Exhibit 10.10
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REGISTRATION RIGHTS AGREEMENT
BETWEEN
ENTERTAINMENT PROPERTIES TRUST,
WHITBY CENTRUM LIMITED PARTNERSHIP,
OAKVILLE CENTRUM LIMITED PARTNERSHIP,
KANATA CENTRUM LIMITED PARTNERSHIP,
XXXXXXXX SQUARE LIMITED PARTNERSHIP,
AND
2041197 ONTARIO LTD.
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FEBRUARY 24, 2004
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND CONSTRUCTION
Section 1.1 Definitions......................................................1
Section 1.2 Construction.....................................................5
ARTICLE 2
SHELF REGISTRATION
Section 2.1 Shelf Registration...............................................6
Section 2.2 Other Registrable Securities.....................................6
Section 2.3 [Reserved.]......................................................7
Section 2.4 Voluntary Volume Limitation......................................7
ARTICLE 3
[RESERVED]
ARTICLE 4
CERTAIN REGISTRATION-RELATED PROVISIONS
Section 4.1 Certain Registration-Related Procedures..........................8
Section 4.2 Delay or Failure to Register....................................13
Section 4.3 Suspension of Sales.............................................15
ARTICLE 5
HOLDER'S OBLIGATION TO FURNISH INFORMATION
Section 5.1 Condition Precedent.............................................15
ARTICLE 6
REGISTRATION EXPENSES
Section 6.1 Registration Expenses...........................................16
ARTICLE 7
DELAY OF REGISTRATION
Section 7.1 No Right to Delay...............................................16
ARTICLE 8
INDEMNIFICATION AND CONTRIBUTION
Section 8.1 Indemnification of Holders......................................16
Section 8.2 Indemnification of Company......................................17
Section 8.3 Notification of Claim...........................................18
Section 8.4 Contribution....................................................20
Section 8.5 Survival; Nonexclusivity........................................20
ARTICLE 9
REPORTS UNDER EXCHANGE ACT
Section 9.1 Reporting........................................................1
ARTICLE 10
ASSIGNMENT OF REGISTRATION RIGHTS
Section 10.1 Assignment......................................................21
ARTICLE 11
AMENDMENT OF REGISTRATION RIGHTS
Section 11.1 Amendment.......................................................22
ARTICLE 12
REPRESENTATIONS AND WARRANTIES
Section 12.1 Representations and Warranties of all Parties...................22
Section 12.2 Survival of Representations and Warranties......................22
ARTICLE 13
HOLDER REPRESENTATIVE
Section 13.1 Acknowledgement.................................................23
Section 13.2 Exclusive Dealings with Holder Representative...................23
Section 13.3 Indemnification.................................................23
ARTICLE 14
MISCELLANEOUS
Section 14.1 Dispute Resolution..............................................24
Section 14.2 Notices.........................................................25
Section 14.3 Waiver.26
Section 14.4 Non-Merger......................................................26
Section 14.5 Conflict........................................................26
Section 14.6 Successors and Assigns..........................................27
Section 14.7 Entire Agreement................................................27
Section 14.8 Severability....................................................27
Section 14.9 Non-Business Days...............................................27
Section 14.10 Time of the Essence. Remedies..................................27
Section 14.11 Further Assurances..............................................28
Section 14.12 Confidentiality.................................................28
Section 14.13 Counterparts....................................................28
Section 14.14 Governing Law...................................................28
Section 14.15 No Inconsistent Agreement.......................................28
Section 14.16 Defaults........................................................29
Section 14.17 No Required Sale................................................29
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT"), dated as of February
24, 2004 (sometimes referred to herein as the "DATE HEREOF" or the "DATE OF THIS
AGREEMENT"), is by and among (i) Entertainment Properties Trust, a Maryland
business trust (the "COMPANY"), (ii) Whitby Centrum Limited Partnership, an
Ontario limited partnership, Oakville Centrum Limited Partnership, an Ontario
limited partnership, Kanata Centrum Limited Partnership, an Ontario limited
partnership, and Xxxxxxxx Square Limited Partnership, an Ontario limited
partnership (all of the foregoing listed in this clause (ii), collectively, the
"VENDORS"), and (iii) 2041197 Ontario Ltd., an Ontario corporation (the "NOMINEE
HOLDER"). The Vendors and the Nominee Holder, and their respective direct and
indirect successors-in-interest and permitted assigns in accordance with Article
10 hereof, are hereinafter sometimes referred to collectively as the "HOLDERS".
RECITALS:
WHEREAS, pursuant to the Purchase Agreements and the Note Purchase
Agreements, the Vendors are to be issued Common Shares (as defined below), and,
except as provided herein, such Common Shares will not be registered under the
Securities Act; and
WHEREAS, the Nominee Holder (as the nominee of the Vendors) is going to be
the initial record owner of the Common Shares mentioned in the preceding
"WHEREAS" clause;
WHEREAS, the Company has agreed to provide certain registration rights with
respect to the Common Shares as 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 1
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):
"AFFILIATE" means any Person that directly or indirectly controls, is
controlled by, or is under common control with, the Person in question. As
used in this definition, the term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the
management and policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"APPLICABLE REGISTRATION STATEMENTS" means the Shelf Registration Statement
and any other Registration Statement filed pursuant to Article 2.
"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.
"CLOSING DATE" means the date of issuance of the Purchase Agreement Shares
to the Holders pursuant to the Purchase Agreement.
"COMMON SHARES" means the Company's Common Shares, par value $0.01 per
share.
"EXCHANGE ACT" means the United States SECURITIES EXCHANGE ACT OF 1934, as
amended, or any similar successor federal statute, and the rules and
regulations promulgated thereunder as in effect at the time. Reference to a
particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such similar successor federal statute.
"FINANCIAL STATEMENTS DELIVERY DATE" means the date on which the Holders
deliver or cause to be delivered, in substantially final form, the
financial statements listed or described in Schedule A hereto.
"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.
"HOLDER REPRESENTATIVE" shall have the meaning ascribed to such term in
Section 13.1.
"INITIAL DUE DATE" means the date that is ninety (90) days after the
Financial Statements Delivery Date.
"LONG-TERM DUE DATE" means the 90th day after the Initial Due Date.
"MAJORITY HOLDERS" means, at any time, Holders holding more than 50% of the
Registrable Securities.
