<PAGE>
As filed with the Securities and Exchange Commission on March 11, 1998
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
WORLD COLOR PRESS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE ________________ 37-1167902
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
THE MILL
340 PEMBERWICK ROAD
GREENWICH, CONNECTICUT 06831
(Address of principal executive offices)
------------------------
SECOND AMENDED AND RESTATED STOCK OPTION PLAN OF WORLD COLOR PRESS, INC.
THE AMENDED AND RESTATED 1995 SENIOR MANAGEMENT STOCK OPTION PLAN
OF WORLD COLOR PRESS, INC.
(full title of the plans)
------------------------
Copy to:
JENNIFER L. ADAMS, ESQ. STEVEN DELLA ROCCA, ESQ.
Vice Chairman, Chief Legal and Latham & Watkins
Administrative Officer and Secretary 885 Third Avenue
World Color Press, Inc. Suite 1100
The Mill, 340 Pemberwick Road New York, New York 10022
Greenwich, Connecticut 06831 (212)906-1200
(203) 532-4200
(Name, address, including zip code,
and telephone number, including
area code, of agent for service)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered Offering Price Aggregate Registration
Per Share (1) Offering Price Fee
- --------------------------------- -------------- ------------------- ------------------- --------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 3,264,190 $14.408 $47,029,650 $13,873.75
=======================================================================================================
</TABLE>
(1) Solely for the purposes of calculating the amount of the registration fee
pursuant to Rule 457(h) on the basis of the weighted average ($14.408) of the
exercise prices for the 3,264,190 shares subject to options that are outstanding
under the Plans as of March 10, 1998.
<PAGE>
PART I
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference
The documents listed below have been filed by World Color Press, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission (the "Commission") and are incorporated in this Registration
Statement by reference:
a. The Company's Annual Report on Form 10-K for the fiscal year
ended December 29, 1996.
b. The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 30, June 29 and September 28, 1997, respectively.
c. All other reports filed by the Company pursuant to Section 13(a)
and 15(d) of the Securities Exchange Act of 1934 since the end of the
Company's fiscal year ended December 29, 1996.
d. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on January 22, 1996
pursuant to Section 12 of the Securities Exchange Act of 1934.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein, or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
Not required to be filed with this Registration Statement.
<PAGE>
Item 5. Interests of Named Experts and Counsel
The legality of the shares of the Company's common stock, par value $.01
per share (the "Common Stock"), offered hereby will be passed upon for the
Company by Latham & Watkins, New York, New York. Certain partners of Latham &
Watkins, members of their families, related persons and others, have an indirect
interest, through limited partnerships, in less than 1% of the Common Stock.
Such persons do not have the power to vote or dispose of such shares of Common
Stock. In addition, certain partners of Latham & Watkins, members of their
families, related persons and others, in the aggregate, own less than 1% of the
Common Stock. Such persons may have the power to vote or dispose of their
shares of Common Stock.
Item 6. Indemnification of Directors and Officers
As permitted by Delaware General Corporation Law, the Company's Amended and
Restated Certificate of Incorporation provides that a director of the Company
will not be personally liable to the Company or its stockholders for monetary
damages for any breach of fiduciary duty as a director, except for liability (i)
for breach of the duty of loyalty to the Company or its stockholders, (ii) for
acts or omission not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law (governing distributions to stockholders) or (iv) for any
transaction for which a director derives an improper personal benefit. In
addition, Section 145 of the General Corporation Law of Delaware and Article
VIII, Section 1 of the Company's Amended and Restated By-laws (the "By-laws"),
under certain circumstances, provide for the indemnification of the Company's
officers, directors, employees, and agents against liabilities which they may
incur in such capacities. A summary of the circumstances in which such
indemnification is provided for is contained herein, but that description is
qualified in its entirety by reference to Article VIII, Section 1 of the
By-laws.
In general, the Company will indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Company to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and except
that no such indemnification will be made in respect of any claim, issue or
matter as to which such person is adjudged to be liable for negligence or
misconduct in the performance of his duty to the Company unless and only to the
extent that the Court of Chancery of Delaware or the court in which such action
or suit was brought determines upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court deems proper.
Any indemnification under the previous paragraphs (unless ordered by a
court) will be made by the Company only as authorized in the specific case upon
a determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because
<PAGE>
he has met the applicable standard of conduct set forth above. Such
determination shall be made (1) by the board of directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding or (2) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (3) by the stockholders. To the extent that a director,
officer, employee or agent of the Company is successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Company in advance of the final disposition of
such action, suit or proceeding as authorized by the board of directors in the
manner provided above upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it is
ultimately determined that he is entitled to be indemnified by the Company as
authorized by the By-laws.
The indemnification provided by Article VIII, Section 1 of the By-laws is
not exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and will continue as to a person who
has ceased to be a director, officer, employee or agent and will inure to the
benefit of the heirs, executors and administrators of such a person.
The board of directors may authorize, by a vote of a majority of a quorum
of the board of directors, the Company to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against such
liability under the By-laws.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefor, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
<PAGE>
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Second Amended and Restated Stock Option Plan of World Color
Press, Inc. (incorporated by reference to Exhibit 10.9 to World
Color's Annual Report on Form 10-K for the fiscal year ended
December 25, 1994).
4.2 Form of World Color Stock Option Agreement (incorporated by
reference to Exhibit 10.25 to World Color's Registration
Statement on Form S-1 (No. 33-59490) under the Securities Act of
1933 (the "World Color Debt S-1")).
4.3 The Amended and Restated 1995 Senior Management Stock Option Plan
of World Color Press, Inc. (incorporated by reference to Exhibit
10.3 to World Color's Quarterly Report on Form 10-Q for the
quarter ended June 29, 1997).
4.4 Form of 1995 Senior Management Stock Option Agreement
(incorporated by reference to Exhibit 10.26 to the World Color
Equity S-1).
4.5 Form of Unitholders Agreement (incorporated by reference to
Exhibit 10.21 to the World Color Debt S-1).
4.6 Form of Optionholders Agreement between World Color and certain
Optionholders (incorporated by reference to Exhibit 10.23 to the
World Color Debt S-1).
4.7 Form of Stock Option Agreement between World Color and certain
Optionholders.
5.1 Opinion of Latham & Watkins.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
24.1 Power of Attorney (incorporated in the signature page to the
Registration Statement).
Item 9. Undertakings
a. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
<PAGE>
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
froth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(ii) and (a)(1)(iii)
shall not apply to information contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
b. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
c. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is
<PAGE>
asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Greenwich, Connecticut, on March 11, 1998.
WORLD COLOR PRESS, INC.
By: /s/ Jennifer L. Adams
---------------------------
Vice Chairman, Chief Legal and
Administrative Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, hereby constitutes and appoints Robert G. Burton, Jennifer L. Adams and
Thomas Quinlan and each acting alone, his true and lawful attorneys-in-fact and
agents, with full power of resubstitution and substitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
or supplements to this Registration Statement and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
necessary or appropriate to be done with respect to this Registration Statement
or any amendments or supplements hereto in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in their
respective capacities with World Color Press, Inc. and on the dates indicated.
SIGNATURES TITLES DATE
- ---------- ------ ----
/s/ Robert G. Burton Chairman of the Board March 11, 1998
- ------------------------- of Directors, President
and Chief Executive
Officer (Principal
Executive Officer)
/s/ Marc L. Reisch Director, Group President, March 11, 1998
- ------------------------- Sales and Chief Operating
Officer
/s/ Gerald S. Armstrong Director March 11, 1998
- -------------------------
/s/ Patrice M. Daniels Director March 11, 1998
- -------------------------
/s/ Henry R. Kravis Director March 11, 1998
- -------------------------
/s/ Alexander Navab, Jr. Director March 11, 1998
- -------------------------
/s/ George R. Roberts Director March 11, 1998
- -------------------------
/s/ Scott M. Stuart Director March 11, 1998
- -------------------------
/s/ Dr. Mark J. Griffin Director March 11, 1998
- -------------------------
<PAGE>
WORLD COLOR PRESS, INC.
