EXHIBIT 10.1
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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This Amended and Restated Registration Rights Agreement is entered into
as of January 31, 2005 by and among Schawk, Inc., a Delaware corporation
("Schawk") and each of the Investors listed on the signature page hereof (the
"Investors").
WHEREAS, Schawk (previously known as Filtertek, Inc.) and the Investors
previously entered into a Registration Rights Agreement dated December 30, 1994
(the "1994 Registration Rights Agreement"); and
WHEREAS, Schawk and Investors wish to amend and restate said
Registration Rights Agreement pursuant to the terms hereof;
NOW THEREFORE in consideration of the following mutual covenants and
conditions, the parties hereto agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Advice: See Section 5 hereof.
Company: Schawk, Inc., a Delaware corporation.
Demand Registrations: See Section 3(a) hereof.
Exchange Act: the Securities Exchange Act of 1934, as amended.
Final Demand Registration: See Section 3(a) hereof.
Initial Demand Registration: See Section 3(a) hereof.
KAGT Registrable Securities: The shares of Company common stock
entitled to registration rights pursuant to, and as defined in, the KAGT
Registration Rights Agreement.
KAGT Registered Registrable Securities: See Section 3(d) hereof.
KAGT Registration Rights Agreement: The Registration Rights Agreement,
to be entered into by and among the Company, the principal Company stockholders
party thereto, KAGT Holdings, Inc. ("KAGT") and the holders of outstanding stock
of KAGT party to that certain Stock Purchase Agreement, dated as of December 17,
2004, with the Company, Seven Worldwide, Inc. and KAGT.
Losses: See Section 7(a) hereof.
Notice: See Section 3(b) hereof.
Other Holders: See Section 4(d) hereof.
Person: Any individual, partnership (general or limited), corporation,
limited liability company, joint stock company, trust, business trust or
unincorporated organization.
Prospectus: The prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registered Registrable Securities covered
by such Registration Statement and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
or deemed to be incorporated by reference in such prospectus.
Public Offering: Any offer by the Company to sell its securities to the
public pursuant to a registration statement filed with the SEC under the terms
of the Securities Act.
Registered Registrable Securities: Registrable Securities covered by a
Registration Statement.
Registrable Securities: All shares of the Class A common stock, $0.008
par value of the Company owned by any of the Investors, any grandchildren,
children or spouse of any Investor who is a natural person, or any trust
established for the benefit of any of the foregoing, or any other Person who is
controlled by an Investor. For purposes of this definition, control of a Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of its management policies, whether through the ownership of
voting securities, by contract or otherwise.
Registration Expenses: See Section 6 hereof.
Registration Statement: Any registration statement of the Company which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus and amendments to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated or deemed to be incorporated by reference in such registration
statement.
Restricted Securities: The Registrable Securities, upon original
issuance thereof and at all times subsequent thereto, until in the case of any
such security, (i) it has been effectively registered under the Securities Act
and disposed of in accordance with the Registration Statement covering it or
(ii) it is distributed to the public pursuant to Rule 144 (or any similar
provisions then in force) under the Securities Act.
SEC: The Securities and Exchange Commission.
Second Demand Registration: See Section 3(a) hereof.
Securities Act: The Securities Act of 1933, as amended.
Special Counsel: Special counsel to the Investors selected by Investors
holding more than fifty-one percent (51%) of the outstanding Registrable
Securities.
Suspension Period: See Section 3(a) hereof.
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Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for offering to the
public.
2. Securities Subject to this Agreement. The securities entitled to the
benefits of this Agreement are the Registrable Securities.
3. Demand Registrations
(a) Demand Registrations. From and after January 1, 2005, the holders
of Registrable Securities shall have the right, by written notice delivered to
the Company by or on behalf of the holders of at least fifty-one percent (51%)
of the outstanding Registrable Securities, to require the Company to register
(the "Initial Demand Registration") under the Securities Act up to one hundred
percent (100%) of the Registrable Securities. The Initial Demand Registration is
exercisable once.
