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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT, DATED AS OF FEBRUARY 20, 2002,
AMONG AMERICAN ACHIEVEMENT CORPORATION, THE GUARANTORS AND
THE INITIAL PURCHASERS
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 20, 2002
Among
AMERICAN ACHIEVEMENT CORPORATION
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
DEUTSCHE BANC ALEX. BROWN INC.,
GOLDMAN, SACHS & CO.
and
SCOTIA CAPITAL (USA) INC.,
as Initial Purchasers
11-5/8% Senior Notes due 2007
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TABLE OF CONTENTS
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PAGE
1. Definitions..........................................................................................1
2. Exchange Offer.......................................................................................5
3. Shelf Registration...................................................................................9
4. Additional Interest.................................................................................11
5. Registration Procedures.............................................................................12
6. Registration Expenses...............................................................................22
7. Indemnification and Contribution....................................................................23
8. Rules 144 and 144A..................................................................................27
9. Underwritten Registrations..........................................................................27
10. Miscellaneous.......................................................................................28
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is dated as of
February 20, 2002, among AMERICAN ACHIEVEMENT CORPORATION, a Delaware
corporation (the "COMPANY"), the subsidiaries of the Company that are listed on
the signature pages hereto (collectively, and together with any entity that in
the future executes a supplemental indenture pursuant to which such entity
agrees to guarantee the Notes (as hereinafter defined), the "GUARANTORS" and,
together with the Company, the "ISSUERS"), and DEUTSCHE BANC ALEX. BROWN INC.,
GOLDMAN, SACHS & CO. and SCOTIA CAPITAL (USA) INC., as initial purchasers (the
"INITIAL PURCHASERS").
This Agreement is entered into in connection with the Purchase
Agreement by and among the Issuers and the Initial Purchasers, dated as of
February 14, 2002 (the "PURCHASE AGREEMENT"), which provides for, among other
things, the sale by the Company to the Initial Purchasers of $177,000,000
aggregate principal amount of the Company's 11-5/8% Senior Notes due 2007 (the
"NOTES"), guaranteed by the Guarantors (the "GUARANTEES"). The Notes and the
Guarantees are collectively referenced to herein as the "SECURITIES". In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Issuers have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and any subsequent holder or
holders of the Securities. The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Securities under
the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
ADDITIONAL INTEREST: See Section 4(a) hereof.
ADVICE: See the last paragraph of Section 5 hereof.
AGREEMENT: See the introductory paragraphs hereto.
APPLICABLE PERIOD: See Section 2(b) hereof.
BLACKOUT PERIOD: See Section 3(d) hereof.
BUSINESS DAY: 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.
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COMPANY: See the introductory paragraphs hereto.
EFFECTIVENESS DATE: With respect to (i) the Exchange Offer Registration
Statement, the 150th day after the Issue Date and (ii) any Shelf Registration
Statement, the 150th day after the Filing Date with respect thereto; PROVIDED,
HOWEVER, that if the Effectiveness Date would otherwise fall on a day that is
not a Business Day, then the Effectiveness Date shall be the next succeeding
Business Day.
EFFECTIVENESS PERIOD: See Section 3(a) hereof.
EVENT DATE: See Section 4 hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: See Section 2(a) hereof.
EXCHANGE OFFER: See Section 2(a) hereof.
EXCHANGE OFFER REGISTRATION STATEMENT: See Section 2(a) hereof.
FILING DATE: (A) With respect to the Exchange Offer Registration
Statement, the 90th day after the Issue Date; and (B) in any other case (which
may be applicable notwithstanding the consummation of the Exchange Offer), the
90th day after the delivery of a Shelf Notice as required pursuant to Section
2(c) hereof; PROVIDED, HOWEVER, that if the Filing Date would otherwise fall on
a day that is not a Business Day, then the Filing Date shall be the next
succeeding Business Day.
GUARANTEES: See the introductory paragraphs hereto.
GUARANTORS: See the introductory paragraphs hereto.
HOLDER: Any holder of a Registrable Note or Registrable Notes.
INDENTURE: The Indenture, dated as of February 20, 2002, by and among
the Issuers and The Bank of New York, as Trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
INFORMATION: See Section 5(n) hereof.
INITIAL PURCHASERS: See the introductory paragraphs hereto.
INITIAL SHELF REGISTRATION: See Section 3(a) hereof.
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INSPECTORS: See Section 5(n) hereof.
ISSUE DATE: February 20, 2002, the date of original issuance of the
Notes.
ISSUERS: See the introductory paragraphs hereto.
NASD: See Section 5(r) hereof.
NOTES: See the introductory paragraphs hereto.
PARTICIPANT: See Section 7(a) hereof.
PARTICIPATING BROKER-DEALER: See Section 2(b) hereof.
PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
PRIVATE EXCHANGE: See Section 2(b) hereof.
PRIVATE EXCHANGE NOTES: See Section 2(b) hereof.
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
under the Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the introductory paragraphs hereof.
RECORDS: See Section 5(n) hereof.
