-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MxxgzDYqVBmxW5aHr2okY3WJnk+xTmA2SIOV0dATv2gMRCHTaxspfsctiQXy9aME f7qL4Y68PArBQvSRfiFuoA== 0000006260-02-000003.txt : 20020413 0000006260-02-000003.hdr.sgml : 20020413 ACCESSION NUMBER: 0000006260-02-000003 CONFORMED SUBMISSION TYPE: 8-A12B PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020109 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANACOMP INC CENTRAL INDEX KEY: 0000006260 STANDARD INDUSTRIAL CLASSIFICATION: PHOTOGRAPHIC EQUIPMENT & SUPPLIES [3861] IRS NUMBER: 351144230 STATE OF INCORPORATION: IN FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-A12B SEC ACT: 1934 Act SEC FILE NUMBER: 001-08328 FILM NUMBER: 2504773 BUSINESS ADDRESS: STREET 1: 12365 CROSTHWAITE CIRCLE CITY: POWAY STATE: CA ZIP: 92064 BUSINESS PHONE: 8586799797 MAIL ADDRESS: STREET 1: 12365 CROSTHWAITE CIRCLE CITY: POWAY STATE: CA ZIP: 92064 FORMER COMPANY: FORMER CONFORMED NAME: COMPUTEC INC DATE OF NAME CHANGE: 19740314 8-A12B 1 f8a012002.txt FORM 8-A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 8-A FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 ANACOMP, INC. (Exact name of registrant as specified in its charter) Indiana 35-1144230 (State of incorporation or organization) (IRS Employer Identification No.) 12365 Crosthwaite Circle, Poway, CA 92064 (Address of principal executive offices) (Zip Code) Securities to be registered pursuant to Section 12(b) of the Act: Title of each class Name of each exchange on which to be so registered each class is to be registered - ------------------------------------ ---------------------------------- Not Applicable None If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box. [ ] If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box [X] Securities Act registration statement file number to which this form relates: Not applicable Securities to be registered pursuant to Section 12(g) of the Act: Class A Common Stock, $0.01 par value Class B Common Stock, $0.01 par value Warrants to purchase Class B Common Stock Item 1. Description of Registrant's Securities to be Registered. The following description summarizes certain information regarding the Class A Common Stock, Class B Common Stock and Warrants to purchase Class B Common Stock issued by Anacomp, Inc. (the "Company") pursuant to the Plan of Reorganization of the Company (the "Plan"). This information does not purport to be complete and is subject in all respects to the applicable provisions of the Company's Amended and Restated Articles of Incorporation (the "Articles of Incorporation") and Bylaws (the "Bylaws") and the Indiana Business Corporation Law, as amended ("IBCL"). This registration statement relates to the issuance under the Plan of shares of (a) Class A common stock, par value $.01 per share (the "Class A Common Stock"), issued to the holders of the Company's 10-7/8% Senior Subordinated Notes due 2004 (the "Notes") on the effective date of the Plan (the "Effective Date"), (b) Class B Common Stock, par value $0.01 per share ("Class B Common Stock") issued to the holders of the Company's Common Stock on the Effective Date and (c) warrants to purchase Class B Common Stock (the "Warrants") issued to holders of the Company's Common Stock on the Effective Date. Each Warrant will entitle the holder to purchase one share of Class B Common Stock at an exercise price of $61.54 per share during the period commencing on the Effective Date and expiring five years thereafter. Pursuant to the Articles of Incorporation, the Company is authorized to issue 40,000,000 shares of Class A Common Stock, 787,711 shares of Class B Common Stock, and 1,000,000 shares of preferred stock. Pursuant to the Plan, on the Effective Date the Company (a) cancelled all of the Company's then outstanding shares of Common Stock, the Notes and all unexercised options and warrants and (b) issued the Class A Common Stock and the Class B Common Stock and Warrants. A. Common Stock 1. General. Each share of Class A Common Stock and Class B Common Stock (collectively, the "New Common Stock") is identical, except that the aggregate number of shares of Class B Common Stock is subject to ratable reduction on each occasion that any additional shares of Class B Common Stock are issued in satisfaction of certain claims pursuant to the Plan. Each share of New Common Stock entitles the holder thereof to one vote on all matters submitted to a vote of stockholders, including the election of directors. There is no cumulative voting in the election of directors; consequently, the holders of a majority of the outstanding shares of New Common Stock can elect all of the directors then standing for election. Holders of New Common Stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by the Board of Directors out of funds legally available therefore. Holders of New Common Stock have no conversion, redemption or preemptive rights to subscribe to any securities of the Company. All outstanding shares of New Common Stock issued pursuant to the Plan will be fully paid and nonassessable. In the event of any liquidation, dissolution or winding-up of the affairs of the Company, holders of New Common Stock will be entitled to share ratably in the assets of the Company remaining after provision for payment of liabilities to creditors and the preferences, if any, of holders of preferred stock. The rights, preferences and privileges of holders of New Common Stock are subject to the rights of the holders of any shares of preferred stock which the Company may issue in the future. 2. Certain Articles of Incorporation and Bylaw Provisions. The Company's Articles of Incorporation and Bylaws include provisions which are intended by the Board of Directors to help assure fair and equitable treatment of the Company's stockholders in the event that a person or group should seek to gain control of the Company in the future. Such provisions, which are discussed below, may make a takeover attempt or change in control more difficult, whether by tender offer, proxy contest or otherwise. Accordingly, such provisions may be viewed as disadvantageous to stockholders inasmuch as they might diminish the likelihood that a potential acquirer would make an offer for the Company's stock (perhaps at an attractive premium over the market price), impede a transaction favorable to the interests of the stockholders, or increase the difficulty of removing the incumbent Board of Directors and management, even if in a particular case removal would be beneficial to the stockholders. a. Preferred Stock. The Board of Directors is authorized to provide for the issuance of shares of preferred stock, in one or more series, and to fix by resolution and to the extent permitted by the IBCL, the terms and conditions of such series. The Company believes that the availability of the preferred stock issuable in series will provide it with increased flexibility in structuring possible future financings and acquisitions and in meeting other corporate needs which might arise. Although the Board of Directors has no present intention to do so, it could issue a series of preferred stock that could, depending on its terms, either impede or facilitate the completion of a merger, tender offer or other takeover at tempt. b. Classified Board of Directors and Related Provisions. The Certificate of Incorporation provides that the Board of Directors may be divided into two or three classes of directors with the term of office of one class expiring each year. As a result, approximately one-half or one-third, as the case may be, of the Company's Board of Directors could be elected each year. The Company believes that a classified board of directors could help to assure the continuity and stability of the Board of Directors and the Company's business strategies and policies as determined by the Board of Directors. The classified board provision could have the effect of making the removal of incumbent directors more time-consuming and difficult, therefore discouraging a third party from making a tender offer or otherwise attempting to obtain control of the Company, even though such an attempt might be beneficial to the Company and its shareholders. Thus, the classified board provision could increase the likelihood that incumbent directors will retain their positions. c. Business Combinations. Chapter 43 of the IBCL prohibits a publicly held Indiana corporation from engaging in a "business combination" with an "interested stockholder" for a period of five years after the date of the transaction in which the person becomes an interested stockholder, unless (i) prior to such date either the business combination or the transaction which resulted in the shareholder becoming an interested stockholder is approved by the Board of Directors, (ii) the business combination was approved by the affirmative vote of the majority of the outstanding voting stock which is not beneficially owned by the interested stockholder, or (iii) the business combination meets certain conditions set forth in Chapter 43 of the IBCL. Although it is entitled to do so, the Company has not elected to opt out of Chapter 43. A "business combination" includes, among other things, mergers, asset sales and other transactions resulting in a financial benefit to the stockholder. An "interested stockholder" is generally a person who, together with affiliates and associates, owns (or, in the case of affiliates and associates of the issuer, did own within the last five years) 10% or more of the corporation's voting stock. C. Warrants. As described above, the Warrants to purchase shares of Class B Common Stock were issued on the Effective Date. Each Warrant will entitle the holder to purchase one share of Class B Common Stock at an exercise price of $61.54 per share during the period commencing on the Effective Date and expiring five years thereafter. The number of shares of Class B Common Stock acquired upon exercise of a Warrant and/or the exercise price will be proportionately adjusted in the event of certain transactions, such as stock splits, stock dividends, and the like. Item 2. Exhibits. The following exhibits are filed as a part of this registration statement: 1. Amended and Restated Articles of Incorporation 2. Amended and Restated Bylaws 3. Warrant Agreement SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. ANACOMP, INC. Date: January 7, 2002 By: /s/ Linster W. Fox _________________________ Linster W. Fox Senior Vice President and Chief Financial Officer EX-3.(I) 2 restartincorpexhiba012002.txt RESTATEMENT OF ARTICLES OF INCORP WITH EXHIBIT A RESTATEMENT OF ARTICLES OF INCORPORATION OF ANACOMP, INC. The undersigned, Anacomp, Inc. (the "Corporation"), a corporation existing pursuant to the Indiana Business Corporation Law (the "Act"), desiring to give notice of corporate action effectuating the restatement of the Corporation's Articles of Incorporation, sets forth the following: Article I Restatement Section 1. The Corporation was incorporated on April 16, 1968. Section 2. The name of the Corporation following this Restatement of Articles of Incorporation ("Restatement") will be Anacomp, Inc. Section 3. The exact text of the Corporation's restated Articles of Incorporation, entitled "Amended and Restated Articles of Incorporation of Anacomp, Inc.", is attached hereto as Exhibit A (the "Restated Articles"). Article II Manner of Adoption Section 1. The Restated Articles and this Restatement are filed pursuant to IC 23-1-38-8, a provision of the Act permitting amendment of a corporation's articles of incorporation without director or shareholder approval in an instance in which such amendment is made pursuant to a plan of reorganization ordered or decreed by a court of competent jurisdiction under a federal statute. Section 2. The Restated Articles and this Restatement have been approved and the filing thereof ordered by the United States Bankruptcy Court for the Southern District of California (the "Court") in the course of a proceeding under Chapter 11 of the United States Bankruptcy Code by an order of the Court entitled "Order Confirming Anacomp, Inc's Chapter 11 Plan of Reorganization (Dated August 29, 2001) As Amended" entered on the 11th day of December, 2001, which proceeding under the United States Bankruptcy Code is entitled "In re: ANACOMP, INC., an Indiana corporation, f/k/a DatagraphiX, docHarbor and First Image (Federal Tax I.D. No. 35-1144230), Debtor." Section 3. The Court had jurisdiction of the proceeding referenced above under applicable provisions of the United States Bankruptcy Code. IN WITNESS WHEREOF, the Corporation, by its duly authorized officer signing below, has executed this Restatement of Articles of Incorporation and verifies, subject to penalties of perjury, that the statements contained herein are true, this 2nd day of January, 2001. ANACOMP, INC. By: ________________________________ ____________________________________ Printed Name and Title EXHIBIT A AMENDED AND RESTATED ARTICLES OF INCORPORATION OF ANACOMP, INC. ARTICLE I NAME The name of the Corporation is Anacomp, Inc. ARTICLE II PURPOSES AND POWERS Section 1. Purposes of the Corporation. The purposes for which the Corporation is formed are to transact any or all lawful business permitted by applicable law and for which corporations may now or hereafter be incorporated under the Indiana Business Corporation Law, as amended (the "Corporation Law"). Section 2. Powers of the Corporation. The Corporation shall have (a) all powers now or hereafter authorized by or vested in corporations pursuant to the provisions of the Corporation Law, (b) all powers now or hereafter vested in corporations by common law or any other statute or act, and (c) all powers authorized by or vested in the Corporation by the provisions of these Amended and Restated Articles of Incorporation or by the provisions of its Bylaws as from time to time in effect. ARTICLE III TERM OF EXISTENCE The period during which the Corporation shall continue is perpetual. ARTICLE IV REGISTERED OFFICE AND AGENT The street address of the Corporation's registered office at the time of adoption of these Amended and Restated Articles of Incorporation is One North Capitol Avenue, Indianapolis, Indiana 46204, and the name of its registered agent at such office at the time of adoption of these Amended and Restated Articles of Incorporation is CT Corporation System. ARTICLE V SHARES (a) The Corporation shall have three classes of capital stock (the "Capital Stock"): (i) Class A Common Stock, $.01 par value