EXHIBIT 4.3
Valassis Communications, Inc.
$239,794,000
Senior Convertible Notes due 2033
REGISTRATION RIGHTS AGREEMENT
-----------------------------
May 22, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇,
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
Valassis Communications, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇,
Incorporated (the "Initial Purchaser"), upon the terms set forth in a purchase
agreement, dated May 16, 2003 (the "Purchase Agreement"), $239,794,000 in
aggregate principal amount at maturity of its Senior Convertible Notes due 2033
(the "Notes"). The Notes will be convertible into shares of common stock of the
Company, par value $0.01 per share (the "Shares") in accordance with the
Indenture, dated as of May 22, 2003 (the "Indenture"), between the Company and
BNY Midwest Trust Company, as trustee (the "Trustee") pursuant to which the
Notes will be issued. As an inducement to the Initial Purchaser to purchase the
Notes, the Company agrees with the Initial Purchaser, (i) for the benefit of the
Initial Purchaser and (ii) for the benefit of the holders of the Notes and the
Shares (collectively, the "Securities") from time to time until such time as
such Securities have been sold pursuant to the Shelf Registration Statement (as
defined below) (each of the foregoing a "Holder" and, together, the "Holders"),
as follows:
1. Shelf Registration. The Company shall take the following actions:
(a) The Company shall use its reasonable efforts to file with the
Securities and Exchange Commission (the "Commission") not later than the
date (the "Filing Deadline") 90 days after the earliest date of original
issuance of any of the Notes (the "Issue Date") and thereafter use its
reasonable efforts to cause to be declared effective as promptly as
practicable, but in no event later than the date (the "Effectiveness
Deadline")180 days after the Issue Date, a registration statement (the
"Shelf Registration Statement") on such form under the Securities Act of
1933, as amended (the "Securities Act") as the Company deems appropriate
relating to the offer and sale of the Shares issuable upon conversion of
the Notes and the Transfer Restricted Securities (as defined herein) by the
Holders thereof from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement and Rule 415
under the Securities Act (hereinafter, the "Shelf Registration"); provided,
however, that no Holder shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement applicable to
such Holder.
(b) Subject to Section 2(b) hereof, the Company shall use its
reasonable efforts to keep the Shelf Registration Statement continuously
effective in order to permit the prospectuses included therein to be
lawfully delivered by the Holders of the relevant Securities, until the
earliest of (i) the expiration of the holding period applicable to the
Notes and the Shares by persons who are not affiliates of the Company under
Rule 144(k) under the Securities Act or any successor provision, (ii) the
date on which all the Notes and the Shares of those holders that complete
and deliver in a timely manner the Notice and Questionnaire (as defined
below) are registered under the Shelf Registration Statement and disposed
of in accordance with the Shelf Registration Statement, or (iii) the date
that there are no longer any Notes or Shares outstanding (in any case, such
period being called the "Shelf Registration Period").