"MAJORITY PARTICIPATING HOLDERS" means, at any time, Participating Holders
holding more than 50% of the Registrable Securities proposed to be included
in any underwritten offering of Registrable Securities.
"NOMINEE HOLDER" shall have the meaning ascribed to that term in the
introductory paragraph of this Agreement.
"NOTE PURCHASE AGREEMENTS" means the four separate Note Purchase Agreements
dated as of February 24, 2004, pursuant to which it was agreed, INTER ALIA,
that the Company would issue Common Shares to the Vendors (or their
nominees).
"OTHER SECURITIES" means securities of the same class as the Registrable
Securities, other than the Registrable Securities themselves and other than
securities to be issued by the Company for its own account.
"PARTICIPATING HOLDER" means any Holder participating in any underwritten
offering of Registrable Securities.
"PERSON" includes any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability
company, or other legal entity or organization.
"PURCHASE AGREEMENTS" means the four separate Purchase Agreements dated as
of November 14, 2003 pursuant to which, INTER ALIA, EPR North Trust agreed
to acquire from the Vendors certain real property, leases and personal
property, AS AMENDED.
"PURCHASE AGREEMENT SHARES" means the Common Shares issuable or issued by
the Company to the Holders pursuant to the Purchase Agreements and/or the
Note Purchase Agreements.
"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 Purchase Agreement
Shares, and (b) any other securities issued by the Company (or any other
Person) in exchange for, or otherwise with respect to, the Purchase
Agreement Shares, 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) or from any reclassification of
any Registrable Securities. 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 (and any secondary
distribution of such security has been completed) 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 Common 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 volume limitations on dispositions, or (d) such security has
ceased to be outstanding.
"REGISTRATION EXPENSES" means all fees and expenses incurred in connection
with the Company's performance of or compliance with Articles 2, and 4
hereof, and in any event including, without limitation: (a) all
registration, qualification and filing fees; (b) all 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) all printing expenses; (d)
all internal expenses of the Company (including all salaries and expenses
of officers and employees performing legal or accounting duties); and (e)
all fees and expenses of causing any Registrable Securities to be listed or
quoted on any securities exchange or automated quotation system on which
the Common Shares are then listed or quoted; PROVIDED, HOWEVER, that (i)
Registration Expenses shall exclude, and the Participating Holders shall
pay ratably, underwriting discounts and commissions in respect of any
underwritten offering of the Registrable Securities pursuant to this
Agreement and (ii) Registration Expenses shall exclude, and the appropriate
Holder shall pay, any discounts or commissions payable to any broker,
dealer, market maker or similar securities industry professional pursuant
to any agreement between such Holder and any such securities industry
professional in respect of the sale of the Registrable Securities.
"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-effective 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 United States Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"SECURITIES ACT" means the United States SECURITIES ACT OF 1933, as
amended, or any similar successor federal statute, and the rules and
regulations promulgated thereunder as in effect at the time. References to
a particular section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar successor federal statute.
"SHELF REGISTRATION STATEMENT" has the meaning ascribed to such term in
Section 2.1.
"VENDOR LIMITED PARTNERS" means the limited partners of each of the
Vendors.
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 the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Words 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 headings and 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.
(f) References to any "Registration Statement" (including the Shelf
Registration Statement), "preliminary prospectus", "prospectus" or
"summary prospectus" shall include in each case any related prospectus
supplement or preliminary prospectus supplement and the documents, if
any, incorporated by reference in such Registration Statement,
preliminary prospectus, prospectus or summary prospectus (or in any
such related prospectus supplement or preliminary prospectus
supplement), and the terms "supplement", "amendment" or "amend" shall
include all documents deemed to be incorporated in any Registration
Statement, preliminary prospectus, prospectus or summary prospectus
(or any related prospectus supplement or preliminary prospectus
supplement) that are filed subsequent to the date of such Registration
Statement, preliminary prospectus, prospectus or summary prospectus
(or related prospectus supplement or preliminary prospectus
supplement), as the case may be, by the Company with the SEC pursuant
to the Exchange Act.
ARTICLE 2
SHELF REGISTRATION
SECTION 2.1 SHELF REGISTRATION.
The Company shall, as expeditiously as reasonably practicable, prepare and
file with the SEC a new Registration Statement on Form S-3 for a secondary
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Purchase Agreement Shares (the "SHELF REGISTRATION STATEMENT"). The Shelf
Registration Statement shall comply as to form in all material respects with the
requirements of Form S-3, provide for the possible resale from time to time of
the Purchase Agreement Shares in the manner or manners designated by the
Majority Holders (including in one or more underwritten offerings), and (without
limitation of the foregoing) include all financial statements required by the
SEC to be filed therewith. The Company shall use its reasonable best efforts to
cause the Shelf Registration Statement (i) to become effective as expeditiously
as reasonably practicable and in any event within 90 days after the Closing
Date, and (ii) to remain effective until the second anniversary of the Closing
Date; provided, however, that the Shelf Registration Statement need not remain
in effect after the first date (after the Closing Date) upon which there ceases
to be any Registrable Securities. The Company shall not permit any securities
other than the Purchase Agreement Securities (or, if applicable, other
Registrable Securities) to be registered under the Shelf Registration Statement.
SECTION 2.2 OTHER REGISTRABLE SECURITIES.
In the event that prior to the second anniversary of the Closing Date there
shall ever be Registrable Securities other than the Purchase Agreement Shares,
the
Company shall comply anew with Sections 2.1, 4.1 and 4.2 with respect to such
additional Registrable Securities, MUTATIS MUTANDIS (including that, in the
context of this Section 2.2, references in Section 4.1 to the "Shelf
Registration Statement" also shall include any additional Registration Statement
filed pursuant to this Section 2.2).
SECTION 2.3 [RESERVED.]
SECTION 2.4 VOLUNTARY VOLUME LIMITATION.
