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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
by and between
HOLLYWOOD THEATER HOLDINGS, INC.
and
THE BEACON GROUP III - FOCUS VALUE FUND, L.P.
Dated as of October 3, 1996
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of October 3, 1996, by and
between HOLLYWOOD THEATER HOLDINGS, INC., a Delaware corporation (the
"Company") and THE BEACON GROUP III - FOCUS VALUE FUND, L.P., a Delaware
limited partnership ("Beacon").
W I T N E S S E T H :
WHEREAS, the Company and Beacon have entered into a Preferred Stock and
Common Stock Purchase Agreement (the "Purchase Agreement"), pursuant to which
the Company is agreeing to issue, and Beacon is agreeing to purchase, shares of
Series A Convertible Preferred Stock, par value $.01 per share of the Company
(the "Series A Preferred"), Series B Convertible Preferred Stock, $.01 par
value per share of the Company ("Series B Preferred") and Common Stock of the
Company;
WHEREAS, simultaneously herewith, the Company, Beacon and the other
equity holders of the Company are entering into a Shareholders' Agreement (the
"Shareholders' Agreement"); and
WHEREAS, the execution and delivery of this Agreement is a condition to
the closing of the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby
agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the meanings
ascribed to them below:
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"Affiliate" means (i) with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) with respect to any
individual, shall also mean the spouse, sibling, child, step-child, grandchild,
niece, nephew or parent of such Person, or the spouse thereof.
"Common Stock" means the Common Stock, $.01 par value per share, of the
Company and any equity securities issued or issuable with respect to the Common
Stock in connection with a reclassification, recapitalization, merger,
consolidation or other reorganization.
"Conversion Shares" means the shares of Common Stock or other equity
securities issued or issuable upon conversion of the Series A Preferred and/or
Series B Preferred.
"Holder" or "Holders" means any party who is a signatory to this
Agreement and any party who shall hereafter acquire and hold Registrable
Securities.
"Investor Conversion Shares" means "Conversion Shares" under and as
defined in the Investor Registration Rights Agreement.
"Investor Registration Rights Agreement" means that certain Registration
Rights Agreement dated October 3, 1996, by and among the Company, Stratford
Capital Partners, L.P., a Texas limited partnership and Precept Investors,
Inc., a Texas corporation.
"Investor Registrable Securities" means "Registrable Securities" under
and as defined in the Investor Registration Rights Agreement.
"Investor Holders" means "Holders" under and as defined in the Investor
Registration Rights Agreement.
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"IPO" means the initial underwritten offering pursuant to which the
Common Stock becomes registered under Section 12 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
"Major Holder" means with respect to any registration the Holder that,
together with its Affiliates, includes the largest number of Registrable
Securities in such registration.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivisions thereof.
"Registrable Securities" means any (i) shares of Series A Preferred and
Series B Preferred owned by Beacon, whether acquired on the date hereof or
hereafter acquired, (ii) shares of Common Stock owned by Beacon, whether
acquired on the date hereof or hereafter acquired, (iii) Conversion Shares
owned by Beacon, (iv) shares of Series A Preferred and Series B Preferred or
Common Stock acquired by any Person after the date hereof pursuant to rights
granted to Beacon under the Purchase Agreement or the Shareholders' Agreement,
(v) Conversion Shares acquired by any Person after the date hereof pursuant to
rights granted to Beacon under the Purchase Agreement or the Shareholders'
Agreement and (vi) shares of Common Stock issued or issuable, directly or
indirectly, with respect to the Common Stock referenced in clauses (ii), (iii),
(iv) or (v) above by way of stock dividend, stock split or combination of
shares. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have been declared effective under
the Securities Act and such securities shall have been disposed of in
accordance with such registration statement, or (ii) such securities shall have
been sold (other than in a privately negotiated sale) pursuant to Rule 144 (or
any successor provision) under the Securities Act.
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"Requisite Percentage of Outstanding Holders" means the Holders of
Registrable Securities who, assuming conversion of all of the then outstanding
Series A Preferred and Series B Preferred into Conversion Shares, would hold
15% or more of the total Conversion Shares that would then be outstanding.
