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Exhibit 4.4
SECOND AMENDMENT
TO
RESTATED REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDMENT TO RESTATED REGISTRATION RIGHTS
AGREEMENT ("Second Amendment"), is entered into as of December__, 1997, between
Hollywood Theater Holdings, Inc., a Delaware corporation (the "Company"),
Stratford Capital Partners, L.P., a Texas limited partnership ("SCP"),
Stratford Equity Partners, L.P., a Texas limited partnership ("SEP") and
Precept Investors, Inc., a Texas corporation ("Precept").
W I T N E S S E T H:
WHEREAS, the Company, SCP and Precept entered into the Amended
and Restated Registration Rights Agreement, dated as of October 3, 1996, as
amended by the First Amendment to Restated Registration Rights Agreement, dated
as of April 25, 1997 (as amended, the "Restated Registration Rights
Agreement"); and
WHEREAS, the Company and SEP entered into a Subscription
Agreement, dated as of November 19, 1997 (the "Subscription Agreement"),
pursuant to which the Company issued, and SEP purchased, 10,257 shares of the
Company's Series C Convertible Preferred Stock, par value $.01 per share (the
"Series C Preferred Stock"); and
WHEREAS, pursuant to the terms of the Subscription Agreement,
the Company agreed to exchange the 10,257 shares of Series C Preferred Stock
for an equal number of shares of a new series of preferred stock which would
have identical rights and privileges to the Series C Preferred Stock, except
for the dividend rate which would be 11%; and
WHEREAS, the Company and SEP have entered into a Stock
Exchange Agreement pursuant to which the Company will issue 10,257 shares of a
new series of preferred stock designated the Series D Convertible Preferred
Stock, par value $.01 per share (the "Series D Preferred Stock") in exchange
for the 10,257 shares of Series C Preferred Stock issued to SEP pursuant to the
Subscription Agreement; and
WHEREAS, the parties hereto desire to amend the Restated
Registration Rights Agreement to include SEP as a party thereto and to include
references to the Series D Preferred Stock.
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NOW THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the
performance thereof and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Capitalized terms used herein and not otherwise
expressly defined shall have the respective meanings assigned to them in the
Restated Registration Rights Agreement.
2. By executing this Second Amendment, SEP shall become
a signatory to the Restated Registration Rights Agreement, and as such will
have all rights and privileges provided to each of the parties thereunder. SEP
agrees to comply with all the terms and conditions of the Restated Registration
Rights Agreement.
3. The Restated Registration Rights Agreement is hereby
amended as follows:
(a) The definition of "Investors" in the recitals
of the Restated Registration Rights Agreement shall be amended to
include Stratford Equity Partners, L.P., a Texas limited partnership.
(b) Section 1 is amended by adding the following
definition:
"Series D Preferred" means the Series D Convertible
Preferred Stock of the Company, par value $.01 per
share.
(c) The definition of "Conversion Shares" is
hereby amended to read in its entirety as follows:
"Conversion Shares" means the shares of Common Stock
or other equity securities issued or issuable upon
conversion of the Series B Preferred, the Series C
Preferred and the Series D Preferred.
(d) The first sentence of the definition of
"Registrable Securities" is hereby amended to read in its entirety as
follows:
"Registrable Securities" means any (i) shares of
Series B Preferred, Series C Preferred or Series D
Preferred owned by the Investors, whether acquired on
the date hereof or hereafter acquired, (ii) shares of
Common Stock owned by the Investors, whether acquired
on the date hereof or hereafter acquired, (iii)
Conversion Shares owned by the Investors, (iv) shares
of Series B Preferred, Series C Preferred, Series D
Preferred or Common Stock acquired by any Person
after the date hereof pursuant to rights granted to
the Investors under the Purchase Agreement or the
Shareholders' Agreement, (v) Conversion Shares
acquired by any Person after the date hereof pursuant
to rights granted
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to the Investors under the Purchase Agreement or the
Shareholders' Agreement and (vi) shares of Common
Stock issued or issuable, directly or indirectly,
with respect to the Common Stock referenced in
clauses (ii), (iii), (iv) or (v) above by way of
stock dividend, stock split or combination of shares.
(e) The definition of "Requisite Percentage of
Outstanding Holders" is hereby amended to read in its entirety as
follows:
"Requisite Percentage of Outstanding Holders" means
the Holders of Registrable Securities who, assuming
conversion of all of the then outstanding Series B
Preferred, Series C Preferred and Series D Preferred
into Conversion Shares, would hold 15% or more of the
total Conversion Shares that would then be
outstanding.
(a) The definition of "Requisite Percentage of
Participating Holders" is hereby amended to read in its entirety as
follows:
"Requisite Percentage of Participating Holders" means
the Holders of Registrable Securities participating
in the registration who, assuming conversion of all
of the then outstanding Series B Preferred, Series C
Preferred and Series D Preferred into Conversion
Shares, would hold a majority of the total Conversion
Shares that would then be held by all Holders
participating in the registration.
4. The Restated Registration Rights Agreement is hereby
ratified by each of the parties hereto, and the terms and provisions of the
Restated Registration Rights Agreement as amended pursuant to Section 3 hereof
shall remain in full force and effect.
5. From and after the date hereof, each reference to
"hereof," "hereunder," "herein" and "hereby" and each reference to "this
Agreement" and each other reference of like import in the Restated Registration
Rights Agreement shall be deemed to refer to the Restated Registration Rights
Agreement as amended pursuant to Section 3 hereof.
6. This Second Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Second
Amendment to Restated Registration Rights Agreement be executed as of the date
first above written.
HOLLYWOOD THEATER HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Chief Operating Officer
STRATFORD CAPITAL PARTNERS, L.P.
By: Stratford Capital GP Associates, L.P.,
its general partner
By: Stratford Capital Corporation, its
general partner
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Managing Director
STRATFORD EQUITY PARTNERS, L.P.
By: Stratford Capital GP Associates,
L.P., its general partner
By: Stratford Capital Corporation, its
general partner
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Managing Director
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PRECEPT INVESTORS, INC.
By: /s/ PRECEPT INVESTORS, INC.
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Name:
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Title:
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