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EXHIBIT 10.16
EXECUTION COPY
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PLACEMENT AGREEMENT
$200,000,000
REGAL CINEMAS, INC.
9 1/2% SENIOR SUBORDINATED NOTES DUE 2008
November 4, 1998
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November 4, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Regal Cinemas, Inc., a Tennessee corporation (the "COMPANY"),
proposes to issue and sell to Xxxxxx Xxxxxxx & Co. Incorporated (the "PLACEMENT
AGENT") $200,000,000 million principal amount of its 9 1/2% Senior Subordinated
Notes due 2008 (the "SECURITIES") to be issued pursuant to the provisions of an
Indenture dated as of May 27, 1998 (the "INDENTURE") between the Company and
IBJ Xxxxxxxx Bank & Trust Company, as Trustee (the "TRUSTEE"). Capitalized
terms used herein not otherwise defined herein shall have the meanings given
such terms in the Final Memorandum (as defined below).
The Securities will be offered without being registered under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), to "qualified
institutional buyers" in compliance with the exemption from registration
provided by Rule 144A under the Securities Act ("QIBS").
The Placement Agent and its direct and indirect transferees
will be entitled to the benefits of a Registration Rights Agreement dated the
Closing Date between the Company and the Placement Agent (the "REGISTRATION
RIGHTS AGREEMENT").
In connection with the sale of the Securities, the Company has
prepared an offering memorandum (the "FINAL MEMORANDUM") including a
description of the terms of the Securities, the terms of the Offering and a
description of the Company.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, you that:
(a) The Final Memorandum in the form provided by the
Company to the Placement Agent to confirm sales and on the Closing
Date (as defined in Section 4), will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in such Final Memorandum based upon information relating to
the Placement Agent furnished to the Company in writing by the
Placement Agent through you expressly for use therein.
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(b) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Final Memorandum and is duly qualified to transact business and
is in good standing as a foreign corporation in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(c) Each Restricted Subsidiary of the Company, including,
without limitation, Act III Cinemas, Inc., a Delaware corporation
("Act III"), has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Final
Memorandum and is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified or in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and clear
of all liens, encumbrances, equities or claims other than those
described in the Final Memorandum.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Placement Agent in
accordance with the terms of this Agreement, will be valid and binding
obligations of the Company, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of equity
and insofar as the same contains any waiver of usury laws as to
enforceability, and will be entitled to the benefits of the Indenture
and the Registration Rights Agreement.
(f) The Indenture has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity and insofar as the same
contains any waiver of usury laws as to enforceability.
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(g) The Registration Rights Agreement has been duly
authorized by the Company, and when executed and delivered by the
Company will be a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity and except as rights to
indemnification and contribution under the Registration Rights
Agreement may be limited under applicable law.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Registration Rights Agreement and the Securities
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities, except those already
obtained and such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of
the Securities and by federal and state securities laws with respect
to the Company's obligations under the Registration Rights Agreement.
(i) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Final Memorandum.
(j) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries, taken as
a whole, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Final Memorandum or such
as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries which
are material to the business of the Company and its subsidiaries,
taken as a whole, are held by them under valid and subsisting leases
with such exceptions as are not material to the business of the
Company and its subsidiaries, taken as a whole, and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in the Final Memorandum.
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(k) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject other
than proceedings accurately described in all material respects in the
Final Memorandum and proceedings that would not reasonably be expected
to have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on the power or ability of the Company to perform
its obligations under this Agreement, the Indenture, the Registration
Rights Agreement or the Securities.
(l) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not
reasonably be expected, singly or in the aggregate, to have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(n) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would reasonably be expected,
singly or in the aggregate, to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(o) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Memorandum, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(p) Neither the Company nor any affiliate (as defined in
Rule 501(b) of Regulation D under the Securities Act, an "AFFILIATE")
of the Company has directly, or through any agent, (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect
of, any security (as defined in the Securities Act) which is or will
be integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the Securities or
(ii) engaged in any form of
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general solicitation or general advertising in connection with the
offering of the Securities (as those terms are used in Regulation D
under the Securities Act), or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(q) None of the Company, its Affiliates or any person
acting on its or their behalf has engaged or will engage in any
directed selling efforts (within the meaning of Regulation S) with
respect to the Securities and the Company and its Affiliates and any
person acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S, except no
representation, warranty or agreement is made by the Company in this
paragraph with respect to the Placement Agent.
