EXHIBIT 1.1
$200,000,000
Jostens, Inc.
Medium-Term Notes
DISTRIBUTION AGREEMENT
August 30, 1999
Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Banc One Capital Markets, Inc.
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
X. X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introduction. Jostens, Inc., a Minnesota corporation (the "Issuer"),
confirms its agreement with each of you (individually, a "Distributor" and
collectively, the "Distributors") with respect to the issue and sale from time
to time by the Issuer of its medium-term notes registered under the registration
statement referred to in Section 2(a) (any such medium-term notes being
hereinafter referred to as the "Securities," which expression shall, if the
context so admits, include any permanent global Security). Securities may be
offered and sold pursuant to Section 3 of this Agreement in an aggregate amount
not to exceed the amount of Registered Securities (as defined in Section 2(a)
hereof) registered pursuant to such registration statement reduced by the
aggregate amount of any other Registered Securities sold otherwise than pursuant
to Section 3 of this Agreement. The Securities will be issued under an
indenture, dated as of August 30, 1999 (the "Indenture"), between the Issuer and
Norwest Bank Minnesota, N.A., as trustee (the "Trustee").
The Securities shall have the terms described in the Prospectus referred to
in Section 2(a) as it may be amended or supplemented from time to time,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"). Securities will be
issued, and the terms thereof established, from time to time by the Issuer in
accordance with the Indenture and the Procedures (as defined in Section 3(d)
hereof).
2. Representations and Warranties of the Issuer. The Issuer represents and
warrants to, and agrees with, each Distributor as follows:
(a) A registration statement (No. 333-83649), including a prospectus,
relating to $150,000,000 aggregate principal amount of debt securities of
the Issuer, and a registration statement (No. 33-40233) relating to
$50,000,000 aggregate principal amount of debt securities of the Issuer,
including the Securities (the "Registered Securities") (including a
prospectus which, as supplemented from time to time, shall be used in
connection with sales of the Securities) have been filed with the
Securities and Exchange Commission (the "Commission") and have been
declared effective under the Securities Act of 1933, as amended (the
"Act"). Such registration statements, as amended as of the Closing Date (as
defined in Section 3(e) hereof), are hereinafter collectively referred to
as the "Registration Statement," and the prospectus included in
registration statement no. 333-83649 as supplemented so as generally to
describe the Securities and the terms of the offering of the Securities,
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus." Any reference in this Agreement to
amending or supplementing the Prospectus shall be deemed to include the
filing of materials incorporated by reference in the Prospectus after the
Closing Date and any reference in this Agreement to any amendment or
supplement to the Prospectus shall be deemed to include any such materials
incorporated by reference in the Prospectus after the Closing Date.
(b) On the effective date of each part of the Registration Statement,
such Registration Statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the Closing Date, and at each of the times of acceptance and of delivery
referred to in Section 6(a) hereof and at each of the times of amendment or
supplementing referred to in Section 6(b) hereof (the Closing Date and each
such time being herein sometimes referred to as a "Representation Date"),
each part of the Registration Statement and the Prospectus as then amended
or supplemented will conform in all material respects to the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Issuer by any
Distributor specifically for use therein.
(c) The Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Minnesota, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Issuer is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where the
failure to so qualify would not have a material adverse effect on the
business, financial condition, results of operations or properties of the
Issuer and its subsidiaries taken as a whole (a "Material
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Adverse Effect").
(d) Each subsidiary of the Issuer has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each subsidiary of the Issuer is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification except where the failure to so qualify would not have a
Material Adverse Effect; all of the issued and outstanding capital stock of
each subsidiary of the Issuer has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock of each
subsidiary owned by the Issuer, directly or through subsidiaries, is owned
free from liens, encumbrances and defects.
(e) The Indenture has been duly authorized, executed and delivered by
the Issuer and duly qualified under the Trust Indenture Act and constitutes
a valid and legally binding obligation of the Issuer enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether enforceability is considered in a
proceeding at law or in equity); the Securities have been duly authorized,
and when the Securities have been delivered and paid for pursuant to this
Agreement, the Securities will have been duly executed, authenticated,
issued and delivered and will conform in all material respects to the
description thereof contained in the Prospectus and will constitute valid
and legally binding obligations of the Issuer enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether enforceability is considered in a proceeding at law
or in equity).
(f) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Securities by the Issuer,
except such as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under state securities or Blue
Sky laws.
(g) The execution, delivery and performance of the Indenture and this
Agreement do not, and the completion, execution and issuance of each
particular Security in accordance with the Indenture, the sale by the
Issuer of such Security in accordance with this Agreement and compliance
with the terms and provisions thereof will not, result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the Issuer or any subsidiary of the Issuer or any of their properties, or
any agreement or instrument to which the Issuer or any such subsidiary is a
party or by which the Issuer or any such subsidiary is bound or to which
any of the properties of the Issuer or any such subsidiary is subject and
which is material to the issuer and its subsidiaries taken as a whole, or
the
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charter or by-laws of the Issuer or any such subsidiary, and the Issuer has
full power and authority to authorize, issue and sell the Securities as
contemplated by this Agreement.
(h) This Agreement (including any agreement with respect to the
offering and sale of particular Securities as contemplated by Section 3)
has been duly authorized, executed and delivered by the Issuer.
(i) Except as disclosed in the Prospectus, the Issuer and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Issuer and its subsidiaries hold
any leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to
be made thereof by them.
(j) The Issuer and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Issuer or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(k) No labor dispute with the employees of the Issuer or any
subsidiary exists or, to the knowledge of the Issuer, is imminent that is
reasonably likely to result in a Material Adverse Effect.
(l) The Issuer and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Issuer or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(m) Except as disclosed in the Prospectus, neither the Issuer nor any
of its subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"environmental laws"), to the knowledge of the Issuer owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Issuer is not aware of any pending investigation which might lead to
such a claim.