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
4.1 Second Amended and Restated Stock Option Plan of World Color Press,
Inc. (incorporated by reference to Exhibit 10.9 to World Color's
Annual Report on Form 10-K for the fiscal year ended December 25,
1994).
4.2 Form of World Color Stock Option Agreement (incorporated by reference
to Exhibit 10.25 to World Color's Registration Statement on Form S-1
(No. 33-59490) under the Securities Act of 1933 (the "World Color Debt
S-1")).
4.3 The Amended and Restated 1995 Senior Management Stock Option Plan of
World Color Press, Inc. (incorporated by reference to Exhibit 10.3 to
World Color's Quarterly Report on Form 10-Q for the quarter ended June
29, 1997),
4.4 Form of 1995 Senior Management Stock Option Agreement (incorporated by
reference to Exhibit 10.26 to the World Color Equity S-1).
4.5 Form of Unitholders Agreement (incorporated by reference to Exhibit
10.21 to the World Color Debt S-1).
4.6 Form of Optionholders Agreement between World Color and the
Optionholders (incorporated by reference to Exhibit 10.23 to the World
Color Debt S-1).
4.7 Form of Stock Option Agreement between World Color and certain
Optionholders.
5.1 Opinion of Latham & Watkins.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
24.1 Power of Attorney (incorporated in the signature page to the
Registration Statement).
<PAGE>
EXHIBIT 4.7
STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") dated March 5, 1998 and
effective as of October 31, 1997, is made by and between World Color Press,
Inc., a Delaware corporation ("WCP"), and __________________, an individual with
a residence at _________________ (the "Optionholder"). WCP and the Optionholder
are sometimes herein referred to collectively as the "Parties."
RECITALS
A. The Optionholder is a senior management employee of WCP.
B. WCP has established the Second Amended and Restated Stock Option Plan
of World Color Press, Inc. (the "Option Plan"), and, pursuant to the Option
Plan, WCP wishes to afford the Optionholder the opportunity to purchase shares
of its common stock, par value $.01 per share (the "Common Stock"). The term
"Options" as used in this Agreement shall include all Options granted to the
Optionholder pursuant to this Agreement. Upon exercise of Options granted
hereunder in accordance with the terms hereof and issuance of Common Stock upon
such exercise the Optionholder will become the holder of "Option Shares."
C. The Committee appointed to admnisiter the Option Plan has determined
that it would be to the advantage and best interest of WCP and its stockholders
to grant the Options provided for herein to the Optionholder as an inducement to
continue to perform services for the Company (as hereinafter defined) and as an
incentive for increased efforts during such service, and has advised WCP thereof
and instructed the undersigned officer to issue said Options. For the purposes
of this Agreement, the "Company" shall mean WCP, together with its subsidiaries.
D. This Agreement is one of several agreements ("Other Stock Option
Agreements") which have been, or which in the future will be, entered into
between WCP and other holders of options to purchase shares of Common Stock of
the Company granted from time to time under the Option Plan or otherwise
(collectively, the "Other Optionholders").
<PAGE>
AGREEMENTS
1. GRANT OF OPTIONS. In consideration of the Optionholder's agreement to
provide services to the Company and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, WCP irrevocably
grants to the Optionholder on the date hereof, effective as of October 31, 1997
and with a Vesting Reference Date of October 1, 1997 (the "Vesting Date") an
aggregate of ______________ Options, each to purchase initially one share of
Common Stock (shares issuable upon exercise of the Options are collectively
referred to herein as the "Option Shares"), upon the terms and conditions set
forth in this Agreement. This Agreement and the grant of the Options herein are
subject to all of the terms and provisions of the Option Plan (which terms and
provisions are incorporated herein by reference and are expressly made part of
this Agreement). In the event of any conflict between the provisions of this
Agreement and the Option Plan, the terms of the Option Plan shall govern. All
capitalized terms used herein without definition and defined in the Option Plan
have the meanings ascribed to such terms in the Option Plan. The Options
granted hereby are designated non-qualified stock options and are
nontransferable except as otherwise expressly set forth in the Option Plan or in
this Agreement.
2. EXERCISE PRICE. The purchase price of the Option Shares upon exercise
of any of the Options (the "Exercise Price" or "Option Price Per Share") shall
initially be $26.75 per share, without commission or other charge.
<PAGE>
3. EXERCISABILITY
(a) The Options shall become exercisable as follows:
Date Options Become Exercisable Exercisable Percentage of Options
- ------------------------------- ---------------------------------
From Vesting Date until the first
anniversary of the Vesting Date 0%
On and after the first anniversary
of the Vesting Date until the
second anniversary of the
Vesting Date 20%
On and after the second anniversary
of the Vesting Date until the third
anniversary of the Vesting Date 40%
On and after the third anniversary
of the Vesting Date until the
fourth anniversary of the
Vesting Date 60%
On and after the fourth anniversary
of the Vesting Date until the fifth
anniversary of the Vesting Date 80%
On and after the fifth anniversary
of the Vesting Date 100%
(b) Notwithstanding the foregoing, 100% of the Options shall become
exercisable (but only to the extent such Option has not otherwise then
terminated or become unexercisable) immediately prior to the occurrence of a
Change of Control (as hereinfater defined); provided, however, that as a
condition subsequent to the acceleration of the exercisability of the Option
pursuant to this paragraph, the Change of Control shall be consummated. In the
event the contemplated Change of Control is not consummated, the acceleration of
exercisability and the exercise, if any, of the Option shall be void AB INITIO.
(c) Notwithstanding the foregoing, all Options that are not exercisable at
the time of the termination of employment of the Optionholder for any reason
other than by reason of the Optionholder's death, Permanent Disability or
Permitted Retirement (each as hereinafter defined) shall be automatically and
immediately cancelled without any payment or other action by the Company. In
the event of and upon the termination of the Optionholder's employment because
of the Optionholder's death, Permanent Disability or Permitted Retirement, all
of the Optionholder's Options granted hereunder shall immediately become
exercisable.
(d) For purposes of this Agreement the following definitions shall apply:
"Cause" shall mean (i) the Optionholder's failure to render services to the
Company, which failure amounts to a material and flagrant neglect of such
duties, (ii) the Optionholder's willful engagement in conduct that is, or that
he or she intends to be, materially injurious to the Company, (iii) the
Optionholder's commission of an act of fraud, conversion, misappropriation
(including, but not limited to, the unauthorized use or disclosure of
confidential or proprietary information of the Company), embezzlement or felony,
(iv) a conviction of or guilty plea or his or her confession to any fraud,
conversion, misappropriation, embezzlement or felony or (v) the Optionholder's
repeated taking of any action prohibited by the Board, PROVIDED that he or she
has received at least one written notice of having taken an action so
prohibited; "Good Reason" shall mean, in each case without the Optionholder's
consent, (i) a material adverse change, when viewed in the aggregate, in the
Optionholder's duties, responsibilities, base compensation, bonus eligibility
and/or other material matters directly related to his or her employment with the
<PAGE>
Company or (ii) the Optionholder's relocation by the Company to a location more
than 100 miles from the Optionholder's immediately prior location.
(e) For purposes of this Agreement, the Optionholder shall be deemed to
have a "Permanent Disability" if he or she is unable to engage in the activities
required by employment by reason of any medically determined physical or mental
impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months, as
reasonably determined by the Board in good faith and in its discretion.
