EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of March 15,
2001 (the "Effective Date"), is by and among Entertainment Properties Trust, a
Maryland business trust (the "Company"), G.S. Theaters, L.L.C., a Louisiana
limited liability company ("GST"), Westbank Theatres, L.L.C., a Louisiana
limited liability company ("WT"), Clearview Theatres, L.L.C., a Louisiana
limited liability company ("CT"), Houma Theater, L.L.C., a Louisiana limited
liability company ("HT1), and Hammond Theatres, L.L.C., a Louisiana limited
liability company ("HT2"). GST, WT, CT, HT1 and HT2 are collectively referred to
as the "Preferred Members." The Preferred Members and their respective
successors-in-interest and permitted assigns are hereinafter sometimes referred
to as the "Holders."
RECITALS:
WHEREAS, upon execution of the First Amended and Restated Limited Liability
Company Agreement (the "LLC Agreement") of EPT Gulf States, LLC, a Delaware
limited liability company (the "Operating Company"), dated as of the date
hereof, among EPT DownREIT, Inc. a wholly-owned subsidiary of the Company (the
"Common Member"), and the Preferred Members, and the consummation of the
transactions contemplated thereby and pursuant to the Contribution Agreement
(the "Contribution Agreement"), dated as of the date hereof, among the Common
Member and the Preferred Members, each of the Preferred Members will be a holder
of preferred and common member interests of the Operating Company (the "Units");
and
WHEREAS, pursuant to the LLC Agreement, the Preferred Members now have the
right at any time to exchange all or any portion of their Units for shares (the
"Shares") of the Company's Common Shares (as defined below) or cash at the
option of the Operating Company, and, except as provided herein, any Shares
issued upon such exchange will not be registered under the Securities Act of
1933, as amended (the "Securities Act"); and
WHEREAS, in order to induce the Preferred Members to enter into the LLC
Agreement and as a condition to the Preferred Members' obligations contemplated
by the Contribution Agreement, the Company has agreed to provide certain
registration rights with respect to the Shares set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings specified below (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Business Day(s)" means calendar days other than Saturdays, Sundays and
days on which banking institutions in the City of New York are authorized by law
to close.
"Common Shares" means the Company's Common Shares, par value $0.01 per
share.
"Effective Date" shall have the meaning ascribed to that term in the
introductory paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder as in effect at the time.
"Form S-3" means such form of registration statement under the Securities
Act or any registration form under the Securities Act subsequently adopted by
the SEC that permits the inclusion or incorporation of substantial information
by reference to other documents filed by the Company with the SEC.
"Holder" shall have the meaning ascribed to that term in the introductory
paragraph of this Agreement.
The terms "register," "registered," and "registration" refer to a
registration effected by the preparation and filing of a Registration Statement
in compliance with the Securities Act, and the declaration or ordering of
effectiveness of such Registration Statement by the SEC.
"Registrable Securities" means at any time: (a) the Shares issued by the
Company to the Holders upon exchange of Units, and (b) any other securities
issued by the Company in exchange for or upon conversion of any such Shares (it
being understood that Units do not constitute Registrable Securities) but, with
respect to any particular Registrable Security, only so long as it continues to
be a Registrable Security. Registrable Securities shall include any securities
issued as a dividend or distribution on account of Registrable Securities or
resulting from a subdivision of the outstanding shares of Registrable Securities
into a greater number of shares (by reclassification, stock split or otherwise).
For the purposes of this Agreement, a security that was at one time a
Registrable Security shall cease to be a Registrable Security when (a) such
security has been effectively registered under the Securities Act and such
security has been disposed of pursuant to such registration statement, (b) such
security is sold to the public in reliance on Rule 144 (or any similar provision
then in force) under the Securities Act, (c) such security has been otherwise
transferred and (i) the Company has properly delivered a new certificate or
other evidence of ownership not bearing the legend set forth on the Shares upon
the initial issuance thereof (or other legend of similar import) and (ii) in the
opinion of counsel to the Company reasonably acceptable to the Holders and
addressed to the Company and the holder of such security, the subsequent
disposition of such security shall not require the registration or qualification
under the Securities Act or be subject to any other limitations on dispositions,
including, without limitation, volume limitations on dispositions, or (d) such
security has ceased to be outstanding.
"Registration Expenses" means: (a) registration, qualification, and filing
fees; (b) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of any Registrable Securities being registered); (c) printing
expenses; (d) internal expenses of the Company (including without limitation,
all salaries and expenses of officers and employees performing legal or
accounting duties); (e) fees and disbursements of counsel for the Company and
customary fees and expenses for independent certified public accountants
retained by the Company (including the expenses of any comfort letters or costs
associated with the delivery by independent certified public accountants of
comfort letters customarily requested by underwriters); and (f) fees and expense
of listing any Registrable Securities on any securities exchange on which the
Common Shares are then listed.
