Exhibit 4.6
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of August 5,
1998, by and among Loews Cineplex Entertainment Corporation (the "Company")
and Xxxxxxx, Xxxxx & Co., BT Alex. Xxxxx Incorporated, Credit Suisse First
Boston Corporation and Salomon Brothers Inc (collectively, the
"Purchasers") as the purchasers of the 8.875% Senior Subordinated Notes due
2008 of the Company.
1. Certain Definitions.
For purposes of this Agreement, the following terms shall have the
following respective meanings:
(a) "Closing Date" shall mean the date on which the Securities are
initially issued.
(b) "Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(c) "Effective Time", in the case of an Exchange Offer, shall mean the
date on which the Commission declares the Exchange Offer registration
statement effective or on which such registration statement otherwise
becomes effective and, in the case of a Shelf Registration, shall mean the
date on which the Commission declares the Shelf Registration effective or
on which the Shelf Registration otherwise becomes effective.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934.
(e) "Exchange Offer" shall have the meaning assigned thereto in
Section 2.
(f) "Exchange Securities" shall have the meaning assigned thereto in
Section 2.
(g) The term "holder" shall mean the Purchasers for so long as they
own any Registrable Securities and any person who is a holder or beneficial
owner of any Registrable Securities, for so long as such person owns any
Registrable Securities.
(h) "Indenture" shall mean the Indenture, dated as of August 5, 1998,
between the Company and Bankers Trust Company, as Trustee.
(i) The term "person" shall mean a corporation, limited liability
company, association, partnership, organization, business, individual,
trust, government or political subdivision thereof or governmental agency.
(j) "Registrable Securities" shall mean the Securities; provided,
however, that such Securities shall cease to be Registrable Securities when
(i) in the circumstances contemplated by Section 2(a), such Securities have
been exchanged for Exchange Securities in an Exchange Offer as contemplated
in Section 2(a) provided, however, that any such Securities that, pursuant
to the last two sentences of Section 2(a), are included in a prospectus for
use in connection with resales by broker-dealers shall be deemed to be
Registrable Securities with respect to Sections 5, 6 and 9 until resale of
such Exchange Securities has been effected within the 180-day period
referred to in Section 2(a); (ii) in the circumstances contemplated by
Section 2(b), a registration statement registering such Securities under
the Securities Act has been declared or becomes effective, and such
Securities have been sold or otherwise transferred by the holder thereof
pursuant to such effective registration statement; (iii) such Securities
are sold pursuant to Rule 144 under circumstances in which any legend borne
by such Securities relating to restrictions on transferability thereof,
under the Securities Act or otherwise, is removed by the Company or
pursuant to the Indenture, or such Securities are eligible to be sold
pursuant to paragraph (k) of Rule 144; or (iv) such Securities shall cease
to be outstanding.
(k) "Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
(l) "Restricted Holder" shall mean (i) a holder that is an affiliate
of the Company within the meaning of Rule 405 under the Securities Act,
(ii) a holder who acquires Exchange Securities outside the ordinary course
of such holder's business or (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing Exchange Securities.
(m) "Rule 144", "Rule 405" and "Rule 415" shall mean, in each case,
such rule promulgated under the Securities Act.
(n) "Securities" shall mean, collectively, the 8.875% Senior
Subordinated Notes due 2008 of the Company to be issued and sold to the
Purchasers and any securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture.
(o) "Securities Act" shall mean the Securities Act of 1933.
(p) "Shelf Registration" shall have the meaning assigned thereto in
Section 2 hereof.
