EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of May 10, 2000
Among
JOSTENS, INC.
and
THE GUARANTOR NAMED HEREIN
as Issuers,
and
DEUTSCHE BANK SECURITIES INC.,
UBS WARBURG LLC
and
XXXXXXX, XXXXX & CO.
as Initial Purchasers
12 3/4% Senior Subordinated Notes due 2010
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
May 10, 2000, among JOSTENS, INC., a Minnesota corporation (the "Company"),
AMERICAN YEARBOOK COMPANY, INC., a Kansas corporation (collectively with any
entity that in the future executes a supplemental indenture pursuant to which
such entity agrees to guarantee the Notes (as hereinafter defined), the
"Guarantors" and, together with the Company, the "Issuers"), and DEUTSCHE BANK
SECURITIES INC., UBS WARBURG LLC and XXXXXXX, SACHS & CO., as initial purchasers
(the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement by and among the Issuers and the Initial Purchasers, dated as of May
10, 2000 (the "Purchase Agreement"), which provides for, among other things, the
sale by the Company to the Initial Purchasers of 225,000 units consisting in the
aggregate of $225,000,000 aggregate principal amount of the Company's 12 3/4%
Senior Subordinated Notes due 2010 (the "Notes"), guaranteed by the Guarantors
(the "Guarantees") and Warrants to purchase 425,060 shares of the Company's
Class E Common Stock. The Notes and the Guarantees are collectively referenced
to herein as the "Securities". In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Issuers have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers and any subsequent holder or holders of the Securities. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligation to purchase the Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day that is not a Saturday, Sunday or a day on which
banking institutions in New York are authorized or required by law to be closed.
Closing Date: The Closing Date as defined in the Purchase Agreement.
Company: See the introductory paragraphs hereto.
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Effectiveness Date: The 180th day after the Issue Date; provided,
however, that with respect to any Shelf Registration, the Effectiveness Date
shall be the 135th day after the delivery of a Shelf Notice as required pursuant
to Section 2(c) hereof; provided further, however, that if the Effectiveness
Date would otherwise fall on a day that is not a Business Day, then the
Effectiveness Date shall be the next succeeding Business Day.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, and the rules and
regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Exchanging Dealer: See Section 2(b) hereof.
Filing Date: (A) With respect to an Exchange Offer Registration
Statement, the 120th day after the Issue Date; and (B) with respect to a Shelf
Registration Statement, the 90th day after the delivery of a Shelf Notice as
required pursuant to Section 2(c) hereof; provided further, however, that if the
Effectiveness Date would otherwise fall on a day that is not a Business Day,
then the Effectiveness Date shall be the next succeeding Business Day.
Guarantees: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes and any
Initial Purchaser holding any Notes, Exchange Notes or Private Exchange Notes
during the Market-Making Period.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Persons: See Section 7(c) hereof.
Indenture: The Indenture, dated as of May 10, 2000, by and among the
Issuers and The Bank of New York, as Trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms thereof.
Information: See Section 5(o) hereof.
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Initial Purchasers: See the introductory paragraphs hereto.
Inspectors: See Section 5(o) hereof.
Issue Date: May 10, 2000, the date of original issuance of the Notes.
Issuers: See the introductory paragraphs hereto.
Liquidated Damages: See Section 4 hereof.
Market-Making Period: See Section 3(a) hereof.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
under the Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereof.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note (and the related Guarantees) upon its
original issuance and at all times subsequent thereto, each Exchange Note (and
the related Guarantees) as to which Section 2(c)(iii)(B) hereof is applicable
upon original issuance and at all times subsequent thereto and each Private
Exchange Note (and the related Guarantees) upon original issuance thereof and at
all times subsequent thereto, until, in each case, the earliest to
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occur of (i) a Registration Statement (other than, with respect to any Exchange
Note as to which Section 2(c)(iii)(B) hereof is applicable, the Exchange Offer
Registration Statement) covering such Note, Exchange Note or Private Exchange
Note has been declared effective by the SEC and such Note, Exchange Note or such
Private Exchange Note (and the related Guarantees), as the case may be, has been
disposed of in accordance with such effective Registration Statement, (ii) such
Note has been exchanged pursuant to the Exchange Offer for an Exchange Note or
Exchange Notes (and the related Guarantees) that may be resold without
restriction under state and federal securities laws, (iii) such Note, Exchange
Note or Private Exchange Note (and the related Guarantees), as the case may be,
ceases to be outstanding for purposes of the Indenture, (iv) such Note, Exchange
Note or Private Exchange Note (and the related Guarantees), as the case may be,
in the reasonable opinion of the Company, may be resold without restriction
pursuant to Rule 144(k) (as amended or replaced) under the Securities Act or (v)
following the exchange by an Exchanging Dealer in the Exchange Offer of a Note
for an Exchange Note, the date on which such Exchange Note is sold to a
purchaser who receives from such Exchanging Dealer on or prior to the date of
such sale a copy of the Prospectus contained in the Exchange Offer Registration
Statement; provided, however, that each Note, Exchange Note and Private Exchange
Note shall be considered a Registrable Note from the time that any Initial
Purchaser shall give notice to the Company pursuant to Section 2(c)(iii)(D)(y)
hereof until the end of the Market-Making Period.