"Requisite Percentage of Participating Holders" means Holders of
Registrable Securities participating in the registration who, assuming
conversion of all then outstanding Series A Preferred and Series B Preferred
into Conversion Shares, would hold a majority of the total Conversion Shares
that would then be held by all Holders participating in the registration.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2. Registration Rights.
2.1. Demand Registrations.
(a) Request for Registration. Subject to Section 2.1(d), at any time
and from time to time after the earlier of (i) the closing of an IPO and (ii)
three years after the date hereof, one or more Holders of Registrable
Securities representing the Requisite Percentage of Outstanding Holders shall
have the right to require the Company to file a registration statement under
the Securities Act covering all or any part of their respective Registrable
Securities, by delivering a written request therefor to the Company specifying
the number of Registrable Securities to be included in such registration by
such Holder(s) and the intended method of distribution thereof. All such
requests pursuant to this Section 2.1(a) are referred to herein as "Demand
Registration Requests," and the registrations so requested are referred to
herein as "Demand Registrations" (with respect to any Demand Registration, the
Holder(s) making such demand for registration being referred to as the
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"Initiating Holder"). As promptly as practicable, but no later than 5 days
after receipt of a Demand Registration Request, the Company shall give written
notice (the "Demand Exercise Notice") of such Demand Registration Request to
all Holders of record of Registrable Securities.
(b) Registration of Other Securities. The Company shall include in a
Demand Registration (i) the Registrable Securities of the Initiating Holder and
(ii) the Registrable Securities of any other Holder which shall have made a
written request to the Company for inclusion thereof in such registration
(which request shall specify the maximum number of Registrable Securities
intended to be disposed of by such Holder(s)) within 30 days after the receipt
of the Demand Exercise Notice.
(c) Registration. The Company shall, as expeditiously as possible
following a Demand Registration Request, use its best efforts to (i) effect
such registration under the Securities Act (including, without limitation, by
means of a shelf registration pursuant to Rule 415 under the Securities Act if
so requested and if the Company is then eligible to use such a registration) of
the Registrable Securities which the Company has been so requested to register,
for distribution in accordance with such intended method of distribution, and
(ii) if requested by the Initiating Holder or Major Holder, obtain acceleration
of the effective date of the registration statement relating to such
registration.
(d) Limitations on Requested Registrations. The rights of Holders of
Registrable Securities to request Demand Registrations pursuant to Section
2.1(a) are subject to the following limitations: (i) the Company shall not be
obligated to effect a Demand Registration within six months after the effective
date of any other registration of securities (other than pursuant to a
registration on Form S-8 or any successor or similar form which is then in
effect) and (ii) in no event
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shall the Company be required to effect, in the aggregate, without regard to
the Holder of Registrable Securities making such request, more than three
Demand Registrations.
(e) Cutbacks. If the managing underwriter of any underwritten offering
shall advise the Holders participating in a Demand Registration that the
Registrable Securities covered by the registration statement cannot be sold in
such offering within a price range acceptable to the Requisite Percentage of
Participating Holders, then the Holders representing the Requisite Percentage
of Participating Holders shall have the right to notify the Company in writing
that they have determined that the registration statement be abandoned or
withdrawn, in which event the Company shall abandon or withdraw such
registration statement. If the managing underwriter of any underwritten
offering shall advise the Company in writing that, in its opinion, the number
of securities requested to be included in a Demand Registration exceeds the
number which can be sold in such offering within a price range acceptable to
the Requisite Percentage of Participating Holders, the Company will include in
such registration, to the extent of the number which the Company is so advised
can be sold in such offering, Registrable Securities requested to be included
in such registration, pro rata among the Holders requesting such registration
in accordance with the number of Conversion Shares held by and issuable upon
conversion of Registrable Securities to each such Holder so requested to be
registered. Any Registrable Securities requested to be included in such
registration by Beacon shall be the last to be reduced.
(f) Selection of Underwriters. The managing underwriter or underwriters
of each underwritten offering of the Registrable Securities so to be registered
shall be selected by the Requisite Percentage of Participating Holders (and
shall be reasonably acceptable to the Company).