"Registration Statement" means any registration statement or similar
document under the Securities Act or any successor thereto that covers any of
the Registrable Securities pursuant to the provisions of this Agreement,
including the prospectus or preliminary prospectus included therein, all
amendments and supplements to such Registration Statement, including
post-elective amendments, all
exhibits to such Registration Statement and all material incorporated by
reference in such Registration Statement.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder as in effect at the time.
SECTION 1.2. CONSTRUCTION. In this Agreement, unless the context otherwise
requires:
(a) Articles and Sections referred to by number shall mean the
corresponding Articles and Sections of this Agreement.
(b) The terms "hereby," "hereof," "hereto," "herein," "hereunder," and
any similar terms, as used in this Agreement refer to this Agreement, and
the term "hereafter" shall mean after, and the term "heretofore" shall mean
before the date of execution of this Agreement.
(c) Words of masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Word importing the
singular number shall include the plural number and vice versa, and words
importing persons shall include corporations and associations, including
public bodies, as well as natural persons.
(d) The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe, or limit the scope or intent
of this Agreement or any of the provisions hereof.
(e) The words "include," "includes," and "including" shall be deemed
to be followed by the phrase "without limitation."
ARTICLE II
DEMAND REGISTRATION
SECTION 2.1. Commencing on the first anniversary of the date hereof, if the
Company shall receive written request in the manner provided in Section 16.2
hereof from one or more Holders (collectively, the "Initiating Holders") that
the Company file a Registration Statement under the Securities Act covering the
registration of any or all of such Holder's Registrable Securities, whether
issued or issuable pursuant to the LLC Agreement) then the Company shall (a)
within 10 days of the receipt thereof, give written notice, in the manner
provided in Section 16.2 hereof, of such request to all Holders of outstanding
Registrable Securities known to the Company, and (b) subject to the limitations
contained in this Article II, file, as soon as practicable and in any event
within 30 days after the beginning of such fiscal quarter, the Registration
Statement to effect registration under the Securities Act covering all
Registrable Securities for which the Company receives a request from the Holder
thereof in the manner provided in Section 16.2 hereof, within 10 days of the
mailing of such notice by the Company. The Company, however, shall not be
required to file a Registration Statement pursuant to this Article II unless the
aggregate number of Registrable Securities requested to be registered represents
a total of 50,000 Common Shares.
SECTION 2.2. If an Initiating Holder intends to distribute the Registrable
Securities covered by its request by means of an underwriting, it shall so
advise the Company as a part of its request made pursuant to Section 2.1 hereof
and the Company shall include such information in the written notice to the
Holders referred to in Section 2.1. In such event, the right of any Holder to
include its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to sell Registrable Securities through such
underwriting (together with the Company as provided in Section 5.1(g) of this
Agreement and any other holder of shares of Common Shares permitted to
participate in such registration pursuant to this Section 2.2) shall enter into
an underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Initiating Holder(s) (provided the same
are underwriters of recognized nationals standing reasonably acceptable to the
Company) upon the terms and conditions agreed upon between the Company and such
underwriter(s). Notwithstanding any other provision of this Article II, if the
underwriter(s) advise the Initiating Holder(s) in writing that marketing or
other factors require a limitation of the number of Registrable Securities to be
underwritten, then the Company shall so advise all Holders of Registrable
Securities that would otherwise be underwritten pursuant hereto, and the number
of Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holder(s), in
proportion (as nearly as practicable) to the number of Registrable Securities
which each Holder requested be included in such registration. If the number of
Registrable Securities to be underwritten has not been so limited, the Company
may include shares of Common Shares for its own account (or for the account of
other shareholders) in such registration if the underwriter(s) so agree and to
the extent that, in the opinion of such underwriter(s), the inclusion of such
additional shares will not adversely effect the offering of the Registrable
Securities included in such registration.
SECTION 2.3. The Company shall not be obligated to effect a total of more
than two (2) registrations in any twelve-month period pursuant to this Article
II hereof.'
