EXECUTION COPY
MAIL-WELL I CORPORATION
$300,000,000
8-3/4% Series A Senior Subordinated Notes due 2008
Purchase Agreement
December 11, 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ INC.
$300,000,000
8-3/4% Series A Senior Subordinated Notes due 2008
of
Mail-Well I Corporation
PURCHASE AGREEMENT
December 11, 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
PRUDENTIAL SECURITIES CORPORATION
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ INC.
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Mail-Well I Corporation, a Delaware corporation (the "COMPANY"),
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proposes to issue and sell to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, Prudential Securities Incorporated, Bear, ▇▇▇▇▇▇▇ & Co.
Inc. and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Inc. (each, an "INITIAL PURCHASER" and,
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collectively, the "INITIAL PURCHASERS") an aggregate of $300,000,000
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in principal amount of its 8-3/4% Series A Senior Subordinated Notes due
2008 (the "SERIES A NOTES"), subject to the terms and conditions set
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forth herein. The Series A Notes are to be issued pursuant to the
provisions of an indenture (the "INDENTURE"), to be dated as of the
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Closing Date (as defined below), among the Company, the Guarantors (as
defined below) and State Street Bank and Trust Company, as trustee (the
"TRUSTEE"). The Series A Notes and the Series B Notes (as defined
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below) issuable in exchange therefor are collectively referred to herein
as the "NOTES." The Notes will be guaranteed (the "GUARANTEES") by
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each of the entities listed on Schedule A hereto (each, a "GUARANTOR"
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and, collectively, the "GUARANTORS"). Capitalized terms used but not
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defined herein shall have the meanings given to such terms in the
Indenture.
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1. OFFERING MEMORANDUM. The Series A Notes will be offered
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and sold to the Initial Purchasers pursuant to one or more exemptions
from the registration requirements under the Securities Act of 1933, as
amended (the "ACT"). The Company and the Guarantors have prepared a
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preliminary offering memorandum, dated December 1, 1998 (the
"PRELIMINARY OFFERING MEMORANDUM") and a final offering memorandum,
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dated December 11, 1998 (the "OFFERING MEMORANDUM"), relating to the
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Series A Notes and the Guarantees. As used herein, the terms
"Preliminary Offering Memorandum" and "Offering Memorandum" shall
include the financial statements and schedules, if any, incorporated by
reference therein (the "Incorporated Information").
Upon original issuance thereof, and until such time as the same is
no longer required pursuant to the Indenture, the Series A Notes (and
all securities issued in exchange therefor, in substitution thereof or
upon conversion thereof) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)(A "QIB"), OR
(ii) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE ACT;
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (i) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (ii) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (iii) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
ACT, (v) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR
(vi) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE OR AN INTEREST ▇▇▇▇▇▇ IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
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AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE
TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
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representations, warranties and covenants contained in this Agreement,
and subject to the terms and conditions contained herein, the Company
agrees to issue and sell to the Initial Purchasers, and the Initial
Purchasers agree to purchase from the Company, the principal amounts of
Series A Notes set forth opposite the name of such Initial Purchaser on
Schedule B hereto at a purchase price equal to 97.33% of the principal
amount thereof (the "PURCHASE PRICE").
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3. TERMS OF OFFERING. The Initial Purchasers have advised
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the Company that the Initial Purchasers will make offers (the "EXEMPT
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RESALES") of the Series A Notes purchased hereunder on the terms set
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forth in the Offering Memorandum, as amended or supplemented, solely to
(i) persons whom the Initial Purchasers reasonably believe to be
"qualified institutional buyers" as defined in Rule 144A under the Act
("QIBS"), and (ii) persons permitted to purchase the Series A Notes in
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offshore transactions in reliance upon Regulation S under the Act (each,
a "REGULATION S PURCHASER") (such persons specified in clauses (i) and
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(ii) being referred to herein as the "ELIGIBLE PURCHASERS"). The
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Initial Purchasers will offer the Series A Notes to Eligible Purchasers
initially at a price equal to 100% of the principal amount thereof.
Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Series A Notes
will have the registration rights set forth in the registration rights
agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the
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Closing Date, in substantially the form of Exhibit A hereto, for so long
as such Series A Notes constitute "TRANSFER RESTRICTED SECURITIES" (as
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defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Company and the Guarantors will agree
to file with the Securities and Exchange Commission (the "COMMISSION")
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under the circumstances set forth therein, (i) a registration statement
under the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating
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to the Company's 8-3/4% Series B Senior Subordinated Notes due 2008
(the "SERIES B NOTES"), to be offered in exchange for the Series A
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Notes (such offer to exchange being referred to as the "EXCHANGE
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OFFER") and the Guarantees thereof or (ii) a shelf registration
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statement pursuant to Rule 415 under the Act (the "SHELF REGISTRATION
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STATEMENT" and, together with the Exchange Offer Registration
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Statement, the "REGISTRATION STATEMENTS") relating to the resale by
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certain holders of the Series A Notes and to use its best efforts to
cause such Registration Statements to be declared and remain effective
and usable for the periods specified in the Registration Rights
Agreement and to consummate the Exchange Offer. This Agreement, the
Indenture, the Notes, the Guarantees and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the
"OPERATIVE DOCUMENTS."
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4. DELIVERY AND PAYMENT.
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(a) Delivery of, and payment of the Purchase Price for,
the Series A Notes shall be made at the offices of Rothgerber ▇▇▇▇▇▇▇ &
▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other location as may be mutually acceptable. Such delivery and payment
shall be made at 9:00 a.m. New York City time, on December 16, 1998 or
at such other time on the same date or such other date as shall be
agreed upon by the Initial Purchasers and the Company in writing. The
time and date of such delivery and the payment for the Series A Notes
are herein called the "CLOSING DATE."
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(b) One or more of the Series A Notes in definitive global
form, registered in the name of Cede & Co., as nominee of the Depository
Trust Company ("DTC"), having an aggregate principal amount
---
corresponding to the aggregate principal amount of the Series A Notes
(collectively, the "GLOBAL NOTE"), shall be delivered by the Company
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to the Initial Purchasers (or as the Initial Purchasers direct) in each
case with any transfer taxes thereon duly paid by the Company against
payment by the Initial Purchasers of the Purchase Price thereof by wire
transfer in same day funds to the order of the Company. The Global Note
shall be made available to the Initial Purchasers for inspection not
later than 9:30 a.m., New York City time, on the business day
immediately preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. Each of the
---------------------------------------------
Company and the Guarantors hereby agrees with the Initial Purchasers as
follows:
(a) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, confirm such advice in writing,
(i) of the issuance by any state securities commission of any stop order
suspending the qualification or exemption from qualification of any
Series A Notes for offering or sale in any jurisdiction designated by
the Initial Purchasers pursuant to Section 5(e) hereof, or the
initiation of any proceeding by any state securities commission or any
other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 5(c)
below that makes any statement of a material fact made in the
Preliminary Offering Memorandum or the Offering Memorandum untrue or
that requires any additions to or changes in the Preliminary Offering
Memorandum or the Offering Memorandum in order to make the statements
therein not misleading. The Company and the Guarantors shall use their
best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Series A Notes under
any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority
shall issue an order suspending the qualification or exemption of any
Series A Notes under any state securities or Blue Sky laws, the Company
and the Guarantors shall use their best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as the Initial Purchasers may
reasonably request for the time period specified in Section 5(c).