Subsequent to the Initial Demand Registration, the holders of
Registrable Securities then outstanding shall have the right, by written notice
delivered to the Company by or on behalf of the holders of at least fifty-one
percent (51%) of the remaining Registrable Securities, to require the Company to
register (the "Second Demand Registration") under the Securities Act up to one
hundred percent (100%) of such remaining Registrable Securities as were not sold
pursuant to the Initial Demand Registration; provided, however, that if fewer
than ten percent (10%) of Registrable Securities outstanding immediately prior
to the effectiveness of the Initial Demand Registration (as adjusted for stock
dividends, stock splits and similar transactions) are outstanding at the time,
the holders of such Registrable Securities shall not be entitled to the Second
Demand Registration. The Second Demand Registration is exercisable once and not
prior to six months after the effective date of the Registration Statement filed
pursuant to the Initial Demand Registration.
Subsequent to the Second Demand Registration the holders of Registrable
Securities then outstanding shall have the right, by written notice delivered to
the Company by and on behalf of the holders of at least fifty-one percent (51%)
of the remaining Registrable Securities, to require the Company to register (the
"Final Demand Registration" and, together with the Initial Demand Registration
and the Second Demand Registration called, the "Demand Registration") under the
Securities Act up to one hundred percent (100%) of such Registrable Securities;
provided, however, that if fewer than ten percent (10%) of Registrable
Securities outstanding immediately prior to the effectiveness of the Initial
Demand Registration (as adjusted for stock dividends, stock splits and similar
transactions) are outstanding at the time, the holders of such Registrable
Securities shall not be entitled to the Final Demand Registration. The Final
Demand Registration is exercisable once and not prior to six months after the
effective date of the Registration Statement filed pursuant to the Second Demand
Registration.
The Company shall file each Demand Registration and use its reasonable
best efforts to cause the same to be declared effective by the SEC within 120
days of the date on which the holders of Registrable Securities first give the
written notice for such Demand Registration; provided, however, that if such
written notice is given within 270 days of a Public Offering of the Company and
the managing underwriter of the Public Offering advises the Company that
effecting the Demand Registration at the time requested would have a material
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adverse effect on the market for the Company's securities, then the Company may
defer its obligation to file the Demand Registration for such period of time,
not extending beyond the 270th day after the Public Offering, as is recommended
by such managing underwriter.
If any Demand Registration is requested to be a "shelf" registration,
the Company shall use its reasonable best efforts to keep the Registration
Statement filed in respect thereof effective for a period of twelve months from
the date on which the SEC declares such Registration Statement effective
(subject to extension pursuant to Section 4(a)) or such shorter period which
will terminate when all Registered Registrable Securities covered by such
Registration Statement have been sold pursuant to such Registration Statement.
Notwithstanding anything herein to the contrary, the Company may, one
time in any 12 month period for up to a maximum of 90 days, delay the filing of
any Demand Registration, suspend the effectiveness of any Registration Statement
and/or give a notice for purposes of the last paragraph of Section 6, as
appropriate, if the Company shall have determined, upon advice of counsel, that
it would be required to disclose any significant corporate development which
disclosure would have a material effect on the Company, by giving notice in
accordance with Section 5(c)(7) (a "Suspension Period"); provided, that, the
period of time which the Demand Registration is required to be effective shall
be increased by the number of days of the Suspension Period if the effectiveness
of such Demand Registration was suspended, but not beyond eighteen (18) months;
and provided, further, that after the termination of the Suspension Period the
Company shall comply with the obligations set forth in Section 5(1).
(b) Requests for Demand Registrations. Subject to the conditions set
forth in Section 3(a) hereof, any holder or holders of fifty-one percent (51%)
or more of the outstanding Registrable Securities may, at any time, make a
written request for a Demand Registration. Within ten days after receipt of such
request, the Company shall serve written notice (the "Notice") of such
registration request to all other holders of Registrable Securities and shall
include in such Demand Registration all Registrable Securities, with respect to
which the Company received written requests for inclusion therein within 15 days
after the receipt of the Notice by the applicable holder. All requests made
pursuant to this Section 3 will specify the number of the Registrable Securities
to be registered and will also specify the intended methods of disposition
thereof; provided, that if the holders of a majority of the Registrable
Securities requested to be included in such registration specify one particular
type of underwritten offering, such method of disposition shall be such type of
underwritten offering or a series of such underwritten offerings (as such
majority of holders may elect) during the time period the Registration Statement
is effective.
