ANACOMP, INC.
and
MELLON INVESTOR SERVICES LLC,
as Warrant Agent
WARRANT AGREEMENT
Dated as of December 31, 2001
TABLE OF CONTENTS
Section
1. DEFINITIONS...........................................................1
2. EXERCISE OF WARRANT...................................................3
2.1. Manner of Exercise.............................................3
2.2. Payment of Taxes...............................................4
2.3. Fractional Shares..............................................4
3. TRANSFER, DIVISION AND COMBINATION....................................4
3.1. Division and Combination.......................................4
3.2. Expenses.......................................................4
3.3. Maintenance of Books...........................................4
4. ADJUSTMENTS...........................................................5
4.1. Stock Dividends, Subdivisions and Combinations.................5
4.2. Other Provisions Applicable to Adjustments under this Section..5
4.3. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets..........................................6
5. NOTICES TO WARRANT HOLDERS............................................7
5.1. Notice of Adjustments..........................................7
6. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY................................8
7. STOCK AND WARRANT TRANSFER BOOKS......................................8
8. LOSS OR MUTILATION....................................................8
9. OFFICE OF COMPANY.....................................................9
10. LIMITATION OF LIABILITY...............................................9
11. CONCERNING THE WARRANT AGENT..........................................9
11.1. Correctness of Statement.......................................9
11.2. Breach of Covenants............................................9
11.3. Reliance on Counsel............................................9
11.4. Reliance on Documents..........................................9
11.5. Compensation...................................................10
11.6. Legal Proceedings..............................................10
11.7. Other Transactions in Securities of the Company................10
11.8. Liability of Warrant Agent.....................................10
11.9. Adjustments to the Number of Warrant Shares....................11
12. MISCELLANEOUS.........................................................11
12.1. Nonwaiver......................................................11
12.2. Notice Generally...............................................11
12.3. Appointment of Warrant Agent...................................12
12.4. Successors and Assigns.........................................13
12.5. Amendment......................................................13
12.6. Severability...................................................13
12.7. Headings.......................................................13
12.8. Governing Law..................................................13
SIGNATURES....................................................................15
EXHIBITS
Exhibit A - Form of Warrant Certificate.................................16
Exhibit B - Subscription Form...........................................19
Exhibit C - Assignment Form.............................................21
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of December 31, 2001 (the "Agreement"),
between ANACOMP, INC., an Indiana corporation (the "Company") and Mellon
Investor Services LLC, a New Jersey limited liability company, as Warrant Agent
(the "Warrant Agent").
WHEREAS, in connection with the financial restructuring of the Company
pursuant to that certain Plan of Reorganization (the "Plan") and Disclosure
Statement dated August 29, 2001 (the "Disclosure Statement"), the Company
proposes to issue the Warrants (as defined herein), representing the right to
purchase up to an aggregate of 783,077 shares of its Class B Common Stock (as
defined herein), subject to adjustment as hereinafter provided, to the holders
of record of Common Stock as of the close of business on the Business Day
immediately preceding the Effective Date;
WHEREAS, the Company desires to appoint the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act in connection
with the issuance, transfer, exchange, replacement and exercise of the Warrant
Certificates (as defined herein) and other matters as provided herein;
NOW THEREFORE, in consideration of the foregoing and for the purpose
of defining the terms and provisions of the Warrants and the respective rights
and obligations thereunder of the Company and the holders from time to time of
the Warrants, the Company and the Warrant Agent hereby agree as follows:
1. DEFINITIONS
As used in this Warrant Agreement, the following terms have the
respective meanings set forth below:
"Additional Shares of Class B Common Stock" means all shares of Class
B Common Stock issued by the Company after the Effective Date, other than the
Warrant Stock.
"Business Day" means any day that is not a Saturday or Sunday or a day
on which banks are required or permitted to be closed in the State of New York
or the State of New Jersey.
"Commission" means the Securities and Exchange Commission or any other
federal agency then administering the Securities Act and other federal
securities laws.
"Class B Common Stock" means (except where the context otherwise
indicates) the Class B Common Stock, $0.01 par value, of the Company, and any
capital stock into which such Class B Common Stock may hereafter be changed,
whether as a result of any change in the capital structure of the Company or
otherwise.
"Current Warrant Price" means, in respect of a share of Class B Common
Stock at any date herein specified, the price at which a share of Class B Common
Stock may be purchased pursuant to this Warrant Agreement on such date. The
Current Warrant Price as of the Effective Date is $61.54, subject to adjustment
in accordance with the terms hereof.
"Effective Date" means the date of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, as the same shall be in effect from time to time.
"Exercise Period" means the period during which the Warrants are
exercisable pursuant to Section 2.1.
"Expiration Time" means 5:00 p.m., New York time, on the fifth (5th)
anniversary of the Effective Date.
"Holder" or "Holders" means the Person or Persons in whose name a
Warrant or Warrants are registered on the books of the Company maintained by the
Warrant Agent for such purpose.
"Other Property" shall have the meaning set forth in Section 4.3.