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(n) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Issuer, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Issuer or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Issuer to perform its obligations under
the Indenture or this Agreement, or which are otherwise material in the
context of the sale of the Securities; and, to the Issuer's knowledge, no
such actions, suits or proceedings are threatened or contemplated.
(o) The financial statements included or incorporated by reference in
the Registration Statement and Prospectus present fairly the financial
position of the Issuer and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with U.S.
generally accepted accounting principles applied on a consistent basis; and
the schedules included in the Registration Statement present fairly the
information required to be stated therein.
(p) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the financial condition, business, properties or results of operations of
the Issuer and its subsidiaries taken as a whole.
(q) The Issuer is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company," as
defined in the Investment Company Act of 1940.
(r) Neither the Issuer nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes, and the Issuer
agrees to comply with such Section if prior to the completion of the
distribution of the Securities it commences doing such business.
(s) Immediately after any sale of Securities by the Issuer hereunder
or under any Terms Agreement, the aggregate amount of Securities which
shall have been issued and sold by the Issuer hereunder or under any Terms
Agreement and of any debt securities of the Issuer (other than such
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement.
3. Appointment as Distributors; Agreement of Distributors; Solicitations.
(a) (i) Subject to the terms and conditions stated herein, the Issuer
hereby appoints each of the Distributors as the agents of the Issuer for
the purpose of soliciting or receiving offers to purchase the Securities to
be issued by the Issuer during any Marketing Time. For purposes of this
Agreement "Marketing Time" shall mean any time when no suspension of
solicitation of offers to purchase Securities pursuant to Section 3(c) or
Section 4(c) shall be in effect or any time when either any Distributor
shall own
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any Securities with the intention of reselling them or the Issuer has
accepted an offer to purchase Securities but the related settlement has not
occurred.
(ii) So long as this Agreement shall remain in effect with respect to
any Distributor, the Issuer shall not, without the consent of any such
Distributor, solicit or accept offers to purchase Securities otherwise than
to or through one of the Distributors; provided, however, that, subject to
all of the terms and conditions of this Agreement, the foregoing shall not
be construed to prevent the Issuer from selling at any time any Registered
Securities in a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of such
Registered Securities; and provided, further, that the Issuer reserves the
right from time to time (i) to solicit and accept offers to purchase
Securities directly from, and sell Securities directly to an investor, and
(ii) to accept a specific offer to purchase Securities solicited by a
dealer other than the Distributors (each an "Other Dealer"), without
obtaining the prior consent of any of the Distributors, provided that (x)
the Issuer shall give each of the Distributors notice of its decision to
accept such an offer to purchase Securities in advance of such acceptance,
(y) any Other Dealer shall agree to be bound by and subject to the terms
and conditions of this Agreement binding on the Distributors (including the
commission schedule set forth on Exhibit A), and (z) so long as this
Agreement remains in effect, the Issuer shall not, without the prior
written consent of the Distributors (which shall not be unreasonably
withheld), appoint any other agent or dealer for the purpose of soliciting
or receiving offers to purchase Securities on a continuous basis. In the
case of any sale of Securities by the Issuer directly to an investor and
not resulting from a solicitation made by any Distributor, no commission
will be payable with respect to such sale.
(b) (i) On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth, the each
Distributor agrees, as an agent of the Issuer, to use reasonable efforts
when requested by the Issuer to solicit offers to purchase the Securities
upon the terms and conditions set forth in the Prospectus, as from time to
time amended or supplemented.
(ii) Unless otherwise expressly agreed by a Distributor and the
Issuer, such Distributor will solicit offers to purchase Securities from
the Issuer through such Distributor, acting as agent, in accordance with
the provisions of this Agreement. In such event, such Distributor shall
communicate to the Issuer, orally or in writing, each reasonable offer to
purchase Securities received by it as agent; and the Issuer shall have the
sole right to accept offers to purchase the Securities and may reject any
such offer, in whole or in part. Each Distributor shall have the right, in
its discretion reasonably exercised, without notice to the Issuer, to
reject any offer to purchase Securities received by it as such agent, in
whole or in part, and any such rejection shall not be deemed a breach of
its agreement contained herein. At the time of delivery of, and payment
for, any Securities sold by the Issuer as a result of a solicitation made
by, or offer to purchase received by, a Distributor, acting on an agency
basis, the Issuer agrees to pay such Distributor a commission in accordance
with the schedule set forth in Exhibit A hereto.
(iii) No Distributor shall have any obligation to purchase Securities
from the Issuer; however, the Issuer and one or more Distributors (each, a
"Presenting
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Distributor") may agree from time to time that such Presenting Distributor
will purchase Securities as principal for resale to investors and other
purchasers selected by such Presenting Distributors. If expressly agreed by
the Issuer and the Presenting Distributors, offers to sell Securities
transmitted by the Distributors and accepted by the Issuer may constitute
acceptance of an offer to sell such Securities to the Presenting
Distributors for resale. Each sale of Securities to a Distributor as
principal shall be made in accordance with the terms of this Agreement and
(unless the Issuer and the Presenting Distributors shall otherwise agree) a
Terms Agreement, in substantially the form of Exhibit B hereto (a "Terms
Agreement"), which will provide for the sale of such Securities to, and the
purchase and reoffering thereof by, the Distributor. In addition, if so
specified in a Terms Agreement executed by the Issuer and one or more
Presenting Distributors, such Presenting Distributors shall act as
representative or representatives of the several underwriters named in such
Terms Agreement for resale of the Securities specified in such Terms
Agreement upon the terms and subject to the conditions specified in such
Terms Agreement, this Agreement and in the Prospectus, as supplemented by
the applicable Pricing Supplement. It is understood that the Distributors
and any underwriters for which they may act as representative propose that
they will offer any Securities which they agree to purchase as principal
for sale as set forth in the Prospectus, as supplemented by the applicable
Pricing Supplement. Each purchase of Securities by a Distributor as
principal shall, unless otherwise agreed, be at a discount from the
principal amount of each such Security equivalent to the applicable
commission set forth in Exhibit A hereto.
