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Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of July 31, 1997 by and between
Regal Cinemas, Inc. (the "Company") and Xxxx Theatres, L.L.C. ("Xxxx Theatres"),
each of the former affiliate holders of membership interests of Xxxx Theatres
and each of the former affiliate holders of Partnership Interests (as
hereinafter defined) (Xxxx Theatres, the former holders of membership interests
in Xxxx Theatres and the former holders of Partnership Interests being
collectively referred to herein as the "former Xxxx Affiliate Holders").
WHEREAS, as of the date of this Agreement, the former Xxxx Affiliate
Holders own 2,837,594 shares of the Company's Common Stock, no par value per
share (the "Stock");
WHEREAS, the Board of Directors has authorized the officers of the
Company to prepare and execute this Agreement, in the name and on behalf of the
Company, to offer certain registration rights to the Holders (as hereinafter
defined), the acceptance of which shall be evidenced by their execution of this
Agreement;
NOW, THEREFORE, the Company and the Holders agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Holder" means each former Xxxx Affiliate Holder that owns
Registrable Securities. For purposes of this Agreement, the Company may deem and
treat the registered holder of a Registrable Security as the Holder and absolute
owner thereof, and the Company shall not be affected by any notice to the
contrary.
"Registrable Securities" means (a) the Stock received by
Holders in the Mergers of X.X. Xxxx, Inc. ("Xxxx I"), Xxxx Theatres II, Inc.
("Xxxx II") and Xxxx Finance Corp ("Xxxx Finance"), each a wholly-owned
subsidiary of Xxxx Theatres with Regal Acquisition Corporation, RAC Corporation
and RAC Finance Corp., each an Alabama corporation and a wholly owned subsidiary
of the Company (the "Mergers") or any distribution to Holders from Xxxx
Theatres, (b) the stock received by Holders in the acquisition of all of the
interests of Tricob Partnership (the "Partnership Interests") and (c) any
securities issued or issuable in respect of the Stock referred to above by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, reclassification, merger or consolidation, and any other
securities issued pursuant to any other pro rata distribution with respect to
such Stock. For purposes of this Agreement, a Registrable Security ceases to be
a Registrable Security when (x) it has been effectively registered under the
Securities Act and sold or distributed to the public in accordance with an
effective registration statement covering it, or (y) it is eligible for sale or
sold, distributed or otherwise disposed of pursuant to Rule 144 or 145 (or any
successor or similar provision) under the Securities Act.
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"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
2. Demand Registration. (a) Subject to the terms and conditions set
forth herein, if at any time any Holder shall request the Company in writing to
register under the Securities Act all or a part of the Registrable Securities
held by such Holders (a "Demand Registration"), within five business days of
receipt of such request the Company shall serve written notice of such
registration request to all Holders and the Company will include in such
registration all Registrable Securities of such Holders with respect to which
the Company has received written requests for inclusion therein within 5 days
after receipt by the Holders of such notice. The Company shall use all
reasonable efforts to cause to be filed and declared effective as soon as
reasonably practicable a registration statement, on such appropriate form as the
Company in its discretion shall determine, providing for the sale of all of such
Registrable Securities by such Holders; provided, however, that such request
shall express the present intention of the Holders to offer or cause the
offering of such Registrable Securities for distribution in an underwritten
public offering thereof. The registration statement filed pursuant to this
Section 2(a) is hereinafter referred to as the "Demand Registration Statement."
The Company's obligation to use all reasonable efforts to
cause Registrable Securities to be registered in accordance with this Section
2(a) is subject to each of the following limitations, conditions and
qualifications:
(i) No notice given by the Holders shall be effective
hereunder, with respect to the Demand Registration Statement,
until after such time as results covering at least 30 days of
combined operations of Xxxx I, Xxxx II and Xxxx Finance and
the Company have been published by the Company, in the form of
a quarterly earnings report, an effective registration
statement filed with the SEC, a report to the SEC on Form 10-Q
or 8-K, or any other public filing or announcement which
includes such combined results of operations.
(ii) The Company may postpone for a reasonable period
of time, not to exceed 60 days, the filing or the
effectiveness of the registration requested pursuant to this
Section 2(a) if the Company determines that (A) such
registration might have an adverse effect on any plan or
proposal by the Company or any of its subsidiaries with
respect to any financing, acquisition, recapitalization,
reorganization or other material transaction or (B) the
Company is in possession of material non-public information
and disclosure of such information is not in the best
interests of the Company or any of its subsidiaries; provided,
however, that (i) the Company shall give written notice of
such postponement to the Holders and (ii) as soon as the
conditions permitting such delay no longer obtain, the Company
shall give notice of that fact to the Holders participating in
the registration, and shall proceed with the registration
unless such Holders shall have elected, at any time prior to
the close of
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business on the tenth business day after the Company has so
notified such Holders, to withdraw their request for
registration, and such withdrawn request shall not constitute
a request hereunder.