Registration Default: See Section 4(a) hereof.
Registration Statement: Any registration statement of the Issuers that
covers any of the Notes, the Exchange Notes or the Private Exchange Notes (and
the related Guarantees) filed with the SEC under the Securities Act, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
Restricted Holder: See Section 2(c) hereof.
Rule 144: Rule 144 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
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Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, and the rules and
regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if any) under
any indenture governing the Exchange Notes and Private Exchange Notes (and the
related Guarantees).
Underwritten registration or underwritten offering: A registration in
which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
Except as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. Exchange Offer
(a) Unless (1) the Exchange Offer would violate applicable law or any
applicable interpretation of the staff of the SEC or (2) each Holder of
Registrable Notes shall have delivered notice to the Company prior to the Filing
Date that it is a Restricted Holder, the Issuers shall file with the SEC, no
later than the Filing Date, a Registration Statement (the "Exchange Offer
Registration Statement") on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of debt securities of
the Company, guaranteed by the Guarantors, that are identical in all material
respects to the Securities, except that (i) the Exchange Notes shall contain no
restrictive legend thereon (the "Exchange Notes") and (ii) interest thereon
shall accrue from the last date on which interest was paid on the Notes or, if
no such interest has been paid, from the Issue Date, and which are entitled to
the benefits of the Indenture or a trust indenture which is identical in all
material respects to the Indenture (other than such changes to the Indenture or
any such identical trust indenture as are necessary to comply with the TIA) and
which, in either case, has been qualified under the TIA. The Exchange Offer
shall comply with all applicable tender offer rules and regulations under the
Exchange Act and other applicable laws. Subject to clauses (a)(1) and (2) above,
the Issuers
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shall use their reasonable best efforts to (x) cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Date; (y) keep the Exchange Offer open for at least 20
Business Days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders; and (z) consummate the
Exchange Offer on or prior to the 30th day following the date on which the
Exchange Offer Registration Statement was declared effective by the SEC and in
no event later than the 210th day following the Issue Date.
Each Holder (including, without limitation, each Exchanging Dealer) who
participates in the Exchange Offer will be required to represent to the Issuers
in writing (which may be contained in the applicable letter of transmittal)
that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered
is being acquired in the ordinary course of business of the Person receiving
such Exchange Notes, whether or not such recipient is such Holder itself; (ii)
neither such Holder nor, to the actual knowledge of such Holder, any other
Person receiving Exchange Notes from such Holder is engaging in or intends to
engage in a distribution of the Exchange Notes; (iii) at the time of the
consummation of the Exchange Offer neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder has an arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes in violation of the provisions of the
Securities Act; (iv) neither the Holder nor, to the actual knowledge of such
Holder, any other Person is an "affiliate" (as defined in Rule 405) of the
Company or, if it is an affiliate of the Company, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable and will provide information to be included in the Shelf
Registration Statement in accordance with Section 5 hereof in order to have
their Notes included in the Shelf Registration Statement and benefit from the
provisions regarding Liquidated Damages in Section 4 hereof; and (v) if such
Holder is an Exchanging Dealer, such Holder has acquired the Registrable Notes
as a result of market-making activities or other trading activities and that it
will comply with the applicable provisions of the Securities Act (including, but
not limited to, the prospectus delivery requirements thereunder).
Upon consummation of the Exchange Offer in accordance with this Section
2, the provisions of this Agreement shall continue to apply, mutatis mutandis,
solely with respect to Registrable Notes that are Private Exchange Notes,
Exchange Notes as to which Section 2(c)(iii)(B) is applicable and Exchange Notes
held by Exchanging Dealers, and the Issuers shall have no further obligation to
register Registrable Notes (other than Private Exchange Notes and Exchange Notes
as to which clause 2(c)(iii)(B) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
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(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (an "Exchanging
Dealer"), whether such positions or policies have been publicly disseminated by
the staff of the SEC or such positions or policies represent the prevailing
views of the staff of the SEC. Such "Plan of Distribution" section shall also
expressly permit, to the extent permitted by applicable policies and regulations
of the SEC, the use of the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including, to the extent permitted
by applicable policies and regulations of the SEC, all Exchanging Dealers, and
include a statement describing the means by which Exchanging Dealers may resell
the Exchange Notes in compliance with the Securities Act.