(q) "Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
or any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Agreement, and the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision. Unless the context otherwise
requires, any reference to a statute, rule or regulation refers to the same
(including any successor statute, rule or regulation thereto) as it may be
amended from time to time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
use its reasonable best efforts to file under the Securities Act, as soon
as practicable, but no later than 90 days after the Closing Date, a
registration statement relating to an offer to exchange (the "Exchange
Offer") any and all of the Securities for a like aggregate principal amount
of debt securities of the Company which are identical in all material
respects to the Securities (and which are entitled to the benefits of a
trust indenture which is identical in all material respects to the
Indenture or is the Indenture and which has been qualified under the Trust
Indenture Act) except that they have been registered pursuant to an
effective registration statement under the Securities Act and will not
contain provisions for the additional interest contemplated by Section 2(c)
hereof or provisions restricting transfer (such new debt securities
hereinafter called "Exchange Securities"). The Company will require each
holder of Registrable Securities who wishes to exchange such Registrable
Securities for Exchange Securities in the Exchange Offer to represent that
any Exchange Securities to be received by it will be acquired in the
ordinary course of its business, that at the time of the commencement of
the Exchange Offer it has no arrangement with any person to participate in
the distribution (within the meaning of the Securities Act) of the Exchange
Securities and that it is not an affiliate of the Company within the
meaning of Rule 405 under the Securities Act. The Company agrees to use its
reasonable best efforts to cause such registration statement to become
effective under the Securities Act as soon as practicable thereafter. The
Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company further agrees to use its
reasonable best efforts to commence the Exchange Offer promptly after such
registration statement has become effective, hold the Exchange Offer open
for at least 30 days and exchange the Exchange Securities for all
Registrable Securities that have been validly tendered and not withdrawn on
or prior to the expiration of the Exchange Offer. The Exchange Offer will
be deemed to have been completed only if the Exchange Securities received
by holders (other than Restricted Holders) in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such holder
without restriction under the Securities Act and without material
restrictions under the Blue Sky or securities laws of a substantial
majority of the States of the United States of America, it being understood
that broker-dealers receiving Exchange Securities will be subject to
certain prospectus delivery requirements with respect to resale of the
Exchange Securities. The Exchange Offer shall be deemed to have been
completed upon the earlier to occur of (i) the Company having exchanged the
Exchange Securities for all outstanding Registrable Securities pursuant to
the Exchange Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchangeable Securities for all Registrable Securities that
have been properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30 days following
the commencement of the Exchange Offer. The Company agrees (i) to include
in the registration statement a prospectus for use in any resales by any
holder of Securities that is a broker-dealer and (ii) to keep such
registration statement effective for a period ending on the earlier of the
180th day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities. With respect to
such registration statement, such holders shall have the benefit of the
rights of indemnification and contribution set forth in Section 6 hereof.
(b) In the event that (i) on or prior to the consummation of the
Exchange Offer existing Commission interpretations are changed such that
the Exchange Securities received by holders (other than Restricted Holders)
in the Exchange Offer for Registrable Securities are not or would not be,
upon receipt, transferable by each such holder without restriction under
the Securities Act, (ii) the Exchange Offer has not been consummated on or
before the 240th day after the Closing Date or (iii) the Exchange Offer is
not available to any holder of Registrable Securities, the Company shall,
in lieu of (or, in the case of clause (iii), in addition to) conducting the
Exchange Offer contemplated by Section 2(a), file under the Securities Act
as soon as practicable a "shelf" registration statement providing for the
registration of, and the resale on a continuous or delayed basis by the
holders of, all of the Registrable Securities (or, in the case of clause
(iii), of the holders referred to in such clause (iii)), pursuant to Rule
415 under the Securities Act and/or any similar rule that may be adopted by
the Commission (the "Shelf Registration"). The Company agrees to use its
reasonable best efforts to cause the Shelf Registration to become or be
declared effective as soon as practicable after the Closing Date and to
keep such Shelf Registration continuously effective for a period ending on
the earlier of the second anniversary of the initial effective date of
registration statement relating to the Shelf Registration or such time as
all of the Registrable Securities registered on such Shelf Registration
have been sold pursuant to thereto. The Company further agrees to
supplement or make amendments to the Shelf Registration, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration or by the
Securities Act or rules and regulations thereunder for shelf registration,
and the Company agrees to furnish to the holders of the Registrable
Securities copies of any such supplement or amendment prior to its being
used and/or filed with the Commission.
