STOCK PURCHASE AGREEMENT

Exhibit 2.1

Execution Copy

STOCK PURCHASE AGREEMENT

by and among

Visant Corporation,

R.R. Donnelley & Sons Company

and, solely for purposes of Section 5.8 hereof,

Visant Holding Corp.

Dated as of January 2, 2007

TABLE OF CONTENTS

 

 

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STOCK PURCHASE AGREEMENT (this “ Agreement ”), dated as of January 2, 2007, by and among Visant Corporation, a Delaware corporation (“ Visant ”), R.R. Donnelley & Sons Company, a Delaware corporation (“ Buyer ”) and, solely for purposes of Section 5.8 hereof, Visant Holding Corp., a Delaware corporation.

WITNESSETH:

WHEREAS, Visant owns all of the issued and outstanding shares of common stock, par value $0.01 per share (the “ Von Hoffmann Common Shares ”), of Von Hoffmann Holdings Inc., a Delaware corporation (“ Von Hoffmann ”);

WHEREAS, Visant desires to sell, transfer and assign to Buyer, and Buyer desires to purchase from Visant, all of the issued and outstanding Von Hoffmann Common Shares, as more specifically provided herein; and

WHEREAS, in connection with the foregoing, Visant and Buyer desire to enter into the Transition Services Agreement (as defined herein).

NOW, THEREFORE, in consideration of the foregoing and the respective agreements, covenants, representations, warranties and undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:

ARTICLE I

Definitions

Section 1.1 Specific Definitions . As used in this Agreement, the following terms shall have the meanings set forth or referenced below:

“ Accounting Firm ” shall have the meaning set forth in Section 2.6(b).

“ Accounts Payable ” means all current trade payables of Von Hoffmann and the Transferred Subsidiaries or the Business as of the Closing arising out of the receipt of goods or services by the Business.

“ Affected Employees ” means Employees who are employed or engaged, as applicable, by Von Hoffmann or any of the Transferred Subsidiaries immediately prior to the Closing and who remain employed or engaged, as applicable, by Buyer or any of its Subsidiaries immediately after the Closing.

“ Affiliate ”, as applied to any Person, shall mean any other Person directly or indirectly Controlling, Controlled by or under common Control with such Person; it being understood that, with respect to the period on and prior to the Closing, Von Hoffmann and the Transferred Subsidiaries shall be deemed to be Affiliates of Visant and that, with respect to the period following the Closing, Von Hoffmann and the Transferred Subsidiaries shall be deemed not to be Affiliates of Visant.

“ Agreement ” shall have the meaning set forth in the Preamble.

“ Ancillary Agreements ” shall mean the Transition Services Agreement.

“ Annual Balance Sheets ” shall have the meaning set forth in Section 3.7.

“ Annual Financial Statements ” shall have the meaning set forth in Section 3.7.

“ Benefit Plans ” shall have the meaning set forth in Section 3.20(a).

“ Books and Records ” shall mean all books, ledgers, files, reports, Tax Returns, plans, records, manuals and other materials (in any form or medium) of, or maintained for, Von Hoffmann or any of the Transferred Subsidiaries or the Business, wherever located, but excluding any such items to the extent (i) they are primarily related to Visant or any of its Affiliates (other than Von Hoffmann or any of the Transferred Subsidiaries), (ii) any Law prohibits their transfer or (iii) any transfer thereof would subject Visant or any of its Affiliates to any material Liability.

“ Business ” shall mean the book and commercial printing business of Von Hoffmann and the Transferred Subsidiaries as currently conducted, including printing for educational publishers and testing as well as digital prepress and premedia services related to the foregoing.

“ Business Contracts ” shall mean all Contracts (other than this Agreement and the Ancillary Agreements) to which Von Hoffmann or any Transferred Subsidiary is a party (excluding any Benefit Plans and oral Contracts that are immaterial).

“ Business Day ” shall mean any day other than a Saturday, a Sunday or a day on which banks in New York City are authorized or obligated by Law or executive order to close.

“ Buyer ” shall have the meaning set forth in the Preamble.

“ Buyer 401(k) Plan ” shall have the meaning set forth in Section 5.5(b).

“ Buyer Indemnified Parties ” shall have the meaning set forth in Section 8.2(a).

“ Buyer Tax Act ” shall have the meaning set forth in Section 5.15(a).

 

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“ Chosen Courts ” shall have the meaning set forth in Section 9.9.

“ Claim Notice ” shall have the meaning set forth in Section 8.4(a).

“ Closing ” shall have the meaning set forth in Section 2.3.

“ Closing Date ” shall have the meaning set forth in Section 2.3.

“ Closing Date Working Capital ” shall mean Working Capital as of immediately prior to the open of business on the Closing Date.

“ Closing Date Working Capital Statement ” shall mean the working capital statement that sets forth the Current Assets and Current Liabilities of Von Hoffmann and the Transferred Subsidiaries as of immediately prior to the open of business on the Closing Date, prepared, or caused to be prepared, by Buyer in accordance with Section 2.6 hereof and, in the event of an Objection, as adjusted by either the agreement of Visant, on the one hand, and Buyer, on the other hand, or by the Accounting Firm, acting pursuant to Section 2.6(b).

“ Code ” shall mean the Internal Revenue Code of 1986, as amended.

“ Competing Business ” shall have the meaning set forth in Section 5.8(a).

“ Confidentiality Agreement ” shall have the meaning set forth in Section 5.3(b).

“ Contracts ” shall mean all agreements, contracts, leases and subleases, purchase orders, arrangements, commitments and licenses under which there are existing or future rights or obligations.

“ Control ” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“ Current Assets ” shall mean the current assets of Von Hoffmann and the Transferred Subsidiaries as of the Closing, as determined in accordance with GAAP as of the date hereof consistently applied and subject to reserves as appropriate (including for collectibility, validity, usability and cost to produce), including cash and cash equivalents and excluding deferred Tax assets, Intracompany Receivables and any assets that would be Excluded Assets.

“ Current Liabilities ” shall mean the current Liabilities of Von Hoffmann and the Transferred Subsidiaries as of the Closing, including any claims incurred but not reported, as determined in accordance with GAAP as of the date hereof consistently applied, excluding Indebtedness, deferred Tax liabilities and any Liabilities that would be Excluded Liabilities.

 

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“ Direct Claim ” shall have the meaning set forth in Section 8.5.

“ Employees ” shall mean all current employees (including officers) and consultants of Von Hoffmann and the Transferred Subsidiaries and any Scheduled Employees.

“ Encumbrances ” shall mean any mortgage, pledge, deed of trust, lien (including environmental and Tax liens), hypothecation, security interest, title defect, encumbrance, (with respect to real property only) burden, (with respect to real property only) charge, or other similar restriction, option, easement, (with respect to real property only) encroachment, or other adverse claim.

“ Environmental Law ” shall mean any applicable federal, state, local or foreign statute, Law, regulation, order, decree, permit, authorization, opinion, common law or agency requirement relating to: (a) the protection of the environment, occupational health and safety, or natural resources, (b) the handling, use, presence, disposal, release or threatened release of, or exposure to, any Hazardous Substance or (c) noise, odor, indoor air, wetlands, pollution, contamination or any injury or threat of injury to persons or property relating to any Hazardous Substance.

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“ ERISA Affiliate ” shall have the meaning set forth in Section 3.20(c).

“ ERISA Plans ” shall have the meaning set forth in Section 3.20(b).

“ Excluded Assets ” shall have the meaning set forth in Section 5.16(b).

“ Excluded Employees ” means all Employees who are not Affected Employees (a list of such Persons is set forth in Section 5.6(a) of the Visant Disclosure Schedule).

“ Excluded Liabilities ” shall mean the Liabilities of Von Hoffmann or the Transferred Subsidiaries set forth in Section 1.1(a) of the Visant Disclosure Schedule.