"Outstanding" means, when used with reference to Class B Common Stock,
at any date as of which the number of shares thereof is to be determined, all
issued shares of Class B Common Stock, except shares then owned or held by or
for the account of the Company or any subsidiary thereof, and shall include all
shares issuable in respect of outstanding scrip or any certificates representing
fractional interests in shares of Class B Common Stock.
"Person" means any individual, sole proprietorship, partnership, joint
venture, limited liability company, firm, trust, an incorporated organization,
association, corporation, institution, public benefit corporation, group, entity
or government entity (whether federal, state, county, city, municipal or
otherwise, including, without limitation, any instrumentality, division, agency,
body or department thereof) and shall include any successor (by merger or
otherwise) of such entity.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Warrant" means each of the Company's warrants issued pursuant to this
Agreement, each of which evidences the right to purchase one share of Class B
Common Stock, subject to adjustment as set forth in this Warrant Agreement, and
all warrants issued upon transfer, division or combination of, or in
substitution for, any thereof, including, without limitation, each of the
Company's warrants issued pursuant to the Plan in satisfaction of the Allowed
Section 510(b) Claims described therein.
"Warrant Certificate" means a certificate, substantially in the form
of Exhibit A hereto, representing one or more Warrants held by a Holder. All
Warrant Certificates shall at all times be identical as to terms and conditions
and date, except as to the number of Warrants represented thereby and the number
of shares of Class B Common Stock for which such Warrants may be exercised.
"Warrant Price" means an amount equal to (i) the number of shares of
Class B Common Stock being purchased upon exercise of Warrants pursuant to
Section 2.1, multiplied by (ii) the Current Warrant Price as of the date of such
exercise.
"Warrant Stock" means the shares of Class B Common Stock purchased by
the holders of the Warrants upon the exercise thereof.
2. EXERCISE OF WARRANT
2.1. Manner of Exercise. From and after the date hereof and until the
Expiration Time, a Holder may exercise Warrants, at any time and from time to
time, on any Business Day, for all or any part of the number of shares of Class
B Common Stock purchasable hereunder.
In order to exercise Warrants, a Holder shall deliver to the Warrant
Agent at its designated office located at 00 Xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx,
XX 00000 in accordance with Section 9, (i) a written notice of such Holder's
election to exercise such Warrants, which notice shall specify the number of
shares of Class B Common Stock to be purchased, (ii) payment of the Warrant
Price and (iii) the Warrant Certificate in respect of the Warrants being
exercised. Such notice shall be substantially in the form of the subscription
form attached hereto as Exhibit B, duly executed by such Holder or its
designated agent or attorney. Upon receipt thereof, the Company shall, as
promptly as practicable, and in any event within five (5) Business Days
thereafter, execute or cause to be executed and deliver or cause to be delivered
to such Holder a certificate or certificates representing the aggregate number
of full shares of Class B Common Stock issuable upon such exercise. The stock
certificate or certificates so delivered shall be, to the extent possible, in
such denomination or denominations as a Holder shall request in the notice and
shall be registered in the name of such Holder or, such other name as shall be
designated in the notice delivered to the Warrant Agent by such Holder. Warrants
shall be deemed to have been exercised and such certificate or certificates
shall be deemed to have been issued, and a Holder or any other Person so
designated to be named therein shall be deemed to have become a holder of record
of such shares for all purposes, as of the date the notice when the applicable
payment of the Warrant Price and the Warrant Certificate are received by the
Warrant Agent as described above and all taxes and charges required to be paid
by a Holder, if any, pursuant to Section 2.2 prior to the issuance of such
shares have been paid. If the Warrants represented by a Warrant Certificate
shall have been exercised in part, the Warrant Agent shall, at the time of
delivery of the certificate or certificates representing Warrant Stock, deliver
to a Holder a new Warrant Certificate evidencing the rights of such Holder to
purchase the unpurchased shares of Class B Common Stock called for by the
Warrant Certificate surrendered, which new Warrant Certificate shall in all
other respects be identical with the Warrant Certificate so surrendered, or, at
the written request of a Holder, appropriate notation may be made on the Warrant
Certificate so surrendered and the same returned to such Holder. Notwithstanding
any provision herein to the contrary, the Company shall not be required to
register shares in the name of any Person who acquired Warrants or any Warrant
Stock otherwise than in accordance with this Warrant Agreement.
Payment of the Warrant Price shall be made at the option of a Holder
by certified or official bank check or by such other method as the Company shall
have instructed the Warrant Agent in writing.
2.2. Payment of Taxes. All shares of Class B Common Stock issuable
upon the exercise of Warrants pursuant to the terms hereof shall be validly
issued, fully paid and nonassessable and without any preemptive rights. The
Company shall pay all expenses in connection with, and all taxes and other
governmental charges that may be imposed with respect to, the issue or delivery
thereof, unless such tax or charge is imposed by law upon a Holder, in which
case such taxes or charges shall be paid by such Holder. The Company shall not
be required, however, to pay any tax or other charge imposed in connection with
any transfer involved in the issue of any certificate for shares of Class B
Common Stock issuable upon exercise of Warrants in any name other than that of a
Holder, and in such case the Company shall not be required to issue or deliver
any stock certificate until such tax or other charge has been paid or it has
been established to the satisfaction of the Company that no such tax or other
charge is due. The Warrant Agent shall have no duty or obligation under this
Section or any other similar provision of this Agreement unless and until it is
satisfied that all such taxes and/or governmental charges have been paid in
full.
