Exhibit 99.(c)(5)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of July 12, 1999, is
made and entered into by QUEBECOR PRINTING INC., a corporation formed under the
laws of Canada (the "Company"), APC Associates, L.P., a Delaware limited
partnership, GR Associates, L.P., a Delaware limited partnership, WCP
Associates, L.P., a Delaware limited partnership, KKR Associates, L.P., a New
York limited partnership, and KKR Partners II, L.P., a Delaware limited
partnership (collectively, the "Partnerships").
1. Background. The Company has entered into an Agreement and Plan of
Merger, dated as of July 12, 1999, by and among the Company, Printing
Acquisition Inc. (the "Sub") and World Color Press, Inc. ("World Color") (the
"Merger Agreement"), which contemplates that the Sub will commence a tender
offer to purchase for cash up to 23,500,000 of the outstanding shares of common
stock of World Color (including such shares held by the Partnerships), at a
price of $35.69 in cash per share, followed by a merger of the Sub into World
Color, pursuant to which each remaining share of common stock of World Color
will be converted into the number of subordinate voting shares of the Company
(the "Subordinate Voting Shares") specified in the Merger Agreement. This
Agreement shall become effective upon the issuance of the Subordinate Voting
Shares to be issued pursuant to the Merger Agreement.
2. Definitions and Interpretation.
As used in this Agreement, the following capitalized terms shall
have the following respective meanings:
Commissions - The relevant securities commissions and regulatory
authorities of each province of Canada and the SEC.
Exchange Act - The Securities Exchange Act of 1934, as amended.
Holder - Subject to Section 8(c) hereof, any party hereto (other
than the Company) and any holder of Registrable Securities who agrees in
writing to be bound by the provisions of this Agreement.
Jurisdiction - Any jurisdiction where securities of the same class
and series as the Registrable Securities are registered.
Person - Any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or
agency thereof.
Registrable Securities - Any Subordinate Voting Shares issued
pursuant to the Merger Agreement and any Subordinate Voting Shares or
other securities which may be issued or distributed in respect thereof by
way of stock dividend or stock split or other distribution,
recapitalization or reclassification. As to any particular Registrable
Securities, once issued such Securities shall cease to be Registrable
Securities with respect to the
2
Securities Laws of a particular jurisdiction when (i) a Registration
Statement with respect to the sale of such Securities shall have become
effective under the Securities Laws and such Securities shall have been
disposed of in accordance with such Registration Statement, (ii) they
shall have been distributed to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act, (iii) they shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer pursuant to the Securities Laws of the
relevant jurisdiction shall have been delivered by the Company and
subsequent disposition of them shall not require registration or
qualification of them under the Securities Laws of the relevant
jurisdiction then in force, (iv) they shall have ceased to be outstanding
or (v) the first date on which the aggregate market value of such
Registrable Securities is less than $5,000,000.
Registration Expenses - Any and all expenses incident to performance
of or compliance with this Agreement, including, without limitation, (i)
all Commissions and Securities Exchanges registration and filing fees,
(ii) all fees and expenses of complying with securities or blue sky laws
(including fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities),
(iii) all printing, messenger and delivery expenses, (iv) all fees and
expenses incurred in connection with the listing of the Registrable
Securities on any Securities Exchange pursuant to clause (ix) of Section
5, (v) the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any special
audits and/or "cold comfort" letters required by or incident to such
performance and compliance, (vi) the reasonable fees and disbursements of
one counsel selected by the Holders of a majority of the Registrable
Securities being registered to represent all Holders of the Registrable
Securities being registered in connection with each such registration, and
(vii) any fees and disbursements of underwriters customarily paid by the
issuers or sellers of securities, including liability insurance if the
Company so desires or if the underwriters so require, and the reasonable
fees and expenses of any special experts retained by the Company in
connection with the requested registration, but excluding underwriting
discounts and commissions, fees and expenses of counsel for the
underwriters (except as otherwise set forth in clause (ii) above) and
transfer taxes, if any.
