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Execution Copy
REGISTRATION RIGHTS AGREEMENT
Dated as of December 16, 1998
by and among
Mail-Well I Corporation
The Guarantors listed on Schedule A
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
Prudential Securities Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Inc.
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This Registration Rights Agreement (this "Agreement") is
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made and entered into as of December 16, 1998, by and among Mail-Well I
Corporation, a Delaware corporation (the "Company"), each of the
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entities listed on Schedule A, attached hereto (each a "Guarantor"
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and, collectively, the "Guarantors"), and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
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Securities Corporation, Prudential Securities Inc., Bear, ▇▇▇▇▇▇▇ & Co.
Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Inc. (each an "Initial Purchaser" and,
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collectively, the "Initial Purchasers"), each of whom has agreed to
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purchase the Company's 8-3/4% Series A Senior Subordinated Notes due
2008 (the "Series A Notes") pursuant to the Purchase Agreement (as
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defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated December 11,1998 (the "Purchase Agreement"), by and among the
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Company, the Guarantors and the Initial Purchasers. In order to induce
the Initial Purchasers to purchase the Series A Notes, the Company has
agreed to provide the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 9 of the
Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
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Advice: As defined in Section 6(d) hereof.
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Business Day: Any day except a Saturday, Sunday or other
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day in the City of New York, or in the city of the corporate trust
office of the Trustee, on which banks are authorized to close.
Broker-Dealer: Any broker or dealer registered under the
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Exchange Act.
Broker-Dealer Transfer Restricted Securities: Series B
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Notes that are acquired by a Broker-Dealer in the Exchange Offer in
exchange for Series A Notes that such Broker-Dealer acquired for its own
account as a result of market making activities or other trading
activities (other than Series A Notes acquired directly from the Company
or any of its affiliates).
Certificated Securities: As defined in the Indenture.
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Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
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Consummate: An Exchange Offer shall be deemed
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"Consummated" for purposes of this Agreement upon the occurrence of (a)
the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Series B Notes to be issued in
the Exchange Offer, (b) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a
period not less than the minimum period required pursuant to Section
3(b) hereof and (c) the
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delivery by the Company to the Registrar under the Indenture of Series B
Notes in the same aggregate principal amount as the aggregate principal
amount of Series A Notes tendered by Holders thereof pursuant to the
Exchange Offer.
Damages Payment Date: With respect to the Series A
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Notes, each Interest Payment Date.
Exchange Act: The Securities Exchange Act of 1934, as
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amended.
Exchange Offer: The registration by the Company under
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the Act of the Series B Notes pursuant to the Exchange Offer
Registration Statement pursuant to which the Company shall offer the
Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted
Securities for Series B Notes in an aggregate principal amount equal to
the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
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Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial
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Purchasers propose to sell the Series A Notes to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Act, and to certain "accredited investors," as such term is defined in
Rule 501(a)(1), (2), (3), (5) and (7) of Regulation D under the Act.
Global Noteholder: As defined in the Indenture.
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Holders: As defined in Section 2 hereof.
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Indemnified Holder: As defined in Section 8(a) hereof.
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Indenture: The Indenture, dated the Closing Date, among
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the Company, the Guarantors and the Trustee, pursuant to which the Notes
are to be issued, as such Indenture is amended or supplemented from time
to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and
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the Notes.
Majority Holders: As defined in Section 6(c) hereof.
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NASD: National Association of Securities Dealers, Inc.
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Notes: The Series A Notes and the Series B Notes.
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Person: An individual, partnership, corporation, trust,
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unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration
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Statement at the time such Registration Statement is declared effective,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
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Record Holder: With respect to any Damages Payment Date,
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each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall
occur.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of
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the Company and the Guarantors relating to (a) an offering of Series B
Notes pursuant to an Exchange Offer or (b) the registration for resale
of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, in each case, (i) which is filed pursuant to the provisions
of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds
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Broker-Dealer Transfer Restricted Securities.
Series B Notes: The Company's 8-3/4% Series B Senior
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Subordinated Notes due 2008 to be issued pursuant to the Indenture (i)
in the Exchange Offer or (ii) upon the request of any Holder of Notes
covered by a Shelf Registration Statement, in exchange for such Series A
Notes.
Shelf Registration Period: As defined in Section 4(a)
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hereof.
Shelf Registration Statement: As defined in Section 4(a)
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hereof.
Suspension Period: As defined in Section 4(a) hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
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77, et seq.) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, until the
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earliest to occur of (a) the date on which such Note is exchanged in the
Exchange Offer and entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements of
the Act, (b) the date on which such Note has been disposed of in
accordance with a Shelf Registration Statement, (c) the date on which
such Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein) or (d) the date
on which such Note is distributed to the public pursuant to Rule 144
under the Act.