2.3. Fractional Shares. The Company shall not be required to issue a
fractional share of Class B Common Stock upon exercise of any Warrants. As to
any fraction of a share which a Holder of one or more Warrants, the rights under
which are exercised in the same transaction, would otherwise be entitled to
purchase upon such exercise, the number of shares that such Holder shall be
entitled to purchase shall reflect such fractional amount rounded downward to
the nearest whole share amount.
3. TRANSFER, DIVISION AND COMBINATION
3.1. Division and Combination. A Warrant Certificate may be exchanged
for a new Warrant Certificate and Warrants may be divided or combined with other
Warrants upon presentation of the Warrant Certificate(s) therefor at the
aforesaid office of the Warrant Agent, together with a written notice specifying
the names and denominations in which new Warrant Certificates are to be issued,
signed by a Holder or its designated agent or attorney. Subject to compliance
with this Section 3.1, as to any transfer which may be involved in such division
or combination, the Warrant Agent shall execute and deliver a new Warrant
Certificate(s) in exchange for the Warrant Certificate(a) representing the
Warrants to be divided or combined in accordance with such notice.
3.2. Expenses. The Company shall prepare, issue and deliver at its own
expense (other than taxes or governmental charges) the new Warrant Certificates
under this Section 3.
3.3. Maintenance of Books. The Company agrees to maintain, at its
aforesaid office or agency, books for the registration and the registration of
transfer of the Warrants.
4. ADJUSTMENTS
The number of shares of Class B Common Stock for which Warrants are
exercisable, and the price at which such shares may be purchased upon exercise
of Warrants, shall be subject to adjustment from time to time as set forth in
this Section 4. The Company shall give to the Warrant Agent and to each Holder a
notice of any event described below which requires an adjustment pursuant to
this Section 4 at the time of such event.
4.1. Stock Dividends, Subdivisions and Combinations. If at any time
the Company shall:
(a) take a record of the holders of its Class B Common Stock for the
purpose of entitling them to receive a dividend payable in, or make
any other distribution of, Additional Shares of Class B Common Stock
to the holders of its Class B Common Stock,
(b) subdivide its outstanding shares of Class B Common Stock into a larger
number of shares of Class B Common Stock, or
(c) combine its outstanding shares of Class B Common Stock into a smaller
number of shares of Class B Common Stock,
then (i) the number of shares of Class B Common Stock for which Warrants are
exercisable immediately after the occurrence of any such event shall be adjusted
to equal the number of shares of Class B Common Stock which a record holder of
the same number of shares of Class B Common Stock for which such Warrants are
exercisable immediately prior to the occurrence of such event would own or be
entitled to receive after the happening of such event, and (ii) the Current
Warrant Price shall be adjusted to equal (A) the Current Warrant Price
multiplied by the number of shares of Class B Common Stock for which such
Warrants are exercisable immediately prior to the adjustment divided by (B) the
number of shares for which such Warrants are exercisable immediately after such
adjustment.
4.2. Other Provisions Applicable to Adjustments under this Section.
The following provisions shall be applicable to the making of adjustments of the
number of shares of Class B Common Stock for which Warrants are exercisable and
the Current Warrant Price provided for in this Section 4:
(a) When Adjustments to Be Made. The adjustments required by this
Section 4 shall be made whenever and as often as any specified event
requiring an adjustment shall occur, except that any adjustment of the
number of shares of Class B Common Stock for which Warrants are exercisable
that would otherwise be required may be postponed up to, but not beyond the
date of exercise, if such adjustment either by itself or with other
adjustments not previously made adds or subtracts less than 1% of the
shares of Class B Common Stock for which Warrants are exercisable
immediately prior to the making of such adjustment. Any adjustment
representing a change of less than such minimum amount which is postponed
shall be carried forward and made as soon as such adjustment, together with
other adjustments required by this Section 4 and not previously made, would
result in a minimum adjustment or on the date of exercise. For the purpose
of any adjustment, any specified event shall be deemed to have occurred at
the close of business on the date of its occurrence.
(b) Fractional Interests. In computing adjustments under this Section
4, fractionaL interests in Common Stock shall be taken into account to the
nearest 1/100th of a share.