Subject to the Initial Purchasers' compliance with their representations
and warranties and agreements set forth in Section 7 hereof,
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the Company consents to the use of the Preliminary Offering Memorandum
and the Offering Memorandum, and any amendments and supplements thereto
required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) During such period as in the opinion of counsel for
the Initial Purchasers an Offering Memorandum is required by law to be
delivered in connection with Exempt Resales by the Initial Purchasers
and in connection with market-making activities of the Initial
Purchasers for so long as any Series A Notes are outstanding, (i) not to
make any amendment or supplement to the Offering Memorandum of which the
Initial Purchasers shall not previously have been advised or to which
the Initial Purchasers shall reasonably object after being so advised
and (ii) to prepare promptly upon the Initial Purchasers' reasonable
request, any amendment or supplement to the Offering Memorandum which
may be necessary or advisable in connection with such Exempt Resales or
such market-making activities.
(d) If, during the period referred to in Section 5(c)
above, any event shall occur or condition shall exist as a result of
which, in the opinion of counsel to the Initial Purchasers, it becomes
necessary to amend or supplement the Offering Memorandum in order to
make the statements therein, in the light of the circumstances when such
Offering Memorandum is delivered to an Eligible Purchaser, not misleading,
or if, in the opinion of counsel to the Initial Purchasers, it is necessary
to amend or supplement the Offering Memorandum to comply with any applicable
law, forthwith to prepare an appropriate amendment or supplement to such
Offering Memorandum so that the statements therein, as so amended or
supplemented, will not, in the light of the circumstances when it is so
delivered, be misleading, or so that such Offering Memorandum will comply
with applicable law, and to furnish to the Initial Purchasers and such other
persons as the Initial Purchasers may designate such number of copies thereof
as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Series A Notes pursuant to
Exempt Resales as contemplated hereby, to cooperate with the Initial
Purchasers and counsel to the Initial Purchasers in connection with the
registration or qualification of the Series A Notes for offer and sale
to the Initial Purchasers and pursuant to Exempt Resales under the
securities or Blue Sky laws of such jurisdictions as the Initial
Purchasers may request and to continue such registration or
qualification in effect so long as required for Exempt Resales and to
file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification;
provided, however, that neither the Company nor any Guarantor shall be
required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any
action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the
Preliminary Offering Memorandum, the Offering Memorandum or Exempt
Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and
make generally available as soon as practicable after the end of each
fiscal year to the record holders of the Notes a financial report of the
Company and its subsidiaries on a consolidated basis (and a similar
financial report of all unconsolidated subsidiaries, if any), all such
financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of cash
flows and a
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consolidated statement of shareholders' equity as of the end of and for
such fiscal year, together with comparable information as of the end of
and for the preceding year, certified by the Company's independent
public accountants and (ii) to mail and make generally available as soon
as practicable after the end of each quarterly period (except for the
last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of
all unconsolidated subsidiaries, if any) as of the end of and for such
period, and for the period from the beginning of such year to the close
of such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(g) So long as the Notes are outstanding, to furnish to
the Initial Purchasers as soon as available copies of all reports or
other communications furnished by the Company or any of the Guarantors
to its security holders or furnished to or filed with the Commission or
any national securities exchange on which any class of securities of the
Company or any of the Guarantors is listed and such other publicly
available information concerning the Company and/or its subsidiaries as
the Initial Purchasers may reasonably request.
(h) So long as any of the Series A Notes remain
outstanding and during any period in which the Company and the
Guarantors are not subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make
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available to any holder of Series A Notes in connection with any sale
thereof and any prospective purchaser of such Series A Notes from such
holder, the information ("RULE 144A INFORMATION") required by
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Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of the
obligations of the Company and the Guarantors under this Agreement,
including: (i) the fees, disbursements and expenses of counsel to the
Company and the Guarantors and accountants of the Company and the
Guarantors in connection with the sale and delivery of the Series A
Notes to the Initial Purchasers and pursuant to Exempt Resales, and all
other fees and expenses in connection with the preparation, printing,
filing and distribution of the Preliminary Offering Memorandum, the
Offering Memorandum and all amendments and supplements to any of the
foregoing (including financial statements), including the mailing and
delivering of copies thereof to the Initial Purchasers and persons
designated by them in the quantities specified herein, (ii) all costs
and expenses related to the transfer and delivery of the Series A Notes
to the Initial Purchasers and pursuant to Exempt Resales, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement, the other Operative Documents and any other
agreements or documents in connection with the offering, purchase, sale
or delivery of the Series A Notes, (iv) all expenses in connection with
the registration or qualification of the Series A Notes and the
Guarantees for offer and sale under the securities or Blue Sky laws of
the several states and all costs of printing or producing any
preliminary and supplemental Blue Sky memoranda in connection therewith
(including the filing fees and fees and disbursements of counsel for the
Initial Purchasers in connection with such registration or qualification
and memoranda relating thereto), (v) the cost of printing certificates
representing the Series A Notes and the Guarantees, (vi) all expenses
and listing fees in connection with the application for quotation of the
Series A Notes in the National
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Association of Securities Dealers, Inc. ("NASD") Automated Quotation
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System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee
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and the Trustee's counsel in connection with the Indenture, the Notes
and the Guarantees, (viii) the costs and charges of any transfer agent,
registrar and/or depositary (including DTC), (ix) any fees charged by
rating agencies for the rating of the Notes, (x) all costs and expenses
of the Exchange Offer and any Registration Statement, as set forth in
the Registration Rights Agreement, and (xi) and all other costs and
expenses incident to the performance of the obligations of the Company
and the Guarantors hereunder for which provision is not otherwise made
in this Section.
(j) To use its best efforts to effect the inclusion of the
Series A Notes in PORTAL and to maintain the listing of the Series A
Notes on PORTAL for so long as the Series A Notes are outstanding.
(k) To obtain the approval of DTC for "book-entry"
transfer of the Notes, and to comply with all of its agreements set
forth in the representation letters of the Company and the Guarantors to
DTC relating to the approval of the Notes by DTC for "book-entry"
transfer.
