Exhibit 10.12
MANAGEMENT SHAREHOLDER AGREEMENT
THIS MANAGEMENT SHAREHOLDER AGREEMENT (this "Agreement") is entered into as
of May 10, 2000, between Jostens, Inc., a Minnesota corporation (the "Company"),
and ▇▇▇▇ ▇▇▇▇▇▇▇ (the "Shareholder").
R E C I T A L S
A. The Company is a party to an Agreement and Plan of Merger dated as of
December 27, 1999 (as amended, the "Merger Agreement") by and between the
Company and Saturn Acquisition Corporation, a Minnesota corporation
("MergerCo"), pursuant to which MergerCo will, subject to the terms and
conditions of the Merger Agreement, be merged with and into the Company (the
"Merger").
B. The Shareholder is the beneficial owner of 41,858 shares of the
Company's common stock, par value $0.33 per share, which in connection with the
Merger will be retained by the Shareholder and redesignated as Class A Common
Stock, par value $0.33 per share ("Class A Stock") (the "Retained Shares").
C. The Shareholder entered into a Stock Option Agreement with the
Company, dated the date hereof, pursuant to which the Shareholder was granted an
option to purchase shares of Class A Stock (such shares, when issued, the
"Option Shares").
D. The Shareholder has entered into a Loan and Pledge Agreement with the
Company, pursuant to which the Shareholder has pledged all or a portion of his
Retained Shares to the Company (the "Pledged Shares"). All Retained Shares held
by the Shareholder that are not pledged to the Company are referred to herein as
the "Non-Pledged Shares."
E. The Company and the Shareholders desire to enter into this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the parties
hereto agree as follows:
SECTION 1. Certain Definitions. Capitalized terms used herein shall have
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the following meanings:
"Additional Put Right" is defined in Section 3(b).
"Agreement" means this Shareholder Agreement.
"Annual Valuation" is defined in Section 3(c).
"Appraisers" is defined in Section 3(c).
"Articles of Incorporation" means the Articles of Incorporation of the
Company, as amended or restated from time to time.
"Cause" means (A) the Shareholder's gross misconduct; (B) the
Shareholder's willful and continued failure to perform substantially his or her
duties with the Company (other than any such failure relating to changes in the
Shareholder's duties that constitute Good Reason (as defined below) after a
demand for substantial performance is delivered to the Shareholder by the Board
which specifically identifies the manner in which the Board believes that the
Shareholder has not substantially performed his or her duties and provides for a
reasonable period of time within which the Shareholder may take corrective
measures, or (C) the Shareholder's conviction (including a plea of nolo
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contendere) of willfully engaging in illegal conduct constituting a felony or
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gross misdemeanor under federal or state law which is materially and
demonstrably injurious to the Company or which impairs the Shareholder's ability
to perform substantially his or her duties with the Company.
"Class A Stock" is defined in recital B.
"Company" is defined in the preamble.
"Cost" of Class A Stock means $25.25 per share plus interest from the
date hereof at a floating rate calculated quarterly as follows: for the period
from the date hereof through June 30, 2000, at a per annum rate equal to the 3-
month t-▇▇▇▇ rate for May 10, 2000, as published in the Wall Street Journal, and
for each calendar quarter thereafter, at a per annum rate equal to the 3-month
t-▇▇▇▇ rate for the last day of the immediately preceding quarter, as published
in the Wall Street Journal; provided, that for purposes of Section 3(a) of this
Agreement, in the event the Shareholder is terminated for Cause, "Cost" shall
mean $25.25 per share.
"Endorsed Certificate" is defined in Section 3(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor law, as amended from time to time, including the various rules and
regulations issued pursuant to that Act or any successor law.
"Fair Market Value" means the value of a Share, as of the Termination
Date, calculated pursuant to Section 3(c).