Trustee: State Street Bank and Trust Company, as trustee
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under the Indenture.
Underwritten Registration or Underwritten Offering: A
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registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "Holder") whenever such Person owns Transfer
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Restricted Securities.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law (after the procedures set forth in Section
6(a)(i) below have been complied with), the Company and the Guarantors
shall (i) cause to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 90 days after the
Closing Date, the Exchange Offer Registration Statement, (ii) use its
best efforts to cause such Exchange Offer Registration Statement to
become effective at the earliest possible time, but in no event later
than 180 days after the Closing Date, (iii) in connection with the
foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws
of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence and Consummate the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration
of the Series B Notes to be offered in exchange for the Series A Notes
that are Transfer Restricted Securities and to permit sales of Broker-
Dealer Transfer Restricted Securities by Restricted Broker-Dealers as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their
respective best efforts to cause the Exchange Offer Registration
Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be
less than 20 Business Days. The Company and the Guarantors shall cause
the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Notes shall be included
in the Exchange Offer Registration Statement. The Company and the
Guarantors shall use their respective best efforts to cause the Exchange
Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter.
(c) The Company shall include a "Plan of Distribution"
section in the Prospectus contained in the Exchange Offer Registration
Statement and indicate therein that any Restricted Broker-Dealer who
holds Series A Notes that are Transfer Restricted Securities and that
were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities, may exchange such
Series A Notes (other than Transfer Restricted Securities acquired
directly from the Company or any Affiliate of the Company) pursuant to
the Exchange Offer; however, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore, deliver
a prospectus meeting the requirements of the Act in connection with its
initial sale of each Series B Note received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be satisfied
by the delivery by such Broker-Dealer of the Prospectus contained in the
Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such
sales of Broker-Dealer Transfer Restricted Securities by Restricted
Broker-Dealers that the Commission may require in order to permit such
sales pursuant thereto, but such "Plan of Distribution" shall not name
any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer, except to the extent required by the Commission as a
result of a change in policy after the date of this Agreement.
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The Exchange Offer shall not be subject to any conditions,
other than (i) that the Exchange Offer, or the making of any exchange by
a Holder, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) that no action or
proceeding shall have been instituted or threatened in any court or by
or before any governmental agency or body with respect to the Exchange
Offer, (iii) that there shall not have been adopted or enacted any law,
statute, rule or regulation, (iv) that there shall not have been
declared by United States federal or New York state authorities a
banking moratorium, (v) that trading on the New York Stock Exchange or
generally in the United States over-the-counter market shall not have
been suspended by order of the Commission or any other governmental
authority and (vi) such other conditions as may be reasonably acceptable
to the Initial Purchasers, in each of clauses (ii) through (v), which,
in the Company's judgment, would reasonably be expected to impair the
ability of the Company to proceed with the Exchange Offer.
The Company and the Guarantors shall use their respective
best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the
provisions of Section 6(c) below to the extent necessary to ensure that
it is available for sales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers, and to ensure that such
Registration Statement conforms with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of one year, if required, from
the date on which the Exchange Offer is Consummated.
The Company and the Guarantors shall promptly provide
sufficient copies of the latest version of such Prospectus to such
Restricted Broker-Dealers promptly upon request, at any time during such
one-year period in order to facilitate such sales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not
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required to file an Exchange Offer Registration Statement with respect
to the Series B Notes because the Exchange Offer is not permitted by
applicable law (after the procedures set forth in Section 6(a)(i) below
have been complied with) or Commission policy, (ii) the Exchange Offer
is not consummated within 210 days of the Closing Date or (iii) if any
Holder of Transfer Restricted Securities shall notify the Company within
20 Business Days following the Consummation of the Exchange Offer that
(A) such Holder has been advised by counsel that such Holder may be
prohibited by law or Commission policy from participating in the
Exchange Offer or (B) such Holder has been advised by counsel that it
may not resell the Series B 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 by such Holder or (C) such
Holder is a Broker-Dealer and holds Series A Notes acquired directly
from the Company or one of its affiliates, then the Company and the
Guarantors shall (x) cause to be filed on or prior to 30 days after the
date on which the Company determines that it is not required to file the
Exchange Offer Registration Statement pursuant to clause (i) above, 30
days after the date on which the obligation specified in clause (ii)
above becomes not satisfied or 30 days after the date on which the
Company receives the notice specified in clause (iii) above (but in each
case no earlier than 90 days after the date hereof) a shelf registration
statement pursuant to Rule 415 under the Act (which may be an amendment
to the Exchange Offer Registration Statement (in either event, the
"Shelf Registration Statement")), relating to all Transfer Restricted
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Securities the Holders of which shall have provided the information
required pursuant to Section 4(b) hereof, and shall (y) use their
respective best efforts to cause such Shelf Registration Statement to
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become effective on or prior to 90 days after the date on which the
Company and the Guarantors become obligated to file such Shelf
Registration Statement (but no earlier than 180 days after the date
hereof). If, after the Company has filed an Exchange Offer Registration
Statement which satisfies the requirements of Section 3(a) above, the
Company is required to file and make effective a Shelf Registration
Statement solely because the Exchange Offer shall not be permitted under