4. MANNER OF EXERCISE
(a) PARTIAL EXERCISE. An exercisable Option may be exercised at any time
prior to the time when the Option becomes unexercisable under Section 10;
PROVIDED that each exercise shall be for not less than 50 Option Shares and
shall be for whole Option Shares only.
(b) MANNER OF EXERCISE. An exercisable Option shall be deemed exercised
upon delivery of all of the following to the Secretary of the Company or his or
her office:
(i) A written notice complying with the applicable rules established
by the Committee stating that the Option is exercised. The notice shall be
signed by the Optionholder or other person then entitled and authorized to
exercise the Option;
(ii) Such representations and documents as the Committee, in its
discretion, deems necessary, appropriate or advisable to effect compliance
with all applicable provisions of the Securities Act of 1933, as amended
(the "Act"), and any other federal or state securities laws, rules or
regulations. The Committee may, in its discretion, also take whatever
additional actions it deems necessary, appropriate or advisable to effect
such compliance, including, without limitation, placing legends on share
certificates and issuing stop-transfer notices to transfer agents and
registrars;
(iii) In the event that the Option shall be exercised by any person
or persons other than the Optionholder, appropriate proof of the right of
such person or persons to exercise the Option; and
(iv) Full payment (by certified or bank check or by wire transfer of
immediately available funds) to the Secretary of the Company for the Option
Shares with respect to which Options are exercised and any applicable
withholding taxes. In its discretion, however, the Committee may (A) allow
a delay in payment up to thirty (30) days from the date the Option is
exercised; (B) allow payment, in whole or in part, through the delivery of
shares of Common Stock owned by the Optionholder (including, subject to
Section 4(c), Option Shares issuable upon such exercise), duly endorsed for
transfer to WCP, having an Aggregate Market Value (as hereinafter defined)
on the date of delivery equal to the aggregate Exercise Price of the
Options; (C) allow payment, in whole or in part, through the delivery of
property of any kind which constitutes good and valuable consideration;
(D) allow payment, in whole or in part, through the delivery of a full
recourse promissory note bearing interest (at no less than such rate as
shall then preclude the imputation of interest under the Code) and payable
upon such terms as may
<PAGE>
be prescribed by the Committee; or (E) allow payment through any
combination of the consideration provided in the foregoing subparagraphs
(B), (C) and (D). In the case of a promissory note, the Committee may also
prescribe the form of such note and the security to be given for such note.
No Option may be exercised, however, by delivery of a promissory note or by
a loan from the Company when or where such loan or other extension of
credit is prohibited by law.
(c) CERTAIN TIMING REQUIREMENTS. At the discretion of the Committee,
shares of Common Stock issuable to the Optionholder upon exercise of the Option
may be used to satisfy the Option Exercise Price or the tax withholding
consequences of such exercise, but in the case of persons subject to Section 16
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") shares
of Common Stock maybe so used only (i) during the period beginning on the third
business day following the date of release of the quarterly or annual summary
statement of sales and earnings of the Company and ending on the twelfth
business day following such date or (ii) pursuant to an irrevocable written
election by the Optionholder to use shares of Common Stock issuable to the
Optionholder upon exercise of the Option to pay all or part of the Option
Exercise Price or the withholding taxes made at least six months prior to the
payment of such Option Exercise Price or withholding taxes.
(d) RIGHTS AS STOCKHOLDERS. The holders of Options shall not be, nor have
any of the rights or privileges of, stockholders of WCP in respect of any shares
purchasable upon the exercise of any Option unless and until certificates
representing such shares have been issued by the Company to such holders.
(e) CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES. WCP may postpone the
time of delivery of the certificates for Option Shares for such additional time
as WCP shall deem necessary or desirable to enable it to comply with the listing
requirements of any securities exchange with which the Common Stock may be
listed or the requirements of the Act or the Exchange Act, or any rules and
regulations of the Securities and Exchange Commission promulgated thereunder, or
the requirements of applicable state laws relating to the authorization,
issuance or sale of securities.
5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE OPTIONHOLDER
(a) The Optionholder hereby represents and warrants that he or she is
acquiring the Options and any Option Shares issued upon exercise thereof for
investment for his or her own account and not with a view to, or for resale in
connection with, the distribution or other disposition thereof. The
Optionholder acknowledges and affirms Section 7.1 of the Option Plan. The
Optionholder further agrees and acknowledges that he or she will not, directly
or indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of (any such act being referred to herein as a "transfer") any Option
Shares unless such transfer complies with Section 6 of this Agreement and such
transfer is pursuant to (i) an effective registration statement under the Act
and the rules and regulations thereunder and in compliance with any applicable
state securities or "blue sky" laws, or (ii) (A) an opinion of counsel to the
Optionholder (which counsel shall be reasonably acceptable to WCP) furnished to
WCP and satisfactory in form and substance to WCP that no such registration is
required because of the availability of an exemption from registration under the
Act and (B) if the Optionholder is a citizen or resident of
<PAGE>
any country other than the United States, or the Optionholder desires to effect
any Transfer in any such country, counsel for the Optionholder (which counsel
shall be reasonably satisfactory to WCP) shall have furnished WCP with an
opinion or other advice satisfactory in form and substance to WCP to the effect
that such Transfer will comply with the securities laws of such jurisdiction.
(b) Notwithstanding the foregoing, WCP acknowledges and agrees that any of
the following transfers of Option Shares are deemed to be in compliance with the
Act and this Agreement and no opinion of counsel is required in connection
therewith:
(i) A transfer of Option Shares made pursuant to Sections 7 or 8 of
this Agreement;
(ii) A transfer of Option Shares upon the death of the Optionholder to
his or her executors, administrators, testamentary trustees, legatees or
beneficiaries (the "Optionholder's Estate") or a transfer to the executors,
administrators, testamentary trustees, legatees or beneficiaries of a
person who has become a holder of Option Shares in accordance with the
terms of this Agreement; PROVIDED that such transfer is made expressly
subject to this Agreement and that the transferee agrees in writing to be
bound by the terms and conditions of this Agreement as if such transferee
were the Optionholder;
(iii) A transfer of Option Shares made in compliance with the federal
securities laws to a trust or custodianship the beneficiaries of which, a
partnership (general or limited) the partners of which, or a limited
liability company the members of which, may include only the Optionholder,
his or her spouse or his or her lineal descendants by blood or adoption
(the "Optionholder's Trust") or a transfer of Option Shares made after the
third anniversary of the Vesting Date to such a trust, partnership or
limited liability corporation by a person who has become a holder of such
Option Shares in accordance with the terms of this Agreement; PROVIDED that
such transfer is made expressly subject to this Agreement and that the
transferee agrees in writing to be bound by the terms and conditions of
this Agreement as if such transferee were the Optionholder; and
(iv) A pledge or hypothecation by the Optionholder or the
Optionholder's Trust of the Option Shares or his or her or its interest
therein to a bank or other financial institution (a "Pledgee") reasonably
satisfactory to WCP to secure a loan by such Pledgee to the Optionholder or
the Optionholder's Trust, as the case may be, for the purchase of the
Option Shares or the refinancing of any indebtedness incurred for the
purchase of the Option Shares; PROVIDED that (A) such Pledgee agrees in
writing to accept the Option Shares or interest therein subject to all of
the terms and conditions of this Agreement as if such Pledgee were the
Optionholder and to notify WCP upon the happening of any default or event
of default under the terms of the agreement with the Optionholder or the
Optionholder's Trust, as the case may be, relating to such pledge or
hypothecation and (B) the Optionholder or the Optionholder's Trust, as the
case may be, delivers to the Board a copy of all proposed documentation
relating to such pledge or hypothecation at least ten days before the
scheduled date of such pledge or hypothecation, and prior to
<PAGE>
such scheduled date WCP has confirmed that such documentation is reasonably
satisfactory to it in form and substance.