(iv) In the event a Distributor purchases Securities as principal
pursuant to Section 3(b)(iii), such Distributor is authorized to engage the
services of any other brokers or dealers in connection with the offer or
sale of such Securities and may reallow any portion of the discount
received from the Issuer to such brokers or dealers. No Distributor shall
offer or sell Securities on an agency basis through any sub-agents without
the consent of the Issuer, which shall not be unreasonably withheld.
(v) No Distributor shall have any responsibility for maintaining
records with respect to the aggregate principal amount of Securities sold,
or otherwise monitoring the availability of Securities for sale under the
Registration Statement.
(vi) No Security which the Issuer has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by
the Issuer, until such Security shall have been delivered to the purchaser
thereof against payment by such purchaser.
(c) Upon receipt of notice from the Issuer as contemplated by Section
4(c) hereof, each Distributor shall suspend its solicitation of offers to
purchase Securities until such time as the Issuer shall have furnished it
with an amendment or supplement to the Registration Statement or the
Prospectus, as the case may be, contemplated by Section 4(c) and shall have
advised such Distributor that such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time
for any period of
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time or permanently. Upon receipt of at least one Business Day's prior
notice from the Issuer, the Distributors will forthwith suspend
solicitation of offers to purchase Securities from the Issuer until such
time as the Issuer has advised the Distributors that such solicitation may
be resumed. For the purpose of the foregoing sentence, "Business Day" shall
mean any day that is not a Saturday or Sunday, and that in The City of New
York is not a day on which banking institutions generally are authorized or
obligated by law or executive order to close. During such period, the
Issuer shall not be required to comply with the provisions of Sections
6(b), (c) and (d). Upon advising the Distributors that such solicitation
may be resumed, however, the Issuer shall simultaneously provide the
documents required to be delivered by Sections 6(b), (c) and (d) as if the
date of resumption were a Representation Date, and the Distributors shall
have no obligation to solicit offers to purchase the Securities until such
documents have been received by them.
(d) Administrative procedures respecting the sale of Securities (the
"Procedures") shall be agreed upon from time to time by the Distributors
and the Issuer. The initial Procedures, which are set forth in Exhibit C
hereto, shall remain in effect until changed by agreement among the Issuer
and the Distributors. Each Distributor and the Issuer agree to perform the
respective duties and obligations specifically provided to be performed by
each of them herein and in the Procedures. The Issuer will furnish to the
Trustee a copy of the Procedures as from time to time in effect.
(e) The documents required to be delivered by Section 5 hereof shall
be delivered at the office of the Issuer, 0000 Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, not later than 10:00 A.M., local time, on the date
of this Agreement or at such later time as may be mutually agreed by the
Issuer and the Distributors, which in no event shall be later than the time
at which the Distributors commence solicitation of purchases of Securities
hereunder, such time and date being herein called the "Closing Date." For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the
settlement date (if later than the otherwise applicable settlement date)
shall be the date for payment of funds and delivery of securities for all
the Securities sold pursuant to an offering of Securities having identical
terms (including the issue date) and terms of sale (whether or not set
forth in a single Terms Agreement).
4. Certain Agreements of the Issuer. The Issuer agrees with the
Distributors that it will furnish to Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel
for the Distributors, one signed copy of the Registration Statement, including
all exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Securities,
(a) The Issuer will prepare a Pricing Supplement with respect to any
Securities to be offered and sold to or through one or more Distributors
pursuant to this Agreement and, after approval of such Pricing Supplement
by such Distributor or Distributors, will file such Pricing Supplement with
the Commission pursuant to and in accordance with Rule 424(b) under the
Act.
(b) The Issuer will advise each Distributor promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and
will afford the Distributors a reasonable opportunity to comment on any
such proposed amendment or
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supplement (other than any Pricing Supplement that relates to Securities
not purchased through or by such Distributor), and if the Issuer effects
any amendment or supplementation of the Registration Statement or the
Prospectus to which a Distributor objects, such Distributor shall be
relieved of its obligations under Section 3(b) to solicit offers to
purchase Securities until such time as the Issuer shall have filed such
further amendments or supplements such that such Distributor is reasonably
satisfied with the Registration Statement and the Prospectus, as then
amended or supplemented; and the Issuer will also advise each Distributor
promptly of the filing and effectiveness of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part thereof
and will use commercially reasonable efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or if it is necessary at any such time to amend the Prospectus
to comply with the Act, the Issuer will promptly notify each Distributor by
telephone (with confirmation in writing) to suspend solicitation of offers
to purchase the Securities and to cease making offers or sales of
Securities which a Distributor may then own as principal; and if the Issuer
shall decide to amend or supplement the Registration Statement or the
Prospectus, it will promptly advise each Distributor by telephone (with
confirmation in writing) and, subject to the provisions of subsection (a)
of this Section, will promptly prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Notwithstanding the foregoing,
if, at the time any such event occurs or it becomes necessary to amend the
Prospectus to comply with the Act, any Distributor shall own any of the
Securities with the intention of reselling them, or the Issuer has accepted
an offer to purchase Securities but the related settlement has not
occurred, the Issuer, subject to the provisions of subsection (a) of this
Section, will promptly prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Distributors' consent to,
nor their delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
(d) The Issuer will file promptly all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act. In addition, on or prior to the date on which the Issuer
makes any announcement to the general public concerning earnings or
concerning any other event which is required to be described, or which the
Issuer proposes to describe, in a document filed pursuant to the Exchange
Act, the Issuer will furnish the information contained or to be contained
in such announcement to each Distributor or will notify each Distributor of
the availability thereof. At any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Issuer will,
subject to the provisions of subsections (a) and (b) of this Section,
promptly cause the Prospectus to be amended or supplemented to reflect the
information contained in any such announcement made (i) during such time or
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(ii) prior to such time and not yet incorporated by reference into the
Prospectus as of such time. The Issuer also will furnish each Distributor
with copies of all press releases or announcements to the general public or
will notify each Distributor of the availability thereof.