(l) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise transfer or dispose of any debt securities
of the Company or any Guarantor or any warrants, rights or options to
purchase or otherwise acquire debt securities of the Company or any
Guarantor substantially similar to the Notes and the Guarantees (other
than (i) the Notes and the Guarantees and (ii) commercial paper issued
in the ordinary course of business), without the prior written consent
of the Initial Purchasers.
(m) Not to sell, offer for sale or solicit offers to buy
or otherwise negotiate in respect of any security (as defined in the
Act) that would be integrated with the sale of the Series A Notes to the
Initial Purchasers or pursuant to Exempt Resales in a manner that would
require the registration of any such sale of the Series A Notes under
the Act.
(n) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of
any Notes and the related Guarantees.
(o) To cause the Exchange Offer to be made in the
appropriate form to permit Series B Notes and guarantees thereof by the
Guarantors registered pursuant to the Act to be offered in exchange for
the Series A Notes and the Guarantees and to comply with all applicable
federal and state securities laws in connection with the Exchange Offer.
(p) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(q) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
it prior to the Closing Date and to satisfy all conditions precedent to
the delivery of the Series A Notes and the Guarantees.
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6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
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AND THE GUARANTORS. As of the date hereof, each of the Company and the
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Guarantors represents and warrants to, and agrees with, each of the
Initial Purchasers that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum do not, and any supplement or amendment to them will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties contained in this paragraph (a) shall not apply to statements
in or omissions from the Preliminary Offering Memorandum or the Offering
Memorandum (or any supplement or amendment thereto) based upon
information relating to any Initial Purchaser furnished to the Company
in writing by or on behalf of an Initial Purchaser expressly for use
therein. No stop order preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum, or any amendment or supplement
thereto, or any order asserting that any of the transactions
contemplated by this Agreement are subject to the registration
requirements of the Act, has been issued.
(b) Each of the Company and its subsidiaries has been duly
incorporated or formed, is validly existing as a corporation, limited
liability company or limited partnership in good standing under the laws
of its jurisdiction of incorporation or formation and has the corporate,
limited liability company or limited partnership power and authority to
carry on its business as described in the Preliminary Offering
Memorandum and the Offering Memorandum and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
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(c) All outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(d) The entities listed on Schedule C hereto are the only
subsidiaries, direct or indirect, of the Company. All of the
outstanding shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
nature (each, a "LIEN"), except with respect to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----
Holdings, Inc. which has a series of non-voting common stock
outstanding, 10% of which are owned by non-affiliates of the Company.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
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(f) The Indenture has been duly authorized by the Company
and each of the Guarantors and, on the Closing Date, will have been
validly executed and delivered by the Company and each of the
Guarantors. When the Indenture has been duly executed and delivered by
the Company and each of the Guarantors, the Indenture will be a valid
and binding agreement of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability. On the
Closing Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "TIA"
---
or "TRUST INDENTURE ACT"), and the rules and regulations of the
-------------------
Commission applicable to an indenture which is qualified thereunder.
(g) The Series A Notes have been duly authorized and, on
the Closing Date, will have been validly executed and delivered by the
Company. When the Series A Notes have been issued, executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, the Series A Notes will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability. On the Closing Date,
the Series A Notes will conform as to legal matters to the description
thereof contained in the Offering Memorandum.
(h) On the Closing Date, the Series B Notes will have been
duly authorized by the Company. When the Series B Notes are issued,
executed and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, the Series B Notes will be entitled to the
benefits of the Indenture and will be the valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The Guarantee to be endorsed on the Series A Notes by
each Guarantor has been duly authorized by such Guarantor and, on the
Closing Date, will have been duly executed and delivered by each such
Guarantor. When the Series A Notes have been issued, executed and
authenticated in accordance with the Indenture and delivered to and paid
for by the Initial Purchasers in accordance with the terms of this
Agreement, the Guarantee of each Guarantor endorsed thereon will be
entitled to the benefits of the Indenture and will be the valid and
binding obligation of such Guarantor, enforceable against such Guarantor
in accordance with its terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability. On the Closing Date, the
Guarantees to be endorsed on the Series A Notes will conform as to legal
matters to the description thereof contained in the Offering Memorandum.
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(j) The Guarantee to be endorsed on the Series B Notes by
each Guarantor has been duly authorized by such Guarantor and, when
issued, will have been duly executed and delivered by each such
Guarantor. When the Series B Notes have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Guarantee of each Guarantor endorsed thereon will be
entitled to the benefits of the Indenture and will be the valid and
binding obligation of such Guarantor, enforceable against such Guarantor
in accordance with its terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability. When the Series B Notes are
issued, authenticated and delivered, the Guarantees to be endorsed on
the Series B Notes will conform as to legal matters to the description
thereof in the Offering Memorandum.
(k) The Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors and, on the Closing
Date, will have been duly executed and delivered by the Company and each
of the Guarantors. When the Registration Rights Agreement has been duly
executed and delivered, the Registration Rights Agreement will be a
valid and binding agreement of the Company and each of the Guarantors,
enforceable against the Company and each Guarantor in accordance with
its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Registration Rights Agreement
will conform as to legal matters to the description thereof in the
Offering Memorandum.
(l) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound.
(m) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries; and any
real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings
by the Company and its subsidiaries, in each case except as described in
the Offering Memorandum.
(n) The Company and each of its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Company nor any of
its subsidiaries (i) has received notice from any insurer or agent of
such insurer that substantial capital improvements or other material
expenditures will have to be made in order to continue such insurance or
(ii) has any reason to believe that it will not be able to renew its
existing insurance
-10-
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers at a cost that would not have a Material Adverse
Effect.
(o) Except as disclosed in the Offering Memorandum, no
relationship, direct or indirect, exists between or among the Company or
any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which would be required by the Act to be
described in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 filed with
the Commission.
(p) There is no (i) significant unfair labor practice
complaint, grievance or arbitration proceeding pending or, to the best
of the Company's knowledge, threatened against the Company or any of its
subsidiaries before the National Labor Relations Board or any state or
local labor relations board, (ii) strike, labor dispute, slowdown or
stoppage pending or, to the best of the Company's knowledge, threatened
against the Company or any of its subsidiaries or (iii) union
representation question existing with respect to the employees of the
Company or any of its subsidiaries, except in the case of clauses (i),
(ii) and (iii) for such actions which, singly or in the aggregate,
would not have a Material Adverse Effect. To the best knowledge of the
Company, no collective bargaining organizing activities are taking place
with respect to the Company or any of its subsidiaries.