applicable federal law, then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of
clause (x) above. Such an event shall have no effect on the
requirements of clause (y) above. The Company and the Guarantors shall
use their respective best efforts to keep the Shelf Registration
Statement discussed in this Section 4(a) continuously effective,
supplemented and amended as required by and subject to the provisions of
Sections 6(b) and (c) hereof to the extent necessary to ensure that it
is available for sales of Transfer Restricted Securities by the Holders
thereof entitled to the benefit of this Section 4(a), and to ensure that
it conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time
to time, for a period of at least three years (as extended pursuant to
Section 6(c)(i)) following the date on which such Shelf Registration
Statement first becomes effective under the Act or such shorter period
that will terminate when all the Transfer Restricted Securities covered
by the Shelf Registration Statement (i) have been sold pursuant thereto
(in any such case, such period being called the "Shelf Registration
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Period"), (ii) are distributed to the public pursuant to Rule 144 of
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the Securities Act or are saleable pursuant to Rule 144(k) under the
Securities Act and can be sold pursuant to Rule 144 without any
limitations under clauses (c), (e), (f) and (h) of Rule 144 (or any
successor rule thereof); provided, however, that the Company shall not
be obligated to keep the Shelf Registration Statement effective if (i)
the Company determines, in its reasonable judgment, upon advice of
counsel, as authorized by a resolution of its Board of Directors, that
the continued effectiveness and usability of the Shelf Registration
Statement would (x) require the disclosure of material information,
which the Company has a bona fide business reason for preserving as
confidential, or (y) interfere with any financing, acquisition,
corporate reorganization or other material transaction involving the
Company or any of its subsidiaries, provided that the failure to keep
the Shelf Registration Statement effective and usable for offers and
sales of Transfer Restricted Securities for such reasons shall last no
longer than 45 days in any 12-month period (whereafter a Registration
Default), and (ii) the Company promptly thereafter complies with the
requirements of Section 6(c)(i) hereof, if applicable. Any such period
during which the Company is excused from keeping the Shelf Registration
Statement effective and usable for offers and sales of Transfer
Restricted Securities is referred to herein as a "Suspension Period."
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A Suspension Period shall commence on and include the date that the
Company gives notice that the Shelf Registration Statement is no longer
effective or the prospectus included therein is no longer usable for
offers and sales of Transfer Restricted Securities as a result of the
application of the proviso in the second preceding sentence and shall
end on the earlier to occur of (1) the date on which each seller of
Transfer Restricted Securities covered by the Shelf Registration
Statement either receives the copies of the supplemented or amended
prospectus contemplated by Section 6(c)(i) hereof or is advised in
writing by the Company that use of the prospectus may be resumed and (2)
the expiration of the 45 days in any 12-month period during which one or
more Suspension Periods has been in effect.
(b) Provision by Holders of Certain Information in
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Connection with the Shelf Registration Statement. No Holder of
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Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Company in
writing, within 20 days after receipt of a request therefor, such
information specified in item 507 of Regulation S-K under the Act for
use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant
to Section 5 hereof unless and until such Holder
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shall have provided all such information. Each Holder as to which any
Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by
such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this
Agreement is not filed with the Commission on or prior to the date
specified for such filing in this Agreement, (ii) any such Registration
Statement has not been declared effective by the Commission on or prior
to the date specified for such effectiveness in this Agreement, (iii)
the Exchange Offer has not been Consummated within 30 Business Days
after the Exchange Offer Registration Statement is first declared
effective by the Commission or (iv) any Registration Statement required
by this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose
without being succeeded within three business days by a post-effective
amendment to such Registration Statement that cures such failure and
that is itself declared effective within such three business day period
(each such event referred to in clauses (i) through (iv), a
"Registration Default"; provided, however, that (A) any failure to
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file a Shelf Registration Statement as required by this Agreement shall
not constitute a Registration Default unless and until such failure
arises on or after the ninetieth (90th) day after the Closing Date and
(B) any failure to have declared effective a Shelf Registration
Statement as required by this Agreement shall not constitute a
Registration Default unless and until such failure arises on or after
the one hundred eightieth (180th) day after the Closing Date), then the
Company and the Guarantors hereby jointly and severally agree to pay
liquidated damages to each Holder of Transfer Restricted Securities with
respect to the first 90-day period immediately following the occurrence
of such Registration Default, in an amount equal to $.05 per week per
$1,000 principal amount of Transfer Restricted Securities held by such
Holder for each week or portion thereof that the Registration Default
continues. The amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount
of liquidated damages of $.50 per week per $1,000 principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, Holders
of Transfer Restricted Securities who do not provide in all material
respects the information required in Sections 4(b) or 6(a)(ii) hereof
will not be entitled to such Liquidated Damages. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the
Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii)
above, (3) upon Consummation of the Exchange Offer, in the case of (iii)
above, or (4) upon the filing of a post-effective amendment to the
Registration Statement or an additional Registration Statement that
causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made
usable in the case of (iv) above, the liquidated damages payable with
respect to the Transfer Restricted Securities as a result of such clause
(i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Global
Noteholder by wire transfer of immediately available funds or by federal
funds check and to Holders of Certificated Securities by mailing checks
to their registered addresses on each Damages Payment Date. All
obligations of the Company and the Guarantors set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.