REGISTRABLE NOTES: Each Note (and the related Guarantees) upon its
original issuance and at all times subsequent thereto, each Exchange Note (and
the related guarantees) as to which Section 2(c)(iv) hereof is applicable upon
original issuance and at all times subsequent thereto and each Private Exchange
Note (and the related guarantees) upon original issuance thereof and at all
times subsequent thereto, until, in each case, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC
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and such Note, Exchange Note or such Private Exchange Note (and the related
guarantees), as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes (and the related
guarantees) that may be resold without restriction under state and federal
securities laws, (iii) such Note, Exchange Note or Private Exchange Note (and
the related guarantees), as the case may be, ceases to be outstanding for
purposes of the Indenture or (iv) such Note, Exchange Note or Private Exchange
Note (and the related guarantees), as the case may be, may be resold without
restriction pursuant to Rule 144(k) (as amended or replaced) under the
Securities Act.
REGISTRATION STATEMENT: Any registration statement of the Issuers that
covers any of the Notes, the Exchange Notes or the Private Exchange Notes (and
the related Guarantees or guarantees, as the case may be) filed with the SEC
under the Securities Act, including the Prospectus, amendments and supplements
to such registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
RULE 144: Rule 144 under the Securities Act.
RULE 144A: Rule 144A under the Securities Act.
RULE 405: Rule 405 under the Securities Act.
RULE 415: Rule 415 under the Securities Act.
RULE 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
SECURITIES: See the introductory paragraphs hereto.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(c) hereof.
SHELF REGISTRATION: See Section 3(b) hereof.
SHELF REGISTRATION STATEMENT: Any Registration Statement relating to a
Shelf Registration.
SUBSEQUENT SHELF REGISTRATION: See Section 3(b) hereof.
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TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and the trustee (if any) under
any indenture governing the Exchange Notes and Private Exchange Notes (and the
related guarantees).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
Except as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "REGULATORY
REQUIREMENTS") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; PROVIDED that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2.EXCHANGE OFFER
(a) Unless the Exchange Offer would violate applicable law or any
applicable interpretation of the staff of the SEC, the Issuers shall file with
the SEC, no later than the Filing Date, a Registration Statement (the "EXCHANGE
OFFER REGISTRATION STATEMENT") on an appropriate registration form with respect
to a registered offer (the "EXCHANGE OFFER") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of debt securities of
the Company (the "EXCHANGE NOTES"), guaranteed by the Guarantors, that are
identical in all material respects to the Securities, except that (i) the
Exchange Notes shall contain no restrictive legend thereon and (ii) interest
thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from the Issue Date, and which are
entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other than such changes to
the Indenture or any such identical trust indenture as are necessary to comply
with the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall comply with all applicable tender offer rules and
regulations under the Exchange Act and other applicable laws. The Issuers shall
use their reasonable best efforts to (x) cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or
longer if required by applicable law) after the date that notice of the Exchange
Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to
the 180th day following the Issue Date.
Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuers in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes acquired in exchange for
Registrable Notes tendered are being acquired in the ordinary course
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of business of the Person receiving such Exchange Notes, whether or not such
recipient is such Holder itself; (ii) at the time of the commencement or
consummation of the Exchange Offer neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder has an arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes in violation of the provisions of the
Securities Act; (iii) neither the Holder nor, to the actual knowledge of such
Holder, any other Person receiving Exchange Notes from such Holder is an
"affiliate" (as defined in Rule 405) of the Company or, if it is an affiliate of
the Company, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable and will provide
information to be included in the Shelf Registration Statement in accordance
with Section 5 hereof in order to have their Notes included in the Shelf
Registration Statement and benefit from the provisions regarding Additional
Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is engaging in or intends to engage in a distribution of the Exchange
Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has
acquired the Registrable Notes as a result of market-making activities or other
trading activities and that it will comply with the applicable provisions of the
Securities Act (including, but not limited to, the prospectus delivery
requirements thereunder).
Upon consummation of the Exchange Offer in accordance with this Section
2, the provisions of this Agreement shall continue to apply solely with respect
to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which
Section 2(c)(iv) is applicable and Exchange Notes held by Participating
Broker-Dealers, and the Issuers shall have no further obligation to register
Registrable Notes (other than Private Exchange Notes and Exchange Notes as to
which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange
Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or policies have
been publicly disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of the
SEC, all
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Participating Broker-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange Notes in compliance
with the Securities Act.
The Issuers shall use their reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as is necessary to comply with applicable
law in connection with any resale of the Exchange Notes; PROVIDED, HOWEVER, that
such period shall not be required to exceed 90 days or such longer period if
extended pursuant to the last paragraph of Section 5 hereof (the "APPLICABLE
PERIOD").