(r) (i) It is not necessary in connection with the offer,
sale and delivery of the Securities to the Placement Agent in the
manner contemplated by this Agreement to register the Securities under
the Securities Act, and (ii) the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended, pursuant to a
Registration Statement on Form S-4 (File No. 333-64399) filed by the
Company with the Securities and Exchange Commission on September 28,
1998, as amended on October 14, 1998, which was declared effective on
October 16, 1998 (the "Registration Statement").
(s) The Securities satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
(t) The Securities conform in all material respects to
the description thereof contained in the Final Memorandum under the
heading "Description of the Notes."
(u) (i) The merger of an affiliate of Kohlberg Kravis
Xxxxxxx & Co. L.P. and an affiliate of Hicks, Muse, Xxxx & Xxxxx
Incorporated with and into the Company, with the Company continuing as
the surviving corporation, was consummated pursuant to an Agreement
and Plan of Merger dated May 27, 1998, as amended (the "Regal
Merger"), (ii) the merger of a wholly owned subsidiary of the Company
with and into Act III, with Act III surviving as a wholly owned
subsidiary of the Company, was consummated pursuant to an Agreement
and Plan of Merger dated August 26, 1998 (the "Act III Merger", and
together with the Regal Merger, the "Transactions") and (iii) all
required consents, waivers and agreements in connection with the
Transactions, including any such consents, waivers and agreements from
suppliers and lessors of Act III, have been obtained, except where the
failure to obtain such consents, waivers or agreements would not have
a material adverse effect on the Company and its subsidiaries, taken
as a whole.
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(v) The statements in the Final Memorandum will not
differ in any material respect from the statements contained in the
Registration Statement, except for matters described by the Company to
the Placement Agent prior to the date hereof.
2. Agreements to Sell and Purchase. The Company hereby
agrees to sell to the Placement Agent, and the Placement Agent, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase from the Company the
Securities at a purchase price of 98.00% of the principal amount thereof (the
"PURCHASE PRICE") plus accrued interest, if any, to the Closing Date.
The Company hereby agrees that, without the prior written
consent of the Placement Agent, it will not, during the period beginning on the
date hereof and continuing to and including the Closing Date, offer, sell,
contract to sell or otherwise dispose of any debt of the Company or warrants to
purchase debt of the Company substantially similar to the Securities (other
than the sale of the Securities under this Agreement).
3. Terms of Offering. You have advised the Company that
the Placement Agent will make an offering of the Securities purchased by the
Placement Agent hereunder on the terms to be set forth in the Final Memorandum,
as soon as practicable after this Agreement is entered into as in your judgment
is advisable.
4. Payment and Delivery. Payment for the Securities
shall be made to the Company in Federal or other funds immediately available in
New York City against delivery of such Securities for the respective accounts
of the several Placement Agent at 10:00 a.m., New York City time, on November
10, 1998, or at such other time on the same or such other date, not later than
November 17, 1998, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "CLOSING DATE."
Certificates for the Securities shall be in definitive form or
global form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The certificates evidencing the Securities shall
be delivered to you on the Closing Date for the respective accounts of the
Placement Agent, with any transfer taxes payable in connection with the
transfer of the Securities to the Placement Agent duly paid, against payment of
the Purchase Price therefor plus accrued interest, if any, to the Closing Date.
5. Conditions to the Placement Agent's Obligations. The
obligation of the Placement Agent to purchase and pay for the Securities on the
Closing Date is subject to the following conditions:
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(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded for the Company's
9 1/2% Senior Subordinated Notes due 2008 issued on May 27,
1998 or any of the Company's other securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Final Memorandum
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Securities on the terms and in the
manner contemplated in the Final Memorandum.