Registration Statement - Any registration statement or prospectus of
the Company or any document prepared in lieu thereof under applicable
Securities Laws (including offering memoranda and other offering
documents) under which securities of the Company are offered, including
amendments and supplements to such documents, including post-effective
amendments, and all exhibits and all materials incorporated by reference
in such documents.
Securities Act - The Securities Act of 1933, as amended.
Securities Exchanges - The securities exchanges on which securities
of the same class and series as the Registrable Securities are listed or
quoted.
3
Securities Laws - Provincial securities legislation, including rules
and policies thereunder, in Canada and the United States federal and state
securities laws and regulations and the securities legislation of such
other relevant Jurisdictions.
SEC - The United States Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or the
Exchange Act.
Shelf Rules - The rules and procedures established pursuant to the
Securities Laws for the distribution of securities of certain issuers on a
continuous or delayed basis, including as currently provided under
National Policy No. 44 adopted by the Canadian Securities Administrators.
In this Agreement any reference to the registration of securities, or to a
Registration Statement being declared or becoming effective, shall also mean to
the extent applicable the obtaining of a final receipt from the Commissions in
the relevant Jurisdictions for a prospectus qualifying the distribution of
securities.
3. Shelf Registration.
(a) Shelf Registration. The Company shall as promptly as practicable
file with the Commissions a Registration Statement for an offering to be made on
a continuous basis pursuant to the Shelf Rules covering all of the Registrable
Securities (the "Shelf Registration Statement"). The Shelf Registration
Statement shall permit registration of such Registrable Securities for resale in
the United States and Canada by Holders in the manner or manners designated by
them (including, without limitation, one or more underwritten offerings). The
Company shall not permit any securities other than the Registrable Securities to
be included in the Shelf Registration Statement or any Subsequent Shelf
Registration Statement. The Shelf Registration Statement may be filed pursuant
to the rules established under the Securities Laws governing the
Multi-jurisdictional Disclosure System jointly administered by the Commissions,
provided, however, that if for any reason a Shelf Registration Statement filed
pursuant to the rules established under the Securities Laws governing the
Multi-jurisdictional Disclosure System will not permit the sale of the
Registrable Securities in the United States, the Company shall be required to
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable
Securities.
The Company shall use all reasonable efforts to cause the initial
Shelf Registration Statement to be declared effective by the relevant
Commissions under the Securities Laws by the 30th day after the consummation of
the merger contemplated by the Merger Agreement and to keep the Shelf
Registration Statement continuously effective under the Securities Act until the
first anniversary of its effective date, subject to extension pursuant to clause
(d) of this Section 3 or the last paragraph of Section 5 hereof (the
"Effectiveness Period"), or such shorter period ending when (i) all Registrable
Securities covered by the Shelf Registration Statement have been sold in the
manner set forth and as contemplated in the initial Shelf Registration Statement
or (ii) a Subsequent Shelf Registration Statement covering all of the
Registrable Securities has been declared effective under the Securities Laws.
4
(b) Subsequent Shelf Registrations. If the initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered thereunder), the
Company shall use all reasonable efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 7 days
of such cessation of effectiveness amend the Shelf Registration Statement in a
manner to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement pursuant to the
Shelf Rules covering all of the Registrable Securities (a "Subsequent Shelf
Registration Statement") to permit registration of the Registrable Securities
for resale in the United States and Canada. If a Subsequent Shelf Registration
Statement is filed, the Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared effective under the relevant
Securities Laws as soon as practicable after such filing and to keep such
Registration Statement continuously effective for a period equal to the number
of days in the Effectiveness Period less the aggregate number of days during
which the Shelf Registration Statement or any Subsequent Shelf Registration
Statement was previously continuously effective. As used herein the term "Shelf
Registration Statement" means the Shelf Registration Statement and any
Subsequent Shelf Registration Statement.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Laws, or if
reasonably requested by the Holders of a majority of the Registrable Securities
then outstanding or by any underwriter of such Registrable Securities.