2.2. Piggyback Registrations.
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(a) Piggyback Registrations. If, at any time, the Company proposes or
is required to register any of its equity securities under the Securities Act
(other than pursuant to (i) registrations on such form or similar form(s)
solely for registration of securities in connection with an employee benefit
plan or dividend reinvestment plan or a merger, consolidation or acquisition or
(ii) a Demand Registration under Section 2.1) on a registration statement on
Form S-1, Form S-2 or Form S-3 (or an equivalent general registration form then
in effect), whether or not for its own account, the Company shall give prompt
written notice of its intention to do so to each of the Holders of record of
Registrable Securities. Upon the written request of any Holder, made within 15
days following the receipt of any such written notice (which request shall
specify the maximum number of Registrable Securities intended to be disposed of
by such Holder and the intended method of distribution thereof), the Company
shall use its best efforts to cause all such Registrable Securities, the
Holders of which have so requested the registration thereof, to be registered
under the Securities Act (with the securities which the Company at the time
proposes to register) to permit the sale or other disposition by the Holders
(in accordance with the intended method of distribution thereof) of the
Registrable Securities to be so registered. There is no limitation on the
number of such piggyback registrations pursuant to the preceding sentence which
the Company is obligated to effect. No registration effected under this
Section 2.2(a) shall relieve the Company of its obligations to effect Demand
Registrations.
(b) Abandonment or Delay. If, at any time after giving written notice
of its intention to register any equity securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such equity securities, the Company may, at its election, give
written notice of
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such determination to all Holders of record of Registrable Securities and (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
abandoned registration, without prejudice, however, to the rights of Holders
under Section 2.1, and (ii) in the case of a determination to delay such
registration of its equity securities, shall be permitted to delay the
registration of such Registrable Securities for the same period as the delay in
registering such other equity securities.
(c) Holder's Right to Withdraw. Any Holder shall have the right to
withdraw its request for inclusion of its Registrable Securities in any
registration statement pursuant to this Section 2.2 by giving written notice to
the Company of its request to withdraw; provided, however, that (i) such
request must be made in writing prior to the earlier of the execution of the
underwriting agreement or the execution of the custody agreement with respect
to such registration and (ii) such withdrawal shall be irrevocable and, after
making such withdrawal, a Holder shall no longer have any right to include
Registrable Securities in the registration as to which such withdrawal was
made.
(d) Cutbacks. If the managing underwriter of any underwritten offering
shall inform the Company by letter of its belief that the number of Registrable
Securities requested to be included in a registration under this Section 2.2
would materially adversely affect such offering, then the Company will include
in such registration, first, the securities proposed by the Company to be sold
for its own account, second, Investor Registrable Securities to the extent, but
only to the extent that registration is being requested under this Section 2.2
in connection with a registration required because of an exercise of demand
registration rights under Section 2.1 of the Investor Registration Rights
Agreement, third, the Registrable Securities and Investor Registrable
Securities to be included in such registration to the extent of the number and
type which the Company is so advised can be
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sold in (or during the time of) such offering, pro rata among the Holders and
Investor Holders participating in such offering in accordance with the number
of Conversion Shares and Investor Conversion Shares held by and issuable upon
conversion of Registrable Securities and Investor Registrable Securities to
each such Holder and Investor Holder, and fourth, all other securities of the
Company to be included in such registration to the extent of the number and
type which the Company is so advised can be sold in (or during the time of)
such offering.