(c) No Rights of the Company or Security Holders to Piggyback on Demand
Registrations. Except as specifically provided in Section 3(g) of the KAGT
Registration Rights Agreement, and unless otherwise consented to by holders of
fifty-one percent (51%) or more of the Registrable Securities, neither the
Company nor any of its security holders (other than the holders of Registrable
Securities in such capacity) shall have the right to include any securities of
the Company in any Demand Registration. Except for the KAGT Registration Rights
Agreement, to the extent it is entered into after the date of this Agreement,
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the Company shall not enter into any agreements after the date of this Agreement
providing any such right to any of its security holders.
(d) Priority on Demand Registrations. If any of the (i) Registered
Registrable Securities registered pursuant to any Demand Registration and (ii)
KAGT Registrable Securities that have been included in any such registration
pursuant to Section 3(g) of the KAGT Registration Rights Agreement (the "KAGT
Registered Registrable Securities") are to be sold in one or more firm
commitment underwritten offerings, and the managing underwriter advises the
Company and the holders of such Registered Registrable Securities that in its
opinion the number of Registered Registrable Securities and the number of KAGT
Registered Registrable Securities, if any, proposed to be sold in such offering
exceeds the number of shares of common stock that can be sold in such offering,
there shall be included in such firm commitment underwritten offering the number
of Registered Registrable Securities and KAGT Registered Registrable Securities
that in the opinion of such managing underwriter can be sold, and such
securities shall be allocated among all holders of Registered Registrable
Securities and KAGT Registered Registrable Securities pro rata.
(e) Demand Registration Expenses. The Registration Expenses of the
holders of Registered Registrable Securities included in any Demand Registration
will be paid by the Company.
4. Holdback Agreements
(a) Restrictions on Public Sale by Holders of Registered Registrable
Securities. Each holder of Registrable Securities agrees, if requested by the
managing underwriter or underwriters in an underwritten offering (to the extent
timely notified in writing by the Company or the managing underwriter or
underwriters), not to effect any public sale or distribution of securities of
the Company of any class included in such Registration Statement, including a
sale pursuant to Rule 144 under the Securities Act (except as part of such
underwritten registration), (i) during the 10-day period prior to the effective
date of any underwritten offering made pursuant to such Registration Statement
and (ii) during the 180-day period beginning on the effective date of any
underwritten offering made pursuant to such Registration Statement. If a request
is made pursuant to this Section 5(a), the time period during which such Demand
Registration (if a "shelf registration") is required to remain continuously
effective pursuant to Section 3(b) shall be extended by 180 days, but not beyond
eighteen (18) months.
(b) Restrictions on Public Sale by the Company and Others. The Company
agrees if requested by the managing underwriter or underwriters in an
underwritten offering of Registered Registrable Securities covered by a
Registration Statement filed pursuant to Section 3 hereof (to the extent timely
notified in writing by the holders of a majority in number of Registered
Registrable Securities included in such underwritten offering or by the managing
underwriters), not to effect any public or private sale or distribution of its
securities, including a sale pursuant to Regulation D under the Securities Act
but excluding the grant of employee stock options or the issuance of securities
upon the issuance or conversion of the then outstanding stock options, warrants
or other convertible securities, (A) during the 10-day period prior to the
effective date of any underwritten offering made pursuant to such Registration
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Statement and (B) during the 180-day period beginning on the effective date of
any underwritten offering made pursuant to such Registration Statement.