“ Financial Statements ” shall have the meaning set forth in Section 3.7.

“ 401(k) Plan ” shall have the meaning set forth in Section 5.5(a).

 

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“ GAAP ” shall mean United States generally accepted accounting principles in effect from time to time, except where GAAP is identified herein as of a certain date.

“ Governmental Authorizations ” shall mean all written licenses, permits, certificates and other authorizations and approvals that are issued by or obtained from a Governmental Entity.

“ Government Contract ” shall have the meaning set forth in Section 3.16(b).

“ Governmental Entity ” shall have the meaning set forth in Section 3.5.

“ Guarantees ” shall have the meaning set forth in Section 5.19.

“ Hazardous Substance ” shall mean any substance that is: (a) listed, classified or regulated pursuant to any Environmental Law and (b) any petroleum product or by product, asbestos-containing material, lead-containing paint or plumbing, polychlorinated biphenyls, radioactive material, mold or radon.

“ HSR Act ” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“ Indebtedness ” shall mean, with respect to any Person, (a) all Liabilities of such Person for borrowed money, whether contingent, current or funded, secured or unsecured, (b) all Liabilities of such Person for the deferred purchase price of property or services, (c) all Liabilities of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Liabilities of such Person as lessee under leases that have been or are required to be, in accordance with GAAP as of the date hereof, recorded as capital leases, (f) all obligations, contingent or otherwise, of such Person under bankers’ acceptance, letter of credit or similar facilities, (g) any other amounts required to be considered as indebtedness for purposes of GAAP as of the date hereof, (h) all Indebtedness of others referred to in clauses (a) through (g) above guaranteed in any manner by such Person, or in effect guaranteed by such Person, and (i) all Indebtedness referred to in clauses (a) through (g) above secured by any Encumbrance on property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; provided , that clauses (a) through (i) shall include all accrued interest, premiums and penalties upon prepayment of such outstanding Indebtedness; provided, further, that for the avoidance of doubt, Ordinary Course Accounts Payable and those items set forth in Section 1.1(b) of the Visant Disclosure Schedule shall not be considered Indebtedness.

 

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“ Indemnified Parties ” shall have the meaning set forth in Section 8.2(a).

“ Indemnifying Party ” shall have the meaning set forth in Section 8.4(a).

“ Insurance Policies ” shall have the meaning set forth in Section 3.19.

“ Intellectual Property ” shall mean all (i) trademarks, service marks, brand names, certification marks, collective marks, d/b/a’s, Internet domain names, logos, symbols, trade dress, assumed names, fictitious names, trade names and other indicia of origin, all applications and registrations for the foregoing and all goodwill associated therewith and symbolized thereby, including all renewals of same; (ii) inventions and discoveries, whether patentable or not, and all patents, registrations, invention disclosures and applications therefor, including divisions, continuations, continuations-in-part and renewal applications, and including renewals, extensions and reissues; (iii) confidential information, trade secrets and know-how, including processes, schematics, business methods, formulae, drawings, prototypes, models, designs and customer lists (collectively, “ Trade Secrets ”); (iv) published and unpublished works of authorship, whether copyrightable or not (including, without limitation, software, databases and other compilations of information), copyrights therein and thereto, and registrations and applications therefor, and all renewals, extensions, restorations and reversions therefor; and (v) all other intellectual property or proprietary rights.

“ Intellectual Property Contracts ” shall mean all agreements concerning Intellectual Property to which Von Hoffmann or any of the Transferred Subsidiaries is a party, including Contracts granting Von Hoffmann or any of the Transferred Subsidiaries rights to use the Licensed Intellectual Property, non-assertion agreements, settlement agreements, agreements granting rights to use Intellectual Property Related to the Business, trademark coexistence agreements and trademark consent agreements Related to the Business, except to the extent included in the Excluded Assets (other than oral agreements that are immaterial).

“ Interim Balance Sheets ” shall have the meaning set forth in Section 3.7.

“ Interim Financial Statements ” shall have the meaning set forth in Section 3.7.

“ Intracompany Payables ” shall mean all account, note or loan receivables recorded on the books of Visant or any of its Affiliates for goods or services purchased by or provided to Von Hoffmann or any of the Transferred Subsidiaries, or advances (cash or otherwise) or any other extensions of credit to Von Hoffmann or any of the Transferred Subsidiaries from Visant or any of its Affiliates, whether current or non-current.

 

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“ Intracompany Receivables ” shall mean all account, note or loan payables recorded on the books of Visant or any of its Affiliates for goods or services sold or provided by Von Hoffmann or any of the Transferred Subsidiaries to Visant or any of its Affiliates or advances (cash or otherwise) or any other extensions of credit made by Von Hoffmann or any of the Transferred Subsidiaries to Visant or any of its Affiliates, whether current or non-current.

“ IRS ” shall mean the Internal Revenue Service of the United States.

“ IT Assets ” shall mean all computers, computer software, firmware, middleware, servers, workstations, routers, hubs, switches, data communications lines, all other information technology equipment and all associated documentation of or used by Von Hoffmann and the Transferred Subsidiaries.

“ Knowledge ” or any similar phrase shall mean the actual knowledge of any of Marc L. Reisch, Marie D. Hlavaty, Paul B. Carousso, John C. Sorensen, Kevin Hayden, Richard Johnson, John R. DePaul, Darin Hansen (solely as to Section 3.8, Section 3.17, Section 3.19 and Section 3.22) and Steve Marshall (solely as to Section 3.7 and Section 3.21) after reasonable inquiry by any such Person with respect to the facts or matters specified.

“ Law ” shall mean any applicable federal, foreign, national, provincial, supranational, state, local or similar statute, law (including common law), ordinance, regulation, rule, code, order, requirement or rule of law, in each case, of any Governmental Entity.

“ Leased Real Property ” shall have the meaning set forth in Section 3.11(a).

“ Leases ” shall have the meaning set forth in Section 3.11(c).

“ Liabilities ” shall mean any and all debts, liabilities, commitments and obligations of any kind, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, asserted or not asserted, known or unknown, determined, determinable or otherwise, whenever or however arising (including, whether arising out of any contract or tort, based on negligence or strict liability) and whether or not the same would be as required by GAAP as of the date hereof to be accrued on financial statements or disclosed in the notes thereto.

 

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“ Licensed Intellectual Property ” shall mean Intellectual Property that Von Hoffmann or any of the Transferred Subsidiaries is licensed or otherwise permitted by other Persons to use.

“ Losses ” shall have the meaning set forth in Section 8.2(a).

“ Material Adverse Effect ” shall mean any change or effect that is materially adverse to the business, assets, Liabilities, financial condition or results of operations of Von Hoffmann and the Transferred Subsidiaries or the Business, in each case, on a consolidated basis, or a change or effect in or upon the business, assets, Liabilities, financial condition or results of operation of Von Hoffmann and the Transferred Subsidiaries or the Business, in each case, on a consolidated basis, that would prevent or materially delay the consummation of the transactions contemplated by this Agreement or the ability of Visant to perform its obligations under this Agreement; provided , however , that none of the following, in and of itself or themselves, shall constitute a Material Adverse Effect: (i) changes that are the result of factors generally affecting the industry in which Von Hoffmann and the Transferred Subsidiaries operate, (ii) changes in general U.S. political or economic conditions or financial or capital markets, (iii) changes in GAAP or in Laws of general applicability or in interpretations thereof by courts or other Governmental Entities, in each case, after the date hereof, (iv) any failure by Von Hoffmann or the Transferred Subsidiaries to meet any estimates of revenues or earnings for any period ending on or after the date of this Agreement and prior to the Closing, provided that the exception in this clause shall not prevent or otherwise affect a determination that any change, effect, circumstance or development underlying such failure has resulted in, or contributed to, a Material Adverse Effect, or (v) any adverse effect that Visant establishes was proximately caused by (A) the announcement of the transactions contemplated by this Agreement, (B) the taking of any action required by this Agreement, or (C) the failure to take actions prohibited by this Agreement; provided , further , that with respect to clauses (i), (ii), and (iii) above such changes do not disproportionately adversely affect in a material manner Von Hoffmann and the Transferred Subsidiaries or the Business, in each case on a consolidated basis, compared to other companies operating in the industries in which Von Hoffmann and the Transferred Subsidiaries operate.