per share (the "Class A Shares"); (ii) Class B Common Stock, $.01 par value per share (the "Class B Shares" and, together with the Class A Shares, the "Common Shares"); and (iii) Preferred Stock, $.01 par value per share (the "Preferred Shares"). (b) The total authorized number of shares of Capital Stock is: (i) 40,000,000 Class A Shares; (ii) 787,111 Class B Shares; and (iii) 1,000,000 Preferred Shares. (c) The Corporation shall have the power to issue fractional shares or script in the manner and to the extent now or hereafter permitted by the laws of the State of Indiana. (d) Class B Shares shall consist solely of those shares (i) issued to holders of the Corporation's common stock outstanding immediately prior to the effective date of that certain Plan of Reorganization, dated August 29, 2001 (as amended, modified or supplemented from time to time, the "Plan"), pursuant to which the Corporation's common stock outstanding immediately prior to such effective date (all such outstanding common stock, the "Old Common Stock") was cancelled, and (ii) issuable pursuant to warrants granted to holders of such Old Common Stock which are exercisable for Class B Shares. Class B Shares shall be identical to Class A Shares for all purposes (and shall vote with the Class A Shares as one class on all matters on which holders of Common Shares shall be entitled to vote), except as set forth in this paragraph (d). The number of Class B Shares authorized herein may not be increased but may be adjusted to take into account certain stock splits and recapitalizations, as may be duly authorized and effected by the Board of Directors of the Corporation as may be required to effectuate the terms of the Plan. In accordance with the Plan and in compliance with the Confirmation Order issued by the United States Bankruptcy Court for the Southern District of California in connection therewith (and without the vote or consent of any holder of any class or series of Capital Stock), and notwithstanding any provision contained herein or in any certificate evidencing the Class B Shares to the contrary, the aggregate number of Class B Shares issued and outstanding at any time shall be reduced ratably among all of the holders of such Class B Shares on each occasion that any additional Class B Shares are issued by the Corporation in satisfaction of any Allowed Section 510(b) Common Claim (as such term is defined in the Plan). (e) Each certificate evidencing the Class B Shares shall bear the following legend: IN ACCORDANCE WITH THE PLAN OF REORGANIZATION, DATED AUGUST 29, 2001 (AS AMENDED, MODIFIED AND SUPPLEMENTED FROM TIME TO TIME, THE "PLAN"), OF THE CORPORATION, AND THE CONFIRMATION ORDER ISSUED BY THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA IN CONNECTION THEREWITH, AND NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS CERTIFICATE TO THE CONTRARY, THE AGGREGATE NUMBER OF SHARES OF CLASS B COMMON STOCK THAT ARE EVIDENCED BY THIS CERTIFICATE AND ALL CERTIFICATES OF LIKE TENOR THEN OUTSTANDING SHALL BE REDUCED RATABLY AMONG ALL OF THE HOLDERS THEREOF ON EACH OCCASION THAT A CERTIFICATE OF LIKE TENOR SHALL BE ISSUED BY THE CORPORATION IN SATISFCATION OF ANY ALLOWED SECTION 510(B) COMMON CLAIM (AS SUCH TERM IS DEFINED IN THE PLAN). THE NUMBER OF SHARES OF CLASS B COMMON STOCK THAT ARE EVIDENCED BY THIS CERTIFICATE SHALL BE DEEMED TO BE AUTOMATICALLY REDUCED (WITHOUT THE VOTE OR CONSENT OF ANY HOLDER OF ANY CLASS OR SERIES OF CAPITAL STOCK OF THE CORPORATION) AS OF THE RECORD DATE OF EACH SUCH ISSANCE. ARTICLE VI TERMS OF SHARES Section 1. General Terms of All Shares. The Corporation shall have the power to acquire (by purchase, redemption, or otherwise), hold, own, pledge, sell, transfer, assign, reissue, cancel or otherwise dispose of the shares of the Corporation in the manner and to the extent now or hereafter permitted by the laws of the State of Indiana, including the power to purchase, redeem, or otherwise acquire the Corporation's own shares, directly or indirectly and without pro rata treatment of the owners of holders of any class or series of shares, unless, after giving effect thereto, the Corporation would not be able to pay its debts as they become due in the usual course of business or the Corporation's total assets would be less than its total liabilities and without regard to any amounts that would be needed, if the Corporation were to be dissolved at the time of the purchase, redemption, or other acquisition, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those of the holders of the shares of the Corporation being purchased, redeemed, or otherwise acquired, unless otherwise expressly provided with respect to a series of Preferred Shares in the provisions of these Amended and Restated Articles of Incorporation adopted by the Board of Directors pursuant to Section 3(a) of Article VI hereof describing the terms of such series. Shares of the Corporation purchased, redeemed, or otherwise acquired by it shall constitute authorized and issued but not outstanding shares, unless the Board of Directors shall at any time adopt a resolution providing that such shares constitute authorized but issued shares. The Board of Directors of the Corporation may dispose of, issue, and sell shares in accordance with, and in such amounts as may be permitted by, the laws of the State of Indiana and the provisions of these Amended and Restated Articles of Incorporation and for such consideration, at such price or prices, at such time or times and upon such terms and conditions (including the privilege of selectively repurchasing the same) as the Board of Directors of the Corporation shall determine to be adequate, without the authorization or approval by any shareholders of the Corporation. When disposed of, issued or sold (and proper consideration received therefor), such shares will be fully paid and non-assessable. Shares may be disposed of, issued, and sold to such persons, firms, or corporations as the Board of Directors may determine, without any preemptive or other right on the part of the owners or holders of other shares of the Corporation of any class or kind to acquire such shares by reason of their ownership of such other shares. The Corporation shall have the power to declare and pay dividends or other distributions upon the issued and outstanding shares of the Corporation, subject to the limitation that a dividend or other distribution may not be made if, after giving it effect, the Corporation would not be able to pay its debts as they become due in the usual course of business or the Corporation's total assets would be less than its total liabilities and without regard to any amounts that would be needed, if the Corporation were to be dissolved at the time of the dividend or other distribution, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those of the holders of shares receiving the dividend or other distribution, unless otherwise expressly provided with respect to a series of Preferred Shares in the provisions of these Amended and Restated Articles of Incorporation adopted by the Board of Directors pursuant to Section 3(a) of this Article VI describing the terms of such series. The Board of Directors may base a determination that a distribution is not prohibited either on financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances or on a fair valuation or other method that is reasonable in the circumstances. The Corporation shall have the power to issue shares of one class or series as a share dividend or other distribution in respect of that class or series or one or more other classes or series without the approval of the holders of either of those classes or series, except as may be otherwise provided with respect to a series of Preferred Shares in the provisions of these Amended and Restated Articles of Incorporation adopted by the Board of Directors pursuant to Section 3(a) of this Article VI describing the terms of such series. Section 2. Terms of Common Shares. Except as set forth in Article V hereof, the Common Shares shall be equal in every respect insofar as their relationship to the Corporation is concerned, but such equality of rights shall not imply equality of treatment as to redemption or other acquisition of shares by the Corporation. Subject to the rights of the holders of any issued and outstanding Preferred Shares under this Article VI, the holders of Common Shares shall be entitled to share ratably in such dividends or other distributions (other than purchases, redemptions, or other acquisitions of Common Shares of the Corporation), if any, as are declared and paid from time to time on the Common Shares at the discretion of the Board of Directors. In the event of any liquidation, dissolution, or winding up of the Corporation, either voluntary or involuntary, after payment shall have been made to the holders of the Preferred Shares of the full amount to which they shall be entitled under this Article VI, the holders of Common Shares shall be entitled, to the exclusion of the holders of the Preferred Shares of any and all series, to share, ratably according to the number of shares of Common Shares held by them, in all remaining assets of the Corporation available for distribution to its shareholders. Section 3. Terms of Preferred Shares. (a) Preferred Shares may be issued from time to time in one or more series, each such series to have such distinguishing designation and such preferences, limitations, and relative voting and other rights as shall be set forth in these Amended and Restated Articles of Incorporation. Subject to the requirements of the Corporation Law and subject to all other provisions of these Amended and Restated Articles of Incorporation, the Board of Directors of the Corporation may create one or more series of Preferred Shares and shall determine the preferences, limitations, and relative voting and other rights of one or more series of Preferred Shares before the issuance of any shares of that series by the adoption of an amendment to these Amended and Restated Articles of Incorporation that specifies the terms of that series of Preferred Shares. All shares of a series of Preferred Shares must have preferences, limitations and relative voting and other rights identical to those of other shares of the same series. No series of Preferred Shares need have preferences, limitations or relative voting or other rights identical with those of any other series of Preferred Shares. Before issuing any shares of a series of Preferred Shares, the Board of Directors shall adopt an amendment to these Amended and Restated Articles of Incorporation, which shall be effective without any shareholder approval or other action, that fixes and sets forth the distinguishing designation of such series; the number of shares that shall constitute such series, which number may be increased or decreased (but not below the number of shares thereof then outstanding) from time to time by action of the Board of Directors; and the preferences, limitations, and relative voting and other rights of the series. Authority is hereby expressly vested in the Board of Directors, by such amendment, to fix all of the preferences or rights, and any qualifications, limitations, or restrictions of such preferences or rights, of such series to the full extent permitted by the Corporation Law; provided, however, that no such preferences, rights, qualifications, limitations, or restrictions shall be in conflict with these Amended and Restated Articles of Incorporation or any amendment thereof. (b) Preferred Shares of any series that have been redeemed (whether through the operation of a sinking fund or otherwise) or purchased by the Corporation, or that, if convertible, have been converted into shares of the Corporation of any other class or series, may be reissued as a part of such series or of any other series of Preferred Shares, subject to such limitations (if any) as may be fixed by the Board of Directors with respect to such series of Preferred Shares in accordance with Section 3(a) of this Article VI. ARTICLE VII VOTING RIGHTS Section 1. Common Shares. Except as otherwise provided by the Corporation Law and subject to such shareholder disclosure and recognition procedures (which may include sanctions for noncompliance therewith to the fullest extent permitted by the Corporation Law) as the Corporation may by action of the Board of Directors establish, the Common Shares have unlimited voting rights. At every meeting of the shareholders of the Corporation every holder of Common Shares shall be entitled to one (1) vote in person or by proxy for each Common Share standing in such holder's name on the stock transfer records of the Corporation. Section 2. Preferred Shares. Except as required by the Corporation Law or by the provisions of these Amended and Restated Articles of Incorporation adopted by the Board of Directors pursuant to Section 3(a) of Article VI hereof describing the terms of Preferred Shares or a series thereof, the holders of Preferred Shares shall have no voting rights or powers. Preferred Shares shall, when validly issued by the Corporation, entitle the record holder thereof to vote as and on such matters, but only as and on such matters as the holders thereof are entitled to vote under the Corporation Law or under the provisions of these Amended and Restated Articles of Incorporation adopted by the Board of Directors pursuant to Section 3(a) of Article VI hereof describing the terms of Preferred Shares or a series thereof (which provisions may provide for special, conditional, limited, or unlimited voting rights, including multiple or fractional votes per share, or for no right to vote, except to the extent required by the Corporation Law) and subject to such shareholder disclosure and recognition procedures (which may include sanctions for noncompliance therewith to the fullest extent permitted by the Corporation Law) as the Corporation may by action of the Board of Directors establish. Section 3. Non-voting Equity Securities. Notwithstanding anything to the contrary set forth in this Article VII, the Corporation shall not issue any non-voting equity securities; provided, however, that this provision, included in these Amended and Restated Articles of Incorporation in compliance with Section 1123(a)(6) of the United States Bankruptcy Code of 1978, as amended (the "Bankruptcy Code"), shall have no force and effect beyond that required by Section 1123(a)(6) of the Bankruptcy Code and shall be effective only for