ARTICLE III
INCIDENTAL REGISTRATION
SECTION 3.1. If (but without any obligation to do so) the Company proposes
to register (including a registration effected by the Company for shareholders
other than the Holders) any shares of Common Shares under the Securities Act in
connection with the public offering of such shares solely for cash on any form
of Registration Statement in which the inclusion of Registrable Securities is
appropriate (other than a registration (a) relating solely to the sale of
securities to participants in a Company employee or non-employee director stock
plan, (b) pursuant to a Registration Statement on Form S-4 or Form S-8 (or any
successor forms) or any form that does not include substantially the same
information, other than information relating to the selling shareholders or
their plan of distribution, as would be required to be included in a
registration statement covering the sale of Registrable Securities, (c) in
connection with any dividend reinvestment or similar plan, or (d) for the sole
purpose of offering securities to another entity or its security holders in
connection with the acquisition of assets or securities of such entity or any
similar transaction), the Company shall promptly give each Holder written notice
of such registration in the manner provided in Section 16.2 hereof at least 30
days before the anticipated filing date of any such Registration Statement. Upon
the written request of any Holder (an "Electing Holder") given in the manner
provided in Section 16.2 within 15 days after the mailing of such notice by the
Company, the Company shall, subject to the provisions of Article VIII hereof,
cause to be registered under the Securities Act all of the Registrable
Securities that such Electing Holder has so requested to be registered. The
Company shall not be required to proceed with, or maintain the effectiveness of,
any registration of its securities after giving the notice herein provided, and
the right of any Electing Holder to have Registrable Securities included in such
Registration Statement shall be conditioned upon participation in any
underwriting to the extent provided herein. The Company shall not be required to
include any Registrable Securities in such underwriting unless the Electing
Holders thereof enter into an underwriting agreement in customary form, and upon
terms and conditions agreed upon among such Electing Holders, the Company and
the underwriter(s) (except as to monetary obligations of the Electing Holders
not
contemplated by Article VII of this Agreement), with the underwriter(s) selected
by the Company. In the event that the underwriter(s) shall advise the Company
that marketing or other factors require a limitation of the number of shares to
be underwritten, then the Company shall so advise all Electing Holders of
Registrable Securities that would otherwise be underwritten pursuant hereto.
After excluding all Shares (other than Shares to be issued by the Company) from
such underwriting that are not entitled under this Agreement or any other
agreement to registration, the underwriter(s) may exclude some or all of the
Electing Holders' Registrable Securities from such underwriting so long as the
number of Registrable Securities, if any, that may be included in the
underwriting shall be allocated among the Electing Holders and all other holders
of Shares entitled under any other agreement to registration in proportion (as
nearly as practicable) to the number of Shares all Electing Holders and such
other holders of Shares entitle to registration requested be included in such
registration.
Nothing in this Article III is intended to diminish the number of
Registrable Securities to be included by the Company in such underwriting. The
Company and the underwriter(s) selected by the Company shall make all
determinations with respect to the timing, pricing and other matters related to
the offering.
ARTICLE IV
FORM S-3 SHELF REGISTRATION
SECTION 4.1. Within 15 days after the date hereof, the Company shall file a
registration on Form S-3 and any related qualifications and compliance, or make
available an existing Form S 3, to effect registration as would permit or
facilitate the continuous or delayed sale and distribution of all of the
Registrable Securities pursuant to Rule 415 for a period ending not earlier than
the first anniversary of the date hereof.
SECTION 4.2. For as long as the Company intends to keep the registration
described in Section 4.1 effective to permit or facilitate the continuous or
delayed sale and distribution of all of the Registrable Securities pursuant to
Rule 415, the Company shall have no obligation to file a Registration Statement
pursuant to Section 2.1. The Company must give each Holder at least 75 days
advance notice of the Company's intention to let effectiveness of such
registration lapse.
ARTICLE V
REGISTRATION PROCEDURE
SECTION 5.1. Whenever required under this Agreement to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably practicable:
(a) Prepare and file with the SEC a new Registration Statement with
respect to such Registrable Securities and use its reasonable best
efforts to cause such registration statement to become effective, and,
except as provided in Article IV, keep such Registration Statement
effective at least 90 days provided, however, that no Registration
Statement need remain in effect after all Registrable Securities
covered thereby have been sold.
(b) Prepare and file with the SEC such amendments and supplements to such
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such Registration Statement.
(c) Furnish to the Holders of Registrable Securities to be registered,
without charge, such number of copies of a prospectus, including a
preliminary prospectus, and any
amendment or supplement thereto as they may reasonably request and a
reasonable number of copies of the then-effective Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by
reference).
(d) Promptly after the filing of any document that is to be incorporated
by reference into a Registration Statement or prospectus, provide
copies of such document to the Holders of Registrable Securities
covered thereby and any underwriter.
(e) Use is reasonable best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested
by the Holders; provided, however, that the Company shall not be
required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions where it would
not otherwise be required to so qualify to do business or consent to
service of process or subject itself to taxation in any such
jurisdiction.
(f) Cooperate with the Holders of Registrable Securities and each
underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the National Association of Securities
Dealers, Inc.
(g) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the underwriter(s) of such offering, with such
terms and conditions as the Company and the underwriter(s) may agree.
Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
(h) Notify each Holder of Registrable Securities covered by such
Registration Statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing.
