EXHIBIT 4.4
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WARRANT AGREEMENT
Between
JOSTENS, INC.
and
THE BANK OF NEW YORK,
as
Warrant Agent
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Dated as of May 10, 2000
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TABLE OF CONTENTS
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Page
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SECTION 1. Appointment of Warrant Agent.....................................4
SECTION 2. Warrant Certificates.............................................4
SECTION 3. Execution of Warrant Certificates................................5
SECTION 4. Registration and Countersignature................................5
SECTION 5. Transfer and Exchange of Warrants................................5
SECTION 6. Registration of Transfers and Exchanges..........................6
(a) Transfer and Exchange of Warrants...........................6
(b) Restrictions on Transfer of a Definitive Warrant for
a Beneficial Interest in a Global Warrant.................7
(c) Transfer or Exchange of Global Warrants.....................8
(d) Transfer or Exchange of a Beneficial Interest in a
Global Warrant for a Definitive Warrant...................8
(e) Restrictions on Transfer or Exchange of Global Warrants....10
(f) Authentication of Definitive Warrants in Absence of
Depositary...............................................10
(g) Cancellation or Adjustment of a Global Warrant.............10
(h) Legends....................................................10
(i) Obligations with Respect to Transfers and Exchanges
of Definitive and Global Warrants........................11
(j) Payment of Taxes...........................................11
SECTION 7. Terms of Warrants; Exercise of Warrants.........................11
SECTION 8. Payment of Taxes................................................14
SECTION 9. Mutilated or Missing Warrant Certificates.......................15
SECTION 10. Reservation of Warrant Shares...................................15
SECTION 11. Obtaining Stock Exchange Listings...............................16
SECTION 12. Adjustment of Number of Warrant Shares Issuable.................16
(a) Adjustment for Change in Capital Stock.....................16
i
(b) Adjustment for Certain Sales of Common Stock Below
Current Market Value.....................................17
(c) Adjustment upon Certain Distributions......................19
(d) Notice of Adjustment.......................................21
(e) Reorganization of Company; Fundamental Transaction.........21
(f) Other Events...............................................22
(g) Company Determination Final................................22
(h) Warrant Agent's Adjustment Disclaimer......................22
(i) Specificity of Adjustment..................................22
(j) Voluntary Adjustment.......................................23
(k) Multiple Adjustments.......................................23
(l) When De Minimis Adjustment May Be Deferred.................23
(m) Tag-Along Transfers........................................23
(n) Amendments of the Articles of Incorporation................24
SECTION 13. Fractional Interests............................................24
SECTION 14. Notice of Certain Distributions; Certain Rights.................24
SECTION 15. Notices to the Company and Warrant Agent........................24
SECTION 16. Supplements and Amendments......................................25
SECTION 17. Concerning the Warrant Agent....................................26
SECTION 18. Change of Warrant Agent.........................................29
SECTION 19. Identity of Transfer Agent......................................29
SECTION 20. SEC Reports and Other Information...............................29
SECTION 21. Successors......................................................30
SECTION 22 Termination.....................................................30
SECTION 23. Governing Law...................................................30
SECTION 24. Benefits of This Agreement......................................30
SECTION 25. Counterparts....................................................30
Exhibit A Class E Common Stock Purchase Warrant of Jostens, Inc.
Exhibit B(1) Private Placement Legend
Exhibit B(2) Unit Legend
ii
Exhibit B(3) Global Warrant Legend
Exhibit C Certificate to be Delivered upon Exchange or Registration of
Transfer of Warrants
Exhibit D Form of Transferee Letter of Representation in Connection
with Transfers to Institutional Accredited Investors
Exhibit E Form of Transferee Letter of Representation in Connection with
Transfers Pursuant to Regulation S
iii
WARRANT AGREEMENT (the "Agreement"), dated as of May 10, 2000, between
JOSTENS, INC., a Minnesota corporation (together with any successors and
assigns, the "Company"), and THE BANK OF NEW YORK, as warrant agent (with any
successor warrant agent, the "Warrant Agent").
A. Pursuant to a purchase agreement (the "Purchase Agreement") dated
May 5, 2000 between the Company and Deutsche Bank Securities Inc., UBS Warburg
LLC and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (the "Initial Purchasers"), the Company has agreed
to sell to the Initial Purchasers 225,000 units (the "Units"), each consisting
of (i) $1,000 principal amount of 12 3/4% Senior Subordinated Notes due 2010
(the "Notes") of the Company and (ii) one warrant (collectively, the
"Warrants"), each Warrant initially entitling the holder thereof to purchase
1.889155 shares of Class E Common Stock (as defined herein) of the Company.
B. The Notes and the Warrants comprising the Units shall not be
separately transferable until the Separability Date (as defined herein).
C. The holders of the Warrants are entitled to the benefits of a
Registration Rights Agreement dated as of May 10, 2000 by and between the
Company and the Initial Purchasers (the "Warrant Registration Rights
Agreement").
D. The Company desires the Warrant Agent as warrant agent to assist the
Company in connection with the issuance, exchange, cancellation, replacement and
exercise of the Warrants, and in this Agreement wishes to set forth, among other
things, the terms and conditions on which the Warrants may be issued, exchanged,
canceled, replaced and exercised.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein, the Company and the Warrant Agent hereby agree as follows:
Defined terms used in this Agreement shall, unless the context
otherwise requires, have the meanings specified below. Certain additional terms
are set forth elsewhere in this Agreement. Any reference to any section of
applicable law shall be deemed to include successor provisions thereto.
"Affiliate" has the meaning given to it in the Indenture.
"Business Day" means any day that is not a Saturday, Sunday or a day on
which banking institutions in New York are authorized or required by law to be
closed.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated
and whether voting or non-voting) of such Person's capital stock, whether
outstanding on the Issue Date or issued
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after the Issue Date, and any and all rights (other than any evidence of
indebtedness), warrants or options exchangeable for or convertible into such
capital stock.
"class" means, when referring to any Capital Stock, any class or series
of such Capital Stock.
"Class A Common Stock" means the Class A Common Stock of the Company,
par value $0.33-1/3 per share.
"Class E Common Stock" means the Class E Common Stock of the Company,
par value $0.01 per share. Each issued and outstanding share of Class E Common
Stock is convertible at the option of the holder thereof into one share of Class
A Common Stock at any time commencing 30 days after the original date of
issuance of such share of Class E Common Stock.
"Common Stock" means all shares of Capital Stock of the Company,
whether or not denominated as "common stock," which are entitled to share
ratably in the ordinary dividends of the Company or share ratably in the
proceeds of any liquidation of the Company after the payment of all preferential
claims, and shall include, without limitation, the Class A Common Stock, Class B
Common Stock, Class C Common Stock, Class D Common Stock or Class E Common Stock
of the Company authorized on the Issue Date.
"Convertible Security" shall mean any securities convertible or
exercisable or exchangeable into Common Stock of the Company of the same class
as Warrant Shares, whether outstanding on the Issue Date or thereafter issued.
"DB Capital Warrants" means the warrants issued on the Issue Date to DB
Capital Investors, L.P. to purchase shares of Class E Common Stock.
"Distribution Compliance Period" means the period from the Issue Date
through the first anniversary of the Issue Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer Registration Statement" means the registration
statement to be filed by the Company under the Securities Act with respect to
the exchange of the Notes for Exchange Notes (as defined in the Note
Registration Rights Agreement).
"Guarantor" means American Yearbook Company, Inc.
"Indenture" means the indenture dated as of May 10, 2000, among the
Company, the Guarantor and The Bank of New York, as trustee, relating to the
Notes.
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"Independent Financial Expert" means a nationally recognized
independent investment banking firm, appraisal or accounting firm.
"Initial Public Equity Offering" means a primary public offering
(whether or not underwritten) of Common Stock pursuant to an effective
registration statement under the Securities Act, but excluding any offering
pursuant to Form S-8 (or any successor form) under the Securities Act or any
other publicly registered offering pursuant to the Securities Act pertaining to
an issuance of shares of Common Stock or securities exercisable therefor under
any benefit plan, employee compensation plan, or employee or director stock
purchase plan.
"Issue Date" means May 10, 2000, the date of the Indenture.
"Note Registration Rights Agreement" means the Registration Rights
Agreement dated as of May 10, 2000 among the Company, the Guarantor and the
Initial Purchasers relating to the registration of the Notes.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Separability Date" means the earliest of: (1) the date which is 210
days after the Issue Date; (2) the date on which an Event of Default has
occurred or the time immediately prior to the occurrence of a Change of Control
(each as such term is defined in the Indenture); (3) the date on which a
registration statement filed pursuant to the Note Registration Rights Agreement
has become effective; (4) the date immediately preceding an Initial Public
Equity Offering; (5) the date on which a "Transfer Notice" is given by a holder
of Class D Common Stock in respect of a proposed "Tag-Along Transfer," as
contemplated by article IV of the amended and restated articles of incorporation
of the Company; and (6) such earlier date that Deutsche Bank Securities Inc., in
its sole discretion, notifies the Company is the Separability Date.
"Time of Determination" means (i) in the case of any distribution of
securities or other property to existing shareholders to which Section 12(b) or
12(c) applies, the time and date of the determination of shareholders entitled
to receive such securities or property or (ii) in the case of any other issuance
and sale to which Section 12(b) or 12(c) applies, the time and date of such
issuance or sale.
"Warrant Shares" means the shares of Class E Common Stock or other
securities issuable upon exercise of Warrants from time to time.
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SECTION 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth in this Agreement, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. Warrant Certificates. (a) The certificates representing the
Warrants ("Warrant Certificates") will initially be issued either in global form
(the "Global Warrants") or in registered form as definitive Warrant Certificates
(the "Definitive Warrants"), in either case substantially in the form of Exhibit
A attached hereto. Any Global Warrants to be delivered pursuant to this
Agreement shall bear the legend set forth in Exhibit B(3) attached hereto. The
Global Warrants shall represent such of the outstanding Warrants as shall be
specified therein, and each Global Warrant shall provide that it shall represent
the aggregate amount of outstanding Warrants from time to time endorsed thereon
and that the aggregate amount of outstanding Warrants represented thereby may
from time to time be reduced or increased, as appropriate. Any endorsement of a
Global Warrant to reflect the amount of any increase or decrease in the amount
of outstanding Warrants represented thereby shall be made by the Warrant Agent
and the Depositary in accordance with instructions given by the holder thereof.