(c) Notwithstanding any other provision of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of such Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) The Company shall mail a notice of registration statement and
selling securityholder notice and questionnaire, in substantially the form
attached as Annex A to the Offering Memorandum (a "Notice and
Questionnaire"), to each Holder to obtain certain information regarding
such Holder for use in connection with the prospectus included in any Shelf
Registration Statement. To be named as a selling securityholder in the
Shelf Registration Statement and the related prospectus at the time of such
Shelf Registration Statement's effectiveness, Holders must complete and
deliver to the Company the completed Notice and Questionnaire at least five
(5) business days prior to the intended distribution of Transfer Restricted
Securities pursuant to the Shelf Registration Statement. Thereafter, any
Holder wishing to sell Transfer Restricted Securities pursuant to either
Shelf Registration Statement and related prospectus shall deliver a Notice
and Questionnaire to the Company. From and after the date the Shelf
Registration Statement is declared effective, the Company shall, as
promptly as practicable but in any event within ten (10) business days of
receipt of a Notice and Questionnaire together with any other information
as may have been reasonably requested by the Company, (i) if required by
applicable law, file with the Commission a post-effective amendment to the
applicable Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related prospectus or a supplement
or amendment to any document incorporated therein by reference, or file any
other document required (which may be incorporated by reference) under the
Securities Act so that the Holder delivering such Notice and Questionnaire
is named as a selling securityholder in such Shelf Registration Statement
and the related prospectus in such a manner as to permit such Holder to
deliver such prospectus to purchasers of the Transfer Restricted Securities
in accordance with applicable law and, if the Company shall file a
post-effective amendment to such applicable Shelf Registration Statement,
use reasonable efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as is practicable,
but in any event by the date (the "Amendment Effectiveness Deadline Date")
that is thirty (30) days after the date such post-effective amendment is
required by this clause to be filed and (ii) notify such Holder as promptly
as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 1(c)(i); provided,
however, notwithstanding the foregoing, if such Notice and Questionnaire is
delivered during a Deferral Period (as defined in Section 2(c)), the
Company shall so inform the Holder delivering such Notice and Questionnaire
and shall take the actions set forth in clauses (i) and (ii) above upon
expiration of the Deferral Period in accordance with Section 2(b). Without
limiting the generality of the preceding sentence, the Company may satisfy
its requirements to act "as promptly as practicable" if it includes in an
annual periodic report on Form 10-K or Form 10-Q the report and such
information is thereby incorporated by reference in the Shelf Registration
Statement. Each Holder that delivers, at any
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time, a duly completed Notice and Questionnaire together with such other
information as may be reasonably requested of such Holder pursuant to this
Agreement, and that is named as a selling securityholder in an effective
Shelf Registration Statement or post-effective amendment thereto, is
hereafter referred to as a "Notice Holder" with respect to such Shelf
Registration Statement. Notwithstanding anything contained herein to the
contrary, the Company shall be under no obligation to name any Holder as a
selling securityholder in any Shelf Registration Statement or related
prospectus unless and until such Holder shall have timely delivered a
completed Notice and Questionnaire, together with such other information
regarding such Holder and the intended distribution as may be reasonably
requested by the Company. Each Holder of Transfer Restricted Securities
agrees that if such Holder wishes to sell Transfer Restricted Securities
pursuant to either Shelf Registration Statement and related prospectus, it
will do so only in accordance with this Section 1(d) and Section 2(c)
hereof.
2. Registration Procedures. In connection with any Shelf Registration
required by Section 1 hereof, the following provisions shall apply:
(a) The Company shall furnish to the Initial Purchaser, prior to the
filing thereof with the Commission, a copy of the Shelf Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and in the event that the Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering) is participating in the Shelf Registration Statement, the Company
shall use its reasonable efforts to reflect in each such document, when so
filed with the Commission, such comments as the Initial Purchaser
reasonably may propose within a reasonable period of time.
(b) Subject to Section 2(c), upon the occurrence of any change or
event as a result of which the Shelf Registration Statement or prospectus
contained therein shall (i) contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances
under which they were made not misleading or (ii) otherwise not be
effective or usable for resale of Transfer Restricted Securities during the
period required by this Agreement (a "Material Event"), the Company shall
file as promptly as practicable an appropriate amendment to the Shelf
Registration Statement or a supplement to the related prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into the Shelf
Registration Statement and prospectus curing such defect and, in the case
of an amendment to the Shelf Registration Statement, use its reasonable
efforts to cause such amendment to be declared effective as soon as
practicable.