"Good Reason" means, unless the Shareholder shall have consented in
writing thereto, any of the following: (A) a change in the Shareholder's
title(s), status, position(s), authority, duties or responsibilities as an
executive of the Company as in effect at the effective time of the Merger (other
than any change directly attributable to the fact that the Company is no longer
publicly owned); provided, however, that Good Reason does not include a change
in the Shareholder's title(s), status, position(s), authority, duties or
responsibilities caused by an insubstantial and inadvertent action that is
remedied by the Company promptly after receipt of notice of such change given by
the Shareholder, (B) a reduction by the Company in the Shareholder's base pay,
or an adverse change in the form or timing of the payment thereof, as in effect
at the effective time of the Merger or as thereafter increased or by a reduction
in the
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Shareholder's target annual incentive award as in effect at the effective time
of the Merger or as thereafter increased, (C) the failure by the Company to
cover the Shareholder under benefit plans that, in the aggregate, provide
substantially similar benefits to the Shareholder and/or his or her family and
dependents as a substantially similar total cost to the Shareholder (e.g.,
premiums, deductibles, co-pays, out-of-pocket maximums, required contributions,
taxes and the like) relative to the benefits and total costs under the benefit
plans in which the Shareholder (and/or his or her family or dependents) is
participating at any time during the 90-day period immediately preceding the
effective time of the Merger, (D) the Company's requiring the Shareholder to be
based more than 30 miles from where his or her office is located immediately
prior to the effective time of the Merger, except for required travel on the
Company's business, and then only to the extent substantially consistent with
the business travel obligations which the Shareholder undertook on behalf of the
Company during the 180-day period immediately preceding the effective time of
the Merger, (E) any purported termination by the Company of the Shareholder's
employment which is not properly effected pursuant to the terms of the Company's
Executive Change in Control Severance Pay Plan or (F) any refusal by the Company
to continue to allow the Shareholder to attend to matters or engage in
activities not directly related to the business of the Company which, at any
time prior to the effective time of the Merger, the Shareholder was not
expressly prohibited by the Company from attending to or engaging in.
"Initial Public Offering" means the sale of any of the common stock of
the Company pursuant to a registration statement that has been declared
effective under the Securities Act, if as a result of such sale (i) the issuer
becomes a reporting company under Section 12(b) or 12(g) of the Exchange Act and
(ii) such stock is traded on the New York Stock Exchange or the American Stock
Exchange, or is quoted on the NASDAQ National Market System or is traded or
quoted on any other national stock exchange or national securities system.
"Investcorp Shareholders" means Investcorp Bank E.C. and/or one or
more of its affiliates ("Investcorp") and other international investors with
whom Investcorp has an administrative relationship.
"Non-Pledged Shares" is defined in recital D.
"Option Shares" is defined in recital C.
"Permanent Disability" means the failure by the Shareholder to render
full-time employment services to the Company for an aggregate of sixty (60)
business days in any continuous period of six (6) months on account of physical
or mental disability.
"Permitted Transferee" means any of (A) the Shareholder's spouse,
child, estate, personal representative, heir or successor, (B) a trust for the
benefit of the Shareholder or his spouse, child or heir, or (C) a partnership,
the partners of which consist solely of the Shareholder and/or his spouse,
child, heir, and/or successor.
"Pledged Shares" is defined in recital D.
"Put Period" and "Put Right" are defined in Section 3(b).
"Repurchase Period" and "Repurchase Right" are defined in Section
3(a).
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"Retained Shares" is defined in recital B.
"Retirement" means age 65.
"Securities Act" means the Securities Act of 1933, or any successor
law, as amended from time to time, including the various rules and regulations
issued pursuant to that Act or any successor law.
"Shares" means the Option Shares and the Retained Shares.
"Subsidiary" means any joint venture, corporation, partnership,
limited liability company or other entity as to which the Company, whether
directly or indirectly, has more than 50% of the (i) voting rights or (ii)
rights to capital or profits.
"Termination Date" means the date on which the Shareholder ceases to
be employed by the Company for any reason.
Certain other terms are defined elsewhere in this Agreement.
SECTION 2. Restrictions on Transfer.
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(a) Subject to Section 3 hereof and the Articles of Incorporation, prior
to an Initial Public Offering, the Retained Shares shall not be transferable or
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) except that the Shareholder may transfer the Retained
Shares to a Permitted Transferee. This Agreement shall be binding on and
enforceable against any person who is a Permitted Transferee of the Retained
Shares except a person who acquires any Retained Shares pursuant to the Articles
of Incorporation or as part of an Initial Public Offering. The stock
certificates issued to evidence Retained Shares shall bear a legend referring to
this Agreement and the restrictions contained herein.
(b) Certificates representing Retained Shares shall bear a legend
referring to this Agreement and the transfer restrictions contained herein, in
addition to any other legends that the Company may deem appropriate.
SECTION 3. Repurchase of Shares.