(iii) The Company shall not be required to effect any
registration pursuant to this Section 2(a) unless such
registration relates to 1,000,000 Registrable Securities,
subject to adjustment and for a stock split or stock dividend.
(iv) The obligation of the Company to register
Registrable Securities pursuant to this Section 2(a) shall
expire after one Demand Registration Statement filed by reason
of a request pursuant to Section 2(a) shall have become
effective and remained effective for the period specified in
Section 4(a)(ii) hereof.
(b) The Company agrees that, except as otherwise permitted by
Section 2(d) hereof, it will not effect any public sale or distribution (or any
registration with respect thereto) of any of its Stock during a period beginning
on the 30th day prior to, and ending on the earlier of the 30th day after, the
date such Demand Registration Statement is declared effective or the date when
attempts to effect such registration are abandoned by or at the request of the
Holders participating in such registration (the "Hold-Back Period").
(c) The Company shall have the right to select any recognized
investment banking firm(s) to administer the offering.
(d) The Company and, at the Company's election, any other
holders of Stock with registration rights, may include in any registration
requested pursuant to Section 2(a) any shares of Stock which it or they shall
determine so to include (the "Additional Registrable Securities") and the
consent of the Holders shall not be required with respect thereto; provided,
however, that, if, in the opinion of the managing underwriter of such offering,
the inclusion in such registration statement of all Additional Registrable
Securities would materially interfere with the successful marketing of the
Holders' Registrable Securities, then the number of the Additional Registrable
Securities shall be reduced to such number, if any, that, in the opinion of such
managing underwriter(s), can be included in such underwriting without such
interference with the successful marketing of the Holders' Registrable
Securities.
(e) If, in the opinion of the managing underwriter(s) of any
offering, the distribution of a specified portion of the Holders' shares would
materially interfere with the registration and sale, in accordance with the
intended method thereof, of the initially proposed shares to be offered by all
Holders, then the number of Holders' shares to be included in such registration
statement shall be reduced (pro rata among the Holders on the basis of the
number of shares that each such Holder requested be included) to such number, if
any, that, in the opinion of such managing underwriter(s), can be included
without such interference. If, as a result of the cutback provisions of the
preceding sentence, all Holders are not entitled to include at least 75% of such
Holders' requested shares in such registration, such Holders (as a group) may
elect to withdraw their request
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to include Holders' shares in such registration (a "Withdrawal Election"); if a
Withdrawal Election is made in accordance with this sentence, then no Demand
Registration shall be deemed to have been made.
(f) As a condition to each Holder's right to include shares in
a registration pursuant to this Section, such Holder shall, if requested by the
Company or the managing underwriter(s) in connection with such registration and
distribution, (A) agree to sell the shares on the basis provided in any
underwriting arrangements entered into in connection therewith and (B) complete
and execute all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents which are customary in similar transactions and
required under the terms of such underwriting arrangements.
3. Piggy-back Registration.
(a) If at any time or times after the date hereof the Company
proposes to make an underwritten registered public offering of its Common Stock
under the Securities Act, other than an offering pursuant to a demand
registration under Section 2 hereof or an offering registered on Form X-0, Xxxx
X-0, or comparable forms, the Company shall, not less than 5 business days prior
to the proposed filing date of the registration form, give written notice of the
proposed registration to the Holders, and at the written request of the Holders
delivered to the Company within 2 business days after the receipt of such
notice, shall include in such registration and offering, and in any underwriting
of such offering, all shares of Common Stock that may have been designated in
the Holders' request.
(b) If a registration in which the Holders have the right to
participate pursuant to this Section 3 is an underwritten primary offering on
behalf of the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration, together with the securities being offered by the Company,
exceeds the number which can be effectively sold in such offering, the Company
shall include in such registration (i) first, the securities of the Company
proposed to be sold by the Company, and (ii) second, to the extent possible, the
Registrable Securities proposed to be sold by the Holder pursuant to such
registration on a pro rata basis among such Holders. If a registration in which
the Holders have the right to participate pursuant to this Section 3 is partly
or wholly an underwritten secondary offering and the managing underwriters
advise the Company and the Holders in writing that in their opinion the number
of securities requested to be included in such registration, together with the
securities being offered by the Company, exceeds the number which can be
effectively sold in such offering and the reasons therefor, then the Company
shall include in such registration (i) first the number of shares of Common
Stock to be sold by the Company, and (ii) second, to the extent possible, the
Registrable Securities proposed to be sold by the Holders and the other selling
shareholders pursuant to such registration, in proportion to the number of
shares of Common Stock so requested by each of them to be included.