(c) Upon (A) the issuance by the Commission of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(c) of the Securities Act or (B) the occurrence of a Material
Event or a prospective Material Event and the general counsel of the
Company reasonably determines that the disclosure of material non-public
information pursuant to Section 2(b) would be prejudicial or contrary to
the interests of the Company, the Company shall give notice to the Notice
Holders that the availability of such Shelf Registration Statement is
suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice,
each Notice Holder agrees not to sell any Transfer Restricted Securities
pursuant to such Shelf Registration Statement until such Notice Holder is
advised in writing by the Company that the prospectus may be used, and has
received copies of the amended or supplemented prospectus or of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such prospectus. The Company will use
reasonable efforts to ensure that the use of the prospectus may be resumed
(x) in the case of clause (A) above, as promptly as is practicable or (y)
in the case of clause (B) above, as soon as, in the sole judgment of the
general counsel of the Company, public disclosure of such Material Event
would not be prejudicial to or contrary to the interests of the Company or,
if necessary to avoid unreasonable burden or expense, as soon as
practicable thereafter. The Company shall be entitled to exercise its right
under this Section 2(c) to suspend the availability of
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the Shelf Registration Statement or any prospectus, without incurring or
accruing any obligation to pay Liquidated Damage pursuant to Section 6, for
one or more periods not to exceed 45 days (or 75 days if a previously
undisclosed proposed or pending material business transaction would be
required to be disclosed in the Shelf Registration Statement and the
prospectus contained therein) and such disclosure would, in the good faith
judgment of the General Counsel of the Company, impede the Company's
ability to consummate such transaction) in any three-month period and not
to exceed, in the aggregate, 120 days in any twelve-month period (such
period, during which the availability of the Shelf Registration Statement
and any prospectus is suspended being a "Deferral Period").
(d) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of the Shelf Registration Statement.
(e) The Company shall furnish to each Notice Holder included within
the coverage of the Shelf Registration, upon request and without charge, at
least one copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules.
(f) The Company shall, during the Shelf Registration Period, deliver
to each Notice Holder included within the coverage of any Shelf
Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the applicable Shelf Registration
Statement and any amendment or supplement thereto as such person may
reasonably request. Subject to the provisions of this Agreement, the
Company consents to the use of the prospectus or any amendment or
supplement thereto by each Notice Holder of the Transfer Restricted
Securities in connection with the offering and sale of the Transfer
Restricted Securities covered by the prospectus, or any amendment or
supplement thereto, included in the applicable Shelf Registration
Statement.
(g) Prior to any public offering of the Transfer Restricted Securities
pursuant to the Shelf Registration Statement, the Company shall register or
qualify or cooperate with the Notice Holders and their respective counsel
in connection with the registration or qualification of the Transfer
Restricted Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Notice Holder reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would subject it to general service
of process or to taxation in any jurisdiction where it is not then so
subject.
(h) In connection with any sale of Transfer Restricted Securities that
will result in such securities no longer being Transfer Restricted
Securities, the Company shall cooperate with the Notice Holders to
facilitate the timely preparation and delivery of certificates representing
the Transfer Restricted Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Notice Holders may
request in writing within a reasonable period of time prior to sales of the
Transfer Restricted Securities pursuant to such Shelf Registration
Statement.
(i) If the Company delivers a Deferral Notice, then the Initial
Purchaser and the Notice Holders shall suspend use of the applicable
prospectus, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 1(b) above shall be extended by the
number of days from and including the date of the giving of such notice to
and including the date when the Initial Purchaser and the Holders shall
have received an amended or supplemented prospectus pursuant to Section
2(e).
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(j) Not later than the effective date of the Shelf Registration
Statement, the Company will provide a CUSIP number for the Notes and the
Shares registered under such Shelf Registration Statement, and provide the
trustee with certificates for such Notes, in a form eligible for deposit
with The Depository Trust Company.
(k) The Company will use its reasonable best efforts to comply with
all rules and regulations of the Commission to the extent and so long as
they are applicable to any Shelf Registration and will make generally
available to its securityholders with respect to any Shelf Registration
Statement, as soon as practicable, a consolidated earnings statement
meeting the requirements of Section 11(a) of the Securities Act and Rule
158 (which need not be audited) covering a twelve-month period beginning
after the effective date of the Shelf Registration Statement; provided,
that if the information required by this Section 2(k) is filed with the
Commission and is publicly available, it shall be deemed to have satisfied
its obligation to furnish such information to its securityholders pursuant
to this Section 2(k).