(c) The certificate (or certificates) representing the Option Shares shall
bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS
SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION COMPLIES WITH THE PROVISIONS OF STOCK OPTION AGREEMENT
DATED __________ ___, 19__ BETWEEN WORLD COLOR PRESS, INC. ("WCP") AND
THE OPTIONHOLDER NAMED ON THE FACE HEREOF (A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL OFFICE OF WCP). EXCEPT AS OTHERWISE PROVIDED IN SUCH
AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION OF THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE
MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND IN COMPLIANCE
WITH ANY APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS OR (B) (I) IF
WCP HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE
HOLDER THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE
ACT AND THE RULES AND REGULATIONS IN EFFECT THEREUNDER, AND IN
COMPLIANCE WITH APPLICABLE PROVISIONS OF STATE SECURITIES LAWS, AND
(II) IF THE HOLDER IS A CITIZEN OR RESIDENT OF ANY COUNTRY OTHER THAN
THE UNITED STATES, OR THE HOLDER DESIRES TO EFFECT ANY SUCH
TRANSACTION IN ANY SUCH COUNTRY, THE COMPANY HAS BEEN FURNISHED WITH A
SATISFACTORY OPINION OR OTHER ADVICE OF COUNSEL FOR THE HOLDER THAT
SUCH TRANSACTION WILL NOT VIOLATE THE LAWS OF SUCH COUNTRY."
(d) The Optionholder acknowledges that he or she has been advised that
(i) the issuance of the Option Shares upon exercise of the Options will not have
been registered under the Act, (ii) the Option Shares must be held indefinitely
and the Optionholder must continue to bear the economic risk of the investment
in the Option Shares unless they are subsequently registered under the Act or an
exemption from such registration is available, (iii) no assurance can be given
that there will be any public market for the Option Shares, (iv) no assurance
can be given that Rule 144 promulgated under the Act will be available with
respect to the sales of any securities of WCP, and WCP has made no covenant to
make such Rule available, (v) when and if any of the Option Shares may be
disposed of without registration in reliance on Rule 144, such disposition can
be made only in limited amounts in accordance with the terms and conditions of
such Rule, (vi) if the Rule 144 exemption is not available, public sale without
registration will require compliance with some other exemption under the Act,
(vii) a restrictive legend in the
<PAGE>
form heretofore set forth shall be placed on the certificates representing the
Option Shares and (viii) a notation shall be made in the appropriate records of
WCP and/or the transfer agent for the Common Stock indicating that the Option
Shares are subject to restriction on transfer and appropriate stop transfer
restrictions will be issued to WCP's stock transfer agent with respect to the
Option Shares.
(e) If any of the Option Shares are to be disposed of in accordance with
Rule 144 under the Act or otherwise, the Optionholder shall promptly notify WCP
of such intended disposition and shall deliver to WCP at or prior to the time of
such disposition such documentation as WCP may reasonably request in connection
with such sale and, in the case of a disposition pursuant to Rule 144, shall
deliver to WCP an executed copy of any notice on Form 144 required to be filed
with the Securities and Exchange Commission ("SEC").
(f) The Optionholder agrees that, if any securities of WCP are offered to
the public pursuant to an effective registration statement under the Act, the
Optionholder will not effect any public sale or distribution of any Option
Shares not covered by such registration statement within seven days prior to, or
within 180 days (or in an underwritten public offering, any such lesser period
as the underwriters may agree to) after, the effective date of such registration
statement, unless otherwise agreed to in writing by WCP; PROVIDED that the
Optionholder shall have been notified in writing of such offering.
6. RESTRICTION ON TRANSFER OF OPTION SHARES
(a) Except for transfers otherwise permitted by this Agreement, the
Optionholder agrees that he or she will not transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any Option Shares at any time prior to the
fifth anniversary of the Vesting Date. The restrictions on transfer provided in
this Section 6 shall not apply as of any date (the "Calculation Date") to a
number of Option Shares (the "Unrestricted Shares") held in the aggregate by the
Optionholder, the Optionholder's Trust, the Optionholder's Estate and all
Pledgees equal to the excess, if any, of (i) the product of (A) the total number
of Option Shares covered by all Options received by the Optionholder on the
Vesting Date and (B) the Vested Percentage as of such date over (ii) the total
number of Option Shares transferred by the Optionholder, the Optionholder's
Trust, the Optionholder's Estate and all Pledgees after the date hereof, other
than pursuant to transfers permitted by clauses (ii), (iii) and (iv) of Section
5(b) hereof. No transfer of any such shares in violation hereof shall be made
or recorded on the books of WCP (or any transfer agent or registrar therefor)
and any such transfer shall be null and void and of no force or effect.
(b) For purposes of this Agreement, the "Vested Percentage" with respect
to Option Shares shall be determined as follows:
CALCULATION DATE VESTED PERCENTAGE
- ----------------- -----------------
From Vesting Date until the first
anniversary of the Vesting Date 0%
On and after the first anniversary
of the Vesting Date until the second
anniversary of the Vesting Date 20%
<PAGE>
On and after the second anniversary
of the Vesting Date until the third
anniversary of the Vesting Date 40%
On and after the third anniversary
of the Vesting Date until the fourth
anniversary of the Vesting Date 60%
On and after the fourth anniversary
of the Vesting Date until the fifth
anniversary of the Vesting Date 80%
On and after the fifth anniversary
of the Vesting Date 100%
7. OPTIONHOLDER'S RIGHT TO RESELL OPTION SHARES AND OPTIONS TO WCP UPON
DEATH OR DISABILITY
(a) Except as otherwise provided herein, if on or before the fifth
anniversary of the Vesting Date, (i) the Optionholder dies or becomes
Permanently Disabled (as hereinafter defined) and (ii) at the time of his or her
death or Permanent Disability, the Optionholder (A) was still in the employ of
the Company, (B) had retired from the Company at age 65 or over (or such other
age as may be approved by the Board) after having been employed by the Company
continuously for at least three years after the Vesting Date (a "Permitted
Retirement"), or (C) had terminated employment with Good Reason (as hereinafter
defined), then the Optionholder, the Optionholder's Estate and/or the
Optionholder's Trust, as the case may be, shall have the right for six months
from the date of death or Permanent Disability to elect on one occasion (x) to
sell to WCP, and WCP shall be required to purchase all or any portion of the
Option Shares then held by the Optionholder, the Optionholder's Estate and/or
the Optionholder's Trust, as the case may be, at the Section 7 Repurchase Price,
as determined in accordance with Section 9 and/or (y) to require WCP to pay to
the Optionholder an amount equal to the Option Excess Price (as defined in
Section 10(a)) determined on the basis of the Section 7 Repurchase Price as
provided in Section 9 with respect to the termination of all or any portion of
outstanding Options held by the Optionholder.
(b) The Optionholder, the Optionholder's Estate and/or the Optionholder's
Trust, as the case may be, shall send written notice to WCP of his, her or its
election to sell such Option Shares and/or to terminate such Options in exchange
for the payment referred to in the preceding subsection (a) (the "Redemption
Notice") within the six-month period referred to in Section 7(a). The
completion of the purchase shall take place at the principal office of WCP on
the 15th business day after the receipt by WCP of a properly given Redemption
Notice. The Section 7 Repurchase Price and any payment with respect to the
Options as described above shall be paid by delivery to the Optionholder, the
Optionholder's Estate or the Optionholder's Trust, as the case may be, of a
certified or bank check or checks in the appropriate amount payable to the order
of the Optionholder, the Optionholder's Estate or the Optionholder's Trust, as
the case may be, against delivery of certificates or other instruments
representing the Option Shares so purchased and appropriate documents canceling
the Options so terminated, appropriately endorsed or executed by the
Optionholder, the Optionholder's Estate or the Optionholder's Trust, or his, her
or its duly authorized representative.