“ Material Contracts ” shall have the meaning set forth in Section 3.15.

“ Multiemployer Plan ” shall have the meaning set forth in Section 3.20(b).

“ Notice Period ” shall have the meaning set forth in Section 8.4(a).

“ Objection ” shall have the meaning set forth in Section 2.6(a).

 

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“ Order ” shall mean any written order, writ, judgment, injunction, subpoena, indictment, demand, decree, stipulation, determination or award entered by or with any Governmental Entity.

“ Ordinary Course ” shall mean the conduct of the Business in accordance with Von Hoffmann’s and the Transferred Subsidiaries’ normal day-to-day customs, practices and procedures.

“ Owned Real Property ” shall have the meaning set forth in Section 3.11(a).

“ PBGC ” shall have the meaning set forth in Section 3.20(c).

“ Pension Plan ” shall have the meaning set forth in Section 3.20(b).

“ Permitted Encumbrances ” shall mean:

(a) statutory Encumbrances for current Taxes of Von Hoffmann and the Transferred Subsidiaries not yet due and payable or which are being contested in good faith through the appropriate proceedings, and special assessments or other governmental charges not yet due and payable or which are being contested in good faith through the appropriate proceedings;

(b) mechanics’, materialmen’s, carriers’, workers’, repairers’ and similar statutory liens arising or incurred in the Ordinary Course;

(c) with respect to real property, zoning, building and other land use regulations imposed by any Governmental Entity having jurisdiction over any Real Property or Leased Real Property which are not violated in any material respect by the current use and operation thereof and do not impair in any material respect the current use and operation thereof;

(d) deposits or pledges made in connection with, or to secure payment of, worker’s compensation, unemployment insurance or old age pension programs mandated under applicable Law;

(e) the rights of any landlord under a Lease or any lessor (or sublessor) under a lease or sublease listed in Section 1.1(e) of the Visant Disclosure Schedule;

(f) with respect to real property, covenants, conditions, restrictions, easements, encumbrances and other similar restrictions of record affecting title to but not adversely affecting, individually or in the aggregate, current occupancy or use of the Real Property or Leased Real Property in any material respect;

 

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(g) those items listed in Section 1.1(d) of the Visant Disclosure Schedule;

(h) other minor imperfections of title or Encumbrances, if any, that individually or in the aggregate, do not materially impair the continued use and operation of any assets to which they relate;

(i) any Encumbrance that is created by Buyer or any of its Affiliates as of or immediately following Closing; and

(j) any restrictions relating to the resale of the securities of Von Hoffmann or the Transferred Subsidiaries under applicable securities laws.

“ Person ” shall mean any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental or regulatory body or other entity.

“ Personal Property ” shall mean all of the tangible personal property owned or leased by Von Hoffmann or any of the Transferred Subsidiaries, including those items set forth on the fixed asset registers set forth in Section 3.12(a) of the Visant Disclosure Schedule other than the Excluded Assets.

“ Post-Closing Tax Period ” shall have the meaning set forth in Section 5.15(j).

“ Pre-Closing Tax Period ” shall have the meaning set forth in Section 5.14(a).

“ Purchase Price ” shall have the meaning set forth in Section 2.2.

“ Purchase Price Adjustment Amount ” shall have the meaning set forth in Section 2.6(c).

“ Real Property ” shall have the meaning set forth in Section 3.11(a).

“ Registered ” shall mean issued by, registered with, renewed by or the subject of a pending application before any Governmental Entity or Internet domain name registrar.

“ Related to the Business ” shall mean necessary for, primarily related to, or primarily used in connection with, the Business.

“ Remaining Guarantee ” shall mean any Guarantee of an Excluded Liability or any Liability of Visant or any of its Affiliates (other than Von Hoffmann and the Transferred Subsidiaries) that Visant is not able to terminate or cause to be terminated on or prior to the Closing.

 

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“ Reorganization Transactions ” shall mean the assignments, transfers, dividends, distributions, conveyances, deliveries and assumptions set forth in Section 5.16(a) through Section 5.16(c).

“ Scheduled Employees ” shall have the meaning set forth in Section 5.6(e).

“ Scheduled Intellectual Property ” shall have the meaning set forth in Section 3.14(a).

“ Straddle Period ” shall have the meaning set forth in Section 5.15(a).

“ Straddle Returns ” shall have the meaning set forth in Section 5.15(d).

“ Subsidiary ” shall mean, as to any Person, any Person (i) of which such Person directly or indirectly owns securities or other equity interests representing more than 50% of the aggregate voting power, (ii) of which a Person possesses the power to elect a majority of the board of directors or Persons holding similar positions or performing similar functions or (iii) which such Person Controls directly or indirectly through one or more intermediaries.

“ Tax Returns ” shall mean, as to any Person, all federal, state, local or foreign Tax returns, Tax or information reports, declarations of estimated Tax and other forms, including consolidated federal income Tax returns of such Person and the entities consolidated with such Person (in each case, including any related or supporting information) filed or required to be filed with respect to any taxing authority with respect to Taxes, including any schedules, attachments or amendments thereto.

“ Taxes ” shall mean all taxes, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including income, excise, property, sales, use (or any similar taxes), transfer, franchise, payroll, withholding, social security business license fees, alternative minimum or other taxes, including any interest, penalties or additions attributable thereto.

“ Termination Date ” shall have the meaning set forth in Section 7.1(b).

“ Third Party Claim ” shall have the meaning set forth in Section 8.4(a).

“ Threshold ” shall have the meaning set forth in Section 8.2(b).

“ Top Customers ” shall have the meaning set forth in Section 3.9(a).

 

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“ Top Suppliers ” shall have the meaning set forth in Section 3.9(b).

“ Trade Secrets ” shall have the meaning set forth in “Intellectual Property” in this Section 1.1.

“ Transferred Subsidiaries ” shall mean all the Subsidiaries of Von Hoffmann, except for The Lehigh Press, Inc. and Precision Offset Printing Company, Inc.

“ Transition Services Agreement ” shall mean the transition services agreement to be entered into at Closing and reasonably satisfactory to Visant and Buyer.

“ Von Hoffmann ” shall have the meaning set forth in the Recitals.

“ Von Hoffmann Benefit Plans ” shall have the meaning set forth in Section 3.20(a).

“ Von Hoffmann Common Shares ” shall have the meaning set forth in the Recitals.

“ Von Hoffmann Indebtedness ” shall mean all Indebtedness of Von Hoffmann or the Transferred Subsidiaries.

“ Von Hoffmann Trademarks ” shall mean the trade names, service marks or trademarks owned or licensed by Von Hoffmann or any of the Transferred Subsidiaries.

“ Visant ” shall have the meaning set forth in the Preamble.

“ Visant Benefit Plans ” shall have the meaning set forth in Section 3.20(a).

“ Visant Disclosure Schedule ” shall mean the disclosure schedule delivered by Visant to Buyer on the date of this Agreement.

“ Visant Indemnified Parties ” shall have the meaning set forth in Section 8.3(a).

“ Visant Required Approvals ” shall mean all consents, approvals, waivers, authorizations, notices and filings that are required to be set forth in Section 3.5 of the Visant Disclosure Schedule.

“ Working Capital ” shall mean (x) the Current Assets minus (y) the Current Liabilities.

