or Exchange Securities
pursuant to any Registration Statement, the Company will use its reasonable
efforts to register or qualify or cooperate with the Holders of Securities
included therein and its counsel in connection with the registration or
qualification of such securities for offer and sale under the securities or
blue sky laws of such jurisdictions as any such Holder reasonably requests in
writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities or Exchange
Securities covered by such Registration Statement; provided, however, that
the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(h) The Company will cooperate with the Holders of Securities or
Exchange Securities to facilitate the timely preparation and delivery of
certificates representing Securities or Exchange Securities to be sold
pursuant to any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as Holders may request in
writing prior to sales of Securities or Exchange Securities pursuant to such
Registration Statement.
(i) If (i) any event contemplated by paragraphs (b)(ii) through (iv)
above occurs during the period in which the Company is required to maintain
an effective Registration Statement or (ii) any Suspension Period remains in
effect for more than 120 days after the occurrence thereof, the Company will
promptly prepare a post-effective amendment to the Registration Statement or
a supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Securities or purchasers
of Exchange Securities from a Holder, the prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities or
Exchange Securities, as the case may be, and provide the applicable trustee
with printed certificates for the Securities or Exchange Securities, as the
case may be, in a form eligible for deposit with The Depository Trust
Company, or any successor depositary.
(k) The Company will use its reasonable efforts to comply with all
applicable rules and regulations of the Commission and will make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act; provided
that in no event shall such earnings statement be delivered later than 45
days after the end of a 12-month
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period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective
date of the applicable Registration Statement, which statements shall cover
such 12-month period.
(l) The Company will cause the Indenture or the Exchange Securities
Indenture, as the case may be, to be qualified under the Trust Indenture Act
as required by applicable law in a timely manner.
(m) The Company may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to furnish
to the Company such information regarding the Holder and the distribution of
such Transfer Restricted Securities as the Company may from time to time
reasonably require for inclusion in such Registration Statement, and the
Company may exclude from such registration the Transfer Restricted Securities
of any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(n) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (iv) hereof,
such Holder will discontinue disposition of such Transfer Restricted
Securities and use of the applicable prospectus until such Holder's receipt
of copies of the supplemental or amended prospectus contemplated by Section
4(i) hereof, or until advised in writing (the "Advice") by the Company that
the use of the applicable prospectus may be resumed. If the Company shall
give any notice under Section 4(b)(ii) through (iv) during the period that
the Company is required to maintain an effective Registration Statement (the
"Effectiveness Period"), such Effectiveness Period shall be extended by the
number of days during such period from and including the date of the giving
of such notice to and including the date when each seller of Transfer
Restricted Securities covered by such Registration Statement shall have
received (x) the copies of the supplemental or amended prospectus
contemplated by Section 4(i) (if an amended or supplemental prospectus is
required) or (y) the Advice (if no amended or supplemental prospectus is
required).
(o) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Securities by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, the
Company shall xxxx, or cause to be marked, on such Securities that such
Securities are being cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall such
Securities be marked as paid or otherwise satisfied.
5. Registration Expenses. (a) All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be
borne by the Company whether or not the Exchange Offer Registration Statement
or a Shelf Registration Statement is filed or becomes effective, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the
NASD in connection with an underwritten offering and (B) fees and expenses of
compliance with
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state securities or Blue Sky laws, (ii) printing expenses, including, without
limitation, expenses of printing certificates for Securities or Exchange
Securities in a form eligible for deposit with The Depository Trust Company
or any other Depositary and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if
any, by the Holders of a majority in aggregate principal amount of the
Securities included in any Registration Statement or sold by any Exchanging
Dealer, as the case may be, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company, (v) fees and
disbursements of the Company's independent certified public accountants
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance by or incident
to such performance), (vi) rating agency fees, if any, and any fees
associated with making the Securities or Exchange Securities eligible for
trading through The Depository Trust Company or any other Depositary, (vii)
Securities Act liability insurance, if the Company desires such insurance,
(viii) fees and expenses of all other persons retained by the Company, (ix)
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees of the Company performing legal or
accounting duties), (x) the expense of any annual audit, (ix) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange or any inter-dealer quotation system,
if applicable, and (xii) the expenses relating to printing, word processing
and distributing all Registration Statements, underwriting agreements,
securities sales agreements, indentures and any other documents necessary in
order to comply with this Agreement.