The Holders covenant to the Company that the amount of any public sale
(other than, and disregarding entirely, any Excluded Sale) of Purchase Agreement
Shares by any Holder prior to the first anniversary hereof, together will all
other public sales (other than, and disregarding entirely, any Excluded Sales)
of Purchase Agreement Shares by the Holders within the preceding three months,
shall not exceed the greater of (i) one percent of the Common Shares then
outstanding as shown by the most recent report filed by the Company under the
Exchange Act, (ii) the average weekly reported volume of trading in Common
Shares on all "national securities exchanges" and/or reported through the
automated quotation system of a "registered securities association" (the quoted
terms to have the same meanings as under Rule 144 under the Securities Act)
during the four calendar weeks prior to such current public sale or (iii) the
average weekly volume of trading in the Common Shares reported through the
"consolidated transaction reporting system" (such quoted term to have the same
meaning as under Rule 144 under the Securities Act) during the four-week period
specified in clause (ii). "EXCLUDED SALE" means (x) any negotiated sale of
Purchase Agreement Shares in which the purchaser expressly agrees, in a written
instrument expressly for the benefit of the Company, to abide by the limitations
set forth in this Section 2.4 with respect to the Purchase Agreement Shares sold
in such negotiated sale, it being further understood and agreed (for the
avoidance of doubt) that any public sales of any such Purchase Agreement Shares
by such purchaser (other than any Excluded Sale) shall be taken into account in
determining whether sales by other Holders of Purchase Agreement Shares
(subsequent to any such re-sales) are in compliance with this Section 2.4, or
(y) any sale of any Purchase Agreement Shares in any tender, exchange or similar
offer.
ARTICLE 3
[RESERVED]
ARTICLE 4
CERTAIN REGISTRATION-RELATED PROVISIONS
SECTION 4.1 CERTAIN REGISTRATION-RELATED PROCEDURES.
The Company shall, as expeditiously as reasonably practicable:
(a) Prepare and file with the SEC (including pursuant to Rule 424 (or any
similar rule then in force) as appropriate) such amendments and
supplements (including by filing reports on Form 8-K under the
Exchange Act) to each Applicable Registration Statement and each
prospectus used in connection with such Registration Statement as may
be necessary, or as the Majority Holders reasonably may request, from
time to time to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
Registration Statement (in the manner or manners designated by the
Majority Holders (including in one or more underwritten offerings)
from time to time) and to keep such Registration Statement effective
for the periods specified in Sections 2.1 and 2.2.
(b) Furnish to the Holders, without charge, such number of copies of each
prospectus, including any preliminary prospectus, used in connection
with any Applicable Registration Statement and any amendment or
supplement thereto (all of the foregoing in conformity with the
requirements of the Securities Act), as they may reasonably request
from time to time and a reasonable number of copies of each Applicable
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, all documents
incorporated in any of the forgoing by reference and all exhibits to
any of the foregoing (including those incorporated by reference).
(c) Promptly after the filing of any document that is to be incorporated
by reference into any Applicable Registration Statement or any
prospectus, provide copies of such document to the Holders and any
underwriter.
(d) Use its reasonable best efforts to (i) register and qualify the
securities covered by each Applicable Registration Statement under
such other securities or blue sky laws of such U.S. federal, state or
other jurisdictions as shall be reasonably requested by the Holders,
(ii) to keep such registration or qualification in effect for so long
as such Registration Statement remains in effect, and (iii) to take
any and all other actions which may be necessary or advisable to
enable the Holders or underwriters to consummate the disposition in
such jurisdictions of the Registrable Securities; 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.
(e) Use its reasonable best efforts to cause all Registrable Securities to
be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary in the opinion of counsel
to the Company and counsel to the Holders to consummate the
disposition of such Registrable Securities.
(f) Cooperate with the Holders and each underwriter participating in the
disposition of any Registrable Securities and their respective counsel
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc.
(g) [Reserved.]
(h) Notify each Holder, at any time when a prospectus is required to be
delivered under the Securities Act in connection with any public
offering or sale of Registrable Securities, of the happening of any
event, the existence of any condition or any information becoming
known as a result of which (i) any Applicable Registration Statement
or the prospectus included in any Applicable Registration Statement,
as then in effect, includes an untrue statement of a material fact or
(ii) any changes in or amendments or supplements to any Applicable
Registration Statement or any such prospectus are required so that, in
the case of any such Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that, in the case of any such prospectus,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, and promptly prepare and furnish, at
the Company's expense, to each Holder and each underwriter (or, if
applicable, each managing underwriter) a number of copies of an
amendment to such Registration Statement or supplement to or an
amendment of such prospectus as may be necessary to eliminate such
untrue statement or omission.
(i) Cause all Registrable Securities to be listed or quoted on each
securities exchange or automated quotation system on which such
Registrable
Securities are then listed or quoted, and notify the Holders when any
such listing or quoting has been effected.
(j) Furnish, on the effective date of the Shelf Registration Statement and
as otherwise reasonably requested in connection with specific
transactions in relation to any secondary distribution of the
Registrable Securities with or through specific brokers, dealers,
market makers or similar securities industry professionals, an opinion
of outside counsel representing the Company for the purposes of such
registration, in each case to be in form and substance as is
customarily given by counsel to underwriters in an underwritten public
offering, and addressed to the Holders (in the case of the opinion of
counsel to be delivered on the effective date of the Registration
Statement) or otherwise to the relevant Holders, brokers, dealers,
market makers or similar securities industry professionals, as the
case may be.
(k) Permit the Holders, and the underwriter(s) (or, if applicable,
managing underwriter(s)) and Participating Holders participating in
any underwritten offering of Registrable Securities, and (in each
case) their respective counsel, accountants and other representatives
and agents, the opportunity to participate in the preparation of any
Applicable Registration Statement, each prospectus or prospectus
supplement included therein or filed with the SEC, and each amendment
thereof or supplement thereto or comparable statements under
securities or blue sky laws of any jurisdiction, and give each of the
foregoing parties access to its books and records, all financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and such opportunities to discuss the
business of the Company and its subsidiaries with their respective
directors, officers and employees and the independent public
accountants who have certified the Company and its subsidiaries'
financial statements, and supply all other information and respond to
all inquiries requested by such Participating Holders, managing
underwriter(s), or their respective counsel, accountants or other
representatives or agents in connection with such Registration
Statement, as shall be necessary or appropriate, in the opinion of
counsel to such Holders, Participating Holders or underwriter(s) (or,
if applicable, managing underwriter(s)), to conduct a reasonable
investigation within the meaning of the Securities Act; 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.