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(a) In the event that the Shareholder ceases to be employed by the Company
for any reason prior to an Initial Public Offering, the Company, during the
sixty (60) days following the Termination Date (the "Repurchase Period") shall
have the right to purchase all or any portion of the Retained Shares (the
"Repurchase Right"). The purchase price for each Retained Share shall equal
Fair Market Value unless the Shareholder resigns without Good Reason prior to
May 10, 2003 or is terminated for Cause at any time, in which case the purchase
price will be the lower of Fair Market Value or Cost. If the Company elects to
purchase the Retained Shares, it shall notify the Shareholder at or before the
end of the Repurchase Period of such election and the purchase price shall be
paid in cash at a time set by the Company (the "Repurchase Date") within thirty
(30) days after the end of the Repurchase Period, provided that the Shareholder
has presented to the Company stock certificates evidencing the Retained Shares
duly endorsed for transfer (the "Endorsed Certificates"). If the Shareholder
fails to deliver the Endorsed
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Certificates, the Retained Shares represented thereby shall be deemed to have
been purchased upon (i) the payment by the Company of the purchase price to the
Shareholder or his or her Permitted Transferee or (ii) notice to the Shareholder
or such Permitted Transferee that the Company is holding the purchase price for
the account of the Shareholder or such Permitted Transferee, and upon such
payment or notice the Shareholder and such Permitted Transferee will have no
further rights in or to such Retained Shares. The Company may assign its
Repurchase Right hereunder to Saturn Equity Limited ("SEL") or to an affiliate
of the Company. If the Retained Shares are not purchased pursuant to Section
3(a) or 3(b), the restrictions on transfer thereof contained in Section 2 of
this Agreement shall terminate and be of no further force and effect.
(b) If the Shareholder's employment with the Company is terminated prior
to an Initial Public Offering (i) by the Company without Cause; (ii) due to the
Shareholder's Retirement, death or Permanent Disability; (iii) by the
Shareholder for Good Reason; or (iv) at any time after May 10, 2003 for any
reason other than for Cause, the Shareholder or his or her representative or
Permitted Transferee, during the 120 days following the Termination Date (the
"Put Period") shall have the right to require SEL to purchase all or any portion
of the Retained Shares then held by the Shareholder (the "Put Right"), unless,
by the thirtieth (30) day after the Company and SEL have received notice of the
Shareholder's election to exercise the Put Right, the Company has notified the
Shareholder and SEL of its election, exercisable at the discretion of the
Company, to purchase the Retained Shares on the same terms as such Retained
Shares were to be purchased by SEL, in which case such Retained Shares will be
acquired by the Company. The purchase price shall be at Fair Market Value,
unless the employment of the Shareholder is terminated without Cause prior to
May 10, 2003, in which case (i) for Pledged Shares, the purchase price will be
the lower of Fair Market Value or Cost and (ii) for Non-Pledged Shares, the
purchase price will be Cost if the termination occurs prior to May 10, 2001 and
will be Fair Market Value thereafter. The purchase price shall be paid in cash
at a time specified by SEL or the Company, as applicable, within thirty (30)
days after the end of the Put Period, provided that SEL or the Company, as the
case may be, need not pay the purchase price until such later time that the
Shareholder presents to the Company the Endorsed Certificates.. If the
Shareholder's employment with the Company is terminated by the Shareholder
without Good Reason at any time prior to May 10, 2003, the Shareholder or his or
her representative or Permitted Transferee, during the Put Period, shall have
the right to require SEL to purchase all or any portion of the Shares pledged by
the Shareholder pursuant to the Shareholder's Loan and Pledge Agreement entered
into in connection with borrowings under the Company's Stock Loan Plan (the
"Additional Put Right"), unless, by the thirtieth (30) day after the Company and
SEL have received notice of the Shareholder's election to exercise the
Additional Put Right, the Company has notified the Shareholder and SEL of its
election, exercisable at the discretion of the Company, to purchase the Shares
on the same terms as such Shares were to be purchased by SEL, in which case such
Shares will be acquired by the Company. The purchase price shall be at the lower
of Fair Market Value or Cost. The purchase price shall be paid in cash at a time
specified by SEL or the Company, as applicable, within thirty (30) days after
the end of the Put Period.