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SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In
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connection with the Exchange Offer, the Company and the Guarantors shall
comply with all applicable provisions of Section 6(c) below, shall use
their respective best efforts to effect such exchange and to permit the
sale of Broker-Dealer Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof,
and shall comply with all of the following provisions:
(i) If, following the date hereof there has been
published a change in Commission policy with respect to
exchange offers such as the Exchange Offer, such that in the
reasonable opinion of counsel to the Company there is a
substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Company and the
Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and
the Guarantors to Consummate an Exchange Offer for such Series
A Notes. The Company and the Guarantors hereby agree to pursue
the issuance of such a decision to the Commission staff level,
but shall not be required to take action to effect a change of
stated or recognized Commission policy. In connection with the
foregoing, the Company and the Guarantors hereby agree to (A)
participate in telephonic conferences with the Commission, (B)
deliver to the Commission staff an analysis prepared by counsel
to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursue a resolution
(which need not be favorable) by the Commission staff of such
submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon
the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company and the
Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an affiliate (as defined in Rule
405 of the Act) of the Company, (B) it is not engaged in, and
does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution
of the Series A Notes to be issued in the Exchange Offer,
(C) it is acquiring the Series B Notes in its ordinary course
of business and (D) if such Holder is a broker-dealer, that it
will receive Series B Notes for its own account in exchange for
Series A Notes that were acquired as a result of market-making
activities or other trading activities and that it will deliver
a prospectus in connection with any resale of such Series B
Notes. Each Holder shall be required to make such other
representations as may be reasonably necessary under applicable
Commission rules, regulations or interpretations to render the
use of Form S-4 or another appropriate form under the
Securities Act available and will be required to agree to
comply with their agreements and covenants set forth in this
Agreement. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired
in the Exchange Offer (1) could not under Commission policy as
in effect on the date of this Agreement rely on the position of
the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc.
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(available June 5, 1991) and Exxon Capital Holdings
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Corporation (available May 13, 1988), as interpreted in the
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Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including, if applicable, any
no-action letter obtained pursuant to clause (i) above), and
(2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must
be covered by an effective registration statement containing
the
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selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K if the resales are of
Series B Notes obtained by such Holder in exchange for Series
A Notes acquired by such Holder directly from the Company or
an affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall,
if requested by the Commission, provide a supplemental letter
to the Commission (A) stating that the Company and the
Guarantors are registering the Exchange Offer in reliance on
the position of the Commission enunciated in Exxon Capital
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Holdings Corporation (available May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------- ---------------
and Co., Inc. (available June 5, 1991) and, if applicable, any
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no-action letter obtained pursuant to clause (i) above, (B)
including a representation that neither the Company nor any
Guarantor has entered into any arrangement or understanding
with any Person to distribute the Series B Notes to be received
in the Exchange Offer and that, to the best of the Company's
and each Guarantor's information and belief, each Holder
participating in the Exchange Offer is acquiring the Series B
Notes in its ordinary course of business and has no arrangement
or understanding with any Person to participate in the
distribution of the Series B Notes received in the Exchange
Offer and (C) any other undertaking or representation required
by the Commission as set forth in any no-action letter obtained
pursuant to clause (i) above.
(b) Shelf Registration Statement. In connection with
----------------------------
the Shelf Registration Statement, the Company and the Guarantors shall
comply with all the provisions of Section 6(c) below and shall use their
respective best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof),
and pursuant thereto the Company and the Guarantors will prepare and
file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof.
(c) General Provisions. In connection with any
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Registration Statement and any related Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Exchange Offer Registration
Statement and the related Prospectus, to the extent that the same are
required to be available to permit sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers), the Company and the
Guarantors shall:
(i) use their respective best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company and the
Guarantors shall (1) file promptly an appropriate amendment to
such Registration Statement (which, in the case of clause (A),
corrects any such misstatement or omission) and (2) use their
respective best efforts to cause such amendment to be declared
effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter.