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4. Registration Procedures. (a) Whenever the Company is required to use
all reasonable efforts to effect the registration of any Registrable Securities
under the Securities Act pursuant to the terms and conditions of Section 2(a) or
Section 3 (such Registrable Securities being hereinafter referred to as the
"Subject Shares"), the Company will use all reasonable efforts to effect the
registration of the Subject Shares in accordance with the intended method of
disposition thereof. Without limiting the generality of the foregoing, the
Company will as soon as practicable:
(i) prepare and file with the Securities and Exchange
Commission (the "SEC") a registration statement on any
appropriate form under the Securities Act with respect to the
Subject Shares and use all reasonable efforts to cause such
registration statement to become effective;
(ii) prepare and file with the SEC such amendments
and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with
the provisions of the Securities Act with respect to the
disposition of all Subject Shares and other securities covered
by such registration statement until the earlier of (A) such
time as all of such Subject Shares and other securities have
been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement and (B) the expiration of 15 days after
such registration statement becomes effective; provided, that,
if the offering of Subject Shares pursuant to such
registration statement is terminated or suspended by any stop
order, injunction or other order or requirement of the SEC or
any other governmental agency or court, the foregoing time
period shall be extended by the number of days during the
period from and including the date such stop order, injunction
or other order or requirement becomes effective to and
including the date when such termination or suspension no
longer exists;
(iii) furnish the Holders of the Subject Shares
covered by such registration statement, without charge, such
number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case
without exhibits unless specifically requested), such number
of copies of the prospectus included in such registration
statement (including each preliminary prospectus), such
documents incorporated by reference in such registration
statement or prospectus, and such other documents, as such
Holders may reasonably request;
(iv) use all reasonable efforts to register or
qualify the Subject Shares cov ered by such registration
statement under the securities or blue sky laws of such
jurisdictions as the managing underwriter(s) shall reasonably
recommend, and do any and all other acts and things which may
be reasonably necessary or advisable to enable the Holders to
consummate the disposition in such jurisdictions of the
Subject Shares covered by such registration statement, except
that the Company shall not for any such purpose be required to
(A) qualify generally to do business as a foreign
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corporation in any jurisdiction wherein it is not so
qualified, (B) subject itself to taxation in any such
jurisdiction wherein it is not so subject, or (C) consent to
general service of process in any such jurisdiction or
otherwise take any action that would subject it to the general
jurisdiction of the courts of any jurisdiction in which it is
not so subject;
(v) otherwise use all reasonable efforts to comply
with all applicable rules and regulations of the SEC;
(vi) furnish, at the Company's expense, unlegended
certificates representing ownership of the securities being
sold in such denominations as shall be requested and instruct
the transfer agent to release any stop transfer orders with
respect to the Subject Shares being sold;
(vii) notify each Holder at any time when a
prospectus relating to the Subject Shares is required to be
delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such
Registration Statement contains any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein (in the case of the prospectus or
any preliminary prospectus, in light of the circumstances
under which they were made) not misleading, and the Company
will, as promptly as practicable thereafter, prepare and file
with the SEC and furnish a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers
of Subject Shares such prospectus will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading;
(viii) enter into customary agreements (including an
underwriting agreement in customary form in the case of an
underwritten offering); make such representations and
warranties to the Holders and underwriter(s) (in the case of
underwritten offerings) in form, substance and scope as are
customarily made by issuers to sellers or underwriter(s) in
similar offerings;
(ix) make available for inspection by the Holders,
any underwriter or agent participating in any disposition
pursuant to such Registration Statement, and any attorney,
accountant or other similar professional advisor retained by
any such Holders, underwriter(s) or agents (collectively, the
"Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors
and employees to supply all information reasonably requested
by any such Inspector in connection with such Registration
Statement. The Holders agree that Records and other
information which the Company determines to be confidential
and
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of which determination the Inspectors are so notified shall
not be disclosed by the Inspectors unless (i) the release of
such Records is ordered pursuant to a subpoena, court order or
regulatory or agency request or (ii) the information in such
Records has been generally disseminated to the public. Each
Holder agrees that it will, upon learning that disclosure of
such Record is sought in a court of competent jurisdiction or
by a governmental agency, give notice to the Company and allow