(d) Suspension of Sales. At any time while the Shelf Registration
Statement is effective and a prospectus relating thereto is required to be
delivered under the Securities Laws within the Effectiveness Period, that the
Company becomes aware that the Shelf Registration Statement or any prospectus
included therein, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing, to the extent that the amendment or supplement to
such Shelf Registration Statement or prospectus necessary to correct such untrue
statement of a material fact or omission to state a material fact would require
disclosure of material information which the Company has a bona fide business
purpose for preserving as confidential and the Company provides the Holders
written notice thereof promptly after the Company makes such determination, the
Holders shall suspend sales of Registrable Securities pursuant to the Shelf
Registration Statement and the Company shall not be required to comply with its
obligations under Section 5 (vii) until the earlier of (A) the date upon which
such material information is disclosed to the public or ceases to be material or
(B) 90 days after the Holders' receipt of such written notice. If the Holders'
disposition of Registrable Securities is discontinued pursuant to the foregoing
sentence, the Effectiveness Period shall be extended by the number of days
during the period from and including the date of the giving of such notice and
including the date when each seller of Registrable Securities covered by the
Shelf Registration Statement shall have received copies of the supplemented or
amended prospectus contemplated by clause (vii) of Section 5.
5
(e) Expenses. The Company will pay all Registration Expenses in
connection with the registration of Registrable Securities pursuant to this
Section 3.
(f) Selection of Underwriters. In connection with any underwritten
offering of Registrable Securities pursuant to the Shelf Registration Statement,
the Holders of a majority of the Registrable Securities to be registered
thereunder shall have the right to select the investment banker or bankers and
managers to administer the offering; provided, however, that such investment
banker or bankers and managers shall be reasonably satisfactory to the Company.
(g) POP System. The Company represents and warrants that it is
eligible to use the prompt offering qualification system for the distribution of
its Subordinate Voting Shares in the provinces of Ontario and Quebec by means of
a short form prospectus as contemplated by National Policy No. 47 adopted by the
Canadian Securities Administrators, and covenants to use its best efforts to
maintain such eligibility during the term of this Agreement.
4. Incidental Registrations.
(a) Right to Include Registrable Securities. At any time in which
the Shelf Registration Statement is not yet or has ceased to be effective if the
Company proposes to register its Subordinate Voting Shares under the Securities
Laws (other than a registration on Form F-4 or F-8, or any successor or other
forms promulgated for similar purposes), whether or not for sale for its own
account, pursuant to a registration statement on which it is permissible to
register Registrable Securities for sale to the public under the Securities
Laws, it will each such time give prompt written notice to all Holders of
Registrable Securities of its intention to do so and of such Holders' rights
under this Section 4. Upon the written request of any such Holder made within 15
days after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder), the Company
will use its reasonable efforts to effect the registration under the Securities
Laws of all Registrable Securities which the Company has been so requested to
register by the Holders thereof; provided that (i) if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company (or any stockholder of the Company in the case of a
demand registration by such stockholder) shall determine for any reason not to
proceed with the proposed registration of the securities to be sold by it, the
Company may, at its election, give written notice of such determination to each
Holder of Registrable Securities and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) if such registration involves an underwritten
offering, all Holders of Registrable Securities requesting to be included in the
registration must sell their Registrable Securities to the underwriters selected
by the Company (or by any stockholders other than the Holders entitled to select
the underwriters) on the same terms and conditions as apply to the other sellers
included in such registration, with such differences, including any with respect
to indemnification and liability insurance, as may be customary or appropriate
in combined primary and secondary offerings. If a registration requested
pursuant to this Section 4(a) involves an underwritten public offering, any
Holder of Registrable Securities requesting to be included in such registration
may elect, in writing
6
prior to the effective date of the registration statement filed in connection
with such registration, not to register such securities in connection with such
registration.
(b) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 4.