Subject to Section 3(d), the Issuers shall use their reasonable best
efforts to keep the Exchange Offer Registration Statement effective and to amend
and supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as is
necessary to comply with applicable law in connection with any resale of the
Exchange Notes; provided, however, that such period shall not be required to
exceed 90 days or such longer period if extended pursuant to the last paragraph
of Section 5 hereof (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial Purchasers
hold any Notes acquired by them that have the status of an unsold allotment in
the initial distribution, the Issuers upon the request of the Initial Purchasers
shall simultaneously with the delivery of the Exchange Notes issue and deliver
to the Initial Purchasers, in exchange (the "Private Exchange") for such Notes
held by any such Holder, a like principal amount of notes (the "Private Exchange
Notes") of the Issuers, guaranteed by the Guarantors, that are identical in all
material respects to the Exchange Notes except for the placement of a
restrictive legend on such Private Exchange Notes. The Private Exchange Notes
shall be issued pursuant to the same indenture as the Exchange Notes and bear
the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record
entitled to participate in the Exchange Offer a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
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(2) use their reasonable best efforts to keep the Exchange
Offer open for not less than 20 Business Days after the date that
notice of the Exchange Offer is mailed to Holders (or longer if
required by applicable law);
(3) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(4) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day
on which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered
and not validly withdrawn pursuant to the Exchange Offer and the
Private Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Securities, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Securities of such
Holder so accepted for exchange; provided that, in the case of any
Securities held in global form by a depositary, authentication and
delivery to such depositary of one or more replacement Securities in
global form in an equivalent principal amount thereto for the account
of such Holders in accordance with the Indenture shall satisfy such
authentication and delivery requirement.
The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the SEC; (ii) no action or proceeding shall have been instituted or
threatened in any court or by any governmental agency which might materially
impair the ability of the Issuers to proceed with the Exchange Offer or the
Private Exchange, and no material adverse development shall have occurred in any
existing action or proceeding with respect to the Issuers; (iii) all
governmental approvals shall have been obtained, which approvals the Issuers
deem necessary for the consummation of the Exchange Offer or Private Exchange;
(iv) each Holder of Registrable Notes shall not have delivered notice to the
Company prior to the Filing Date with respect to
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the Exchange Offer Registration Statement that it is a Restricted Holder and (v)
the conditions precedent to the Issuers' obligations under this Agreement shall
have been fulfilled.
The Exchange Notes and the Private Exchange Notes shall be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture and which, in either case, has been qualified under the TIA or is
exempt from such qualification and shall provide that the Exchange Notes shall
not be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Securities shall vote and consent together on all matters
as one class and that none of the Exchange Notes, the Private Exchange Notes or
the Securities will have the right to vote or consent as a separate class on any
matter.
(c) If (i) the Issuers are not required to file the Exchange Offer
Registration Statement or not permitted to consummate the Exchange Offer, (ii)
any Notes validly tendered pursuant to the Exchange Offer are not exchanged for
Exchange Notes within 30 days after the Effectiveness Date of the Exchange Offer
Registration Statement, or (iii) any Holder (a "Restricted Holder") of
Registrable Notes notifies the Company prior to the 20th day following
consummation of the Exchange Offer that: (A) it is prohibited by law or SEC
policy from participating in the Exchange Offer, (B) it may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales, (C) it
is an Initial Purchasers and that such Notes are not eligible to be exchanged
for Exchange Notes or (D) it is (x) a broker-dealer and owns Notes acquired
directly from the Company or (y) an affiliate of the Issuer, then in the case of
each of clauses (i), (ii) and (iii) of this sentence, the Issuers shall promptly
deliver to the Holders and the Trustee written notice thereof (the "Shelf
Notice") and shall file a Shelf Registration pursuant to Section 3 hereof.
Deutsche Bank Securities Inc., an Initial Purchaser, hereby gives notice,
effective June 9, 2000, to the Company pursuant to clause (iii)(D)(y) above that
it is an affiliate of the Issuer.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by Section
2(c) hereof, then:
(a) Shelf Registration. The Issuers shall as promptly as practicable
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 Notes (the
"Shelf Registration"). If the Issuers shall not have yet filed an Exchange Offer
Registration Statement, the Issuers shall use their reasonable best efforts to
file with the SEC the Shelf Registration on or prior to the Filing Date. The
Shelf Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings). The
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Issuers shall not permit any securities other than the Registrable Notes and the
Guarantees to be included in the Shelf Registration.
Subject to Section 3(d), the Issuers shall use their best efforts to
cause the Shelf Registration to be declared effective under the Securities Act
on or prior to the Effectiveness Date and to keep the Shelf Registration
continuously effective under the Securities Act until the date that is two years
from the Issue Date or such shorter period ending when all Registrable Notes
covered by the Shelf Registration (i) have been sold in the manner set forth and
as contemplated in the Shelf Registration or (ii) have been distributed to the
public pursuant to Rule 144 or are saleable pursuant to Rule 144(k) under the
Securities Act (the "Effectiveness Period"); provided, however, that upon notice
from any Initial Purchaser pursuant to Section 2(c)(iii)(D)(y) hereof, the
Effectiveness Period shall be extended for a period not beyond the second
anniversary of the date on which the Shelf Registration Statement became
effective (as extended by any Blackout Period) solely for the purpose of
facilitating resales of Registrable Notes by any Initial Purchaser until such
time as each Initial Purchaser shall have notified the Company that neither such
Initial Purchaser nor any of its affiliates is required by applicable law or SEC
policy to deliver a prospectus in connection with any resales of Notes, Exchange
Notes or Private Exchange Notes (such extended period, the "Market-Making
Period").
(b) Withdrawal of Stop Orders. If the Shelf Registration 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 Issuers
shall use their reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof.