so long as Section 1123(a)(6) of the Bankruptcy Code is in effect and applicable to the Corporation. ARTICLE VIII DIRECTORS Section 1. Number. The Board of Directors at the time of adoption of these Amended and Restated Articles of Incorporation is composed of seven (7) members. The number of Directors shall be fixed by, or fixed in accordance with, the Bylaws. The Bylaws may also provide for staggering the terms of the members of the Board of Directors by dividing the total number of Directors into two (2) or three (3) groups (with each group containing one-half (1/2) or one third (1/3) of the total, as near as may be) whose terms of office expire at different times. Section 2. Election of Directors by Holders of Preferred Shares. The holders of one (1) or more series of Preferred Shares may be entitled to elect all or a specified number of Directors, but only to the extent and subject to limitations as may be set forth in the provisions of these Amended and Restated Articles of Incorporation or in an amendment thereto adopted by the Board of Directors pursuant to Section 3(a) of Article VI hereof describing the terms of the series of Preferred Shares. Section 3. Vacancies. Vacancies occurring in the Board of Directors shall be filled in the manner provided in the Bylaws or, if the Bylaws do not provide for the filling of vacancies, in the manner provided by the Corporation Law. Section 4. Removal of Directors. Any or all of the members of the Board of Directors may be removed, for good cause, at a meeting of the shareholders called expressly for that purpose, by the affirmative vote of the holders of a majority of the outstanding shares then entitled to vote at an election of Directors. However, a Director elected by the holders of a series of Preferred Shares as authorized by Section 2 of Article VIII may be removed only by the affirmative vote of the holders of a majority of the outstanding shares of that series then entitled to vote at an election of Directors. Directors may not be removed in the absence of good cause or by the Board of Directors. Section 5. Liability of Directors. A Director's responsibility to the Corporation shall be limited to discharging his duties as a Director, including his duties as a member of any committee of the Board of Directors upon which he may serve, in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner the Director reasonably believes to be in the best interests of the Corporation, all based on the facts then known to the Director. In discharging his duties, a Director is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by: (a) One (1) or more officers or employees of the Corporation whom the Director reasonably believes to be reliable and competent in the matters presented; (b) Legal counsel, public accountants, or other persons as to the matters the Director reasonably believes are within such person's professional or expert competence; or (c) A committee of the Board of which the Director is not a member if the Director reasonably believes the Committee merits confidence; but a Director is not acting in good faith if the Director has knowledge concerning the matter in question that makes reliance otherwise permitted by this Section 5 unwarranted. A Director may, in considering the best interests of the Corporation, consider the effects of any action on shareholders, employees, suppliers, and customers of the Corporation, and communities in which offices or other facilities of the Corporation are located, and any other factors the Director considers pertinent. Directors shall be immune from personal liability for any action taken as a Director, or any failure to take any action, to the fullest extent permitted by the applicable provisions of the Corporation Law from time to time in effect and by general principles of corporate law. Section 6. Nonmonetary Factors in Acquisition Proposals. In connection with the exercise of its judgment in determining what is in the best interests of the Corporation and its stockholders when evaluating a proposal by another person or persons to acquire some material part or all of the business or properties of the Corporation (whether by merger, consolidation, purchase of assets, stock reclassification, or recapitalization, spin-off, liquidation, or otherwise) or to acquire some material part or all of the stock of the Corporation (whether by a tender or exchange offer or some other means), the Board of Directors of the Corporation may, in addition to considering the adequacy of the consideration to be paid in connection with any such transaction, consider all of the following factors and any other factors that it deems relevant: (a) the social and economic effects of the transaction on the Corporation and its subsidiaries and their employees, customers, and creditors and the communities in which the Corporation and its subsidiaries operate or are located; (b) the business and financial condition and earnings prospects of the acquiring person or persons, including, but not limited to, debt service and other existing or likely financial obligations of the acquiring person or persons and their affiliates and associates, the possible effect of such conditions upon the Corporation and its subsidiaries and the communities in which the Corporation and its subsidiaries operate or are located; and (c) the competence, experience, and integrity of the acquiring person or persons and its or their management and affiliates and associates. ARTICLE IX PROVISIONS FOR REGULATION OF BUSINESS AND CONDUCT OF AFFAIRS OF CORPORATION Section 1. Bylaws. The Board of Directors shall have the exclusive power to make, alter, amend, or repeal, or to waive provisions of, the Bylaws of the Corporation by the affirmative vote of a majority of the number of Directors then in office at the time, except as provided by the Corporation Law. All provisions for the regulation of the business and management of the affairs of the Corporation not stated in these Amended and Restated Articles of Incorporation shall be stated in the Bylaws. The Board of Directors may also adopt Emergency Bylaws of the Corporation and shall have the exclusive power (except as may otherwise be provided therein) to make, alter, amend, or repeal, or to waive provisions of, the Emergency Bylaws by the affirmative vote of a majority of the entire number of Directors at the time. Section 2. Indemnification of Officers, Directors, and Other Eligible Persons. (a) To the extent not inconsistent with applicable law, every Eligible Person shall be indemnified by the Corporation against all Liability and reasonable Expense that may be incurred by him in connection with or resulting from any Claim: (i) if such Eligible Person is Wholly Successful with respect to the Claim, or (ii) if not Wholly Successful, then if such Eligible Person is determined, as provided in either Section 2(f) or 2(g), to have acted in good faith, in what he reasonably believed to be in the best interests of the Corporation or at least not opposed to its best interests and, in addition, with respect to any criminal Claim is determined to have had reasonable cause to believe that his conduct was lawful or had no reasonable cause to believe that his conduct was unlawful. The termination of any Claim, by judgment, order, settlement (whether with or without court approval), or conviction or upon a plea of guilty of or nolo contendere, or its equivalent, shall not create a presumption that an Eligible Person did not meet the standards of conduct set forth in clause (ii) of this subsection (a). The actions of an Eligible Person with respect to an employee benefit plan subject to the Employee Retirement Income Security Act of 1974 shall be deemed to have been taken in what the Eligible Person reasonably believed to be the best interests of the Corporation or at least not opposed to its best interests if the Eligible Person reasonably believed he was acting in conformity with the requirements of such Act or he reasonably believed his actions to be in the interests of the participants in or beneficiaries of the plan. (b) The term "Claim" as used in this Section 2 shall include every pending, threatened, or completed claim, action, suit, or proceeding and all appeals thereof (whether brought by or in the right of this Corporation or any other corporation or otherwise), civil, criminal, administrative, or investigative, formal or informal, in which an Eligible Person may become involved, as a party of otherwise: (i) by reason of his being or having been an Eligible Person, or (ii) by reason of any action taken or not taken by him in his capacity as an Eligible Person, whether or not he continued in such capacity at the time such Liability or Expense shall have been incurred. (c) The term "Eligible Person" as used in this Section shall mean every person (and the estate, heirs, and personal representative of such person) who is or was a Director, officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, agent, or fiduciary of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other organization or entity, whether for profit or not. An Eligible Person shall also be considered to have been serving an employee benefit plan at the request of the Corporation if his duties to the Corporation also imposed duties on, or otherwise involved services by, him to the plan or to participants in or beneficiaries of the plan. (d) The terms "Liability" and "Expense" as used in this Section 2 shall include, but shall not be limited to, counsel fees and disbursements and amounts of judgments, fines, or penalties against (including excise taxes assessed with respect to an employee benefit plan), and amounts paid in settlement by or on behalf of, an Eligible Person. (e) The term "Wholly Successful" as used in this Section 2 shall mean (i) termination of any Claim against the Eligible Person in question without any finding of liability or guilt against him, (ii) approval by a court, with knowledge of the indemnity herein provided, of a settlement of any Claim, or (iii) the expiration of a reasonable period of time after making or threatened making of any Claim without the institution of the same, without any payment or promise made to induce a settlement. (f) Every Eligible Person claiming indemnification hereunder (other than one who has been Wholly Successful with respect to any Claim) shall be entitled to indemnification (i) if special independent legal counsel, which may be regular counsel of the Corporation or other disinterested person or persons (who may be members of the Board of Directors), in either case selected by the Board of Directors, whether or not a disinterested quorum exists (such counsel or person or persons being hereinafter called the "Referee"), shall deliver to the Corporation a written finding that such Eligible Person has met the standards of conduct set forth in clause (ii) of Section 2(a), and (ii) if the Board of Directors, acting upon such written finding, so determines. The Board of Directors shall, if an Eligible Person is found to be entitled to indemnification pursuant to the preceding sentence, also determine the reasonableness of the Eligible Person's Expenses. The Eligible Person claiming indemnification shall, if requested, appear before the Referee, answer questions that the Referee deems relevant, and shall be given ample opportunity to present to the Referee evidence upon which he relies for indemnification. The Corporation shall, at the request of the Referee, make available facts, opinions, or other evidence in any way relevant to the Referee's finding that are within the possession or control of the Corporation. (g) If an Eligible Person claiming indemnification pursuant to Section 2(f) is found not to be entitled thereto, or if the Board of Directors fails to select a Referee under Section 2(f) within a reasonable amount of time following a written request of an Eligible Person for the selection of a Referee, or if the Referee or the Board of Directors fails to make a determination under Section 2(f) within a reasonable amount of time following the selection of a Referee, the Eligible Person may apply for indemnification with respect to a Claim to a court of competent jurisdiction, including a court in which the Claim is pending against the Eligible Person. On receipt of an application, the court, after giving notice to the Corporation and giving the Corporation ample opportunity to present to the court any information or evidence relating to the claim for indemnification that the Corporation deems appropriate, may order indemnification if it determines that the Eligible Person is entitled to indemnification with respect to the Claim because such Eligible Person met the standards of conduct set forth in clause (ii) of Section 2(a). If the court determines that the Eligible Person is entitled to indemnification, the court shall also determine the reasonableness of the Eligible Person's Expenses. (h) The right of indemnification provided in this Section 2 shall be in addition to any rights to which any Eligible Person may otherwise be entitled. Irrespective of the provisions of this Section 2, the Board of Directors may, at any time and from time to time, (i) approve indemnification of any Eligible Person to the full extent permitted by the provision of applicable law at the time in effect, whether on account of past or future transactions, and (ii) authorize the Corporation to purchase and maintain insurance on behalf of any Eligible Person 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 Corporation would have the power to indemnify him against such liability. (i) Expenses incurred by an Eligible Person with respect to any Claim may be advanced by the Corporation (by action of the Board of Directors, whether or not a disinterested quorum exists) prior to the final disposition thereof upon receipt of any undertaking by or on behalf of the recipient to repay such amount unless he is determined to be entitled to indemnification. (j) The provisions of this Section 2 shall be deemed to be a contract between the Corporation and each Eligible Person, and an Eligible Person's rights hereunder shall not be diminished or otherwise adversely affected by any repeal, amendment, or modification of this Section 2 that occurs subsequent to such person becoming an Eligible Person. (k) The provisions of this Section 2 shall be applicable to Claims made or commenced after the adoption hereof, whether arising from acts or omissions to act occurring before or after the adoption hereof. Section 3. Amendment or Repeal. Except as otherwise expressly provided for in these Amended and Restated Articles of Incorporation, the Corporation shall be deemed, for all purposes, to have reserved the right to amend, alter, change or repeal any provision contained in these Amended and Restated Articles of Incorporation to the extent and in the manner now or hereafter permitted or prescribed by statute, and all rights herein conferred upon shareholders are granted subject to such reservation. EX-3.