If, prior to consummation of the Exchange Offer, the Initial Purchasers
hold any Notes acquired by them that have the status of an unsold allotment in
the initial distribution, the Issuers upon the request of the Initial Purchasers
shall simultaneously with the delivery of the Exchange Notes issue and deliver
to the Initial Purchasers, in exchange (the "PRIVATE EXCHANGE") for such Notes
held by any such Holder, a like principal amount of notes (the "PRIVATE EXCHANGE
NOTES") of the Issuers, guaranteed by the Guarantors, that are identical in all
material respects to the Exchange Notes except for the placement of a
restrictive legend on such Private Exchange Notes. The Private Exchange Notes
shall be issued pursuant to the same indenture as the Exchange Notes and bear
the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer, the Issuers shall:
(i) mail, or cause to be mailed, to each Holder of record
entitled to participate in the Exchange Offer a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) use their reasonable best efforts to keep the
Exchange Offer open for not less than 30 days after the date that notice of the
Exchange Offer is mailed to Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of Manhattan, The City of New
York;
(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last Business Day on
which the Exchange Offer remains open; and
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(v) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes
validly tendered and not validly withdrawn pursuant to the Exchange Offer and
the Private Exchange, if any;
(2) deliver to the Trustee for cancellation all
Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each Holder of Securities, Exchange Notes or Private Exchange Notes,
as the case may be, equal in principal amount to the Securities of such Holder
so accepted for exchange; PROVIDED that, in the case of any Securities held in
global form by a depositary, authentication and delivery to such depositary of
one or more replacement Securities in global form in an equivalent principal
amount thereto for the account of such Holders in accordance with the Indenture
shall satisfy such authentication and delivery requirement.
The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the SEC; (ii) no action or proceeding shall have been instituted or
threatened in any court or by any governmental agency which might materially
impair the ability of the Issuers to proceed with the Exchange Offer or the
Private Exchange, and no material adverse development shall have occurred in any
existing action or proceeding with respect to the Issuers; and (iii) all
governmental approvals shall have been obtained, which approvals the Issuers
deem necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture and which, in either case, has been qualified under the TIA or is
exempt from such qualification and shall provide that the Exchange Notes shall
not be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Securities shall vote and consent together on all matters
as one class and that none of the Exchange Notes, the Private Exchange Notes or
the Securities will have the right to vote or consent as a separate class on any
matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Issuers are not
permitted to effect the Exchange
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Offer, (ii) the Exchange Offer is not consummated within 180 days of the Issue
Date, (iii) the Initial Purchasers or any holder of Private Exchange Notes so
requests in writing to the Company at any time after the consummation of the
Exchange Offer, or (iv) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such Holder as an affiliate of the
Issuers within the meaning of the Securities Act) and so notifies the Company
within 30 days after such Holder first becomes aware of such restrictions, in
the case of each of clauses (i) to and including (iv) of this sentence, then the
Issuers shall promptly deliver to the Holders and the Trustee written notice
thereof (the "SHELF NOTICE") and shall file a Shelf Registration pursuant to
Section 3 hereof.
3. SHELF REGISTRATION
If at any time a Shelf Notice is delivered as contemplated by Section
2(c) hereof, then:
(a) SHELF REGISTRATION. The Issuers shall as promptly as practicable
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Notes (the
"INITIAL SHELF REGISTRATION"). The Issuers shall use their reasonable best
efforts to file with the SEC the Initial Shelf Registration on or prior to the
applicable Filing Date. The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable Notes for
resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuers shall not
permit any securities other than the Registrable Notes and the Guarantees to be
included in the Initial Shelf Registration or any Subsequent Shelf Registration
(as defined below).
The Issuers shall use their reasonable best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and, subject to Section 3(d), to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date that
is two years from the Issue Date or such shorter period ending when all
Registrable Notes covered by the Initial Shelf Registration have been sold in
the manner set forth and as contemplated in the Initial Shelf Registration or,
if applicable, a Subsequent Shelf Registration (as may be extended pursuant to
the last paragraph of Section 5 hereof, the "EFFECTIVENESS PERIOD"); PROVIDED,
HOWEVER, that the Effectiveness Period in respect of the Initial Shelf
Registration shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174 under
the Securities Act and as otherwise provided herein and shall be subject to
reduction to the extent
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that the applicable provisions of Rule 144(k) are amended or revised to reduce
the two year holding period set forth therein.
(b) WITHDRAWAL OF STOP ORDERS; SUBSEQUENT SHELF REGISTRATIONS. If the
Initial Shelf Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period (other than
because of the sale of all of the Notes registered thereunder), the Issuers
shall use their reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 30
days of such cessation of effectiveness amend such Shelf Registration Statement
in a manner to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration Statement pursuant to Rule 415
covering all of the Registrable Notes covered by and not sold under the Initial
Shelf Registration or an earlier Subsequent Shelf Registration (each, a
"SUBSEQUENT SHELF REGISTRATION"). If a Subsequent Shelf Registration is filed,
the Issuers shall use their reasonable best efforts to cause the Subsequent
Shelf Registration to be declared effective under the Securities Act as soon as
practicable after such filing and to keep such subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "SHELF REGISTRATION" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuers shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority in aggregate principal amount of the Registrable Notes
(or their counsel) covered by such Registration Statement with respect to the
information included therein with respect to one or more of such Holders, or by
any underwriter of such Registrable Notes with respect to the information
included therein with respect to such underwriter.