5. Registration Procedures
In connection with the Demand Registration obligations of the Company
pursuant to and in accordance with Section 3 of this Agreement and subject to
receipt from the sellers of Registrable Securities of the information to be
furnished by them, as provided below, the Company shall use its reasonable best
efforts to effect such registrations to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company shall:
(a) prepare and file with the SEC, as soon as practicable within the
time periods specified in Section 3, a Registration Statement or Registration
Statements relating to the Demand Registrations on any appropriate Form under
the Securities Act which shall be available for the sale of the Registrable
Securities by the holders thereof in accordance with the intended method or
methods of distribution thereof, and use its reasonable best efforts to cause
each such Registration Statement to become effective and remain effective as
provided herein; provided, however, that before filing a Registration Statement
or Prospectus or any amendments or supplements thereto, including documents
incorporated or deemed to be incorporated by reference, the Company shall
furnish to the holders of the Registrable Securities covered by such
Registration Statement, their Special Counsel and the managing underwriter or
underwriters, if any, copies of all such documents proposed to be filed, which
documents will be subject to the review of such holders, their Special Counsel
and such underwriters, if any, and the Company shall not, subject to the
requirements of applicable law and Section 3, file any such Registration
Statement, or amendment thereto or any Prospectus or any supplement thereto
(including such documents incorporated by reference) to which the holders of a
majority in number of the Registrable Securities covered by such Registration
Statement, or the managing underwriter or 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 Registration Statement required to be filed pursuant to
Section 3 of this Agreement as may be necessary to keep such Registration
Statement effective for the time period specified in Section 3; cause the
related Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act, if required; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement or such Prospectus;
(c) use its best efforts to notify the selling holders of Registrable
Securities, their Special Counsel and the managing underwriters, if any,
promptly, and (if requested by any such Person) confirm such notice in writing,
(1) when a Prospectus or any Prospectus supplement or post-effective amendment
related to such Registrable Securities has been filed, and, with respect to a
Registration Statement or any post-effective amendment related to such
Registrable Securities, when the same has become effective, (2) of any request
by the SEC for amendments or supplements to such a Registration Statement or
related Prospectus or
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for additional information, (3) of the issuance by the SEC of any stop order
suspending the effectiveness of such a Registration Statement or the initiation
of any proceedings for that purpose, (4) if at any time the representations and
warranties of the Company contained in any agreement (including any underwriting
agreement) entered into pursuant to Section 6(o) below cease to be true and
correct, (5) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, (6) of the happening of any event which makes any statement made
in such a Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue or which
requires the making of any changes in such Registration Statement or Prospectus
so that such Prospectus will not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading and (7)
prior to the initiation of a Suspension Period;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of such a Registration Statement, or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction, at the earliest
possible moment;
(e) if requested by the managing underwriter or underwriters or any
holder of Registrable Securities being sold in connection with an underwritten
offering, (i) promptly incorporate in a Prospectus supplement or post-effective
amendment to a Registration Statement related to such Registrable Securities
such information as the managing underwriters and such holder agree should be
included therein as required by applicable law, (ii) make all required filings
of such Prospectus supplement or such post-effective amendment as soon as
practicable after notification of the matters to be incorporated in such
Prospectus supplement or such post-effective amendment and (iii) supplement or
make amendments to such Registration Statement; provided, however, that the
Company shall not be required to take any of the actions in this Section 6(e)
which are not, in the opinion of counsel for the Company, required by or in
compliance with applicable law.