(q) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(r) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(s) All indebtedness of the Company and the Guarantors
that will be repaid with the proceeds of the issuance and sale of the
Series A Notes was incurred, and the indebtedness represented by the
Series A Notes is being incurred, for proper purposes and in good faith
and each of the Company and the Guarantors was, at the time of the
incurrence of such indebtedness that will be repaid with the proceeds of
the issuance and sale of the Series A Notes, and will be on the Closing
Date (after giving effect to the application of the proceeds from the
issuance of the Series A Notes) solvent, and had at the time of the
incurrence of such indebtedness that will be repaid with the proceeds of
the issuance and sale of the Series A Notes and will have on the Closing
Date (after giving effect to the application of the proceeds from the
issuance of the Series A Notes) sufficient capital for carrying on their
respective business and were, at the time of the incurrence of such
indebtedness that will be repaid with the proceeds of the issuance and
sale of the Series A Notes, and will be on the Closing Date (after
-11-
giving effect to the application of the proceeds from the issuance of
the Series A Notes) able to pay their respective debts as they mature.
(t) To the Company's knowledge, no action has been taken
and no law, statute, rule or regulation or order has been enacted,
adopted or issued by any governmental agency or body which prevents the
execution, delivery and performance of any of the Operative Documents,
the issuance of the Series A Notes or the Guarantees, or suspends the
sale of the Series A Notes or the Guarantees in any jurisdiction
referred to in Section 5(e); and no injunction, restraining order or
other order or relief of any nature by a federal or state court or other
tribunal of competent jurisdiction has been issued with respect to the
Company or any of its subsidiaries which would prevent or suspend the
issuance or sale of the Series A Notes or the Guarantees in any
jurisdiction referred to in Section 5(e).
(u) To the best of the Company's knowledge, the execution,
delivery and performance of this Agreement and the other Operative
Documents by the Company and each of the Guarantors, compliance by the
Company and each of the Guarantors with all provisions hereof and
thereof and the consummation of the transactions contemplated hereby and
thereby will not (i) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body or
agency (except such as may be required under the securities or Blue Sky
laws of the various states), (ii) conflict with or constitute a breach
of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound, (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, any of its
subsidiaries or their respective property, (iv) result in the imposition
or creation of (or the obligation to create or impose) a Lien under, any
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or their
respective property is bound, or (v) result in the termination,
suspension or revocation of any Authorization (as defined below) of the
Company or any of its subsidiaries or result in any other impairment of
the rights of the holder of any such Authorization.
(v) There are no legal or governmental proceedings pending
or, to the best of the Company's knowledge, threatened to which the
Company or any of its subsidiaries is or could be a party or to which
any of their respective property is or could be subject, which might
result, singly or in the aggregate, in a Material Adverse Effect.
(w) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating
to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), any provisions of the Employee Retirement
------------------
Income Security Act of 1974,
-12-
as amended ("ERISA"), or any provisions of the Foreign Corrupt
-----
Practices Act or the rules and regulations promulgated thereunder,
except for such violations which, singly or in the aggregate, would not
have a Material Adverse Effect.
(x) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a Material
Adverse Effect.
(y) Each of the Company and its subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations and
other approvals (each, an "AUTHORIZATION") of, and has made all
-------------
filings with and notices to, all governmental or regulatory authorities
and self-regulatory organizations and all courts and other tribunals,
including without limitation, under any applicable Environmental Laws,
as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to have
any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the
Company and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the authorities
and governing bodies having jurisdiction with respect thereto; and no
event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after
notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or
lapse of time or both, would result in any other impairment of the
rights of the holder of any such Authorization; and such Authorizations
contain no restrictions that are burdensome to the Company or any of its
subsidiaries; except where such failure to be valid and in full force
and effect or to be in compliance, the occurrence of any such event or
the presence of any such restriction would not, singly or in the
aggregate, have a Material Adverse Effect.
(z) The accountants, Deloitte & Touche LLP, with respect
to the Company and the Guarantors (excluding Color Art, Inc.) that have
certified the financial statements and supporting schedules with respect
to the Company and the Guarantors (excluding Color Art, Inc.) included
in the Preliminary Offering Memorandum and the Offering Memorandum are
independent public accountants with respect to the Company and the
Guarantors (excluding Color Art, Inc.), as required by the Act and the
Exchange Act. The accountants, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Co. LLP, with
respect to Color Art, Inc., that have certified the financial statements
of Color Art, Inc. referred to in the Preliminary Offering Memorandum
and Offering Memorandum are independent public accountants with respect
to Color Art, Inc. as required by the Act on the Exchange Act. The
historical financial statements, together with related schedules
and notes, set forth in the Preliminary Offering Memorandum and the
Offering Memorandum comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under the
Act, except for the absence of historical financial statements of recently
acquired subsidiaries as required under Rule 3-05 of Regulation S-X and
the omission, of which you are aware, of the financial statements, or
summary footnote disclosure related to, certain Guarantors as required
by Rule 3-10 of Regulation S-X.
-13-
(aa) The historical financial statements, together with
related schedules and notes forming part of the Offering Memorandum (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated in the
Offering Memorandum at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Offering Memorandum
(and any amendment or supplement thereto) are, in all material respects,
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(bb) The pro forma financial statements included in the
Preliminary Offering Memorandum and the Offering Memorandum have been
prepared on a basis consistent with the historical financial statements
of the Company and its subsidiaries and give effect to assumptions used
in the preparation thereof on a reasonable basis and in good faith and
present fairly the historical and proposed transactions contemplated by
the Preliminary Offering Memorandum and the Offering Memorandum. The
other pro forma financial and statistical information and data included
in the Offering Memorandum are, in all material respects, accurately
presented and prepared on a basis consistent with the pro forma
financial statements.
(cc) The Company is not and, after giving effect to the
offering and sale of the Series A Notes and the application of the net
proceeds thereof as described in the Offering Memorandum, will not be,
an "investment company," as such term is defined in the Investment
Company Act of 1940, as amended.
(dd) Except for the Registration Rights Agreement and the
Company's obligation to cause its parent, Mail-Well, Inc., to register
70,564 shares of Mail-Well, Inc. common stock issued pursuant to the
Stock Purchase Agreement dated August 27, 1998, between the Company,
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, Inc. and the shareholders thereof, there are no
contracts, agreements or understandings between the Company or any
Guarantor and any person granting such person the right to require the
Company or such Guarantor to file a registration statement under the Act
with respect to any securities of the Company or such Guarantor or to
require the Company or such Guarantor to include such securities with
the Notes and Guarantees registered pursuant to any Registration
Statement.