(d) BLACKOUT PERIOD. Notwithstanding anything to the contrary in this
Agreement, the Company, upon notice to the Holders of Registrable Notes, may
suspend the use of the Prospectus included in any Shelf Registration Statement
in the event that and for a period of time (the "BLACKOUT PERIOD") not to exceed
an aggregate of 60 days in any twelve month period if (1) the Board of Directors
of the Company determines that the disclosure of an event at such time could
reasonably be expected to have a material adverse effect on the business,
operations or prospects of the Company or (2) the disclosure otherwise relates
to a material business transaction which has not been publicly disclosed and the
Board of Directors of the Company determines that
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any such disclosure would jeopardize the success of such transaction;
PROVIDED, that, upon the termination of such Blackout Period, the Company
promptly shall notify the Holders of Registrable Notes that such Blackout
Period has been terminated.
4. ADDITIONAL INTEREST
(a) The Issuers and the Initial Purchasers agree that the Holders
will suffer damages if the Issuers fail to fulfill their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Issuers agree to pay,
jointly and severally, as liquidated damages, additional interest on the Notes
("ADDITIONAL INTEREST") under the circumstances and to the extent set forth
below (each of which shall be given independent effect):
a.if (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration has been filed on or prior to the
Filing Date applicable thereto or (B) notwithstanding that the Issuers have
consummated or will consummate the Exchange Offer, the Issuers are required to
file a Shelf Registration and such Shelf Registration is not filed on or prior
to the Filing Date applicable thereto, then, commencing on the day after any
such Filing Date, Additional Interest shall accrue on the principal amount of
the Notes at a rate of 0.50% per annum for the first 90 days immediately
following such applicable Filing Date, and such Additional Interest rate shall
increase by an additional 0.50% per annum at the beginning of each subsequent
90-day period; or
b.if (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration is declared effective by the SEC on
or prior to the Effectiveness Date applicable thereto or (B) notwithstanding
that the Issuers have consummated or will consummate the Exchange Offer, the
Issuers are required to file a Shelf Registration and such Shelf Registration is
not declared effective by the SEC on or prior to the Effectiveness Date
applicable to such Shelf Registration, then, commencing on the day after such
Effectiveness Date, Additional Interest shall accrue on the principal amount of
the Notes at a rate of 0.50% per annum for the first 90 days immediately
following the day after such Effectiveness Date, and such Additional Interest
rate shall increase by an additional 0.50% per annum at the beginning of each
subsequent 90-day period; or
c.if (A) the Issuers have not exchanged Exchange
Notes for all Notes validly tendered in accordance with the terms of the
Exchange Offer on or prior to the 180th day after the Issue Date or (B) if
applicable, a Shelf Registration has been declared effective and such Shelf
Registration ceases to be effective at any time during the Effectiveness Period
(other than during any Blackout Period relating to such Shelf Registration),
then Additional Interest shall accrue on the principal amount of the Notes at a
rate of 0.50% per annum for the first 90 days commencing on the (x) 181st day
after the Issue Date, in the case of (A) above, or (y) the day such Shelf
Registration ceases to be effective in
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the case of (B) above, and such Additional Interest rate shall increase by an
additional 0.50% per annum at the beginning of each such subsequent 90-day
period;
PROVIDED, HOWEVER, that (1) the Additional Interest rate on the Notes may not
accrue under more than one of the foregoing clauses (i) - (iii) at any one time
and at no time shall the aggregate amount of additional interest accruing exceed
in the aggregate 1.5% per annum and (2) Additional Interest shall not accrue
under clause (iii)(B) above during the continuation of a Blackout Period;
PROVIDED, FURTHER, HOWEVER, that (1) upon the filing of the applicable Exchange
Offer Registration Statement or the applicable Shelf Registration as required
hereunder (in the case of clause (i) above of this Section 4), (2) upon the
effectiveness of the Exchange Offer Registration Statement or the applicable
Shelf Registration Statement as required hereunder (in the case of clause (ii)
of this Section 4), or (3) upon the exchange of the Exchange Notes for all Notes
tendered (in the case of clause (iii)(A) of this Section 4), or upon the
effectiveness of the applicable Shelf Registration Statement which had ceased to
remain effective (in the case of (iii)(B) of this Section 4), Additional
Interest on the Notes in respect of which such events relate as a result of such
clause (or the relevant subclause thereof), as the case may be, shall cease to
accrue.
(b) The Issuers shall notify the Trustee within two Business Days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "EVENT DATE"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash semiannually on each January 1 and July 1 (to the
holders of record on the December 15 and June 15 immediately preceding such
dates), commencing with the first such date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360 day year
comprised of twelve 30 day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360. No
Additional Interest shall accrue with respect to Notes that are not Registrable
Notes.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes the sole damages that will be
suffered by Holders of Registrable Notes by reason of the occurrence of any of
the events described in Section 4(a)(i)-(iii) hereof.