(c) Supplements and Amendments. Subject to Section 3(d), the Issuers
shall promptly supplement and amend the Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes (or their counsel) covered by such Registration Statement with
respect to the information included thereon with respect to one or more of such
Holders, or by any underwriter of such Registrable Notes with respect to the
information included thereon with respect to such underwriter.
(d) Blackout Period. Notwithstanding anything to the contrary in this
Agreement, the Company, upon advising the Initial Purchasers, may suspend the
use of the prospectus included in any Registration Statement in the event that
and for a period of time (the "Blackout Period") not to exceed an aggregate of
sixty days in any twelve-month period if (1) the Board of Directors of the
Company determines that the disclosure of an event at such time would have a
material adverse effect on the business, operations or prospects of the Company
or (2) the disclosure otherwise relates to a material business transaction which
has not been publicly disclosed and the Board of Directors of the Company
determines that any
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such disclosure would jeopardize the success of such transaction; provided,
that, upon the termination of such Blackout Period, the Company promptly shall
advise the Initial Purchasers that such Blackout Period has been terminated.
4. Liquidated Damages
(a) The Issuers and the Initial Purchasers agree that the Holders will
suffer damages if the Issuers fail to fulfill their obligations under Section 2
or Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Issuers agree to pay liquidated
damages ("Liquidated Damages") to each Holder of Notes who provides the
representations and warranties set forth in the second paragraph of Section 2(a)
under the circumstances and to the extent set forth below:
(i) if (A) neither the Exchange Offer Registration Statement
nor the Shelf Registration has been filed on or prior to the applicable
Filing Date or (B) notwithstanding that the Issuers have consummated or
will consummate the Exchange Offer, the Issuers are required to file a
Shelf Registration and such Shelf Registration is not filed on or prior
to the Filing Date applicable thereto, then, commencing on the day
after any such Filing Date, Liquidated Damages shall accrue on the
principal amount of the Securities at a rate of $0.05 per week per
$1,000 principal amount of Notes for the first 90 days immediately
following each such Filing Date, and such Liquidated Damages shall
increase by an additional $0.05 per week per $1,000 principal amount of
Notes at the beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer Registration Statement
nor the Shelf Registration is declared effective by the SEC on or prior
to the relevant Effectiveness Date or (B) notwithstanding that the
Issuers have consummated or will consummate the Exchange Offer, the
Issuers are required to file a Shelf Registration and such Shelf
Registration is not declared effective by the SEC on or prior to the
Effectiveness Date in respect of such Shelf Registration, then,
commencing on the day after such Effectiveness Date, Liquidated Damages
shall accrue on the principal amount of the Securities at a rate of
$0.05 per week per $1,000 principal amount of Notes for the first 90
days immediately following the day after such Effectiveness Date, and
such Liquidated Damages shall increase by an additional $0.05 per week
per $1,000 principal amount of Notes at the beginning of each
subsequent 90-day period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes for
all Securities validly tendered in accordance with the terms of the
Exchange Offer on or prior to the 210th day after the Issue Date or (B)
if applicable, a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during the
Effectiveness Period (other than during any Market-Making Period),
except in the case of a Blackout Period relating to such Shelf
Registration, then Liquidated
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Damages shall accrue on the principal amount of the Securities at a
rate of $0.05 per week per $1,000 principal amount of Notes for the
first 90 days commencing on (x) the 210th day after the Issue Date, in
the case of (A) above, or (y) the day such Shelf Registration ceases to
be effective in the case of (B) above, and such Liquidated Damages
shall increase by an additional $0.05 per week per $1,000 principal
amount of Notes at the beginning of each such subsequent 90-day period;
provided, however, that (1) the Liquidated Damages on the Notes may not accrue
under more than one of the foregoing clauses (i)-(iii) (each such event, a
"Registration Default") at any one time and may not exceed at any one time in
the aggregate $0.20 per week per $1,000 principal amount of Notes, (2) a Holder
of Notes or Exchange Notes who is not entitled to the benefits of the Shelf
Registration Statement shall not be entitled to Liquidated Damages with respect
to a Registration Default that pertains to the Shelf Registration Statement, and
(3) a Holder of Notes constituting an unsold allotment from the original sale of
the Notes or who otherwise is not entitled to participate in the Exchange Offer
shall not be entitled to Liquidated Damages by reason of a Registration Default
that pertains to the Exchange Offer; provided, further, that if a Registration
Statement ceases to be effective in the case of clause (iii) above on account of
a Blackout Period, Liquidated Damages will cease to accrue during such Blackout
Period; provided, further, however, that (1) upon the filing of the applicable
Exchange Offer Registration Statement or the Shelf Registration as required
hereunder (in the case of clause (i) above of this Section 4(a)), (2) upon the
effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement as required hereunder (in the case of clause (ii) of this
Section 4), or (3) upon the exchange of the applicable Exchange Notes for all
Securities tendered (in the case of clause (iii)(A) of this Section 4), or upon
the effectiveness of the Shelf Registration Statement which had ceased to remain
effective (in the case of clause (iii)(B) of this Section 4), Liquidated Damages
on the Notes in respect of which such events relate as a result of such clause
(or the relevant subclause thereof), as the case may be, shall cease to accrue.
A confidential submission to the SEC shall qualify as a filing for purposes of
the filing deadlines above.