(c) The Fair Market Value of the Retained Shares to be purchased by the
Company hereunder shall be determined in good faith by the Company's Board of
Directors. The Board of Directors shall make its determination of Fair Market
Value annually (the "Annual Valuation")
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promptly after the completion of the Company's audited financial statements for
the year then completed and such determination shall remain in effect until the
Board of Directors makes the next Annual Valuation. Notwithstanding the
foregoing, if the Board of Directors or an investment banker or appraiser
appointed by the Company makes a determination of Fair Market Value subsequent
to an Annual Valuation, such subsequent determination shall supersede the Annual
Valuation then in effect and shall establish the Fair Market Value until the
next Annual Valuation. The Fair Market Value shall be based on an assumed sale
of 100% of the outstanding capital stock of the Company. If such determination
of the Fair Market Value is challenged by the Shareholder, each of the
Shareholder and the Board of Directors will select an appraiser or investment
banker, and the two appraisers and investment bankers, as the case may be, will
select a mutually acceptable investment banker or appraiser. The three selected
appraisers or investment bankers, as the case may be (the "Appraisers"), shall
establish the Fair Market Value as of the date of valuation referenced in the
Annual Valuation or a subsequent determination. The Appraisers' determination
shall be conclusive and binding on the Company and the Shareholder. The
Shareholder shall bear all costs incurred in connection with the services of
such Appraisers if the Fair Market Value determined by such Appraisers is less
than or equal to 110% of the determination challenged by the Shareholder. All
costs in connection with the services of such Appraisers will be borne equally
by the Company and the Shareholder if the Fair Market Value established by such
Appraisers is greater than 110% but less than or equal to 120% of the
determination challenged by the Shareholder. The Company shall bear all costs
incurred in connection with the services of such Appraisers if the Fair Market
Value established by such Appraisers is greater than 120% of the determination
challenged by the Shareholder. If it is determined that the Shareholder bears
some or all of the costs incurred in connection with the services of the
Appraisers, the Shareholder shall promptly pay or reimburse the Company for such
costs.
(d) The Shareholder shall not be considered to have ceased to be employed
by the Company for purposes of this Agreement if he continues to be employed by
the Company or a Subsidiary, or by a company of which the Company is a
subsidiary.
SECTION 4. Registration of Shares.
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(a) Subject to Sections 6 and 7 of this Agreement, if the Company proposes
to file a registration statement with respect to common equity securities of the
Company (excluding a registration statement filed prior to or in connection with
the Initial Public Offering and any registration statement on Form S-8 or S-4 or
comparable successor forms or a registration statement relating to a dividend
reinvestment plan), which is available for use for the sale of Retained Shares
under the Securities Act, then the Company shall give written notice of such
proposed filing to the Shareholder at least 10 business days before the
anticipated filing date of such registration statement, and such notice shall
offer the Shareholder the opportunity to include in such registration statement
the Retained Shares then owned by the Shareholder, as the Shareholder may
request in writing within 7 business days after receipt of the Company's notice
(which request shall specify the number of Retained Shares to be included in
such registration statement and the intended method of disposition). The
Company may require the Shareholder to furnish the Company such information
regarding the Shareholder and the distribution of the Retained Shares as the
Company may from time to time reasonably request in writing and as
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shall be required by law or by the Securities and Exchange Commission in
connection with such registration.
(b) If any registration statement governed by Section 4(a) relates to an
underwritten offering and the managing underwriter of such offering advises the
Company in writing that the total number of shares which the Company, the
Shareholder and other Persons whose contractual rights (now existing or
hereafter granted) give them the right to be included in such registration
intend to include in such offering is sufficiently large to affect adversely the
ability of such underwriter to complete successfully an offering that does not
significantly and adversely impact the market price of the shares being offered,
then the number of shares to be included in such registration statement shall be
reduced pro rata among the Company, the Shareholder and such other Persons.
(c) The Company shall, to the extent that it is subject to the reporting
requirements of the Exchange Act, use its reasonable best efforts to file the
reports required to be filed by it under the Exchange Act so as to enable the
Shareholder to sell Retained Shares without registration pursuant to Rule 144
under the Securities Act. In connection with any sale, transfer or other
disposition by the Shareholder of any Retained Shares pursuant to Rule 144 under
the Securities Act, the Company shall, to the extent permissible under
applicable law, cooperate with the Shareholder to facilitate the timely
preparation and delivery of certificates representing Retained Shares to be sold
and not bearing any Securities Act legend, and enable certificates for such
Retained Shares to be issued at least two business days prior to any sale of
such Retained Shares for such number of Retained Shares and registered in such
names as the Shareholder may reasonably request upon ten (10) business days
prior notice. The Company's obligation set forth in the previous sentence shall
be subject to the delivery, if reasonably requested by the Company or its
transfer agent, by counsel to the Shareholder (which counsel shall be reasonably
acceptable to the Company and its transfer agent), in form and substance
reasonably satisfactory to the Company and its transfer agent, of an opinion
that such Securities Act legend need not appear on such certificate.