(l) Promptly notify each Holder and each underwriter (i) when any
Applicable Registration Statement, any pre-effective amendment
thereto, the prospectus or any prospectus supplement related thereto
or post-effective amendment to such Registration Statement has been
filed, and, with respect to such Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of
the receipt by the Company of any comments from the SEC, any stop
order suspending the effectiveness of such Registration Statement, any
order preventing or suspending the use of any preliminary prospectus
or prospectus with respect to the Registrable Securities, or the
initiation of any proceedings for any such purpose; and (iii) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable Securities
for sale under the securities or blue sky laws of any jurisdiction of
the initiation of any proceeding for such purpose.
(m) Deliver promptly to counsel to the Holders and each underwriter, if
any, participating in any offering of the Registrable Securities,
copies of all correspondence between the SEC and the Company, its
counsel or auditors and all memoranda relating to discussions with the
SEC or its staff with respect to the Shelf Registration Statement.
(n) Use its best efforts to prevent the issuance of and, failing that, to
obtain the earliest possible withdrawal or termination of, any order
or suspension described in Section 4.1(l)(ii) or (iii).
(o) Promptly incorporate in one or more prospectus supplements or
post-effective amendments such information as the Majority Holders, or
the underwriter(s) (or, if applicable, the managing underwriter(s)) or
Majority Participating Holders (in the case of any underwritten
offering of the Registrable Securities), reasonably request from time
to time to be included therein relating to any plan of distribution
with respect to the Registrable Securities (or a portion thereof) or
such other information as they otherwise may reasonably request to be
included therein; and make all required filings of each such
prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in
such prospectus supplement or post-effective amendment.
(p) Cooperate with the Holders, and with the managing underwriter(s) of
any underwritten offering of the Registrable Securities, to facilitate
the timely preparation and delivery from time to time of certificates
not bearing any restrictive legends representing the Registrable
Securities, and cause such Registrable Securities to be issued in such
denominations and registered in such names in accordance with any
underwriting agreement prior to any sale of Registrable Securities to
underwriters or, if not an underwritten offering, in accordance with
the instructions of the Holders at least five business days prior to
any sale of Registrable Securities and instruct any transfer agent or
registrar of Registrable Securities to release any stop transfer
orders in respect thereof.
(q) [Reserved.]
(r) Take no direct or indirect action prohibited by Regulation M under the
Exchange Act; provided, however, that to the extent that any
prohibition is applicable to the Company, the Company will take such
action as is necessary to make any such prohibition inapplicable.
(s) From time to time, enter into such agreements with or for the benefit
of specific brokers, dealers, market makers or similar securities
industry professionals identified by the Holder Representative, in
relation to the Registrable Securities, as are customarily entered
into and made by issuers with respect to secondary distributions under
similar circumstances (containing customary representations,
warranties, indemnities and agreements) or as are otherwise reasonably
requested by the Holder Representative, PROVIDED that the specific
terms of such agreements shall be approved by the Company, such
approval not to be unreasonably withheld or delayed. For the avoidance
of doubt, the parties acknowledge and agree that (i) this Section
4.1(s) does not require the Company to enter into a "classic"
underwriting agreement in connection with a "classic" underwritten
secondary public offering of Registrable Securities and (ii) the
Company may (without limitation) be requested pursuant to this Section
4.1(s) to enter into indemnification agreements along the lines of
Section 8.1 hereof for the direct benefit of specific securities
industry professionals.
(t) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission in connection with
the registration, offer and sale of the Registrable Securities
contemplated hereby, and make generally available to its security
holders earnings statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to
underwriters in an underwritten offering and (ii) if any Registrable
Securities are sold otherwise than
pursuant to an underwritten offering, commencing on the first day of
the first fiscal quarter of the Company after the effective date of
the Shelf Registration Statement, which statements shall cover said
12-month periods.
(u) Without limitation of any of the foregoing, make such filings, and
take such other actions, as are necessary to comply with Rule 153
under the Securities Act (or any successor rule) in connection with
any offer or sale of any Registrable Securities.
SECTION 4.2 DELAY OR FAILURE TO REGISTER.
(a) The Company acknowledges that the lack of liquidity of the Registrable
Securities diminishes the value of the Registrable Securities and that
any delay in the registration thereof as contemplated by this
Agreement imposes risk on the Holders. The parties have further agreed
that such risk should not be borne entirely by the Vendors.
Specifically, the parties have agreed that (i) the Holders should be
compensated as set forth in Section 4.2(b) for bearing such risk
beyond the Initial Due Date and (ii) the Holders should have the
rights set forth in Section 4.2(c) below under the circumstances
described therein.
(b) If the Shelf Registration Statement (complying in all material
respects with the requirements of Section 2.1 and 4.1) has not been
declared effective by the SEC on or prior to the Initial Due Date,
then, commencing on the day after the Initial Due Date, a special
payment to the Holders shall accrue at a rate of CAN$1989 for each day
thereafter until the earliest to occur of (i) the Shelf Registration
Statement (complying in all material respects with the requirements of
Section 2.1 and 4.1) is declared effective by the SEC, (ii) the
Registrable Securities Repurchase is consummated or (iii) the second
anniversary of the Closing Date.
(c) If the Shelf Registration Statement (complying in all material
respects with the requirements of Sections 2.1 and 4.1) has not been
declared effective by the SEC on or prior to the Long-Term Due Date (a
"LONG-TERM NON-REGISTRATION EVENT"), then the Majority Holders shall
have the right and option (hereinafter sometimes referred to as the
"RIGHT"), but not the obligation, so long as such Long-Term
Non-Registration Event shall be continuing (and prior to the second
anniversary of the Closing Date), to require the Company to purchase
all (but not less than all) of the Registrable Securities from the
Holders, for cash, on the terms and subject to the conditions and
restrictions contained below in this Section 4.2. The Right granted
hereunder may be exercised by the Majority Holders by delivery to the
Company of a written notice of such exercise (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 purchase price for
all of the Registrable Securities (the "PURCHASE
PRICE") shall equal the sum of (i) the Purchase Agreement Shares
Closing Date Market Value, plus (ii) an amount equal to CAN$7956,
multiplied by the number of days elapsed between the Financial
Statements Delivery Date and the date the Registrable Securities
Repurchase is consummated, minus (iii) the aggregate Canadian
dollar-equivalent amount (determined on the basis of prevailing
exchange rates in effect at the close of business on the date of
payment of any such dividend) of any cash dividends on the Registrable
Securities actually received by the Holders prior to or on the date
the Registrable Securities Repurchase is consummated. The "PURCHASE
AGREEMENT SHARES CLOSING DATE MARKET VALUE" shall equal the product of
(i) the aggregate number of Purchase Agreement Shares as of the
Closing Date, multiplied by (ii) the last reported sale price for the
Common Shares on the New York Stock Exchange on the Closing Date, with
such product then converted into Canadian dollars on the basis of the
exchange rate prevailing at the close of business on the Closing Date.