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the
9
applicable period set forth in Section 3 or 4 hereof, or such
shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act, and to comply fully with Rules
424, 430A and 462, as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriters, if any, and selling
Holders promptly and, if requested by such Persons, confirm
such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes,
(D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or
supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to
or changes in the Registration Statement in order to make the
statements therein not misleading, or that requires the making
of any additions to or changes in the Prospectus in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company and the Guarantors
shall use their respective best efforts to obtain the
withdrawal or lifting of such order at the earliest possible
time;
(iv) if requested by any of the Initial Purchasers or
the managing underwriter, if any, with respect to the
Registration Statement, the Company shall furnish to each
Initial Purchaser or such managing underwriter, prior to the
filing thereof with the Commission, a copy of the applicable
registration statement and each amendment thereof and each
supplement, if any, to the prospectus included therein. The
Company shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as
the Initial Purchasers or managing underwriter reasonably may
propose.
(v) make available at reasonable times for inspection
by representatives appointed by Holders of a majority in
aggregate principal amount of Transfer Restricted Securities
(the "Majority Holders"), any managing underwriter
----------------
participating in any disposition pursuant to such Registration
Statement and one attorney or accountant retained by such
Majority Holders or such managing underwriters, all relevant
financial and other records, pertinent corporate documents and
properties of the Company and the Guarantors and cause the
Company's and the Guarantors' officers, directors and employees
to supply relevant information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with
such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness; provided, however,
10
that any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of
such information shall be kept confidential by the Holders or any
such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required
by law, or such information becomes available to the public
generally through a third party without an accompanying obligation
of confidentiality.
(vi) if requested by any selling Holders or the
underwriters in connection with such sale, if any, promptly
include in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriters, if any,
may reasonably request to have included therein, including,
without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriters, the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable
after the Company is notified of the matters to be included in
such Prospectus supplement or post-effective amendment;
(vii) furnish to each selling Holder and each of the
underwriters in connection with such sale, if any, upon request
and without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits
incorporated therein by reference);
(viii) deliver to each selling Holder and each of the
underwriters, if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; the Company and the Guarantors hereby consent to the
use (in accordance with law) of the Prospectus and any
amendment or supplement thereto by each of the selling Holders
and each of the underwriters, if any, in connection with the
offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement
thereto;
(ix) enter into such agreements (including an
underwriting agreement) and make such representations and
warranties and take all such other actions in connection
therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any Registration
Statement contemplated by this Agreement as may be reasonably
requested by the Majority Holders of Transfer Restricted
Securities or managing underwriter in connection with any sale
or resale pursuant to any Registration Statement contemplated
by this Agreement (provided, however, that the Company shall
have no obligation to enter into an underwriting agreement or
permit an underwritten offering unless a request therefor shall
have been received from the holders of not less than 33 1/3% of
the aggregate principal amount of Transfer Restricted
Securities) and in such connection the Company and the
Guarantors shall:
(A) furnish (or in the case of paragraphs (2) and (3),
use its best efforts to furnish) to each selling Holder and
each underwriter, if any, upon the effectiveness of the
Shelf Registration Statement and to each Restricted Broker-
Dealer upon Consummation of the Exchange Offer:
(1) a certificate, dated the date of Consummation
of the Exchange Offer or the date of effectiveness of
the Shelf Registration Statement, as the case may be,
signed on behalf of
11
the Company and each Guarantor by (x) the President or any
Vice President and (y) a principal financial or accounting
officer of the Company and such Guarantor, confirming, as
of the date thereof, the matters set forth in paragraph (hh)
of Section 6 and paragraphs (a) and (b) of Section 9 of the
Purchase Agreement and such other similar matters as the
representative of the Majority Holders and/or managing
underwriter(s) may reasonably request;
(2) an opinion, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, of
counsel for the Company and the Guarantors covering
matters similar to those set forth in paragraph (e) of
Section 9 of the Purchase Agreement and such other
matter as the representative of the Majority Holders
and/or managing underwriters may reasonably request,
and in any event including a statement to the effect
that such counsel has participated in conferences with
officers and other representatives of the Company and
the Guarantors, representatives of the independent
public accountants for the Company and the Guarantors
and have considered the matters required to be stated
therein and the statements contained therein, although
such counsel has not independently verified the
accuracy, completeness or fairness of such statements;
and that such counsel advises that, on the basis of the
foregoing (relying as to materiality to a large extent
upon facts provided to such counsel by officers and
other representatives of the Company and the Guarantors
and without independent check or verification), no
facts came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective
and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the
date of Consummation, contained an untrue statement of
a material fact or omitted to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel
assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other
financial data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of the
date of effectiveness of the Shelf Registration
Statement or the date of Consummation of the Exchange
Offer, as the case may be, from the Company's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 9(g) of the Purchase Agreement,
without exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, in connection with any
sale or resale pursuant to any Shelf Registration Statement
the indemnification provisions and procedures of Section 8
hereof with respect to all parties to be indemnified
pursuant to said Section; and
12
(C) deliver such other documents and certificates as
may be reasonably requested by the representative of the
Majority Holders, the managing underwriters, if any, and
Restricted Broker Dealers, if any, to evidence compliance
with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company and the Guarantors pursuant to
this clause (x).