(f) upon request of a selling holder of Registrable Securities or its
Special Counsel, furnish to each selling holder of Registrable Securities or its
Special Counsel, without charge, a copy of each Registration Statement related
to such Registrable Securities and any post-effective amendment thereto,
including financial statements, schedules and all exhibits (including, if
requested, those previously furnished or proposed to be incorporated by
reference) at the earliest practicable time under the circumstances before the
filing of such documents with the SEC;
(g) furnish to each selling holder of Registrable Securities, its
Special Counsel and each managing underwriter, if any, without charge, at least
one signed copy of the Registration Statement or Statements related to such
Registrable Securities and any post-effective amendments thereto, including
financial statements, schedules and all exhibits (including, if requested, those
previously furnished or incorporated by reference);
(h) deliver to all selling holders of Registrable Securities, their
Special Counsel and the underwriters, if any, without charge, as many copies of
the Prospectus or
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Prospectuses related to such Registrable Securities (including each preliminary
prospectus) and as many copies of any amendment or supplement thereto as such
Persons may reasonably request; subject to the restrictions contained in the
last paragraph of Section 5, the Company consents to the use of such Prospectus
or any amendment or supplement thereto by each of the selling holders of
Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto;
(i) prior to any public offering of Registrable Securities, use its
best efforts to register or qualify or cooperate with the selling holders of
Registrable Securities, the underwriters, if any, and their respective counsel
in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as any seller or underwriter reasonably requests in writing; use
its best efforts to keep each such registration or qualification effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, however, that the
Company will not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action which would
subject it to general service of process in any such jurisdiction where it is
not then so subject, or (C) take any action which would subject it to the
assessment of taxes in any such jurisdiction where it is not then so subject;
(j) cooperate with the selling holders of Registrable Securities and
the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends;
(k) use its reasonable best efforts to cause the Registrable Securities
covered by each Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be reasonably necessary to
enable the seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Registrable Securities;
(l) as expeditiously as possible after the occurrence of any event
contemplated by paragraph 5(c)(6) above, but subject to Section 3(a), prepare a
post-effective amendment to each Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading;
(m) use its reasonable best efforts to cause all Registrable Securities
covered by such a Registration Statement to be listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed if requested by the holders of a majority in aggregate number of shares
of such issue or class of Registrable Securities;
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(n) enter into such agreements (including an underwriting agreement)
consistent with this Section 5 and use its reasonable best efforts to take all
such other actions in connection therewith as shall have been reasonably
requested by the managing underwriter or underwriter, if any, or the holders of
a majority in principal amount of the Registrable Securities being sold in order
to expedite or facilitate the disposition of such Registrable Securities
including, whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration, (1) making such
representations and warranties to the holders of such Registrable Securities and
the underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters in underwritten offerings and confirming the same if
and when reasonably requested; (2) using its reasonable best efforts to obtain
for the benefit of the holders of such Registrable Securities opinions of
counsel to the Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the holders of a majority in principal amount of the
reasonably Registrable Securities being sold) addressed to each selling holder
and the underwriters, if any, covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such holders and underwriters; (3) using its reasonable
best efforts to obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company addressed to each
selling holder of Registrable Securities and the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten offerings; (4)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 8 hereof with respect to all parties to be indemnified pursuant to
said Section; and (5) delivering such documents and certificates to certify that
the representations and warranties of the Company made pursuant to clause (1)
above continue to be true and correct and to evidence compliance with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company. The above shall be done at each closing under such
underwriting or similar agreement or, as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of
Registrable Securities being sold, any underwriter participating in any
disposition of Registrable Securities and any attorney or accountant retained by
such selling holders or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company as shall be reasonably
necessary to enable them to exercise their due diligence responsibility and
cause the officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such Registration Statement; provided,
however, that any records, information or documents that are designated by the
Company as confidential at the time of delivery of such records, information or
documents shall be kept confidential by such Persons and their designees unless
such records, information or documents are in the public domain or disclosure of
such records, information or documents is required by court or administrative
order or unless such records, information or documents otherwise become public
knowledge or in the opinion of counsel to such Person disclosure by such person
is otherwise required by law; and
(p) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC.
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The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may from time to time reasonably request in writing,
and the Company may exclude from such registration the Registrable Securities of
any seller who fails to furnish such information, provided, that such sellers'
Registrable Securities shall be counted for the demand made upon the Company
hereunder.
Each holder of Registrable Securities agrees to comply with the
provisions of the Securities Act with respect to the disposition of all of his
Registrable Securities covered by any Registration Statement in accordance with
the intended methods of distribution by such seller set forth in such
Registration Statement, as amended, or the related Prospectus, as supplemented.
Each holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 5(c)(3), 5(c)(5), 5(c)(6) and 5(c)(7)
hereof, such holder shall forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(1) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in such Prospectus. In the event the Company shall
give any such notice, the six months time period mentioned in Section 3(a)
hereof shall be extended by the number of days (not to exceed 365 days) during
the time period from and including the date of the giving of such notice to and
including the date when each seller of Registrable Securities covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 5(l) hereof or the Advice.