 

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“ Working Capital Estimate ” shall have the meaning set forth in Section 2.6(a).

“ Working Capital Objection Period ” shall have the meaning set forth in Section 2.6(a).

“ Working Capital Target Amount ” shall mean $50,000,000.

Section 1.2 Other Terms . Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meaning indicated throughout this Agreement.

Section 1.3 Other Definitional Provisions . Unless the express context otherwise requires:

(a) The words “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

(b) Terms defined in the singular shall have comparable meaning when used in the plural, and vice versa, except where such terms are separately defined.

(c) The terms “dollars” and “$” shall mean United States Dollars.

(d) References herein to a specific Annex, Exhibit or Section shall refer, respectively, to Annexes, Exhibits or Sections of this Agreement.

(e) Wherever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.

(f) References herein to any gender include each other gender.

ARTICLE II

Purchase and Sale of the Von Hoffmann Common Shares

Section 2.1 Purchase and Sale of the Von Hoffmann Common Shares . Upon the terms and subject to the conditions of this Agreement, at the Closing, (x) Visant shall sell, transfer, assign, convey and deliver the Von Hoffmann Common Shares to Buyer, free and clear of any Encumbrances (other than any restrictions relating to the resale of securities under applicable securities Laws), and (y) Buyer shall purchase the Von Hoffmann Common Shares from Visant.

 

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Section 2.2 Consideration . Upon the terms and subject to the conditions of this Agreement, at the Closing, Buyer shall pay a purchase price equal to $412.5 million in cash (the “ Purchase Price ”), to Visant in the manner set forth in Section 2.5(a), subject to adjustment to the extent of the Purchase Price Adjustment Amount as provided in Section 2.6(c).

Section 2.3 Time and Place of the Closing . Upon the terms and subject to the conditions contained in this Agreement, the closing of the transactions contemplated by this Agreement (the “ Closing ”) will take place at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004 at 10:00 a.m. New York City time on the third Business Day following the date on which all of the conditions set forth in ARTICLE VI have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other place or time or both as the parties mutually may agree in writing. The date on which the Closing actually occurs is referred to as the “ Closing Date ”.

Section 2.4 Deliveries by Visant . At the Closing, Visant shall deliver, or cause to be delivered, the following to Buyer:

(a) the stock certificates representing the Von Hoffmann Common Shares, duly endorsed in blank or accompanied by duly executed instruments of transfer, and any other documents that are necessary to transfer to Buyer valid title to the Von Hoffmann Common Shares, free and clear of any Encumbrances (other than any restrictions relating to the resale of securities under applicable securities Laws);

(b) the stock books, stock ledgers, minute books and corporate seals of Von Hoffmann and the Transferred Subsidiaries;

(c) a duly executed certification that Visant is not a foreign Person within the meaning set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv); it being understood that, notwithstanding anything to the contrary contained herein, if Visant fails to provide Buyer with such certification, Buyer shall be entitled to withhold the requisite amount from the Purchase Price in accordance with Section 1445 of the Code and the applicable Treasury Regulations;

(d) the Books and Records (provided that Visant shall be entitled to retain a copy of those Books and Records which relate to Visant and its Affiliates (other than Von Hoffmann and the Transferred Subsidiaries));

(e) a duly executed counterpart of each of the Ancillary Agreements;

 

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(f) evidence of the obtaining of the Visant Required Approvals and the discharge or release of all Encumbrances (other than any restrictions relating to the resale of securities under applicable securities Laws) on any of the assets or properties of Von Hoffmann and the Transferred Subsidiaries;

(g) evidence that the Reorganization Transactions have occurred;

(h) the certificate or certificates to be delivered pursuant to Section 6.3(c);

(i) all other documents, instruments and writings required to be delivered by Visant at or prior to the Closing pursuant to this Agreement; and

(j) such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably acceptable to Buyer, as Buyer may reasonably request to effect the transactions contemplated by this Agreement.

Section 2.5 Deliveries by Buyer . At the Closing, Buyer shall deliver the following:

(a) an amount equal to the Purchase Price, by wire transfer of immediately available funds to an account or accounts designated by Visant at least two Business Days prior to the Closing Date;

(b) a duly executed counterpart of each of the Ancillary Agreements;

(c) the certificate or certificates to be delivered pursuant to Section 6.3(c);

(d) all other documents, instruments and writings required to be delivered by Buyer at or prior to the Closing Date pursuant to this Agreement; and

(e) such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Visant, as Visant may reasonably request to effect the transactions contemplated by this Agreement.

Section 2.6 Working Capital Adjustment .

(a) No later than two Business Days prior to the Closing Date, Visant shall deliver to Buyer a statement setting forth its good faith estimate of Working Capital as of the Closing (the “ Working Capital Estimate ”), together with a reasonably detailed worksheet setting forth the calculation of the Working Capital Estimate. Buyer and Visant agree that the statements contemplated by this Section 2.6 are solely intended to show the Closing Date Working Capital and thereby determine the difference between

 

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the Working Capital Target Amount and Closing Date Working Capital, if any. The Closing Date Working Capital Statement shall be prepared in accordance with this Section 2.6 and the definitions of Current Assets and Current Liabilities. Within 75 calendar days after the Closing Date, Buyer shall deliver to Visant the Closing Date Working Capital Statement showing in reasonable detail Buyer’s calculation of the Closing Date Working Capital. Visant (and its independent accountant) shall be afforded the opportunity to review the books and records and calculations used in the preparation of the Closing Date Working Capital Statement. If Visant does not object in writing to Buyer’s determination of the Closing Date Working Capital, which objection must set forth a specific description of the basis of Visant’s objection, the adjustment which Visant believes should be made to the Closing Date Working Capital Statement and a detailed description of the calculation made in determining any such adjustment (an “ Objection ”), within 20 calendar days after Buyer delivers the Closing Date Working Capital Statement to Visant (the “ Working Capital Objection Period ”), then the Closing Date Working Capital calculation as set forth on the Closing Date Working Capital Statement delivered by Buyer shall be deemed to be final and binding upon Visant and Buyer and the provisions of Section 2.6(c) shall apply; provided , that if Visant validly delivers an Objection during the Working Capital Objection Period, then Section 2.6(b) shall apply with respect to such disputed Closing Date Working Capital calculation.

(b) In the event that Visant delivers an Objection within the Working Capital Objection Period, Visant and Buyer shall reasonably cooperate to resolve such dispute, but if they are unable to reach a resolution within 30 calendar days after Visant validly delivers an Objection, Visant and Buyer shall submit such dispute to Grant Thornton LLP (the “ Accounting Firm ”) for resolution. To the extent permitted by Law and except as would not result in a breach of attorney-client privilege or similar privilege, or violate any confidentiality or similar agreement to which Visant or Buyer is a party, Visant and Buyer shall submit to the Accounting Firm all information requested by the Accounting Firm and shall make any records relating to or bearing upon such dispute available to the other party and to the Accounting Firm. Visant and Buyer shall further instruct the Accounting Firm to render its decision within 30 calendar days after the Accounting Firm has received the information so requested and shall reasonably cooperate with the Accounting Firm and each other to enable the Accounting Firm to render the decision within such period. The Accounting Firm shall, after the submission of the evidentiary materials, submit its written decision on each Objection to Visant and Buyer. The scope of the disputes to be resolved by the Accounting Firm shall be limited to whether the Closing Date Working Capital as set forth on the Closing Date Working Capital Statement was prepared in accordance with this Section 2.6 and the definitions of Current Assets and Current Liabilities and whether there were errors of fact or mathematical errors in the Closing Date Working Capital Statement. The Accounting Firm shall render a written report as to the resolution of the dispute and the resulting computation of the Closing Date Working Capital. In resolving any Objection, the Accounting Firm (x) shall be bound by the provisions of this Section 2.6 and (y) may not