The Depository Trust Company ("DTC") shall act as the "Depositary" with respect
to the Global Warrants until a successor shall be appointed by the Company and
the Warrant Agent. Upon written request, a holder of Warrants may receive from
the Warrant Agent or the Depositary Definitive Warrants as set forth in Section
6 hereof.
(b) Warrants sold in offshore transactions in reliance on Regulation S
will initially be represented by one or more temporary legended Global Warrants
in definitive, fully registered form (each a "Legended Regulation S Global
Warrant") and shall bear a legend substantially to the effect set forth in
Exhibit B(1). The Company may execute, and the Warrant Agent shall countersign
and deliver, Legended Regulation S Global Warrant Certificates, which are
printed, lithographed, typewritten or otherwise produced, substantially of the
tenor of the definitive Warrant Certificates in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Warrant Certificates may determine, as
evidenced by their execution of such Warrant Certificates. The Legended
Regulation S Global Warrants will be exchangeable for one or more unlegended
permanent Global Warrants on or after the first anniversary of the Issue Date.
Subject to the provisions of Section 5 hereof, such exchange shall be without
charge to the holder. Upon surrender for cancellation of any one or more
Legended Regulation S Global Warrant Certificates, the Company shall execute,
and the Warrant Agent shall countersign and deliver in exchange therefor, one or
more unlegended permanent global Warrant Certificates representing in the
aggregate a like number of Warrants. Until so exchanged, the holder of a
Legended Regulation S Global Warrant Certificate shall in all respects be
entitled to the same benefits under this Agreement as a holder of an unlegended
permanent global Warrant Certificate.
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SECTION 3. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board,
President, Chief Executive Officer, a Vice President, Treasurer, an Assistant
Treasurer or Chief Financial Officer and by its Secretary or an Assistant
Secretary under its corporate seal. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of any such present or
future officer and may be imprinted or otherwise reproduced on the Warrant
Certificates.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent, or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such person had not ceased
to be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such officer.
Warrant Certificates shall be dated the date of countersignature by the
Warrant Agent.
SECTION 4. Registration and Countersignature. The Warrants shall be
numbered and shall be registered on the books of the Company maintained at the
principal office of the Warrant Agent in the Borough of Manhattan, City of New
York (the "Warrant Register") as they are issued.
Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. The
Warrant Agent shall, upon written instructions of the Chairman of the Board, the
President, Chief Executive Officer, a Vice President, the Treasurer, an
Assistant Treasurer, Chief Financial Officer, Secretary or an Assistant
Secretary of the Company, initially countersign and deliver Warrants entitling
the holders thereof to purchase not more than the number of Warrant Shares
referred to above in the first recital hereof and shall thereafter countersign
and deliver Warrants as otherwise provided in this Agreement.
The Company and the Warrant Agent may deem and treat the registered
holders (the "Holders" or "Warrantholders") of the Warrant Certificates as the
absolute owners thereof (notwithstanding any notation of ownership or other
writing thereon made by anyone) for all purposes, and neither the Company nor
the Warrant Agent shall be affected by any notice to the contrary.
SECTION 5. Transfer and Exchange of Warrants. The Warrant Agent shall
from time to time, subject to the limitations of Section 6, register the
transfer of any outstanding Warrants upon the records to be maintained by it for
that purpose, upon surrender
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thereof duly endorsed or accompanied (if so required by it) by a written
instrument or instruments of transfer in form satisfactory to the Warrant Agent,
duly executed by the registered Holder or Holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney. Subject
to the terms of this Agreement, each Warrant Certificate may be exchanged for
another certificate or certificates entitling the Holder thereof to purchase a
like aggregate number of Warrant Shares as the certificate or certificates
surrendered then entitle each Holder to purchase. Any Holder desiring to
exchange a Warrant Certificate or Certificates shall make such request in
writing delivered to the Warrant Agent, and shall surrender, duly endorsed or
accompanied (if so required by the Warrant Agent) by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, the Warrant
Certificate or Certificates to be so exchanged.
Upon registration of transfer, the Company shall execute and the
Warrant Agent shall countersign and deliver by certified mail a new Warrant
Certificate or Certificates to the persons entitled thereto. The Warrant
Certificates may be exchanged at the option of the Holder thereof, when
surrendered at the office or agency of the Company maintained for such purpose,
which initially will be the corporate trust office of the Warrant Agent in New
York, New York for another Warrant Certificate, or other Warrant Certificates of
different denominations, of like tenor and representing in the aggregate the
right to purchase a like number of Warrant Shares.
No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that is
imposed in connection with any such exchange or registration of transfer.
SECTION 6. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Warrants. When Warrants are presented to
the Warrant Agent with a request:
(i) to register the transfer of the Warrants; or
(ii) to exchange such Definitive Warrants for an equal
number of Warrants of other authorized denominations,
the Warrant Agent shall register the transfer or make the exchange as requested
if (and may refuse to register any transfer or exchange unless) the requirements
under this Agreement as set forth in this Section 6 for such transactions are
met; provided, however, that the Warrants presented or surrendered for
registration of transfer or exchange:
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(x) shall be duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Company and the
Warrant Agent, duly executed by the holder thereof or by his
or her attorney, duly authorized in writing; and
(y) in the case of Warrants the offer and sale of which have not
been registered under the Securities Act, such Warrants shall
be accompanied, in the sole discretion of the Company, by the
following additional information and documents, as applicable,
it being understood, however, that the Warrant Agent need not
determine which clause (A) through (D) below is applicable:
(A) if such Warrant is being delivered to the Warrant
Agent by a holder for registration in the name of
such holder, without transfer, a certification from
such holder to that effect (in substantially the form
of Exhibit C); or
(B) if such Warrant is being transferred to a qualified
institutional buyer (as defined in Rule 144A under
the Securities Act ("Rule 144A")) (a "QIB") in
accordance with Rule 144A or pursuant to an exemption
from registration in accordance with Rule 144 or
Regulation S under the Securities Act, a
certification to that effect (in substantially the
form of Exhibit C); or
(C) if such Warrant is being transferred to an
institutional accredited investor within the meaning
of subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of
Rule 501 under the Securities Act (an "Institutional
Accredited Investor"), delivery of a Certificate of
Transfer (in substantially the form of Exhibit D) and
an opinion of counsel and/or other information
reasonably acceptable to the Company to the effect
that such transfer is in compliance with the
Securities Act; or
(D) if such Warrant is being transferred in reliance on
another exemption from the registration requirements
of the Securities Act, a certification to that effect
from the transferee or transferor (in substantially
the form of Exhibit C), and an opinion of counsel
from the transferee or transferor reasonably
acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act. If
such transfer is made specifically pursuant to
Regulation S, delivery by the transferor must also
deliver a Certificate for Regulation S Transfers in
substantially the form of Exhibit E.
(b) Restrictions on Transfer of a Definitive Warrant for a Beneficial
Interest in a Global Warrant. A Definitive Warrant may not be transferred by a
holder for a beneficial interest in a Global Warrant except upon satisfaction of
the requirements set forth below.
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Upon receipt by the Warrant Agent of a Definitive Warrant, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Warrant Agent, together with:
(i) certification from such holder (in substantially the form of
Exhibit C) that such Definitive Warrant is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act; and
(ii) written instructions directing the Warrant Agent to make, or
to direct the Depositary to make, an endorsement on the Global
Warrant to reflect an increase in the aggregate amount of the
Warrants represented by the Global Warrant,
then the Warrant Agent shall cancel such Definitive Warrant and cause, or direct
the Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Warrant Agent, the number of
Warrant Shares represented by the Global Warrant to be increased accordingly. If
no Global Warrant is then outstanding, the Company shall issue and the Warrant
Agent shall upon written instructions from the Company authenticate a new Global
Warrant in the appropriate amount.
(c) Transfer or Exchange of Global Warrants. The transfer or exchange
of Global Warrants or beneficial interests therein shall be effected through the
Depositary, in accordance with this Section 6, the Private Placement Legend set
forth in Exhibit B(1), this Agreement (including the restrictions on transfer
set forth herein) and the procedures of the Depositary therefor.
(d) Transfer or Exchange of a Beneficial Interest in a Global Warrant
for a Definitive Warrant.
(i) Any Person having a beneficial interest in a Global Warrant
may transfer or exchange such beneficial interest for a
Definitive Warrant upon receipt by the Warrant Agent of
written instructions or such other form of instructions as is
customary for the Depositary from the Depositary or its
nominee on behalf of any Person having a beneficial interest
in a Global Warrant, including a written order containing
registration instructions and the following additional
information and documents:
(A) if such beneficial interest is being transferred to
the Person designated by the Depositary as being the
beneficial owner, a certification from such Person to
that effect (in substantially the form of Exhibit C);
or
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(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities
Act, a certification from the transferor to that
effect (in substantially the form of Exhibit C); or
(C) if such beneficial interest is being transferred to
an Institutional Accredited Investor, delivery of a
Certificate of Transfer to that effect (in
substantially the form of Exhibit D) and an opinion
of counsel and/or other information reasonably
acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act; or
(D) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect from the transferee or transferor to
that effect (in substantially in the form of Exhibit
C) and an opinion of counsel and/or other information
reasonably acceptable to the Company to the effect
that such transfer is in compliance with the
Securities Act (if such transfer is made specifically
pursuant to Regulation S, the transferor must also
deliver a Certificate for Regulation S Transfers in
substantially the form of Exhibit E),
then the Warrant Agent will cause, in accordance with the
standing instructions and procedures existing between the
Depositary and the Warrant Agent, the aggregate amount of the
Global Warrant to be reduced and, following such reduction,
the Company will execute and, upon receipt of an
countersignature order in the form of an officers' certificate
(a certificate signed by two officers of the Company, one of
whom must be the principal executive officer, principal
financial officer or principal accounting officer) (an
"Officers' Certificate"), the Warrant Agent will countersign
and deliver to the transferee a Definitive Warrant.