(l) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and, in
connection therewith, shall cooperate with the Trustee and Holders to
effect such changes, if any, as shall be necessary for such qualification.
In the event that such qualification would require the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(m) The Company may require each Holder that proposes to sell Transfer
Restricted Securities pursuant to any Shelf Registration Statement to
furnish to the Company a properly completed Notice and Questionnaire
together with such information regarding the Holder and the distribution of
the Transfer Restricted Securities as the Company may from time to time
reasonably require for inclusion in such Shelf Registration Statement, and
the Company may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(n) The Company shall enter into such customary agreements (including,
if requested, an underwriting agreement in customary form if requested
pursuant to Section 8 hereof) and take all such other action, if any, as
any Holder shall reasonably request in order to facilitate the disposition
of the Securities pursuant to any Shelf Registration.
(o) The Company shall (i) make reasonably available for inspection by
the Holders, any underwriter participating in any disposition pursuant to
any Shelf Registration Statement and any attorney, accountant or other
agent retained by such Holders or any such underwriter (the "Other
Parties") all relevant financial and other records, pertinent corporate
documents and properties of the Company and (ii) cause the Company's
officers, directors, employees, accountants and auditors to supply all
relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any Shelf
Registration Statement, in each case, as shall be reasonably necessary to
enable such persons, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided, however, that the
foregoing inspection and information gathering shall be coordinated on
behalf of the Other Parties by one counsel designated by and on behalf of
such Other Parties as described in Section 3(b) hereof; provided, further,
the Company shall have no obligation to provide any information to any
person that has not entered into an agreement, in form reasonably
satisfactory to the Company, providing that such person shall keep such
information confidential and use such information only for the due
diligence purposes in connection with the Shelf Registration.
(p) The Company, if requested by any Notice Holder covered by the
Shelf Registration Statement, shall cause (i) its counsel to deliver an
opinion and updates thereof relating to the Securities in customary form
addressed to such Notice Holders and the managing underwriters, if any,
thereof and dated, in the case of the initial opinion, the effective date
of such Shelf
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Registration Statement (it being agreed that the matters to be covered by
such opinion shall include, without limitation, the due incorporation and
good standing of the Company and its subsidiaries; the qualification of the
Company and its subsidiaries to transact business as foreign corporations;
the due authorization, execution and delivery of the relevant agreement of
the type referred to in Section 2(n) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the Securities; the absence, to such counsel's
knowledge, of material legal or governmental proceedings involving the
Company and its subsidiaries; the absence of governmental approvals
required to be obtained in connection with such Shelf Registration
Statement, the offering and sale of the Securities, or any agreement of the
type referred to in Section 2(n) hereof; the compliance as to form of such
Shelf Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities Act
and the Trust Indenture Act, respectively; and, at the time the foregoing
opinion is delivered, such counsel shall additionally state that in the
course of the preparation of such Shelf Registration Statement, it has
participated in conferences with officers and other representatives of the
Company, including its other counsel and independent public accountants,
and your representatives, during the course of which the contents of the
Shelf Registration Statement and related matters were discussed and,
although it has not independently checked the accuracy or completeness of,
or otherwise verified, and is not passing upon, and assumes no
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Shelf Registration Statement, except to the
extent specified therein, and although it has relied as to facts necessary
to the determination of materiality, to a certain extent, upon the judgment
of officers and representatives of the Company, as a result of such
consideration and participation, nothing has come to its attention which
causes it to believe that, as of its date and the Closing Date, the Shelf
Registration Statement contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion
with respect to the financial statements, financial and statistical data
and supporting schedules included or incorporated by reference in the Shelf
Registration Statement); (ii) their officers to execute and deliver all
customary documents and certificates and updates thereof reasonably
requested by any underwriters of the Securities and (iii) their independent
public accountants and the independent public accountants with respect to
any other entity for which financial information is provided in such Shelf
Registration Statement to provide to the Notice Holders and any underwriter
therefor a comfort letter in customary form and covering matters of the
type customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by the applicable Statement of
Auditing Standards.