(e) The Issuer will notify each Distributor as soon as practicable
(but in any case before any offer to purchase Securities is accepted by the
Issuer) of any downgrading in the rating of any debt securities of the
Issuer or any proposal to downgrade the rating of any debt securities of
the Issuer by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Issuer (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading of such rating), as soon as the Issuer learns of such
downgrading, proposal to downgrade or public announcement.
(f) As soon as practicable, but not later than 16 months, after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), the Issuer will make generally available to its
securityholders an earnings statement which will satisfy the provisions of
Section 11(a) of the Act.
(g) At any time when a prospectus relating to the Securities is
required to be delivered under the Act, the Issuer will furnish to each
Distributor copies of the Registration Statement, including all exhibits,
any related preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents (including any Pricing Supplement), in each case as soon as
available and in such quantities as are reasonably requested.
(h) The Issuer will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such states and other jurisdictions in the United States as the
Distributors designate (or in such foreign jurisdiction as the Issuer and
any Distributor may mutually agree) and will continue such qualifications
in effect so long as required for the distribution; provided, however, that
the Issuer shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified.
(i) So long as any Securities are outstanding, the Issuer will furnish
to the Distributors (or notify the Distributors of the availability of),
(i) as soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year, (ii) as soon as available, a
copy of each report or definitive proxy statement of the Issuer filed with
the Commission under the Exchange Act or mailed to stockholders, and (iii)
from time to time, such other information concerning the Issuer as the
Distributors may reasonably request.
(j) The Issuer will pay, or reimburse each Distributor for, (i) the
fees, disbursements and expenses of the Issuer's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary
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Prospectus, the Prospectus and any Pricing Supplements and all other
amendments and supplements thereto and the mailing and delivering of copies
thereof to such Distributor; (ii) the reasonable fees, disbursements and
expenses of counsel for the Distributors in connection with the
establishment of the program contemplated hereby, any opinions to be
rendered by such counsel hereunder and under any Terms Agreement and the
transactions contemplated hereunder and under any Terms Agreement; (iii)
the cost of printing, producing or reproducing this Agreement, any Terms
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of
the Securities; (iv) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as
provided in Section 4(b) hereof, including the fees and disbursements of
counsel for the Issuer in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (v) any fees
charged by securities rating services for rating the Securities; (vi) any
filing fees incident to, and the reasonable fees and disbursements of
counsel for the Distributors in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vii) the cost of preparing the Securities; (viii) the
fees and expenses of any Trustee and any Distributor of any Trustee and any
transfer or paying agent of the Issuer and the fees and disbursements of
counsel for any Trustee or such agent in connection with any Indenture and
the Securities; (ix) any advertising expenses connected with the
solicitation of offers to purchase and the sale of Securities so long as
such advertising expenses have been approved by the Issuer; and (x) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section. Except as provided in Sections 7 and 8 of this Agreement, each
Distributor shall pay all other expenses it incurs.
(k) Between the date on which any Distributor agrees to purchase
Securities from the Issuer as principal for resale and the date of delivery
of such Securities, the Issuer will not, without the prior written consent
of such Distributor, offer or sell, or enter into any agreement to sell,
pledge, or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to any of its
debt securities (other than such Securities) in the United States, other
than borrowings under the Issuer's revolving credit agreements and lines of
credit, the private placement of securities and issuances of its commercial
paper, or publicly disclose the intention to make any such offer, sale,
pledge or disposition or filing.
5. Conditions of Obligations. The obligations of each Distributor, as agent
of the Issuer, under this Agreement at any time to solicit offers to purchase
the Securities and to purchase Securities from the Issuer as principal is
subject to the accuracy, on the date hereof, on each Representation Date and on
the date of each such solicitation, of the representations and warranties of the
Issuer herein, to the accuracy, on each such date, of the statements of the
Issuer's officers made pursuant to the provisions hereof, to the performance, on
or prior to each such date, by the Issuer of its obligations hereunder, and to
each of the following additional conditions precedent:
(a) The Prospectus, as amended or supplemented as of any
Representation Date or date of such solicitation, as the case may be, shall
have been filed with the
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Commission in accordance with the Rules and Regulations and no stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Issuer or any Distributor,
shall be contemplated by the Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended
or supplemented as of any Representation Date or date of such solicitation,
as the case may be, shall contain any untrue statement of fact which, in
the opinion of any Distributor, is material or omits to state a fact which,
in the opinion of any Distributor, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any change, or any development
or event involving a prospective change, in the financial condition,
business, properties or results of operations of the Issuer or its
subsidiaries which, in the judgment of a majority of the Distributors, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
Securities; (ii) any downgrading in the rating of any debt securities of
the Issuer by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Issuer (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or limitation
of trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension
of trading of any securities of the Issuer on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or, New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority of the
Distributors, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
solicitations of offers to purchase, or sales of, Securities.