(ii) Definitive Warrants issued in exchange for a beneficial
interest in a Global Warrant pursuant to this Section 6 shall
be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall
instruct the Warrant Agent in writing. The Warrant Agent shall
deliver such Definitive Warrants to the Persons in whose names
such Warrants are so registered and adjust the Global Warrant
pursuant to paragraph (h) of this Section 6.
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(e) Restrictions on Transfer or Exchange of Global Warrants.
Notwithstanding any other provisions of this Agreement (other than the
provisions set forth in subsection (f) of this Section 6), a Global Warrant may
not be transferred or exchanged as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Countersignature of Definitive Warrants in Absence of Depositary.
If at any time:
(i) the Depositary for the Global Warrants notifies the
Company that the Depositary is unwilling or unable to
continue as Depositary for the Global Warrants and a
successor Depositary for the Global Warrant is not
appointed by the Company within 90 days after
delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the
Warrant Agent in writing that it elects to cause the
issuance of Definitive Warrants for all Global
Warrants under this Agreement,
then the Company will execute, and the Warrant Agent will, upon receipt of an
Officers' Certificate requesting the countersignature and delivery of Definitive
Warrants, countersign and deliver Definitive Warrants, in an aggregate number
equal to the aggregate number of Warrants represented by the Global Warrant, in
exchange for such Global Warrant.
(g) Cancellation or Adjustment of a Global Warrant. At such time as all
beneficial interests in a Global Warrant have either been exchanged for
Definitive Warrants, redeemed, repurchased or canceled, such Global Warrant
shall be returned to the Company or, upon written order to the Warrant Agent in
the form of an Officers' Certificate from the Company, retained and canceled by
the Warrant Agent. At any time prior to such cancellation, if any beneficial
interest in a Global Warrant is exchanged for Definitive Warrants, redeemed,
repurchased or canceled, the number of Warrants represented by such Global
Warrant shall be reduced and an endorsement shall be made on such Global Warrant
by the Warrant Agent to reflect such reduction.
(h) Legends.
(i) Private Placement Legend. Except as permitted by the
following sentence, each Warrant Certificate
evidencing the Warrants (and all Warrants issued in
exchange therefor or substitution thereof and, if the
Company deems appropriate, Warrant Shares issuable
upon exercise of the Warrants) shall bear a legend
substantially to the effect set forth in Exhibit
B(1). Upon any sale or transfer of a Warrant or
Warrant Share
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pursuant to Rule 144 under the Securities Act in
accordance with this Section 6 or under an effective
registration statement under the Securities Act, the
Warrant Agent shall permit the holder of a Warrant to
exchange such Warrant for a Definitive Warrant and
the Company shall permit the holder of a Warrant
Share to exchange such Warrant Share for a share of
Common Stock, in each case, that does not bear the
legend set forth in Exhibit B(1).
(ii) Unit Legend. Each Warrant issued prior to the
Separability Date shall bear a legend substantially
to the effect set forth in Exhibit B(2).
(i) Obligations with Respect to Transfers and Exchanges of Definitive
and Global Warrants.
(i) To permit registrations of transfers and exchanges,
the Company shall execute, at the Warrant Agent's
request, and the Warrant Agent shall authenticate
Definitive and Global Warrants.
(ii) All Definitive and Global Warrants issued upon any
registration, transfer or exchange of Definitive and
Global Warrants shall be the valid obligations of the
Company, entitled to the same benefits under this
Agreement as the Definitive and Global Warrants
surrendered upon the registration of transfer or
exchange.
(iii) Prior to due presentment for registration of transfer
of any Warrant, the Warrant Agent and the Company may
deem and treat the Person in whose name any Warrant
is registered as the absolute owner of such Warrant,
and neither the Warrant Agent nor the Company shall
be affected by notice to the contrary.
(j) Payment of Taxes. The Company will pay all documentary stamp taxes
attributable to the initial issuance of the Warrant Shares upon the exercise of
Warrants; provided, however, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificates for the Warrant Shares in
a name other than that of the registered holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates or any certificates for
the Warrant Shares unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 7. Terms of Warrants; Exercise of Warrants. Subject to the
terms of this Agreement, each Warrantholder shall have the right, which may be
exercised
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commencing on or after the Separability Date and until 5:00 p.m., New York City
time, on May 1, 2010 (the "Expiration Date"), to receive from the Company upon
the exercise of each Warrant the number of fully paid and nonassessable Warrant
Shares which the holder may at the time be entitled to receive on exercise of
such Warrants and payment of the Exercise Price (as defined) for such Warrant
Shares. Each Warrant not exercised prior to the Expiration Date shall become
void and all rights thereunder and all rights in respect thereof under this
Agreement shall cease as of such time. No adjustments as to dividends will be
made upon exercise of the Warrants.
The price per share at which Warrant Shares shall be purchasable upon
exercise of Warrants (the "Exercise Price") regardless of the Exercise Rate (as
defined) then in effect, shall be equal to $0.01. A Warrant may be exercised
upon surrender at the office or agency of the Company maintained for such
purpose, which initially will be at the principal office of the Company, of the
Warrant Certificate or Certificates evidencing the Warrants to be exercised with
the form of election to purchase on the reverse thereof (the "Election to
Exercise") duly filled in and signed, which signature shall be guaranteed by a
participant in a recognized Signature Guarantee Medallion Program.
The "Exercise Date" for a Warrant shall be the date when all of the
items referred to in the immediately preceding sentence are received by the
Warrant Agent at or prior to 11:00 a.m., New York City time, on a Business Day
and the exercise of the Warrants will be effective as of such Exercise Date. If
any items referred to in such sentence are received after 11:00 a.m., New York
City time, on a Business Day, the exercise of the Warrants to which such item
relates will be effective on the next succeeding Business Day. Notwithstanding
the foregoing, in the case of an exercise of Warrants on the Expiration Date, if
all of the items referred to in such sentence are received by the Warrant Agent
at or prior to 5:00 p.m., New York City time, on the Expiration Date, the
exercise of the Warrants to which such items relate will be effective on the
Expiration Date.
The Exercise Price may be paid only by the surrender of one or more
Warrant Certificates (and without the payment of the Exercise Price in cash) in
exchange for a number of Warrant Shares equal to the product of (a) the number
of Warrant Shares for which such Warrant is exercisable as of the Exercise Date
(if the Exercise Price were being paid in cash), and (b) the Cashless Exercise
Ratio. The "Cashless Exercise Ratio" shall equal a fraction, the numerator of
which is the excess of the Current Market Value per Warrant Share on the
Exercise Date over the Exercise Price per Warrant Share as of the Exercise Date
and the denominator of which is the Current Market Value per Warrant Share on
the Exercise Date. Upon surrender of a Warrant Certificate representing more
than one Warrant in connection with the holder's option to exercise, the number
of Warrant Shares deliverable upon exercise shall be equal to the product of the
number of Warrant Shares issuable in respect of those Warrants that the holder
specifies are to be exercised pursuant to a Cashless Exercise multiplied by the
Cashless Exercise Ratio. All provisions of this Agreement shall be
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applicable with respect to a surrender of a Warrant Certificate for less than
the full number of Warrants represented thereby.
"Current Market Value" per share of any class of Common Stock of the
Company at any date shall mean:
(1) if no class of Common Stock is then registered under the
Exchange Act and traded on a national securities exchange or on the
Nasdaq National Market System,
(a) the value of such class of Common Stock,
determined in good faith by the board of directors of the
Company and certified in a board resolution, taking into
account the most recently completed arm's-length transaction
between the Company and a Person other than an Affiliate of
the Company and the closing of which occurs on such date or
shall have occurred within the six-month period preceding such
date, or
(b) if no such transaction shall have occurred on
such date or within such six-month period, the fair market
value of the security as determined by a nationally recognized
Independent Financial Expert; provided that, in the case of
the calculation of Current Market Value for determining the
cash value of fractional shares, any such determination within
six months that is, in the good faith judgment of the board of
directors, a reasonable determination of value may be
utilized, or
(2) (a) if any class of Common Stock is then registered under
the Exchange Act and traded on a national securities exchange
or on the Nasdaq National Market System, the average of the
daily closing sales prices of such class of Common Stock for
the 20 consecutive trading days immediately preceding such
date, or
(b) if such class of Common Stock has been registered
under the Exchange Act and traded on a national securities
exchange or on the Nasdaq National Market System for less than
20 consecutive trading days before such date, then the average
of the daily closing sales prices for all of the trading days
before such date for which closing sales prices are available,
in the case of each of (2)(a) and (2)(b), as certified to the
Warrant Agent by the Chief Executive Officer, the President,
any Executive Vice President or the Chief Financial Officer of
the Company. The closing sales price for each such trading day
shall be the closing sales price, regular way, on such day or,
if no sale takes place on such day, the average of the closing
bid and asked prices on such day. The Current Market Value of
the Class E Common Stock shall be deemed to be equal to the
Current Market Value of the Class A Common Stock.
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Subject to the provisions of Section 6 hereof, upon such surrender of
Warrants, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder and in such name or names as
the Warrantholder may designate a certificate or certificates for the number of
Warrant Shares issuable upon the exercise of such Warrants. Such certificate or
certificates shall be deemed to have been issued and any Person so designated to
be named therein shall be deemed to have become a holder of record of such
Warrant Shares as of the date of the surrender of such Warrants. At the election
of the Company with the consent of the holder of record of the relevant Warrant
Shares, Warrant Shares may initially be issued in global form (the "Global
Shares"). Such Global Shares shall represent such of the outstanding Warrant
Shares as shall be specified therein and each Global Share shall provide that it
represents the aggregate amount of outstanding Warrant Shares from time to time
endorsed thereon and that the aggregate amount of outstanding Warrant Shares
represented thereby may from time to time be reduced or increased, as
appropriate. Any endorsement of a Global Share to reflect any increase or
decrease in the amount of outstanding Warrant Shares represented thereby shall
be made by the registrar for the Warrant Shares and the Depositary (referred to
below) in accordance with instructions given by the holder thereof. DTC shall
(if possible) act as the Depositary with respect to the Global Shares until a
successor shall be appointed by the Company and the registrar for the Warrant
Shares.