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the
sale of the securities covered thereby in accordance with the intended method or
methods of disposition
<Page>
-13-
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Issuers hereunder each of the Issuers shall:
(a) Prepare and file with the SEC prior to the applicable Filing
Date a Registration Statement or Registration Statements as prescribed
by Section 2 or 3 hereof, and use its reasonable best efforts to cause
each such Registration Statement to become effective and remain
effective as provided herein; PROVIDED, HOWEVER, that if (1) such
filing is pursuant to Section 3 hereof or (2) a Prospectus contained in
the Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto from whom any Issuer has received
written notice that it will be a Participating Broker-Dealer in the
Exchange Offer, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto, the Issuers shall furnish to
and afford the Holders of the Registrable Notes covered by such
Registration Statement (with respect to a Registration Statement filed
pursuant to Section 3 hereof) or each such Participating Broker-Dealer
(with respect to any such Registration Statement), as the case may be,
their counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including copies of
any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five business days
prior to such filing). The Issuers shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the
Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Registration Statement, their counsel, or the
managing underwriters, if any, shall reasonably object on a timely
basis.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or
Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period, the Applicable Period or until
consummation of the Exchange Offer, as the case may be; cause the
related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant
to Rule 424; and comply with the provisions of the Securities Act and
the Exchange Act applicable to it with respect to the disposition of
all securities covered by such Registration Statement as so amended or
in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by an Participating
Broker-Dealer covered by any such Prospectus; PROVIDED that, to the
extent relating to a Shelf Registration Statement, none of the
foregoing shall be required during a Blackout Period. Other than during
any Blackout Period with respect to a Shelf Registration Statement, the
Issuers shall be deemed not to have used their reasonable best efforts
to keep a Registration
<Page>
-14-
Statement effective if any Issuer voluntarily takes any action that
would result in selling Holders of the Registrable Notes covered
thereby or Participating Broker-Dealers seeking to sell Exchange Notes
not being able to sell such Registrable Notes or such Exchange Notes
during that period unless such action is required by applicable law or
permitted by this Agreement.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto from whom any Issuer has received written
notice that it will be a Participating Broker-Dealer in the Exchange
Offer, notify the selling Holders of Registrable Notes (with respect to
a Registration Statement filed pursuant to Section 3 hereof), or each
such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within one business
day), and confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Issuers, one conformed copy
of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to
be incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Issuers
contained in any agreement (including any underwriting agreement)
contemplated by Section 5(m) hereof cease to be true and correct, (iv)
of the receipt by any Issuer of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or the Exchange
Notes to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction, or the initiation or threatening of any proceeding
for such purpose, (v) of the happening of any event, the existence of
any condition or any information becoming known that makes any
statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of
any changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any
<Page>
-15-
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (vi) of the Issuers' determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any
such order is issued, to use its reasonable best efforts to obtain the
withdrawal of any such order at the earliest practicable moment.
(e) Subject to Section 3(d), if a Shelf Registration is filed
pursuant to Section 3 and if requested during the Effectiveness Period
by the managing underwriter or underwriters (if any), the Holders of a
majority in aggregate principal amount of the Registrable Notes being
sold in connection with an underwritten offering or any Participating
Broker-Dealer, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters (if any), such Holders, any
Participating Broker-Dealer or counsel for any of them reasonably
request to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters
to be incorporated in such prospectus supplement or post-effective
amendment, and (iii) supplement or make amendments to such Registration
Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, furnish to each selling Holder of Registrable Notes (with
respect to a Registration Statement filed pursuant to Section 3 hereof)
and to each such Participating Broker-Dealer who so requests (with
respect to any such Registration Statement) and to their respective
counsel and each managing underwriter, if any, at the sole expense of
the Issuers, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
<Page>
-16-
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable Notes (with
respect to a Registration Statement filed pursuant to Section 3
hereof), or each such Participating Broker-Dealer (with respect to any
such Registration Statement), as the case may be, their respective
counsel, and the underwriters, if any, at the sole expense of the
Issuers, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if
any, and dealers, if any, in connection with the offering and sale of
the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and
any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its reasonable best efforts to
register or qualify, and to cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case
may be, the managing underwriter or underwriters, if any, and their
respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such
Registrable Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request in writing; PROVIDED, HOWEVER, that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Issuers agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; PROVIDED, HOWEVER, that no Issuer
shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any
<Page>
-17-
such jurisdiction where it is not then so subject or (C) subject itself
to taxation in excess of $1,000 in any such jurisdiction where it is
not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
(subject to applicable requirements contained in the Indenture) and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may request.