(d) With respect to any Security denominated in a currency other than
the U.S. dollar, more than one currency or a composite currency or any
Security the principal or interest of which is indexed to such currency,
currencies or composite currency, there shall not have occurred a
suspension or material limitation in foreign exchange trading in such
currency, currencies or composite currency by a major international bank, a
general moratorium on commercial banking activities in the country or
countries issuing such currency, currencies or composite currency, the
outbreak or escalation of hostilities involving, the occurrence of any
material adverse change in the existing financial, political or economic
conditions of, or the declaration of war or a national emergency by, the
country or countries issuing such currency, currencies or composite
currency or the imposition or proposal of exchange controls by any
governmental authority in the country or countries issuing such currency,
currencies or composite currency;
(e) At the Closing Date and, if specified in a Terms Agreement, if
any, at
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the time of delivery of the Securities described in such Terms Agreement,
the Distributors or the Distributor purchasing such Securities pursuant to
such Terms Agreement (the "Purchasing Distributor"), as the case may be,
shall have received an opinion, dated the Closing Date, or such date of
delivery, as the case may be, of Xxxxxx & Xxxxxxx LLP counsel for the
Issuer, to the effect that:
(i) The Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Minnesota,
with corporate power to own its properties and conduct its business as
described in the Prospectus;
(ii) The Indenture has been duly authorized, executed and
delivered by the Issuer and has been duly qualified under the Trust
Indenture Act and constitutes a valid and binding obligation of the
Issuer enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(iii) Any series of Securities established on or prior to the
date of such opinion has been duly authorized and established in
conformity with the Indenture, and, when the terms of a particular
Security and of its issuance and sale have been duly authorized and
established by all necessary corporate action in conformity with the
Indenture, and such Security has been duly completed, executed,
authenticated and issued in accordance with the Indenture and
delivered against payment as contemplated by this Agreement, such
Security will constitute a valid and binding obligation of the Issuer
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, it being
understood that such counsel may (a) assume that at the time of the
issuance, sale and delivery of each Security the authorization of such
series will not have been modified or rescinded and there will not
have occurred any change in law affecting the validity, legally
binding character or enforceability of such Security, (b) assume that
neither the issuance, sale and delivery of any Security, nor any of
the terms of such Security, nor compliance by the Issuer with such
terms, will violate any applicable law, any agreement or instrument
then binding upon the Issuer or any restriction imposed by any court
or governmental body having jurisdiction over the Issuer, and (c)
state that as of the date of such opinion a judgment for money in an
action based on Securities denominated in foreign currencies or
currency units in a Federal or State court in the United States
ordinarily would be enforced in the United States only in United
States dollars, and that the date used to determine the rate of
conversion of the foreign currency or currency unit in which a
particular Security is denominated into United States dollars will
depend upon various factors, including which court renders the
judgment;
(iv) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Act specified in such opinion on
the date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of such counsel, are
pending or contemplated under the
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Act.
(v) The Registration Statement, as of its effective date, the
Registration Statement and the Prospectus, as of the Closing Date, and
any amendment or supplement thereto made by the Issuer prior to the
date of such opinion, as of its respective date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; the descriptions in the
Registration Statement and the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and
such counsel do not know of any legal or governmental proceedings
required to be described in the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus;
(vi) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Issuer for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance and sale of the Securities by the Issuer, except such as have
been obtained and made under the Act and the Trust Indenture Act and
such as may be required under state securities laws (it being
understood that such counsel may assume with respect to each
particular Security that the inclusion of any alternative or
additional terms in such Security that are not currently specified in
the draft forms of Securities examined by such counsel would not
require the Issuer to obtain any regulatory consent, authorization or
approval or make any regulatory filing in order for the Issuer to
issue, sell and deliver such Security);
(vii) The execution, delivery and performance of the Indenture,
this Agreement and the issuance and sale of the Securities, and
compliance with the terms and provisions thereof, will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any applicable statute or any rule or
regulation of any governmental agency or body or the charter or
by-laws of the Issuer or any subsidiary of the Issuer, and the Issuer
has full power and authority to authorize, issue and sell the
Securities as contemplated by this Agreement; and
(viii) This Agreement has been duly authorized, executed and
delivered by the Issuer.
Such opinion shall also state that, although such counsel does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, based
upon conferences with officers of the Issuer, examination of documents
referred to in the Registration Statement and the Prospectus and such other
procedures as such counsel deemed appropriate, nothing has come to such
counsel's attention that causes such counsel to believe that, as of its
effective date, the Registration Statement or any further amendment or
supplement thereto made by the Issuer prior to the date of such opinion
(other than the financial
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statements, related schedules and other financial data therein, as to which
such counsel need make no statement) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of the date of such opinion, the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Issuer prior to
the date of such opinion (other than the financial statements, related
schedules and other financial data therein, as to which such counsel need
make no statement) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading.
In the case of each such opinion delivered pursuant to a Terms
Agreement, (x) the statements contained in such opinion relating to the
Registration Statement or the Prospectus shall relate to the Registration
Statement or the Prospectus, as the case may be, as amended or supplemented
as of the date of the Issuer's acceptance of the offer to purchase such
Securities and as of the time of delivery of such Securities; (y) such
opinion shall relate to the Securities being delivered on the date of such
opinion and not to other Securities as well; and (z) shall state that the
Securities being delivered on the date of such opinion, when delivered
against payment therefor as contemplated by this Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Issuer enforceable in
accordance with their terms, subject only to the exceptions set forth in
clause (iii) as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity principles,
and will conform to the description thereof contained in the Prospectus as
amended or supplemented at such date of delivery.
(f) At the Closing Date and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Distributors or the Purchasing Distributor, as the case may
be, shall have received an opinion, dated the Closing Date, or such date of
delivery, as the case may be, of Xxxxxxx X. Xxxxxx, Esq., the Issuer's Vice
President, General Counsel and Secretary, to the effect that the execution,
delivery and performance of the Indenture, this Agreement and the issuance
and sale of the Securities, and compliance with the terms and provisions
thereof, will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any order of any governmental
agency or body or any court having jurisdiction over the Issuer or any
subsidiary of the Issuer or any of their properties or any agreement or
instrument which is material to the financial condition, business,
properties or results of operations of the Issuer or its subsidiaries taken
as a whole (it being understood that such counsel may assume with respect
to each particular Security that the inclusion of any alternative or
additional terms in such Security that are not currently specified in the
draft forms of Securities examined by such counsel will not cause the
issuance, sale or delivery of such Security, the terms of such Security, or
the compliance by the Issuer with such terms, to violate any of the court
orders or laws specified in this paragraph or to result in a default under
or a breach of any of the agreements specified in this paragraph).