The Warrants shall be exercisable only in whole. In the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of the
Warrants evidenced thereby at any time prior to the date of expiration of the
Warrants, a new certificate evidencing the remaining Warrant or Warrants will be
issued, and the Warrant Agent is irrevocably authorized to countersign and to
deliver the required new Warrant Certificate or Certificates pursuant to this
Agreement, and the Company, whenever required by the Warrant Agent, will
promptly supply the Warrant Agent with Warrant Certificates duly executed on
behalf of the Company for such purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall be
canceled by the Warrant Agent. Such canceled Warrant Certificates shall then be
disposed of by the Warrant Agent in a manner consistent with the Warrant Agent's
customary procedure for such disposal and in a manner reasonably satisfactory to
the Company. The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised.
The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the Holders during
normal business hours at its office. The Company shall supply the Warrant Agent
from time to time with such numbers of copies of this Agreement as the Warrant
Agent may request.
SECTION 8. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrant Shares upon the exercise
of Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes
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which may be payable in respect of any transfer involved in the issue of any
Warrant Certificates or any certificates for Warrant Shares in a name other than
that of the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant, and the Company shall not be required to issue or deliver
such Warrant Certificates unless or until the Person or Persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
SECTION 9. Mutilated or Missing Warrant Certificates. In case any of
the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may at its discretion issue and the Warrant Agent may countersign, in
exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate, or in lieu of and substitution for the Warrant Certificate lost,
stolen or destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and indemnity also satisfactory to them.
SECTION 10. Reservation of Warrant Shares. The Company will at all
times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Class E Common Stock or its authorized
and issued Class E Common Stock held in its treasury, for the purpose of
enabling it to satisfy its obligation to issue Warrant Shares upon exercise of
Warrants, the maximum number of shares of Class E Common Stock which may then be
deliverable upon the exercise of all outstanding Warrants. The Company will at
all times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Class A Common Stock or its authorized
and issued Class A Common Stock held in its treasury, for the purpose of
enabling it to satisfy its obligation to issue shares of Class A Common Stock
upon conversion of all shares of Class E Common Stock issuable upon exercise of
all Warrants, the maximum number of shares of Class A Common Stock issuable upon
conversion of all shares of Class E Common Stock issuable upon exercise of all
Warrants.
The Company or, if appointed, the transfer agent for the Class A Common
Stock and the Class E Common Stock (the "Transfer Agent") and every subsequent
transfer agent for any shares of the Company's Capital Stock issuable upon the
exercise of any of the rights of purchase aforesaid will be irrevocably
authorized and directed at all times to reserve such number of authorized shares
as shall be required for such purpose. The Company will keep a copy of this
Agreement on file with the Transfer Agent and with every subsequent transfer
agent for any shares of the Company's Capital Stock issuable upon the exercise
of the rights of purchase represented by the Warrants. The Warrant Agent is
hereby irrevocably authorized to requisition from time to time from such
Transfer Agent the stock certificates required to honor outstanding Warrants
upon exercise thereof in accordance with the terms of this Agreement. The
Company will supply such Transfer Agent with duly executed certificates for such
purposes and will provide or otherwise make available any cash which
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may be payable as provided in Section 13. The Company will furnish such Transfer
Agent a copy of all notices of adjustments and certificates related thereto
transmitted to each holder pursuant to Section 14 hereof.
The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants made in accordance with the terms of this Agreement will,
upon issuance, be validly authorized and issued, fully paid, nonassessable, free
of preemptive rights and free from all taxes, liens, charges and security
interests with respect to the issuance thereof. The Company covenants that all
shares of Class A Common Stock issuable upon conversion of all shares of Class E
Common Stock issuable upon exercise of all Warrants in accordance with this
Agreement will, upon issuance, be validly authorized and issued, fully paid,
nonassessable, free of preemptive rights and free from all taxes, liens, charges
and security interests with respect to the issuance thereof. The Company will
take no action to increase the par value of the Class E Common Stock to an
amount in excess of the Exercise Price, and the Company will not enter into any
agreements inconsistent with the rights of Holders hereunder. The Company will
use its reasonable best efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Agreement.
SECTION 11. Obtaining Stock Exchange Listings. The Company will from
time to time take all action which may be necessary so that the Warrant Shares,
immediately upon their issuance upon the exercise of Warrants, will be listed on
the principal securities exchanges and markets within the United States of
America (including the Nasdaq National Market System), if any, on which the
Class A Common Stock or the Class E Common Stock is then listed. In the event
that, at any time during the period in which the Warrants are exercisable, the
Class E Common Stock is not listed on any principal securities exchanges or
markets within the United States of America, the Company will use its best
efforts to permit the Warrant Shares to be designated Portal securities in
accordance with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. relating to trading in The Portal Market.
SECTION 12. Adjustment of Number of Warrant Shares Issuable. The number
of shares of Class E Common Stock issuable upon the exercise of each Warrant
(the "Exercise Rate") is subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 12. The Exercise Rate shall
initially be 1.889155.
(a) Adjustment for Change in Capital Stock. If, after the Issue Date,
the Company:
(i) pays a dividend or makes a distribution on shares of any
class of its Common Stock payable in shares of its Common Stock or
other Capital Stock of the Company (except to the extent any such
dividend results in the grant, issuance, sale or
-17-
making of Distribution Rights or Distributions to holders of Warrants
pursuant to Section 12(c));
(ii) subdivides or splits any of its outstanding shares of any
class of Common Stock into a greater number of shares;
(iii) combines any of its outstanding shares of any class of
Common Stock into a smaller number of shares; or
(iv) issues by reclassification of any class of its Common
Stock any shares of any of its Capital Stock;
then the Exercise Rate in effect immediately prior to such action for each
Warrant then outstanding shall be adjusted by multiplying the Exercise Rate in
effect immediately prior to such action by a fraction (A) the numerator of which
shall be the number of shares of all classes of Common Stock outstanding
immediately after such action and (B) the denominator of which shall be the
number of shares of all classes of Common Stock outstanding immediately prior to
such action or the record date applicable to such action, if any (regardless of
whether the Warrants then outstanding are then exercisable). The adjustment
shall become effective immediately after the record date in the case of a
dividend or distribution and immediately after the effective date in the case of
a subdivision, combination or reclassification. In the event that such dividend
or distribution is not so paid or made or such subdivision, combination or
reclassification is not effected, the Exercise Rate shall again be adjusted to
be the Exercise Rate which would then be in effect if such record date or
effective date had not been so fixed.
If after an adjustment a holder of a Warrant upon exercise of such
Warrant may receive shares of two or more classes of Capital Stock of the
Company, the Exercise Rate shall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to any such class of Capital Stock as
is contemplated by this Section 12 with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Section 12.
(b) Adjustment for Certain Sales of Common Stock Below Current Market
Value. If, after the Issue Date, the Company (i) grants or sells to any
Affiliate of the Company (other than a subsidiary of the Company) or (ii)
grants, sells or offers to grant or sell to all holders of any class of Common
Stock, any shares of any class of Common Stock or any securities convertible
into or exchangeable or exercisable for any class of Common Stock (other than
(1) pursuant to the exercise of the Warrants, (2) pursuant to any security
convertible into, or exchangeable or exercisable for, shares of Common Stock
outstanding as of the Issue Date, (3) upon the conversion, exchange or exercise
of any convertible, exchangeable or exercisable security as to which upon the
issuance thereof an adjustment pursuant to this Section 12 has been made or (4)
upon the conversion, exchange or exercise of
-18-
convertible, exchangeable or exercisable securities of the Company outstanding
on the Issue Date (to the extent in accordance with the terms of such securities
as in effect on such date), including any DB Capital Warrants) at a price below
the then Current Market Value, the Exercise Rate for each Warrant then
outstanding shall be adjusted in accordance with the formula:
E/1/ = E x (O+N)
-----------------
(O + (N x P/M))
where:
E/1/ = the adjusted Exercise Rate for each Warrant then outstanding;
E = the then current Exercise Rate for each Warrant then
outstanding;
O = the aggregate number of shares of Common Stock of all classes
outstanding immediately prior to the sale of such Common Stock
or issuance of securities convertible, exchangeable or
exercisable for Common Stock;
N = the number of shares of Common Stock of any class so sold or
the maximum stated number of shares of Common Stock of any
class issuable upon the conversion, exchange or exercise of
any such convertible, exchangeable or exercisable securities,
as the case may be;
P = the proceeds per share of Common Stock of the relevant class
received by the Company, which (i) in the case of shares of
Common Stock of any class is the amount received by the
Company in consideration for the sale and issuance of such
shares; and (ii) in the case of securities convertible into or
exchangeable or exercisable for shares of Common Stock of any
class is the amount received by the Company in consideration
for the sale and issuance of such convertible or exchangeable
or exercisable securities, plus the minimum aggregate amount
of additional consideration, other than the surrender of such
convertible or exchangeable securities, payable to the Company
upon exercise, conversion or exchange thereof; and
M = the Current Market Value as of the Time of Determination or at
the time of sale, as the case may be, of a share of Common
Stock of the relevant class.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights, warrants
or options to which this paragraph (b) applies or upon consummation of the sale
of Common Stock, as the case
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may be. To the extent that shares of Common Stock are not delivered after the
expiration of such rights, warrants or options, the Exercise Rate for each
Warrant then outstanding shall be readjusted to the Exercise Rate which would
otherwise be in effect had the adjustment made upon the issuance of such rights,
warrants or options been made on the basis of delivery of only the number of
shares of Common Stock actually delivered. In the event that such rights or
warrants are not so issued, the Exercise Rate for each Warrant then outstanding
shall again be adjusted to be the Exercise Rate which would then be in effect if
such date fixed for determination of shareholders entitled to receive such
rights, warrants or options had not been so fixed.
No adjustment shall be made under this paragraph (b) if the application
of the formula stated above in this paragraph (a) would result in a value of E1
that is lower than the value of E.