(b) The Company shall (i) reimburse the Holders of the Securities being
registered in a Shelf Registration Statement for the reasonable fees and
disbursements of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate principal amount of
the Securities to be included in such Registration Statement and (ii)
reimburse out-of-pocket expenses (other than legal expenses) of Holders of
Securities incurred in connection with the registration and sale of the
Securities pursuant to a Shelf Registration Statement or in connection with
the exchange of Securities pursuant to the Exchange Offer. In addition, the
Company shall reimburse the Initial Purchaser for 50% of the reasonable fees
and expenses of one counsel in connection with the Exchange Offer which shall
be White & Case LLP, and shall not be required to pay any other legal
expenses of the Initial Purchaser in connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an
Exchange Offer Registration Statement by an Exchanging Dealer or the Initial
Purchaser, as applicable, the Company shall indemnify and hold harmless each
Holder and Exchanging Dealer, and each of their directors, officers, agents
and employees and each person, if any, who controls such Holder or Exchanging
Dealer within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and the directors, officers, agents and employees of such
controlling persons against any and all loss, liability, claim and damage, as
incurred, arising out of any untrue statement or alleged untrue statement of
a material fact contained in any such Registration Statement or any
prospectus forming part thereof or in any amendment or supplements thereto or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and shall reimburse each
11
Holder promptly upon demand for any and all expenses (including, subject to
Section 6(c) hereof, the fees and disbursements of counsel chosen by the
indemnified party), reasonably incurred as such expenses are incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental or regulatory agency or body,
commenced or threatened, or any claim based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided,
however, that (i) this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with Holders' Information and (ii) this indemnity with respect to
any untrue statement or alleged untrue statement or omission or alleged
omission in any related preliminary prospectus shall not inure to the benefit
of any indemnified party from whom the person asserting any such loss, claim,
damage or liability received Securities or Exchange Securities if such
persons did not receive a copy of the final prospectus at or prior to the
confirmation of the sale of such Securities or Exchange Securities to such
person in any case where such delivery is required by the Securities Act and
the untrue statement or omission of material fact contained in the related
preliminary prospectus was corrected in the final prospectus unless such
failure to deliver the final prospectus was a result of noncompliance by the
Company with Sections 4(c), 4(d), 4(e) or 4(f).
(b) In the event of a Shelf Registration Statement, each Holder and
Exchanging Dealer agrees to indemnify and hold harmless the Company, its
directors, officers, agents and employees 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 and the directors, officers, agents and
employees of such controlling persons against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section
6(a) hereof, as incurred, arising out of or based upon any untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment or supplement thereto) in reliance
on and in conformity with Holders' Information furnished to the Company by
such Holder or Exchanging Dealer; provided, however, that no such Holder or
Exchanging Dealer shall be liable for any indemnity claims hereunder in
excess of the amount of net proceeds received by such Holder or Exchanging
Dealer from the sale of Securities or Exchange Securities pursuant to the
Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any claim or action commenced
against it in respect of which indemnity may be sought hereunder; provided,
however, that failure to so notify an indemnifying party shall not relieve
such indemnifying party from any obligation that it may have pursuant to this
Section except to the extent that it has been materially prejudiced (through
the forfeiture of substantive rights or defenses) by such failure; provided
further, however, that the failure to notify an indemnifying party shall not
relieve it from any liability that it may have to an indemnified party
otherwise than on account of this indemnity agreement. If any such claim or
action shall be brought against an indemnified party, the indemnified party
shall notify the indemnifying party thereof, and the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to assume the defense of such
12
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that an indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party
has reasonably concluded (based on the written advice of counsel) that there
may be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on the written advice of
counsel to the indemnified party) between the indemnified party and
indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to
assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel for the
indemnified party will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm of attorneys (in addition to any local
counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 6(a) and 6(b), shall use all reasonable efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent, but if settled with its written consent
or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If a claim by an indemnified party for indemnification under this
Section 6 is unenforceable even though the express provisions hereof provide
for indemnification in such case, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions,
statements or omissions that resulted in such losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied
by, such indemnifying party or indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action, statement or omission. The amount paid or payable by a
party as a result of any losses shall be deemed to include, subject to the
limitations set forth in Section 6(c) herein, any legal or other
13
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section, an indemnifying
party that is a holder of Transfer Restricted Securities or Exchange
Securities shall not be required to contribute any amount in excess of the
amount by which the total price at which the Transfer Restricted Securities
or Exchange Securities sold by such indemnifying party and distributed to the
public were offered to the public exceeds the amount of any damages that such
indemnifying party would have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Securities Act) shall be entitled to any contribution from any
person who was not guilty of such fraudulent misrepresentation.