(g) At the Closing Date and, if specified in a Terms Agreement, if
any, at
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the time of delivery of the Securities described in such Terms Agreement,
the Distributors or the Presenting Distributor, as the case may be, shall
have received a certificate, dated the Closing Date or such date of
delivery, as the case may be, of the President or any Vice President and a
principal financial or accounting officer of the Issuer in which such
officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the Issuer in this
Agreement are true and correct, that the Issuer has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date or such date of
delivery, as the case may be, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission, and that subsequent to the date of the most
recent financial statements included or incorporated by reference in the
Prospectus, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the financial
condition, business, properties or results of operations of the Issuer and
its subsidiaries taken as a whole, except as set forth in or contemplated
by the Prospectus or as described in such certificate. In the case of each
such certificate delivered pursuant to a Terms Agreement, the statements
contained in such certificate relating to the Registration Statement or the
Prospectus shall relate to the Registration Statement or the Prospectus, as
the case may be, as amended or supplemented as of the date of the Issuer's
acceptance of the offer to purchase such Securities and as of the time of
delivery of such Securities.
(h) At the Closing Date and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Distributors or the Purchasing Distributor, as the case may
be, shall have received a letter, dated the Closing Date or such date of
delivery, as the case may be, of Ernst & Young LLP (or another nationally
recognized firm of independent public accountants), confirming that they
are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to the
effect that:
(i) in their opinion, the financial statements and schedules, if
any, examined by them and included in the Prospectus comply as to form
in all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited financial
statements included or incorporated by reference in the Registration
Statement;
(iii) on the basis of the review, if any, referred to in clause
(ii) above, a reading of the latest available interim financial
statements of the Issuer, inquiries of officials of the Issuer who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
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(A) the unaudited financial statements, if any, and any
summary of earnings included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to such
unaudited financial statements for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the unaudited consolidated net sales, operating
income, net income and net earnings per share amounts or certain
other amounts as agreed by the Issuer and the Distributor
constituting such "capsule" information and described in such
letter for the three-, six- and nine-month periods ended April 3,
July 3 and October 3, respectively, included in the Prospectus,
as applicable, do not agree with the corresponding amounts set
forth in the unaudited consolidated financial statements for
those same periods or were not determined on a basis
substantially consistent with that of the corresponding amounts
in the audited statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five business days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Issuer and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(D) for the period from the closing date of the latest
available income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income
statement included in the Prospectus, in consolidated net sales,
operating income or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above, for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statement (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Issuer and its
subsidiaries subject to the internal controls of the Issuer's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise
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specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
In the case of each such letter delivered pursuant to a Terms
Agreement, the statements contained in such letter relating to the
Registration Statement or the Prospectus shall relate to the
Registration Statement or the Prospectus, as the case may be, as
amended or supplemented as of the date of the Issuer's acceptance of
the offer to purchase such Securities and as of the time of delivery
of such Securities.
(i) At the Closing Date and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Distributors or the Purchasing Distributor, as the case may
be, shall have received from Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for
the Distributors, such opinion or opinions, dated the Closing Date or such
date of delivery, as the case may be, with respect to the incorporation of
the Issuer, the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as the Distributors or the Purchasing
Distributor, as the case may be, may require, and the Issuer shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(j) The Issuer shall have furnished to the Distributors or their
counsel such further certificates and documents as the Distributors or such
counsel shall reasonably request.
The Issuer will furnish the Distributors with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of
Securities shall be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at the time
of such acceptance and a covenant that such representations and warranties
will be true and correct at the time of delivery to the purchaser of the
Securities as though made at and as of each such time, it being understood
that such representations and warranties shall relate to the Registration
Statement and the Prospectus as amended or supplemented at each such time.
Each such acceptance by the Issuer of an offer to purchase Securities shall
be deemed to constitute an additional representation, warranty and
agreement by the Issuer that, as of the date of delivery of such Securities
to the purchaser thereof, after giving effect to the issuance of such
Securities, of any other Securities to be issued on or prior to such
delivery date and of any other Registered Securities to be issued and sold
by the Issuer on or prior to such delivery date, the aggregate amount of
Registered Securities (including any Securities) which have been issued and
sold by the Issuer will not exceed the amount of Registered Securities
registered pursuant to the Registration Statement.
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(b) On each Representation Date on which the Registration Statement or
the Prospectus shall be amended or supplemented (other than by a Pricing
Supplement or by an amendment or supplement relating solely to the terms of
the Securities or a change in the principal amount of Securities remaining
to be sold or similar changes) or by an amendment or supplement relating
solely to the terms of the Securities or a change in the principal amount
of Securities remaining to be sold or similar changes, the Issuer shall,
(A) concurrently with such amendment or supplement, if such amendment or
supplement shall occur at a Marketing Time, or (B) immediately at the next
Marketing Time if such amendment or supplement shall not occur at a
Marketing Time, furnish the Distributors with a certificate, dated the date
of delivery thereof, of the President or any Vice President and a principal
financial or accounting officer of the Issuer, in form satisfactory to the
Distributors, to the effect that the statements contained in the
certificate covering the matters set forth in Section 5(g) hereof which was
last furnished to the Distributors pursuant to this Section 6(b) are true
and correct at the time of such amendment or supplement, as though made at
and as of such time or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in Section 5(g); provided,
however, that any certificate furnished under this Section 6(b) shall
relate to the Registration Statement and the Prospectus as amended or
supplemented at the time of delivery of such certificate and, in the case
of the matters set forth in clause (ii) of Section 5(g), to the time of
delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the
Issuer shall, (A) concurrently if such Representation Date shall occur at a
Marketing Time, or (B) immediately at the next Marketing Time if such
Representation Date shall not occur at a Marketing Time, furnish the
Distributors with a written opinion or opinions, dated the date of such
Representation Date, of counsel for the Issuer, in form satisfactory to the
Distributors, to the effect set forth in Sections 5(e) and 5(f) hereof;
provided, however, that to the extent appropriate such opinion or opinions
may reconfirm matters set forth in a prior opinion delivered at the Closing
Date or under this Section 6(c); provided further, however, that any
opinion or opinions furnished under this Section 6(c) shall relate to the
Registration Statement and the Prospectus as amended or supplemented at
such Representation Date and shall state that the Securities sold in the
relevant Applicable Period (as defined below) have been duly executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Issuer enforceable in accordance with their
terms, subject only to the exceptions set forth in clause (iii) of Section
5(e) hereof as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity principles,
and conform to the description thereof contained in the Prospectus as
amended or supplemented at the relevant date or dates for the delivery of
such Securities to the purchaser or purchasers thereof. For the purpose of
this Section 6(c), "Applicable Period" shall mean with respect to any
opinion delivered on a Representation Date the period commencing on the
date as of which the most recent prior opinion delivered at the Closing
Date or under this Section 6(c) speaks and ending on such Representation
Date.