(i) Cause all Registrable Securities covered by the Registration
Statements to be listed on each securities exchange or automated
quotation system on which shares of the Common Shares is then listed.
If any of such shares are not so listed, the Company shall cause such
shares to be listed on the securities exchange or automated quotation
system as may be reasonably requested by the Holders of a majority of
the Registrable Securities being registered.
(j) In the case of an underwritten public offering, furnish, at the
request of any Holder requesting registration pursuant to this
Agreement, on the date that such Registrable Securities re delivered
to the underwriters for sale in connection with a registration
pursuant to this Agreement, (A) an opinion of counsel representing the
Company for the purposes of such registration, (B) a letter from
independent certified public accountants of the Company, in each case
to be dated such date and to be in form and substance as is
customarily given by counsel or independent certified public
accountants, as the case may be, to underwriters in an underwritten
public offering, addressed to the underwriters.
(k) Permit a representative of any Holder of Registrable Securities, any
underwriter participating in any disposition pursuant to such
registration, and any attorney or accountant retained by such Holder
or underwriter, to participate, at each person's own expense, in the
preparation of the Registration Statement, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or
accountant in connection with such registration; provided, however,
that such representatives, underwriters, attorneys or accountants
enter into a confidentiality agreement, in form and substance
reasonably satisfactory to the Company, prior to the release or
disclosure of any such information.
Notwithstanding the foregoing, the Company may withdraw (except for a
registration effected pursuant to Article IV), delay or suspend any registration
or qualification of Registrable Securities required pursuant to this Agreement
for a period not exceeding 180 days (the "Blackout Period") if the Company shall
deliver to the Holder(s) written notice (the "Suspension Notice") that the
Company has determined in good faith that any such registration or the sale of
the Registrable Securities pursuant to such registration would adversely affect
an offering or contemplated offering of any securities of the Company or any
other contemplated material corporate event or that there exists material
nonpublic information regarding the Company, provided, that the Company shall
not commence a Blackout Period more than one (1) time in any twelve-month
period. Upon delivery of a Suspension Notice, all Registration Requests (as
defined below) which may have been given prior to the Suspension Notice or
during the Blackout Period shall be deemed nullified. Promptly after the Company
determines in good faith that the registration of Registrable Securities or any
sale of Registrable Securities pursuant to such registration would not adversely
affect an offering or contemplated offering of any securities of the Company or
any other contemplated material corporate event or that the material nonpublic
information regarding the Company that caused the Blackout Period no longer
exists or is no longer nonpublic information, the Company shall deliver to each
Holder whose registration of Registrable Securities has been affected by the
Blackout Period written notice that the Blackout Period has ceased (the
"Suspension Rescission Notice") and give such Holder the opportunity to renew
registration of such Holder's Registrable Securities. For purpose of determining
the duration of each Blackout Period, each Blackout Period shall be deemed to
(A) commence on the earlier of (I) the first date on which the Company delivers
the first Suspension Notice with respect to the Blackout Period (the "Initial
Suspension Date"), or (II) the Initial Nullification Date, as defined in the LLC
Agreement, and (B) terminate on the earlier of (I) the first date on which the
Company delivers a Suspension Rescission Notice with respect to the applicable
Suspension Notice (the "Suspension Rescission Date"), (II) the Nullification
Rescission Date, as defined in the LLC Agreement, or (III) the close of business
on the 180th day following the commencement of the Blackout Period. The Company
shall have no obligation to cause a suspended Registration Statement provided
pursuant to Article IV to be available to the Holders following a Blackout
Period unless the Company receives a written request for:
SECTION 5.2.
(a) If the Company has determined in good faith that any such registration
or the sale of the Registrable Securities pursuant to such
registration would adversely affect an offering or contemplated
offering of any securities of the Company or any other contemplated
material corporate event or that there exists material nonpublic
information regarding the Company, and the Company is prohibited from
commencing a Blackout period pursuant to the final paragraph of
Section 5.1 or Section 9.2(c) of the LLC Agreement (a "Post-Blackout
Period Event"), then the Company shall have the right during the
pendency such Post-Blackout Period Event, but not the obligation
(hereinafter such right sometimes referred to as the "Rights"), to
purchase the Subject Shares (as defined below) from the Holder
thereof, for cash on the terms and subject to the conditions and
restrictions contained in this Section 5.2 if the Company receives a
Registration Request during the
pendency of such Post-Blackout Period Event and after being informed
of the existence of such Post-Blackout Period Event, such Holder does
not promptly withdraw such Registration Request. The Rights granted
hereunder may be exercised by the Company upon delivery to the
applicable Holder(s) of a written notice of election (an "Exercise
Notice"). Once delivered, the Exercise Notice shall be irrevocable,
subject to payment by the Company of the Purchase Price for the
Registrable Securities in accordance with the terms hereof. The amount
of cash to be paid shall equal the product of the number of Subject
Shares times the Market Price (the "Purchase Price"). "Subject Shares"
shall mean the Registrable Securities, whether issued or issuable
pursuant to the LLC Agreement, for which the applicable Registration
Request has been made. "Market Price" shall mean the average closing
price of the Shares for the twenty trading days immediately prior to
the earlier of (i) the date of receipt by the Company of a
Registration Request with respect to the Subject Shares which was
nullified pursuant to the last paragraph of Section 5.1; (ii) the date
of receipt by the Company of the Exercise Notice (as defined in the
LLC Agreement) pursuant to which the Subject Shares were issued
pursuant to the LLC Agreement; or (iii) the date of receipt by the
Company of the Exercise Notice (as defined in the LLC Agreement) which
was nullified pursuant to Section 9.2(b) of the LLC Agreement.