 

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assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. Any determination by the Accounting Firm with respect to any Objection shall be, absent manifest error, final, binding and conclusive on each party to this Agreement. If the aggregate dollar amount of the matters submitted to the Accounting Firm and resolved in favor of Visant is greater than the aggregate dollar amount of the matters submitted to the Accounting Firm and resolved in favor of Buyer, then the fees and expenses of the Accounting Firm shall be paid by Buyer; if the aggregate dollar amount of the matters submitted to the Accounting Firm and resolved in favor of Visant is less than the aggregate dollar amount of the matters submitted to the Accounting Firm and resolved in favor of Buyer, then the fees and expenses of the Accounting Firm shall be paid by Visant; and if the aggregate dollar amount of the matters submitted to the Accounting Firm and resolved in favor of Visant is equal to the aggregate dollar amount of the matters submitted to the Accounting Firm and resolved in favor of Buyer, then the fees and expenses of the Accounting Firm shall be shared equally by Visant and Buyer. Nothing in this Agreement shall require that any matter other than disputes under this Section 2.6(b) be resolved by the procedure described above. The dispute resolution under this Section 2.6(b) shall be in substitution for and precludes the bringing of any proceeding in any court in connection with any Objection made by Visant and Buyer pursuant to this Section 2.6(b).

(c) Upon the later of acceptance of the Closing Date Working Capital Statement or the resolution of Objections thereto, Visant and the Buyer shall determine the amount (the “ Purchase Price Adjustment Amount ”) by which the Closing Date Working Capital differs from the Working Capital Target Amount. If the Closing Date Working Capital exceeds the Working Capital Target Amount, no payment shall be due from Buyer to Visant. If the Working Capital Target Amount exceeds the Closing Date Working Capital by more than $200,000, Visant shall pay to the Buyer an amount equal to the Purchase Price Adjustment Amount on the date that is the later of May 31, 2007 and 10 Business Days after the determination of such Purchase Price Adjustment Amount. Any such Purchase Price Adjustment Amount payment shall be treated for all Tax purposes as an adjustment to the Purchase Price. Except as expressly set forth in clause (b) above, each party shall bear its own expenses incurred in connection with the preparation, review and resolution of the Closing Date Working Capital Statement.

ARTICLE III

Representations and Warranties of Visant

Except as specifically set forth in the corresponding section of the Visant Disclosure Schedule, Visant represents and warrants to Buyer as follows:

 

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Section 3.1 Organization, Standing and Qualification of Visant and Von Hoffmann .

(a) Von Hoffmann is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware. Von Hoffmann has all requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as presently conducted, and is duly qualified or licensed as a foreign corporation to do business and is in good standing in each jurisdiction in which its assets and properties are owned, leased or operated by it or the nature of the business conducted by it makes or would make such qualification necessary, except where the failure to be so qualified or in good standing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Section 3.1(a) of the Visant Disclosure Schedule accurately sets forth all jurisdictions in which Von Hoffmann is duly qualified to do business. Visant has made available to Buyer complete and accurate copies of the certificate of incorporation and bylaws of Von Hoffmann, as currently in effect.

(b) Visant is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware. Visant has all requisite corporate or similar power and authority to own, lease and operate its assets and properties and to carry on its business as presently conducted, and is duly qualified or licensed as a foreign corporation to do business and is in good standing in each jurisdiction in which its assets and properties are owned, leased or operated by it or the nature of the business conducted by it makes or would make such qualification necessary, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, materially impair or delay the ability of Visant to effect the Closing or to perform its obligations under this Agreement and the Ancillary Agreements.

Section 3.2 Subsidiaries .

(a) Section 3.2(a) of the Visant Disclosure Schedule sets forth a true and complete list of the Subsidiaries of Von Hoffmann and sets forth with respect to each such Subsidiary, the jurisdiction of incorporation or formation, the authorized and outstanding capital stock of such Subsidiary and the owner(s) of record of such outstanding capital stock.

(b) Neither Von Hoffmann nor any of the Transferred Subsidiaries directly or indirectly owns or has the right or obligation to acquire any equity interest in any other corporation, partnership, limited liability company, joint venture, trust or other business organization.

(c) Each of the Transferred Subsidiaries is a legal entity duly organized, validly existing and in good standing under the Laws of its respective

 

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jurisdiction of organization. Each of the Transferred Subsidiaries has all requisite corporate or similar power and authority to own, lease and operate its assets and properties and to carry on its business as presently conducted, and is duly qualified or licensed as a foreign corporation or other legal entity to do business and is in good standing in each jurisdiction in which its assets and properties are owned, leased or operated by it or the nature of the business conducted by it makes or would make such qualification necessary, except where the failure to be so qualified or in good standing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Section 3.2(c) of the Visant Disclosure Schedule accurately sets forth all jurisdictions in which the Transferred Subsidiaries are duly qualified, registered or licensed to do business.

(d) Visant has made available to Buyer complete and accurate copies of the certificate of incorporation, bylaws, or such comparable governing documents of each of the Transferred Subsidiaries, each as currently in effect.

(e) All of the outstanding capital stock of the Transferred Subsidiaries is owned beneficially and of record by Von Hoffmann and/or a Transferred Subsidiary, free and clear of any Encumbrances. All outstanding shares of capital stock of the Transferred Subsidiaries are duly authorized, validly issued, fully paid and nonassessable.

Section 3.3 Authority of Visant . Visant has all requisite corporate power, capacity and authority and has taken all corporate action necessary in order to execute, deliver and perform this Agreement and each of the Ancillary Agreements, to perform its obligations hereunder and thereunder, and to consummate the transactions hereby and thereby. The execution, delivery and performance by Visant of this Agreement and each of the Ancillary Agreements has been duly and validly authorized and no additional corporate or stockholder or other authorization or consent is required in connection with the execution, delivery and performance by Visant of this Agreement or any of the Ancillary Agreements. Assuming due authorization, execution and delivery by Buyer, this Agreement constitutes, and when executed and delivered by Visant each of the Ancillary Agreements will constitute, the valid and legally binding obligation of Visant, enforceable against Visant in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

Section 3.4 Capitalization . The authorized capital stock of Von Hoffmann consists of 1,000 Von Hoffmann Common Shares, of which 100 Von Hoffmann Common Shares are the only Von Hoffmann Common Shares issued and outstanding and which are owned beneficially and of record by Visant, free and clear of any Encumbrances. There are no other shares of capital stock of Von Hoffmann issued or outstanding. All issued and outstanding Von Hoffmann Common Shares have been

 

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duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights. There is no subscription, option, warrant, call, right, agreement or commitment relating to the issuance, sale, delivery or transfer, or the repurchase, redemption or other acquisition, by Visant or any of its Affiliates or any other Person (including any right of conversion or exchange under any outstanding security or other instrument) of any shares of capital stock or other securities of Von Hoffmann or any of the Transferred Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any securities of Von Hoffmann or any of the Transferred Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. Neither Von Hoffmann nor any of the Transferred Subsidiaries has outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or are convertible into or exercisable for securities having the right to vote) with the stockholders of Von Hoffmann or any of the Transferred Subsidiaries on any matter. Visant will deliver at the Closing valid title to the Von Hoffmann Common Shares, free and clear of any Encumbrances (other than any restrictions relating to the resale of securities under applicable securities Laws and any Encumbrance that is created by Buyer or any of its Affiliates as of or immediately following the Closing). At the Closing, all issued and outstanding shares of capital stock of the Transferred Subsidiaries will be owned beneficially and of record by Von Hoffmann and/or a Transferred Subsidiary free and clear of any Encumbrances (other than any restrictions relating to the resale of securities under applicable securities Laws and any Encumbrance that is created by Buyer or any of its Affiliates as of or immediately following the Closing).