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent
required thereunder, and if at any time the representations and
warranties of the Company and the Guarantors contemplated in
(A)(1) above cease to be true and correct, the Company and the
Guarantors shall so advise the underwriters, if any, the
selling Holders and each Restricted Broker-Dealer promptly and
if requested by such Persons, shall confirm such advice in
writing;
(x) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriters, if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky
laws of such jurisdictions as the selling Holders or
underwriters, if any, may request and do any and all other acts
or things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities
covered by the applicable Registration Statement; provided,
however, that neither the Company nor any Guarantor shall be
required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now
so subject;
(xi) issue, upon the request of any Holder of Series A
Notes covered by any Shelf Registration Statement contemplated
by this Agreement, Series B Notes having an aggregate principal
amount equal to the aggregate principal amount of Series A
Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder, such Series B Notes to
be registered in the name of such Holder or in the name of the
purchasers of such Notes, as the case may be; in return, the
Series A Notes held by such Holder shall be surrendered to the
Company for cancellation;
(xii) in connection with any sale of Transfer
Restricted Securities that will result in such securities no
longer being Transfer Restricted Securities, cooperate with the
selling Holders and the underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and to register such Transfer Restricted
Securities in such denominations and such names as the Holders
or the underwriters, if any, may request at least two Business
Days prior to such sale of Transfer Restricted Securities;
(xiii) use their respective best efforts to cause the
disposition of the Transfer Restricted Securities 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
underwriters, if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso
contained in clause (x) above;
(xiv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to
the Registration Statement or related Prospectus or any
document incorporated therein by reference or
13
file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities,
the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(xv) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of a
Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the Indenture with
printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with the Depository
Trust Company;
(xvi) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD, and use their respective best efforts to cause such
Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities;
(xvii) otherwise use their respective best efforts to
comply with all applicable rules and regulations of the
Commission, and make generally available to its security
holders with regard to any applicable Registration Statement,
as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the
effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(xviii) cause the Indenture to be qualified under the
TIA not later than the effective date of the first Registration
Statement required by this Agreement and, in connection
therewith, cooperate with the Trustee and the Holders of Notes
to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms
of the TIA; and execute and use its best efforts to cause the
Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required
to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner; and
(xix) provide promptly to each Holder upon request
each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange
Act.
(d) Restrictions on Holders. Each Holder agrees by
-----------------------
acquisition of a Transfer Restricted Security that, upon receipt of the
notice referred to in Section 6(c)(i) or any notice from the Company of
the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xv) hereof, or until it is
advised in writing by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (the
"Advice"). If so directed by the Company, each 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 Transfer Restricted Securities that was current at the time of
receipt of either such notice. In the event the Company shall give any
such notice, the time period
14
regarding the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended by the number
of days during the period from and including the date of the giving of
such notice pursuant to Section 6(c)(i) or Section 6(c)(iii)(D) hereof
to and including the date when each selling Holder covered by such
Registration Statement shall have received the copies of the supplemented
or amended Prospectus contemplated by Section 6(c)(xv) hereof or shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the
Guarantors' performance of or compliance with this Agreement will be
borne by the Company, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration
and filing fees and expenses (including filings made by any Purchaser or
Holder with the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter") and its counsel that may be
required by the rules and regulations of the NASD); (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing
certificates for the Series B Notes to be issued in the Exchange Offer
and printing of Prospectuses), messenger and delivery services and
telephone relating to printing expenses; (iv) all fees and disbursements
of counsel for the Company, the Guarantors and the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection
with listing the Notes on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees
and disbursements of independent certified public accountants of the
Company and the Guarantors (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company will, in any event, bear its and the
Guarantors' internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the
Company or the Guarantors.