(b) The Issuers shall notify the Trustee within two Business Days after
each and every date on which an event occurs in respect of which Liquidated
Damages is required to be paid (an "Event Date"). Any amounts of Liquidated
Damages due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash semiannually on each May 1 and November 1 (to the holders of
record on the April 15 and October 15 immediately preceding such dates),
commencing with the first such date occurring after any such Liquidated Damages
commences to accrue. The amount of Liquidated Damages will be determined by
multiplying the applicable Liquidated Damages rate by the principal amount of
the Registrable Notes, multiplied by a fraction, the numerator of which is the
number of days such Liquidated Damages rate was applicable during such period,
and the denominator of which is seven.
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(c) The parties hereto agree that the Liquidated Damages provided for
in this Section 4 constitute the sole damages that will be suffered by Holders
of Registrable Notes by reason of the occurrence of any of the events described
in Section 4(a)(i) - (iii) hereof.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the
sale of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Issuers hereunder each of the Issuers shall:
(a) Prepare and file with the SEC prior to the Filing Date a
Registration Statement or Registration Statements as prescribed by
Section 2 or 3 hereof, and use its reasonable best efforts to cause
each such Registration Statement to become effective and remain
effective as provided herein; provided, however, that if (1) such
filing is pursuant to Section 3 hereof, or (2) a Prospectus contained
in the Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any
Exchanging Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto from whom any Issuer has received
written notice that it will be an Exchanging Dealer in the Exchange
Offer, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Issuers shall furnish to and
afford the Holders of the Registrable Notes included in such
Registration Statement (with respect to a Registration Statement filed
pursuant to Section 3 hereof) or each such Exchanging Dealer (with
respect to any such Registration Statement), as the case may be, their
counsel and the managing underwriters, if any, a reasonable opportunity
to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five business days
prior to such filing). The Issuers shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the
Holders of a majority in aggregate principal amount of the Registrable
Notes included in such Registration Statement, their counsel, or the
managing underwriters, if any, shall reasonably object on a timely
basis.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or
Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Shelf Registration Statement or Exchange Offer
Registration Statement continuously effective for the Effectiveness
Period, the Market-Making Period or the Applicable Period,
respectively; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to
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Rule 424; and comply with the provisions of the Securities Act and the
Exchange Act applicable to each of them with respect to the disposition
of all securities covered by such Registration Statement as so amended
or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by an Exchanging Dealer
covered by any such Prospectus; provided that none of the foregoing
shall be required during any Blackout Period. Other than during any
Blackout Period, the Issuers shall be deemed not to have used their
reasonable best efforts to keep a Registration Statement effective
during the Effectiveness Period or the Applicable Period, as the case
may be, relating thereto if any Issuer voluntarily takes any action
that would result in selling Holders of the Registrable Notes covered
thereby or Exchanging Dealers seeking to sell Exchange Notes not being
able to sell such Registrable Notes or such Exchange Notes during that
period unless such action is required by applicable law or permitted by
this Agreement.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Exchanging Dealer who
seeks to sell Exchange Notes during the Applicable Period relating
thereto from whom any Issuer has received written notice that it will
be an Exchanging Dealer in the Exchange Offer, notify the selling
Holders of Registrable Notes (with respect to a Registration Statement
filed pursuant to Section 3 hereof), or each such Exchanging Dealer
(with respect to any such Registration Statement), as the case may be,
their counsel and the managing underwriters, if any, promptly (but in
any event within one business day), and confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement
or any post-effective amendment, when the same has become effective
under the Securities Act (including in such notice a written statement
that any Holder may, upon request, obtain, at the sole expense of the
Issuers, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the SEC of any stop order suspending
the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time
when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange
Notes by Exchanging Dealers the representations and warranties of the
Issuers contained in any agreement (including any underwriting
agreement) contemplated by Section 5(n) hereof cease to be true and
correct, (iv) of the receipt by any Issuer of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Notes or the Exchange Notes to be sold by any Exchanging Dealer for
offer or sale in any jurisdiction, or the initiation or threatening of
any proceeding for
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such purpose, (v) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, it will not contain 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 that in
the case of the Prospectus, it will not contain 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, in light of
the circumstances under which they were made, not misleading, and (vi)
of the Issuers' determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Registrable Notes or the Exchange Notes to be sold by any
Exchanging Dealer, for sale in any jurisdiction, and, if any such order
is issued, to use its reasonable best efforts to obtain the withdrawal
of any such order at the earliest practicable moment.