7. Miscellaneous. (a) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless
the Company has obtained the written consent of Holders of a majority in
aggregate principal amount of the Securities and the Exchange Securities,
taken as a single class. Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of the Holders of Securities or Exchange Securities
whose Securities or Exchange Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Securities or Exchange Securities being sold by such
Holders pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section 7(b), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the
Indenture, with a copy in like manner to NatWest Capital Markets
Limited;
(2) if to you, initially at your address set forth in the
Purchase Agreement; and
(3) if to the Company, initially at the address of the Company
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after
being deposited in the mail; and when receipt is acknowledged by the
recipient's telecopier machine, if telecopied.
14
(c) Successors And Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopies) and
by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
(g) No Inconsistent Agreements. The Company has not and shall not, on
or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the holders of Transfer Restricted
Securities in this Agreement or otherwise conflicts with the provisions
hereof. The Company has not previously entered into any agreement which
remains in effect granting any registration rights with respect to any of its
debt securities to any person. Without limiting the generality of the
foregoing, without the written consent of the holders of a majority in
aggregate principal amount of the then outstanding Transfer Restricted
Securities, the Company shall not grant to any person the right to request
the Company to register any debt securities of the Company under the
Securities Act unless the rights so granted are not in conflict or
inconsistent with the provisions of the Agreement.
(h) No Piggyback on Registrations. Neither the Company, nor any of its
security holders (other than the holders of Transfer Restricted Securities in
such capacity) shall have the right to include any securities of the Company
in any Shelf Registration or Registered Exchange Offer other than Transfer
Restricted Securities.
(i) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable efforts to find and employ
an alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
15
(j) Remedies. In the event of a breach by the Company, or by any
holder of Transfer Restricted Securities, of any of their obligations under
this Agreement, each holder of Transfer Restricted Securities or the Company,
as the case may be, in addition to being entitled to exercise all rights
granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Company of its obligations under Sections 1 or 2
hereof for which liquidated damages have been paid pursuant to Section 3
hereof), will be entitled to specific performance of its rights under this
Agreement. The Company and each holder of Transfer Restricted Securities
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agree that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that a remedy at law would be adequate.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
ANACOMP, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: CFO
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written:
NATWEST CAPITAL MARKETS LIMITED
By: /s/ Xxxxx Xxxx
--------------------------
Name: Xxxxx Xxxx
Title: Chief Executive
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 90 days after the
Expiration Date (as defined herein), it will make this Prospectus available
to any broker-dealer for use in connection with any such resale. See "Plan
of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of
Exchange Securities received in exchange for Securities where such Securities
were acquired as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 90 days after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale.
In addition, until _______________, 199_, all dealers effecting transactions
in the Exchange Securities may be required to deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broke
r-dealers for their own account pursuant to the Registered Exchange Offer may
be sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of optio ns on the
Exchange Securities or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or at negotiated prices. Any such resale may be made directly
to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for
its own account pursuant to the Registered Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and
any profit on any such resale of Exchange Secur ities and any commission or
concessions received by any such persons may b e deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that,
by acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Registered Exchange Offer (including the expenses of
one counsel for the Holders of the Securities) other than commissions or
concessions of any broker-
---------------------
(1) In addition, the legend required by Item 502(e) of Regulation S-K
will appear on the back cover page of the Exchange Offer prospectus.
dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
2
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name:
----------------------------------------------------
Address:
----------------------------------------------------
----------------------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any
resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