(II) 3 amdrestbylaws012002.txt AMENDED & RESTATED BYLAWS AS OF DECEMBER 31, 2001 AMENDED AND RESTATED BYLAWS OF ANACOMP, INC. As of December 31, 2001 ARTICLE I MEETINGS OF SHAREHOLDERS Section 1.1 Annual Meetings. Annual meetings of the shareholders of the Corporation shall be held at such hour and at such place within or without the State of Indiana as shall be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the shareholders of the Corporation may be called at any time by the Board of Directors or the President. In calling such a special meeting of shareholders, the Board of Directors or the President, as the case may be, calling a special meeting of shareholders shall set the date, time, and place of such meeting, which may be held within or without the State of Indiana. Section 1.3 Notices. A written notice, stating the date, time, and place of any meeting of the shareholders, and in the case of a special meeting containing a description of the purpose or purposes for which such meeting is called, shall be delivered or mailed by the Secretary of the Corporation, to each shareholder of record of the Corporation entitled to notice of or to vote at such meeting no fewer than ten (10) nor more than sixty (60) days before the date of the meeting, or as otherwise provided by the Indiana Business Corporation Law ("Corporation Law"). Notice of shareholders' meetings, if mailed, shall be mailed, postage prepaid, to each shareholder at his address shown in the Corporation's current record of shareholders. Only business within the purpose or purposes described in the meeting notice may be conducted at a special meeting of shareholders. A shareholder or his proxy may at any time waive notice of any meeting of shareholders if the waiver is in writing and is delivered to the Corporation for inclusion in the minutes or filing with the Corporation's records. A shareholder's attendance at a meeting, whether in person or by proxy, (a) waives objection to lack of notice or defective notice of the meeting, unless the shareholder or his proxy at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (b) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder or his proxy objects to considering the matter when it is presented. Each shareholder who has in the manner above provided waived notice or objection to notice of the shareholders' meeting shall be conclusively presumed to have been given due notice of such meeting, including the purpose or purposes thereof. If an annual or special shareholders' meeting is adjourned to a different date, time or place, notice need not be given of the new date, time, or place if the new date, time or place is announced at the meeting before adjournment, unless a new record date is or must be established for the adjourned meeting. The Board of Directors must fix a new record date if the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting. Section 1.4 Voting. Except as otherwise provided by the Corporation Law or the Corporation's Articles of Incorporation, each share of the capital stock of any class of the Corporation that is outstanding at the record date and represented in person or by proxy at the annual or special meeting shall entitle the record holder thereof, or his proxy, to one (1) vote on each matter voted on at the meeting. Section 1.5 Quorum. Unless the Corporation's Articles of Incorporation or the Corporation Law provide otherwise, at all meetings of shareholders a majority of the votes entitled to be cast on a matter, represented in person or by proxy, constitutes a quorum for action on the matter. Action may be taken at a shareholders' meeting only on matters with respect to which a quorum exists; provided, however, that any meeting of shareholders, including annual and special meetings and any adjournments thereof, may be adjourned to a later date although less than a quorum is present. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any meeting held pursuant to an adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. Section 1.6 Vote Required to Take Action. If a quorum exists as to a matter to be considered at a meeting of shareholders, action on such matter (other than the election of Directors) is approved if the votes properly cast favoring the action exceed the votes properly cast opposing the action, unless the Corporation's Articles of Incorporation or the Corporation Law require a greater number of affirmative votes. Directors shall be elected by a plurality of the votes properly cast. Section 1.7 Record Date. Only such persons shall be entitled to notice or to vote, in person or by proxy, at any shareholders' meeting as shall appear as shareholders upon the books of the Corporation as of such record date as the Board of Directors shall determine, which date may not be earlier than the date seventy (70) days immediately preceding the meeting unless otherwise permitted by the Corporation Law. In the absence of such determination, the record date shall be the fiftieth (50th) day immediately preceding the date of such meeting. Unless otherwise provided by the Board of Directors, shareholders shall be determined as of the close of business on the record date. Section 1.8 Proxies. A shareholder may vote his shares either in person or by proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder (including authorizing the proxy to receive, or to waive, notice of any shareholders' meetings within the effective period of such proxy) by signing an appointment form, either personally or by the shareholder's attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes and is effective for eleven (11) months unless a longer period is expressly provided in the appointment form. The proxy's authority may be limited to a particular meeting or may be general and authorize the proxy to represent the shareholder at a meeting of shareholders held within the time provided in the appointment form. An appointment of a proxy is revocable by the shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest. Subject to the Corporation Law and to any express limitation on the proxy's authority appearing on the face of the appointment form, the Corporation is entitled to accept the proxy's vote or other action as that of the shareholder making the appointment. ARTICLE II DIRECTORS Section 2.1 Number and Term. The business of the Corporation shall be managed by a Board of Directors consisting of at least six Directors and no more than twelve Directors. The exact number of Directors of the Corporation shall be fixed by the Board of Directors within the range established by the preceding sentence, and may be changed within that range from time to time by the Board of Directors. Each Director shall be elected for a term of office to expire at the annual meeting of shareholders next following his election. Despite the expiration of a Director's term, the Director shall continue to serve until his successor is elected and qualified or until the earlier of his death, resignation, disqualification, or removal, or until there is a decrease in the number of Directors. Any vacancy in the Board of Directors, from whatever cause arising, including any increase in the size of the Board of Directors as fixed by the Board of Directors, shall be filled by selection of a successor by a majority vote of the remaining members of the Board of Directors (even if less than a quorum); provided, however, that if such vacancy or vacancies leave the Board of Directors with no members or if the remaining members of the Board of Directors are unable to agree upon a successor or determine not to select a successor, such vacancy may be filled by a vote of the shareholders at a special meeting called for that purpose or at the next annual meeting of shareholders. The term of a Director elected or selected to fill a vacancy shall expire at the end of the term for which such Director's predecessor was elected. The Directors and each of them shall have no authority to bind the Corporation except when acting as a Board of Directors or as a committee of the Board of Directors to the extent permitted in Section 2.7 hereof. A majority of the members of the Board of Directors may elect from among its members a Chairman of the Board or up to two members to be each a Co-Chairman of the Board. The Chairman of the Board shall preside at all meetings of the shareholders and the Board of Directors at which he is present. In addition, the Chairman of the Board shall have and may exercise all the powers and duties that are incident to his position that are delegated to him from time to time by the Board of Directors. Each Co-Chairman of the Board shall have and may exercise all the powers and duties that a single Chairman of the Board could have or exercise, and any reference to Chairman of the Board herein shall, if applicable, include each Co-Chairman of the Board. The Chairman of the Board may be an officer of the Corporation. Section 2.2 Quorum and Vote Required to Take Action. At least one third of the whole Board of Directors (the size of which shall be determined in accordance with the latest action of the Board of Directors fixing the number of Directors) shall be necessary to constitute a quorum for the transaction of any business, except the filling of vacancies. If a quorum is present when a vote is taken, the affirmative vote of a majority of the Directors present shall be the act of the Board of Directors, unless the act of a greater number is required by the Corporation Law, the Corporation's Articles of Incorporation, or these Bylaws. Section 2.3 Annual and Regular Meetings. The Board of Directors shall meet annually, without notice, on the same day as the annual meeting of the shareholders, for the purpose of transacting such business as properly may come before the meeting. Other regular meetings of the Board of Directors, in addition to said meeting, may be held without notice of the date, time, place or purpose of the meeting or on such dates, at such times, and at such places as shall be fixed by resolution adopted by the Board of Directors or otherwise communicated to the Directors. The Board of Directors may at any time alter the date for the next regular meeting of the Board of Directors. Section 2.4 Special Meetings. Special meetings of the Board of Directors may be called by any member of the Board of Directors upon not less than twenty-four (24) hours' notice given to each Director of the date, time and place of the meeting, which notice need not specify the purpose or purposes of the special meeting. Such notice may be communicated in person (either in writing or orally), by telephone, telegraph, teletype or other form of wire or wireless communication or by mail, and shall be effective at the earlier of the time of its receipt or, if mailed, five (5) days after its mailing. Notice of any meeting of the Board of Directors may be waived in writing at any time if the waiver is signed by the Director entitled to the notice and is filed with the minutes or corporate records. A Director's attendance at or participation in a meeting waives any required notice to the Director of the meeting, unless the Director at the beginning of the meeting (or promptly upon the Director's arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. Section 2.5 Written Consents. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board of Directors. The action must be evidenced by one (1) or more written consents describing the action taken, signed by each Director, and included in the minutes or filed with the corporate records reflecting the action taken. Action taken under this Section 2.5 is effective when the last Director signs the consent, unless the consent specifies a different prior or subsequent effective date, in which case the action is effective on or as of the specified date. A consent signed under this Section 2.5 has the effect of a meeting vote and may be described as such in any document. Section 2.6 Participation by Conference Telephone. The Board of Directors may permit any or all Directors to participate in a regular or special meeting by, or through the use of, any means of communication, such as conference telephone, by which all Directors participating may simultaneously hear each other during the meeting. A Director participating in a meeting by such means shall be deemed to be present in person at the meeting. Section 2.7 Committees. (a) The Board of Directors may create one (1) or more committees and appoint members of the Board of Directors to serve on them, by resolution of the Board of Directors adopted by a majority of all the Directors in office when the resolution is adopted. Each committee may have one (1) or more members, and all the members of a committee shall serve at the pleasure of the Board of Directors. (b) To the extent specified by the Board of Directors in the resolutions creating a committee, each committee may exercise all of the authority of the Board of Directors; provided, however, that a committee may not: (i) authorize dividends or other distributions as defined by the Corporation Law, except a committee may authorize or approve a reacquisition of shares if done according to a formula or method prescribed by the Board of Directors; (ii) approve or propose to shareholders action that is required to be approved by shareholders; (iii) fill vacancies on the Board of Directors or on any of its committees; (iv) amend the Corporation's Articles of Incorporation; (v) adopt, amend, repeal, or waive provision of these Bylaws, or (vi) approve a plan of merger not requiring shareholder approval. (c) Except to the extent inconsistent with the resolutions creating a committee, Section 2.1 thorough 2.6 of these Bylaws, which govern meetings, action without meetings, notice and waiver of notice, quorum and voting requirements, and telephone participation in meetings of the Board of Directors apply to the committee and its members as well. ARTICLE III OFFICERS Section 3.1 Designation, Selection, and