4.3. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another Person
(where the Company is not the surviving corporation or where there is a change
in or distribution with respect to the Common Stock of the Company), or sell,
transfer or otherwise dispose of all or substantially all its property, assets
or business to another Person and, pursuant to the terms of such reorganization,
reclassification, merger, consolidation or disposition of assets, shares of
common stock of the successor or acquiring Person, or any cash, shares of stock
or other securities or property of any nature whatsoever (including warrants or
other subscription or purchase rights) in addition to or in lieu of common stock
of the successor or acquiring Person ("Other Property"), are to be received by
or distributed to the holders of Class B Common Stock of the Company, then each
Holder shall have the right thereafter to receive, upon exercise of Warrants,
the number of shares of common stock of the successor or acquiring Person or of
the Company, if it is the surviving corporation, and Other Property receivable
upon or as a result of such reorganization, reclassification, merger,
consolidation or disposition of assets by a holder of the number of shares of
Class B Common Stock for which such Warrants are exercisable immediately prior
to such event. In case of any such reorganization, reclassification, merger,
consolidation or disposition of assets, the successor or acquiring corporation
(if other than the Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and condition of this
Warrant Agreement to be performed and observed by the Company and all the
obligations and liabilities hereunder, subject to such modifications as may be
deemed appropriate (as determined by resolution of the Board of Directors of the
Company) in order to provide for adjustments of shares of the Class B Common
Stock for which Warrants are exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 4. For purposes of
this Section 4.3, "common stock of the successor or acquiring corporation" shall
include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 4.3 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
4.4. Special Adjustments.
(a) In accordance with the Plan and in compliance with the
Confirmation Order issued by the United States Bankruptcy Court for the Southern
District of California in connection therewith, and notwithstanding any
provision contained herein or in any Warrant Certificate to the contrary, the
aggregate number of shares of Class B Common Stock that may be purchased upon
exercise of the Warrants issued and outstanding at any time hereunder shall be
reduced equally and ratably among all of the Holders of such Warrants on each
occasion that an additional Warrant Certificate of like tenor is issued by the
Company hereunder in satisfaction of any Allowed Section 510(b) Common Claim (as
such term is defined in the Plan), so that at all times no more than an
aggregate of 783,077 (the "Maximum Number") shares of Class B Common Stock may
be purchased upon exercise of the Warrants.
(b) The Maximum Number of shares of Class B Common Stock that may be
purchased upon exercise of the Warrants, and the Current Warrant Price shall be
subject to adjustment in accordance with the other provisions of this Section 4;
provided, however, that there shall be no adjustment in the Current Warrant
Price as a result of the issuance of an additional Warrant Certificate in
satisfaction of any Allowed Section 510(b) Claim.
(c) Each Warrant Certificate shall bear the following legend:
IN ACCORDANCE WITH THE PLAN OF REORGANIZATION, DATED AUGUST 29, 2001
(THE "PLAN"), OF THE COMPANY, AND THE CONFIRMATION ORDER ISSUED BY THE
UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
IN CONNECTION THEREWITH, AND NOTWITHSTANDING ANY PROVISION CONTAINED
IN THIS WARRANT CERTIFICATE TO THE CONTRARY, THE AGGREGATE NUMBER OF
SHARES OF CLASS B COMMON STOCK THAT MAY BE PURCHASED UPON THE EXERCISE
OF THIS WARRANT CERTIFICATE AND ALL WARRANT CERTIFICATES OF LIKE TENOR
THEN OUTSTANDING SHALL BE REDUCED EQUALLY AND RATABLY AMONG ALL OF THE
HOLDERS THEREOF ON EACH OCCASION THAT AN ADDITIONAL WARRANT
CERTIFICATE OF LIKE TENOR SHALL BE ISSUED BY THE COMPANY IN
SATISFACTION OF ANY ALLOWED SECTION 510(B) COMMON CLAIM (AS SUCH TERM
IS DEFINED IN THE PLAN). THE NUMBER OF SHARES OF CLASS B COMMON STOCK
THAT MAY BE PURCHASED UPON THE EXERCISE OF THIS WARRANT CERTIFICATE,
AS SET FORTH HEREIN, SHALL BE DEEMED TO BE AUTOMATICALLY REDUCED AS OF
THE RECORD DATE OF EACH SUCH ISSUANCE IN ACCORDANCE WITH THE TERMS SET
FORTH IN THE WARRANT AGREEMENT DESCRIBED HEREIN.
5. NOTICES TO WARRANT HOLDERS
5.1. Notice of Adjustments. Whenever the number of shares of Class B
Common Stock for which Warrants are exercisable, or whenever the price at which
a share of such Class B Common Stock may be purchased upon exercise of Warrants
shall be adjusted pursuant to Section 4, or whenever the Company shall issue an
additional Warrant Certificate in satisfaction of an Allowed Section 510(b)
Claim thereby necessitating a reduction in the number of Shares of Class B
Common Stock that may be purchased upon exercise of the other Warrants then
outstanding, the Company shall forthwith prepare a certificate to be executed by
the chief financial officer of the Company setting forth, in reasonable detail,
the event requiring the adjustment or reduction and the facts, computations, and
method by which such adjustment or reduction was calculated specifying the
number of shares of Class B Common Stock for which Warrants are exercisable and
(if such adjustment was made pursuant to Section 4.3) describing the number and
kind of any other shares of stock or Other Property for which Warrants are
exercisable, and any change in the purchase price or prices thereof, after
giving effect to such adjustment or reduction. The Company shall promptly cause
a signed copy of such certificate to be delivered to the Warrant Agent and to
each Holder in accordance with Section 12.2. The Company shall keep at its
office or agency designated pursuant to Section 9 copies of all such
certificates and cause the same to be available for inspection at said office
during normal business hours by any Holder or any prospective purchaser of
Warrants designated by a Holder thereof.