(b) The Placement Agent shall have received on the
Closing Date a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect set forth in Section
5(a)(i) and to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct as of the
Closing Date and the Company has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Placement Agent shall have received on the
Closing Date an opinion of Xxxx Xxxxx & Xxxx PLC, local counsel for
the Company, dated the Closing Date, to the effect set forth in
Exhibit A. Such opinion shall be rendered to the Placement Agent at
the request of the Company and shall so state therein.
(d) The Placement Agent shall have received on the
Closing Date an opinion of Weil, Gotshal & Xxxxxx LLP, outside counsel
for the Company, dated the Closing Date, to the effect set forth in
Exhibit B. Such opinion shall be rendered to the Placement Agent at
the request of the Company and shall so state therein.
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(e) The Placement Agent shall have received on the
Closing Date an opinion of Shearman & Sterling, counsel for the
Placement Agent, dated the Closing Date, in form and substance
satisfactory to you.
(f) The Placement Agent shall have received on the
Closing Date a letter, dated the Closing Date, in form and substance
satisfactory to the Placement Agent, from PricewaterhouseCoopers LLP,
independent public accountants for the Company, containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Final
Memorandum for each of the three years in the period ending January 1,
1998 and the six month period ended July 2, 1998; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
(g) The Placement Agent shall have received on the
Closing Date a letter, dated the Closing Date, in form and substance
satisfactory to the Placement Agent, from Deloitte & Touche LLP,
independent public accountants for the Company, containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Final
Memorandum for the three month period ended October 1, 1998; provided
that the letter delivered on the Closing Date shall use a "cut-off
date" not earlier than the date hereof.
(h) The Placement Agent shall have received on the
Closing Date a letter, dated the Closing Date, in form and substance
satisfactory to the Placement Agent, from PricewaterhouseCoopers LLP,
independent public accountants for Act III, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Final Memorandum for
the year ended December 31, 1996; provided that the letter delivered
on the Closing Date shall use a "cut-off date" not earlier than the
date hereof.
(i) The Placement Agent shall have received on the
Closing Date a letter, dated the Closing Date, in form and substance
satisfactory to the Placement Agent, from Deloitte & Touche LLP,
independent public accountants for Act III, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Final Memorandum for
each of the years in the two year period ended December 31, 1998, for
the six month period ended June 30, 1998, and for the period from July
1, 1998 through August 26, 1998; provided that the letter delivered on
the Closing Date shall use a "cut-off date" not earlier than the date
hereof.
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(j) The Indenture and the Registration Rights Agreement
shall have been executed by the parties thereto and shall be in full
force and effect on the Closing Date.
(k) The Placement Agent shall have received such other
documents and certificates as are reasonably requested by you or your
counsel.
6. Covenants of the Company. In further consideration
of the agreements of the Placement Agent contained in this Agreement, the
Company covenants with the Placement Agent as follows:
(a) To furnish to you in New York City, without charge,
prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned
in Section 6(c), as many copies of the Final Memorandum and any
supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Final
Memorandum, to furnish to you a copy of each such proposed amendment
or supplement and not to use any such proposed amendment or supplement
to which you reasonably object.
(c) If, during such period after the date hereof and
prior to the date on which all of the Securities shall have been sold
by the Placement Agent, any event shall occur or condition shall exist
as a result of which it is necessary to amend or supplement the Final
Memorandum in order to make the statements therein, in the light of
the circumstances when the Final Memorandum is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Placement Agent, it is necessary to amend or supplement the Final
Memorandum to comply with applicable law, forthwith to prepare and
furnish, at the Company's own expense, to the Placement Agent, either
amendments or supplements to the Final Memorandum so that the
statements in the Final Memorandum as so amended or supplemented will
not, in the light of the circumstances when the Final Memorandum is
delivered to a purchaser, be misleading or so that the Final
Memorandum, as amended or supplemented, will comply with applicable
law.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request.