No adjustment shall be made under this paragraph (b) for any adjustment
which is the subject of paragraphs (a) and (d) of this Section 12.
Notwithstanding the foregoing, no adjustment in the Exercise Rate will
be required in respect of: (a) the grant of any stock option or other stock
incentive award pursuant to any stock option or stock incentive plan or
arrangement as disclosed in the Offering Memorandum dated May 5, 2000 relating
to the Units, (b) the grant of any stock option or stock incentive award at an
exercise price at least equal to the lesser of $25.25 per share (other than in
the case of Class D Common Stock) or the then Current Market Value, (c) the
grant of any other stock option or stock incentive award to any officer,
director or employee of the Company or any of its Subsidiaries pursuant to any
compensatory plan or arrangement that has been approved by the Company's Board
of Directors, or (d) the exercise of any such option or award.
(c) Adjustment upon Certain Distributions.
(i) If at any time after the Issue Date the Company grants,
issues or sells options, any Convertible Security, or rights to
purchase Capital Stock or other securities (other than Common Stock)
pro rata to the record holders of any class or series of Common Stock
("Distribution Rights") or, without duplication, makes any distribution
(other than a distribution pursuant to a plan of liquidation) (a
"Distribution") on shares of any class of Common Stock (whether in
cash, property, evidences of indebtedness, or otherwise), then the
Exercise Rate shall be adjusted in accordance with the formula:
E/1/ = E x (M/(M-F))
where:
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E/1/ = the adjusted Exercise Rate;
E = the current Exercise Rate for each Warrant;
M = the Current Market Value per Warrant Share at the Time of
Determination;
F = the fair market value at the Time of Determination of such
portion of the options, Convertible Securities, Capital Stock
or other securities, cash, property or assets distributable
pursuant to such Distribution Rights or Distribution per share
of outstanding Common Stock.
The adjustment shall become effective immediately after the Time of
Determination with respect to the shareholders entitled to receive the options,
Convertible Securities, warrants, cash, property, evidences of indebtedness or
other securities or assets to which this paragraph (c)(i) applies. No adjustment
shall be made under this paragraph (c) if the application of the formula stated
above in this paragraph (c)(i) would result in a value of E1 that is lower than
the value of E. This paragraph (c)(i) does not apply to any securities which
result in an adjustment pursuant to paragraphs (a) or (b) of this Section 12.
(ii) Notwithstanding the provisions of paragraph (c)(i) of this Section
12, an event which would otherwise give rise to an adjustment pursuant to
Section 12(c)(i) shall not give rise to such adjustment if the Company grants,
issues or sells Distribution Rights to the Holders of Warrants or includes the
holders of the Warrants in such Distribution, in each case on a pro rata basis,
assuming for the purpose of this Section 12(c)(ii) that (x) all outstanding
shares of Common Stock are of one class and (y) the Warrants had been exercised.
(iii) Notwithstanding anything to the contrary set forth in this
Section 12(c), if, at any time, the Company makes any distribution pursuant to
any plan of liquidation (a "Liquidating Distribution") on shares of Class A
Common Stock or Class E Common Stock (whether in cash, property, evidences of
indebtedness or otherwise), then, subject to applicable law, the Company shall
make to each Holder of Warrants the aggregate Liquidating Distribution which
such Holder would have acquired if such Holder had held the maximum number of
shares of Class E Common Stock acquirable upon the complete exercise of each
Holder's Warrants (regardless of whether the Warrants are then exercisable)
immediately before the Time of Determination of shareholders entitled to receive
Liquidating Distributions; provided that any Holder of Warrants may elect to
receive Liquidating Distributions on the basis that such Holder held the maximum
number of shares of Class A Common Stock into which the shares of Class E Common
Stock described in this sentence could be converted (without reference to any
required holding period) immediately before the Time of Determination of
shareholders entitled to receive Liquidating Distributions.
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(d) Notice of Adjustment. Whenever the Exercise Rate is adjusted, the
Company shall promptly mail to holders of Warrants then outstanding at the
addresses appearing on the Warrant Register a notice of the adjustment. The
Company shall file with the Warrant Agent and any other Registrar such notice
and a certificate from the Company's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct, absent
manifest error. Neither the Warrant Agent nor any such Registrar shall be under
any duty or responsibility with respect to any such certificate except to
exhibit the same during normal business hours to any holder desiring inspection
thereof.
(e) Reorganization of Company; Fundamental Transaction.
(i) If the Company, in a single transaction or through a
series of related transactions, consolidates with or merges with or
into any other person or sells, assigns, transfers, leases, conveys or
otherwise disposes of all or substantially all of its properties and
assets to another person or group of affiliated persons or is a party
to a merger or binding share exchange which reclassifies or changes its
outstanding Common Stock (a "Fundamental Transaction"), as a condition
to consummating any such transaction the person formed by or surviving
any such consolidation or merger if other than the Company or the
person to whom such transfer has been made (the "Surviving Person")
shall enter into a supplemental warrant agreement. The supplemental
warrant agreement shall provide (a) that the holder of a Warrant then
outstanding may exercise the Warrant for the kind and amount of
securities, cash or other assets which such holder would have received
immediately after the Fundamental Transaction if such holder had
exercised the Warrant and, if such Warrant is then exercisable into
shares of a class of Common Stock (such as Class E Common Stock as
constituted on the Issue Date) that is convertible into shares of
another class of Common Stock (such as Class A Common Stock as
constituted on the Issue Date) if such holder had converted such
Warrant Shares into such other class of Common Stock, in each case
immediately before the effective date of the transaction (whether or
not the Warrants were then exercisable), it being understood that the
Warrants will remain exercisable only in accordance with their terms so
that conditions to exercise will remain applicable, such as surrender
of the Warrant Certificate, assuming (to the extent applicable) that
such holder (i) was not a constituent person or an affiliate of a
constituent person to such transaction, (ii) made no election with
respect thereto, and (iii) was treated alike with the plurality of
non-electing holders, and (b) that the Surviving Person shall succeed
to and be substituted to every right and obligation of the Company in
respect of this Agreement and the Warrants. The supplemental warrant
agreement shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in
this Section 12. The Surviving Person shall mail to holders of Warrants
at the addresses appearing on the Warrant Register a notice briefly
describing the supplemental warrant agreement. If the issuer of
securities deliverable upon exercise of Warrants is an affiliate of the
Surviving Person, that issuer shall join in the supplemental warrant
agreement.
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(ii) Notwithstanding the foregoing, if the Company enters into
a Fundamental Transaction with another Person (other than a subsidiary
of the Company) and consideration is payable to holders of shares of
Capital Stock (or other securities or property) issuable or deliverable
upon exercise of the Warrants that are exercisable in exchange for such
shares in connection with such Fundamental Transaction which
consideration consists solely of cash (assuming (to the extent
applicable) that each such holder (i) was not a constituent person or
an affiliate of a constituent person to such transaction, (ii) made no
election with respect thereto, and (iii) was treated alike with the
plurality of non-electing holders), then the holders of Warrants shall
be entitled to receive distributions on the date of such event on an
equal basis with holders of such shares (or other securities issuable
upon exercise of the Warrants) as if the Warrants had been exercised
immediately prior to such event, less the aggregate Exercise Price
therefor. Upon receipt of such payment, if any, the rights of a holder
of such Warrant shall terminate and cease and such holder's Warrants
shall expire.
(iii) If this paragraph (e) applies, it shall supersede the
application of paragraph (a) of this Section 12.
(f) Other Events. If any event occurs as to which the provisions of
this Section 12 are not strictly applicable or, if strictly applicable, would
not, in the good faith judgment of the Board of Directors of the Company, fairly
and adequately protect the rights of the Warrantholders in accordance with the
essential intent and principles of such provisions, then such Board of Directors
shall make such adjustments in the application of such provisions, in accordance
with such essential intent and principles, as shall be reasonably necessary, in
the good faith opinion of such Board of Directors, to protect such rights as
aforesaid, but in no event shall any such adjustment have the effect of
decreasing the Exercise Rate or decreasing the number of Warrant Shares issuable
upon exercise of the Warrants.
(g) Company Determination Final. Any determination that the Company or
the board of directors of the Company must make pursuant to this Section 12
shall be conclusive, absent manifest error.
(h) Warrant Agent's Adjustment Disclaimer. The Warrant Agent shall have
no duty to determine when an adjustment under this Section 12 should be made,
how it should be made or what it should be. The Warrant Agent shall have no duty
to determine whether a supplemental warrant agreement under paragraph (e) need
be entered into or whether any provisions of any supplemental warrant agreement
are correct. The Warrant Agent shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon exercise of Warrants. The Warrant Agent shall not be responsible for the
Company's failure to comply with this Section 12.
(i) Specificity of Adjustment. Regardless of any adjustment in the
number or kind of shares purchasable upon the exercise of the Warrants, Warrant
Certificates theretofore
-23-
or thereafter issued may continue to express the same number and kind of Warrant
Shares per Warrant as are stated on the Warrant Certificates initially issuable
pursuant to this Agreement.
(j) Voluntary Adjustment. The Company from time to time may increase
the Exercise Rate by any number and for any period of time; provided that such
period is not less than 20 Business Days. Whenever the Exercise Rate is so
increased, the Company shall mail to holders at the addresses appearing on the
Warrant Register and file with the Warrant Agent a notice of the increase. The
Company shall give the notice at least 15 days before the date the increased
Exercise Rate takes effect. The notice shall state the increased Exercise Rate
and the period it will be in effect. A voluntary increase in the Exercise Rate
shall not change or adjust the Exercise Rate otherwise in effect as determined
by this Section 12.
(k) Multiple Adjustments. After an adjustment to the Exercise Rate for
outstanding Warrants under this Section 12, any subsequent event requiring an
adjustment under this Section 12 shall cause an adjustment to the Exercise Rate
for outstanding Warrants as so adjusted.