(d) At each Representation Date referred to in Section 6(b) on which
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, the Issuer shall
cause Ernst & Young LLP, (A)
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concurrently if such Representation Date shall occur at a Marketing Time,
or (B) immediately at the next Marketing Time if such Representation Date
shall not occur at a Marketing Time, to furnish the Distributors with a
letter, addressed jointly to the Issuer and the Distributors and dated the
date of such Representation Date, in form and substance satisfactory to the
Distributors, to the effect set forth in Section 5(h) hereof; provided,
however, that to the extent appropriate such letter may reconfirm matters
set forth in a prior letter delivered at the Closing Date or pursuant to
this Section 6(d); provided further, however, that any letter furnished
under this Section 6(d) shall relate to the Registration Statement and the
Prospectus as amended or supplemented at such Representation Date, with
such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of the
Issuer.
(e) On each date for the delivery of Securities to a Distributor as
principal, the Issuer shall, if specified in the applicable Terms
Agreement, furnish such Distributor with a written opinion or opinions,
dated the date of delivery thereof, of counsel for the Issuer, in form
satisfactory to such Distributor, to the effect set forth in clauses (i),
(ii) and (iii) of Section 5(e) hereof; provided, however, that any opinion
furnished under this Section 6(e) shall relate to the Prospectus as amended
or supplemented at such delivery date and shall state that the Securities
being sold by the Issuer on such delivery date, when delivered against
payment therefor as contemplated by this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Issuer enforceable in accordance with
their terms, subject only to the exceptions set forth in clause (iii) of
Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity principles,
and will conform to the description thereof contained in the Prospectus as
amended or supplemented at such settlement date.
(f) The Issuer agrees that any obligation of a person who has agreed
to purchase Securities to make payment for and take delivery of such
Securities shall be subject to (i) the accuracy, on the related settlement
date fixed pursuant to the Procedures, of the Issuer's representation and
warranty deemed to be made to the Distributors pursuant to the last
sentence of subsection (a) of this Section 6, and (ii) the satisfaction, on
such settlement date, of each of the conditions set forth in Sections 5(a),
(b) and (c), it being understood that under no circumstance shall any
Distributor have any duty or obligation to exercise the judgment permitted
under Section 5(b) or (c) on behalf of any such person.
7. Indemnification and Contribution.
(a) The Issuer will indemnify and hold harmless each Distributor
against any losses, claims, damages or liabilities, joint or several, to
which such Distributor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus or preliminary prospectus supplement, or
arise out of or are based
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upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Distributor for any legal or other
expenses reasonably incurred by such Distributor in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Issuer
will not be liable to such Distributor in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in any of such documents which (i) is made in reliance upon
and in conformity with written information furnished to the Issuer by such
Distributor specifically for use therein, unless such loss, claim, damage
or liability arises out of the offer or sale of Securities occurring after
the Distributor has notified the Issuer in writing that such information
should no longer be used therein, it being understood and agreed that the
only such information furnished by any Distributor consists of the
information described as such in subsection (b) below; or (ii) is corrected
in any amendment or supplement to the Registration Statement or the
Prospectus, provided that the Issuer has performed each of its obligations
under Section 4 in respect of such amendment or supplement and, to the
extent that a prospectus relating to the Securities was required to be
delivered by such Distributor under the Act, such Distributor, having been
furnished by or on behalf of the Issuer with copies of the Prospectus as so
amended or supplemented, thereafter fails to deliver such amended or
supplemented Prospectus prior to or concurrently with the sale of the
Securities to the person asserting such loss, claim, damage, or liability.
(b) Each Distributor will severally and not jointly indemnify and hold
harmless the Issuer against any losses, claims, damages or liabilities to
which the Issuer may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out
of or are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Issuer by such Distributor
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Issuer in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred, unless such loss, claim, damage or liability arises
out of the offer or sale of Securities occurring after the Distributor has
notified the Issuer in writing that such information should no longer be
used therein, it being understood and agreed that the only such information
furnished by any Distributor consists of the information under the heading
"Plan of Distribution."
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to
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any indemnified party otherwise than under subsection (a) or (b) above to
the extent it is not prejudiced as a proximate result of such failure. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. The
indemnified party will have the right to employ its own counsel in any such
action, but the fees and expenses of such counsel will be at the expense of
the indemnified party unless the indemnified party's counsel has reasonably
concluded that there may be legal defense available to it which are
different from or in addition to those available to the indemnifying party.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action 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 any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer on the one hand and any Distributor on the
other from the offering pursuant to this Agreement of the Securities which
are the subject of the action or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Issuer on the one hand and any
Distributor on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits received
by the Issuer on the one hand and any Distributor on the other shall be
deemed to be in the same proportions as the total net proceeds from the
offering pursuant to this Agreement of the Securities which are the subject
of the action (before deducting expenses) received by the Issuer bear to
the total discounts and commissions received by such Distributor from the
offering of such Securities pursuant to this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Issuer or such Distributor and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this
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subsection (d), no Distributor shall be required to contribute any amount
in excess of the amount by which the total price at which the Securities
which are the subject of the action and which were distributed to the
public through it pursuant to this Agreement or upon resale of Securities
purchased by it from the Issuer exceeds the amount of any damages which
such Distributor has 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 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of
each Distributor in this subsection (d) to contribute are several, in the
same proportion which the amount of the Securities which are the subject of
the action and which were distributed to the public through such
Distributor pursuant to this Agreement bears to the total amount of such
Securities distributed to the public through all of the Distributors
pursuant to this Agreement, and not joint.