(e) Whether or not any sale of the Securities is
consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under
this Agreement, including: (i) the fees,
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disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the issuance and sale of the Securities
and all other fees or expenses in connection with the preparation of
the Final Memorandum and all amendments and supplements thereto,
including all printing costs associated therewith, and the delivering
of copies thereof to the Placement Agent, in the quantities herein
above specified, (ii) all costs and expenses related to the transfer
and delivery of the Securities to the Placement Agent, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection
with the offer and sale of the Securities under state securities laws
and all expenses in connection with the qualification of the
Securities for offer and sale under state securities laws as provided
in Section 6(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Placement Agent in connection
with such qualification and in connection with the Blue Sky or legal
investment memorandum, (iv) any fees charged by rating agencies for
the rating of the Securities, (v) all document production charges and
expenses of counsel to the Placement Agent (but not including their
fees for professional services) in connection with the preparation of
this Agreement, (vi) the fees and expenses, if any, incurred in
connection with the admission of the Securities for trading in PORTAL
or any appropriate market system, (vii) the costs and charges of the
Trustee and any transfer agent, registrar or depositary, (viii) the
cost of the preparation, issuance and delivery of the Securities, and
(ix) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that
except as provided in this Section, Section 8, and the last paragraph
of Section 10, the Placement Agent will pay all of their costs and
expenses, including fees and disbursements of their counsel, transfer
taxes payable on resale of any of the Securities by them and any
advertising expenses connected with any offers they may make.
(f) Neither the Company nor any Affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which could
be integrated with the sale of the Securities in a manner which would
require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted
securities" within the meaning of the Securities Act, to make
available, upon request, to any seller of the Securities the
information specified in Rule 144A(d)(4) under the Securities Act,
unless
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the Company is then subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
(i) If requested by you, to use its best efforts to
permit the Securities to be designated PORTAL securities in accordance
with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) To refrain from, and to cause its Affiliates or any
person acting on its or their behalf (other than the Placement Agent)
to refrain from, engaging in any directed selling efforts (as that
term is defined in Regulation S) with respect to the Securities, and
to comply, and to cause its Affiliates and each person acting on its
or their behalf (other than the Placement Agent) to comply, with the
offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing
Date, not to resell, and to cause its Affiliates (as defined in Rule
144 under the Securities Act) not to resell, any of the Securities
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them.
7. Offering of Securities; Restrictions on Transfer.
(a) The Placement Agent represents and warrants that it is a QIB. The Placement
Agent represents and warrants to the Company that (i) it has not solicited and
will not solicit offers for, and has not offered or sold and will not offer or
sell, such Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act and (ii) it has solicited and will solicit offers for
such Securities only from, and has offered and will offer such Securities only
to, persons that it reasonably believes to be QIBs that in purchasing such
Securities are deemed to have represented and agreed as provided in the Final
Memorandum under the caption "Transfer Restrictions."
(b) The Placement Agent represents, warrants, and agrees
with respect to offers and sales outside the United States that:
(i) it understands that no action has been or will be
taken in any jurisdiction by the Company that would permit a public
offering of the Securities, or possession or distribution of the Final
Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that
purpose is required;
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(ii) it will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells
or delivers Securities or has in its possession or distributes the
Final Memorandum or any such other material, in all cases at its own
expense;
(iii) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in
accordance with Rule 144A or Regulation S under the Securities Act or
pursuant to another exemption from the registration requirements of
the Securities Act;
(iv) it has offered the Securities and will offer and sell
the Securities (A) as part of their distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the
Offering and the Closing Date, only in accordance with Rule 903 of
Regulation S or as otherwise permitted in Section 7(a); accordingly,
neither the Placement Agent, its Affiliates nor any persons acting on
its or their behalf have engaged or will engage in any directed
selling efforts (within the meaning of Regulation S) with respect to
the Securities, and any the Placement Agent, its Affiliates and any
such persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(v) it has (A) not offered or sold and, prior to the date
six months after the Closing Date, will not offer or sell any
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations
1995; (B) complied and will comply with all applicable provisions of
the Financial Services Xxx 0000 with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United
Kingdom; and (C) only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in connection
with the issue of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996 or is a person to
whom such document may otherwise lawfully be issued or passed on;
(vi) it understands that the Securities have not been and
will not be registered under the Securities and Exchange Law of Japan,
and represents that it has not offered or sold, and agrees not to
offer or sell, directly or indirectly, any Securities in Japan or for
the account of any resident thereof except pursuant to any exemption
from the
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registration requirements of the Securities and Exchange Law of Japan
and otherwise in compliance with applicable provisions of Japanese
law; and
(vii) it agrees that, at or prior to confirmation of sales
of the Securities, it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meaning given to them
by Regulation S."