(ee) Neither the Company nor any of its subsidiaries nor
any agent thereof acting on the behalf of them has taken, and none of
them will take, any action that might cause this Agreement or the
issuance or sale of the Series A Notes to violate Regulation G (12
C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12
C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System.
(ff) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act (i) has imposed (or has informed the Company or any
Guarantor that it is considering imposing) any condition (financial or
otherwise) on the Company's or any Guarantor's retaining any rating
assigned to the Company or any Guarantor, any
-14-
securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering (a) the downgrading,
suspension, or withdrawal of, or any review for a possible change that
does not indicate the direction of the possible change in, any rating so
assigned or (b) any change in the outlook for any rating of the Company,
any Guarantor or any securities of the Company or any Guarantor.
(gg) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred
any material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any
of its subsidiaries has incurred any material liability or obligation,
direct or contingent.
(hh) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, contains all the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the
Act.
(ii) When the Series A Notes and the Guarantees are issued
and delivered pursuant to this Agreement, neither the Series A Notes nor
the Guarantees will be of the same class (within the meaning of Rule
144A under the Act) as any security of the Company or the Guarantors
that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States
automated inter-dealer quotation system.
(jj) No form of general solicitation or general advertising
(as defined in Regulation D under the Act) was used by the Company, the
Guarantors or any of their respective representatives (other than the
Initial Purchasers, as to whom the Company and the Guarantors make no
representation) in connection with the offer and sale of the Series A
Notes contemplated hereby, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising. No securities of the same class as the Series A
Notes have been issued and sold by the Company within the six-month
period immediately prior to the date hereof.
(kk) Prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the TIA.
(ll) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company and the Guarantors
make no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S under the Act
("REGULATION S") with respect to the Series A Notes or the Guarantees.
------------
-15-
(mm) The Company, the Guarantors and their respective
affiliates and all persons acting on their behalf (other than the
Initial Purchasers, as to whom the Company and the Guarantors make no
representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the
offering of the Series A Notes outside the United States and, in
connection therewith, the Offering Memorandum will contain the
disclosure required by Rule 902(h).
(nn) The Series A Notes sold in reliance on Registration S
will be represented upon issuance by a temporary global security that
may not be exchanged for definitive securities until the expiration of
the 40-day restricted period referred to in Rule 903(c)(3) of the Act
and only upon certification of beneficial ownership of such Series A
Notes by non-U.S. persons or U.S. persons who purchased such Series A
Notes in transactions that were exempt from the registration
requirements of the Act.
(oo) The Series A Notes offered and sold in reliance on
Regulation S have been and will be offered and sold only in offshore
transactions.
(pp) The sale of the Series A Notes pursuant to Regulation
S is not part of a plan or scheme to evade the registration provisions
of the Act.
(qq) No registration under the Act of the Series A Notes or
the Guarantees is required for the sale of the Series A Notes and the
Guarantees to the Initial Purchasers as contemplated hereby or for the
Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7
hereof.
(rr) Each certificate signed by any officer of the Company
or any Guarantor and delivered to the Initial Purchasers or counsel for
the Initial Purchasers shall be deemed to be a representation and
warranty by the Company or such Guarantor to the Initial Purchasers as
to the matters covered thereby.
The Company acknowledges that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Section 9 hereof, counsel to the Company and the Guarantors
and counsel to the Initial Purchasers will rely upon the accuracy and
truth of the foregoing representations and hereby consents to such
reliance.
7. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. Each
--------------------------------------------------
of the Initial Purchasers, severally and not jointly, represents and
warrants to, and agrees with, the Company and the Guarantors:
(a) Such Initial Purchaser is a QIB with such knowledge
and experience in financial and business matters as is necessary in
order to evaluate the merits and risks of an investment in the Series A
Notes.
(b) Such Initial Purchaser (A) is not acquiring the Series
A Notes with a view to any distribution thereof or with any present
intention of offering or selling any of the Series A Notes
-16-
in a transaction that would violate the Act or the securities laws of
any state of the United States or any other applicable jurisdiction and
(B) will be reoffering and reselling the Series A Notes only to (x) QIBs
in reliance on the exemption from the registration requirements of the
Act provided by Rule 144A and (y) in offshore transactions in reliance
upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D
under the Act) has been or will be used by such Initial Purchaser or any
of its representatives in connection with the offer and sale of the
Series A Notes pursuant hereto, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the
Series A Notes only from, and will offer to sell the Series A Notes only
to, Eligible Purchasers. Each Initial Purchaser further agrees that it
will offer to sell the Series A Notes only to, and will solicit offers
to buy the Series A Notes only from (A) Eligible Purchasers that the
Initial Purchaser reasonably believes are QIBs and (B) Regulation S
Purchasers, in each case, that agree that (x) the Series A Notes
purchased by them may be resold, pledged or otherwise transferred within
the time period referred to under Rule 144(k) (taking into account the
provisions of Rule 144(d) under the Act, if applicable) under the Act,
as in effect on the date of the transfer of such Series A Notes, only
(I) to the Company or any of its subsidiaries, (II) to a person whom the
seller reasonably believes is a QIB purchasing for its own account or
for the account of a QIB in a transaction meeting the requirements of
Rule 144A under the Act, (III) in an offshore transaction (as defined in
Rule 902 under the Act) meeting the requirements of Rule 904 of the Act,
(IV) in a transaction meeting the requirements of Rule 144 under the
Act, (V) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel acceptable
to the Company) or (VI) pursuant to an effective registration statement
and, in each case, in accordance with the applicable securities laws of
any state of the United States or any other applicable jurisdiction and
(y) they will deliver to each person to whom such Series A Notes or an
interest therein is transferred a notice substantially to the effect of
the foregoing.
(e) Such Initial Purchaser and its affiliates or any person
acting on its or their behalf have not engaged or will not engage in
any directed selling efforts within the meaning of Regulation S with
respect to the Series A Notes or the Guarantees.
(f) The Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S have been and will
be offered and sold only in offshore transactions.
(g) Such Initial Purchasers agree that they have not
offered or sold and will not offer or sell the Series A Notes in the
United States or to, or for the benefit or account of, a U.S. Person
(other than a distributor), in each case, as defined in Rule 902 under
the Act (i) as part of their distribution at any time and (ii) otherwise
until 40 days after the later of the commencement of the offering of the
Series A Notes pursuant hereto and the Closing Date, other than in
accordance with
-17-
Regulation S of the Act or another exemption from the registration
requirements of the Act. Such Initial Purchasers agree that, during
such 40-day restricted period, they will not cause any advertisement
with respect to the Series A Notes (including any "tombstone"
advertisement) to be published in any newspaper or periodical or posted
in any public place and will not issue any circular relating to the
Series A Notes, except such advertisements as are permitted by and
include the statements required by Regulation S.