(d) Within 30 days following an Initial Public Offering, the Company will
file with the Securities and Exchange Commission a registration statement on
Form S-8 providing for the registration of sales of Option Shares.
SECTION 5. Compliance with Legal Requirements. No Shares shall be
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transferred pursuant to this Agreement unless and until all legal requirements
applicable to such transfer have, in the opinion of counsel to the Company, been
satisfied. Such requirements may include, but are not limited to, registering
or qualifying such Shares under any state or federal law, satisfying any
applicable law relating to the transfer of unregistered securities or
demonstrating the availability of an exemption from applicable laws, placing a
legend on the Shares to the effect that they were issued in reliance upon an
exemption from registration under the Securities Act and may not be transferred
other than in reliance upon Rule 144 or Rule 701 promulgated under the
Securities Act, if available, or upon another exemption from the Securities Act,
or obtaining the consent or approval of any governmental regulatory body.
SECTION 6. Lock-Ups.
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(a) If and to the extent requested by the managing underwriter in
connection with the Initial Public Offering, the Shareholder shall agree in
writing that the Shareholder will not, without the consent of the managing
underwriter: (x) effect any public sale or distribution of any Shares for a
period of 180 days following effectiveness of the registration statement
relating to such offering or (y) effect any other transfer of Shares during such
180 day period unless the transferee agrees in writing to be bound by the terms
and conditions of this Section 6(a).
(b) If and to the extent requested by the managing underwriter in
connection with any other underwritten offering of equity securities of the
Company (whether for the account of the Company, selling shareholders or both),
the Shareholder shall agree in writing that he will not, without the consent of
the managing underwriter: (x) effect any public sale or distribution of any
Shares for a period of 90 days following effectiveness of the registration
statement relating to such offering or (y) effect any other transfer of Shares
during such 90 day period unless the transferee agrees in writing to be bound by
the terms and conditions of this Section 6(b).
(c) The Shareholder agrees that he shall not be permitted to sell any
Shares in the Initial Public Offering unless (x) the Investcorp Shareholders
sell shares in the Initial Public Offering and (y) the underwriter managing the
Initial Public Offering believes, in its sole discretion, that the inclusion of
the Shareholder's Shares will not affect adversely such offering. In the event
the Shareholder is entitled to sell Shares pursuant to the preceding sentence,
the Shareholder shall be permitted to sell a number of Shares not greater than
15% of the Shareholder's total Shares, including Option Shares; provided that in
no event shall the Shareholder be permitted to include in such offering a number
of Shares greater than the number of shares included in such offering by the
Investcorp Shareholders.
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SECTION 7. Sales Following an Initial Public Offering.
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(a) Following the earlier to occur of (i) the sale by the Investcorp
Shareholders of an aggregate of 20% or more of the shares of Company common
stock purchased by the Investcorp Shareholders on the date hereof or (ii) the
third anniversary of the Initial Public Offering, the Shareholder shall be
permitted to sell a number of Shares not greater than 15% of the Shareholder's
total Shares, including Option Shares, in each subsequent calendar year, and a
pro rata portion of such amount, determined on a monthly basis, for the year in
which such event occurs; provided that if the event described in clause (i)
shall occur in the same year as the Initial Public Offering, any Shares sold by
the Shareholder in the Initial Public Offering shall be counted toward the total
Shares the Shareholder is entitled to sell for such year. The Shareholder may
make additional sales of Shares only with the consent of the Investcorp
Shareholders (and SEL shall have the authority to speak on behalf of the
Investcorp Shareholders for this purpose).
(b) The Shareholder shall be permitted to participate in a registered
secondary offering of the Company in which the Investcorp Shareholders sell
shares; provided that the total number of the Shareholder's Shares that may be
included in such offering shall not exceed the lesser of (i) the amount of
Shares that the Shareholder is entitled to sell pursuant to clause (a) above
(taking into account any other sales by the Shareholder in such year) and (ii)
the percentage of the Shareholder's Shares, including Option Shares, equal to
the percentage of the total shares of Company common stock owned by the
Investcorp Shareholders being sold by the Investcorp Shareholders in such
offering.