Terms. The officers of the Corporation shall consist of the President and the Secretary. The Board of Directors may also elect Vice Presidents, Assistant Secretaries, a Treasurer, Assistant Treasurers, and such other officers or assistant officers as it may from time to time determine by resolution creating the office and defining the duties thereof. In addition, the President may, from time to time, create and appoint such assistant officers as he deems desirable. The officers of the Corporation shall be elected by the Board of Directors (or appointed by the President as provided above) and need not be selected from among the members of the Board of Directors. Any two (2) or more offices may be held by the same person. All officers shall serve at the pleasure of the Board of Directors and, with respect to officers appointed by the President, also at the pleasure of such officer. The election or appointment of an officer does not itself create contract rights. Section 3.2 Removal and Vacancies. The Board of Directors may remove any officer at any time with or without cause. An officer appointed by the President may also be removed at any time, with or without cause, by such officer. Vacancies in such offices, however occurring, may be filled by the Board of Directors at any meeting of the Board of Directors (or by appointment by the President, to the extent provided in Section 3.1 of these Bylaws). Section 3.3 President. The President, who need not be chosen from among the Directors, shall be the Chief Executive Officer of the Corporation and shall have general and active, executive management of the operations of the Corporation, subject, however, to the control of the Board of Directors. He shall, in general, perform all duties incident to the office of President and such other duties as from time to time may be assigned to him by the Board of Directors. Section 3.4 Secretary. The Secretary shall be the custodian of the books, papers, and records of the Corporation and of its corporate seal, if any, and shall be responsible for seeing that the Corporation maintains the records required by the Corporation Law (other than accounting records) and that the Corporation files with the Indiana Secretary of State the annual report required by the Corporation Law. The Secretary shall be responsible for preparing minutes of the meetings of the shareholders and of the Board of Directors and for authenticating records of the Corporation, and he shall perform all of the other duties usual in the office of the Secretary of a corporation. ARTICLE IV CHECKS All checks, drafts, or other orders for payment of money shall be signed in the name of the Corporation by such officers or persons as shall be designated from time to time by resolution adopted by the Board of Directors and included in the minute book of the Corporation. ARTICLE V LOANS Such of the officers of the Corporation as shall be designated from time to time by any resolution adopted by the Board of Directors and included in the minute book of the Corporation shall have the power, with such limitations thereon as may be fixed by the Board of Directors, to borrow money in the Corporation's behalf, to establish credit, to discount bills and papers, to pledge collateral, and to execute such notices, bonds, debentures, or other evidences of indebtedness, and such mortgages, trust indentures, and other instruments in connection therewith, as may be authorized from time to time by such Board of Directors. ARTICLE VI EXECUTION OF DOCUMENTS The President, or any officer designed by him, may, in the Corporation's name, sign all deeds, leases, contracts, or similar documents that may be authorized by the Board of Directors unless otherwise directed by the Board of Directors or otherwise provided herein or in the Corporation's Articles of Incorporation, or as otherwise required by law. ARTICLE VII STOCK Section 7.1 Execution. Certificates for shares of the capital stock of the Corporation shall be signed (either manually or in facsimile) by two officers designated from time to time by the Board of Directors and the seal of the Corporation (or a facsimile thereof), if any, may be thereto affixed. The Corporation may issue and deliver any such certificate notwithstanding that any such officer who shall have signed, or whose facsimile signature shall have been imprinted on, such certificate shall have ceased to be such officer. Section 7.2 Contents. Each certificate shall state on its face the name of the Corporation and that it is organized under the laws of the State of Indiana, the name of the person to whom it is issued, and the number and class and the designation of the series, if any, of shares the certificate represents, and, whenever the Corporation is authorized to issue more than one class of shares or different series within a class, each certificate issued after the effectiveness of such authorization shall further state conspicuously on its front or back that the Corporation will furnish the shareholder, upon his written request and without charge, a summary of the designations, relative rights, preferences, and limitations applicable to each class and series and the authority of the Board of Directors to determine variations in rights, preferences and limitations for future series. Section 7.3 Transfers. Except as otherwise provided by law or by resolution of the Board of Directors, transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the holder thereof in person or by duly authorized attorney, on payment of all taxes thereon and surrender for cancellation of the certificate or certificates for such shares (except as hereinafter provided in the case of loss, destruction, or mutilation of certificates) properly endorsed by the holder thereof or accompanied by the proper evidence of succession, assignment, or authority to transfer and delivered to the Secretary or an Assistant Secretary. Section 7.4 Stock Transfer Records. There shall be entered upon the stock records of the Corporation the number of each certificate issued; the name and address of the registered holder of such certificate; the number, kind, and class or series of shares represented by such certificate; the date of issue; whether the shares are originally issued or transferred; the registered holder from whom transferred; and such other information as is commonly required to be shown by such records. The stock records of the Corporation shall be kept at its principal office, unless the Corporation appoints a transfer agent or registrar, in which case the Corporation shall keep at its principal office a complete and accurate shareholders' list giving the name and addresses of all shareholders and the number and class of shares held by each. If a transfer agent is appointed by the Corporation, shareholders shall give written notice of any change in their addresses from time to time to the transfer agent. Section 7.5 Transfer Agents and Registrars. The Board of Directors may appoint one or more transfer agents and one or more registrars and may require each stock certificate to bear the signature of either or both. Section 7.6 Loss, Destruction, or Mutilation of Certificates. The holder of any of the capital stock of the Corporation shall immediately notify the Corporation of any loss, destruction, or mutilation of the certificate therefor, and the Board of Directors may, in its discretion, cause to be issued to him a new certificate or certificates of stock upon the surrender of the mutilated certificate, or, in the case of loss or destruction, upon satisfactory proof of such loss or destruction. The Board of Directors may, in its discretion, require the holder of the lost or destroyed certificate or his legal representative to give the Corporation a bond in such sum and in such form, and with such surety or sureties as it may direct, to indemnify the Corporation, its transfer agents, and its registrars, if any, against any claim that may be made against them or any of them with respect to the capital stock represented by the certificate or certificates alleged to have been lost or destroyed, but the Board of Directors may, in its discretion, refuse to issue a new certificate or certificate, save upon the order of a court having jurisdiction in such matters. Section 7.7 Form of Certificates. The form of the certificate of shares of the capital stock of the Corporation shall conform to the requirements of Section 7.2 of these Bylaws and be in such printed form as shall from time to time be approved by resolution of the Board of Directors. Section 7.8 Direct Registration System. Nothing in these Bylaws shall be construed as limiting the authority of the Board of Directors of the Corporation to authorize a direct registration system whereby the registration of the issuance and transfer of any or all of the shares of any or all classes of capital stock of the Corporation (or of any or all series of such shares) may be entered in the Corporation's stock records in book-entry form without the issuance of certificates therefor. ARTICLE VIII SEAL The corporate seal of the Corporation shall, if the Corporation elects to have one, be in the form of a disc, with the name of the Corporation on the periphery thereof and the word "SEAL" in the center. However, the use of a corporate seal or an impression thereof is not required and does not affect the validity of any instrument whatsoever. ARTICLE IX MISCELLANEOUS Section 9.1 Corporation Law. The provision of the Corporation Law, as amended, applicable to all matters relevant to, but not specifically covered by, these Bylaws are hereby, by reference, incorporated in and made a part of these Bylaws. Section 9.2 Fiscal Year. The fiscal year of the Corporation shall end on the 30th of September of each year. Section 9.3 Business Combination Chapter Applicable. The provisions of the Business Combinations Chapter of the Corporation Law (Indiana Code 23-1-43) are applicable to the Corporation. The provisions of the Control Shares Acquisition Chapter of the Corporation Law (Indiana Code 23-1-42) are inapplicable to "control share acquisitions" (as therein defined) of shares of the Corporation. Section 9.4 Definition of Articles of Incorporation. The term "Articles of Incorporation" as used in these Bylaws means the Amended and Restated Articles of Incorporation of the Corporation, as further amended and restated from time to time. Section 9.5 Amendments. These Bylaws may be rescinded, changed, or amended, and provisions hereof may be waived, at any meeting of the Board of Directors by the affirmative vote of a majority of the number of Directors then in office at the time, except as otherwise required by the Corporation's Articles of Incorporation or by the Corporation Law. EX-4 4 warrantagrmt012002.txt WARRANT AGREEMENT DATED DECEMBER 31, 2001 ANACOMP, INC. and MELLON INVESTOR SERVICES LLC, as Warrant Agent WARRANT AGREEMENT Dated as of December 31, 2001 TABLE OF CONTENTS Section 1. DEFINITIONS...........................................................1 2. EXERCISE OF WARRANT...................................................3 2.1. Manner of Exercise.............................................3 2.2. Payment of Taxes...............................................4 2.3. Fractional Shares..............................................4 3. TRANSFER, DIVISION AND COMBINATION....................................4 3.1. Division and Combination.......................................4 3.2. Expenses.......................................................4 3.3. Maintenance of Books...........................................4 4. ADJUSTMENTS...........................................................5 4.1. Stock Dividends, Subdivisions and Combinations.................5 4.2. Other Provisions Applicable to Adjustments under this Section..5 4.3. Reorganization, Reclassification, Merger, Consolidation or Disposition of Assets..........................................6 5. NOTICES TO WARRANT HOLDERS............................................7 5.1. Notice of Adjustments..........................................7 6. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY................................8 7. STOCK AND WARRANT TRANSFER BOOKS......................................8 8. LOSS OR MUTILATION....................................................8 9. OFFICE OF COMPANY.....................................................9 10. LIMITATION OF LIABILITY...............................................9 11. CONCERNING THE WARRANT AGENT..........................................9 11.1. Correctness of Statement.......................................9 11.2. Breach of Covenants............................................9 11.3. Reliance on Counsel............................................9 11.4. Reliance on Documents..........................................9 11.5. Compensation...................................................10 11.6. Legal Proceedings..............................................10 11.7. Other Transactions in Securities of the Company................10 11.8. Liability of Warrant Agent.....................................10 11.9. Adjustments to the Number of Warrant Shares....................11 12. MISCELLANEOUS.........................................................11 12.1. Nonwaiver......................................................11 12.2. Notice Generally...............................................11 12.3. Appointment of Warrant Agent...................................12 12.4. Successors and Assigns.........................................13 12.5. Amendment......................................................13 12.6. Severability...................................................13 12.7. Headings.......................................................13 12.8. Governing Law..................................................13 SIGNATURES....................................................................15 EXHIBITS Exhibit A - Form of Warrant Certificate.................................16 Exhibit B - Subscription Form...........................................19 Exhibit C - Assignment Form.............................................21 WARRANT AGREEMENT WARRANT AGREEMENT dated as of December 31, 2001 (the "Agreement"), between ANACOMP, INC., an Indiana corporation (the "Company") and Mellon Investor Services LLC, a New Jersey limited liability company, as Warrant Agent (the "Warrant Agent"). WHEREAS, in connection with the financial restructuring of the Company pursuant to that