(d) The closing of any purchase and sale of the Registrable Securities
pursuant to Section 4.2(c) (the "REGISTRABLE SECURITIES REPURCHASE")
shall, unless otherwise mutually agreed, be held at the principal
offices of the Company, on the date agreed to by the Company and the
Majority Holders, which date (the "SETTLEMENT DATE") shall in no event
be on a date later than (10) days after the date of the Exercise
Notice. Until the Settlement Date, the Holders shall continue to own
the Registrable Securities, and will continue to be treated as the
holder of such Registrable Securities for all purposes. Registrable
Securities will be transferred to the Company only upon receipt by the
Holders of cash in payment in full therefor.
(e) At the closing of the Registrable Securities Repurchase, payment of
the Purchase Price shall be accompanied by proper instruments of
transfer and assignment and by the delivery of representations and
warranties of (i) each relevant Holder with respect to its due
corporate (or analogous) authority to sell all of its right, title and
interest in and to its Registrable Securities to the Company, and with
respect to the ownership by each Holder of its Registrable Securities,
free and clear of all liens of Persons claiming through such Holder,
and (ii) the Company with respect to its due authority to acquire the
Registrable Securities for cash.
(f) Any special payment accruing under Section 4.2(b) shall be due and
payable at the end of each calendar month.
(g) The parties acknowledge and agree that the provisions of this Section
4.2 are not intended as, and do not constitute, a penalty. Rather,
they reflect the agreement of the parties as to the manner in which
the Company will compensate the Holders if the Shelf Registration
Statement (complying in all material respects with the requirements of
Section 2.1 and 4.1) is not declared effective by the SEC within the
time periods specified above in this Section 4.2, the parties having
agreed to the allocation of risk to the Company specified above with
respect to such
matters. However, the parties further acknowledge that the Company is
expected, and required, at all times to use its reasonable best
efforts to achieve such filing and effectiveness as expeditiously as
reasonably practicable, and that this Section 4.2 is primarily
intended to provide for the circumstance where such filing or
effectiveness is not achieved by the Company notwithstanding the
Company's continued use of its reasonable best efforts in such regard.
Accordingly, subject to the following sentences of this Section
4.2(g), nothing in this Section 4.2 shall relieve the Company for any
liability it may have for any failure to comply with such best efforts
obligations. However, in any action by the Holders against the Company
to recover damages in respect of any such breach, the relevant
arbitration panel, to the extent that they deem appropriate under the
circumstances, may take into account any amounts paid under Section
4.2(b), or any Registrable Securities Repurchase, in determining the
appropriate damages to be paid by the Company.
(h) Nothing in this Section 4.2 limits in any respect the Company's
liability for any matter related to this Agreement other than as
expressly set forth in the last sentence of Section 4.2(g).
SECTION 4.3 SUSPENSION OF SALES.
Each Holder agrees that, upon receipt of any notice from the Company
pursuant to Section 4.1(h), such Holder will (to the extent that it can do so
without violating any outstanding agreements) forthwith discontinue disposition
of Registrable Securities pursuant to the then-current prospectus until such
Holder receives copies of a supplemented or amended prospectus 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 Section. It is understood and agreed that no Holder is responsible for
any disposition or further disposition of Registrable Securities by any
underwriter or any other Person.
ARTICLE 5
HOLDER'S OBLIGATION TO FURNISH INFORMATION
SECTION 5.1 CONDITION PRECEDENT.
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement with respect to the Registrable Securities
of any particular Holder that such Holder furnish to the Company such
information regarding itself, the number of Registrable Securities intended to
be sold by it, and the intended method of disposition of such Registrable
Securities (if other than in an underwritten public offering pursuant to Article
3 hereof), as shall be required under the Securities Act to effect the
registration of such Holder's Registrable Securities.
ARTICLE 6
REGISTRATION EXPENSES
SECTION 6.1 REGISTRATION EXPENSES.
The Company shall pay all Registration Expenses.
ARTICLE 7
DELAY OF REGISTRATION
SECTION 7.1 NO RIGHT TO DELAY.
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; PROVIDED that it is understood and agreed that
no Holder shall be deemed to be in violation of this Section 7.1 by virtue of
seeking or obtaining an injunction, or an order for specific performance,
described in Section 14.10 hereof.
ARTICLE 8
INDEMNIFICATION AND CONTRIBUTION
SECTION 8.1 INDEMNIFICATION OF HOLDERS.
The Company will, and hereby agrees to, indemnify and hold harmless (i)
each Holder, each Vendor Limited Partner and the respective Affiliates of each
of the foregoing, (ii) the respective directors, officers, members, partners,
employees, advisors, representatives and agents of each Person listed or
described in clause (i), and (iii) each Person, if any, who "controls" (within
the meaning of the Securities Act) any of the Persons listed or described in
clause (i) or (ii), against all losses, claims, damages, or liabilities, joint
or several, or actions or proceedings 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 or proceedings in respect thereof arise out of, or are
based upon, (x) any untrue statement or alleged untrue statement (for the
avoidance of doubt, as of any date) of any material fact contained in any
Applicable Registration Statement, any preliminary prospectus, prospectus,
summary prospectus or prospectus supplement included in or related to any such
Registration Statement or otherwise relating to any of the Registrable
Securities, any documents incorporated by reference in any of the foregoing, or
any amendment or supplement to any of the foregoing, (y), the omission or
alleged omission (for the avoidance of doubt, as of any date) to state in any of
the documents described in clause (x) a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (z) any violation by
the Company of any federal, state or common law rule or regulation applicable to
the Company and relating to action required of or inaction
by the Company in connection with any of the documents described in clause (x),
or otherwise in connection with such registration, and the Company 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 or
proceeding; provided, however, that the Company will not be so liable to such
Holder (or the Holder Representative, or any Vendor Limited Partner that is a
limited partner of such Holder) to the extent any such loss, claim, damage,
liability or action or proceeding 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 any such Registration Statement,
any such preliminary prospectus, prospectus, summary prospectus or prospectus
supplement, or any such amendment or supplement to any of the foregoing, in each
case, in reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of such Holder 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 any such loss, claim,
damage, liability or action is attributable to the failure of such Holder (or
underwriter, or agent acting on its behalf, with respect to the Registrable
Securities), after having been provided by the Company with a final prospectus
(or amendment or supplement thereto) (an "UPDATED DOCUMENT") that corrects a
material misstatement or omission contained in the preliminary prospectus, to
use such Updated Document in the place of such preliminary prospectus. Without
limitation of Section 4.1(s) hereof, the Company will also indemnify and hold
harmless (1) underwriters, selling brokers, dealers, dealer managers, market
makers, and similar securities industry professionals, participating in any
distribution of any of the Registrable Securities, and their respective
officers, directors, members, partners, employees, advisors, representatives and
agents, and (2) each Person who "controls" (within the meaning of the Securities
Act) any of the Persons described in clause (1), to the same extent as provided
above with respect to the indemnification of the Holders, if so requested by the
Holder Representative, except with respect to information furnished in writing
specifically for use in any prospectus or Registration Statement by any selling
Holders (or the Holder Representative) or any such underwriters.