6. RESERVATION AND AUTHORIZATION OF CLASS B COMMON STOCK; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY
From and after the Effective Date, the Company shall at all times
reserve and keep available for issue upon the exercise of Warrants such number
of its authorized but unissued shares of Class B Common Stock as will be
sufficient to permit the exercise in full of all outstanding Warrants. All
shares of Class B Common Stock which shall be so issuable, when issued upon
exercise of any Warrant and payment therefor in accordance with the terms of
this Warrant Agreement, shall be duly and validly issued and fully paid and
nonassessable, and not subject to preemptive rights.
If any shares of Class B Common Stock required to be reserved for
issuance upon exercise of Warrants require registration or qualification with
any governmental authority or other governmental approval or filing under any
federal or state law before such shares may be so issued, the Company will in
good faith (subject to all applicable laws including, without limitation, those
rules and regulations promulgated under the Securities Act) and as expeditiously
as possible and at its expense endeavor to cause such shares to be duly
registered.
7. STOCK AND WARRANT TRANSFER BOOKS
The Company will not at any time, except upon dissolution, liquidation
or winding up of the Company, close its stock transfer books or Warrant transfer
books so as to result in preventing or delaying the exercise or transfer of any
Warrant.
8. LOSS OR MUTILATION
Upon receipt by the Company from any Holder of evidence satisfactory
to it of the ownership of and the loss, theft, destruction or mutilation of a
Warrant Certificate and indemnity satisfactory to it, and in case of mutilation
upon surrender and cancellation hereof, the Company will execute and deliver in
lieu hereof a new Warrant of like tenor to such Holder.
9. OFFICE OF Warrant Agent
As long as any of the Warrants remain outstanding, the Warrant Agent,
on behalf of the Company, shall maintain an office or agency where the Warrants
may be presented for exercise, registration of transfer, division or combination
as provided in this Warrant Agreement.
10. LIMITATION OF LIABILITY
No provision hereof, in the absence of affirmative action by a Holder
to purchase shares of Class B Common Stock, and no enumeration herein of the
rights or privileges of a Holder hereof, shall give rise to any liability of
such Holder for the purchase price of any Class B Common Stock or as a
stockholder of the Company, whether such liability is asserted by the Company or
by creditors of the Company.
11. CONCERNING THE WARRANT AGENT
The Warrant Agent undertakes the duties and obligations expressly
imposed by this Agreement (and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent) upon
the following terms and conditions, by all of which the Company and the Holders,
by their acceptance of the Warrants, shall be bound:
11.1. Correctness of Statement. The statements contained herein and in
the Warrant Certificates shall be taken as statements of the Company, and the
Warrant Agent shall not be liable for, and assumes no responsibility for the
correctness of any of the same. The Warrant Agent shall not be liable for, and
assumes no responsibility with respect to the distribution of the Warrant
Certificates except to follow the written instructions from the Company and the
Holders in accordance with the provisions hereunder.
11.2. Breach of Covenants. The Warrant Agent shall not be liable for,
nor be responsible for any failure of the Company to comply with any of the
covenants contained in this Agreement or in the Warrant Certificates to be
complied with by the Company.
11.3. Reliance on Counsel. The Warrant Agent may consult at any time
with counsel satisfactory to it (who may be counsel for the Company) and the
Warrant Agent shall incur no liability or responsibility to the Company or to
any Holder in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
11.4. Reliance on Documents. The Warrant Agent shall incur no
liability or responsibility to the Company or to any Holder for any action
taken, suffered or omitted in reliance on any Warrant Certificate, certificate
of shares, notice, resolution, waiver, consent, order certificate, or other
paper, document or instrument believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties. The Warrant Agent
shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due execution hereof
by the Warrant Agent) or in respect of the validity or execution of any Warrant
Certificate (except its countersignature thereof).
11.5. Compensation and Indemnification. The Company agrees to pay to
the Warrant Agent reasonable compensation for all services rendered by the
Warrant Agent (including its reasonable expenses and counsel fees and
disbursements) in the preparation, execution, delivery, amendment and
administration and the exercise and performance of its duties under this
Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this Agreement and to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability, damage,
judgment, fine, penalty, claim, demand, settlement, cost or expense incurred
without gross negligence, willful misconduct or bad faith on the part of the
Warrant Agent (each as finally determined by a court of competent jurisdiction)
for any action taken, suffered or omitted by the Warrant Agent in connection
with the acceptance and administration of this Agreement, including the costs
and expenses of defending against any claim of liability in the premises. The
indemnity provided herein shall survive the termination of this Agreement, the
termination and the expiration of the Warrants, and the resignation or removal
of the Warrant Agent. The costs and expenses incurred in enforcing this right of
indemnification shall be paid by the Company.