(c) Priority in Incidental Registrations. If a registration pursuant
to this Section 4 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be likely to have an adverse effect on the
successful marketing of such offering (including the price at which such
securities can be sold), then the Company will include in such registration (i)
first, 100% of the securities the Company proposes to sell, (ii) second, up to
100% of the securities requested to be registered by any stockholder exercising
a demand registration right and (iii) third, to the extent of the number of
Registrable Securities (and Subordinate Voting Shares held by other Persons with
similar registration rights) requested to be included in such registration
which, in the opinion of such managing underwriter, can be sold without having
the adverse effect referred to above, the number of Registrable Securities (and
such Subordinate Voting Shares) which the Holders (and such other Persons) have
requested to be included in such registration, such amount to be allocated pro
rata among all requesting Holders (and such other Persons) on the basis of the
relative number of shares of Registrable Securities then held by each such
Holder (or Subordinate Voting Shares then held by such other Person) (provided
that any shares thereby allocated to any such Holder (or such other Person) that
exceed such Holder's (or such other Person's) request will be reallocated among
the remaining requesting Holders (and such other Persons) in like manner).
5. Registration Procedures. If and whenever the Company is required
to use its reasonable efforts to effect or cause the registration of any
Registrable Securities under the Securities Laws as provided in this Agreement
or, as applicable, the Holders sell or seek to sell Registrable Securities under
the Shelf Registration Statement as provided in Section 3 of this Agreement, the
Company will, as expeditiously as possible:
(i) prepare and file with the Commissions a Registration Statement
with respect to such Registrable Securities and use its reasonable efforts
to cause such Registration Statement to become effective; provided, the
Company may discontinue any registration of its securities which is being
effected pursuant to Section 4 at any time prior to the effective date of
the registration statement relating thereto;
(ii) prepare and file with the Commissions such amendments and
supplements to such Registration Statement and any prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for the Effectiveness Period in the case of the Shelf
Registration Statement or for a period not in excess of 60 days (or such
shorter period during which the distribution of securities thereunder
continues) in the case of Registration Statements filed pursuant to
Section 4 of this Agreement, cause the related prospectus to be
supplemented by any prospectus supplement required by applicable law, and
as so supplemented to be filed pursuant to the Securities Laws and to
comply with the
7
provisions of the Securities Laws with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such Registration Statement (so long as such
intended methods of disposition are commercially reasonable); provided,
that before filing a Registration Statement or prospectus, or any
amendments or supplements thereto, or any prospectus supplement, the
Company will furnish to one counsel selected by the Holders of a majority
of the Registrable Securities covered by such Registration Statement to
represent all Holders of Registrable Securities covered by such
Registration Statement, copies of all documents proposed to be filed,
which documents will be subject to the review of such counsel;
(iii) furnish to each seller of such Registrable Securities such
number of copies of such Registration Statement and of each amendment and
supplement thereto (in each case including all exhibits and documents
incorporated by reference), such number of copies of the prospectus
included in such Registration Statement (including each preliminary
prospectus) and of each amendment and supplement thereto, in conformity
with the requirements of the Securities Laws, and such other documents as
such seller may reasonably request in order to facilitate the disposition
of the Registrable Securities by such seller;
(iv) if requested by the managing underwriter or underwriters (if
any) or the Holders of a majority in aggregate principal amount of the
Registrable Securities being sold in connection with an underwritten
offering, (a) promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any), their counsel, such Holders or Holders' Counsel
determine is reasonably necessary to be included therein, (b) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (c) supplement or make
amendments to such registration statement.