the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Records deemed
confidential;
(x) obtain for delivery to the Company, the
underwriter(s) or agent, with copies to the Holders, a "cold
comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the
type customarily covered by "cold comfort" letters as the
Holders or the managing underwriter(s) reasonably request;
(xi) obtain for delivery to the Holders and the
underwriter(s) or agent an opinion or opinions from counsel
for the Company in customary form and reasonably satisfactory
to the Holders, underwriter(s) or agents and their counsel;
(xii) make available to its security holders earnings
statements, which need not be audited, satisfying the
provisions of Section 11(a) of the Securities Act no later
than 90 days after the end of the 12-month period beginning
with the first month of the Company's first quarter commencing
after the effective date of the Registration Statement, which
earnings statements shall cover said 12 month period;
(xiii) make every reasonable effort to prevent the
issuance of any stop order suspending the effectiveness of the
registration statement or of any order preventing or
suspending the effectiveness of such registration statement at
the earliest possible moment;
(xiv) cause the Subject Shares to be registered with
or approved by such other governmental agencies or authorities
within the United States as may be reasonably necessary to
enable the Holders or the underwriter(s) to consummate the
disposition of such securities;
(xv) cooperate with the Holders and the managing
underwriter(s), or any other interested party (including any
interested broker-dealer) in making any filings or submission
reasonably required to be made, and the furnishing of all
appropriate information in connection therewith, with the
National Association of Securities Dealers, Inc. ("NASD");
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(xvi) effect the listing of the Subject Shares on the
NASDAQ National Market or other national securities exchange
on which shares of the Company's Stock shall then be listed;
and
(xvii) take all other steps necessary to effect the
registration of the Subject Shares contemplated hereby.
(b) The Holders shall provide (in writing and signed by the
Holders and stated to be specifically for use in the related registration
statement, preliminary prospectus, prospectus or other document incident
thereto) all such information and materials, including without limitation, the
intended plan of distribution, and take all such action as may be required in
order to permit the Company to comply with all applicable requirements of the
SEC and any applicable state securities laws and to obtain any desired
acceleration of the effective date of any registration statement prepared and
filed by the Company pursuant to this Agreement.
(c) Each Holder agrees, that if the managing underwriter so
requires, whether or not any of such Holder's Registrable Securities are
included in such registration, not to effect any sale or distribution, including
any sale pursuant to Rule 144 or 145 of the Securities Act, of any securities of
the Company which are similar to the securities included in such registration
(other than as part of the underwritten offering), without the consent of the
managing underwriter(s), for a period of 120 days after the date notice is given
pursuant to Section 2(a) or Section 3(a) hereof; provided, however, that if the
registration statement filed in connection therewith becomes effective within
such 120-day period, such 120-day period shall be extended for such period as
may be required pursuant to the terms and conditions of any underwriting
agreement entered into in connection with such proposed registration.
(d) The Holders shall, if requested by the Company or the
managing underwriter(s) in connection with any proposed registration and
distribution pursuant to this Agreement, (i) agree to sell the Subject Shares on
the basis provided in any underwriting arrangements entered into in connection
therewith and (ii) complete and execute all questionnaires, powers of attorney,
indemnities, underwriting agreement and other documents customary in similar
offerings.
(e) Upon receipt of any notice from the Company that the
Company has become aware that the prospectus (including any preliminary
prospectus) included in any registration statement filed pursuant to Section
2(a) or Section 3 hereof, as then in effect, contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, the Holders shall
forthwith discontinue disposition of Subject Shares pursuant to the registration
statement covering the same until the Holders' receipt of copies of a
supplemented or amended prospectus and, if so directed by the Company, deliver
to the Company all copies other than permanent file copies then in the Holder's
possession, of the prospectus covering the Subject Shares that was in effect
prior to such amendment or supplement.
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(f) Holders of the Subject Shares shall pay all out-of-pocket
expenses incurred in connection with the Demand Registration Statement filed
pursuant to Section 2(a) (provided, however, that if the Company or any other
holders sell shares pursuant to Section 2(d) hereof then the Company or such
other holders, as the case may be, shall pay their pro rata share of such
expenses), and the Company shall pay expenses incurred in connection with the
registration statements filed pursuant to Section 3 of this Agreement. Such
expenses shall include, without limitation, all SEC and blue sky registration
and filing fees (including NASD fees), printing expenses, transfer agents and
registrars' fees, fees and disbursements of the Company's counsel and
accountants. Holders shall pay all underwriting discounts, commissions and
expenses attributable to the Subject Shares sold pursuant to any registration
statement.