(q) The Company will provide promptly to the Initial Purchaser and
each Holder, upon request, each document filed by the Company with the
Commission pursuant to the requirements of Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
3. Registration Expenses. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the Company,
regardless of whether any Shelf Registration Statement is ever filed or becomes
effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and
state "blue sky" or securities laws;
(iii) all expenses of printing (including printing of prospectuses),
messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
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(v) all application and filing fees in connection with listing the
Shares on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of their officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with any Shelf Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchaser and the Notice
Holders of Transfer Restricted Securities who are selling or reselling
Securities pursuant to the "Plan of Distribution" contained in such Shelf
Registration Statement for the reasonable fees and disbursements (not exceeding
$25,000 in the aggregate) of not more than one counsel, who shall be ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP unless another firm shall be chosen by the Notice Holders of a
majority in principal amount of the Applicable Principal Amount (as defined
below) of the Transfer Restricted Securities for whose benefit such Shelf
Registration Statement is being prepared.
4. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Notice Holder and each person, if any, who controls such Notice Holder
within the meaning of the Securities Act or the Exchange Act (each Notice Holder
and such controlling persons are referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases and sales
of the Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to such Shelf Registration, or arise
out of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in any Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to such Shelf Registration in reliance upon and
in conformity with written information pertaining to such Notice Holder and
furnished to the Company by or on behalf of such Notice Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating
to any Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Notice Holder from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Notice Holder under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Notice Holder results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Notice Holder; provided further,
however, that this indemnity agreement will be in addition to any liability
which the Company may otherwise have to such Indemnified Party. The Company
shall also indemnify underwriters, their officers and directors and each person
who controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Notice Holders of the Securities if requested by such
Notice Holders.
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(b) Each Notice Holder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to such Shelf Registration Statement,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in conformity
with written information pertaining to such Notice Holder and furnished to the
Company by or on behalf of such Notice Holder specifically for inclusion
therein; and, subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company for any legal or other
expenses reasonably incurred by the Company or any such controlling person in
connection with investigating or defending any loss, claim, damage, liability or
action in respect thereof. This indemnity agreement will be in addition to any
liability which such Notice Holder may otherwise have to the Company or any of
its controlling persons.
(c) Promptly after receipt by an Indemnified Party under this Section 4 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such Indemnified Party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 4, notify the
indemnifying party in writing of the commencement thereof; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 4 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an Indemnified Party otherwise than under this Section 4.
In case any such action is brought against any Indemnified Party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such Indemnified
Party (who shall not, except with the consent of the Indemnified Party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such Indemnified Party of its election so to assume the defense thereof the
indemnifying party will not be liable to such Indemnified Party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such Indemnified Party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the Indemnified Party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened action in respect
of which any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on any claims that are the subject matter of such action, and does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Party.
(d) If the indemnification provided for in this Section 4 is unavailable or
insufficient to hold harmless an Indemnified Party under subsections (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such Indemnified Party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
Indemnified Party on the other from the exchange of the Securities, pursuant to
the Shelf Registrations, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and the Indemnified Party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to 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, on the one hand or such Notice Holder or
such other
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Indemnified Party, as the case may be, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Holders agree that it would not
be just and equitable if contributions pursuant to this Section 4(d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid by an Indemnified Party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding any other
provision of this Section 4(d), the Notice Holders shall not be required to
contribute any amount in excess of the amount by which the net proceeds received
by such Notice Holders from the sale of the Securities pursuant to any Shelf
Registration Statement exceeds the amount of damages which such Notice Holders
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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this subsection (d), each person,
if any, who controls such Indemnified Party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
Indemnified Party and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale of
the Securities pursuant to the Shelf Registration Statements and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any Indemnified Party.