Terms used in this Section 7(b) have the meanings given to
them by Regulation S.
8. Indemnity and Contribution. (a) The Company agrees
to indemnify and hold harmless the Placement Agent and each person, if any, who
controls the Placement Agent within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Final Memorandum
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Placement Agent furnished to the Company in writing
by the Placement Agent through you expressly for use therein.
(b) The Placement Agent agrees to indemnify and hold
harmless the Company, its directors, its officers and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to the Placement Agent, but only with reference to
information relating to the Placement Agent furnished to the Company in writing
by the Placement Agent through you expressly for use in the Final Memorandum or
any amendments or supplements thereto.
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(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Placement
Agent, in the case of parties indemnified pursuant to Section 8(a), and by the
Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in
Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of
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indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Placement
Agent on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause 8(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the Company
on the one hand and of the Placement Agent on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Placement
Agent on the other hand in connection with the offering of the Securities shall
be deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total discounts and commissions received by the Placement Agent in
respect thereof, bear to the aggregate offering price of the Securities. The
relative fault of the Company on the one hand and of the Placement Agent on the
other hand 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 Company or by the Placement Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Placement Agent agree that it
would not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in Section
8(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in Section 8(d) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, the Placement Agent shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities resold by it in the initial placement of such Securities were
offered to investors exceeds the amount of any damages that the Placement Agent
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 remedies provided for in this Section 8 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained
in this Section 8 and the representations, warranties and other statements of
the Company contained in this
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Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Placement Agent or any person controlling the Placement Agent or by or
on behalf of the Company, its officers or directors or any person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
9. Termination. This Agreement shall be subject to
termination by notice given by you to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 9(a)(i) through 9(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Securities on the terms and in the manner
contemplated in the Final Memorandum.
10. Effectiveness. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Placement Agent,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Placement Agent for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably
incurred by the Placement Agent in connection with this Agreement or the
offering contemplated hereunder.
11. Notices. All notices and other communications under
this Agreement shall be in writing and mailed, delivered or sent by facsimile
transmission to: if sent to the Placement Agent, Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: High Yield
New Issues Group, facsimile number (000) 000-0000, and if sent to the Company,
Regal Cinemas, Inc., attention: Chief Financial Officer, facsimile number (423)
922-6085.
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12. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
14. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
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Very truly yours,
REGAL CINEMAS, INC.
By: /s/ D. XXXX XXXXXX
---------------------------------
Name: D. Xxxx Xxxxxx
Title: Vice President
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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EXHIBIT A
OPINION OF LOCAL COUNSEL
FOR THE COMPANY
Attach draft opinion of the counsel for the Company to be
delivered pursuant to Section 5(c) of the Placement Agreement to the effect
that:
A. The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
B. Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Final Memorandum
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole; all of the issued shares
of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non- assessable, and are owned
directly by the Company, free and clear of all liens, encumbrances, equities or
claims.
C. The Placement Agreement has been duly authorized, executed and
delivered by the Company.
D. The Securities have been duly authorized by the Company.
E. Each of the Indenture and Registration Rights Agreement has
been duly authorized, executed and delivered by the Company.
F. After due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject other than proceedings fairly summarized in
all material respects in the Final Memorandum and proceedings which such
counsel believes are not likely to have a material adverse effect on the
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Company and its subsidiaries, taken as a whole, or on the power or ability of
the Company to perform its obligations under the Placement Agreement, the
Indenture, the Registration Rights Agreement or the Securities or to consummate
the transactions contemplated by the Final Memorandum.