2.3. S-3 Registrations. If at any time (i) one or more Holders of
Registrable Securities representing the Registrable Percentage of Outstanding
Holders request that the Company file a registration statement on Form S-3 or
any successor thereto for a public offering of all or any portion of the shares
of Registrable Securities held by such Holder or Holders, the reasonably
anticipated aggregate price to the public of which would exceed $1,000,000, and
(ii) the Company is a registrant entitled to use Form S-3 or any successor
thereto to register such shares, then the Company shall use its best efforts to
register under the Securities Act on Form S-3 or any successor thereto, for
public sale in accordance with the method of disposition specified in such
notice, the number of shares of Registrable Securities specified in such
notice. Whenever the Company is required by this Section 2.3 to use its best
efforts to effect the registration of Registrable Securities, each of the
procedures and requirements of Section 2.1 (including but not limited to the
requirement that the Company notify all Holders of Registrable Securities from
whom notice has not been received and provide them with the opportunity to
participate in the offering) shall apply to such registration. Notwithstanding
anything to the contrary contained herein, no request may be made under this
Section 2.3 within six months after the effective date of a registration
statement filed by the Company covering a firm commitment underwritten public
offering in which the holders of
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Registrable Securities shall have been entitled to join pursuant to Sections
2.1 and 2.2 in which there shall have been effectively registered all shares of
Registrable Securities as to which registration shall have been requested.
There is no limitation on the number of registrations pursuant to this Section
2.3 that the Company is obligated to effect.
2.4. Registration Procedures. If and whenever the Company is required by
the provisions of this Agreement to use its best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Agreement, the Company shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an
appropriate registration form of the SEC for the disposition of such
Registrable Securities in accordance with the intended method of disposition
thereof, which form (i) shall be selected by the Company and (ii) shall, in the
case of a shelf registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and such registration statement shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith, and the Company shall use its best efforts to cause such
registration statement to become effective (provided, however, that before
filing a registration statement or prospectus or any amendments or supplements
thereto, or comparable statements under securities or blue sky laws of any
jurisdiction, the Company will furnish to one counsel for the Holders
participating in the planned offering (selected by the Major Holder) and the
underwriters, if any, copies of all such documents proposed to be filed
(including all exhibits thereto), which documents will be subject to the
reasonable review and reasonable comment of such counsel, and the Company shall
not file any registration statement or amendment thereto or any prospectus or
supplement thereto to which the
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holders of a majority of the Registrable Securities covered by such
registration statement or the underwriters, if any, shall reasonably object in
writing);
(b) 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 for such period
(which shall not be required to exceed 150 days in the case of a registration
pursuant to Section 2.1 or 120 days in the case of a registration pursuant to
Section 2.2) as any seller of Registrable Securities pursuant to such
registration statement shall request and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all Registrable
Securities covered by such registration statement in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement;
(c) furnish, without charge, to each seller of such Registrable
Securities and each underwriter, if any, of the securities covered by such
registration statement such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits),
and the prospectus included in such registration statement (including each
preliminary prospectus) in conformity with the requirements of the Securities
Act, and other documents, as such seller and underwriter may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Securities owned by such seller (the Company hereby consenting to the use in
accordance with applicable law of each such registration statement (or
amendment or post-effective amendment thereto) and each such prospectus (or
preliminary prospectus or supplement thereto) by each such seller of
Registrable Securities and the underwriters, if any, in connection with
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the offering and sale of the Registrable Securities covered by such
registration statement or prospectus);
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other securities
or "blue sky" laws of such jurisdictions as any sellers of Registrable
Securities or any managing underwriter, if any, shall reasonably request in
writing, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such sellers or underwriter, if any, to
consummate the disposition of the Registrable Securities in such jurisdictions,
except that in no event shall the Company be required to qualify to do business
as a foreign corporation in any jurisdiction where it would not, but for the
requirements of this paragraph (d), be required to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) promptly notify each Holder selling Registrable Securities covered
by such registration statement and each managing underwriter, if any: (i) when
the registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or state securities authority for amendments or
supplements to the registration statement or the prospectus related thereto or
for additional information; (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose; (v) of the
existence of
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any fact of which the Company becomes aware which results in the registration
statement, the prospectus related thereto or any document incorporated therein
by reference containing an untrue statement of a material fact or omitting to
state a material fact required to be stated therein or necessary to make any