6. Registration Expenses
All fees and expenses incident to the Company's performance of or
compliance with this Agreement (including, without limitation, (1) all
registration and filing fees including, without limitation, fees and expenses
(A) with respect to filings required to be made with the National Association of
Securities Dealers, Inc., and (B) of compliance with securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel for
the underwriters or selling holders in connection with Blue Sky qualifications
of the Registrable Securities under the laws of such jurisdictions as the
managing underwriters or holders of a majority in number of the Registrable
Securities being sold may designate), (2) printing expenses, (3) messenger,
telephone and delivery expenses, (4) fees and disbursements of counsel for the
Company, and Special Counsel, (5) fees and disbursements of all independent
certified public accountants of the Company (including the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (6) Securities Act liability insurance if the Company in its sole
discretion so desires such insurance and (7) fees and expenses of all other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses") shall be borne by the Company in accordance with
Section 3(e) whether or not any Registration Statement becomes effective. The
Company shall, in addition, pay its general expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees
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and expenses incurred in connection with the listing of the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or to be listed in connection with such registration and
rating agency fees and the fees and expenses of any Person, including special
experts, retained by the Company.
7. Indemnification
(a) Indemnification by Company. The Company shall, without limitation
as to time, indemnify and hold harmless, to the full extent permitted by law,
each holder of Registered Registrable Securities and each Person who controls
such holder or such officers, directors, agents or employees (within the meaning
of the Securities Act or the Exchange Act) against all losses, claims, damages,
liabilities, costs (including the costs of preparation and attorney's fees) and
expenses (collectively, "Losses") caused by any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary prospectus or any omission or alleged omission to state therein 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 (in the case
of any Prospectus), not misleading, except (i) insofar as the same are caused by
or contained in any information furnished in writing to the Company by such
holder expressly for use therein and (ii) the Company shall not be liable to any
holder of Registered Registrable Securities (or its controlling persons) with
respect to any untrue statement or omission or alleged untrue statement or
omission in any preliminary prospectus or any Prospectus which was corrected in
a Prospectus or prospectus supplement delivered by the Company to such holder
prior to the sale of the Registered Registrable Securities in question if the
person asserting such Loss, purchased securities from such holder but was not
timely sent or given a copy of such corrected Prospectus or prospectus
supplement at or prior to written conformation of the sale of such securities to
such person. If requested, the Company shall also indemnify underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution and each Person who controls such Persons
(within the meaning of the Securities Act or the Exchange Act) to the same
extent as provided above with respect to the indemnification of the holders of
Registered Registrable Securities and their controlling persons.
(b) Indemnification by Holders of Registered Registrable Securities. In
connection with any Registration Statement in which a holder of Registered
Registrable Securities is participating, such holder of Registered Registrable
Securities shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any
Registration Statement or Prospectus and agrees to indemnify and hold harmless,
to the full extent permitted by law, the Company, its directors, each of its
officers who signed such Registration Statement, and each Person who controls
the Company (within the meaning of the Securities Act or the Exchange Act)
against any Losses, caused by any untrue statement of a material fact or any
omission of a material fact required to be stated in any Registration Statement
or Prospectus or preliminary Prospectus or necessary to make the statements
therein, in light of the circumstances under which they were made (in the case
of any Prospectus), not misleading, to the extent, but only to the extent, that
such untrue statement or omission is contained in any information or affidavit
so furnished in writing by such holder to the Company expressly for use in such
Registration Statement or Prospectus. In no event shall the liability of any
selling holder of Registered Registrable Securities hereunder be greater in
11
amount than the dollar amount of the proceeds (net of the payment of all
expenses) received by such holder upon the sale of the Registered Registrable
Securities giving rise to such indemnification obligation. The Company shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution to the same extent as provided above with respect to information so
furnished in writing by such Persons expressly for use in any Prospectus or
Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any Person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such Person unless (a) the
indemnifying party has agreed to pay such fees or expenses or (b) the
indemnifying party shall have failed promptly to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person or (c) in the
reasonable judgment of any such Person, based upon advice of counsel, a conflict
of interest may exist between such Person and the indemnifying party with
respect to such claims (in which case, if such Person notifies the indemnifying
party in writing that such Person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such Person) (it being
understood that the indemnifying party shall only be required to pay the fees of
one separate counsel for all holders of Registrable Securities). The
indemnifying party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld). No