"Registration Request" shall mean the written request that the Company
file a Registration Statement pursuant to Article II, or the written
request of a Holder that the Company make the Registration Statement
described in Article IV available after termination of a Blackout
Period. If the Company does not exercise its Rights, then the Company
will cause the registration of the Registrable Securities in
accordance with the terms of this Agreement, and if applicable, cause
any material non-public information to be publicly disclosed.
(b) The closing of the acquisition or redemption of the Subject Shares
shall, unless otherwise mutually agreed, be held at the principal
offices of the Company, on the date agreed to by the Company and the
relevant Holder, which date (the "Settlement Date") shall in no event
be on a date which is later than the later of (i) ten (10) days after
the date of the Exercise Notice, or (ii) five (5) days after the
expiration or termination of the waiting period applicable to the
Holder, if any, under the Xxxx-Xxxxx-Xxxxxx Act (the "HSR Act"). The
Company agrees to use its best efforts to obtain an early termination
of the waiting period applicable to any such acquisition, if any,
under the HSR Act. Until the Settlement Date, each tendering Holder
shall continue to own its Subject Shares, and will continue to be
treated as the holder of such Subject Shares for all purposes. Subject
Shares will be transferred to the Company only upon receipt by the
tendering Holder of cash in payment in full therefor.
(c) At the closing of the purchase and sale or redemption of the Subject
Shares, payment of the Purchase Price shall be accompanied by proper
instruments of transfer and assignment and by the delivery of (i)
representations and warranties of (A) the tendering Holder with
respect to its due authority to sell all of the right, title and
interest in and to such Subject Shares to the Company, as applicable,
and with respect to the ownership by of the Holder of such Subject
Shares, free and clear of all liens, and (B) the Company with respect
to its due authority to acquire or redeem such Shares for cash.
ARTICLE VI
HOLDER'S OBLIGATION TO FURNISH INFORMATION
SECTION 6.1. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to any
Registrable Securities that the Holder of such securities furnish to the Company
such information regarding itself, the Registrable Securities held by it,
and the intended method of disposition of such securities as shall be required
to effect the registration of such Holder's Registrable Securities.
SECTION 6.2. Each Holder agrees that, upon receipt of any notice from the
Company, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the then current prospectus until (i) such Holder is
advised in writing by the Company that a new Registration Statement covering the
reoffer of Registrable Securities has become effective under the Securities Act
or (ii) such Holder receives copies of a supplemented or amended prospectus
contemplated by Article V hereof which addresses any additional information,
including material nonpublic information, required to be disclosed therein, or
until such Holder is advised in writing by the Company that the use of the
prospectus may be resumed. The Company shall use its reasonable best efforts to
limit the duration of any discontinuance of disposition of Registrable
Securities pursuant to this paragraph.
ARTICLE VII
REGISTRATION EXPENSES
SECTION 7.1. In the case of any demand registration pursuant to Article II
and any registration on Form S-3 pursuant to Article IV, the Company shall pay
all Registration Expenses; provided, however, that with respect to any
registration proceeding begun pursuant to Article II, if the registration
request is subsequently withdrawn at the request of the Holders of a majority of
the Registrable Securities to be registered and such Holders do not pay all
Registration Expenses, the Company shall be deemed to have effected a
registration for purposes of Section 2.3, unless at the time of such withdrawal,
the Holders have learned of a material adverse change in the condition,
business, or prospects of the Company from that known to the Holders at the time
of their request.
SECTION 7.2. In the case of any incidental registration pursuant to Article
III, the Company shall pay all Registration Expenses, provided, however, that
the Electing Holders shall bear any incremental underwriter's fees, discounts
and commissions, and all legal or accounting fees and expenses incurred by or on
behalf of the Electing Holders.