5. Holders Obligations. Each Holder agrees, by acquisition of the Transfer
Restricted Securities, that no Holder of Transfer Restricted Securities shall be
entitled to sell any of such Transfer Restricted Securities pursuant to any
Shelf Registration Statement or to receive a prospectus relating thereto, unless
such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 1(d) hereof and the information set forth in the
next sentence. Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such Transfer
Restricted Securities as the Company may from time to time reasonably request.
Any sale of any Transfer Restricted Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the prospectus delivered
by such Holder in connection with such disposition, that such prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or its plan of distribution and that such
prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary to
make the statements in such prospectus, in the light of the circumstances under
which they were made, not misleading. Each Holder shall notify the Company no
later than five (5) business days prior to any proposed sale by such Holder
pursuant to a Shelf Registration Statement of such proposed sale which notice
shall be effective for five (5) business days. Each Holder agrees that within
ten (10) business days of any sale, disposition or other transfer of Securities,
whether pursuant to a Shelf Registration Statement or exemption from
registration under the Securities Act, such Holder shall provide written notice
to the Company specifying the amount of Securities sold, disposed of or
transferred and the name and address of the transferee of such Securities. Each
Holder acknowledges that such Holder, when it sells Securities pursuant to a
Shelf Registration Statement, will be required to be named as a selling
securityholder in the related prospectus, will be required to deliver a
prospectus to the purchaser, and will be subject to certain of the civil
liability provisions under the Securities Act in connection with such Holder's
sale.
6. Liquidated Damages Under Certain Circumstances. (a) "Liquidated
Damages" shall accrue on the Notes as provided below if and only if, any of the
following events shall occur (each such event in clauses (i) through (iii) below
being herein called a "Registration Default"):
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(i) a Shelf Registration Statement with respect to both the Notes and the
Shares required by this Agreement is not filed with the Commission on
or prior to the Filing Deadline;
(ii) a Shelf Registration Statement with respect to both the Notes and the
Shares required by this Agreement is not declared effective by the
Commission on or prior to the Effectiveness Deadline; or
(iii) a Shelf Registration Statement required by this Agreement has been
declared effective by the Commission but at any time after the
Effectiveness Deadline (A) such Shelf Registration Statement ceases
to be effective (other than pursuant to Section 2(c) hereof) or (B)
such Shelf Registration Statement or the related prospectus fails to
be usable in connection with resales of Transfer Restricted
Securities (other than pursuant to Section 2(c) hereof) and (1) the
Company fails to cure the Registration Default within five (5)
business days by a post-effective amendment or a report filed
pursuant to the Exchange Act or (2) if applicable, the Company does
not terminate the Deferral Period by the 45/th/ or 75/th/ day, as
applicable.
Each of the foregoing events will constitute a Registration Default whatever the
reason for any such event and whether it is voluntary or involuntary or is
beyond the control of the Company or pursuant to operation of law or as a result
of any action or inaction by the Commission.
Liquidated Damages shall accrue daily on the Applicable Principal Amount
(as defined below) from and including the day following the date on which a
Registration Default shall occur until, but excluding, the earlier of the day on
which all Registration Defaults have been cured and the date under Section 1(c)
that the registration statement is no longer required, (i) in respect of any
Notes, at a rate of 0.25% per annum of the Applicable Principal Amount to and
including the 90/th/ day following such Registration Default and at a rate of
0.50% of the Applicable Principal Amount from and after the 91/st/ day following
such Registration Default, and (ii) in respect of any Shares, at a rate per year
equal to 0. 25% per annum to and including the 90/th/ day following such
Registration Default and at a rate of 0.50% thereafter of the then Applicable
Conversion Price (as defined below) (collectively, the "Liquidated Damages
Rate"); provided, however, that the Company shall in no event be required to pay
Liquidated Damages in respect of more than one Registration Default at any one
time. In the event a Holder has converted some or all of its Notes into Shares,
the Holder shall be entitled to receive Liquidated Damages as provided above
calculated on the principal amount at maturity of the Notes so converted, except
to the extent such Shares have been registered. The "Applicable Principal
Amount" shall equal the sum of the initial issue price of such Notes plus
accrued original issue discount with respect to such Notes through the date of
determination, or, if a Holder has converted some or all of its Notes into
Shares, such sum calculated as if such Notes were then outstanding, except to
the extent such Shares no longer constitute Transfer Restricted Securities. The
"Applicable Conversion Price" shall equal, as of any date of determination, the
Applicable Principal Amount per $1,000 principal amount at maturity of Notes as
of such date of determination divided by the conversion rate in effect as of
such date of determination or, if no Notes are then outstanding, the conversion
rate that would be in effect were Notes then outstanding. In no event will
Liquidated Damages accrue at a rate per year in excess of 0.50%.