(l) When De Minimis Adjustment May Be Deferred. No adjustment in the
Exercise Rate shall be required unless such adjustment would require an increase
or decrease of at least 1% in such rate; provided, however, that any adjustments
which by reason of the foregoing are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
shall be made by the Issuer and shall be rounded to the sixth decimal place. No
adjustment need be made for a change in the par value or no par value of the
Class A Common Stock or Class E Common Stock and no adjustment shall be deferred
beyond the date on which a Warrant is exercised.
(m) Tag-Along Transfers.
(i) If the Company receives any Transfer Notice by a holder of
Class D Common Stock in respect of a proposed Tag-Along Transfer, as
contemplated by Article IV, Section 4 of the Amended and Restated
Articles of Incorporation of the Company (the "Articles"), the Company
shall promptly provide a copy of such notice to each Holder of a
Warrant.
(ii) Notwithstanding anything herein to the contrary, upon a
Tag-Along Transfer of a number of shares of Class D Common Stock equal
to or greater than 80% of the outstanding shares of Class D Common
Stock, then to the extent the Warrants shall not have been exercised or
the holder of the Warrant Shares issued upon such exercise shall not
have given a Tag-Along Notice in each case on or before the Tag-Along
Acceptance Date, such Warrants shall be subject to redemption pursuant
to Article IV, Section 5 of the Articles and the Holders thereof shall
be entitled to receive the Tag-Along Redemption Price (reduced by the
aggregate Exercise Price payable by such Holders), in each case as if
such Warrants had been exercised immediately prior to the Tag-Along
Acceptance Date. Upon receipt of such
-24-
payment, if any, the rights of a holder of such Warrant shall terminate
and cease and such holder's Warrants shall expire.
(iii) Capitalized terms not otherwise defined in this Section
12(m) have the meanings set forth in the Articles.
(n) Amendments of the Articles of Incorporation. The Company shall not
amend Section 4, Section 5, Section 6(b) or Section 8 of Article IV of its
Articles of Incorporation in a manner that adversely affects the holders of
Warrants, without the prior consent of the holders of a majority of the Warrants
outstanding (excluding Warrants held by the Company or any of its Affiliates).
SECTION 13. Fractional Interests. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 13,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the Current Market Value per
Warrant Share on the day immediately preceding the date the Warrant is presented
for exercise, multiplied by such fraction.
SECTION 14. Notice of Certain Distributions; Certain Rights. The
Company shall give prompt written notice to the Warrant Agent and shall cause
the Warrant Agent, on behalf of and at the expense of the Company to give to
each Holder written notice of any determination to make a distribution to the
holders of its Common Stock of any cash dividends, assets, debt securities,
preferred stock, or any rights or warrants to purchase debt securities,
preferred stock, assets or other securities (other than Common Stock, or rights,
options, or warrants to purchase Common Stock) of the Company, which notice
shall state the nature and amount of such planned dividend or distribution and
the record date therefor, and shall be received by the Holders at least 20 days
prior to such record date therefor.
Except as expressly provided in this Agreement or in any Warrant
Certificate, the Holders shall have no right to vote, to consent, to exercise
any preemptive rights or to receive notice as shareholders in respect of the
meetings of shareholders or the election of directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
SECTION 15. Notices to the Company and Warrant Agent. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any Holder to or on the Company shall be sufficiently given or made when
received at the office of the Company expressly designated by the Company as its
office for purposes of this
-25-
Agreement (until the Warrant Agent is otherwise notified in accordance with this
Section 15 by the Company), as follows:
Jostens Inc. copies to:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇: General Counsel ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Any notice pursuant to this Agreement to be given by the Company or by
any Holder(s) to the Warrant Agent shall be sufficiently given when received by
the Warrant Agent at the address appearing below (until the Company is otherwise
notified in accordance with this Section by the Warrant Agent).
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Trust Trustee Administration
Any notice or communication to a holder shall be mailed by first class
mail, postage prepaid, to its address shown on the register kept by Warrant
Agent.
SECTION 16. Supplements and Amendments. (a) The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrants in order to cure any ambiguity or to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not in any way adversely affect the
interests of any holder of Warrants as evidenced by an opinion of counsel, which
may be in-house counsel, delivered to the Warrant Agent.
(b) No other amendment or modifications of any provision of this
Agreement or the Warrant Certificates or consent to any departure by the Company
therefrom, shall in any event be effective without written consent of the
Holders of a majority of the Warrants, excluding Warrants held by the Company or
any of its Affiliates. The consent of each Holder of Warrants affected shall be
required for any amendment pursuant to which the Exercise Price would be
increased or the Exercise Rate would be decreased (other than pursuant to
adjustments provided in this Agreement) or any of the adjustment provisions in
this Agreement would be changed in a manner that would have any such effect.
-26-
After an amendment or modification under this Section 16 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing such amendment or modification. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amendment or modification.
In connection with any amendment or modification under this Section 16,
the Company may offer, but shall not be obligated to offer, to any Holder who
consents to such amendment or modification, consideration for such Holder's
consent, so long as such consideration is offered to all Holders.
(c) Executed or true and correct copies of any amendment or
modification effected pursuant to the provisions of this Section 16 shall be
delivered by the Company to each Holder of outstanding Warrants or Warrant
Shares forthwith following the date on which the same shall have been executed
and delivered by the Holder or Holders of the requisite percentage of
outstanding Warrant Shares (but only to the extent the Company has been provided
with the addresses for the Holders).
SECTION 17. Concerning the Warrant Agent. The Warrant Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the Holders, by their acceptance
of Warrants, shall be bound:
(a) The statements contained herein and in the Warrant Certificate
shall be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or any action taken by it. The Warrant Agent assumes no
responsibility with respect to the distribution of the Warrants except as herein
otherwise provided.
(b) The Warrant Agent shall be protected and shall not be responsible
for and shall incur no liability to the Company or any Holder for any failure of
the Company to comply with the covenants contained in this Agreement or in the
Warrants to be complied with by the Company.
(c) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself (through
its employees) or by or through its attorneys or agents (which shall not include
its employees) and shall not be responsible for the misconduct of any attorney
or agent appointed with due care.
(d) The Warrant Agent may consult at any time with legal counsel
satisfactory to it (who may be counsel for the Company), and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder in
respect of any action taken, suffered or
-27-
omitted by it hereunder in good faith and in accordance with the opinion or the
advice of such counsel.
(e) Whenever in the performance of its duties under this Agreement the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless such evidence in respect thereof be
herein specifically prescribed) may be deemed conclusively to be proved and
established by a certificate signed by the Chairman of the Board, the President,
one of the Vice Presidents, the Treasurer or the Secretary of the Company and
delivered to the Warrant Agent; and such certificate shall be full authorization
to the Warrant Agent for any action taken or suffered in good faith by it under
the provisions of this Agreement in reliance upon such certificate.
(f) The Company agrees to pay the Warrant Agent such compensation for
all services rendered by the Warrant Agent in the performance of its duties
under this Agreement as may be separately agreed in writing, to reimburse the
Warrant Agent for all expenses, taxes and governmental charges and other charges
of any kind and nature incurred by the Warrant Agent in the performance of its
duties under this Agreement (including, without limitation, reasonable fees and
expenses of counsel), and to indemnify the Warrant Agent and its agents,
employees, directors, officers and affiliates and save it and them harmless
against any and all liabilities, losses and expenses, including, without
limitation, judgments, costs and counsel fees, for anything done or omitted by
the Warrant Agent in the acceptance and performance of its duties under this
Agreement, except as a result of the Warrant Agent's gross negligence or bad
faith, including, without limitation, the costs and expenses of defending
against any claim (whether asserted by the Company, a Holder or any other
Person) of liability in the premises including reasonable attorneys' fees and
expenses. The provisions of this paragraph shall survive the resignation or
removal of the Warrant Agent and the termination of this Agreement.
(g) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more holders shall furnish the Warrant
Agent with reasonable security and indemnity for any costs and expenses which
may be incurred, but this provision shall not affect the power of the Warrant
Agent to take such action as the Warrant Agent may consider proper, whether with
or without any such security or indemnity. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrants or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall be for the ratable benefit of
the holders, as their respective rights or interests may appear.
-28-
(h) The Warrant Agent and any stockholder, director, officer or
employee ("Related Parties") of the Warrant Agent may buy, sell or deal in any
of the Warrants or other securities of the Company or become pecuniarily
interested in any transactions in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and freely
as though it were not Warrant Agent under this Agreement or such director,
officer or employee. Nothing herein shall preclude the Warrant Agent or any
Related Party from acting in any other capacity for the Company or for any other
legal entity including, without limitation, acting as Transfer Agent or as a
lender to the Company or an affiliate thereof.
(i) The Warrant Agent shall act hereunder solely as agent, and its
duties shall be determined solely by the provisions thereof. The Warrant Agent
shall not be liable for anything which it may do or refrain from doing in
connection with this Agreement except for its own negligence or bad faith. No
implied duties or obligations shall be read into this Agreement against the
Warrant Agent.
(j) The Warrant Agent will be protected and will not incur any
liability or responsibility to the Company or to any holder for any action
taken, suffered or omitted by it in reliance on any notice, resolution, waiver,
consent, order, certificate, or other paper, document or instrument reasonably
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, Treasurer any Vice President or the
Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for any
action taken or suffered to be taken by it in good faith and without negligence
in accordance with instructions of any such officer or officers.
(l) By countersigning Warrant Certificates or by any other act
hereunder the Warrant Agent shall not be deemed to make any representations as
to validity or authorization of the Warrants or the Warrant Certificates (except
as to its countersignature thereon) or of any securities or other property
delivered upon exercise or tender of any Warrant, or as to the accuracy of the
computation of the Exercise Price or the number or kind or amount of stock or
other securities or other property deliverable upon exercise of any Warrant or
the correctness of the representations of the Company made in any certifications
that the Warrant Agent receives. The Warrant Agent shall not have any duty to
calculate or determine any adjustments with respect either to the Exercise Price
or the kind and amount of shares or other securities or any property receivable
by holders of Warrants upon the exercise or tender of Warrants required from
time to time, and the Warrant Agent shall have no duty or responsibility in
determining the accuracy or correctness of any such calculation.