(h) Such Initial Purchasers agree that, at or prior to
confirmation of a sale of Series A Notes by them to any distributor,
dealer or person receiving a selling concession, fee or other
remuneration during the 40-day restricted period referred to in Rule
903(c)(2) under the Act, they will send to such distributor, dealer or
person receiving a selling concession, fee or other remuneration a
confirmation or notice to substantially the following effect:
"The Series A Notes covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered and sold within the United States or
to, or for the account or benefit of, U.S. persons (i) as part of
your distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the Offering and the Closing Date,
except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A or to Accredited Institutions in
transactions that are exempt from the registration requirements of
the Securities Act), and in connection with any subsequent sale by
you of the Series A Notes covered hereby in reliance on Regulation S
during the period referred to above to any distributor, dealer or
person receiving a selling concession, fee or other remuneration, you
must deliver a notice to substantially the foregoing effect. Terms
used above have the meanings assigned to them in Regulation S."
(i) Such Initial Purchasers agree that the Series A Notes
offered and sold in reliance on Regulation S will be represented upon
issuance by a global security that may not be exchanged for definitive
securities until the expiration of the 40-day restricted period referred
to in Rule 903(c)(3) of the Act and only upon certification of
beneficial ownership of such Series A Notes by non-U.S. persons or U.S.
persons who purchased such Series A Notes in transactions that were
exempt from the registration requirements of the Act.
(j) The sale of the Series A Notes offered and sold by
such Initial Purchaser pursuant hereto in reliance on Regulation S is
not part of a plan or scheme to evade the registration provisions of the
Act.
Each of the Initial Purchasers acknowledges that the Company
and the Guarantors and, for purposes of the opinions to be delivered to
each Initial Purchaser pursuant to Section 9 hereof, counsel to the
Company and the Guarantors and counsel to the Initial Purchasers will
rely upon the accuracy and truth of the foregoing representations and
each of the Initial Purchasers hereby consents to such reliance.
-18-
8. INDEMNIFICATION.
---------------
(a) The Company and each Guarantor agree, jointly and
severally, to indemnify and hold harmless each of the Initial
Purchasers, their directors, officers and each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and judgments (including, without
limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action, that could
give rise to any such losses, claims, damages, liabilities or judgments)
caused by any untrue statement or alleged untrue statement of a material
fact contained in the Offering Memorandum (or any amendment or
supplement thereto), the Preliminary Offering Memorandum or any Rule
144A Information provided by the Company or any Guarantor to any holder
or prospective purchaser of Series A Notes pursuant to Section 5(h) or
caused by 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 judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any of the Initial Purchasers furnished in writing to the
Company by any of the Initial Purchasers; provided, however, that the
foregoing indemnity agreement with respect to any Preliminary Offering
Memorandum shall not inure to the benefit of any Initial Purchaser who
failed to deliver a Final Offering Memorandum, as then amended or
supplemented, (so long as the Final Offering Memorandum and any
amendment or supplement thereto was provided by the Company to the
several Initial Purchasers in the requisite quantity and on a timely
basis to permit proper delivery on or prior to the Closing Date) to the
person asserting any losses, claims, damages, liabilities or judgements
caused by any untrue statement or alleged untrue statement of a material
act contained in any Preliminary Offering Memorandum, or caused by 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, if such material misstatement or omission or alleged
material misstatement or omission was cured in the Final Offering
Memorandum, as so amended or supplemented.
(b) Each of the Initial Purchasers agrees, severally and
not jointly, to indemnify and hold harmless the Company and the
Guarantors, and their respective directors and officers and each person,
if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company or the Guarantors, to the
same extent as the foregoing indemnity from the Company and the
Guarantors to each of the Initial Purchasers but only with reference to
information relating to such Initial Purchasers furnished in writing to
the Company by such Initial Purchasers expressly for use in the
Preliminary Offering Memorandum or the Offering Memorandum.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section
8(a) or 8(b) (the "INDEMNIFIED PARTY"), the indemnified party shall
-----------------
promptly notify the person against whom such indemnity may be sought
(the "INDEMNIFYING PARTY") in writing and the indemnifying party shall
------------------
assume the defense of such action, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred (except that in the case
of any action in respect of which indemnity may be sought pursuant to
both Sections 8(a) and 8(b), the
-19-
Initial Purchasers shall not be required to assume the defense of such
action pursuant to this Section 8(c), but may employ separate counsel
and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the
Initial Purchasers). Any indemnified party shall have the right to
employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at
the expense of the indemnified party unless (i) the employment of such
counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to
assume the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to any
such action (including any impleaded parties) include both the
indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of
such action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all
indemnified parties and all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, in the case of the
parties indemnified pursuant to Section 8(a), and by the Company, in the
case of parties indemnified pursuant to Section 8(b). The indemnifying
party shall indemnify and hold harmless the indemnified party from and
against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action (i) effected with its written
consent or (ii) effected without its written consent if the settlement
is entered into more than twenty business days after the indemnifying
party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party)
and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of
which the indemnified party is or could have been a party and indemnity
or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of
such action and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages, liabilities or judgments
referred to therein, then each 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 and judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Guarantors, on the one hand, and the Initial Purchasers on the other
hand from the offering of the Series A Notes or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(d)(i) above but also
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the relative fault of the Company and the Guarantors, on the one hand,
and the Initial Purchasers, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other
hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Series A Notes (after underwriting
discounts and commissions, but before deducting expenses) received by
the Company, and the total discounts and commissions received by the
Initial Purchasers bear to the total price to investors of the Series A
Notes, in each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, 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 the Guarantors, on the one hand,
or the Initial Purchasers, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Guarantors, and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant
to this Section 8(d) were determined by pro rata allocation 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 judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred by
such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses,
claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, the Initial Purchasers shall not be
required to contribute any amount in excess of the amount by which the
total discounts and commissions received by such Initial Purchasers
exceeds the amount of any damages which the Initial Purchasers have
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.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The
---------------------------------------------
obligations of the Initial Purchasers to purchase the Series A Notes
under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of the Company
and the Guarantors contained in this Agreement shall be true and correct
on the Closing Date with the same force and effect as if made on and as
of the Closing Date.