5. Investment Representations. Each Holder hereby represents and
warrants to, and agrees with the Company that:
(a) the Holder has acquired the Stock for investment.
(b) the Holder's knowledge and expertise in financial and
business matters are such that it is capable of evaluating the merits and risks
of the purchase of the Stock.
(c) the Holder and such of its representatives as it deems
necessary, including professional, tax and legal advisors, have received and had
adequate opportunity to review such information concerning the Company as it
deems necessary for purposes of evaluating an investment in the Stock,
including, but not limited to, the Company's Annual Report on Form 10-K for the
year ended January 2, 1997 and the Company's Quarterly Report on Form 10-Q for
the quarter ended April 3, 1997, which contain various risk factors relating to
an investment in the Stock.
(d) the Holder has been advised that the offering, sale and
delivery of the Stock to it pursuant to the Mergers and/or acquisition of the
Partnership Interests have not been registered under the 1933 Act and that any
public offering or sale or other transfer or disposition by the Holder of any of
the Stock will, under current law, require either (i) compliance with Rule 144
promulgated by the Commission under the 1933 Act, (ii) the registration under
the 1933 Act of the Stock to be offered and sold, or (iii) the availability of
another exemption from such registration under the 1933 Act.
6. Conditions Precedent to Registration. The Company's obligations
under this Agreement to effect the registration of any Registrable Securities
are subject to the agreement to and the performance by the Holders of such
Registrable Securities of the obligations of such Holders contained in this
Agreement. Unless a Holder shall, if requested by the Company, complete, execute
and deliver all agreements, questionnaires, indemnities and other documents
customary in a proposed registration or deemed necessary by the Company to
evidence such Holder's agreements and obligation under this Agreement, the
Company will have no obligation to register such Holder's Registrable
Securities.
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7. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by telecopy (with correct answer back received), telecopy
or facsimile at the address or number designated below (if delivered on a
business day during normal business hours where such notice is to be received),
or the first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the first business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
service, fully prepaid, addressed to such address, or upon actual receipt of
such mailing whichever shall first occur. The addresses for such communications
shall be:
If to the Company:
Regal Cinemas, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
Bass, Xxxxx & Xxxx PLC
1st American Center, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: F. Xxxxxxxx Xxxxxx, Xx., Esq.
If to a Holder,
to the address of such Holder shown on the stock ledger books
of the Company.
with a copy to:
Sirote & Permutt
000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
and
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X. X. XxXxxxx, CPA
XxXxxxx & Co., P.C.
0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
The Company may from time to time change its address for
notices under this Section 7 by giving at least 10 days' written notice of such
changed address to each of the Holders. Each Holder may from time to time change
its address for notices under this Section 7 by giving at least 10 days' written
notice of such changed address to the Company.
9. Heading. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
10. Binding Effect; Amendments. This Agreement shall be binding upon
and inure to the benefit of the Company and the Holders; provided, however, that
the Company may amend, modify, or supplement this Agreement at any time without
the consent of the Holders if it determines that such action is in the best
interests of the Company and its shareholders as a whole.
11. No Third Party Beneficiaries; No Assignment. This Agreement is
intended for the benefit of the Company and the Holders and is not for the
benefit of, nor may any provision hereof be enforced by, any other person. The
rights of the Holders hereunder are not assignable.
12. Expiration Date. This Agreement shall expire on July 31, 1999.
13. Governing Law. Upon acceptance by the Holders, this Agreement shall
be governed by and construed and enforced in accordance with the internal laws
of the State of Tennessee without regard to the principles of conflicts of laws.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its authorized officer and the Holders have executed this Agreement,
each as of the date hereof.
REGAL CINEMAS, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
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HOLDERS:
_____________________________________________
Xxxxxxx X. Xxxx, Xx.
_____________________________________________
Xxxxxxxxx X. Xxxx
_____________________________________________
Xxxxxx X. Xxxx
XXXXXXXXX X. XXXX REVOCABLE MANAGEMENT
TRUST
By:__________________________________________
Name:________________________________________
Title:_______________________________________
XXXXXX X. XXXX REVOCABLE MANAGEMENT TRUST
By:__________________________________________
Name:________________________________________
Title:_______________________________________
XXXX THEATRES, L.L.C.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
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