SECTION 8.2 INDEMNIFICATION OF COMPANY.
With respect to written information furnished to the Company by or on
behalf of a Holder specifically for use in any Applicable 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; but in the case of all of the foregoing to the extent, and
only to the extent, that the same arises out of, or is based upon, an untrue
statement of a material fact or an 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; PROVIDED, HOWEVER, that the liability of any Holder
under this Section 8.2 (including under this sentence and the last sentence of
this Section 8.2(b)) shall be limited to the amount of proceeds (net of expenses
and underwriting discounts and commissions) received by such Holder in the
offering giving rise to such liability. Subject to the limitation set forth in
the preceding proviso, the Holder will also indemnify underwriters, selling
brokers, dealer managers, and similar securities industry professionals,
participating in any distribution of the Registrable Securities in which such
Holder participates in connection with any Applicable Registration Statement,
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 by the Company,
but only if and to the extent that the Company also indemnifies such Persons to
the same extent as provided herein with respect to the Company's indemnification
of such Holder.
SECTION 8.3 NOTIFICATION OF CLAIM.
Promptly after receipt by an indemnified party of notice of any claim or
the commencement of any action or proceeding, 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 or proceeding; 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 or proceeding 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 or proceeding, (a) the
indemnifying party diligently will defend the indemnified party against such
claim or action or proceeding, (b) the indemnifying party will not be liable to
the indemnified party for any legal or other related expense subsequently
incurred by the indemnified party in connection with the defense thereof other
than costs of investigation and the indemnified party shall be entitled to
participation in such defense at its own expense, (c) the indemnifying party
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 (which consent shall not unreasonably withhold) 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 (d) the indemnified party will be obligated reasonably to cooperate with,
and at the sole expense of, the indemnifying party in the investigation of such
claim or action or proceeding; provided, however, that the indemnified party may
employ its own counsel if (i) the indemnifying party fails to notify the
indemnified party in writing, within 15 days after the indemnified party has
given notice of the action or proceeding, of its assumption of the defence of
such claim, action or proceeding, (ii) the indemnifying party fails, or ceases,
to defend diligently the claim, action or proceeding within 15 days after
receiving notice of such failure, or cessation, from such indemnified party;
(iii) such indemnified party reasonably shall have concluded (upon advice of its
counsel) that there may be one or more legal defences available to such
indemnified party or other indemnified parties which may not be asserted on
their behalf by the indemnifying party; or (iv) the indemnified party shall have
been advised by its counsel in writing that, in the reasonable judgment of such
counsel, it is advisable for such indemnified party to be represented by
separate counsel due to the presence of actual or potential conflicts of
interest, and in any such 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 the Holders and their related indemnified parties and one separate
counsel for the underwriters (or other securities industry professionals
described in the last sentence of Section 8.1, as the case may be) and their
related indemnified parties (and, in each case, separate local counsel as
reasonably necessary). 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 8.4 CONTRIBUTION.
If for any reason the indemnification provided for in Sections 8.1 or 8.2
is unavailable to an indemnified party or is insufficient to hold it harmless as
contemplated therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim, damage
or liability (i) in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand, and the indemnified party on
the other, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or if the allocation provided in
this clause (ii) provides a greater amount to the indemnified party than clause
(i) above, in such proportion as is appropriate to reflect not only such
relative fault but also the relative benefits received by the indemnifying party
and the indemnified party from the relevant offering of Registrable Securities,
as well as any other relevant equitable considerations. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 8.4 were to be determined by PRO RATA
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the preceding sentence of this
Section 8.4. 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. Notwithstanding anything in this Section 8.4 to the contrary,
no Person specified to be indemnified under Section 8.1 shall be required to
contribute any amount in excess of the proceeds (net of expenses and
underwriting discounts and commissions) received by such Person from the sale of
Registrable Securities in the offering to which the losses, claims, judgments,
penalties, fines damages, or liabilities of the indemnified parties related.
SECTION 8.5 SURVIVAL; NONEXCLUSIVITY.
The obligations under this Article 8 shall survive (without time
limitation) the completion of any offering of Registrable Securities, and
otherwise, and shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any indemnified party. The provisions
of this Article 8 are in addition to any other rights to indemnification or
contribution which an indemnified party may have pursuant to law, equity,
contract or otherwise.
ARTICLE 9
REPORTS UNDER EXCHANGE ACT
SECTION 9.1 REPORTING.
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, during any period(s) when
any Registrable Securities are outstanding and the Company is subject to the
reporting requirements of the Exchange Act, it will:
(a) Make and keep available "adequate current public information" (as such
phrase is understood and defined in Rule 144) concerning the Company;
(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 sale of their 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, (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 10
ASSIGNMENT OF REGISTRATION RIGHTS
SECTION 10.1 ASSIGNMENT.
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
Registrable Securities provided that such transfer complies with all applicable
securities laws (and Section 2.4, to the extent applicable); 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 11
AMENDMENT OF REGISTRATION RIGHTS
SECTION 11.1 AMENDMENT.