(c) Notwithstanding any other provision of this Section 7 and subject to
Section 13, if there exists and is continuing a default or any event which after
a notice or lapse of time or both would cause a default under any loan,
guarantee or other agreement under which WCP or any of
<PAGE>
its Subsidiaries has borrowed money or such repurchase would result in any
default or event of default on the part of the WCP or any of its Subsidiaries
under any such agreement or if the capital of WCP or any of its Subsidiaries is
then impaired or would be impaired as a result of such repurchase or such
repurchase would otherwise violate the General Corporation Law of the State of
Delaware (each such occurrence being an "Event"), WCP shall not be obligated to
repurchase any of the Option Shares from, or to make any payment with respect to
the Options to, the Optionholder, the Optionholder's Estate and/or the
Optionholder's Trust, as the case may be until the first business day which is
five business days after all of the foregoing Events have ceased to exist (the
"Repurchase Eligibility Date"), PROVIDED that (i) the Section 7 Repurchase Price
shall be calculated as of the time of the delivery of a Redemption Notice in
accordance with Section 7(b) and (ii) the number of Option Shares subject to
repurchase under this Section 7(c) and the number of Exercisable Option Shares
(as defined in Section 10(a)) for purposes of calculating the Option Excess
Price payable under Section 7(a), shall be that number of Option Shares and
Exercisable Option Shares, respectively, held by the Optionholder, the
Optionholder's Estate or the Optionholder's Trust, as the case may be, at the
time of the delivery of a Redemption Notice in accordance with Section 7(b).
All Options exercisable as of the date of a Redemption Notice shall continue to
be exercisable until the repurchase pursuant to such Redemption Notice.
(d) Notwithstanding any other provision of this Section 7 to the contrary,
the Optionholder, the Optionholder's Estate or the Optionholder's Trust, as the
case may be, shall have the right to withdraw any Redemption Notice which has
been pending for 120 or more days and which has remained unsatisfied because of
the provisions of Section 7(c).
8. WCP'S RIGHT TO REPURCHASE OPTION SHARES AND TERMINATE OPTIONS OF
OPTIONHOLDER
(a) If on or prior to the fifth anniversary of the Vesting Date, (i) the
Optionholder's employment with WCP (and, if applicable, its Subsidiaries) is
voluntarily or involuntarily terminated for any reason whatsoever, with or
without Cause or Good Reason, (ii) the beneficiaries of an Optionholder's Trust
shall include any person or entity other than the Optionholder, his or her
spouse or his or her lineal descendants by blood or adoption, (iii) the
Optionholder shall effect a transfer of any of the Option Shares other than as
permitted by this Agreement or (iv) there shall occur a transfer of Option
Shares then held by the Optionholder pursuant to a bankruptcy proceeding, levy,
property settlement or disposition pursuant to law incident to marital
separation or divorce (alternatively, a "Call Event"), then WCP shall have the
right to purchase all, but not less than all, of the Option Shares then held by
the Optionholder, the Optionholder's Estate, the Optionholder's Trust and all
Pledgees at the Section 8 Repurchase Price determined in accordance with Section
9 hereof; PROVIDED that the Call Event described in clause (iv) of this Section
8 shall entitle WCP to repurchase only the number of Option Shares that are the
subject of the transfer resulting in the Call Event; and PROVIDED, FURTHER, that
if the Call Event results from the death, Permanent Disability or Permitted
Retirement of the Optionholder, or the termination of the Optionholder's
employment by the Optionholder with Good Reason or by the Company without Cause,
WCP shall have the right to purchase all, but not less than all, of the Option
Shares held by the Optionholder, the Optionholder's Estate, the Optionholder's
Trust and any Pledgee at the Section 7 Repurchase Price. WCP shall have a
period of 75 days after the date of a Call Event (or the date of WCP's knowledge
that a Call
<PAGE>
Event described in clause (ii) or (iii) above has occurred) in which to give
notice in writing to the Optionholder of WCP's exercise of such repurchase
election (the "Call Notice"). If (X) the Optionholder holds Option Shares and
Options and WCP exercises its right to repurchase Option Shares pursuant to this
Section 8 or (Y) the Optionholder holds only Options and WCP elects (in
accordance with the requirements of the Call Notice), WCP shall also pay the
Optionholder an amount equal to the Option Excess Price determined on the basis
of the Section 8 Repurchase Price or Section 7 Repurchase Price, as applicable,
with respect to the termination of (A) if the Call Event is described in clause
(i), (ii) or (iii) above, all, but not less than all, of the then exercisable
outstanding Options held by the Optionholder and (B) if the Call Event is
described in clause (iv) above, a PRO RATA portion (based on the number of
Option Shares that are the subject of the transfer) of the then exercisable
outstanding Options held by the Optionholder.
(b) Subject to Section 13 hereof, the completion of the purchases pursuant
to Section 8 (a) shall take place at the principal office of WCP on the 15th
business day after the giving of notice of the exercise by WCP of its right to
purchase Option Shares and/or to terminate Options. All payments as described
above shall be made by delivery to the Optionholder, the Optionholder's Estate,
the Optionholder's Trust and/or the Pledgee, as the case may be, of a certified
or bank check or checks in the appropriate amounts payable to the order of the
Optionholder, the Optionholder's Estate, the Optionholder's Trust and/or the
Pledgee, as the case may be, against delivery of certificates or other
instruments representing the Option Shares so purchased and appropriate
documents canceling the Options so terminated, in each case appropriately
endorsed or executed by the Optionholder, the Optionholder's Estate, the
Optionholder's Trust, the Pledgee or his or her or its duly authorized
representatives.
(c) Notwithstanding any other provision of this Section 8 to the contrary
and subject to Section 13, if there exists and is continuing any Event, WCP
shall delay the repurchase of any of the Option Shares or the Options (pursuant
to a Call Notice timely given in accordance with Section 8(a) hereof) from the
Optionholder, the Optionholder's Estate or the Optionholder's Trust, as the case
may be, until the Repurchase Eligibility Date; PROVIDED that (i) the Section 8
Repurchase Price or the Section 7 Repurchase Price, as the case may be, shall be
calculated as of the time of the delivery of a Call Notice in accordance with
Section 8(a) and (ii) the number of Option Shares subject to repurchase under
this Section 8 and the number of Exercisable Option Shares for purposes of
calculating the Option Excess Price payable under this Section 8, shall be the
number of Option Shares and Exercisable Option Shares, respectively, held by the
Optionholder, the Optionholder's Estate or the Optionholder's Trust, as the case
may be, at the time of the delivery of a Call Notice in accordance with Section
8(a). All Options exercisable as of the date of a Call Notice shall continue to
be exercisable until the repurchase pursuant to such Call Notice.
(d) Notwithstanding any other provision of this Section 8 to the contrary,
WCP's right to purchase Option Shares and cancel Options pursuant to this
Section 8 shall terminate with respect to any Option Shares and Options that
have not been so repurchased or cancelled on or before the 120th day after the
date of the Call Notice.