(c) Notwithstanding clause (a) above, the Investcorp Shareholders shall be
entitled to delay any sale of Shares by the Shareholder made pursuant to such
clause (a) for a period not to exceed 90 days, if the Investcorp Shareholders
intend to cause the Company to effect a secondary registered offering or if the
Investcorp Shareholders intend to sell a significant block of Company common
stock in such 90-day period.
(d) All of the restrictions on the Shareholder's ability to sell his
Shares shall also apply to Shares the ownership of which is attributable to the
Shareholder pursuant to Rule 144(a)(2) under the Securities Act of 1933, as
amended. All of the restrictions on the Shareholder's ability to sell such
Shares shall lapse upon the earlier to occur of (i) the date upon which the
Investcorp Shareholders own less than 10% of the total outstanding shares of
Company common stock or (ii) the fifth anniversary of the Initial Public
Offering.
SECTION 8. Termination of Chief Executive Officer. If, at any time prior
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to the first anniversary of the date of this Agreement, (a) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇'▇
employment as Chief Executive Officer of the Company is terminated by the
Company without Cause or by ▇▇. ▇▇▇▇▇▇▇▇▇▇ for Good Reason (as such terms are
defined in the Stock Option Agreement dated the date hereof between the Company
and ▇▇. ▇▇▇▇▇▇▇▇▇▇) and (b) within 60 days following such termination, the
Shareholder elects to terminate his employment with the Company, the Shareholder
shall be entitled to receive severance benefits in an amount equal to the
severance benefits the Shareholder was entitled to receive pursuant to the
Company plans in effect at the effective time of the Merger in the event of a
Change of Control (as defined in any such plan) and the Shareholder's
termination of his employment for Good Reason (as defined in any such plan).
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SECTION 9. RELIANCE ON THIS AGREEMENT.
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(a) THE SHAREHOLDER ACKNOWLEDGES THAT, ALTHOUGH THERE ARE MANY POSSIBLE
METHODS OF DETERMINING THE PURCHASE PRICE OF THE COMPANY'S SHARES, THE
SHAREHOLDER HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE EXPECTATION AND
UNDERSTANDING THAT THE METHOD(S) CONTAINED IN THIS AGREEMENT FOR DETERMINING THE
PURCHASE PRICE OF THE COMPANY'S SHARES WILL BE APPLIED UNDER THE CIRCUMSTANCES
AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
ACCORDINGLY, IT IS THE INTENTION AND EXPECTATION OF THE SHAREHOLDER THAT, IN
SITUATIONS IN WHICH THIS AGREEMENT IS APPLICABLE, THE COURTS SHALL INTERPRET AND
APPLY THIS AGREEMENT STRICTLY IN ACCORDANCE WITH ITS TERMS AND CONDITIONS,
WHETHER ACTING UNDER SECTION 302A.751 OF THE MINNESOTA BUSINESS CORPORATION ACT
OR OTHERWISE.
(b) THE SHAREHOLDER CONFIRMS THAT THE SHAREHOLDER HAS CAREFULLY REVIEWED
THIS AGREEMENT AND UNDERSTANDS IT. THE SHAREHOLDER FURTHER CONFIRMS THAT THE
SHAREHOLDER HAS CONSULTED WITH LEGAL COUNSEL REPRESENTING THE SHAREHOLDER
CONCERNING THIS AGREEMENT.