(e) Subject to Section 3(d), if a Shelf Registration is filed
pursuant to Section 3 and if requested during the Effectiveness Period
by the managing underwriter or underwriters (if any), the Holders of a
majority in aggregate principal amount of the Registrable Notes being
sold in connection with an underwritten offering or any Exchanging
Dealer, (i) as promptly as practicable incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders, any Exchanging
Dealer or counsel for any of them reasonably request to be included
therein, (ii) 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 (iii)
supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Exchanging Dealer who
seeks to sell Exchange Notes during the Applicable Period, furnish to
each selling Holder of Registrable Notes (with respect to a
Registration Statement filed pursuant to Section 3 hereof) and to each
such Exchanging Dealer who so requests (with respect to any such
Registration Statement) and to their respective
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counsel and each managing underwriter, if any, at the sole expense of
the Issuers, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Exchanging Dealer who
seeks to sell Exchange Notes during the Applicable Period, deliver to
each selling Holder of Registrable Notes (with respect to a
Registration Statement filed pursuant to Section 3 hereof), or each
such Exchanging Dealer (with respect to any such Registration
Statement), as the case may be, their respective counsel, and the
underwriters, if any, at the sole expense of the Issuers, as many
copies of the Prospectus or Prospectuses (including each form of
preliminary prospectus) and each amendment or supplement thereto and
any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section
5, the Issuers hereby consent to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Exchanging Dealer, as the case may be,
and the underwriters or agents, if any, and dealers, if any, in
connection with the offering and sale of the Registrable Notes covered
by, or the sale by Exchanging Dealers of the Exchange Notes pursuant
to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or
Exchange Notes or any delivery of a Prospectus contained in the
Exchange Offer Registration Statement by any Exchanging Dealer who
seeks to sell Exchange Notes during the Applicable Period, use its
reasonable best efforts to register or qualify, and to cooperate with
the selling Holders of Registrable Notes or each such Exchanging
Dealer, as the case may be, the managing underwriter or underwriters,
if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Exchanging Dealer, or the managing
underwriter or underwriters reasonably request in writing; provided,
however, that where Exchange Notes held by Exchanging Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Issuers agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
Exchanging Dealers or the Registrable
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Notes covered by the applicable Registration Statement; provided,
however, that no Issuer shall be required to (A) qualify generally to
do business in any jurisdiction where it is not then so qualified, (B)
take any action that would subject it to general service of process in
any such jurisdiction where it is not then so subject, or (C) subject
itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
(subject to applicable requirements contained in the Indenture) and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may request.
(j) Use their reasonable best efforts to cause the Registrable
Notes covered by the 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 or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Notes, except as may be required solely as a consequence of the nature
of such selling Holder's business, in which case the Issuers will
cooperate in all respects with the filing of such Registration
Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Exchanging Dealer who
seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi)
hereof, as promptly as practicable (except, in the case of a Blackout
Period) prepare and (subject to Section 5(a) hereof) file with the SEC,
at the sole expense of the Issuers, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes being
sold thereunder (with respect to a Registration Statement filed
pursuant to Section 3 hereof) or to the purchasers of the Exchange
Notes to whom such Prospectus will be delivered by an Exchanging Dealer
(with respect to any such Registration Statement), any such Prospectus
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
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(l) Use its reasonable best efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the
case may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement or the
Exchange Notes, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
(n) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Securities, and take all such other
actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Issuers (including any
acquired business, properties or entity, if applicable), and the
Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings
of debt securities similar to the Securities, and confirm the same in
writing if and when requested; (ii) obtain the written opinions of
counsel to the Issuers, and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions reasonably requested in underwritten
offerings; (iii) obtain "cold comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent
certified public accountants of the Issuers, or of any business
acquired by the Issuers, for which financial statements and financial
data are, or are required to be, included or incorporated by reference
in the Registration Statement), addressed to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Securities;
and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable to
the sellers and underwriters, if any, than those set forth in Section 7
hereof (or such other provisions and procedures reasonably acceptable
to Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents, if any). The above shall be done
at
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each closing under such underwriting agreement, or as and to the extent
required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Exchanging Dealer who
seeks to sell Exchange Notes during the Applicable Period, make
available for inspection by any Initial Purchaser, any selling Holder
of such Registrable Notes being sold (with respect to a Registration
Statement filed pursuant to Section 3 hereof), or each such Exchanging
Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such
Exchanging Dealer (with respect to any such Registration Statement), as
the case may be, or underwriter (any such Initial Purchasers, Holders,
Exchanging Dealers, underwriters, attorneys, accountants or agents,
collectively, the "Inspectors"), upon written request, at the offices
where normally kept, during reasonable business hours, all pertinent
financial and other records, pertinent corporate documents and
instruments of the Issuers and subsidiaries of the Issuers
(collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Issuers and any
of their respective subsidiaries to supply all information
("Information") reasonably requested by any such Inspector in
connection with such due diligence responsibilities. Each Inspector
shall agree in writing that it will keep the Records and Information
confidential and that it will not disclose any of the Records that any
Issuer determines, in good faith, to be confidential and notifies the
Inspectors in writing are confidential unless (i) the disclosure of
such Records or Information is necessary to avoid or correct a
misstatement or omission in such Registration Statement or Prospectus,
(ii) the release of such Records or Information is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, or
(iii) the information in such Records or Information has been made
generally available to the public other than by an Inspector or an
"affiliate" (as defined in Rule 405) thereof; provided, however, that
prior notice shall be provided as soon as practicable to any Issuer of
the potential disclosure of any information by such Inspector pursuant
to clauses (i) or (ii) of this sentence to permit the Issuers to obtain
a protective order (or waive the provisions of this paragraph (o)) and
that such Inspector shall take such actions as are reasonably necessary
to protect the confidentiality of such information (if practicable) to
the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the
Holder or any Inspector.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for
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in Section 2(a) hereof, as the case may be, to be qualified under the
TIA not later than the effective date of the first Registration
Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Notes, to effect such changes (if any) to
such indenture as may be required for such indenture to be so qualified
in accordance with the terms of the TIA; and execute, and use their
best efforts to cause such trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such indenture to be so
qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders with regard to
any applicable Registration Statement, a consolidated earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any fiscal
quarter (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company, after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of the Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers, in a form
customary for underwritten transactions, addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, that the
Exchange Notes or Private Exchange Notes, as the case may be, the
related Guarantee and the related indenture constitute legal, valid and
binding obligations of the Issuers, enforceable against the Issuers in
accordance with their respective terms, subject to customary exceptions
and qualifications. If the Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Notes by Holders to
the Company (or to such other Person as directed by the Issuers), in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Issuers shall xxxx, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being cancelled in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; in no event shall such Registrable Notes be marked as paid
or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings
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required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other steps
necessary to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement contemplated
hereby.