(b) In connection with any Registration Statement
required by this Agreement (including, without limitation, the Exchange
Offer Registration Statement and the Shelf Registration Statement), the
Company and the Guarantors will reimburse the Purchasers and the Holders
of Transfer Restricted Securities being tendered in the Exchange Offer
and/or resold pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or registered pursuant to the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be chosen by the
Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and
severally, agree to indemnify and hold harmless (i) each Holder and (ii)
each person, if any, who controls (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) any Holder (any of the
persons referred to in this clause (ii) being hereinafter referred to as
a "controlling person") and (iii) the respective officers, directors,
partners, employees, representatives and agents of any Holder or any
controlling person (any person referred to in clause (i), (ii) or (iii)
may hereinafter be referred to as an "Indemnified Holder"), to the
------------------
fullest extent
15
lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without
limitation and promptly after receipt of a ▇▇▇▇ therefor, reimbursement
of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Holder)
directly or indirectly caused by, related to, based upon, arising out of
or in connection with any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement, preliminary
prospectus or Prospectus (or any amendment or supplement thereto), or
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, except insofar as such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or omission or
alleged untrue statement or omission that is made in reliance upon and
in conformity with information relating to any of the Holders furnished
in writing to the Company by any of the Holders expressly for use
therein, provided, that with respect to any such untrue statement in or
omission from the preliminary prospectus, the indemnity agreement
contained in this Section 8 shall not inure to the benefit of any such
Holder to the extent that the sale to the person asserting any such
loss, claim, damage, liability or action was an initial resale by such
Holder and any such loss, claim, damage, liability or action of or with
respect to such Holder results from the fact that (A) to the extent
required by applicable law, a copy of the Prospectus was not sent or
given to such person at or prior to the written confirmation of the sale
of such Transfer Restricted Securities to such person, (B) the untrue
statement in or omission from the preliminary prospectus was corrected
in the Prospectus and such statement or omission formed the basis for
the claim giving rise to such loss, and (C) sufficient quantities of the
Prospectus were delivered to the Holder on a timely basis.
In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought
or asserted against any of the Indemnified Holders with respect to which
indemnity may be sought against the Company or the Guarantors, such
Indemnified Holder (or the Indemnified Holder controlled by such
controlling person) shall promptly notify the Company and the Guarantors
in writing (provided, that the failure to give such notice shall not
relieve the Company or the Guarantors of their obligations pursuant to
this Agreement except to the extent that the Company and the Guarantors
are materially prejudiced or forfeit substantive rights and defenses by
reason of such failure). Such Indemnified Holder shall have the right
to employ its own counsel in any such action and the fees and expenses
of such counsel shall be paid, as incurred, by the Company and the
Guarantors (regardless of whether it is ultimately determined that an
Indemnified Holder is not entitled to indemnification hereunder). The
Company and the Guarantors shall not, in connection with any one such
action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for such Indemnified Holders, which firm
shall be designated by the Holders. The Company and the Guarantors
shall be liable for any settlement of any such action or proceeding
effected with the Company's prior written consent, which consent shall
not be withheld unreasonably, and the Company and the Guarantors agree
to indemnify and hold harmless each Indemnified Holder from and against
any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the
Company. Neither the Company nor any Guarantor shall, without the prior
written consent of each Indemnified Holder, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any
pending or threatened action, claim, litigation or proceeding in respect
of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such
settlement,
16
compromise, consent or termination includes an unconditional release of
each Indemnified Holder from all liability arising out of such action,
claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities
agrees, severally and not jointly, to indemnify and hold harmless the
Company and the Guarantors, and their respective directors, officers,
and any person controlling (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) the Company, and the respective
officers, directors, partners, employees, representatives and agents of
each such person, to the same extent as the foregoing indemnity from the
Company and the Guarantors to each of the Indemnified Holders, but only
with respect to claims and actions based on information relating to such
Holder furnished in writing by such Holder expressly for use in any
Registration Statement. In case any action or proceeding shall be
brought against the Company, any Guarantor or its directors or officers
or any such controlling person in respect of which indemnity may be
sought against a Holder of Transfer Restricted Securities, such Holder
shall have the rights and duties given the Company and the Guarantors,
and the Company, such Guarantor, such directors or officers or such
controlling person shall have the rights and duties given to each Holder
by the preceding paragraph. In no event shall any Holder be liable or
responsible for any amount in excess of the amount by which the total
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount
paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.
(c) If the indemnification provided for in this Section
8 is unavailable to an indemnified party under Section 8(a) or Section
8(b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative benefits received by the Company
and the Guarantors, on the one hand, and the Holders, on the other hand,
from their sale of Transfer Restricted Securities or if such allocation
is not permitted by applicable law, the relative fault of the Company
and the Guarantors, on the one hand, and of the Indemnified Holder, on
the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault
of the Company and the Guarantors, on the one hand, and of the
Indemnified Holder, on the other hand, 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 Company or such
Guarantor or by the Indemnified Holder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred
to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a), any legal or other fees
or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Guarantors and each Holder of Transfer
Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were determined by pro rata
allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or expenses
referred to in the immediately preceding paragraph shall be deemed to
17
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Holder or its
related Indemnified Holders shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total
received by such Holder with respect to the sale of its Transfer
Restricted Securities pursuant to a Registration Statement exceeds the
sum of (A) the amount paid by such Holder for such Transfer Restricted
Securities plus (B) the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations
to contribute pursuant to this Section 8(c) are several in proportion to
the respective principal amount of Senior Notes held by each of the
Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company and each Guarantor hereby agrees with each
Holder, for so long as any Transfer Restricted Securities remain
outstanding and during any period in which the Company or such Guarantor
is not subject to Section 13 or 15(d) of the Securities Exchange Act, to
make available, upon request of any Holder of Transfer Restricted
Securities, to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in customary underwriting
arrangements entered into in connection therewith and (b) completes and
executes all reasonable questionnaires, powers of attorney, and other
documents required under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or
investment bankers and manager or managers for any Underwritten Offering
that will administer such offering will be selected by the Company and
be reasonably acceptable to the Majority Holders. Such investment
bankers and managers are referred to herein as the "underwriters."