(j) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated by paragraph
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable (except, in the
case of a Shelf Registration, during a Blackout Period) prepare and
(subject to Section 5(a) hereof) file with the SEC, at the sole expense
of the Issuers, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold
thereunder (with respect to a Registration Statement filed pursuant to
Section 3 hereof) or to the purchasers of the Exchange Notes to whom
such Prospectus will be delivered by a Participating Broker-Dealer
(with respect to any such Registration Statement), any such Prospectus
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(k) Use its reasonable best efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the
case may be, to be rated with the appropriate rating agencies (unless
such Notes are already so rated), if so requested by the Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement or the Exchange Notes, as the case may be,
or the managing underwriter or underwriters, if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes in
<Page>
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a form eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Securities, and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in
order to expedite or facilitate the registration or the disposition of
such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Issuers (including any acquired
business, properties or entity, if applicable), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings of debt
securities similar to the Securities, and confirm the same in writing
if and when requested; (ii) obtain the written opinions of counsel to
the Issuers, and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters customarily covered
in opinions reasonably requested in underwritten offerings; (iii)
obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Issuers (and, if necessary, any other independent certified public
accountants of the Issuers, or of any business acquired by the Issuers,
for which financial statements and financial data are, or are required
to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings of
debt securities similar to the Securities; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the sellers and
underwriters, if any, than those set forth in Section 7 hereof (or such
other provisions and procedures reasonably acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement and the managing underwriter or
underwriters or agents, if any). The above shall be done at each
closing under such underwriting agreement, or as and to the extent
required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by any Initial Purchaser, any
selling Holder of
<Page>
-19-
such Registrable Notes being sold (with respect to a Registration
Statement filed pursuant to Section 3 hereof), or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and
any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer (with respect to any
such Registration Statement), as the case may be, or underwriter (any
such Initial Purchasers, Holders, Participating Broker-Dealers,
underwriters, attorneys, accountants or agents, collectively, the
"INSPECTORS"), upon written request, at the offices where normally
kept, during reasonable business hours, all pertinent financial and
other records, pertinent corporate documents and instruments of the
Issuers and subsidiaries of the Issuers (collectively, the "RECORDS"),
as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuers and any of their respective
subsidiaries to supply all information ("INFORMATION") reasonably
requested by any such Inspector in connection with such due diligence
responsibilities. Each Inspector shall agree in writing that it will
keep the Records and Information confidential and that it will not
disclose any of the Records or Information that any Issuer determines,
in good faith, to be confidential and notifies the Inspectors in
writing are confidential unless (i) the release of such Records or
Information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (ii) disclosure of such Records or
Information is necessary or advisable, in the opinion of counsel for
any Inspector, in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to, or
involving this Agreement or the Purchase Agreement, or any transactions
contemplated hereby or thereby or arising hereunder or thereunder, or
(iii) the information in such Records or Information has been made
generally available to the public other than by an Inspector or an
"affiliate" (as defined in Rule 405) thereof; PROVIDED, HOWEVER, that
prior notice shall be provided as soon as practicable to any Issuer of
the potential disclosure of any information by such Inspector pursuant
to clause (i) of this sentence and such Inspector shall allow the
Issuers to undertake appropriate action to prevent disclosure of such
Records or Information at the Issuers' expense.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a) hereof, as the case may
be, to be qualified under the TIA not later than the effective date of
the first Registration Statement relating to the Registrable Notes; and
in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such
changes (if any) to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use its reasonable best efforts to cause such trustee
to
<Page>
-20-
execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders with regard to any
applicable Registration Statement, a consolidated earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any fiscal
quarter (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company, after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(q) Upon consummation of the Exchange Offer or a Private
Exchange, if so requested by the Trustee, obtain an opinion of counsel
to the Issuers, in a form customary for underwritten transactions,
addressed to the Trustee for the benefit of all Holders of Registrable
Notes participating in the Exchange Offer or the Private Exchange, as
the case may be, that the Exchange Notes or Private Exchange Notes, as
the case may be, the related guarantee and the related indenture
constitute legal, valid and binding obligations of the Issuers,
enforceable against the Issuers in accordance with their respective
terms, subject to customary exceptions and qualifications. If the
Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Notes by Holders to the Company (or to such
other Person as directed by the Company), in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, the Issuers
shall mark, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be; in no event
shall such Registrable Notes be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(s) Use its reasonable best efforts to take all other steps
necessary to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement contemplated
hereby.
<Page>
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The Issuers may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Issuers such information
regarding such seller and the distribution of such Registrable Notes as the
Issuers may, from time to time, reasonably request. The Issuers may exclude from
such registration the Registrable Notes of any seller so long as such seller
fails to furnish such information within a reasonable time after receiving such
request. Each seller as to which any Shelf Registration is being effected agrees
to furnish promptly to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such seller
not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by its acquisition of such Registrable Notes or Exchange Notes to be sold
by such Participating Broker-Dealer, as the case may be, that, upon actual
receipt of any notice from the Company (i) of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof or
(ii) of the commencement of a Blackout Period, such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such Registration
Statement (other than any Exchange Offer Registration Statement in the case of a
Blackout Period) or Prospectus or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until (x) in the case of the
immediately preceding clause (i), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereof, or until it is advised in writing (the "ADVICE") by the
Issuers that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (y) in the case of
the immediately preceding clause (ii) the earlier of (A) 60 days of after the
commencement of such Blackout Period and (B) receipt of notice from the Company
that such Blackout Period has ended. In the event that the Issuers shall give
any such notice, each of the Applicable Period and the Effectiveness Period
shall be extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date
<Page>
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when the requirements of the immediately preceding clause (x) or (y), as the
case may be, shall have been met.