The Issuers may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Issuers such information
regarding such seller and the distribution of such Registrable Notes as the
Issuers may, from time to time, reasonably request. The Issuers may exclude from
such registration the Registrable Notes of any seller so long as such seller
fails to furnish such information within a reasonable time after receiving such
request. Each seller as to which any Shelf Registration is being effected agrees
to furnish promptly to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such seller
not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Exchanging Dealer agrees by
its acquisition of such Registrable Notes or Exchange Notes to be sold by such
Exchanging Dealer, as the case may be, that, upon actual receipt of any notice
from the Company of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such Registration
Statement or Prospectus or Exchange Notes to be sold by such Holder or
Exchanging Dealer, as the case may be, until such Holder's or Exchanging
Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in writing (the
"Advice") by the Issuers that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event that the Issuers shall give any such notice, each of the Applicable
Period, the Market-Making Period and the Effectiveness Period shall be extended
by the number of days during such periods from and including the date of the
giving of such notice to and
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including the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such Exchanging Dealer,
as the case may be, shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers (other than any underwriting discounts or
commissions) shall be borne by the Issuers, whether or not the Exchange Offer
Registration Statement or any Shelf Registration is filed or becomes effective
or the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) reasonable fees and expenses of compliance with
state securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by an Exchanging Dealer
during the Applicable Period)), (ii) printing expenses, including, without
limitation, expenses of printing certificates for Registrable Notes or Exchange
Notes in a form eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be sold by any
Exchanging Dealer during the Applicable Period, as the case may be, (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Issuers and, in case of a Shelf Registration, reasonable fees
and disbursements of one special counsel for all of the sellers of Registrable
Notes (exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees
and disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including, without limitation, the expenses of any
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuers desire such insurance, (vii)
fees and expenses of all other Persons retained by the Issuers, (viii) internal
expenses of the Issuers (including, without limitation, all salaries and
expenses of officers and employees of the Issuers performing legal or accounting
duties), (ix) the expense of any annual audit, (x) any fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange, and the obtaining of a rating of the securities, in
each case, if applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, indentures and any other documents necessary in order to comply with
this Agreement.
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7. Indemnification and Contribution. (a) Each of the Issuers agree,
jointly and severally, to indemnify and hold harmless each Holder of Registrable
Notes and each Exchanging Dealer selling Exchange Notes during the Applicable
Period, and each Person, if any, who controls such Person or its affiliates
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(each, a "Participant") against any losses, claims, damages or liabilities to
which any Participant or such controlling person may become subject under the
Act, the Exchange Act or otherwise, insofar as any such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
any Issuer contained in any application or any other document or any
amendment or supplement thereto executed by any Issuer based upon
written information furnished by or on behalf of any Issuer filed in
any jurisdiction in order to qualify the Notes under the securities or
"Blue Sky" laws thereof or filed with the SEC or any securities
association or securities exchange (each, an "Application");
(ii) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if any of the
Issuers shall have furnished any amendments or supplements thereto) or
any preliminary prospectus; or
(iii) the omission or alleged omission to state, in any
Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if any of the Issuers shall have furnished any
amendments or supplements thereto) or any preliminary prospectus or any
Application or any other document or any amendment or supplement
thereto, a material fact required to be stated therein or necessary to
make the statements therein not misleading;
and will reimburse, as incurred, the Participant and each such controlling
person for any legal or other expenses incurred by the Participant or such
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, (i) the Issuers will not be
liable in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Registration Statement (or
any amendment thereto) or Prospectus (as amended or supplemented if any of the
Issuers shall have furnished any amendments or supplements thereto) or any
preliminary prospectus or Application or any amendment or supplement thereto in
reliance upon and in conformity with information relating to any Participant
furnished to the Issuers by such Participant specifically for use therein, and
(ii) the Issuers shall not be liable to any Participant under the indemnity
agreement in this subsection (a) with respect to the preliminary prospectus to
the extent that any such loss, claim, damage, liability or expense of such
Participant results from the fact that such Participant sold Notes to
-24-
a person as to whom it shall be established that there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus (or
the Prospectus as then amended or supplemented if the Issuers shall have
furnished such Participant with such amendment or supplement thereto on a timely
basis), in any case where such delivery is required by applicable law and the
loss, claim, damage, liability or expense of such Participant results from an
untrue statement or omission of a material fact contained in the preliminary
prospectus which was corrected in the Prospectus (or in the Prospectus as then
amended or supplemented if the Issuers shall have furnished such Participant
with such amendment or supplement thereto on a timely basis). The indemnity
provided for in this Section 7 will be in addition to any liability that the
Issuers may otherwise have to the indemnified parties. The Issuers shall not be
liable under this Section 7 for any settlement of any claim or action effected
without its prior written consent, which shall not be unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees to indemnify
and hold harmless the Issuers, their directors, their officers and each person,
if any, who controls the Issuers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus,
or (ii) the omission or the alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished to
the Issuers by the Participant, specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Issuers or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. The indemnity
provided for in this Section 7 will be in addition to any liability that the
Participants may otherwise have to the indemnified parties. The Participants
shall not be liable under this Section 7 for any settlement of any claim or
action effected without their consent, which shall not be unreasonably withheld.