(c) THE SHAREHOLDER FURTHER REPRESENTS THAT, ALTHOUGH THE SHAREHOLDER IS
(OR FROM TIME TO TIME MAY BE) AN EMPLOYEE, OFFICER AND/OR DIRECTOR OF THE
COMPANY (OR OF A DIRECT OR INDIRECT SUBSIDIARY OR OTHER AFFILIATE OF THE
COMPANY), THE SHAREHOLDER IS HOLDING THE SHARES FOR THEIR POTENTIAL AS AN EQUITY
INVESTMENT AND WITHOUT ANY EXPECTATION UNDER SECTION 302A.751 OF THE MINNESOTA
BUSINESS CORPORATION ACT OR OTHERWISE THAT THE OWNERSHIP OF THE SHARES WILL
ENTITLE THE SHAREHOLDER TO ANY RIGHTS AS AN EMPLOYEE, OFFICER OR DIRECTOR OF THE
COMPANY (OR ANY SUCH SUBSIDIARY OR OTHER AFFILIATE OF THE COMPANY) THAT WOULD
NOT EXIST IF THE SHAREHOLDER WERE NOT A SHAREHOLDER. THE SHAREHOLDER FURTHER
AGREES THAT NO CHANGE IN HIS OR HER EXPECTATIONS CONCERNING EMPLOYMENT OR
CONCERNING HIS OR HER PARTICIPATION AS AN OFFICER OR DIRECTOR WILL HAVE A
REASONABLE BASIS UNLESS SET FORTH IN A WRITTEN AGREEMENT EXPRESSLY GIVING THE
SHAREHOLDER ADDITIONAL RIGHTS AS TO SUCH MATTERS. THE COMPANY HEREBY ADVISES THE
SHAREHOLDER THAT THE COMPANY HAS THE EXPECTATION THAT THE SHAREHOLDER WILL NOT
HAVE ANY RIGHT TO EMPLOYMENT BY THE COMPANY (OR BY ANY DIRECT OR INDIRECT
SUBSIDIARY OR OTHER AFFILIATE OF THE COMPANY) OR TO CONTINUE TO BE AN OFFICER OR
DIRECTOR OF THE COMPANY (OR OF ANY SUCH SUBSIDIARY OR OTHER AFFILIATE) BY VIRTUE
OF THE SHAREHOLDER'S OWNERSHIP OF THE SHARES.
SECTION 10. Miscellaneous.
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(a) Notices. All notices, instructions and other communications in
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connection with this Agreement shall be in writing and may be given by (i)
personal delivery, (ii) certified mail, return receipt requested, postage
prepaid, or (iii) delivery by a nationally recognized overnight courier, to the
parties at the addresses of each as set forth on the signature pages to this
Agreement or to such other address as any party may specify in a notice to the
other parties. Notices will be deemed to have been given (w) when actually
delivered personally, (x) the next business day if sent by overnight courier
(with proof of delivery) and (y) on the fifth day after mailing by certified
mail.
(b) No Waiver. No course of dealing and no delay on the part of any party
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hereto in exercising any right, power or remedy conferred by this Agreement
shall operate as a waiver thereof or otherwise prejudice such party's rights,
powers and remedies conferred by this Agreement or shall preclude any other or
further exercise thereof or the exercise of any other right, power and remedy.
(c) Binding Effect; Assignability. This Agreement shall be binding upon
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and, except as otherwise provided herein, shall inure to the benefit of the
respective parties and their permitted successors and assigns, including,
without limitation, Permitted Transferees to the extent specifically provided
for herein. This Agreement shall not be assignable except as otherwise
specifically provided herein.
(d) Amendment and Waiver. This Agreement may not be amended, modified or
--------------------
supplemented without the consent of the Company and the Shareholder, and no
waiver or consent to departures from the provisions hereof shall bind any party
who has not given such waiver or consent.
(e) Governing Law; Service of Process. This Agreement shall be construed
---------------------------------
both as to validity and performance in accordance with, and governed by, the
laws of the State of Minnesota applicable to agreements to be performed in
Minnesota, without regard to principles of conflict of laws.
(f) Counterparts. This Agreement may be executed in two or more
------------
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument, and all signatures need not appear
on any one counterpart.
(g) Headings. All headings and captions in this Agreement are for purposes
--------
of reference only and shall not be construed to limit or affect the substance of
this Agreement. All references to Section in this Agreement refer to Sections of
this Agreement, unless the context otherwise expressly provides.
(h) Entire Agreement. This Agreement contains, and is intended as, a
----------------
complete statement of all the terms of the arrangements between the parties with
respect to the matters provided for herein and supersedes any previous
agreements and understandings between the parties with respect to those matters.
(i) Severability. If any term or other provision of this Agreement is
------------
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the
11
economic or legal substance of the transactions contemplated hereby is not
affected in any manner adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the maximum extent possible.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
JOSTENS, INC.
a Minnesota corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Address: _____________________
_____________________
_____________________
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Address: _____________________
_____________________
_____________________
Accepted and agreed to for purposes
of Section 3(b) only:
SATURN EQUITY LIMITED
By: /s/ Sydney ▇. ▇▇▇▇▇▇▇
---------------------
Name: Sydney ▇. ▇▇▇▇▇▇▇
Title: Director
Address: ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇
▇▇