ARTICLE VIII
EFFECTIVENESS OF REGISTRATION
SECTION 8.1. A registration requested pursuant to Article II or Article IV
will not be deemed to have been effected if (a) the registration statement has
not been kept effective for the period required under Section 5.1(a) or Article
IV of this Agreement, respectively, (b) the offering of Registrable Securities
pursuant to such registration is interfered with by any stop order, injunction
or other order or requirement of the SEC or other governmental agency or court,
or (c) the conditions to the closing of any such registration that is
underwritten are not satisfied, unless such conditions have not been satisfied
by the Holders.
ARTICLE IX
DELAY OF REGISTRATION
SECTION 9.1. No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any registration of the Company's securities
as the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
ARTICLE X
INDEMNIFICATION AND CONTRIBUTION
SECTION 10.1. In the event any Registrable Securities are included in a
Registration Statement pursuant to this Agreement, the Company will indemnify
and hold harmless each Holder, its directors, officers and employees and each
person, if any, who "controls" such Holder (within the meaning of the Securities
Act) against all losses, claims, damages, or liabilities, joint or several, or
actions in respect thereof to which such Holder or other person entitled to
indemnification hereunder may become subject under the Securities Act, or
otherwise, insofar as such losses, claims, damages, liabilities or actions in
respect thereof arise out of, or are based upon, any untrue statement or alleged
untrue statement of any material fact contained in such Registration Statement,
any related preliminary prospectus, or any related prospectus or any amendment
or supplement thereto, or arise out of, or are based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
such Holder or other person entitled to indemnification hereunder for any legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be so liable to such Holder to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
an untrue statement or alleged untrue statement of a material fact or an
omission or alleged omission to state a material fact in such Registration
Statement, such preliminary prospectus, or such prospectus, or any such
amendment or supplement thereto in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of such Holder or
an underwriter specifically for use therein; and provided, further, that the
Company will not be liable, and this indemnification agreement shall not apply,
in any such case to the extent that any such loss, claim, damage, liability or
action is solely attributable to the failure of such Holder (or underwriter or
agent acting on its behalf) to deliver a final prospectus (or amendment or
supplement thereto) that corrects a material misstatement or omission contained
in the preliminary prospectus (or final prospectus). The Company will also
indemnify underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their officers and
directors and each person who "controls" such persons (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the Holders, if so requested, except with respect to
information furnished in writing specifically for use in any prospectus or
Registration Statement by any selling Holders or any such underwriters.
SECTION 10.2. With respect to written information furnished to the Company
by or on behalf of a Holder specifically for use in a Registration Statement,
any related preliminary prospectus, or any related prospectus or any supplement
or amendment thereto, such Holder will severally indemnify and hold harmless the
Company, and its directors, officers and employees and each person, if any, who
"controls" the Company (within the meaning of the Securities Act) against any
losses, claims, damages or liabilities, joint or several, or actions in respect
thereof, to which the Company or such other person entitled to indemnification
hereunder may become subject under the Securities Act, or otherwise, insofar as
such losses, claims, damages, liabilities or actions in respect thereof arise
out of, or are based upon, any untrue statement or alleged untrue statement of
any material fact contained in such Registration Statement, such preliminary
prospectus, or such prospectus, or any such amendment or supplement thereto, or
arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; and such Holder will reimburse the Company
and such other persons for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, in each case to the extent, but only to the extent, that
the same arises out of, or is based upon, an untrue statement or alleged untrue
statement of material fact or an omission or alleged omission to state a
material fact in such Registration Statement, such preliminary prospectus, or
such prospectus or any such amendment or supplement thereto in reliance upon,
and in conformity with, such written information. The Company shall be entitled
to receive indemnities from underwriters, selling brokers, dealer managers
and similar securities industry professionals participating in the distribution,
to the same extent as provided above with respect to the information so
furnished in writing by such persons specifically for inclusion in any
prospectus or Registration Statement. The Holder will also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each person who "controls" such persons (within the meaning of the
Securities Act) to the same extent as provided herein with respect to the
indemnification of the Company, if so requested.