(c) In the event that (i) the Company has not filed the registration
statement relating to the Exchange Offer (or, if applicable, the Shelf
Registration) on or before the 90th day after the Closing Date, or (ii)
such registration statement (or, if applicable, the Shelf Registration) has
not become effective or been declared effective by the Commission on or
before the 210th day after the Closing Date, or (iii) the Exchange Offer
has not been completed within 30 business days after the initial effective
date of the registration statement (if the Exchange Offer is then required
to be made) or (iv) any registration statement required by Section 2(a) or
2(b) is filed and declared effective but shall thereafter cease to be
effective (except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the per annum interest rate of the Securities
as set forth in the Securities shall increase by 0.5% during the first
90-day period following the occurrence of the Registration Default, and the
per annum interest rate on the Securities will increase by an additional
0.5% for each subsequent 90-day period during which any Registration
Default remains in effect up to a maximum additional interest rate of 1%,
for the period from and including the date of occurrence of the
Registration Default to but excluding such date as no Registration Default
is in effect (at which time the interest rate will be restored to its
initial rate). In the event that the interest rate of the Securities is so
increased, the Company shall promptly notify the Trustee of such increase,
including any subsequent increase, and the beginning and ending dates
therefor.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture
under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, the Company shall use its reasonable
best efforts to effect or cause the Shelf Registration to permit the sale
of the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof described in the Shelf
Registration. In connection therewith, the Company shall:
(i) as soon as reasonably possible, prepare and file with the
Commission a registration statement with respect to the Shelf
Registration on any form which may be utilized by the Company and
which shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods thereof, as specified
in writing by the holders of the Registrable Securities, and use its
reasonable best efforts to cause such registration statement to become
effective as soon as reasonably possible thereafter;
(ii) as soon as reasonably possible, prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such registration statement
for the period specified in Section 2(b) hereof and as may be required
by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement,
and furnish to the holders of the Registrable Securities copies of any
such supplement or amendment prior to its being used and/or filed with
the Commission;
(iii) as soon as reasonably possible, comply with the provisions
of the Securities Act with respect to the disposition of all of the
Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the holders
thereof set forth in such registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement, (B) the underwriters (which
term, for purposes of this Agreement, shall include a person deemed to
be an underwriter within the meaning of Section 2(11) of the
Securities Act) if any, thereof, (C) the sales or placement agent, if
any, therefor, (D) counsel for such underwriters or agent, and (E) not
more than one counsel for all the holders of such Registrable
Securities the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with
the Commission, and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal
place of business or such other reasonable place for inspection by the
parties referred to in Section 3(c)(iv) who shall certify to the
Company that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the reasonable judgment of the respective
counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain
in confidence and not to disclose to any other person any information
or records designated by the Company in writing as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required, or
shall deem it advisable, so to disclose such information pursuant to
the subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the requirements
of such order, and only after such person shall have given the Company
prompt prior written notice thereof), or (C) such information is
required to be set forth in such registration statement or the
prospectus included therein or in an amendment to such registration
statement or an amendment or supplement to such prospectus in order
that such registration statement, prospectus, amendment or supplement,
as the case may be, does not contain an untrue statement of a material
fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof and confirm such
advice in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same
has become effective, (B) of any comments by the Commission, the Blue
Sky or securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or supplements
to such registration statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceedings for that purpose, (D) if
at any time the representations and warranties of the Company
contemplated by Section 3(c)(xv) or Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F)
at any time when a prospectus is required to be delivered under the
Securities Act, if such registration statement, prospectus, prospectus
amendment or supplement or post-effective amendment, or any document