9. DETERMINATION OF REPURCHASE PRICE
<PAGE>
(a) The Section 7 Repurchase Price and the Section 8 Repurchase Price are
hereinafter collectively referred to as the "Repurchase Price." The Repurchase
Price shall be calculated on the basis of the unaudited financial statements of
the Company or the Market Price Per Share (as defined in Section 9(e)) as of the
last day of the month preceding the month in which the event giving rise to the
repurchase occurs (the "Repurchase Calculation Date"). The event giving rise to
the repurchase shall be the transfer, death, Permanent Disability, Permitted
Retirement or termination of employment, or other event, as the case may be, not
the giving of any notice required pursuant to Section 7 or 8.
(b) The Section 7 Repurchase Price per Option Share shall be equal to the
greater of the Market Price Per Share and the Option Price Per Share.
(c) (i) If the Call Event results from the occurrence of an event
described in clauses (ii), (iii) or (iv) of Section 8(a), the Section 8
Repurchase Price per Option Share shall be equal to the lesser of (x) the
Market Price Per Share and (y) the Option Price Per Share plus the product
of (I) the Vested Percentage (as defined in Section 6) and (II) the amount,
if any, by which the Market Price Per Share exceeds the Option Price Per
Share.
(ii) If the Call Event results from the Optionholder's voluntary
termination of employment other than for Good Reason, the Section 8
Repurchase Price per Option Share shall be equal to the Market Price Per
Share.
(iii) If the Call Event results from the Optionholder's termination of
employment by the Company with Cause, the Section 8 Repurchase Price per
Option Share shall be equal to the lesser of the Market Price Per Share and
the Option Price Per Share.
(d) As used herein the term "Public Offering" shall mean the sale of
shares of Common Stock to the public pursuant to a registration statement under
the Act which has been declared effective by the Securities and Exchange
Commission (other than a registration statement on Form S-8 or any other similar
form) immediately after which sale an active trading market in the Common Stock
exists; PROVIDED that an active trading market in the Common Stock shall be
deemed to exist if the Common Stock is listed on the New York Stock Exchange,
the American Stock Exchange or the NASDAQ National Market System, but the
failure of the Common Stock to be so listed shall not PER SE be determinative as
to whether an active trading market does not exist.
(e) As used herein the term "Market Price Per Share" shall mean the price
per share equal to the average of the last sale price of the Common Stock on
each of the ten trading days prior to the Repurchase Calculation Date on each
exchange on which the Common Stock may at the time be listed and on which the
Common Stock traded on such date or, if there shall have been no sales on any of
such exchanges on any such trading day, the average of the closing bid and asked
prices on each such exchange at the end of each such trading day or, if there is
no such bid and asked price on such trading day, on the next preceding date when
such bid and asked price occurred or, if the Common Stock shall not be so
listed, the average of the closing sales prices as reported by NASDAQ at the end
of each of the ten trading days prior to the Repurchase Calculation Date in the
over-the-counter market. If the Common Stock is not so listed or
<PAGE>
reported by NASDAQ, then the Market Price Per Share shall be the fair market
value established by the Board acting in good faith.
(f) As used herein the term "Aggregate Market Value" shall mean the
product of (i) the number of shares of Common Stock to be applied as payment of
the Exercise Price pursuant to Section 4(b)(iv)(B) and (ii) the Market Value Per
Share as of the payment date.
(g) In determining the Repurchase Price, appropriate adjustments shall be
made for any future issuances of rights to acquire and securities convertible
into Common Stock and any stock dividends, splits, combinations,
recapitalizations or any other adjustment in the number of shares of outstanding
shares of Common Stock.
10. SHARES ISSUED TO OPTIONHOLDER UPON EXERCISE OF OPTIONS; TERMINATION OF
OPTIONS
(a) All Options, whether or not then exercisable, shall be automatically
terminated to the extent that, pursuant to the provisions of this Agreement, WCP
shall pay the Optionholder an amount equal to the Option Excess Price with
respect to such Options. If the Option Excess Price is zero or a negative
number, all outstanding Options granted to the Optionholder, whether or not then
exercisable, shall be automatically terminated upon the repurchase of any Option
Shares pursuant to Section 7 or Section 8. For purposes hereof, "Option Excess
Price" shall mean the excess, if any, of the Section 7 Repurchase Price or the
Section 8 Repurchase Price, depending on which Repurchase Price is (or would be)
used to repurchase the Option Shares, over the exercise price applicable to such
Options multiplied by the number of Exercisable Option Shares. For purposes
hereof, "Exercisable Option Shares" shall mean the shares of Common Stock which,
at the time of determination, could be purchased by the Optionholder upon
exercise of his or her outstanding exercisable Options.
(b) Except as otherwise provided herein or in the Option Plan, the Options
shall expire and cease to be exercisable to any extent after the first to occur
of the following events:
(i) the tenth anniversary of the Vesting Date; or
(ii) the date that is six months after the Optionholder's termination
of employment by reason of death, Permanent Disability or Permitted
Retirement; or
(iii) the first business day which is fifteen calendar days after the
earlier of (A) 75 days after the Optionholder's termination of employment
for any reason other than for Cause, Good Reason, death, Permanent
Disability or Permitted Retirement, or (B) the delivery of notice by WCP
that it does not intend to exercise its call right under Section 8;
PROVIDED that in any event the Options shall remain exercisable under this
Section 10 until at least 45 days after termination of the Optionholder's
employment for any reason other than death, Permanent Disability, or
Permitted Retirement; or
(iv) upon the occurrence of a Transfer Event (as hereinafter defined)
and upon payment to the Optionholder of an amount in cash equal to the
difference between (i) the product of (A) the Per Share Consideration (as
hereinafter defined) received in such Transfer Event by a
<PAGE>
holder of Common Stock multiplied by (B) the number of Option Shares for
which the unexercised Options are then exercisable and (ii) the aggregate
Option Price Per Share for such unexercised Options which are then
exercisable. For the purposes of this Section 10, the term "Per Share
Consideration" shall mean the quotient of (x) the aggregate consideration
paid or to be paid (but only as and when received) in respect of the
Transfer Event to the holders of Common Stock of WCP, as applicable,
divided by (y) the number of outstanding shares of Common Stock on a fully
diluted basis (after giving effect to the exercise of all outstanding
options to acquire Common Stock to the extent then exercisable); and the
term "Transfer Event" shall mean any of a merger or consolidation involving
WCP, a sale or exchange of all or substantially all of the assets of WCP,
an acquisition by another corporation or other entity of 80% or more of
WCP's outstanding shares of voting stock or the liquidation or dissolution
of WCP.
11. WCP'S REPRESENTATIONS AND WARRANTIES
(a) WCP represents and warrants to the Optionholder that (i) this
Agreement has been duly authorized, executed and delivered by WCP and (ii) the
Option Shares, when issued and delivered in accordance with the terms hereof,
will be duly and validly issued, fully paid and nonassessable.
(b) WCP shall file the reports required to be filed by it under the Act
and the Exchange Act to the extent required from time to time to enable the
Optionholder to sell Option Shares without registration under the Act within the
limitations of the exemptions provided by (i) Rule 144 under the Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Notwithstanding anything contained in this
Section 11(b), WCP may deregister under Section 12 of the Exchange Act if it is
then permitted to do so pursuant to the Exchange Act and the rules and
regulations thereunder, and, upon such deregistration, shall be relieved of its
obligations to file reports pursuant to this Section 11(b). Nothing in this
Section 11(b) shall be deemed to limit in any manner the restrictions on sales
of Option Shares contained in this Agreement.