6. REGISTRATION EXPENSES
All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers (other than any underwriting discounts or
commissions) shall be borne by the Issuers, whether or not the Exchange Offer
Registration Statement or any Shelf Registration Statement is filed or becomes
effective or the Exchange Offer is consummated, including, without limitation,
(i) all registration and filing fees (including, without limitation, (A) fees
with respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Issuers and, in the case of a Shelf Registration, reasonable
fees and disbursements of one special counsel for all of the sellers of
Registrable Notes (exclusive of any counsel retained pursuant to Section 7
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any "cold comfort" letters required by or incident
to such performance), (vi) Securities Act liability insurance, if the Issuers
desire such insurance, (vii) fees and expenses of all other Persons retained by
the Issuers, (viii) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the Issuers
performing legal or accounting duties), (ix) the expense of any annual audit,
(x) any fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, and the obtaining of a
rating of the securities, in each case, if applicable, and (xi) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, indentures and any other documents
necessary in order to comply with this Agreement.
<Page>
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7. INDEMNIFICATION AND CONTRIBUTION. (a) Each of the Issuers agree,
jointly and severally, to indemnify and hold harmless each Holder of Registrable
Notes and each Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, and each Person, if any, who controls such Person or its
affiliates within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act (each, a "PARTICIPANT") against any losses, claims, damages or
liabilities to which any Participant may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
a. any untrue statement or alleged untrue
statement made by any Issuer contained in any application or any other document
or any amendment or supplement thereto executed by any Issuer based upon written
information furnished by or on behalf of any Issuer filed in any jurisdiction in
order to qualify the Notes under the securities or "Blue Sky" laws thereof or
filed with the SEC or any securities association or securities exchange (each,
an "APPLICATION");
b. any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if any of the
Issuers shall have furnished any amendments or supplements thereto) or any
preliminary prospectus; or
c. the omission or alleged omission to state,
in any Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if any of the Issuers shall have furnished any
amendments or supplements thereto) or any preliminary prospectus or any
Application or any other document or any amendment or supplement thereto, a
material fact required to be stated therein or necessary to make the statements
therein not misleading;
and will reimburse, as incurred, the Participant for any legal or other expenses
incurred by the Participant in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, (i) the Issuers will not be
liable in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Registration Statement (or
any amendment thereto) or Prospectus (as amended or supplemented if any of the
Issuers shall have furnished any amendments or supplements thereto) or any
preliminary prospectus or Application or any amendment or supplement thereto in
reliance upon and in conformity with information relating to any Participant
furnished to the Issuers by such Participant specifically for use therein, and
(ii) the Issuers shall not be liable to any Participant under the indemnity
agreement in this subsection (a) with respect to a preliminary prospectus to the
extent that any such loss, claim, damage or liability of such Participant
results from the fact that such
<Page>
-24-
Participant sold Notes to a Person as to whom it shall be established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus (or the Prospectus as then amended or supplemented if the
Issuers shall have furnished such Participant with such amendment or supplement
thereto on a timely basis), in any case where such delivery is required by
applicable law and the loss, claim, damage or liability of such Participant
results from an untrue statement or omission of a material fact contained in the
preliminary prospectus which was corrected in the Prospectus (or in the
Prospectus as then amended or supplemented if the Issuers shall have furnished
such Participant with such amendment or supplement thereto on a timely basis).
The indemnity provided for in this Section 7 will be in addition to any
liability that the Issuers may otherwise have to the indemnified parties. The
Issuers shall not be liable under this Section 7 for any settlement of any claim
or action effected without its prior written consent, which shall not be
unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees to
indemnify and hold harmless the Issuers, their directors, their officers and
each Person, if any, who controls the Issuers within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Application, Registration
Statement or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus, or (ii) the omission or the alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Participant,
furnished to the Issuers by the Participant, specifically for use therein; and
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses incurred by the Issuers or
any such director, officer or controlling person in connection with
investigating or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. The indemnity provided for in this Section 7 will be in addition to any
liability that the Participants may otherwise have to the indemnified parties.
The Participants shall not be liable under this Section 7 for any settlement of
any claim or action effected without their consent, which shall not be
unreasonably withheld. The Issuers shall not, without the prior written consent
of such Participant, effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Participant is or could have been
a party, or indemnity could have been sought hereunder by any Participant,
unless such settlement (A) includes an unconditional written release of the
Participants from all liability on claims that are the subject matter of
<Page>
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such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any Participant.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 7, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Participants who sold a majority in
interest of the Registrable Notes and Exchange Notes sold by all such
Participants in the case of paragraph (a) of this Section 7 or the Issuers in
the case of paragraph (b) of this Section 7, representing
<Page>
-26-
the indemnified parties under such paragraph (a) or paragraph (b), as the case
may be, who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. All fees and expenses reimbursed
pursuant to this paragraph (c) shall be reimbursed as they are incurred
following receipt of supporting documentation. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld), unless such
indemnified party waived in writing its rights under this Section 7, in which
case the indemnified party may effect such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuers on
the one hand and such Participant on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (before deducting expenses)
of the Notes received by the Issuers bear to the total gain (if any) excluding
expenses received by such Participant in connection with the sale of the Notes.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers on the one hand, or the Participants on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission, and any other equitable considerations appropriate in the
circumstances. The parties agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Participant shall
be obligated to make contributions hereunder that in the aggregate exceed the
total gain (if any) received by such Participant in connection with the sale of
the Notes, less the aggregate amount of any damages that such
<Page>
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Participant has otherwise been required to pay by reason of the untrue or
alleged untrue statements or the omissions or alleged omissions to state a
material fact, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this paragraph (d), each person, if any, who controls a Participant within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Participants, and each director of any
Issuer, each officer of any Issuer and each person, if any, who controls any
Issuer within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, shall have the same rights to contribution as the Issuers.