Section 3.5 Consents and Approvals . Except as set forth in Section 3.5 of the Visant Disclosure Schedule, no consent, approval, waiver, authorization, notice or filing is required to be obtained by Visant or any of its Affiliates from, or to be given by Visant or any of its Affiliates to, or made by Visant or any of its Affiliates with, any court or any governmental department, commission, board, bureau, agency, instrumentality, authority, body or other governmental entity, domestic or foreign (each, a “ Governmental Entity ”), in connection with the execution, delivery and performance by Visant and its Affiliates of this Agreement or the Ancillary Agreements (or the transactions contemplated hereby and thereby) and the consummation of the transactions contemplated hereby and thereby, except for (a) under the HSR Act and (b) such consents, approvals, waivers, authorizations, notices or filings the failure of which to obtain, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

Section 3.6 Non-Contravention . The execution, delivery and performance by Visant and its Affiliates of this Agreement and each of the Ancillary Agreements, and the consummation of the transactions contemplated hereby and thereby, do not and will not constitute or result in (i) a breach or violation of any provision of the certificate of incorporation, bylaws or other organizational documents of Visant or any of

 

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its Subsidiaries, (ii) with or without notice, lapse of time or both, a breach or violation of, or constitute a default under, or result in the termination, cancellation, modification or acceleration (or right of termination, cancellation, modification or acceleration) of any of the terms, conditions or provisions of, result in the modification of any right or obligation of any Person under, or result in a loss of any benefit to which Visant or any of its Affiliates is entitled under, any Business Contract, or result in the creation of any Encumbrance (other than any Encumbrance that is created by Buyer or any of its Affiliates as of or immediately following the Closing) upon any of the properties or assets of Von Hoffmann or the Transferred Subsidiaries, or (iii) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings set forth in Section 3.5 of the Visant Disclosure Schedule, violate or result in a breach of or constitute a default under any Order, Law or Governmental Authorization to which Visant or any of its Affiliates is subject, other than, in the case of clauses (ii) and (iii), breaches, violations, defaults, terminations, cancellations, modifications, accelerations, Encumbrances, changes in rights or obligations or losses of benefits that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

Section 3.7 Financial Statements . Attached hereto as Section 3.7 of the Visant Disclosure Schedule is a copy of (i) the unaudited consolidated balance sheets of Von Hoffmann and the Transferred Subsidiaries as of December 31, 2005 and December 31, 2004 (the “ Annual Balance Sheets ”) and the related unaudited consolidated statements of income of Von Hoffmann and the Transferred Subsidiaries for the years then ended (collectively, and together with the notes thereto, the “ Annual Financial Statements ”), (ii) the unaudited consolidated balance sheets of Von Hoffmann and the Transferred Subsidiaries as of November 30, 2005 and November 30, 2006, (the “ Interim Balance Sheets ”), and (iii) the unaudited consolidated statements of income of Von Hoffmann and the Transferred Subsidiaries for the eleven-month period ended November 30, 2005 and November 30, 2006, (Section 3.7(ii) and Section 3.7(iii) collectively, the “ Interim Financial Statements ” and the Annual Financial Statements and the Interim Financial Statements being hereafter referred to collectively as the “ Financial Statements ”). Visant does not prepare and has not on or after December 31, 2004 prepared consolidated statements of cash flows, whether audited or unaudited, on an annual, quarterly or other basis, for Von Hoffmann and the Transferred Subsidiaries. Each of the consolidated balance sheets included in the Financial Statements presents fairly the consolidated financial position of Von Hoffmann and the Transferred Subsidiaries and the Business as of its respective date and each of the consolidated statements of income included in the Financial Statements presents fairly the results of operations of Von Hoffmann and the Transferred Subsidiaries and the Business for the periods set forth therein, and in each case have been prepared in accordance with GAAP (except as set forth in Section 3.7 of the Visant Disclosure Schedule) consistently applied during the periods covered thereby and are complete and accurate in all material respects; provided , however , that the Interim Financial Statements are subject to normal year-end adjustments (which will not be material in amount or effect). All allocations of costs and

 

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expenses from Visant and/or any of its Affiliates to Von Hoffmann or any of the Transferred Subsidiaries reflected in the Financial Statements are reasonable and consistent as if such costs and expenses had actually been incurred by Von Hoffmann or any of the Transferred Subsidiaries or are related to Von Hoffmann or any of the Transferred Subsidiaries. The Financial Statements reflect, in all material respects, all costs and expenses incurred by the Business as currently conducted regardless of the Person’s books they were recorded on. The Financial Statements do not include, in any material respects, any revenue or expenses not Related to the Business. There are no off-balance-sheet transactions, arrangements, obligations or relationships (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended) attributable to Von Hoffmann or the Transferred Subsidiaries.

Section 3.8 Undisclosed Liabilities; Indebtedness; Liabilities .

(a) Except as set forth in Section 3.8(a) of the Visant Disclosure Schedule, as of the date hereof there are no Liabilities of Von Hoffmann or any of the Transferred Subsidiaries that, and, to the Knowledge of Visant, there are no facts or circumstances undisclosed as of the date hereof that could reasonably be expected to result in any Liability that, would be, individually or in the aggregate, reasonably expected to have a Material Adverse Effect, except for (i) those Liabilities accrued or disclosed on the face of the balance sheet of Von Hoffmann and the Transferred Subsidiaries as of December 31, 2005 and (ii) Liabilities incurred by Von Hoffmann or the Transferred Subsidiaries since December 31, 2005 in the Ordinary Course.

(b) Set forth in Section 3.8(b) of the Visant Disclosure Schedule is a true and complete list of all Von Hoffmann Indebtedness, including for each item of Von Hoffmann Indebtedness (other than the Intracompany Payables), the outstanding principal amount, interest rate as in effect between December 1, 2006 and the maturity date thereof, and the schedule of the principal payments, and any Encumbrances (other than Permitted Encumbrances) that relate to such Indebtedness. At Closing, neither Von Hoffmann nor any of the Transferred Subsidiaries will have any outstanding Indebtedness.

Section 3.9 Customers and Suppliers .

(a) Set forth in Section 3.9(a) of the Visant Disclosure Schedule is a complete and accurate list of the 25 largest customers of Von Hoffmann and the Transferred Subsidiaries, taken as a whole, by revenue for the year ended December 31, 2005 and for the eleven-month periods ended November 30, 2005 and November 30, 2006 (collectively, the “ Top Customers ”). As of the date hereof, none of the 10 Top Customers for the eleven-month period ended November 30, 2006 has given written notice, or to the Knowledge of Visant oral notice, to Visant or any of its Affiliates that, and Visant has no Knowledge that, any such Top Customer intends to materially reduce

 

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its purchases of goods or services from Von Hoffmann and the Transferred Subsidiaries, whether or not as a result of the transactions contemplated by this Agreement. Since December 31, 2005 none of Visant, Von Hoffmann or the Transferred Subsidiaries has had any material disputes with, and no material claims have been made against Visant, Von Hoffmann, the Transferred Subsidiaries or the Business by, any Top Customer.

(b) Set forth in Section 3.9(b) of the Visant Disclosure Schedule is a complete and accurate list of the 25 largest suppliers of Von Hoffmann and the Transferred Subsidiaries, taken as a whole, by expense for the year ended December 31, 2005 and for the eleven-month periods ended November 30, 2005 and November 30, 2006 (collectively, the “ Top Suppliers ”). Since December 31, 2005 none of Visant, Von Hoffmann or the Transferred Subsidiaries have had any material disputes with, and no material claims have been made against Visant, Von Hoffmann, the Transferred Subsidiaries or the Business by, any Top Supplier.