11.6. Legal Proceedings. The Warrant Agent shall be under no
obligation to institute any action, suit or legal proceeding or to take any
other action likely to involve expense unless the Company or one or more Holders
shall furnish the Warrant Agent with reasonable security and indemnity for any
costs and expenses which may be incurred, but this provision shall not affect
the power of the Warrant Agent to take such action as it may consider proper,
whether with or without any such security or indemnity. All rights of action
under this Agreement or under any of the Warrant Certificates may be enforced by
the Warrant Agent without possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be brought
in its name as Warrant Agent, and any recovery of judgment shall be for the
ratable benefit of the Holders, as their respective rights or interests may
appear.
11.7. Other Transactions in Securities of the Company. Except as
prohibited by law, the Warrant Agent, and any affiliate stockholder, director,
officer or employee of it, may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Warrant Agent
under this Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other Person.
11.8. Liability of Warrant Agent. The Warrant Agent shall act
hereunder solely as agent for the Company, and its duties shall be determined
solely by the provisions hereof. The Warrant Agent shall not be liable for
anything which it may do or refrain from doing in connection with this Agreement
except for its own gross negligence, willful misconduct or bad faith (each as
finally determined by a court of competent jurisdiction.) Anything to the
contrary notwithstanding, in no event shall the Warrant Agent be liable for
special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Warrant
Agent has been advised of the likelihood of such loss or damage. Any liability
of the Warrant Agent under this Warrant Agreement will be limited to the amount
of fees paid by the Company to the Warrant Agent.
11.9. Adjustments to the Number of Warrant Shares. The Warrant Agent
shall not at any time be under any duty or responsibility to any Holder to make
or cause to be made any adjustment of the Warrant Price or number of shares of
the Warrant Stock deliverable as provided in this Agreement, or to determine
whether any facts exist which may require any of such adjustments, or with
respect to the nature or extent of any such adjustments, when made, or with
respect to the method employed in making the same. The Warrant Agent shall not
be accountable with respect to the validity or value or the kind or amount of
any shares of Warrant Stock or of any securities or property which may at any
time be issued or delivered upon the exercise of any Warrant or with respect to
whether any such Warrant Stock or other securities will when issued be validly
issued and fully paid and nonassessable, and makes no representation with
respect thereto. The Warrant Agent may resign its duties and be discharged from
all further duties, obligations and liabilities hereunder, after giving thirty
(30) days prior written notice to the Company. At least fifteen (15) days prior
to the date such resignation is to become effective, the Warrant Agent shall
cause a copy of such notice of resignation to be mailed to the Holder of each
Warrant Certificate at the Company's expense. Upon such resignation, or any
inability of the Warrant Agent to act as such hereunder, the Company shall
appoint a new warrant agent in writing ( the "successor warrant agent"). The
successor warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the Warrant Agent,
without further assurance, conveyance, act or deed; but if for any reason it
shall be necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the Company
and shall be legally and validly executed and delivered by the resigning Warrant
Agent.
12. MISCELLANEOUS
12.1. Nonwaiver. No course of dealing or any delay or failure to
exercise any right hereunder on the part of any Holder shall operate as a waiver
of such right or otherwise prejudice Holder's rights, powers or remedies.
12.2. Notice Generally. Any notice, demand, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Warrant Agreement shall be sufficiently given
or made if in writing and either (i) delivered in person with receipt
acknowledged, (ii) sent by registered or certified mail, return receipt
requested, postage prepaid, or (iii) by telecopy and confirmed by telecopy
answer back, addressed as follows:
(a) If to any Holder or holder of Warrant Stock, at its last known address
appearing on the books of the Company maintained by the Warrant Agent
for such purpose;
(b) If to the Warrant Agent, at 00 Xxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx, XX
00000, with a copy to Mellon Investor Services LLC, at 00 Xxxxxxxxxx
Xxxx, Xxxxxxxxxx Xxxx, XX 00000; or
(c) If to the Company, at 00000 Xxxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxxxx
00000;
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback, or three (3) Business Days after the same shall have been deposited
in the United States mail. Failure or delay in delivering copies of any notice,
demand, request, approval, declaration, delivery or other communication to the
person designated above to receive a copy shall in no way adversely affect the
effectiveness of such notice, demand, request, approval, declaration, delivery
or other communication.
12.3. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions set forth herein, and the Warrant Agent hereby accepts such
appointment.
12.4. Concerning the Warrant Agent:
(a) Whenever in the performance of its duties under this Agreement the
Warrant Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by
a certificate signed by an Officer and delivered to the Warrant Agent;
and such certificate shall be full authorization to the Warrant Agent,
and the Warrant Agent shall incur no liability for or in respect of
any action taken, suffered or omitted in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(b) The Warrant Agent is hereby authorized and directed to accept advice
or instructions with respect to the performance of its duties
hereunder from any Officer, and to apply to any Officer for advice or
instructions in connection with its duties hereunder, and such advice
or instructions shall be full authorization and protection to the
Warrant Agent and the Warrant Agent shall incur no liability for or in
respect of any action taken, suffered or omitted by it in accordance
with the advice or instructions of any Officer or for any delay in
acting while waiting for such advice or instructions.