certain Plan of Reorganization (the "Plan") and Disclosure Statement dated August 29, 2001 (the "Disclosure Statement"), the Company proposes to issue the Warrants (as defined herein), representing the right to purchase up to an aggregate of 783,077 shares of its Class B Common Stock (as defined herein), subject to adjustment as hereinafter provided, to the holders of record of Common Stock as of the close of business on the Business Day immediately preceding the Effective Date; WHEREAS, the Company desires to appoint the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act in connection with the issuance, transfer, exchange, replacement and exercise of the Warrant Certificates (as defined herein) and other matters as provided herein; NOW THEREFORE, in consideration of the foregoing and for the purpose of defining the terms and provisions of the Warrants and the respective rights and obligations thereunder of the Company and the holders from time to time of the Warrants, the Company and the Warrant Agent hereby agree as follows: 1. DEFINITIONS As used in this Warrant Agreement, the following terms have the respective meanings set forth below: "Additional Shares of Class B Common Stock" means all shares of Class B Common Stock issued by the Company after the Effective Date, other than the Warrant Stock. "Business Day" means any day that is not a Saturday or Sunday or a day on which banks are required or permitted to be closed in the State of New York or the State of New Jersey. "Commission" means the Securities and Exchange Commission or any other federal agency then administering the Securities Act and other federal securities laws. "Class B Common Stock" means (except where the context otherwise indicates) the Class B Common Stock, $0.01 par value, of the Company, and any capital stock into which such Class B Common Stock may hereafter be changed, whether as a result of any change in the capital structure of the Company or otherwise. "Current Warrant Price" means, in respect of a share of Class B Common Stock at any date herein specified, the price at which a share of Class B Common Stock may be purchased pursuant to this Warrant Agreement on such date. The Current Warrant Price as of the Effective Date is $61.54, subject to adjustment in accordance with the terms hereof. "Effective Date" means the date of this Agreement. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any similar federal statute, and the rules and regulations of the Commission thereunder, as the same shall be in effect from time to time. "Exercise Period" means the period during which the Warrants are exercisable pursuant to Section 2.1. "Expiration Time" means 5:00 p.m., New York time, on the fifth (5th) anniversary of the Effective Date. "Holder" or "Holders" means the Person or Persons in whose name a Warrant or Warrants are registered on the books of the Company maintained by the Warrant Agent for such purpose. "Other Property" shall have the meaning set forth in Section 4.3. "Outstanding" means, when used with reference to Class B Common Stock, at any date as of which the number of shares thereof is to be determined, all issued shares of Class B Common Stock, except shares then owned or held by or for the account of the Company or any subsidiary thereof, and shall include all shares issuable in respect of outstanding scrip or any certificates representing fractional interests in shares of Class B Common Stock. "Person" means any individual, sole proprietorship, partnership, joint venture, limited liability company, firm, trust, an incorporated organization, association, corporation, institution, public benefit corporation, group, entity or government entity (whether federal, state, county, city, municipal or otherwise, including, without limitation, any instrumentality, division, agency, body or department thereof) and shall include any successor (by merger or otherwise) of such entity. "Securities Act" means the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "Warrant" means each of the Company's warrants issued pursuant to this Agreement, each of which evidences the right to purchase one share of Class B Common Stock, subject to adjustment as set forth in this Warrant Agreement, and all warrants issued upon transfer, division or combination of, or in substitution for, any thereof, including, without limitation, each of the Company's warrants issued pursuant to the Plan in satisfaction of the Allowed Section 510(b) Claims described therein. "Warrant Certificate" means a certificate, substantially in the form of Exhibit A hereto, representing one or more Warrants held by a Holder. All Warrant Certificates shall at all times be identical as to terms and conditions and date, except as to the number of Warrants represented thereby and the number of shares of Class B Common Stock for which such Warrants may be exercised. "Warrant Price" means an amount equal to (i) the number of shares of Class B Common Stock being purchased upon exercise of Warrants pursuant to Section 2.1, multiplied by (ii) the Current Warrant Price as of the date of such exercise. "Warrant Stock" means the shares of Class B Common Stock purchased by the holders of the Warrants upon the exercise thereof. 2. EXERCISE OF WARRANT 2.1. Manner of Exercise. From and after the date hereof and until the Expiration Time, a Holder may exercise Warrants, at any time and from time to time, on any Business Day, for all or any part of the number of shares of Class B Common Stock purchasable hereunder. In order to exercise Warrants, a Holder shall deliver to the Warrant Agent at its designated office located at 85 Challenger Road, Ridgefield Park, NJ 07660 in accordance with Section 9, (i) a written notice of such Holder's election to exercise such Warrants, which notice shall specify the number of shares of Class B Common Stock to be purchased, (ii) payment of the Warrant Price and (iii) the Warrant Certificate in respect of the Warrants being exercised. Such notice shall be substantially in the form of the subscription form attached hereto as Exhibit B, duly executed by such Holder or its designated agent or attorney. Upon receipt thereof, the Company shall, as promptly as practicable, and in any event within five (5) Business Days thereafter, execute or cause to be executed and deliver or cause to be delivered to such Holder a certificate or certificates representing the aggregate number of full shares of Class B Common Stock issuable upon such exercise. The stock certificate or certificates so delivered shall be, to the extent possible, in such denomination or denominations as a Holder shall request in the notice and shall be registered in the name of such Holder or, such other name as shall be designated in the notice delivered to the Warrant Agent by such Holder. Warrants shall be deemed to have been exercised and such certificate or certificates shall be deemed to have been issued, and a Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date the notice when the applicable payment of the Warrant Price and the Warrant Certificate are received by the Warrant Agent as described above and all taxes and charges required to be paid by a Holder, if any, pursuant to Section 2.2 prior to the issuance of such shares have been paid. If the Warrants represented by a Warrant Certificate shall have been exercised in part, the Warrant Agent shall, at the time of delivery of the certificate or certificates representing Warrant Stock, deliver to a Holder a new Warrant Certificate evidencing the rights of such Holder to purchase the unpurchased shares of Class B Common Stock called for by the Warrant Certificate surrendered, which new Warrant Certificate shall in all other respects be identical with the Warrant Certificate so surrendered, or, at the written request of a Holder, appropriate notation may be made on the Warrant Certificate so surrendered and the same returned to such Holder. Notwithstanding any provision herein to the contrary, the Company shall not be required to register shares in the name of any Person who acquired Warrants or any Warrant Stock otherwise than in accordance with this Warrant Agreement. Payment of the Warrant Price shall be made at the option of a Holder by certified or official bank check or by such other method as the Company shall have instructed the Warrant Agent in writing. 2.2. Payment of Taxes. All shares of Class B Common Stock issuable upon the exercise of Warrants pursuant to the terms hereof shall be validly issued, fully paid and nonassessable and without any preemptive rights. The Company shall pay all expenses in connection with, and all taxes and other governmental charges that may be imposed with respect to, the issue or delivery thereof, unless such tax or charge is imposed by law upon a Holder, in which case such taxes or charges shall be paid by such Holder. The Company shall not be required, however, to pay any tax or other charge imposed in connection with any transfer involved in the issue of any certificate for shares of Class B Common Stock issuable upon exercise of Warrants in any name other than that of a Holder, and in such case the Company shall not be required to issue or deliver any stock certificate until such tax or other charge has been paid or it has been established to the satisfaction of the Company that no such tax or other charge is due. The Warrant Agent shall have no duty or obligation under this Section or any other similar provision of this Agreement unless and until it is satisfied that all such taxes and/or governmental charges have been paid in full. 2.3. Fractional Shares. The Company shall not be required to issue a fractional share of Class B Common Stock upon exercise of any Warrants. As to any fraction of a share which a Holder of one or more Warrants, the rights under which are exercised in the same transaction, would otherwise be entitled to purchase upon such exercise, the number of shares that such Holder shall be entitled to purchase shall reflect such fractional amount rounded downward to the nearest whole share amount. 3. TRANSFER, DIVISION AND COMBINATION 3.1. Division and Combination. A Warrant Certificate may be exchanged for a new Warrant Certificate and Warrants may be divided or combined with other Warrants upon presentation of the Warrant Certificate(s) therefor at the aforesaid office of the Warrant Agent, together with a written notice specifying the names and denominations in which new Warrant Certificates are to be issued, signed by a Holder or its designated agent or attorney. Subject to compliance with this Section 3.1, as to any transfer which may be involved in such division or combination, the Warrant Agent shall execute and deliver a new Warrant Certificate(s) in exchange for the Warrant Certificate(a) representing the Warrants to be divided or combined in accordance with such notice. 3.2. Expenses. The Company shall prepare, issue and deliver at its own expense (other than taxes or governmental charges) the new Warrant Certificates under this Section 3. 3.3. Maintenance of Books. The Company agrees to maintain, at its aforesaid office or agency, books for the registration and the registration of transfer of the Warrants. 4. ADJUSTMENTS The number of shares of Class B Common Stock for which Warrants are exercisable, and the price at which such shares may be purchased upon exercise of Warrants, shall be subject to adjustment from time to time as set forth in this Section 4. The Company shall give to the Warrant Agent and to each Holder a notice of any event described below which requires an adjustment pursuant to this Section 4 at the time of such event. 4.1. Stock Dividends, Subdivisions and Combinations. If at any time the Company shall: (a) take a record of the holders of its Class B Common Stock for the purpose of entitling them to receive a dividend payable in, or make any other distribution of, Additional Shares of Class B Common Stock to the holders of its Class B Common Stock, (b) subdivide its outstanding shares of Class B Common Stock into a larger number of shares of Class B Common Stock, or (c) combine its outstanding shares of Class B Common Stock into a smaller number of shares of Class B Common Stock, then (i) the number of shares of Class B Common Stock for which Warrants are exercisable immediately after the occurrence of any such event shall be adjusted to equal the number of shares of Class B Common Stock which a record holder of the same number of shares of Class B Common Stock for which such Warrants are exercisable immediately prior to the occurrence of such event would own or be entitled to receive after the happening of such event, and (ii) the Current Warrant Price shall be adjusted to equal (A) the Current Warrant Price multiplied by the number of shares of Class B Common Stock for which such Warrants are exercisable immediately prior to the adjustment divided by (B) the number of shares for which such Warrants are exercisable immediately after such adjustment. 4.2. Other Provisions Applicable to Adjustments under this Section. The following provisions shall be applicable to the making of adjustments of the number of shares of Class B Common Stock for which Warrants are exercisable and the Current Warrant Price provided for in this Section 4: (a) When Adjustments to Be Made. The adjustments required by this Section 4 shall be made whenever and as often as any specified event requiring an adjustment shall occur, except that any adjustment of the number of shares of Class B Common Stock for which Warrants are exercisable that would otherwise be required may be postponed up to, but not beyond the date of exercise, if such adjustment either by itself or with other adjustments not previously made adds or subtracts less than 1% of the shares of Class B Common Stock for which Warrants are exercisable immediately prior to the making of such adjustment. Any adjustment representing a change of less than such minimum amount which is postponed shall be carried forward and made as soon as such adjustment, together with other adjustments required by this Section 4 and not previously made, would result in a minimum adjustment or on the date of exercise. For the purpose of any adjustment, any specified event shall be deemed to have occurred at the close of business on the date of its occurrence. (b) Fractional Interests. In computing adjustments under this Section 4, fractionaL interests in Common Stock shall be taken into account to the nearest 1/100th of a share. 