indemnifying party will without the consent of the indemnified party consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) Contribution. If the indemnification provided for in this Section 7
is unavailable to an indemnified party under Section 7(a) or 7(b) hereof (other
than by reason of exceptions provided in those Sections) in respect of any
Losses, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall, jointly and severally, contribute to the amount paid
or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the actions, statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and such
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been taken or made by, or relates to information supplied by, such indemnifying
party or indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses shall
be deemed to include, subject to the limitations set forth in Section 7(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
12
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), an indemnifying party which
is a selling holder of Registered Registrable Securities and is not at fault
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Registered Registrable Securities sold by such
indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages which such indemnifying party 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 Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
8. Rule 144
The Company shall file the reports required to be filed by it under the
Exchange Act, and it will take such further action as any holder of Registered
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registered Registrable Securities
without registration under the Securities Act within the limitations of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC. Upon the request of any holder of Registered Registrable Securities
the Company shall deliver to such holder a written statement as to whether the
Company has complied with such filing requirements.
9. Underwritten Registrations
If any of the Registrable Securities covered by Demand Registrations
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 number of shares of such Registrable
Securities included in such offering and will be reasonably acceptable to the
Company. No Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's Registered Registrable
Securities 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) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of this
Agreement which restricts, prohibits or delays registration of any Registrable
Securities and hereby further agrees that, in the event of any action for
specific performance in respect of
13
any such breach, it shall waive the defense that a remedy at law would be
adequate. Except as otherwise specifically provided for in this Section 10(a) in
respect to the rights of the holders of Registrable Securities rights to
specific performance, all other disputes or claims concerning the interpretation
of this Agreement, and the relative rights and obligations of the parties
hereunder, shall be resolved pursuant to Section 4.9 of the Stockholders
Agreement.
(b) No Conflicting or Inconsistent Agreements. The Company shall not,
on or after the date of this Agreement, enter into any agreement with respect to
its securities which is in conflict or inconsistent with the rights granted to
the holders of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof will not be
binding on any holder of Registrable Securities not giving such waiver or
consent, unless the Company has obtained the written consent of holders of at
least a majority in aggregate number of the then outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent which amendment, modification, supplement, waiver or consent shall be
binding upon all holders of Registrable Securities. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter which relates exclusively to the rights of holders of Registered
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and which does not directly or indirectly affect the
rights of other holders of Registrable Securities whose securities are not being
sold pursuant to a Registration Statement, may be given by holders of a majority
in number of the Registrable Securities being sold by such holders which consent
or waiver shall be binding on all such Registered Registrable Securities;
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
receipt confirmed) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to Investors: c/o ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company: Schawk, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
14
Copies to: Schawk, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(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,
including without limitation and without the need for an express assignment,
subsequent holders of Registrable Securities.
(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 Delaware, without regard to principles
of conflict of laws.
(i) 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.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement, and is 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. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter, including without limitation, the 1994 Registration Rights
Agreement and any amendments thereto or restatements thereof.
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SCHAWK, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
INVESTORS:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as
Trustee of the ▇▇▇▇▇
▇. ▇▇▇▇▇▇ Family Trust
dated 11/30/88 F/B/O
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
16
/s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as
Trustee of the ▇▇▇▇▇
▇. ▇▇▇▇▇▇ Family Trust
dated 11/30/88 F/B/O
Kara ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as
Trustee of the ▇▇▇▇▇
▇. ▇▇▇▇▇▇ Family Trust
dated 11/30/88 F/B/O
▇▇▇▇▇ ▇▇▇▇ Schawk
/s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as
Trustee of the ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
1991 Family Trust
dated 11/30/91 F/B/O
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as
Trustee of the ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
1991 Family Trust
dated 11/30/91 F/B/▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
A. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as
Trustee of the ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ 1991 Family
Trust F/B/O ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
17