incorporated by reference in any of the foregoing, contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(vii) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration statement
or any post-effective amendment thereto at the earliest practicable
date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder of Registrable Securities,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent or such holder specifies should be included
therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to
the principal amount of Registrable Securities being sold by such
holder or agent or to any underwriters, the name and description of
such holder, agent or underwriter, the offering price of such
Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities to be sold by such holder
or agent or to such underwriters; and make all required filings of
such prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(c)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and such number of copies
of such registration statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so
requested by such holder, agent or underwriter, as the case may be)
and of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents, as such holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and disposition
of the Registrable Securities owned by such holder, offered or sold by
such agent or underwritten by such underwriter and to permit such
holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to
the use of such prospectus (including such preliminary and summary
prospectus) and any amendment or supplement thereto by each such
holder and by any such agent and underwriter, in each case in the form
most recently provided to such party by the Company, in connection
with the offering and sale of the Registrable Securities covered by
the prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(x) use its reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration
statement under such securities laws or Blue Sky laws of such
jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required to
remain effective under Section 2(b) above and for so long as may be
necessary to enable any such holder, agent or underwriter to complete
its distribution of Securities pursuant to such registration statement
and (C) take any and all other actions as may be reasonably necessary
or advisable to enable each such holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that
the Company shall not be required for any such purpose to (1) qualify
as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Section 3(c)(x), (2) consent to general service of process or taxation
in any such jurisdiction or (3) make any changes to its articles of
incorporation or by-laws or any agreement between it and its
stockholders;
(xi) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state, provincial or local, which may be required to effect the Shelf
Registration or the offering or sale in connection therewith or to
enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities
and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any
restrictive legends; and, in the case of an underwritten offering,
enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at
least two business days prior to any sale of the Registrable
Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the Shelf Registration;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including (without limitation)
customary provisions relating to indemnification and contribution, and
take such other actions in connection therewith as any holders of
Registrable Securities aggregating at least 25% in aggregate principal
amount of the Registrable Securities at the time outstanding shall
request in order to expedite or facilitate the disposition of such
Registrable Securities; provided, that the Company shall not be
required to enter into any such agreement more than twice with respect
to all of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public offering
which the Company shall have then engaged;
(xv) whether or not an agreement of the type referred to in
Section (3)(c)(xiv) hereof is entered into and whether or not any
portion of the offering contemplated by such registration statement is
an underwritten offering or is made through a placement or sales agent
or any other entity, (A) make such representations and warranties to
the holders of such Registrable Securities and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof
substantially the same as those set forth in Section 1 of the Purchase
Agreement dated the date hereof and such other representations and
warranties in form, substance and scope as are customarily made in
connection with an offering of debt securities pursuant to any
appropriate agreement and/or to a registration statement filed on the
form applicable to the Shelf Registration; (B) obtain an opinion or
opinions of counsel to the Company in customary form and covering such
other matters of the type customarily covered by such an opinion, as
the managing underwriters, if any, and as any holders of at least 25%
in aggregate principal amount of the Registrable Securities at the
time outstanding may reasonably request, addressed to such holder or
holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such
registration statement (and if such registration statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that the
matters to be covered by such opinion shall include, without
limitation, the due incorporation and good standing of the Company and