4.3. Reorganization, Reclassification, Merger, Consolidation or Disposition of Assets. In case the Company shall reorganize its capital, reclassify its capital stock, consolidate or merge with or into another Person (where the Company is not the surviving corporation or where there is a change in or distribution with respect to the Common Stock of the Company), or sell, transfer or otherwise dispose of all or substantially all its property, assets or business to another Person and, pursuant to the terms of such reorganization, reclassification, merger, consolidation or disposition of assets, shares of common stock of the successor or acquiring Person, or any cash, shares of stock or other securities or property of any nature whatsoever (including warrants or other subscription or purchase rights) in addition to or in lieu of common stock of the successor or acquiring Person ("Other Property"), are to be received by or distributed to the holders of Class B Common Stock of the Company, then each Holder shall have the right thereafter to receive, upon exercise of Warrants, the number of shares of common stock of the successor or acquiring Person or of the Company, if it is the surviving corporation, and Other Property receivable upon or as a result of such reorganization, reclassification, merger, consolidation or disposition of assets by a holder of the number of shares of Class B Common Stock for which such Warrants are exercisable immediately prior to such event. In case of any such reorganization, reclassification, merger, consolidation or disposition of assets, the successor or acquiring corporation (if other than the Company) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant Agreement to be performed and observed by the Company and all the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined by resolution of the Board of Directors of the Company) in order to provide for adjustments of shares of the Class B Common Stock for which Warrants are exercisable which shall be as nearly equivalent as practicable to the adjustments provided for in this Section 4. For purposes of this Section 4.3, "common stock of the successor or acquiring corporation" shall include stock of such corporation of any class which is not preferred as to dividends or assets over any other class of stock of such corporation and which is not subject to redemption and shall also include any evidences of indebtedness, shares of stock or other securities which are convertible into or exchangeable for any such stock, either immediately or upon the arrival of a specified date or the happening of a specified event and any warrants or other rights to subscribe for or purchase any such stock. The foregoing provisions of this Section 4.3 shall similarly apply to successive reorganizations, reclassifications, mergers, consolidations or disposition of assets. 4.4. Special Adjustments. (a) In accordance with the Plan and in compliance with the Confirmation Order issued by the United States Bankruptcy Court for the Southern District of California in connection therewith, and notwithstanding any provision contained herein or in any Warrant Certificate to the contrary, the aggregate number of shares of Class B Common Stock that may be purchased upon exercise of the Warrants issued and outstanding at any time hereunder shall be reduced equally and ratably among all of the Holders of such Warrants on each occasion that an additional Warrant Certificate of like tenor is issued by the Company hereunder in satisfaction of any Allowed Section 510(b) Common Claim (as such term is defined in the Plan), so that at all times no more than an aggregate of 783,077 (the "Maximum Number") shares of Class B Common Stock may be purchased upon exercise of the Warrants. (b) The Maximum Number of shares of Class B Common Stock that may be purchased upon exercise of the Warrants, and the Current Warrant Price shall be subject to adjustment in accordance with the other provisions of this Section 4; provided, however, that there shall be no adjustment in the Current Warrant Price as a result of the issuance of an additional Warrant Certificate in satisfaction of any Allowed Section 510(b) Claim. (c) Each Warrant Certificate shall bear the following legend: IN ACCORDANCE WITH THE PLAN OF REORGANIZATION, DATED AUGUST 29, 2001 (THE "PLAN"), OF THE COMPANY, AND THE CONFIRMATION ORDER ISSUED BY THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA IN CONNECTION THEREWITH, AND NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS WARRANT CERTIFICATE TO THE CONTRARY, THE AGGREGATE NUMBER OF SHARES OF CLASS B COMMON STOCK THAT MAY BE PURCHASED UPON THE EXERCISE OF THIS WARRANT CERTIFICATE AND ALL WARRANT CERTIFICATES OF LIKE TENOR THEN OUTSTANDING SHALL BE REDUCED EQUALLY AND RATABLY AMONG ALL OF THE HOLDERS THEREOF ON EACH OCCASION THAT AN ADDITIONAL WARRANT CERTIFICATE OF LIKE TENOR SHALL BE ISSUED BY THE COMPANY IN SATISFACTION OF ANY ALLOWED SECTION 510(B) COMMON CLAIM (AS SUCH TERM IS DEFINED IN THE PLAN). THE NUMBER OF SHARES OF CLASS B COMMON STOCK THAT MAY BE PURCHASED UPON THE EXERCISE OF THIS WARRANT CERTIFICATE, AS SET FORTH HEREIN, SHALL BE DEEMED TO BE AUTOMATICALLY REDUCED AS OF THE RECORD DATE OF EACH SUCH ISSUANCE IN ACCORDANCE WITH THE TERMS SET FORTH IN THE WARRANT AGREEMENT DESCRIBED HEREIN. 5. NOTICES TO WARRANT HOLDERS 5.1. Notice of Adjustments. Whenever the number of shares of Class B Common Stock for which Warrants are exercisable, or whenever the price at which a share of such Class B Common Stock may be purchased upon exercise of Warrants shall be adjusted pursuant to Section 4, or whenever the Company shall issue an additional Warrant Certificate in satisfaction of an Allowed Section 510(b) Claim thereby necessitating a reduction in the number of Shares of Class B Common Stock that may be purchased upon exercise of the other Warrants then outstanding, the Company shall forthwith prepare a certificate to be executed by the chief financial officer of the Company setting forth, in reasonable detail, the event requiring the adjustment or reduction and the facts, computations, and method by which such adjustment or reduction was calculated specifying the number of shares of Class B Common Stock for which Warrants are exercisable and (if such adjustment was made pursuant to Section 4.3) describing the number and kind of any other shares of stock or Other Property for which Warrants are exercisable, and any change in the purchase price or prices thereof, after giving effect to such adjustment or reduction. The Company shall promptly cause a signed copy of such certificate to be delivered to the Warrant Agent and to each Holder in accordance with Section 12.2. The Company shall keep at its office or agency designated pursuant to Section 9 copies of all such certificates and cause the same to be available for inspection at said office during normal business hours by any Holder or any prospective purchaser of Warrants designated by a Holder thereof. 6. RESERVATION AND AUTHORIZATION OF CLASS B COMMON STOCK; REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY From and after the Effective Date, the Company shall at all times reserve and keep available for issue upon the exercise of Warrants such number of its authorized but unissued shares of Class B Common Stock as will be sufficient to permit the exercise in full of all outstanding Warrants. All shares of Class B Common Stock which shall be so issuable, when issued upon exercise of any Warrant and payment therefor in accordance with the terms of this Warrant Agreement, shall be duly and validly issued and fully paid and nonassessable, and not subject to preemptive rights. If any shares of Class B Common Stock required to be reserved for issuance upon exercise of Warrants require registration or qualification with any governmental authority or other governmental approval or filing under any federal or state law before such shares may be so issued, the Company will in good faith (subject to all applicable laws including, without limitation, those rules and regulations promulgated under the Securities Act) and as expeditiously as possible and at its expense endeavor to cause such shares to be duly registered. 7. STOCK AND WARRANT TRANSFER BOOKS The Company will not at any time, except upon dissolution, liquidation or winding up of the Company, close its stock transfer books or Warrant transfer books so as to result in preventing or delaying the exercise or transfer of any Warrant. 8. LOSS OR MUTILATION Upon receipt by the Company from any Holder of evidence satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of a Warrant Certificate and indemnity satisfactory to it, and in case of mutilation upon surrender and cancellation hereof, the Company will execute and deliver in lieu hereof a new Warrant of like tenor to such Holder. 9. OFFICE OF Warrant Agent As long as any of the Warrants remain outstanding, the Warrant Agent, on behalf of the Company, shall maintain an office or agency where the Warrants may be presented for exercise, registration of transfer, division or combination as provided in this Warrant Agreement. 10. LIMITATION OF LIABILITY No provision hereof, in the absence of affirmative action by a Holder to purchase shares of Class B Common Stock, and no enumeration herein of the rights or privileges of a Holder hereof, shall give rise to any liability of such Holder for the purchase price of any Class B Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. 11. CONCERNING THE WARRANT AGENT The Warrant Agent undertakes the duties and obligations expressly imposed by this Agreement (and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent) upon the following terms and conditions, by all of which the Company and the Holders, by their acceptance of the Warrants, shall be bound: 11.1. Correctness of Statement. The statements contained herein and in the Warrant Certificates shall be taken as statements of the Company, and the Warrant Agent shall not be liable for, and assumes no responsibility for the correctness of any of the same. The Warrant Agent shall not be liable for, and assumes no responsibility with respect to the distribution of the Warrant Certificates except to follow the written instructions from the Company and the Holders in accordance with the provisions hereunder. 11.2. Breach of Covenants. The Warrant Agent shall not be liable for, nor be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with by the Company. 11.3. Reliance on Counsel. The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company) and the Warrant Agent shall incur no liability or responsibility to the Company or to any Holder in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel. 11.4. Reliance on Documents. The Warrant Agent shall incur no liability or responsibility to the Company or to any Holder for any action taken, suffered or omitted in reliance on any Warrant Certificate, certificate of shares, notice, resolution, waiver, consent, order certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. The Warrant Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except its countersignature thereof). 11.5. Compensation and Indemnification. The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent (including its reasonable expenses and counsel fees and disbursements) in the preparation, execution, delivery, amendment and administration and the exercise and performance of its duties under this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and other charges of any kind and nature incurred by the Warrant Agent in the execution of this Agreement and to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Warrant Agent (each as finally determined by a court of competent jurisdiction) for any action taken, suffered or omitted by the Warrant Agent in connection with the acceptance and administration of this Agreement, including the costs and expenses of defending against any claim of liability in the premises. The indemnity provided herein shall survive the termination of this Agreement, the termination and the expiration of the Warrants, and the resignation or removal of the Warrant Agent. The costs and expenses incurred in enforcing this right of indemnification shall be paid by the Company. 11.6. Legal Proceedings. The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more Holders shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred, but this provision shall not affect the power of the Warrant Agent to take such action as it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrant Certificates may be enforced by the Warrant Agent without possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the Holders, as their respective rights or interests may appear. 11.7. Other Transactions in Securities of the Company. Except as prohibited by law, the Warrant Agent, and any affiliate stockholder, director, officer or employee of it, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other Person. 11.8. Liability of Warrant Agent. The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own gross negligence, willful misconduct or bad faith (each as finally determined by a court of competent jurisdiction.) Anything to the contrary notwithstanding, in no event shall the Warrant Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage. Any liability of the Warrant Agent under this Warrant Agreement will be limited to the amount of fees paid by the Company to the Warrant Agent. 11.9. Adjustments to the Number of Warrant Shares. The Warrant Agent shall not at any time be under any duty or responsibility to any Holder to make or cause to be made any adjustment of the Warrant Price or number of shares of the Warrant Stock deliverable as provided in this Agreement, or to determine whether any facts exist which may require any of such adjustments, or with respect to the nature or extent of any such adjustments, when made, or with respect to the method employed in making the same. The Warrant Agent shall not be accountable with respect to the validity or value or the kind or amount of any shares of Warrant Stock or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or with respect to whether any such Warrant Stock or other securities will when issued be validly issued and fully paid and nonassessable, and makes no representation with respect thereto. The Warrant Agent may resign its duties and be discharged from all further duties, obligations and liabilities hereunder, after giving thirty (30) days prior written notice to the Company. At least fifteen (15) days prior to the date such resignation is to become effective, the Warrant Agent shall cause a copy of such notice of resignation to be mailed to the Holder of each Warrant Certificate at the Company's expense. Upon such resignation, or any inability of the Warrant Agent to act as such hereunder, the Company shall appoint a new warrant agent in writing ( the "successor warrant agent"). The successor warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without further assurance, conveyance, act or deed; but if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of the Company and shall be legally and validly executed and delivered by the resigning Warrant Agent. 