-29-
(m) No provision of this Agreement shall require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
SECTION 18. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company 30
days' notice in writing. The Warrant Agent may be removed by like notice to the
Warrant Agent from the Company. If the Warrant Agent shall resign or be removed
or shall otherwise become incapable of acting, the Company shall appoint a
successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by any holder (who shall with such notice submit
his Warrant for inspection by the Company), then any holder or the resigning or
removed Warrant Agent may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such court, the
duties of the Warrant Agent shall be carried out by the Company. Any successor
warrant agent, whether appointed by the Company or such a court, shall be a bank
or trust company in good standing, incorporated under the laws of the United
States of America or any State thereof or the District of Columbia and having at
the time of its appointment as warrant agent a combined capital and surplus of
at least $50,000,000. After appointment, the successor warrant agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed; but the
former Warrant Agent shall deliver and transfer to the successor warrant agent
any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for such purpose. Failure
to file any notice provided for in this Section 18, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor warrant agent, as the
case may be. In the event of such resignation or removal, the Company or the
successor warrant agent shall mail by first class mail, postage prepaid, to each
Holder, written notice of such removal or resignation and the name and address
of such successor warrant agent.
SECTION 19. Identity of Transfer Agent. Forthwith upon the appointment
of any Transfer Agent for the Common Stock, or any other shares of the Company's
Capital Stock issuable upon the exercise of the Warrants, the Company shall file
with the Warrant Agent a statement setting forth the name and address of such
Transfer Agent.
SECTION 20. SEC Reports and Other Information. The Company shall at all
times provide the Warrant Agent and Holders of Warrants with such annual reports
and such information, documents and other reports as are specified in Sections
13 and 15(d) of the
-30-
Exchange Act of documents and other reports to be so provided at the times
specified for the filing of such information, documents and reports under such
Sections of the Exchange Act. In addition, for so long as any Warrants remain
outstanding, the Company will furnish to the Holders and to prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, and, to beneficial holders of
Warrants, if not obtainable from the SEC, information of the type that would be
filed with the SEC pursuant to the foregoing provisions, upon the request of any
such holder. Delivery of such reports, information and documents to the Warrant
Agent is for informational purposes only and the Warrant Agent's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Warrant Agent is
entitled to rely exclusively on Officers' Certificates).
SECTION 21. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company, the Warrant Agent or any holder
of Warrants shall bind and inure to the benefit of their respective successors
and assigns hereunder.
SECTION 22. Termination. This Agreement shall terminate on the
Expiration Date. Notwithstanding the foregoing, this Agreement will terminate on
any earlier date if all Warrants have been exercised or redeemed pursuant to
this Agreement or the Company's Articles of Incorporation.
SECTION 23. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of New York and shall be governed by and construed in accordance with the
laws of said State, without regard to the conflict of law rules thereof.
SECTION 24. Benefits of This Agreement. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrant Certificates any legal
or equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent
and the registered holders of the Warrant Certificates.
SECTION 25. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
-31-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
JOSTENS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman of the Board,
President and Chief
Executive Officer
THE BANK OF NEW YORK, as Warrant Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Asst. Vice President
Exhibit A
The Warrants represented by this certificate may be required to be
exercised upon the demand of the Company, upon the occurrence of certain events
specified in the amended and restated articles of incorporation of the Company.
The Company will furnish without charge to each holder who so requests a copy of
the amended and restated articles of incorporation of the Company.
This security is subject to mandatory redemption by the Company. Such
redemption can be accomplished without the certificates representing such
security being surrendered and whether or not the Company gives notice of such
redemption. The Company will furnish without charge to each securityholder who
so requests a full statement of the designations, preferences, limitations and
relative rights of each class of stock or series of stock of the Company
authorized to be issued, so far as they have been determined, and the authority
of the board of directors to determine the relative rights and preferences of
subsequent classes or series.
No. [ ]
CLASS E COMMON STOCK PURCHASE WARRANT
OF
JOSTENS, INC.
THIS CERTIFIES THAT [ ], or its registered assigns, is
the registered holder of ______________ Warrants (the "Warrants"). Each Warrant
entitles the holder thereof (the "Holder"), at its option at any time on or
after the Separability Date and subject to the provisions contained herein and
in the Warrant Agreement referred to below, to purchase from Jostens, Inc., a
Minnesota corporation (the "Company"), 1.889155 shares of Class E Common Stock,
par value $0.01 per share, of the Company at an exercise price per share equal
to $0.01 (the "Exercise Price").
This Warrant Certificate shall terminate and become void as of the
close of business on May 1, 2010 (the "Expiration Date") or, if earlier, upon
the exercise hereof as to all the shares of Class E Common Stock subject hereto.
The number of shares issuable upon exercise of the Warrants shall be subject to
adjustment from time to time as set forth in the Warrant Agreement (as defined).
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement dated as of May 10, 2000 (the "Warrant Agreement"), between
the Company and The Bank of New York, as Warrant Agent, and is subject to the
terms and provisions
A-1
contained in the Warrant Agreement, to all of which terms and provisions the
Holder of this Warrant Certificate consents by acceptance hereof. The Warrant
Agreement is hereby incorporated herein by reference and made a part hereof.
Reference is hereby made to the Warrant Agreement for a full statement of the
respective rights, limitations of rights, duties and obligations of the Company
and the Warrantholders. Capitalized terms used but not defined herein shall have
the meanings ascribed thereto in the Warrant Agreement. A copy of the Warrant
Agreement may be obtained for inspection by the Holder hereof upon written
request to the Company at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: General Counsel.
Subject to the terms of the Warrant Agreement, the Warrants may be
exercised upon surrender at the office or agency of the Company maintained for
such purpose, which initially will be the corporate trust office of the Warrant
Agent in New York, New York, of the certificate or certificates evidencing the
Warrants to be exercised with the form of election to purchase on the reverse
thereof duly filled in and signed, and upon payment to the Warrant Agent for the
account of the Company of the Exercise Price for the number of Warrant Shares in
respect of which such Warrants are then exercised. The Exercise Price may be
paid only by the surrender of one or more warrant certificates (and without the
payment of the Exercise Price in cash) in exchange for such number of shares of
Common Stock equal to the product of (a) the number of Warrant Shares for which
such Warrant is exercisable as of the Exercise Date (if the Exercise Price were
being paid in cash), and (b) the Cashless Exercise Ratio. The "Cashless Exercise
Ratio" shall equal a fraction, the numerator of which is the excess of the
Current Market Value per Warrant Share on the Exercise Date over the Exercise
Price per share as of the Exercise Date and the denominator of which is the
Current Market Value per Warrant Share on the Exercise Date. Upon surrender of a
Warrant Certificate representing more than one Warrant in connection with the
holder's option to elect a Cashless Exercise, the number of Warrant Shares
deliverable upon a Cashless Exercise shall be equal to the product of the number
of Warrant Shares issuable in respect of those Warrants that the holder
specifies are to be exercised pursuant to a Cashless Exercise multiplied by the
Cashless Exercise Ratio. All provisions of the Agreement shall be applicable
with respect to a surrender of a Warrant Certificate for less than the full
number of Warrants represented thereby.
The Warrants shall be exercisable only in whole. In the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of the
Warrants evidenced thereby at any time prior to the date of expiration of the
Warrants, a new certificate evidencing the remaining Warrant or Warrants will be
issued, and the Warrant Agent is irrevocably authorized to countersign and to
deliver the required new Warrant Certificate or Certificates pursuant to the
Warrant Agreement, and the Company, whenever required by the Warrant Agent, will
promptly supply the Warrant Agent with Warrant Certificates duly executed on
behalf of the Company for such purpose.
A-2
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent as such term is used in the Warrant Agreement.
As provided in the Warrant Agreement, the Exercise Rate is subject to
adjustment upon the happening of certain events.
The Company will pay all documentary stamp taxes attributable to the
initial issuance of Warrant Shares upon the exercise of Warrants; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue of any Warrant
Certificates or any certificates for Warrant Shares in a name other than that of
the registered holder of a Warrant Certificate surrendered upon the exercise of
a Warrant, and the Company shall not be required to issue or deliver such
Warrant Certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The Company shall not be required to issue fractional Warrant Shares on
the exercise of Warrants. If more than one Warrant shall be presented for
exercise in full at the same time by the same holder, the number of full Warrant
Shares which shall be issuable upon the exercise thereof shall be computed on
the basis of the aggregate number of Warrant Shares purchasable on exercise of
the Warrants so presented. If any fraction of a Warrant Share would be issuable
on the exercise of any Warrants (or specified portion thereof), the Company
shall pay an amount in cash equal to the Current Market Value per Warrant Share
on the day immediately preceding the date the Warrant is presented for exercise,
multiplied by such fraction.
All Warrant Shares issuable by the Company upon the exercise of the
Warrants shall, upon such issue, be duly and validly issued and fully paid and
non-assessable.
The Company and the Warrant Agent may deem and treat Holders of the
Warrant Certificates as the absolute owners thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone) for all purposes,
and neither the Company nor the Warrant Agent shall be affected by any notice to
the contrary.
A-3
The Warrants do not entitle any Holder hereof to any of the rights of a
stockholder of the Company.
JOSTENS, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
DATED:
COUNTERSIGNED:
THE BANK OF NEW YORK,
as Warrant Agent
By:
-------------------------------
Authorized Signature
A-4
FORM OF ELECTION TO PURCHASE WARRANT SHARES
(to be executed only upon exercise of Warrants)
JOSTENS, INC.
The undersigned hereby irrevocably elects to exercise ________________
Warrants on the terms and conditions specified in the Warrant Certificate and
the Warrant Agreement, surrenders this Warrant Certificate and all right, title
and interest therein to Jostens, Inc. and directs that the Warrant Shares
deliverable upon the exercise of such Warrants be registered or placed in the
name and at the address specified below and delivered thereto.
Date: ____________, ____
Your Signature.______________________________________________________________
(Sign exactly as your name appears on the face
of this Warrant Certificate)
_____________________________________________________________________________
(Street Address)
_____________________________________________________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
2
ASSIGNMENT FORM
To assign this Warrant, fill in the form below:
I or we assign and transfer this Warrant to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Warrant on the books
of the Company. The agent may substitute another to act for him.