(c) The Warrant Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys or agents, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct
of any such attorneys or agents or for any loss to the Company or any
other Person resulting from any such act, default, neglect or
misconduct, absent gross negligence, bad faith or willful misconduct
(each as finally determined by a court of competent jurisdiction) in
the selection and continued employment thereof.
(d) No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of its rights if it believes that repayment of such funds or
adequate indemnification against such risk or liability is not assured
it.
12.5. Successors and Assigns. This Warrant Agreement and the rights
evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company, the Warrant Agent and the successors and assigns of
each Holder. The provisions of this Warrant Agreement are intended to be for the
benefit of all Holders from time to time of a Warrant or Warrants and holders of
Warrant Stock, and shall be enforceable by any such Holder or holder of Warrant
Stock.
12.6. Amendment. The Company and the Warrant Agent may from time to
time supplement or amend this Warrant Agreement without the approval of any
Holders in order to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions or change in regard to matters or
questions arising hereunder or any supplement agreement which the Company and
the Warrant Agent may deem necessary or desirable and which shall materially not
adversely affect the interests of the Holders.
12.7. Severability. Wherever possible, each provision of this Warrant
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Warrant Agreement.
12.8. Headings. The headings used in this Warrant Agreement are for
the convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant Agreement.
12.9. Governing Law. This Warrant Agreement shall be governed by the
laws of the State of New York, without regard to the provisions thereof relating
to conflict of laws.
IN WITNESS WHEREOF, the Company and the Warrant Agent have caused this
Warrant Agreement to be duly executed as of the date first written above.
ANACOMP, INC.
By: ___________________________________________
Name:
Title:
MELLON INVESTOR SERVICES LLC
By: ___________________________________________
Name:
Title:
EXHIBIT A
FORM OF WARRANT CERTIFICATE
IN ACCORDANCE WITH THE PLAN OF REORGANIZATION, DATED AUGUST 29,
2001 (THE "PLAN"), OF THE COMPANY, AND THE CONFIRMATION ORDER
ISSUED BY THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA IN CONNECTION THEREWITH, AND
NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS WARRANT
CERTIFICATE TO THE CONTRARY, THE AGGREGATE NUMBER OF SHARES OF
CLASS B COMMON STOCK THAT MAY BE PURCHASED UPON THE EXERCISE OF
THIS WARRANT CERTIFICATE AND ALL WARRANT CERTIFICATES OF LIKE
TENOR THEN OUTSTANDING SHALL BE REDUCED EQUALLY AND RATABLY
AMONG ALL OF THE HOLDERS THEREOF ON EACH OCCASION THAT AN
ADDITIONAL WARRANT CERTIFICATE OF LIKE TENOR SHALL BE ISSUED BY
THE COMPANY IN SATISFACTION OF ANY ALLOWED SECTION 510(B)
COMMON CLAIM (AS SUCH TERM IS DEFINED IN THE PLAN). THE NUMBER
OF SHARES OF CLASS B COMMON STOCK THAT MAY BE PURCHASED UPON
THE EXERCISE OF THIS WARRANT CERTIFICATE, AS SET FORTH HEREIN,
SHALL BE DEEMED TO BE AUTOMATICALLY REDUCED AS OF THE RECORD
DATE OF EACH SUCH ISSUANCE IN ACCORDANCE WITH THE TERMS SET
FORTH IN THE WARRANT AGREEMENT DESCRIBED HEREIN.
WARRANT
ANACOMP, INC.
No. __________________ [_____] Shares of Class B Common Stock
Incorporated Under the Laws of the State of Indiana
THIS CERTIFIES THAT, for value received, ______________________, the
registered holder hereof or registered assigns (the "Holder"), is entitled to
purchase from ANACOMP, INC., an Indiana corporation (the "Company"), at the time
commencing as set forth in Section 2.1 of the Warrant Agreement (as defined
below), and until 5:00pm New York time on December 31, 2006 (the "Expiration
Time"), at the purchase price of $61.54 (subject to adjustment as described
below) per whole share (the "Current Warrant Price"), the number of fully paid
and nonassessable shares of Class B Common Stock, par value $0.01 per share (the
"Common Stock"), of the Company set forth above. The number of shares
purchasable upon exercise of each Warrant and the Current Warrant Price per
whole share shall be subject to adjustment from time to time as set forth in the
Warrant Agreement referred to below.