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. 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 12
REPRESENTATIONS AND WARRANTIES
SECTION 12.1 REPRESENTATIONS AND WARRANTIES OF ALL PARTIES.
Each of the parties to this Agreement hereby represents and warrants as to
itself that on the date hereof: (i) it has the right, power and authority to
enter into this Agreement, and to perform its obligations hereunder; (ii) this
Agreement is a legal, valid and binding obligation of such party; (iii) the
execution, delivery and performance of this Agreement by such party does not
violate or conflict with any law, statute, ordinance, rule or regulation
applicable to such party or any material agreement, judgment, license, permit,
order or other document applicable to or binding upon such party or any of its
properties; and (iv) no consent, approval, authorization or order of any court
or governmental authority or third party is required with respect to such party
in connection with its execution, delivery and performance of this Agreement,
other than any applicable reviews, comment periods or approvals by the SEC,
other securities regulators and securities exchanges with respect to the
registration of Registrable Securities as contemplated hereby.
SECTION 12.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties contained in this Agreement shall
survive the execution and delivery of this Agreement.
ARTICLE 13
HOLDER REPRESENTATIVE
SECTION 13.1 ACKNOWLEDGEMENT.
The parties to this Agreement acknowledge that under the Purchase
Agreements, the Vendors agreed to appoint and at all times be represented by one
Person only, acting on their behalf, as sole legal agent and representative (the
"HOLDER REPRESENTATIVE"), in all matters relating to the Partnership. The
parties to this Agreement hereby further agree and acknowledge that the same
shall apply to all matters relating to this Agreement and that the Nominee
Holder shall be the Holder Representative.
SECTION 13.2 EXCLUSIVE DEALINGS WITH HOLDER REPRESENTATIVE.
Notwithstanding any other provision of this Agreement, the Holders shall
only communicate with, direct and/or instruct the Company collectively through
the Holder Representative and the Company shall communicate exclusively with the
Holder Representative in respect of all matters of communication to the Holders,
and shall be entitled and to rely upon the communications, directions and
instructions exclusively in dealing with all matters relating to such Holders.
Notwithstanding any other provision of this Agreement, the Company shall have no
obligation to communicate directly with the Holders or to make any
investigations or inquiries in respect of communications, directions and
instructions the Company receives from the Holder Representative. All acts or
omissions of the Holder Representative hereunder shall be deemed to be the acts
or omissions, severally and not jointly, of the particular Holders the Holder
Representative is purporting to represent with respect to any particular act or
omission. The Holder Representative shall have no personal liability to the
Company for any of its acts or omissions in connection with this Agreement.
SECTION 13.3 INDEMNIFICATION.
The Vendors hereby agree to indemnify and save and hold harmless the
Company against any claim by any Holder against the Company asserting that the
Holder Representative was not authorized to give, or the Company was not
authorized to act upon, any communication, direction or instruction from the
Holder Representative with respect to any matter within the ambit of authority
of the Holder Representative as specified in Section 13.2.
ARTICLE 14
MISCELLANEOUS
SECTION 14.1 DISPUTE RESOLUTION.
(1) BEST EFFORTS TO SETTLE DISPUTES.
In the event any dispute, claim, question or difference (a "DISPUTE")
arises with respect to this Agreement, or its performance, enforcement, breach,
termination or validity, the parties shall use their best efforts to settle the
Dispute. To this end, either the Company or the Holder Representative may
deliver formal notice of a Dispute to the other, and senior officers of the
Company and the Holder Representative shall consult and negotiate with each
other, in good faith and understanding of their mutual interests, to reach a
just and equitable solution satisfactory to all parties within 10 Business Days
of delivery of the notice of Dispute.
(2) ARBITRATION.
If the Company and the Holder Representative do not reach a solution
pursuant to Section 14.1(1) within a period of 10 Business Days following the
first notice of the Dispute by one of the Company and the Holder Representative
to the other, then upon further written notice by one to the other, the Dispute
shall be finally determined by binding arbitration in accordance with the
International Arbitration Rules of the American Arbitration Association ("AAA
Rules"), and judgment upon the award of the arbitrators may be entered in any
court of competent jurisdiction.
(a) The arbitration shall be conducted in the English language in New
York, New York, in accordance with the United States Arbitration Act.
(b) There shall be three arbitrators, of whom each of the Company and the
Holder Representative shall name one. The third, who will act as
chair, shall be chosen in accordance with the AAA Rules. However, if
the amount in controversy is less than one million U.S. dollars, there
shall be a single arbitrator chosen in accordance with the AAA Rules.
(c) Any party may seek emergency interim or provisional relief prior to
the appointment of a full panel of arbitrators (including prior to, or
during, the ten-Business Day period specified in Section 14.1(1))
pursuant to the AAA Optional Rules for Emergency Measures of
Protection.
(d) The arbitrators shall be guided in their conduct of the arbitration by
the IBA Rules on the Taking of Evidence in International Commercial
Arbitration.
(3) This Section 14.1 shall govern Disputes (as defined hereunder)
notwithstanding any term to the contrary in the Purchase Agreements.
SECTION 14.2 NOTICES.
Any notice, direction or other communication (collectively, "NOTICE") given
regarding the matters contemplated by this Agreement must be in writing and sent
by personal delivery, courier or facsimile (but not only by electronic mail),
addressed:
(a) in the case of any Holder or the Holder Representative, addressed as
follows:
x/x XxxXxxxxx Xxxxxxxxxx Xxxxxxxxxxx
Xxxxx 000
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxxxx, President and C.E.O.
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxx LLP
Scotia Plaza, Suite 3100
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
(b) in the case of the Company, addressed as follows:
Entertainment Properties Trust
Xxxxx 000
00 Xxxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx
XXX
00000
Attention: Xxxxx Xxxxx, President and C.E.O.
Facsimile: (000) 000-0000
with a copy to:
Stikeman Elliott LLP
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
Notice is effective if delivered personally, by facsimile, or by courier,
on the date of delivery if it is a Business Day and the delivery or transmission
by facsimile was made prior to 4:00 p.m. (local time in place of receipt) and
otherwise on the next Business Day. A party may change its address for service
from time to time by providing a Notice in accordance with the foregoing. Any
subsequent Notice must be sent to the party at its changed address. Any element
of a party's address that is not specifically changed in a Notice will be
assumed not to be changed.
SECTION 14.3 WAIVER.