_____________________________________________________________________________
Date: _____________________
Your Signature: _____________________________________________________________
(Sign exactly as your name appears on the face
of this Warrant Certificate)
Signature Guaranteed by:
____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.
Exhibit B(1)
[Private Placement Legend]
Neither this security nor any security issuable upon the exercise
hereof has been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state or other jurisdiction.
Neither such security nor any interest or participation herein or therein may be
reoffered, sold, assigned, transferred, pledged, encumbered or otherwise
disposed of in the absence of such registration or unless such transaction is
exempt from, or not subject to, such registration. By its acquisition hereby
(but subject to certain rights to require registration of the warrants), the
holder (1) represents that (a) it is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), (b) it is an "accredited
investor" (as defined in Rule 501(a)(1), (2), (3), or (7) under the Securities
Act) or (c) it is a foreign purchaser and is acquiring this security outside the
United States within the meaning of Regulation S under the Securities Act; (2)
agrees that it will not prior to two years after the later to occur of (i) the
original issuance of the warrant evidenced hereby or (ii) acquisition thereof
from an affiliate of Jostens, Inc. (or such later date specified in the warrant
agreement referred to below, the "Resale Restriction Termination Date") resell
or otherwise transfer the warrant evidenced hereby, except pursuant to an
effective registration statement under the Securities Act or in a transaction
not requiring registration under the Securities Act (a) to Jostens, Inc. or any
subsidiary thereof, (b) inside the United States to a qualified institutional
buyer in compliance with Rule 144A under the Securities Act, (c) inside the
United States to an accredited investor that, prior to such transfer, furnishes
to The Bank of New York (or any successor, the "Warrant Agent") a signed letter
containing certain representations and agreements relating to the restriction on
transfer of the warrants evidenced hereby (the form of which letter can be
obtained from Jostens, Inc. or the Warrant Agent), (d) outside the United States
in compliance with Regulation S promulgated under the Securities Act, (e)
pursuant to any other available exemption from the registration requirements of
the Securities Act, including the exemption provided by Rule 144 under the
Securities Act (if available), subject in each of the foregoing cases to any
requirement of law that the disposition of the property of such holder be at all
times within such holder's control and to compliance with any applicable state
securities laws; and (3) agrees that it will deliver to each person to whom this
warrant is transferred a notice substantially to the effect of this legend. In
connection with any transfer of the warrant evidenced hereby prior to the
restriction termination date, in the case of certain transfers pursuant to
clause (2)(b), 2(c) or (2)(d), the holder must make certain certifications to
the Warrant Agent to confirm that such transfers are being made pursuant an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. In addition, in the case of any transfer
referred to in clause (2)(e) above, the holder must, prior to such transfer
furnish to the Warrant Agent such certifications, legal opinions or other
information as Jostens, Inc. or the Warrant Agent may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or in a
B-1-1
transaction not subject to, the registration requirements of the Securities Act.
Hedging transactions involving this security or any security issuable upon
exercise hereof may not be conducted unless in compliance with the Securities
Act.
B-1-2
Exhibit B(2)
[Unit Legend]
[Any Warrant issued on or after the Issue Date and prior to the
Separability Date shall bear the legend set forth in the following paragraph:]
The Warrants evidenced by this certificate are initially issued as part
of an issuance of units, each of which consists of $1,000 principal amount of
the 12 3/4% Senior Subordinated Notes due 2010 of Jostens, Inc. (the "Notes")
and one warrant (each, a "Warrant" and collectively, the "Warrants"), each
Warrant initially entitling the holder thereof to purchase 1.889155 shares of
Class E Common Stock, $0.01 par value, of Jostens, Inc. (the "Class E Common
Stock"). Prior to the Separability Date, the Warrants evidenced by this
certificate may not be transferred or exchanged separately from, and may be
transferred or exchange only together with, the Notes.
B-2-1
Exhibit B(3)
[GLOBAL WARRANT LEGEND]
Any Global Warrant countersigned and delivered hereunder shall bear a
legend in substantially the following form:
This security is a Global Warrant within the meaning of the Warrant
Agreement hereinafter referred to and is registered in the name of a
depository or a successor depository. This security is not exchangeable
for securities registered in the name of a person other than the
depository or its nominee except in the limited circumstances described
in the Warrant Agreement, and no transfer of this security (other than
a transfer of this security as a whole by the depository to a nominee
of the depository or by a nominee of the depository to the depository
or another nominee of the depository) may be registered except in the
limited circumstances described in the Warrant Agreement. Unless this
certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), any transfer, pledge
or other use hereof for value or otherwise by or to any person is
wrongful inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
B-3-1
Exhibit C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF WARRANTS
Re: Warrants to Purchase Class E Common Stock (the "Warrants")
of Jostens, Inc.
This Certificate relates to ________________________ Warrants held by
______________________ (the "Transferor").
The Transferor has requested the Warrant Agent by written order to
exchange or register the transfer of a Warrant or Warrants.
In connection with such request and in respect of each such Warrant,
the Transferor hereby certifies that the Transferor is familiar with the Warrant
Agreement dated as of May 10, 2000, between Jostens, Inc., a Minnesota
corporation, and The Bank of New York, as warrant agent (the "Warrant
Agreement"), relating to the above captioned Warrants and the restrictions on
transfers thereof as provided in Section 1.08 of such Warrant Agreement, and
that the transfer of this Warrant does not require registration under the
Securities Act of 1933, as amended (the "Act"), because*:
[_] Such Warrant is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 6(a)(y)(A) of the Warrant
Agreement).
[_] Such Warrant is being transferred to a qualified institutional
buyer (as defined in Rule 144A under the Act) in reliance on Rule 144A or is
being transferred in accordance with Regulation S under the Act.
[_] Such Warrant is being transferred in accordance with Rule 144 under
the Act.
[_] Such Warrant is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act, other than Rule
144A or Rule 144 or Regulation S under the Act. An opinion of counsel to the
effect that such transfer does not require registration under the Act
accompanies this Certificate.
C-1
______________________________________
[INSERT NAME OF TRANSFEROR]
By:___________________________________
Date:___________________________
*Check applicable box.
C-2
Exhibit D
[Form of Transferee Letter of Representation
in Connection with Transfers to Institutional Accredited Investors]
The Bank of New York
[address]
Ladies and Gentlemen:
In connection with our proposed purchase of warrants to purchase Class
E Common Stock, par value $0.01 per share (the "Securities"), of Jostens, Inc.
(the "Company"), we confirm that:
1. We understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"),
and, unless so registered, may not be offered, sold or otherwise
transferred except as permitted in the following sentence. We agree on
our own behalf and on behalf of any investor account for which we are
purchasing Securities to offer, sell or otherwise transfer such
Securities prior to the date which is two years after the later of the
date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any
predecessor Securities) (the "Resale Restriction Termination Date")
only (a) to the Company, (b) pursuant to a registration statement which
has been declared effective under the Securities Act, (c) for so long
as the Securities are eligible for resale pursuant to Rule 144A under
the Securities Act, to a person we reasonably believe is a qualified
institutional buyer as defined in Rule 144A (a "QIB") that purchases
for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an
institutional "accredited investor" within the meaning of subparagraph
(a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501 under the Securities Act
that is acquiring the Securities for its own account or for the account
of such an institutional "accredited investor", for investment purposes
and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act, or (f) pursuant to
another available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any
requirement of law that the disposition of our property or the property
of such investor account or accounts be at all times within our or
their control and to compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply subsequent to
the Resale Restriction Termination Date. If any resale or other
transfer of the Securities is proposed to be made pursuant to clause
(e) above prior to the Resale Restriction Termination Date, the
transferor shall deliver a letter from the
D-1
transferee substantially in the form of this letter to the warrant
agent under the Warrant Agreement pursuant to which the Securities were
issued (the "Warrant Agent") which shall provide, among other things,
that the transferee is an institutional "accredited investor" within
the meaning of subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of Rule
501 under the Securities Act and that it is acquiring such Securities
for investment purposes and not for distribution in violation of the
Securities Act. The Warrant Agent and the Company reserve the right
prior to any offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Securities pursuant to clause (c),
(d), (e) or (f) above to require the delivery of a written opinion of
counsel, certifications, and or other information satisfactory to the
Company and the Warrant Agent.
2. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (a)(2), (a)(3) or (a)(7) of Regulation D under the
Securities Act) purchasing for our own account or for the account of
such an institutional "accredited investor", and we are acquiring the
Securities for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution in violation of the
Securities Act and we have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of our investment in the Securities, and we and any accounts for
which we are acting are each able to bear the economic risk of our or
its investment for an indefinite period.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion.
D-2
4. You and your counsel are entitled to rely upon this letter
and you are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
Very truly yours,
________________________________
(Name of Purchaser)
By:_____________________________
Date:___________________________
Upon transfer the Securities would be registered in the name of the new
beneficial owner as follows:
Name:______________________________
Address:___________________________
Taxpayer ID Number:________________
D-3
Exhibit E
[Form of Transferee Letter of Representation
in Connection with Transfers Pursuant to Regulation S]
The Bank of New York
[Address]
Ladies and Gentlemen:
In connection with our proposed purchase of warrants (the "Securities")
to purchase Class E Common Stock, par value $0.01 per share, of Jostens, Inc.
(the "Company"), we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we represent that:
(1) The undersigned certifies that it is not a U.S. person and
is not acquiring the Securities for the account or benefit of any U.S.
person.
(2) The undersigned agrees to resell the Securities only in
accordance with the provisions of Regulation S, pursuant to
registration under the Securities Act of 1933 or pursuant to an
available exemption from registration.
(3) The undersigned agrees not to engage in hedging
transactions with regard to the Securities unless in compliance with
the Securities Act.
You and your counsel are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Defined terms used herein without
definition have the respective meanings provided in Regulation S under the
Securities Act.
Very truly yours,
(Name of Purchaser)
By:
----------------------------------
E-1
Upon transfer the Securities would be registered in the name of the new
beneficial owner as follows:
Name:___________________________________
Address:________________________________
Taxpayer ID Number:_____________________
E-2