its subsidiaries; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section (3)(c)(xiv)
hereof; the due authorization, execution, authentication and issuance,
and the validity and enforceability, of the Securities; the absence of
material legal or governmental proceedings involving the Company; the
absence of a breach by the Company or any of its subsidiaries of, or a
default under, material agreements binding upon the Company or any
subsidiary of the Company; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration, the
offering and sale of the Registrable Securities, this Agreement or any
agreement of the type referred to in Section (3)(c)(xiv) hereof,
except such approvals as may be required under state securities or
Blue Sky laws; the compliance as to form of such registration
statement and any documents incorporated by reference therein and of
the Indenture with the requirements of the Securities Act and the
Trust Indenture Act, respectively; and, as of the date of the opinion
and of the registration statement or most recent post-effective
amendment thereto, as the case may be, the absence from such
registration statement and the prospectus included therein, as then
amended or supplemented, and from the documents incorporated by
reference therein (in each case other than the financial statements
and other financial information contained therein) of an untrue
statement of a material fact or the omission to state therein a
material fact necessary to make the statements therein not misleading
(in the case of such documents, in the light of the circumstances
existing at the time that such documents were filed with the
Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public accountants of
the Company addressed to the selling holders of Registrable Securities
and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof, dated (i) the effective date of such
registration statement and (ii) the date of any prospectus supplement
to the prospectus included in such registration statement or the
effective date of any post-effective amendment to such registration
statement which includes unaudited or audited financial statements as
of a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such registration
statement contemplates an underwritten offering pursuant to any
prospectus supplement to the prospectus included in such registration
statement or post-effective amendment to such registration statement
which includes unaudited or audited financial statements as of a date
or for a period subsequent to that of the latest such statements
included in such prospectus, dated the date of the closing under the
underwriting agreement relating thereto), such letter or letters to be
in customary form and covering such matters of the type customarily
covered by letters of such type; (D) deliver such documents and
certificates, including officers' certificates, as may be reasonably
requested by any holders of at least 25% in aggregate principal amount
of the Registrable Securities at the time outstanding and the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company;
and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by the Company to amend or waive any provision of this
Agreement pursuant to Section 9(h) hereof and of any amendment or
waiver effected pursuant thereto, each of which notices shall contain
the text of the amendment or waiver proposed or effected, as the case
may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group
or "assist in the distribution" (within the meaning of the Rules of
Conduct (the "Rules of Conduct") of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a holder of
such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise,
reasonably assist such broker-dealer in complying with the
requirements of such Rules of Conduct, including, without limitation,
by (A) if such Rules of Conduct shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules of
Conduct) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of
the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales agent,
to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 6 hereof,
and (C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Rules of Conduct; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders as
soon as practicable but in any event not later than 18 months after
the effective date of such registration statement, an earning
statement of the Company and its consolidated subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option of
the Company, Rule 158 thereunder).
(d) In the event that the Company would be required, pursuant to
Section 3(c)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without delay prepare and
furnish to each such holder, to each placement or sales agent, if any, and
to each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing. Each holder of
Registrable Securities agrees that upon receipt of any notice from the
Company pursuant to Section 3(c)(vi)(F) hereof, such holder shall forthwith
discontinue the disposition of Registrable Securities pursuant to the
registration statement applicable to such Registrable Securities until such
holder shall have received copies of such amended or supplemented
prospectus, and if so directed by the Company, such holder shall deliver to
the Company (at the Company's expense) all copies, other than permanent
file copies, then in such holder's possession of the prospectus covering
such Registrable Securities at the time of receipt of such notice.