Section 3.10 Absence of Certain Changes or Events . Since December 31, 2005 through the date hereof, Von Hoffmann and the Transferred Subsidiaries have conducted their respective businesses in the Ordinary Course, and there has not been any change, condition, event or occurrence that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth in Section 3.10 of the Visant Disclosure Schedule, there has not been:

(a) as of the date hereof, any damage, destruction or other casualty loss exceeding $50,000 in any one case or $250,000 in the aggregate with respect to any asset or property owned, leased or otherwise used by Von Hoffmann or any of the Transferred Subsidiaries or the Business; or

(b) as of the date hereof, any action taken that would have required the consent of Buyer pursuant to Section 5.1(a), Section 5.1(b), Section 5.1(e) (only with respect to amendments or modifications of Material Contracts with the 10 Top Customers for the eleven-month period ended November 30, 2006 that are adverse to Von Hoffmann and the Transferred Subsidiaries), Section 5.1(k), Section 5.1(m), Section 5.1(n) (other than such actions in the Ordinary Course), Section 5.1(u) (only with respect to written settlements, concessions, conciliations or similar agreements involving payment or receipt of consideration of $150,000 in any individual case or that restrict in any material respect the future activity or conduct of Von Hoffmann or any Transferred Subsidiaries or admit to a violation of Law or the rights of any Person), Section 5.1(w), Section 5.1(x) or Section 5.1(y) had such action occurred after the date of this Agreement.

 

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Section 3.11 Real Property .

(a) Set forth in Section 3.11(a)(i) of the Visant Disclosure Schedule is a complete and accurate list of all of the real property owned by Von Hoffmann and the Transferred Subsidiaries (the “ Owned Real Property ”) and a complete and accurate list of all of the real property interests leased or subleased by Von Hoffmann and the Transferred Subsidiaries (the “ Leased Real Property ” and, together with the Owned Real Property, the “ Real Property ”). Except as set forth in Section 3.11(a)(ii) of the Visant Disclosure Schedule, Von Hoffmann or one of the Transferred Subsidiaries has, or at and immediately following the Closing will have, (i) fee title to each parcel of Owned Real Property free and clear of all Encumbrances, other than Permitted Encumbrances, and (ii) a valid and binding leasehold interest in the Leased Real Property, in each case free and clear of any Encumbrances, other than Permitted Encumbrances.

(b) The Real Property, together with any easements appurtenant thereto, includes all of the real property used or held for use in connection with or otherwise required to carry on the Business as currently conducted.

(c) Set forth in Section 3.11(c) of the Visant Disclosure Schedule is a complete and accurate list of all leases or subleases relating to the Leased Real Property and any documents or instruments affecting the rights or obligations of any of the parties thereto (the “ Leases ”). There exists no material breach, default or event of default (or, to the Knowledge of Visant, any event that with notice or lapse of time or both would become a material breach, default or event of default) on the part of Von Hoffmann or any of the Transferred Subsidiaries under any Leases. Visant has made available to Buyer complete and accurate copies of all of the Leases and all amendments and modifications thereto.

(d) There are no existing or outstanding claims against Von Hoffmann or any of the Transferred Subsidiaries for any security deposit relating to the Leased Real Property.

(e) Each facility included in the Real Property (including, all buildings, structures, and improvements) (i) is in good operating condition and repair, subject to ordinary wear and tear, (ii) is suitable in all material respects for its current use, operation and occupancy and (iii) does not require repairs or alterations which are material in nature or cost for its current use.

(f) The ownership, occupancy, use and operation of the Real Property complies in all material respects with all Laws, and does not violate in any material respect any instrument of record or agreement affecting such property.

(g) There are no pending or, to the Knowledge of Visant, threatened appropriation, condemnation, eminent domain or like proceedings relating to the Real Property.

 

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Section 3.12 Personal Property . Set forth in Section 3.12(a) of the Visant Disclosure Schedule are the fixed asset registers setting forth for Von Hoffmann and the Transferred Subsidiaries all of the tangible personal property owned or leased by Von Hoffmann or any of the Transferred Subsidiaries, in each case valued individually in excess of $10,000 on a net book value basis which are reflected on the November 30, 2006 balance sheet included in the Financial Statements or acquired after November 30, 2006. Visant and its Affiliates have, and at and immediately following the Closing Von Hoffmann and the Transferred Subsidiaries will have, sole legal and beneficial ownership of or a valid leasehold interest in the material Personal Property, free and clear of any Encumbrances, other than Permitted Encumbrances. The material Personal Property (other than the decommissioned assets set forth in Section 3.12(c) of the Visant Disclosure Schedule) has been maintained in the Ordinary Course and is in good operating condition and repair (subject to normal wear and tear). None of the material Personal Property (other than the decommissioned assets set forth in Section 3.12(c) of the Visant Disclosure Schedule) is in need of maintenance or repairs except for ordinary, routine maintenance and repairs, none of which are material in nature or cost.

Section 3.13 Assets .

(a) Except as set forth in Section 3.13(a)(i) of the Visant Disclosure Schedule, upon the transfer to Buyer of the Von Hoffmann Common Shares at Closing, Visant will have delivered to Buyer all of the properties, assets and rights of Visant and its Affiliates necessary to conduct the Business, in all material respects, as currently conducted. Except as set forth in Section 3.13(a)(ii) of the Visant Disclosure Schedule, there are no material properties, assets or rights Related to the Business which are not owned or leased, and at and immediately following the Closing will not be owned or leased, by Von Hoffmann and the Transferred Subsidiaries, free and clear of any Encumbrances, other than Permitted Encumbrances. Except as set forth in Section 3.13(a)(iii) of the Visant Disclosure Schedule, there are no material Contracts Related to the Business to which Von Hoffmann or a Transferred Subsidiary is not a party.

(b) Set forth in Section 3.13(b) of the Visant Disclosure Schedule is a complete and accurate list of all of the Excluded Assets.

Section 3.14 Intellectual Property Rights .

(a) Set forth in Section 3.14(a)(i) of the Visant Disclosure Schedule is a complete and accurate list of all Registered and/or material Intellectual Property of Von Hoffmann or the Transferred Subsidiaries (collectively, the “ Scheduled Intellectual Property ”) and Intellectual Property Contracts (other than licenses for commercial “off-the-shelf” or “shrink wrap” software that has not been modified or customized for Visant or any of its Affiliates). Von Hoffmann and the Transferred Subsidiaries exclusively own (beneficially, and of record where applicable) all Scheduled Intellectual Property, free

 

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and clear of any Encumbrances, except Permitted Encumbrances. To conduct the Business in all material respects as currently conducted, neither Von Hoffmann nor any of the Transferred Subsidiaries requires any Intellectual Property that Von Hoffmann and the Transferred Subsidiaries do not already own or license. The Scheduled Intellectual Property owned by Von Hoffmann and the Transferred Subsidiaries is in all material respects subsisting and, to Visant’s Knowledge, valid, enforceable, and is not subject to any outstanding Order adversely affecting Von Hoffmann or any of the Transferred Subsidiaries’ use thereof or their rights thereto. Except as set forth in Section 3.14(a)(ii) of the Visant Disclosure Schedule, Von Hoffmann and the Transferred Subsidiaries have sufficient rights to use all Intellectual Property used in the Business as currently conducted, all of which rights shall survive unchanged the consummation of the transactions contemplated by this Agreement. None of Von Hoffmann or any of the Transferred Subsidiaries has infringed or otherwise violated in any material respect the Intellectual Property rights of any third party since October 4, 2004. There is no litigation, opposition, cancellation, proceeding, objection or claim pending or, to the Knowledge of Visant, asserted or threatened against Visant or any of its Affiliates concerning the ownership, validity, registerability, enforceability, infringement or use of, or licensed right to use, any material Intellectual Property that is Related to the Business. To Visant’s Knowledge, no valid basis for any such litigation, opposition, cancellation, proceeding, objection or claim exists. To Visant’s Knowledge, no Person is violating any material Intellectual Property right Related to the Business that Visant or any of its Affiliates holds exclusively.