-21-
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any
notice have been given of any potential or intended downgrading,
suspension or withdrawal of, or of any review (or of any potential or
intended review) for a possible change that does not indicate the
direction of the possible change in, any rating of the Company or any
Guarantor or any securities of the Company or any Guarantor (including,
without limitation, the placing of any of the foregoing ratings on
credit watch with negative or developing implications or under review
with an uncertain direction) by any "nationally recognized statistical
rating organization" as such term is defined for purposes of Rule
436(g)(2) under the Act, (ii) there shall not have occurred any change,
nor shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Company or any Guarantor or
any securities of the Company or any Guarantor by any such rating
organization and (iii) no such rating organization shall have given
notice that it has assigned (or is considering assigning) a lower rating
to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there shall not have
occurred any change or any development involving a prospective change in
the condition, financial or otherwise, or the earnings, business,
management or operations of the Company and its subsidiaries, taken as a
whole, (ii) there shall not have been any change or any development
involving a prospective change in the capital stock or in the long-term
debt of the Company or any of its subsidiaries and (iii) neither the
Company nor any of its subsidiaries shall have incurred any liability or
obligation, direct or contingent, the effect of which, in any such case
described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in the Initial
Purchasers' judgment, is material and adverse and, in the Initial
Purchasers' judgment, makes it impracticable to market the Series A
Notes on the terms and in the manner contemplated in the Offering
Memorandum.
(d) The Initial Purchasers shall have received on the
Closing Date a certificate dated the Closing Date, signed by the
President and the Chief Financial Officer of the Company and each of the
Guarantors, confirming the matters set forth in Sections 6(hh), 9(a) and
9(b) and stating that each of the Company and the Guarantors has
complied with all the agreements and satisfied all of the conditions
herein contained and required to be complied with or satisfied on or
prior to the Closing Date.
(e) The Initial Purchasers shall have received on the
Closing Date an opinion (satisfactory to you and counsel for the Initial
Purchasers), dated the Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
counsel for the Company and the Guarantors, to the effect that:
(i) each of the Company and its subsidiaries has
been duly incorporated or formed, is validly existing as a corporation,
limited liability company or limited partnership in good standing under
the laws of its jurisdiction of incorporation or formation and has the
corporate, limited liability company or limited partnership power and
authority to carry on its business as described in the Offering
Memorandum and to own, lease and operate its properties;
-22-
(ii) each of the Company and its subsidiaries is duly
qualified and is in good standing as a foreign corporation or entity
authorized to do business in each jurisdiction in which the nature of
its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect;
(iii) all the outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights;
(iv) all of the outstanding shares of capital stock
of each of the Company's subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable, and are owned by
the Company, free and clear of any Lien; except with respect to ▇▇▇▇▇▇
Envelope Holdings, Inc. which has a series of non-voting common stock
outstanding, 10% of which are owned by non-affiliates of the Company;
(v) the Series A Notes have been duly authorized
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial Purchasers
in accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms except as (x)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (y) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(vi) the Guarantees have been duly authorized and
validly executed and delivered by the Guarantors and, when the Series A
Notes are executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial Purchasers
in accordance with the terms of this Agreement, the Guarantees endorsed
thereon will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Guarantors, enforceable in
accordance with their terms except as (x) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(vii) the Indenture has been duly authorized, executed
and delivered by the Company and each Guarantor and is a valid and
binding agreement of the Company and each Guarantor, enforceable against
the Company and each Guarantor in accordance with its terms except as
(x) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (y) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(viii) this Agreement has been duly authorized,
executed and delivered by the Company and the Guarantors;
(ix) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the Guarantors and
is a valid and binding agreement of the
-23-
Company and each Guarantor, enforceable against the Company and each
Guarantor in accordance with its terms, except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights of acceleration and
the availability of equitable remedies may be limited by equitable
principles of general applicability;
(x) the Series B Senior Notes have been duly
authorized by the Company and the Guarantees to be endorsed on the
Series B Notes have been duly authorized by the Guarantors;
(xi) when the Series B Senior Notes are executed and
authenticated in accordance with the provisions of the Indenture and
delivered in exchange for Series A Notes in accordance with the
Indenture and the Exchange Offer, they will be entitled to the benefits
of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (y) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(xii) when the Series B Notes are executed and
authenticated in accordance with the provisions of the Indenture and
delivered in exchange for Series A Notes in accordance with the
Indenture and the Exchange Offer, the Guarantees endorsed thereon will
be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Guarantors, enforceable in accordance with
their terms except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(xiii) the statements under the captions "Risk
Factors," "Management's Discussion and Analysis of Financial Condition
and Results of Operations," "Business," "Description of the Company's
Capital Stock," "Description of Notes," "Description of Certain
Indebtedness," "Notice to Investors" and "Plan of Distribution" in the
Offering Memorandum, insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein, fairly
present in all material respects such legal matters, documents and
proceedings;
(xiv) neither the Company nor any of its subsidiaries
is in violation of its respective charter or by-laws and, to the best of
such counsel's knowledge after due inquiry, neither the Company nor any
of its subsidiaries is in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound;
(xv) the execution, delivery and performance of this
Agreement and the other Operative Documents by the Company and each of
the Guarantors, the compliance by the Company and each of the Guarantors
with all provisions hereof and thereof and the consummation
-24-
of the transactions contemplated hereby and thereby will not (i) require
any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various states),
(ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Company
or any of its subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company
and its subsidiaries, taken as a whole, to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, (iii) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their
respective property, or (iv) result in the imposition or creation of (or
the obligation to create or impose) a Lien under, any agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective
property is bound.
(xvi) the Company is not and, after giving effect to
the offering and sale of the Series A Notes and the application of the
net proceeds thereof as described in the Offering Memorandum, will not
be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(xvii) the Indenture complies as to form in all
material respects with the requirements of the TIA and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder, and it is not necessary in connection with the
offer, sale and delivery of the Series A Notes to the Initial Purchasers
in the manner contemplated by this Agreement or in connection with the
Exempt Resales to qualify the Indenture under the TIA.
(xviii) no registration under the Act of the
Series A Notes is required for the sale of the Series A Notes to the
Initial Purchasers as contemplated by this Agreement or for the Exempt
Resales assuming that (i) each Initial Purchaser is a QIB or a
Regulation S Purchaser, (ii) the accuracy of, and compliance with, the
Initial Purchasers' representations and agreements contained in Section
7 of this Agreement, and (iii) the accuracy of the representations of
the Company and the Guarantors set forth in Sections 6(ll), (oo) and
(pp) of this Agreement.
(xix) such counsel has no reason to believe that, as
of the date of the Offering Memorandum or as of the Closing Date, the
Offering Memorandum, as amended or supplemented, if applicable (except
for the financial statements and other financial data included therein,
as to which such counsel need not express any belief) contains any
untrue statement of a material fact or omits 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.
The opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP described in Section
9(e) above shall be rendered to you at the request of the Company and
the Guarantors and shall so state therein. In giving such opinion with
respect to the matters covered by Section 9(c)(xix), ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇ LLP may state that their opinion and belief are based upon their
participation in the preparation of the Offering Memorandum and any
amendments or supplements thereto and review
-25-
and discussion of the contents thereof, but are without independent
check or verification except as specified.