(e) The Company may require each holder of Registrable Securities as
to which any registration is being effected to furnish to the Company such
information regarding such holder and such holder's intended method of
distribution of such Registrable Securities as the Company may from time to
time request in writing, but only to the extent that such information is
required in order to comply with the Securities Act. Each such holder
agrees to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such holder to the Company
or of the occurrence of any event in either case as a result of which any
prospectus relating to such registration contains or would contain an
untrue statement of a material fact regarding such holder or such holder's
intended method of distribution of such Registrable Securities or omits to
state any material fact regarding such holder or such holder's intended
method of distribution of such Registrable Securities required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing, and promptly to furnish to the Company
any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not
contain, with respect to such holder or the distribution of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid all expenses
incident to the Company's performance of or compliance with this Agreement,
including, without limitation, (a) all Commission and any NASD registration
and filing fees and expenses, (b) all fees and expenses in connection with
the qualification of the Securities or Exchange Securities for offering and
sale under the State securities and Blue Sky laws referred to in Section
3(c)(x) hereof, including reasonable fees and disbursements of counsel for
the placement or sales agent or underwriters in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the
foregoing, the certificates representing the Securities and Exchange
Securities and all other documents relating hereto, (d) messenger and
delivery expenses, (e) fees and expenses of the Trustee under the Indenture
and of any escrow agent or custodian, (f) internal expenses (including,
without limitation, all salaries and expenses of the Company's officers and
employees performing legal or accounting duties), (g) fees, disbursements
and expenses of counsel and independent certified public accountants of the
Company (including the expenses of any opinions or "cold comfort" letters
required by or incident to such performance and compliance), (h) fees,
disbursements and expenses of any "qualified independent underwriter"
engaged pursuant to Section 3(c)(xvii) hereof, (i) fees, disbursements and
expenses of one counsel for the holders of Registrable Securities retained
in connection with a Shelf Registration, as selected by the holders of at
least a majority in aggregate principal amount of the Registrable
Securities being registered, and fees, expenses and disbursements of any
other persons, including special experts, retained by the Company in
connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred,
assumed or paid by any holder of Registrable Securities or any placement or
sales agent therefor or underwriter thereof, the Company shall reimburse
such person for the full amount of the Registration Expenses so incurred,
assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities
being registered shall pay all agency fees, brokerage fees and commissions
and underwriting discounts and commissions and transfer taxes, if any,
attributable to the sale of such Registered Securities and the fees and
disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), and any other out-of-pocket expenses of
such holders, other than the counsel and experts specifically referred to
above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, the
Purchasers and each of the holders from time to time of Registrable
Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c)(ix) hereof and any further
amendments or supplements to any such registration statement or prospectus,
when it becomes effective or is filed with the Commission, as the case may
be, and, in the case of an underwritten offering of Registrable Securities,
at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and any such registration
statement and any amendment thereto will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and any
such prospectus or any amendment or supplement thereto will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing; and at all
times subsequent to the Effective Time when a prospectus would be required
to be delivered under the Securities Act, other than from (i) such time as
a notice has been given to holders of Registrable Securities pursuant to
Section 3(c)(vi)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(d) hereof, each
such registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c)(ix)
hereof, as then amended or supplemented, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act and will not contain an untrue statement of a material fact or omit 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by a holder
of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities expressly for
use therein.
(c) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any
subsidiary of the Company is a party or by which the Company or any
subsidiary of the Company is bound or to which any of the property or
assets of the Company or any subsidiary of the Company is subject, other
than a breach or default which is not material to the business, property,
condition (financial or otherwise), or results of operations of the Company
and its subsidiaries taken as a whole, nor will such action result in any
violation of the provisions of the articles of incorporation or by-laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
subsidiary of the Company or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Securities Act of the
Registrable Securities, qualification of the Indenture under the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under State securities or Blue Sky
laws in connection with the offering and distribution of the Registrable
Securities.
(d) This Agreement has been duly authorized, executed and delivered by
the Company.