12. MISCELLANEOUS 12.1. Nonwaiver. No course of dealing or any delay or failure to exercise any right hereunder on the part of any Holder shall operate as a waiver of such right or otherwise prejudice Holder's rights, powers or remedies. 12.2. Notice Generally. Any notice, demand, request, consent, approval, declaration, delivery or other communication hereunder to be made pursuant to the provisions of this Warrant Agreement shall be sufficiently given or made if in writing and either (i) delivered in person with receipt acknowledged, (ii) sent by registered or certified mail, return receipt requested, postage prepaid, or (iii) by telecopy and confirmed by telecopy answer back, addressed as follows: (a) If to any Holder or holder of Warrant Stock, at its last known address appearing on the books of the Company maintained by the Warrant Agent for such purpose; (b) If to the Warrant Agent, at 44 Wall Street, 6th floor, New York, NY 10005, with a copy to Mellon Investor Services LLC, at 85 Challenger Road, Ridgefield Park, NJ 07660; or (c) If to the Company, at 12365 Crosthwaite Circle, Poway, California 92064; or at such other address as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Every notice, demand, request, consent, approval, declaration, delivery or other communication hereunder shall be deemed to have been duly given or served on the date on which personally delivered, with receipt acknowledged, telecopied and confirmed by telecopy answerback, or three (3) Business Days after the same shall have been deposited in the United States mail. Failure or delay in delivering copies of any notice, demand, request, approval, declaration, delivery or other communication to the person designated above to receive a copy shall in no way adversely affect the effectiveness of such notice, demand, request, approval, declaration, delivery or other communication. 12.3. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth herein, and the Warrant Agent hereby accepts such appointment. 12.4. Concerning the Warrant Agent: (a) Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking, suffering or omitting any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by an Officer and delivered to the Warrant Agent; and such certificate shall be full authorization to the Warrant Agent, and the Warrant Agent shall incur no liability for or in respect of any action taken, suffered or omitted in good faith by it under the provisions of this Agreement in reliance upon such certificate. (b) The Warrant Agent is hereby authorized and directed to accept advice or instructions with respect to the performance of its duties hereunder from any Officer, and to apply to any Officer for advice or instructions in connection with its duties hereunder, and such advice or instructions shall be full authorization and protection to the Warrant Agent and the Warrant Agent shall incur no liability for or in respect of any action taken, suffered or omitted by it in accordance with the advice or instructions of any Officer or for any delay in acting while waiting for such advice or instructions. (c) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Warrant Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company or any other Person resulting from any such act, default, neglect or misconduct, absent gross negligence, bad faith or willful misconduct (each as finally determined by a court of competent jurisdiction) in the selection and continued employment thereof. (d) No provision of this Agreement shall require the Warrant Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if it believes that repayment of such funds or adequate indemnification against such risk or liability is not assured it. 12.5. Successors and Assigns. This Warrant Agreement and the rights evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company, the Warrant Agent and the successors and assigns of each Holder. The provisions of this Warrant Agreement are intended to be for the benefit of all Holders from time to time of a Warrant or Warrants and holders of Warrant Stock, and shall be enforceable by any such Holder or holder of Warrant Stock. 12.6. Amendment. The Company and the Warrant Agent may from time to time supplement or amend this Warrant Agreement without the approval of any Holders in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions or change in regard to matters or questions arising hereunder or any supplement agreement which the Company and the Warrant Agent may deem necessary or desirable and which shall materially not adversely affect the interests of the Holders. 12.7. Severability. Wherever possible, each provision of this Warrant Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Warrant Agreement. 12.8. Headings. The headings used in this Warrant Agreement are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant Agreement. 12.9. Governing Law. This Warrant Agreement shall be governed by the laws of the State of New York, without regard to the provisions thereof relating to conflict of laws. IN WITNESS WHEREOF, the Company and the Warrant Agent have caused this Warrant Agreement to be duly executed as of the date first written above. ANACOMP, INC. By: ___________________________________________ Name: Title: MELLON INVESTOR SERVICES LLC By: ___________________________________________ Name: Title: EXHIBIT A FORM OF WARRANT CERTIFICATE IN ACCORDANCE WITH THE PLAN OF REORGANIZATION, DATED AUGUST 29, 2001 (THE "PLAN"), OF THE COMPANY, AND THE CONFIRMATION ORDER ISSUED BY THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA IN CONNECTION THEREWITH, AND NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS WARRANT CERTIFICATE TO THE CONTRARY, THE AGGREGATE NUMBER OF SHARES OF CLASS B COMMON STOCK THAT MAY BE PURCHASED UPON THE EXERCISE OF THIS WARRANT CERTIFICATE AND ALL WARRANT CERTIFICATES OF LIKE TENOR THEN OUTSTANDING SHALL BE REDUCED EQUALLY AND RATABLY AMONG ALL OF THE HOLDERS THEREOF ON EACH OCCASION THAT AN ADDITIONAL WARRANT CERTIFICATE OF LIKE TENOR SHALL BE ISSUED BY THE COMPANY IN SATISFACTION OF ANY ALLOWED SECTION 510(B) COMMON CLAIM (AS SUCH TERM IS DEFINED IN THE PLAN). THE NUMBER OF SHARES OF CLASS B COMMON STOCK THAT MAY BE PURCHASED UPON THE EXERCISE OF THIS WARRANT CERTIFICATE, AS SET FORTH HEREIN, SHALL BE DEEMED TO BE AUTOMATICALLY REDUCED AS OF THE RECORD DATE OF EACH SUCH ISSUANCE IN ACCORDANCE WITH THE TERMS SET FORTH IN THE WARRANT AGREEMENT DESCRIBED HEREIN. WARRANT ANACOMP, INC. No. __________________ [_____] Shares of Class B Common Stock Incorporated Under the Laws of the State of Indiana THIS CERTIFIES THAT, for value received, ______________________, the registered holder hereof or registered assigns (the "Holder"), is entitled to purchase from ANACOMP, INC., an Indiana corporation (the "Company"), at the time commencing as set forth in Section 2.1 of the Warrant Agreement (as defined below), and until 5:00pm New York time on December 31, 2006 (the "Expiration Time"), at the purchase price of $61.54 (subject to adjustment as described below) per whole share (the "Current Warrant Price"), the number of fully paid and nonassessable shares of Class B Common Stock, par value $0.01 per share (the "Common Stock"), of the Company set forth above. The number of shares purchasable upon exercise of each Warrant and the Current Warrant Price per whole share shall be subject to adjustment from time to time as set forth in the Warrant Agreement referred to below. The Warrants represented hereby may be exercised in whole or in part by presentation of this Warrant Certificate with the Subscription Form included herein duly executed, which signature shall be guaranteed by a bank or trust company having an office or correspondent in the United States or a broker or dealer which is a member of a registered securities exchange or the National Association of Securities Dealers, Inc., and simultaneous payment of the Current Warrant Price multiplied by the number of Warrants being exercised at the designated office of Mellon Investor Services LLC (the "Warrant Agent") at 85 Challenger Road, Ridgefield Park, NJ 07660. Payment of such price shall be made at the option of the Holder hereof by certified or official bank check. The Warrants represented hereby are of a duly authorized issue of Warrants evidencing the right to purchase an aggregate of 783,077 shares of Class B Common Stock and are issued under and in accordance with a Warrant Agreement (the "Warrant Agreement"), dated as of December 31, 2001, between the Company and the Warrant Agent and are subject to the terms and provisions contained in the Warrant Agreement, to all of which the Holder of this Warrant Certificate by acceptance hereof consents. A copy of the Warrant Agreement is available for inspection at the principal office of the Company. Upon any partial exercise of the Warrants represented hereby, there shall be countersigned and issued to the Holder hereof a new Warrant Certificate in respect of the shares of Class B Common Stock as to which the Warrants represented hereby shall not have been exercised. The Warrants represented hereby may be exchanged at the office of the Warrant Agent by surrender of this Warrant Certificate properly endorsed either separately or in combination with one or more other Warrant Certificates for one or more new Warrant Certificates representing Warrants entitling the Holder thereof to purchase the same aggregate number of shares as were purchased on exercise of the Warrant or Warrants exchanged. No fractional shares will be issued upon the exercise of these Warrants. Subject to compliance with applicable securities laws, the Warrants represented hereby are transferable at the office of the Warrant Agent, in the manner and subject to the limitations set forth in the Warrant Agreement. The Holder hereof may be treated by the Company, the Warrant Agent and all other persons dealing with this Warrant Certificate as the absolute owner hereof for any purpose and as the person entitled to exercise the rights represented hereby, or to the transfer hereof on the books of the Company, any notice to the contrary notwithstanding, and until such transfer on such books, the Company may treat the Holder hereof as the owner for all purposes. The Warrants represented hereby do not entitle any Holder hereof to any of the rights of a shareholder of the Company. The Warrants represented hereby shall not be valid or obligatory for any purpose until this Warrant Certificate shall have been countersigned by the Warrant Agent. Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. Dated: [_______________] Countersigned and Registered: MELLON INVESTOR SERVICES LLC, as Warrant Agent By:____________________________________________ Authorized Signature ANACOMP, INC. By:________________________________________ President and Chief Executive Officer Attest:____________________________________ Secretary EXHIBIT B SUBSCRIPTION FORM [To be executed only upon exercise of a Warrant or Warrants] The undersigned registered owner of the Warrant(s) represented by Warrant Certificate No. [________] irrevocably exercises [_______] Warrant(s) for the purchase of [_______] shares of Class B Common Stock of ANACOMP, INC. and herewith makes payment therefor, all at the price and on the terms and conditions specified in the Warrant Agreement and requests that certificates for the shares of Class B Common Stock hereby purchased (and any securities or other property issuable upon such exercise) be issued in the name of and delivered to [_____________] whose address is [__________________] and, if such shares of Class B Common Stock shall not include all of the shares of Class B Common Stock issuable as provided in the Warrant Certificate, that a new Warrant Certificate of like tenor and date for the balance of the shares of Class B Common Stock issuable thereunder be delivered to the undersigned. ___________________________________ (Name of Registered Owner) ___________________________________ (Signature of Registered Owner) ___________________________________ (Street Address) __________________________________ ___________________________________ (Signature Guarantee) (City)(State) (Zip Code) NOTICE: The signature on this subscription form must correspond with the name as written upon the face of the Warrant in every particular, without alteration or enlargement or any change whatsoever. Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officer. Dated: [ ] ------ Countersigned and Registered: MELLON INVESTOR SERVICES LLC, as Warrant Agent By: ___________________________________________ Authorized Signature [Name] [Title] ANACOMP, INC. By: _____________________________________ President and Chief Executive Officer Attest:__________________________________ Secretary EXHIBIT C ASSIGNMENT FORM FOR VALUE RECEIVED the undersigned registered owner of the Warrant(s) represented by Warrant Certificate No. [_______] hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under the Warrant Agreement, with respect to the number of shares of Class B Common Stock set forth below: Name and Address of Assignee No. of Shares of Common Stock - ---------------------------- ----------------------------- and does hereby irrevocably constitute and appoint [_____________________] attorney-in-fact to register such transfer on the books of ANACOMP, INC. maintained for the purpose, with full power of substitution in the premises. Dated:___________________ Print Name: _______________________________ Signature: _______________________________ Witness: _______________________________ - ------------------------------------ (Signature Guarantee) NOTICE: The signature on this assignment must correspond with the name as written upon the face of the Warrant in every particular, without alteration or enlargement or any change whatsoever. -----END PRIVACY-ENHANCED MESSAGE-----