SECTION 10.3. Promptly after receipt by an indemnified party of notice of
any claim or the commencement of any action, the indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party, notify
the indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying party
will not relieve it from any liability that it may have to the indemnified party
except to the extent it was actually damaged or suffered any loss or incurred
any additional expense as a result thereof. If any such claim or action is
brought against an indemnified party, and it notifies the indemnifying party
thereof, the indemnifying party will be entitled to assume the defense thereof
with counsel selected by the indemnifying party and reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action,
(a) the indemnifying party will not be liable to the indemnified party for any
legal or other expense subsequently incurred by the indemnified party in
connection with the defense thereof, (b) the indemnifying part will not be
liable for the costs and expenses of any settlement of such claim or action
unless such settlement was effected with the written consent of the indemnifying
party or the indemnified party waived any rights to indemnification hereunder in
writing, in which case the indemnified party may effect a settlement without
such consent, and (c) the indemnified party will be obligated to cooperate with
the indemnifying party in the investigation of such claim or action; provided,
however, that the Holders and their respective controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by such Holders against the Company may employ their own counsel if
they have been advised by counsel in writing that, in the reasonable judgment of
such counsel, it is advisable for such Holders and their controlling persons to
be represented by separate counsel due to the presence of conflicts of interest,
and in that event the fees and expenses of such separate counsel will also be
paid by the Company; provided that the Company shall not be liable for the
reasonable fees and expenses of more than one separate counsel at any time for
all such indemnified parties. An indemnifying party shall not, without the prior
written consent of the indemnified parties, settle, compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes a release of such indemnified party reasonably acceptable to such
indemnified party from all liability arising out of such claim, action, suit or
proceeding or unless the indemnifying party shall confirm in a written agreement
reasonably acceptable to such indemnified party, that notwithstanding any
federal, state or common law, such settlement, compromise or consent shall not
adversely affect the right of any indemnified party to indemnification or
contribution as provided in this Agreement.
SECTION 10.4. If for any reason the indemnification provided for in
Sections 10.1 or 10.2 is unavailable to an indemnified party or is insufficient
to hold it harmless as contemplated therein, then the indemnifying part shall
contribute to the amount paid or payable by the indemnified party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by the indemnifying party and
the indemnified party, but also the relative fault of the indemnifying part and
the indemnified party, as well as any other relevant equitable consideration. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
SECTION 10.5. The obligations under this Article X shall survive the
completion of any offering of Registrable Securities in a Registration Statement
pursuant to this Agreement, and otherwise.
ARTICLE XI
REPORTS UNDER EXCHANGE ACT
SECTION 11.1. With a view to making available to the Holders the benefits
of Rule 144 and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S 3, the Company agrees that
so long as the Company is subject to the reporting requirements of the Exchange
Act, to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) Take such action, including the voluntary registration of its Common
Shares under the Exchange Act, as is necessary to enable the Holders
to utilize Form S 3 for the same of the Registrable Securities;
(c) File with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act;
and
(d) Furnish to any Holder, so long as the Holder owns any Registrable
Securities, upon request (i) a written statement by the Company as to
its compliance with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), or as to its qualification
that it qualifies as a registrant whose securities may be resold
pursuant to Form S 3 (at any time after it so qualifies), (ii) a copy
of the most recent annual or quarterly report of the Company and such
other reports and documents so filed by the Company, and (iii) such
other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC which permits the selling
of any such securities without registration or pursuant to such form.
ARTICLE XII
ASSIGNMENT OF REGISTRATION RIGHTS
SECTION 12.1. The rights to cause the Company to register Registrable
Securities pursuant to this Agreement may be assigned by a Holder to a
transferee or assignee of Units or Shares subject to any applicable restrictions
on transfer set forth in the LLC Agreement and provided that such transfer
complies with all applicable securities laws; provided, however, that (a) the
Company is, promptly upon such transfer, furnished with written notice of the
name and address of such transferee or assignee and the Registrable Securities
with respect to which such registration rights are being assigned, (b) the
transfer of such Registrable Securities may be effected in accordance with all
applicable securities laws, and (c) the transferee executes and agrees to be
bound by this Agreement, an executed counterpart of which shall be furnished to
the Company.
ARTICLE XIII
AMENDMENT OF REGISTRATION RIGHTS
SECTION 13.1. Any provision of this Agreement may be amended or the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of the
Company and the Holders of a majority of Registrable Securities then outstanding
(assuming all Units have been exchanged for Shares). Any amendment or waiver
effected in
accordance with this Section shall be binding upon each Holder of any
Registrable Securities, each future Holder of such Registrable Securities and
the Company.
ARTICLE XIV
STAND-OFF AGREEMENT
SECTION 14.1. Any Holder, if requested by the Company or an underwriter of
an underwritten public offering, agrees not to sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise transfer or dispose of
any Common Shares held by such Holder, except (i) for Registrable Securities
included in the registration, or (ii) pursuant to (A) a bona fide gift or gifts,
(B) a bona fide pledge or pledges, (C) a distribution to partners, members or
stockholders of Holder, or (D) a private sale, provided that the transferee in
such private sale becomes a party to the Agreement, without the prior written
consent of the Company or such underwriter(s), as the case may be, during a
period of up to five days prior to the pricing of such public offering and 180
days following the effective date of any underwritten registration of the
Company's securities effected pursuant to Articles II, III or IV hereof. Such
agreement shall be in writing in form satisfactory to the Company and such
underwriter, and may be included in the underwriting agreement. The Company may
impose stop-transfer instructions with respect to the securities subject to the
foregoing restriction until the end of the required stand-off period.