(f) The Initial Purchasers shall have received on the
Closing Date an opinion, dated the Closing Date, of the general counsel
of the Company, to the effect that:
(i) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is or could be a party or to which any of their
respective property is or could be subject, which might result, singly
or in the aggregate, in a Material Adverse Effect;
(ii) neither the Company nor any of its subsidiaries
has violated any Environmental Law or any provisions of ERISA, any
provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a Material Adverse Effect;
(iii) each of the Company and its subsidiaries has
such Authorizations of, and has made all filings with and notices to,
all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct
its business, except where the failure to have any such Authorization or
to make any such filing or notice would not, singly or in the aggregate,
have a Material Adverse Effect. Each such Authorization is valid and in
full force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules
and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including
the receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome to
the Company or any of its subsidiaries; except where such failure to be
valid and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a Material Adverse Effect;
(iv) other than the Registration Rights Agreement and
the Company's obligation to cause its parent, Mail-Well, Inc., to
register 70,564 shares of Mail-Well, Inc. common stock issued pursuant
to the Stock Purchase Agreement dated August 27, 1998, there are no
contracts, agreements or understandings between the Company or any
Guarantor and any person granting such person the right to require the
Company or such Guarantor to file a registration statement under the Act
with respect to any securities of the Company or such Guarantor or to
require the Company or such Guarantor to include such securities with
the Notes and the Guarantees registered pursuant to any Registration
Statement.
(g) The Initial Purchasers shall have received on the
Closing Date an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
counsel for the Initial Purchasers, in form and substance reasonably
satisfactory to the Initial Purchasers.
-26-
(h) The Initial Purchasers shall have received, at the
time this Agreement is executed and at the Closing Date, letters dated
the date hereof or the Closing Date, as the case may be, in form and
substance satisfactory to the Initial Purchasers from Deloitte & Touche
LLP independent public accountants, containing the information and
statements of the type ordinarily included in accountants' "comfort
letters" to the Initial Purchasers with respect to the financial
statements and certain financial information contained in the Offering
Memorandum.
(i) The Series A Notes shall have been approved by the
NASD for trading and duly listed in PORTAL.
(j) The Initial Purchasers shall have received a
counterpart, conformed as executed, of the Indenture which shall have
been entered into by the Company, the Guarantors and the Trustee.
(k) The Company and the Guarantors shall have executed the
Registration Rights Agreement and the Initial Purchasers shall have
received an original copy thereof, duly executed by the Company and the
Guarantors.
(l) Neither the Company nor the Guarantors shall have
failed at or prior to the Closing Date to perform or comply with any of
the agreements herein contained and required to be performed or complied
with by the Company or the Guarantors, as the case may be, at or prior
to the Closing Date.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This
------------------------------------------
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by the Initial Purchasers by written notice to the Company
if any of the following has occurred: (i) any outbreak or escalation of
hostilities or other national or international calamity or crisis or
change in economic conditions or in the financial markets of the United
States or elsewhere that, in the Initial Purchasers' judgment, is
material and adverse and, in the Initial Purchasers' judgment, makes it
impracticable to market the Series A Notes on the terms and in the
manner contemplated in the Offering Memorandum, (ii) the suspension or
material limitation of trading in securities or other instruments on the
New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board
of Trade or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq
National Market, (iii) the suspension of trading of any securities of
the Company or any Guarantor on any exchange or in the over-the-counter
market, (iv) the enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of any court or
other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, (v) the declaration of a
banking moratorium by
-27-
either federal or New York State authorities or (vi) the taking of any
action by any federal, state or local government or agency in respect of
its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
11. MISCELLANEOUS. Notices given pursuant to any provision of
-------------
this Agreement shall be addressed as follows: (i) if to the Company or
any Guarantor, to Mail-Well I Corporation, c/o Mail-Well, Inc.,
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telephone (303) 790-
8023, Attn: Chief Financial Officer, and (ii) if to the Initial
Purchasers, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department,
or in any case to such other address as the person to be notified may
have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, the
Guarantors and the Initial Purchasers set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and
will survive delivery of and payment for the Series A Notes, regardless
of (i) any investigation, or statement as to the results thereof, made
by or on behalf of any Initial Purchasers, the officers or directors of
the Initial Purchasers, any person controlling any Initial Purchaser,
the Company, any Guarantor, the officers or directors of the Company or
any Guarantor, or any person controlling the Company or any Guarantor,
(ii) acceptance of the Series A Notes and payment for them hereunder and
(iii) termination of this Agreement.
If for any reason the Series A Notes are not delivered by or on
behalf of the Company as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Company and
each Guarantor, jointly and severally, agree to reimburse the Initial
Purchasers for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all
expenses which it has agreed to pay pursuant to Section 5(i) hereof.
The Company and each Guarantor also agree, jointly and severally, to
reimburse the several Initial Purchasers and their officers, directors
and each person, if any, who controls such Initial Purchasers within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act for
any and all fees and expenses (including without limitation the fees and
expenses of counsel) incurred by them in connection with enforcing their
rights under this Agreement (including without limitation its rights
under Section 8).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Guarantors, the Initial Purchasers, the Initial Purchasers' directors
and officers, any controlling persons referred to herein, the directors
of the Company and the Guarantors and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a
purchaser of any of the
-28-
Series A Notes from any of the several Initial Purchasers merely because
of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
-29-
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Guarantors and the several Initial
Purchasers.
Very truly yours,
MAIL-WELL I CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President, General
Counsel and Secretary
EACH ENTITY LISTED ON SCHEDULE A
HERETO
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President, General
Counsel and Secretary
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
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SCHEDULE A
GUARANTORS
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
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PAGE>
SCHEDULE B
INITIAL PURCHASER PRINCIPAL AMOUNT OF NOTES
----------------- -------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation $165,000,000
Prudential Securities Incorporated $ 90,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $ 30,000,000
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Inc. $ 15,000,000
------------
Total $300,000,000
============
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SCHEDULE C
SUBSIDIARIES
Name of Subsidiary State of Incorporation
------------------ ----------------------
▇▇▇▇▇▇▇▇ 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
Classic Envelope Plus, Ltd. British Columbia
Innova Envelope Inc. Ontario
▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇, Limited Ontario
Mail-Well Label Company Canada
Nova Scotia Company Nova Scotia
PNG, Inc. Ontario
Supremex, Inc. Canada
Mail-Well Europe Holdings LLC Colorado
Mail-Well France Holdings France
Mail-Well Envelope S.A. France
Mail-Well Mexico Holdings Inc. Colorado
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EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
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