The Warrants represented hereby may be exercised in whole or in part
by presentation of this Warrant Certificate with the Subscription Form included
herein duly executed, which signature shall be guaranteed by a bank or trust
company having an office or correspondent in the United States or a broker or
dealer which is a member of a registered securities exchange or the National
Association of Securities Dealers, Inc., and simultaneous payment of the Current
Warrant Price multiplied by the number of Warrants being exercised at the
designated office of Mellon Investor Services LLC (the "Warrant Agent") at 00
Xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx, XX 00000. Payment of such price shall be made
at the option of the Holder hereof by certified or official bank check.
The Warrants represented hereby are of a duly authorized issue of
Warrants evidencing the right to purchase an aggregate of 783,077 shares of
Class B Common Stock and are issued under and in accordance with a Warrant
Agreement (the "Warrant Agreement"), dated as of December 31, 2001, between the
Company and the Warrant Agent and are subject to the terms and provisions
contained in the Warrant Agreement, to all of which the Holder of this Warrant
Certificate by acceptance hereof consents. A copy of the Warrant Agreement is
available for inspection at the principal office of the Company.
Upon any partial exercise of the Warrants represented hereby, there
shall be countersigned and issued to the Holder hereof a new Warrant Certificate
in respect of the shares of Class B Common Stock as to which the Warrants
represented hereby shall not have been exercised. The Warrants represented
hereby may be exchanged at the office of the Warrant Agent by surrender of this
Warrant Certificate properly endorsed either separately or in combination with
one or more other Warrant Certificates for one or more new Warrant Certificates
representing Warrants entitling the Holder thereof to purchase the same
aggregate number of shares as were purchased on exercise of the Warrant or
Warrants exchanged. No fractional shares will be issued upon the exercise of
these Warrants. Subject to compliance with applicable securities laws, the
Warrants represented hereby are transferable at the office of the Warrant Agent,
in the manner and subject to the limitations set forth in the Warrant Agreement.
The Holder hereof may be treated by the Company, the Warrant Agent and
all other persons dealing with this Warrant Certificate as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented hereby, or to the transfer hereof on the books of the Company, any
notice to the contrary notwithstanding, and until such transfer on such books,
the Company may treat the Holder hereof as the owner for all purposes.
The Warrants represented hereby do not entitle any Holder hereof to
any of the rights of a shareholder of the Company.
The Warrants represented hereby shall not be valid or obligatory for
any purpose until this Warrant Certificate shall have been countersigned by the
Warrant Agent.
Witness the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers.
Dated: [_______________]
Countersigned and Registered:
MELLON INVESTOR SERVICES LLC,
as Warrant Agent
By:____________________________________________
Authorized Signature
ANACOMP, INC.
By:________________________________________
President and Chief Executive Officer
Attest:____________________________________
Secretary
EXHIBIT B
SUBSCRIPTION FORM
[To be executed only upon exercise of a Warrant or Warrants]
The undersigned registered owner of the Warrant(s) represented by
Warrant Certificate No. [________] irrevocably exercises [_______] Warrant(s)
for the purchase of [_______] shares of Class B Common Stock of ANACOMP, INC.
and herewith makes payment therefor, all at the price and on the terms and
conditions specified in the Warrant Agreement and requests that certificates for
the shares of Class B Common Stock hereby purchased (and any securities or other
property issuable upon such exercise) be issued in the name of and delivered to
[_____________] whose address is [__________________] and, if such shares of
Class B Common Stock shall not include all of the shares of Class B Common Stock
issuable as provided in the Warrant Certificate, that a new Warrant Certificate
of like tenor and date for the balance of the shares of Class B Common Stock
issuable thereunder be delivered to the undersigned.
___________________________________
(Name of Registered Owner)
___________________________________
(Signature of Registered Owner)
___________________________________
(Xxxxxx Xxxxxxx)
__________________________________ ___________________________________
(Signature Guarantee) (City)(State) (Zip Code)
NOTICE: The signature on this subscription form must correspond with the name as
written upon the face of the Warrant in every particular, without alteration or
enlargement or any change whatsoever.
Witness the facsimile seal of the Company and the facsimile signatures
of its duly authorized officer.
Dated: [ ]
------
Countersigned and Registered:
MELLON INVESTOR SERVICES LLC,
as Warrant Agent
By: ___________________________________________
Authorized Signature
[Name]
[Title]
ANACOMP, INC.
By: _____________________________________
President and Chief Executive Officer
Attest:__________________________________
Secretary
EXHIBIT C
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of the Warrant(s)
represented by Warrant Certificate No. [_______] hereby sells, assigns and
transfers unto the Assignee named below all of the rights of the undersigned
under the Warrant Agreement, with respect to the number of shares of Class B
Common Stock set forth below:
Name and Address of Assignee No. of Shares of Common Stock
---------------------------- -----------------------------
and does hereby irrevocably constitute and appoint [_____________________]
attorney-in-fact to register such transfer on the books of ANACOMP, INC.
maintained for the purpose, with full power of substitution in the premises.
Dated:___________________ Print Name: _______________________________
Signature: _______________________________
Witness: _______________________________
------------------------------------
(Signature Guarantee)
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the Warrant in every particular, without alteration or
enlargement or any change whatsoever.