6. Indemnification.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration
of the agreements of the Purchasers contained herein, and as an inducement
to the Purchasers to purchase the Securities, the Company shall, and it
hereby agrees to, indemnify and hold harmless each of the holders of
Registrable Securities to be included in such registration, and each person
who participates as a placement or sales agent or as an underwriter in any
offering or sale of such Registrable Securities against any losses, claims,
damages or liabilities, joint or several, to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such holder, agent or
underwriter, 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 the Company shall reimburse such holder, such
agent and such underwriter for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final
or summary prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by
holders of Registrable Securities expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2 hereof
and to entering into any underwriting agreement with respect thereto, that
the Company shall have received an undertaking reasonably satisfactory to
it from each holder of such Registrable Securities and from each
underwriter named in any such underwriting agreement, severally and not
jointly, to (i) indemnify and hold harmless the Company and all other
holders of Registrable Securities, against any losses, claims, damages or
liabilities to which the Company or such other holders of Registrable
Securities may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such holder, agent or
underwriter, 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, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such holder or underwriter
expressly for use therein, and (ii) reimburse the Company for any legal and
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as expenses are
incurred; provided, however, that no such holder shall be required to
undertake liability to any person under this Section 6(b) for any amounts
in excess of the dollar amount of the proceeds to be received by such
holder from the sale of such holder's Registrable Securities pursuant to
such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify
such indemnifying party in writing of the commencement of such action; but
the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party, other than under
the indemnification provisions of or contemplated by Section 6(a) or 6(b)
hereof. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party (which consent shall not be
unreasonably withheld), be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
No indemnifying party shall be liable for the cost of any settlement
effected by an indemnified party without the written consent of such
indemnifying party, which consent shall not be unreasonably withheld.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 6(d),
no holder shall be required to contribute any amount in excess of the
amount by which the dollar amount of the proceeds received by such holder
from the sale of any Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) exceeds the amount of any
damages which such holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission,
and no underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in
proportion to the principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any underwriters
contemplated by this Section 6 shall be in addition to any liability which
the respective holder or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the
Company (including any person who, with his consent, is named in any
registration statement as about to become a director of the Company) and to
each person, if any, who controls the Company within the meaning of the
Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by the holders of at least a majority in aggregate
principal amount of the Registrable Securities to be included in such
offering, provided that such designated managing underwriter or
underwriters is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (1)
agrees to sell such holder's Registrable Securities on the basis provided
in any underwriting arrangements approved by the persons entitled hereunder
to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, it shall
timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including, but not limited to, the reports under
Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1)
of Rule 144) and the rules and regulations adopted by the Commission
thereunder, and shall take such further action as any holder of Registrable
Securities who is unable to sell Registrable Securities pursuant to an
effective registration statement may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the
limitations of the exemption provided by Rule 144 or any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any
holder of Registrable Securities in connection with that holder's sale
pursuant to Rule 144, the Company shall deliver to such holder a written
statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any
such failure, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other
party under this Agreement in accordance with the terms and conditions of
this Agreement, in any court of the United States or any State thereof
having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: President, Senior Vice President - Finance and General Counsel
and if to a holder, to the address of such holder set forth in the security
register or other records of the Company, or to such other address as any
party may have furnished to the others in writing in accordance herewith,
except that notices of change of address shall be effective only upon
receipt.
(d) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto.
In the event that any transferee of any holder of Registrable Securities
shall validly acquire Registrable Securities, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a party
hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by validly taking and
holding such Registrable Securities such transferee shall be entitled to
receive the benefits of and be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of any holder of Registrable Securities, any director, officer or partner
of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such holder and the consummation of an Exchange
Offer.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject matter.
This Agreement supersedes all prior agreements and understandings between
the parties with respect to its subject matter. This Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company
and the holders of at least 66-2/3 percent in aggregate principal amount of
the Registrable Securities at the time outstanding. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be bound
by any amendment or waiver effected pursuant to this Section 9(h), whether
or not any notice, writing or marking indicating such amendment or waiver
appears on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders
of Registrable Securities shall be made available upon reasonable notice to
the Company for inspection and copying on any business day by any holder of
Registrable Securities at the offices of the Company at the address thereof
set forth in Section 9(c) above and at the office of the Trustee under the
Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
Agreed to and accepted as of the date referred to above.
LOEWS CINEPLEX
ENTERTAINMENT CORPORATION
By: /s/ Xxxx X. XxXxxxx, Xx.
-----------------------------
Name: Xxxx X. XxXxxxx, Xx.
Title: Senior Vice President
and General Counsel
XXXXXXX, XXXXX & CO.
BT ALEX. XXXXX INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
By: XXXXXXX, XXXXX & CO.
/s/ Xxxxxxx, Sachs & Co.
-----------------------------
(Xxxxxxx, Xxxxx & Co.)