(v) use its reasonable efforts to register or qualify such
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each seller
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
clause (v), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(vi) use its reasonable efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
8
(vii) notify each seller of any such Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Laws within the
appropriate period mentioned in clause (ii) of this Section 5, of the
Company's becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing, and at the request of any such seller,
prepare and furnish to such seller a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing;
(viii) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commissions, and make available to
its security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the registration statement,
an earnings statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations promulgated
thereunder;
(ix) use its reasonable efforts to list such Registrable Securities
on any Securities Exchange on which the Subordinate Voting Shares are then
listed, if such Registrable Securities are not already so listed and if
such listing is then permitted under the rules of such exchange, and to
provide a transfer agent and registrar for such Registrable Securities
covered by such registration statement not later than the effective date
of such Registration Statement;
(x) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as sellers of a
majority of shares of such Registrable Securities or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities;
(xi) use its reasonable efforts to obtain a "cold comfort" letter or
letter from the Company's independent public accountants in customary form
and covering matters of the type customarily covered by "cold comfort"
letters as the seller or sellers of a majority of shares of such
Registrable Securities shall reasonably request (provided that Registrable
Securities constitute at least 25% of the securities covered by such
Registration Statement);
(xii) make available for inspection by representatives of the
sellers of such Registrable Securities covered by such registration
statement, by any underwriter participating in any disposition to be
effected pursuant to such registration statement and by any attorney,
accountant or other agent retained by such sellers or any such
underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant
or
9
agent in connection with such registration statement (subject to each
party referred to in this clause (xii) entering into customary
confidentiality agreements in a form reasonably acceptable to the
Company); and
(xiii) use its reasonable efforts (taking into account the interests
of the Company) to make available the senior executive officers of the
Company to participate in customary "road show" presentations that may be
reasonably requested by the Holders and the managing underwriter in any
underwritten offering; provided that the participation of such senior
executive officers shall not interfere with the conduct of their duties to
the Company.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in clause (vii) of this Section 5, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by clause (vii) of this
Section 5, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the periods mentioned in clause (ii) of this
Section 5 shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (vii) of this
Section 5 and including the date when each seller of Registrable Securities
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by clause (vii) of this Section
5.
6. Indemnification.
(a) Indemnification by the Company. In the event of any registration
of any securities of the Company under the Securities Act pursuant to Section 3
or 4, the Company will, and it hereby does, indemnify and hold harmless, to the
extent permitted by law, the seller of any Registrable Securities covered by
such registration statement, each affiliate of such seller and their respective
directors and officers or general and limited partners (and the directors,
officers, affiliates and controlling Persons thereof), each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act (collectively, the "Indemnified
Parties"), against any and all losses, claims, damages or liabilities, joint or
several, and expenses to which such seller, any such director or officer or
general or limited partner or affiliate or any such underwriter or controlling
Person may become subject under the Securities Laws, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Party is a party
thereto) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained in any registration
10
statement under which such securities were registered under the Securities Laws,
any preliminary, final or summary prospectus contained therein, or any amendment
or supplement thereto, or (b) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and the Company will reimburse such Indemnified Party for any legal or
any other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided, that
the Company shall not be liable to any Indemnified Party in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
written information with respect to such seller furnished to the Company by such
seller for use in the preparation thereof; and provided, further, that the
Company will not be liable to any Indemnified Party (including any person
controlling such Indemnified Party), who is obligated to deliver a prospectus in
transactions in a security as to which a Registration Statement has been filed
pursuant to the Securities Laws, under the indemnity agreement in this Section
6(a) with respect to any preliminary prospectus or the final prospectus or the
final prospectus as amended or supplemented, as the case may be, to the extent
that any such loss, claim, damage or liability of such Indemnified Party results
from the fact that such Registrable Securities were sold to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the final prospectus (including any documents incorporated by
reference therein) or of the final prospectus as then amended or supplemented
(including any documents incorporated by reference therein), whichever is most
recent, if the Company has previously furnished copies thereof to such
Indemnified Party. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any
Indemnified Party and shall survive the transfer of such securities by such
seller.