(e) The obligations of the Issuer under this Section 7 shall be in
addition to any liability which the Issuer may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls each Distributor within the meaning of the Act; and the
obligations of each Distributor under this Section 7 shall be in addition
to any liability which each Distributor may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Issuer,
to each officer of the Issuer who has signed the Registration Statement and
to each person, if any, who controls the Issuer within the meaning of the
Act.
8. Status of Each Distributor. In soliciting offers to purchase the
Securities from the Issuer pursuant to this Agreement and in assuming its other
obligations hereunder (other than any obligation to purchase Securities pursuant
to Section 3(b)(iii) hereof), each Distributor is acting individually and not
jointly and is acting solely as agent for the Issuer and not as principal. In
connection with the placement of any Securities by a Distributor, acting as
agent, (a) each Distributor will make reasonable efforts to assist the Issuer in
obtaining performance by each purchaser whose offer to purchase Securities from
the Issuer has been solicited by such Distributor and accepted by the Issuer,
but such Distributor shall have no liability to the Issuer in the event any such
purchase is not consummated for any reason; and (b) if the Issuer shall default
on its obligations to deliver Securities to a purchaser whose offer it has
accepted, the Issuer (i) shall hold the Distributors harmless against any loss,
claim or damage arising from or as a result of such default by the Issuer, and
(ii) in particular, shall pay to the Distributors any commission to which they
would be entitled in connection with such sale.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuer or its officers and of the Distributors set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Distributor, the Issuer or any of their respective representatives, officers
or directors or any controlling person and will survive delivery of and payment
for the Securities. If this Agreement is terminated pursuant to Section 10 or
for any other reason or if for any reason the sale of Securities described in a
confirmation or Terms Agreement referred to in Section 3 by the Issuer to a
Distributor is not consummated, the Issuer shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4(j) and the
obligations of the Issuer
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under Sections 4(f) and 4(i) and the respective obligations of the Issuer and
the Distributors pursuant to Section 7 shall remain in effect. In addition, if
any such termination of this Agreement shall occur either (i) at a time when any
Distributor shall own any of the Securities with the intention of reselling them
or (ii) after the Issuer has accepted an offer to purchase Securities and prior
to the related settlement, the obligations of the Issuer under the second
sentence of Section 4(c), under Sections 4(a), 4(b), 4(d), 4(e), 4(g), 4(h) and
4(k) and, in the case of a termination occurring as described in (ii) above,
under Sections 3(c), 6(a), 6(e) and 6(f) and under the last sentence of Section
8, shall also remain in effect.
10. Termination. This Agreement may be terminated for any reason at any
time by the Issuer as to any Distributor or, in the case of any Distributor, by
such Distributor insofar as this Agreement relates to such Distributor, upon the
giving of one day's written notice of such termination to the other parties
hereto; provided, however, that this Agreement may not be terminated with
respect to a Distributor by the giving of such notice following receipt by the
Issuer of a confirmation or Terms Agreement referred to in Section 3 relating to
the purchase of Securities by such Distributor and prior to delivery of the
Securities described in such confirmation or Terms Agreement, unless the sale
and purchase of Securities contemplated thereby is rejected by the Issuer in
accordance with Section 3. Any settlement with respect to Securities placed by a
Distributor on an agency basis occurring after termination of this Agreement
shall be made in accordance with the Procedures and each Distributor agrees, if
requested by the Issuer, to take the steps therein provided to be taken by such
Distributor in connection with such settlement.
11. Sales of Securities Denominated in a Currency other than U.S. Dollars
or of Indexed Securities. If at any time the Issuer and any of the Distributors
shall determine to issue and sell Securities denominated in a currency other
than U.S. dollars, which other currency may include a currency unit, or with
respect to which an index is used to determine the amounts of payments of
principal and any premium and interest, the Issuer and any such Distributor may
execute and deliver a supplement to this Agreement for the purpose of making any
appropriate additions to and modifications of the terms of this Agreement (and
the Procedures) applicable to such Securities and the offer and sale thereof.
Subject to the Issuer's obligations under Section 4(h), each Distributor agrees,
directly or indirectly, not to solicit offers to purchase or offer or sell any
Security in or to residents of any foreign jurisdiction except as permitted by
applicable law. The Issuer will not issue Securities denominated in Yen
otherwise than in compliance with applicable Japanese laws, regulations and
policies. In particular, the Issuer or its designated agent shall submit such
reports or information as may be required from time to time by applicable law,
regulations and guidelines promulgated by Japanese governmental and regulatory
authorities in the case of the issue and purchase of the Securities.
12. Notices. Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to Credit Suisse First Boston Corporation shall be directed to it at
Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Short and
Medium Term Finance Department (Facsimile No. (000) 000-0000); notices to Banc
One Capital Markets, Inc. shall be directed to it at Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Securities Structuring (Facsimile
No. (000) 000-0000); notices to X.X. Xxxxxx Securities Inc. shall be directed to
it at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Medium Term Note Desk
(Facsimile No. (000) 000-0000);
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and notices to the Issuer shall be directed to it at Jostens, Inc., 0000 Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Treasurer (Facsimile No.
(000) 000-0000); or in the case of any party hereto, to such other address or
person as such party shall specify to each other party by a notice given in
accordance with the provisions of this Section 12. Any such notice shall take
effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, their respective successors, the officers and directors
and controlling persons referred to in Section 7 and, to the extent provided in
Section 6(f), any person who has agreed to purchase Securities from the Issuer,
and no other person will have any right or obligation hereunder.
14. Counterparts. This Agreement and any Terms Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Issuer hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or any Terms
Agreement or the transactions contemplated hereby or thereby.
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If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
JOSTENS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED, as of
the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:/s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
BANC ONE CAPITAL MARKETS, INC.
By:/s/ Xxxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
X.X. XXXXXX SECURITIES INC.
By:/s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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