The Issuers shall not, without the prior written consent of such Participant,
effect any settlement or compromise of any pending or threatened proceeding in
respect of which any Participant is or could have been a party, or indemnity
could have been sought hereunder by any Participant, unless such settlement (A)
includes an unconditional written release of the Participants, in form and
substance reasonably satisfactory to the Participants, from all liability on
claims that are the subject matter of such proceeding and (B) does not include
any statement as to an admission of fault, culpability or failure to act by or
on behalf of any Participant.
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(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action for which such indemnified party is
entitled to indemnification under this Section 7, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party of the commencement thereof in
writing; but the omission to so notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Participants who sold a majority in
interest of the Registrable Notes and Exchange Notes sold by all such
Participants in the case of paragraph (a) of this Section 7 or the Issuers in
the case of paragraph (b) of this Section 7, representing the indemnified
parties under such paragraph (a) or paragraph (b), as the case may be, who are
parties to such action or actions) or (ii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they
-26-
are incurred. After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and expenses of
any settlement of such action effected by such indemnified party without the
prior written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 7, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 7 is unavailable to, or insufficient to
hold harmless, an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received by
the Issuers on the one hand and such Participant on the other shall be deemed to
be in the same proportion as the total proceeds from the offering (before
deducting expenses) of the Notes received by the Issuers bear to the total net
profit received by such Participant in connection with the sale of the Notes.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers on the one hand, or the Participants on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission, and any other equitable considerations appropriate in the
circumstances. The parties agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Participant shall
be obligated to make contributions hereunder that in the aggregate exceed the
total net profit received by such Participant in connection with the sale of the
Notes, less the aggregate amount of any damages that such Participant has
otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls a Participant within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Participants, and each
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director of any Issuer, each officer of any Issuer and each person, if any, who
controls any Issuer within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, shall have the same rights to contribution as the Issuers.
8. Rules 144 and 144A
Each of the Issuers covenants and agrees 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 in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time such Issuer is not required to file such reports, such Issuer
will, upon the request of any Holder or beneficial owner of Registrable Notes,
make available such information necessary to permit sales pursuant to Rule 144A.
Each of the Issuers further covenants and agrees, for so long as any Registrable
Notes remain outstanding that it will take such further action as any Holder of
Registrable Notes may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144(k) under the Securities Act and Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and the Issuers shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Issuers' other issued and outstanding
securities under any such agreements. The Issuers will not enter into any
agreement with
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respect to any of their securities which will grant to any Person piggy-back
registration rights with respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (I) the Company, and (II)(A) the Holders of not less than a majority
in aggregate principal amount of the then outstanding Registrable Notes and (B)
in circumstances that would adversely affect the Exchanging Dealers, the
Exchanging Dealers holding not less than a majority in aggregate principal
amount of the Exchange Notes held by all Exchanging Dealers; provided, however,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented without the prior written consent of each Holder and each
Exchanging Dealer (including any person who was a Holder or Exchanging Dealer of
Registrable Notes or Exchange Notes, as the case may be, disposed of pursuant to
any Registration Statement) affected by any such amendment, modification or
supplement. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Notes whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of Registrable Notes may
be given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any Exchanging
Dealer, at the most current address of such Holder or Exchanging
Dealer, as the case may be, set forth on the records of the registrar
under the Indenture.
(ii) if to the Issuers, at the address as follows:
c/o Jostens, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
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with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Exchanging Dealers; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Notes in violation of the terms of the Purchase Agreement or the
Indenture.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER
LAW.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative
-30-
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers or Their Respective Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Issuers
or their respective affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes and
Exchanging Dealers are intended third-party beneficiaries of this Agreement, and
this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
JOSTENS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
AMERICAN YEARBOOK COMPANY, INC.,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President
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The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
UBS WARBURG LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
Leveraged Finance
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------
Name: X. Xxxxxxxxx Xxxxxxxx
Title: Director
Leveraged Finance
XXXXXXX, SACHS & CO.
/s/ XXXXXXX, XXXXX & CO.
----------------------------------