8. RULES 144 AND 144A
Each of the Issuers covenants and agrees that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time such Issuer is not required to file such reports, such Issuer
will, upon the request of any Holder or beneficial owner of Registrable Notes,
make available such information necessary to permit sales pursuant to Rule 144A.
Each of the Issuers further covenants and agrees, for so long as any Registrable
Notes remain outstanding that it will take such further action as any Holder of
Registrable Notes may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144(k) under the Securities Act and Rule 144A.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
<Page>
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10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuers have not, as of the
date hereof, and the Issuers shall not, after the date of this Agreement, enter
into any agreement with respect to any of their securities that is inconsistent
with the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Issuers' other issued and outstanding
securities under any such agreements. The Issuers will not enter into any
agreement with respect to any of their securities which will grant to any Person
piggy-back registration rights with respect to any Registration Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES. Except in compliance
with Section 10(c), the Issuers shall not, directly or indirectly, take any
action with respect to the Registrable Notes as a class that would adversely
affect the ability of the Holders of Registrable Notes to include such
Registrable Notes in a registration undertaken pursuant to this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, otherwise than with the prior
written consent of (I) the Company, and (II)(A) the Holders of not less than a
majority in aggregate principal amount of the then outstanding Registrable Notes
and (B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; PROVIDED, HOWEVER, that Section 7 and this Section
10(c) may not be amended, modified or supplemented without the prior written
consent of each Holder and each Participating Broker-Dealer (including any
person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) NOTICES. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
<Page>
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a. if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture, with a copy in like manner to the Initial
Purchasers as follows:
Deutsche Banc Alex. Brown Inc.
31 West 52nd Street
New York, New York 10019
Facsimile No.: (646) 324-7467
Attention: Corporate Finance
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
Attention: John A. Tripodoro, Esq.
b. if to the Initial Purchasers, at the address
specified in Section 10(d)(i);
c. if to the Issuers, at the address as follows:
c/o American Achievement Corporation
7211 Circle S Road
Austin, Texas 78745-6603
Facsimile No.: (512) 443-5213
Attention: Chief Executive Officer
with a copy to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Facsimile No.: (212) 593-5955
Attention: Michael R. Littenberg, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; one Business Day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
<Page>
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Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; PROVIDED, HOWEVER, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit ortherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER
LAW.
(i) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) SECURITIES HELD BY THE ISSUERS OR THEIR AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers or their affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
<Page>
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(k) THIRD-PARTY BENEFICIARIES. Holders of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(l) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
<Page>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN ACHIEVEMENT CORPORATION
By: /s/ David Fiore
--------------------------------------------
Name: David Fiore
Title: President and Chief Executive Officer
COMMEMORATIVE BRANDS, INC.
By: /s/ David Fiore
--------------------------------------------
Name: David Fiore
Title: President and Chief Executive Officer
CBI NORTH AMERICA, INC.
By: /s/ David Fiore
--------------------------------------------
Name: David Fiore
Title: President and Chief Executive Officer
TAYLOR SENIOR HOLDINGS CORP.
By: /s/ David Fiore
--------------------------------------------
Name: David Fiore
Title: President and Chief Executive Officer
TAYLOR PUBLISHING COMPANY
By: /s/ David Fiore
--------------------------------------------
Name: David Fiore
Title: President and Chief Executive Officer
TP HOLDING CORP.
By: /s/ David Fiore
--------------------------------------------
Name: David Fiore
Title: President and Chief Executive Officer
<Page>
-33-
TAYLOR PRODUCTION SERVICES, L.P.
By: Taylor Publishing Company,
its General Partner
By: /s/ David Fiore
--------------------------------------------
Name: David Fiore
Title: President and Chief Executive Officer
EDUCATIONAL COMMUNICATIONS, INC.
By: /s/ Sherice P. Bench
--------------------------------------------
Name: Sherice P. Bench
Title: Chief Financial Officer
<Page>
-34-
The foregoing Agreement is hereby confirmed
and accepted as of the date
first above written.
DEUTSCHE BANC ALEX. BROWN INC.
SCOTIA CAPITAL (USA) INC.
By: Deutsche Banc Alex. Brown Inc.
By: /s/ Tom Prior
-----------------------------
Name: Tom Prior
Title: Managing Director
By: /s/ Amelia Silver
--------------------------------
Name: Amelia Silver
Title: Managing Director
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & CO.
--------------------------------
(Goldman, Sachs & Co.)