12. "PIGGYBACK" REGISTRATION RIGHTS
(a) If WCP, in connection with any Public Offering, plans to register any
shares of Common Stock held by WCP Associates, L.P., APC Associates, L.P., GR
Associates, L.P. or KKR Partners II, L.P. (the "Institutional Investors") for
public offering pursuant to the Act, WCP will promptly notify the Optionholder
in writing (a "Registration Notice") of such proposed registration (the
"Proposed Registration"). If within ten business days of the receipt by the
Optionholder of such Registration Notice (and, in any event, within 15 business
days after such Registration Notice is sent by WCP), WCP receives from the
Optionholder, the Optionholder's Estate or the Optionholder's Trust a written
request (a "Registration Request") to register Option Shares held by the
Optionholder, the Optionholder's Estate or the Optionholder's Trust (which
Registration Request will be irrevocable unless otherwise mutually agreed to in
writing by the Optionholder and WCP), Option Shares will be so registered as
provided in this Section 12; PROVIDED that for each such Proposed Registration
only one Registration Request, which shall be executed by the Optionholder, the
Optionholder's Estate or the Optionholder's Trust, as the case may be, may be
submitted for all Registrable Securities held by the
<PAGE>
Optionholder, the Optionholder's Estate and the Optionholder's Trust,
respectively. All Option Shares acquired by the Optionholder pursuant to the
exercise of Options granted pursuant to this Agreement and held by the
Optionholder, the Optionholder's Estate or the Optionholder's Trust, including
shares purchased upon the exercise of Options, shall be deemed to be Registrable
Securities.
(b) The maximum number of Option Shares which will be registered pursuant
to a Registration Request will be the lowest of (i) the number of Option Shares
then held by the Optionholder (which for purposes of this subparagraph (b) shall
include shares held by the Optionholder's Estate or a Optionholder's Trust),
including all Option Shares which the Optionholder is then entitled to acquire
under an unexercised Option to the extent then exercisable (the "Maximum
Shares"), (ii) the Maximum Shares then held by the Optionholder multiplied by
the ratio of (A) the number of shares of Common Stock to be registered by the
Institutional Investors in the Proposed Registration to (B) the total number of
shares of Common Stock beneficially owned by all Institutional Investors and
(iii) the maximum number of shares which the Optionholder can register in the
public offering pursuant to any limits set by the managing underwriter for
inclusion in such public offering and agreed to in good faith by WCP.
(c) Except as may otherwise be provided in this Section 12, Option Shares
will be registered by WCP and offered to the public pursuant to his Section 12
on the same terms and subject to the same conditions applicable to registration
in the Proposed registration of shares held by an Institutional Investor. Such
terms and conditions shall include, without limitation: the public offering
price; the payment of fees, commissions and expenses; the provision of, and
representation and warranty as to, information requested by WCP; and the
provision of requisite indemnifications.
(d) Upon delivering a Registration Request, the Optionholder will, if
requested by WCP, execute and deliver a Custody Agreement and Power of Attorney
in form and substance satisfactory to WCP with respect to the Option Shares to
be registered pursuant to this Section 12 (a "Custody Agreement and Power of
Attorney"). The Custody Agreement and Power of Attorney will provide, among
other things, that the Optionholder, the Optionholder's Estate or the
Optionholder's Trust, as the case may be, will deliver to and deposit in custody
with the custodian and attorney-in-fact named therein a certificate or
certificates representing such Option Shares (duly endorsed in blank by the
registered owner or owners thereof or accompanied by duly executed stock powers
in blank) and irrevocably appoint said custodian and attorney-in-fact as the
Optionholder, the Optionholder's Estate's or the Optionholder's Trust's, as the
case may be, agent and attorney-in-fact with full power and authority to act
under the Custody Agreement and Power of Attorney on behalf of the Optionholder,
the Optionholder's Estate or the Optionholder's Trust, as the case may be, with
respect to the matters specified therein. The Optionholder agrees that he will
execute such other agreements as WCP may reasonably request to further evidence
the provisions of this Section 12.
13. CONTINUED EXERCISABILITY OF WCP'S RIGHT OR OBLIGATION TO REPURCHASE.
Notwithstanding anything to the contrary contained in Sections 7 and 8 hereof,
if at any time consummation of all purchases and payments to be made by the
Company pursuant to this Agreement and the Other Stock Option Agreements would
result in an Event, then the Company shall make purchases from, and payments to,
the Optionholder and Other Optionholders pro rata (on the basis of the
proportion of the number of Option Shares and the number of Options each
<PAGE>
such Optionholder and all Other Optionholders have elected or are required to
sell to the Company) for the maximum number of Option Shares and shall pay the
Option Excess Price for the maximum number of Options permitted without
resulting in an Event (the "Maximum Repurchase Amount"). The provisions of
Section 7(d) and 8(c) shall apply in their entirety to payments and repurchases
with respect to Options and Option Shares which may not be made due to the
limits imposed by the Maximum Repurchase Amount under this Section 13. Until
all of such Options and Option Shares are purchased and paid for by the Company,
the Optionholder and the Other Optionholders whose Options and Option Shares are
not purchased in accordance with this Section 13 shall have priority, on a pro
rata basis, over other purchases of Options and Option Shares by the Company
pursuant to this Agreement and Other Stock Option Agreements.
14. RIGHT TO NEGOTIATE PURCHASE PRICE. Nothing contained in this
Agreement shall be deemed to restrict or prohibit WCP from purchasing Option
Shares and the Options from the Optionholder, the Optionholder's Estate or the
Optionholder's Trust, at any time, for such price upon such other terms and
conditions as may be mutually agreed upon between such parties, whether or not
at the time of such purchase circumstances exist which specifically grant WCP
the right to purchase, or the Optionholder, the Optionholder's Estate or the
Optionholder's Trust to sell, Option Shares and the Options under the terms of
this Agreement, and all such purchases shall be deemed to be in accordance with
the terms of this Agreement.
15. COVENANT REGARDING 83(b) ELECTION. EXCEPT AS WCP MAY OTHERWISE AGREE
IN WRITING, THE OPTIONHOLDER HEREBY COVENANTS AND AGREES THAT HE OR SHE WILL
MAKE AN ELECTION UNDER SECTION 83(b) OF THE CODE PURSUANT TO TREASURY REGULATION
SECTION 1.83-2 WITH RESPECT TO ANY OPTION SHARES ISSUED UPON EXERCISE OF THE
OPTIONS. THE OPTIONHOLDER FURTHER COVENANTS AND AGREES THAT HE OR SHE WILL
FURNISH WCP WITH COPIES OF THE FORM OF ELECTION THE OPTIONHOLDER FILES WITHIN 30
DAYS AFTER EACH EXERCISE OF ANY OF THE OPTIONS AND WITH EVIDENCE THAT EACH SUCH
ELECTION HAS BEEN FILED IN A TIMELY MANNER.
16. NOTICE OF CHANGE OF BENEFICIARY. Immediately prior to any transfer of
Option Shares to the Optionholder's Trust, the Optionholder shall provide WCP
with a copy of the instruments creating the Optionholder's Trust and with the
identity of the beneficiaries of the Optionholder's Trust. The Optionholder
shall notify WCP immediately prior to any change in the identity of any
beneficiary of the Optionholder's Trust.