ARTICLE XV
TERMINATION OF REGISTRATION RIGHTS
SECTION 15.1. A Holder's registration rights under this Agreement relating
to such Registrable Securities shall terminate on the date such Holder and its
Affiliates are able to dispose of all of its shares of Registrable Securities in
any 90-day period pursuant to Rule 144. All registration rights (except for
rights previously exercised in connection with an underwritten public offering
pursuant to Article III) of a Holder under this Agreement shall terminate on the
date on which all of such Holder's shares of Registrable Securities can be sold
pursuant to Rule 144(k).
ARTICLE XVI
MISCELLANEOUS
SECTION 16.1. No Holder may use any confidential information received by it
pursuant to this Agreement in violation of the Exchange Act or reproduce,
disclose, or disseminate such information to any other person (other than its
employees or agents having a need to know the contents of such information and
its attorneys), except to the extent reasonably related to the exercise of
rights under this Agreement, unless (a) such information has been made available
to the public generally (other than by such recipient in violation of this
Section 16.1), or (b) such recipient is required to disclose such information by
a governmental body or regulatory agency or by law in connection with a
transaction that is not otherwise prohibited hereby and the Company is given a
reasonable opportunity to obtain injunctive relief or a protective order to
maintain the confidentiality of such information.
SECTION 16.2. Notices. All notices, requests and other communications under
this Agreement shall be in writing and shall be either (a) delivered in person,
(b) sent by certified mail, return-receipt requested, (c) delivered by a
recognized delivery service or (d) sent by facsimile transmission and addressed
as follows:
If intended for the Company: Entertainment Properties Trust
00 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to: Shook, Hardy & Bacon LLP
0000 Xxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx
If intended for the Holders: 0000 Xxxxxxx Xxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Jr.
With a copy to: X'Xxxxxx & X'Xxxxxx, LLC
000 Xx. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X'Xxxxxx, III
Or at such other address, and to the attention of such other person, as the
parties shall give notice as herein provided. A notice, request and other
communication shall be deemed to be duly received if delivered in person or by a
recognized delivery service, when delivered to the address of the recipient, if
sent by mail, on the date of receipt by the recipient as shown on the return
receipt card, or if sent by facsimile, upon receipt by the sender of an
acknowledgment or transmission report generated by the machine from which the
facsimile was send indicating that the facsimile was sent in its entirety to the
recipient's facsimile number; provided that if a notice, request or other
communication is served by hand or is received by facsimile on a day which is
not a Business Day, or after 5:00 P.M. on any Business Day at the addressee's
location, such notice or communication shall be deemed o be duly received by the
recipient at 9:00 A.M. on the first Business Day thereafter.
From time to time as the Company may request, each Holder shall provide to the
Company such evidence or documentation reasonably satisfactory to the Company,
in its sole discretion, certified by an appropriate officer of such Holder,
regarding the number of shares of Registrable Securities beneficially owned by
such Holder and its status as an "affiliate" under the Securities Act.
SECTION 16.3. Subject to the provisions of Article XII hereof, this
Agreement shall inure to the benefit of and be binding upon the successor and
permitted assigns of each of the parties.
SECTION 16.4. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
SECTION 16.5. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MISSOURI WITHOUT REGARD TO
PRINCIPALS OF CONFLICTS OF LAWS.
SECTION 16.6. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
SECTION 16.7. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
SECTION 16.8. The Company will not hereafter enter into any agreement with
respect to its securities which is inconsistent with the rights, or provides
rights superior to those, granted to the Holders of Registrable Securities in
this Agreement.
[The remainder of the page left blank intentionally. Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
ENTERTAINMENT PROPERTIES TRUST
By:
-------------------------------------------
Name: Xxxxx X. Brain
Title: President & Chief Executive Officer
G.S. THEATERS, L.L.C.
By: Gulf States Theatres, Inc.
By:
-------------------------------------------
X.X. Xxxxxxx, President
G.S. THEATERS, L.L.C.
By: Gulf States Theatres, Inc.
By:
-------------------------------------------
X.X. Xxxxxxx, President
CLEARVIEW THEATRES, L.L.C.
By: Gulf States Theatres, Inc.
By:
-------------------------------------------
X.X. Xxxxxxx, President
HOUMA THEATER, L.L.C.
By: Gulf States Theatres, Inc.
By:
-------------------------------------------
X.X. Xxxxxxx, President
XXXXXXX THEATRES, L.L.C.
By: Gulf States Theatres, Inc.
By:
-------------------------------------------
X.X. Xxxxxxx, President