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being
--------
entitled to exercise all rights provided herein, in the Indenture, the
Purchase Agreement or granted by law, including recovery of liquidated
or other
18
damages, will be entitled to specific performance of its rights under
this Agreement. The Company and the Guarantors agree that monetary
damages would not be adequate compensation for any loss incurred by
reason of a breach by them of the provisions of this Agreement and
hereby agree to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company
--------------------------
nor any Guarantor will, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. Neither the Company nor any
Guarantor has previously entered into any agreement granting any
registration rights with respect to its securities to any Person. 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
Company's and the Guarantors' securities under any agreement in effect
on the date hereof.
(c) Adjustments Affecting the Notes. Neither the
-------------------------------
Company nor any Guarantor will take any action, or voluntarily permit
any change to occur, with respect to the Notes that would materially and
adversely affect the ability of the Holders to Consummate any Exchange
Offer.
(d) Amendments and Waivers. The provisions of this
----------------------
Agreement may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be given
unless (i) in the case of Section 5 hereof and this Section 12(d)(i),
the Company has obtained the written consent of Holders of all
outstanding Transfer Restricted Securities and (ii) in the case of all
other provisions hereof, the Company has obtained the written consent of
the Majority Holders. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively
to the rights of Holders whose securities are being tendered pursuant to
the Exchange Offer and that does not affect directly or indirectly the
rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject
to such Exchange Offer.
(e) Notices. All notices and other communications
-------
provided for or permitted hereunder shall be made in writing by hand-
delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
Mail-Well I Corporation
c/o Mail-Well, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
19
With a copy to:
Rothgerber ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
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 specified in the Indenture.
(f) Successors and Assigns. This Agreement shall
----------------------
inure to the benefit of and be binding upon the successors and assigns
of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities directly from such Holder.
(g) 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.
(h) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
-------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more
------------
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(k) Entire Agreement. This Agreement is intended by
----------------
the parties as a final expression of their agreement and intended to be
a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the
registration rights granted with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
20
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
MAIL-WELL I CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
EACH ENTITY LISTED ON SCHEDULE A
ATTACHED HERETO
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President, General
Counsel and Secretary
21
The foregoing Registration Rights Agreement
is hereby confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
BEAR, ▇▇▇▇▇▇▇, & CO., INC.
HANIFEN, IMHOFF, INC.
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
22
SCHEDULE A
----------
Name of Guarantor State of Incorporation
----------------- ----------------------
Mail-Well, Inc. Colorado
▇▇▇▇▇▇▇▇ Lithograph Company California
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, Inc. Michigan
▇▇▇▇▇▇▇, Inc. California
Denver Forms Company Colorado
Digital X-Press, Inc. Florida
▇▇▇▇▇ Packaging, Inc. Washington
Graphics Arts Center, Inc. Delaware
Graphics Illustrated, Inc. Florida
▇▇▇▇▇▇▇ Envelope, Inc. Washington
Imperial Litho and Dryography, Inc. Arizona
▇▇▇▇ ▇. ▇▇▇▇▇ Printing Co. Maryland
Mail-Well Commercial Printing, Inc. Delaware
Mail-Well Canada Holdings, Inc. Delaware
Mail-Well Label Holdings, Inc. Colorado
Mail-Well Label USA, Inc. Colorado
Mail-Well West, Inc. Delaware
▇▇▇▇▇▇ Envelope Holdings, Inc. Colorado
Class I Non-voting stock 10%
owned by Non-affiliates
▇▇▇▇▇▇ Envelope Corporation Mississippi
N-M Envelope, Inc. Mississippi
National Graphics Company Colorado
Poser Business Forms, Inc. Delaware
Production Press, Inc. Illinois
▇▇▇▇▇▇▇▇'▇ Printing of Colorado, LLC Colorado
▇▇▇▇▇▇▇ Printing, Inc. Texas
Wisco II, L.L.C. Delaware
Wisco Envelope Corp. Tennessee
23