17. EXPIRATION OF CERTAIN PROVISIONS
(a) The provisions contained in Sections 7 and 8 of this Agreement, and
the portions of other provisions of this Agreement which incorporates the
provisions of Sections 7 and 8, shall terminate and be of no further force or
effect with respect to any Option Shares which are permitted to be sold by the
Optionholder pursuant to this Agreement and which are sold by the Optionholder
(i) pursuant to an effective registration statement filed by the Company under
the Act or (ii) pursuant to Rule 144, as amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
(b) The provisions contained in Sections 5(f), 6, 7, 8 and 15 of this
Agreement, and the portion of any other provisions of this Agreement which
incorporate the provisions of any of such Sections, shall terminate and be of no
further force or effect upon the consummation of a
<PAGE>
Change of Control. For purposes of this Section, "Change of Control" means the
occurrence of any of the following: (i) the sale, lease, transfer conveyance or
other disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the assets of the
Company taken as a whole to any "person" (as such term is defined in Section
13(d)(3) of the Exchange Act) other than the "KKR Affiliates" (as hereinafter
defined), (ii) the adoption of a plan relating to the liquidation or dissolution
of WCP, (iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the KKR Affiliates, becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under
the Exchange Act), directly or indirectly, of more than 50% of the voting stock
of WCP, (iv) the consummation of the first transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above) becomes the "beneficial owner" (as defined above),
directly or indirectly, of more of the voting stock of WCP than is at the time
"beneficially owned" (as defined above) by the KKR Affiliates. For purposes of
this Agreement, "KKR Affiliate" shall mean any other Person directly or
indirectly controlling, controlled by, or under common control with, Kohlberg
Kravis Roberts & Co., L.P.; "Person" means an individual, partnership,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature, and "control" shall have the meaning given such term under Rule 405 of
the Act.
18. RECAPITALIZATION. Except to the extent otherwise provided by Section
17 hereof, the provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Option Shares and the Options, to any and all
capital stock of WCP and any partnership units, capital stock or other security
evidencing ownership interests in any successor or assign of WCP (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for or in substitution of Option Shares and the Options,
by reason of any dividend, distribution, split, reverse split, combination,
recapitalization, liquidation, reclassification, merger, consolidation or
otherwise.
19. OPTIONHOLDER'S EMPLOYMENT BY THE COMPANY. Nothing contained in this
Agreement or in any other agreement entered into by the Company and the
Optionholder in connection with the execution of this Agreement (i) obligates
the Company to employ the Optionholder in any capacity whatsoever or (ii)
prohibits or restricts the Company from terminating the employment, if any, of
the Optionholder at any time or for any reason whatsoever, with or without
cause, and the Optionholder hereby acknowledges and agrees that neither the
Company nor any other person has made any representations or promises whatsoever
to the Optionholder concerning the Optionholder's employment or continued
employment by the Company except as otherwise set forth in a separate written
agreement between the Company and the Optionholder.
20. STATE SECURITIES LAWS. WCP hereby agrees to use all reasonable
efforts to comply with all state securities or "blue sky" laws which might be
applicable to the issuance of the Option Shares to the Optionholder.
21. BINDING EFFECT. The provisions of this Agreement shall be binding
upon and accrue to
<PAGE>
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee permitted
under Section 5(b) hereof, such transferee shall be deemed to be the
Optionholder hereunder; PROVIDED that no transferee (including, without
limitation, any transferee referred to in Section 5(b) hereof) shall derive any
rights under this Agreement unless and until such transferee has delivered to
WCP a valid undertaking and becomes bound by the terms of this Agreement.
22. AMENDMENT. This Agreement may be amended only by a written agreement
or instrument signed by the Parties hereto; PROVIDED that WCP may, in its
discretion, amend this Agreement by a written agreement or instrument signed
only by WCP to reduce or eliminate any restriction on the sale, transfer or
other disposition of Option Shares.
23. CLOSING. Except as otherwise provided herein, the closing of each
purchase and sale of Option Shares and any outstanding Options pursuant to this
Agreement shall take place at the principal office of WCP on the 15th business
day following delivery of the notice by either Party to the other of its
exercise of the right to purchase or sell hereunder.
24. APPLICABLE LAW. The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law.
25. ASSIGNABILITY OF CERTAIN RIGHTS BY WCP. WCP shall have the right to
assign any or all of its rights or obligations to purchase Option Shares and any
outstanding Options pursuant to Sections 7 and 8 hereof.
26. PAYMENT BY WCP. If at any time WCP purchases Option Shares or any
outstanding Options from the Optionholder hereunder, and the Optionholder is
indebted to WCP in any amount whatsoever, WCP, in its sole discretion, may apply
all or any part of such indebtedness to the purchase price.
27. NOTICES. All notices and other communications necessary or
contemplated under this Agreement shall be in writing and shall be delivered in
the manner specified herein or, in the absence of such specification, shall be
deemed delivered when delivered in person or sent by first-class mail (certified
or registered mail, return receipt requested, postage prepaid), facsimile or
overnight air courier guaranteeing next day delivery, addressed as follows:
(a) If to WCP, to it at the following address:
World Color Press, Inc.
The Mill
340 Pemberwick Road
Greenwich, Connecticut 06831
Facsimile No.: (203) 532-4371
Attn.: General Counsel
<PAGE>
With a copy to:
Kohlberg Kravis Roberts & Co., L.P.
9 West 57th Street
New York, New York 10019
Facsimile No.: (212) 750-0003
Attn.: Mr. Scott M. Stuart
(b) If to the Optionholder, to him or her at the following address:
((Address))
((Address))
28. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
29. SECTION HEADINGS. The section headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
30. REMEDIES FOR VIOLATIONS. The Parties agree that they would be
irreparably damaged and that money damages would not be a sufficient remedy in
the event that this Agreement is not followed by the Parties. In the event of
any such breach, the non-breaching Party shall be entitled, without being
required to post a bond or other security, to equitable relief (including,
without limitation, injunction and specific performance) as a remedy for such
breach. Such remedies shall not be deemed to be the exclusive remedies for any
such breach but shall be in addition to all other remedies available at law or
equity to the non-breaching Party.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
WORLD COLOR PRESS, INC.
By:
------------------------------
Jennifer L. Adams
Vice Chairman, Chief Legal and
Administrative Officer
----------------------------------
Optionholder
<PAGE>
EXHIBIT 5.1
March 11, 1998
(File No.)
World Color Press, Inc.
The Mill
340 Pemberwick Road
Greenwich, Connecticut 06831
Re: Registration Statement on Form S-8 with respect to 3,264,190
shares of Common Stock, par value $.01 per share
Ladies and Gentlemen:
In connection with the preparation and filing by World Color Press, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), of a Registration
Statement on Form S-8 (the "Registration Statement") relating to the issuance by
the Company of 3,264,190 shares of the Company's Common Stock, par value $.01
per share (the "Shares"), pursuant to the Second Amended and Restated Stock
Option Plan of World Color Press, Inc. (the "1988 Plan") and the Amended and
Restated 1995 Senior Management Stock Option Plan of World Color Press, Inc.
(the "Senior Management Plan"), you have requested our opinion with respect to
the matters set forth below.
In our capacity as your counsel in connection with such registration, we
are familiar with the proceedings taken and proposed to be taken by the Company
in connection with the authorization, issuance and sale of the Shares, and for
the purposes of this opinion, have assumed such proceedings will be timely
completed in the manner presently proposed. In addition, we have made such
legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to authentic original documents of all documents submitted to us as copies.
<PAGE>
We are opining herein as to the effect on the subject transaction only of
the internal laws of the State of New York and the General Corporation Law of
the State of Delaware, and we express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any local agency within any state.
Subject to the foregoing, it is our opinion that the Shares have been duly
authorized and, when issued and sold upon exercise of the options for such
Shares and payment of the exercise price therefor as contemplated by the 1988
Plan or the Senior Management Plan, as the case may be, will be validly issued,
fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the Registration
Statement and to the reference to our firm contained under the heading
"Interests of Named Experts and Legal Counsel"
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
World Color Press, Inc. on Form S-8 of our reports dated February 5, 1997,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
World Color Press, Inc. for the year ended December 29, 1996.
/s/ Deloitte & Touche LLP
New York, New York
March 11, 1998