(b) Visant and its Affiliates have taken reasonable measures to protect the confidentiality of all material Trade Secrets Related to the Business and, to Visant’s Knowledge, such material Trade Secrets have not been used, disclosed to or discovered by any Person except pursuant to valid and appropriate non-disclosure, license agreements and/or similar obligations of confidentiality which have not been breached.

(c) The IT Assets have not materially malfunctioned or failed within the past two years. The IT Assets owned or licensed by Von Hoffmann and the Transferred Subsidiaries are sufficient to permit Buyer to conduct the Business in all material respects as currently conducted following the Closing. Visant and its Affiliates have implemented backup, security and disaster recovery technology consistent with industry practices. Visant and its Affiliates take measures, directly or indirectly, to ensure the confidentiality of customer financial information consistent with industry practices.

Section 3.15 Business Contracts . Set forth in Section 3.15 of the Visant Disclosure Schedule is a complete and accurate list (such list organized to reflect the different subsections of this Section 3.15) of each Business Contract:

(a) for the lease of real or personal property providing for annual rentals of $135,000 or more;

 

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(b) that is reasonably likely to require either (x) annual payments to or from Von Hoffmann and the Transferred Subsidiaries or the Business of more than $2,000,000 or (y) aggregate payments to or from Von Hoffmann and the Transferred Subsidiaries or the Business of more than $10,000,000;

(c) with respect to any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to Von Hoffmann and the Transferred Subsidiaries or the Business or in which Von Hoffmann or any of the Transferred Subsidiaries owns any voting or economic interest, other than any partnership that is wholly owned by Von Hoffmann or any of the Transferred Subsidiaries;

(d) relating to Indebtedness (other than the Intracompany Payables);

(e) that (i) purports to limit in any material respect either the type of business in which Von Hoffmann or any of the Transferred Subsidiaries (or after the Closing, to the Knowledge of Visant, Buyer or any of its Subsidiaries or Affiliates) may engage or the manner or locations in which any of them may so engage in any business, (ii) could require the disposition of any material assets or line of business of Von Hoffmann or any of the Transferred Subsidiaries (or after the Closing, to the Knowledge of Visant, Buyer or any of its Subsidiaries or Affiliates), (iii) grants “most favored nation” status that, following the Closing, would apply to Von Hoffmann or any of the Transferred Subsidiaries (or after the Closing, to the Knowledge of Visant, Buyer or any of its Subsidiaries or Affiliates), (iv) prohibits or limits in any material respect the right of Von Hoffmann or any of the Transferred Subsidiaries (or after the Closing, to the Knowledge of Visant, Buyer or any of its Subsidiaries or Affiliates) to make, sell or distribute any products or services or (v) grants any Person (other than Employees as part of the Business) exclusive or similar rights in respect of any services in any line of business or any geographic area with respect to or affecting Von Hoffmann or any of the Transferred Subsidiaries (or after the Closing, to the Knowledge of Visant, Buyer or any of its Subsidiaries or Affiliates);

(f) containing a standstill or similar agreement pursuant to which Von Hoffmann or any of the Transferred Subsidiaries has agreed not to acquire assets or securities of the other party or any of its Affiliates;

(g) that is a material Intellectual Property Contract (other than licenses for commercial off-the-shelf or shrink wrap software that has not been modified or customized for Von Hoffmann or any Transferred Subsidiaries);

 

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(h) pursuant to which Von Hoffmann or any of the Transferred Subsidiaries or the Business is or may be obligated to make payments, contingent or otherwise, on account of or arising out of prior acquisitions or sales of businesses, assets, or stock of other companies;

(i) that is an employee collective bargaining agreement or Contract with any labor organization;

(j) that is between or among Visant and/or any of its Affiliates on the one hand, and Von Hoffmann or any of the Transferred Subsidiaries, on the other hand;

(k) that is a stockholder agreement, voting trust or other contract or understanding to which Visant or any of its Affiliates is a party or to which Visant or any of its Affiliates is bound, in each case relating to the voting, purchase, redemption or other acquisition of any shares of the capital stock of Von Hoffmann or any of the Transferred Subsidiaries;

(l) that is subject to an advance against a rebate or a signing bonus of $250,000 or more;

(m) providing for indemnification of any Person, except for any Business Contract that is (x) not material to Von Hoffmann and the Transferred Subsidiaries, taken as a whole, or the Business or (y) entered into in the Ordinary Course;

(n) that contains a put, call or similar right pursuant to which Von Hoffmann or any of the Transferred Subsidiaries or the Business could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $250,000; and

(o) that is a Government Contract that is reasonably likely to require either (x) annual payments to or from Von Hoffmann and the Transferred Subsidiaries or the Business of more than $1,000,000 or (y) aggregate payments to or from Von Hoffmann and the Transferred Subsidiaries or the Business of more than $3,000,000.

The Business Contracts included in (a) through (o) being collectively referred to herein as the “ Material Contracts ”.

There does not exist under any Material Contract any violation, breach, default or event of default, or alleged violation, breach, default or event of default, or, to Visant’s Knowledge, event or condition that, after notice or lapse of time or both, would constitute a material violation, breach, default or event of default thereunder on the part of Visant or any of its Affiliates (including Von Hoffmann and the Transferred Subsidiaries) or, to Visant’s Knowledge, any other party thereto. Each of the Material Contracts is in full force and effect and constitutes a legal, valid, enforceable and binding

 

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obligation of Visant or any of its Affiliates (including Von Hoffmann and the Transferred Subsidiaries) or, to Visant’s Knowledge, any other party thereto in accordance with the express terms thereof, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no material disputes involving Von Hoffmann or the Transferred Subsidiaries pending, or, to the Knowledge of Visant, threatened, under any Material Contract. To the Knowledge of Visant, there are no material disputes involving any Person other than Von Hoffmann or the Transferred Subsidiaries pending or threatened under any Material Contract. Visant has made available to Buyer complete and accurate copies of all of the Material Contracts, and all amendments and modifications thereto.

Section 3.16 Government Contracts .

(a) With respect to each Government Contract that is a Material Contract, (x) all representations and certifications executed, acknowledged or set forth by Von Hoffmann or any of the Transferred Subsidiaries in or pertaining to such Governmental Contract since October 4, 2004 and, to the Knowledge of Visant, on or prior to October 4, 2004, were complete and correct in all material respects as of their effective date, and Von Hoffmann and its Affiliates have complied in all material respects with all such representations and certifications; (y) since October 4, 2004 and, to the Knowledge of Visant, on or prior to October 4, 2004, neither the United States government nor any prime contractor, subcontractor or other Person has notified Visant or any of its Affiliates in writing or, to the Knowledge of Visant, orally that Visant or any such Affiliate has breached or violated any material certification, representation, clause, provision or requirement, pertaining to such Government Contract; and (z) no termination for convenience, termination for default, cure notice or show cause notice is in effect as of the date hereof pertaining to any Government Contract.

(b) Neither Visant nor any of its Affiliates nor any of their respective personnel is or has been under administrative, civil, or criminal investigation to the Knowledge of Visant since October 4, 2004, or to the Knowledge of Visant, on or prior to October 4, 2004, indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract that is a Material Contract; (y) neither Visant nor any of its Affiliates has since October 4, 2004 and, to the Knowledge of Visant, on or prior to October 4, 2004, conducted or initiated any internal investigation or made a voluntary disclosure to the United States government with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract that is a Material Contract; and (z) to the Knowledge of Visant, neither Von Hoffmann, any of the Transferred Subsidiaries nor any of their respective personnel has been suspended or debarred from doing business with the United States government or is, or at any time has been, the subject of a finding of non-responsibility or ineligibility for United States government contracting.

 

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As used herein, “ Government Contract ” means any contract to which Vis