(b) Indemnification by the Sellers. In the event of any registration
of any securities of the Company under the Securities Act pursuant to Section 3
or 4, each prospective seller of Registrable Securities and any underwriter
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in subdivision (a) of this Section 6) the Company and all other
prospective sellers and any underwriter, as the case may be, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity with
written information with respect to such seller or underwriter furnished to the
Company by such seller or underwriter for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement, or a document incorporated by reference into any of the foregoing.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any of the prospective
sellers, or any of their respective affiliates, directors, officers or
controlling Persons and shall survive the transfer of such securities by such
seller.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim
11
for indemnification may be made pursuant to this Section 6, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action;
provided, that the failure of the indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding subdivisions of this Section 6, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, the indemnifying
party will be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim (in which event such indemnified
party and any other indemnified party to which such conflict of interest applies
shall be reimbursed for the reasonable expenses incurred in connection with
retaining one separate legal counsel for all such indemnified parties in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances). No indemnifying party will, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld), consent to entry of any judgment or enter into any
settlement in respect of any such indemnifiable claim, unless any such judgment
or settlement includes as an unconditional term thereof, the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Section 6 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any federal, provincial or state law or regulation or governmental authority
other than the Securities Act.
(e) Non-Exclusivity. The obligations of the parties under this
Section 6 shall be in addition to any liability which any party may otherwise
have to any other party.
7. Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available such information), and it will
take such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell shares of Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 7, the
12
Company may deregister under Section 12 of the Exchange Act if it then is
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder.
8. Miscellaneous.
(a) Holdback Agreement. If any registration described in Section 3
or 4 hereof shall be in connection with an underwritten public offering, each
Holder of Registrable Securities agrees (whether or not such Holder participates
in such registration) if requested (pursuant to timely written notice) by the
Company or the managing underwriter or underwriters in such underwritten
offering, not to effect any public sale or distribution, including any sale
pursuant to Rule 144 under the Securities Act, or any other sale, pledge,
assignment or other transfer or disposition of any equity securities of the
Company, or of any security convertible into or exchangeable or exercisable for
any equity security of the Company (in each case, other than as part of such
underwritten public offering), within 7 days before or 90 days (or such lesser
period as the managing underwriters may permit) after the effective date of such
registration, and the Company hereby also so agrees.
(b) Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding. Each Holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any consent authorized by this Section 7(b), whether or not such Registrable
Securities shall have been marked to indicate such consent.
(c) Successors, Assigns and Transferees. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company may only be assigned
to, and shall also be for the benefit of and enforceable by, any subsequent
Holder of any Registrable Securities, which is an affiliate of the Partnerships,
subject to the provisions contained herein.
(d) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
(i) if to the Company, to:
Quebecor Printing Inc.
000 Xx. Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Vice President, Legal Affairs & Secretary
13
With a copy to:
Xxxx X. Xxxxxxx, Esq.
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No. 212-715-1399
Telephone No. 000-000-0000
(ii) if to any of the partnerships, to:
APC Associates, L.P.
GR Associates, L.P.
WCP Associates, L.P.
KKR Partners II, L.P. and
KKR Associates, L.P.
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Xxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(iii) if to any other holder of Registrable Securities, to the
address of such other holder as shown in the stock record book
of the Company, or to such other address as any of the above
shall have designated in writing to all the other above.
All such notices and communications shall be deemed to have been given or made
(1) when delivered by hand, (2) five business days after being deposited in the
mail, postage prepaid, (3) when telexed, answer-back received or (4) when
telecopied, receipt acknowledged.
14
(e) Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(f) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
(h) Governing Law. This Agreement and the rights and duties of the
parties hereunder shall be governed by, and construed in accordance with, the
law of the State of New York. The parties to this Agreement hereby agree to
submit to the jurisdiction of the courts of the state of New York in any action
or proceeding arising out of or relating to this Agreement.
(i) Specific Performance. The parties hereto acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, it is agreed that they shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or equity.
15
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
QUEBECOR PRINTING INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Executive Vice President
KKR PARTNERS II, L.P.
By: KKR Associates,
Its General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
APC ASSOCIATES, L.P.
By: KKR Associates
Its General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
GR ASSOCIATES, L.P.
By: KKR Associates
Its General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
16
WCP ASSOCIATES, L.P.
By: KKR Associates
Its General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
KKR ASSOCIATES
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