No waiver of any of the provisions of this Agreement will constitute a
waiver of any other provision (whether or not similar). No waiver will be
binding unless executed in writing by the party to be bound by the waiver. A
party's failure or delay in exercising any right under this Agreement will not
operate as a waiver of that right. A single or partial exercise of any right
will not preclude a party from any other or further exercise of that right or
the exercise of any other right it may have.
SECTION 14.4 NON-MERGER.
Except as otherwise expressly provided in this Agreement, the covenants,
representations and warranties will not merge upon and will survive execution
and delivery of this Agreement and, notwithstanding any execution and delivery
and any investigation made by or on behalf of any party, will continue in full
force and effect, subject to the terms of this Agreement. Execution and delivery
will not prejudice any right of a party against any other party in respect of
anything done or omitted under this Agreement or in respect of any right to
damages or other remedies, subject to the terms of this Agreement.
SECTION 14.5 CONFLICT.
In the event of any conflict between the provisions of this Agreement and
the provisions of the Purchase Agreement, the provisions contained in this
Agreement shall prevail and the provisions of the Purchase Agreement shall be
deemed to be amended to the extent necessary to eliminate such conflict.
SECTION 14.6 SUCCESSORS AND ASSIGNS.
This Agreement becomes effective only when executed by all of the parties.
After that time, it will be binding upon and enure to the benefit of the parties
and their respective successors and permitted assigns. Without limitation of the
preceding sentence, the Company agrees that, to the extent that the Registrable
Securities include securities of which it is not the issuer, the Company shall
be responsible to cause the Person that is the issuer of such Registrable
Securities to, in relation to such Registrable Securities, abide by all of the
terms of this Agreement as if it were named herein as the "Company" and, at the
request of any Holder from time to time, the Company shall cause such other
Person to execute and deliver to the Holders an undertaking to such effect,
expressly for the benefit of the Holders.
SECTION 14.7 ENTIRE AGREEMENT.
This Agreement together with the Purchase Agreements constitute the entire
agreement between the parties with respect to the transactions contemplated in
this Agreement and supersede all prior agreements, understandings, negotiations
and discussions, whether oral or written, of the parties. There are no
representations, warranties, covenants, conditions or other agreements, express
or implied, collateral, statutory or otherwise, between the parties in
connection with the subject matter of this Agreement, except as specifically set
forth in this Agreement and the Purchase Agreement. The parties have not relied
and are not relying on any other information, discussion or understanding in
entering into and completing the transactions contemplated by this Agreement.
SECTION 14.8 SEVERABILITY.
If any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof shall
not be in any way impaired.
SECTION 14.9 NON-BUSINESS DAYS.
Whenever any payment to be made hereunder shall be stated to be due or any
action to be taken hereunder shall be stated to be required to be taken on a day
other than a Business Day, such payment shall be made or such action shall be
taken on the next Business Day thereafter.
SECTION 14.10 TIME OF THE ESSENCE; REMEDIES.
Time shall be of the essence hereof. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached and further agree that money damages or other remedy at law
would not be a sufficient or adequate remedy for any breach or violation of, or
a default under, this
Agreement by them and that, in addition to all other remedies available to them,
each of them shall be entitled to an injunction restraining such breach,
violation or default or threatened breach, violation or default and to any other
equitable relief, including, without limitation, specific performance of the
terms and provisions of this Agreement. Any requirements for the securing or
posting of any bond with respect to such remedy are hereby waived by each of the
parties hereto. Each party further agrees that, in the event of any action for
an injunction or other equitable remedy in respect of such breach or enforcement
of specific performance, it will not assert the defense that a remedy at law
would be adequate.
SECTION 14.11 FURTHER ASSURANCES.
Each of the parties shall execute all such further agreements, instruments,
assignments and other documents and shall do all such further acts and things as
may reasonably be required from time to time to give full force and effect to
this agreement.
SECTION 14.12 CONFIDENTIALITY.
The parties shall keep in strict confidence this Agreement and the
information regarding the transactions contemplated herein, in accordance with
the confidentiality provisions set forth in Section 12.9 of the Purchase
Agreement, MUTATIS MUTANDIS. Subject to the provisions of Article 10 hereof,
this Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of each of the parties.
SECTION 14.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts (including
counterparts by facsimile), each of which shall be deemed to be an original and
all of which taken together shall be deemed to constitute one and the same
instrument. Counterparts may be executed either in original or faxed form and
the parties adopt any signatures received by a receiving fax machine as the
original signatures of the parties.
SECTION 14.14 GOVERNING LAW.
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 14.15 NO INCONSISTENT AGREEMENT.
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 in this Agreement. The Company represents and
warrants to each of the Holders that the rights granted to the Holders hereunder
do not in any
way conflict with and are not inconsistent with any other agreements to which
the Company is a party or by which it is bound.
SECTION 14.16 DEFAULTS.
A default by any party to this Agreement in such party's compliance with
any of the conditions or covenants hereof or performance of any of the
obligations of such party hereunder shall not constitute a default by any other
party.
SECTION 14.17 NO REQUIRED SALE.
Nothing in this Agreement shall be deemed to create an independent
obligation on the part of any of the Holders to sell any Registrable Securities
pursuant to any effective registration statement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT DATED AS OF FEBRUARY 24, 2004]
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
ENTERTAINMENT PROPERTIES TRUST
By:
--------------------------------------
Name:
Title:
WHITBY CENTRUM LIMITED PARTNERSHIP
By its general partner, Penex Whitby Ltd.
By:
--------------------------------------
Name:
Title:
OAKVILLE CENTRUM LIMITED PARTNERSHIP
By its general partner, Penex Winston Ltd.
By:
--------------------------------------
Name:
Title:
KANATA CENTRUM LIMITED PARTNERSHIP
By its general partner, Penex Kanata Ltd.
By:
--------------------------------------
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT DATED AS OF FEBRUARY 24, 0000]
XXXXXXXX XXXXXX LIMITED PARTNERSHIP
By its general partner, Xxxxxxxx Square Ltd.
By:
--------------------------------------
Name:
Title:
2041197 ONTARIO LTD.
By:
--------------------------------------
Name:
Title:
SCHEDULE A
1. Draft audited historical income statements for each of the four
properties sold pursuant to the Purchase Agreements, required for the
Company's 8-K filing with respect to the Purchase Agreements.