(b) Any amounts of Liquidated Damages due pursuant to Section 6(a) will be
payable in cash on May 22 and November 22 of each year to the Holders of record
of the Notes or Shares on the immediately preceding May 7 or November 7. The
amount of Liquidated Damages will be determined by multiplying the applicable
Liquidated Damages Rate by the initial issue price of the Notes plus accrued
original issue discount with respect to such Notes through the date of
determination and further multiplied by a fraction, the numerator of which is
the number of days such Liquidated Damages Rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months) and the denominator of which is 360. A Holder will not be entitled to
Liquidated Damages as provided in Section 6(a) hereof unless such Holder has
timely delivered to the Company a duly completed Notice and Questionnaire,
together with such other information reasonably requested of such Holder in
accordance with this Agreement.
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(c) "Transfer Restricted Securities" means each Security until the earliest
to occur of (i) the date on which such Security has been effectively registered
under the Securities Act and disposed of in accordance with a Shelf Registration
Statement and (ii) the date on which such Security is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act.
7. Rules 144 and 144A. The Company agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and for any period in
which the Company (i) is not subject to Section 13 or 14 of the Exchange Act, to
make available, upon request of any Holder, to such Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144(d)(4) under the
Securities Act in order to permit resale of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13(g) or 15(d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by the Shelf Registrations are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected by
the Notice Holders of a majority in aggregate principal amount at maturity of
such Transfer Restricted Securities to be included in such offering (provided
that the Holders of Shares issued upon conversion of Notes shall not be deemed
Holders of Shares, but shall be deemed to be Holders of the aggregate principal
amount at maturity of Notes from which such Shares were converted) and shall be
reasonably acceptable to the Company.
No Holder may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such Holder's Transfer Restricted Securities on
the basis reasonably provided in any underwriting arrangements approved by the
Holders entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires (including the Notice and Questionnaire), powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(b) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount at maturity of the
Transfer Restricted Securities (provided that the Holders of Shares issued upon
conversion of Notes shall not be deemed Holders of Shares, but shall be deemed
to be Holders of the aggregate principal amount at maturity of Notes from which
such Shares were converted) affected by such amendment, modification,
supplement, waiver or consents.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, first-class mail
(registered or certified, return receipt requested), facsimile transmission, or
air courier which guarantees overnight delivery:
(1) if to a Holder, that is not a Notice Holder, at the address of
such Holder as set forth on the records of the Registrar under the Indenture,
with a copy to such Registrar.
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(2) if to a Notice Holder, at the most current address given by such
Holder to the Company in a Notice and Questionnaire or any amendment thereto.
(3) if to the Initial Purchaser;
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇,
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Syndicate Department
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇.▇▇▇
(4) if to the Company;
Valassis Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(d) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(e) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Transfer Restricted Securities in violation of the terms hereof or of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted
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Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of the Agreement and, if applicable, the
Purchase Agreement, and such person shall be entitled to receive the benefits
hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
(i) Severability. If any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(j) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of principal amount at maturity of Securities
is required hereunder, Securities held by the Company or its affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed to
be affiliates solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Initial Purchaser and the Company in accordance with its terms.
Very truly yours,
VALASSIS COMMUNICATIONS, INC.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary, Executive Vice President
and General Counsel
14
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, Pierce, Fenner, & ▇▇▇▇▇,
Incorporated
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
15