statement therein not misleading; and (vi) if at any time the representations
and warranties contemplated by Section 3 below cease to be true and correct in
all material respects; and, if the notification relates to an event described
in clause (v), the Company shall promptly prepare and furnish to each such
seller and each underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein in the light
of the circumstances under which they were made not misleading;
(f) comply with all applicable rules and regulations of the SEC, and
make generally available to its security holders, as soon as reasonably
practicable after the effective date of the registration statement (and in any
event within 16 months thereafter), an earnings statement (which need not be
audited) covering the period of at least twelve consecutive months beginning
with the first day of the Company's first calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if the
listing of such Registrable Securities is then permitted under the rules of
such exchange, or (ii) if no similar securities are then so listed, to either
cause all such Registrable
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Securities to be listed on a national securities exchange or to secure
designation of all such Registrable Securities as a National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") "national market
system security" within the meaning of Rule 11Aa2-1 of the SEC or, failing
that, secure NASDAQ authorization for such shares and, without limiting the
generality of the foregoing, take all actions that may be required by the
Company as the issuer of such Registrable Securities in order to facilitate the
managing underwriter's arranging for the registration of at least two market
makers as such with respect to such shares with the National Association of
Securities Dealers, Inc. (the "NASD");
(h) provide and cause to be maintained a transfer agent and registrar
for all such Registrable Securities covered by such registration statement not
later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if applicable, an
underwriting agreement) and take such other actions as the Holders of a
majority of the Registrable Securities or the Major Holder participating in
such offering shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities. The Holders of the Registrable
Securities which are to be distributed by such underwriters shall be parties to
such underwriting agreement and may, at their option, require that the Company
make to and for the benefit of such Holders the representations, warranties and
covenants of the Company which are being made to and for the benefit of such
underwriters and which are of the type customarily provided to institutional
investors in secondary offerings;
(j) obtain an opinion from the Company's counsel and a "cold comfort"
letter from the Company's independent public accountants in customary form and
covering such matters as are
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customarily covered by such opinions and "cold comfort" letters delivered to
underwriters in underwritten public offerings, which opinion and letter shall
be reasonably satisfactory to the underwriters, if any, and to the Major Holder
participating in such offering, and furnish to each Holder participating in the
offering and to each underwriter, if any, a copy of such opinion and letter
addressed to such Holder (in the case of the opinion) and underwriter (in the
case of the opinion and the "cold comfort" letter);
(k) deliver promptly to the Major Holder and counsel for the selling
Holders participating in the offering and each underwriter, if any, copies of
all correspondence between the Commission and the Company, its counsel or
auditors and any memoranda relating to discussions with the Commission or its
staff with respect to the registration statement, other than those portions of
any such memoranda which contain information subject to attorney-client
privilege with respect to the Company, and, upon receipt of such
confidentiality agreements as the Company may reasonably request, make
reasonably available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter, if any,
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(l) use its best efforts to obtain promptly the withdrawal of any order
suspending the effectiveness of the registration statement;
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(m) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the registration statement;
(n) make reasonably available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into account the
needs of the Company's businesses and the requirements of the marketing
process) in the marketing of Registrable Securities in any underwritten
offering;
(o) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement) provide copies of
such document to counsel for the selling holders of Registrable Securities and
to each managing underwriter, if any, and make the Company's representatives
reasonably available for discussion of such document and make such changes in
such document concerning the selling holders prior to the filing thereof as
counsel for such selling holders or underwriters may reasonably request;
(p) furnish to each Holder participating in the offering and the
managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(q) cooperate with the selling Holders of Registrable Securities and the
managing underwriter, if any, to facilitate the timely preparation and delivery
of certificates not bearing any restrictive legends representing the
Registrable Securities to be sold, and cause such Registrable Securities to be
issued in such denominations and registered in such names in accordance with
the underwriting agreement prior to any sale of Registrable Securities to the
underwriters or, if not an
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underwritten offering, in accordance with the instructions of the selling
holders of Registrable Securities at least three business days prior to any
sale of Registrable Securities; and
(r) take all such other commercially reasonable actions as are necessary
or advisable in order to expedite or facilitate the disposition of such
Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable Securities
as to which any registration is being effected furnish the Company such
information regarding such seller and the distribution of such securities as
the Company may from time to time reasonably request provided that such
information shall be used only in connection with such registration.
Each Holder of Registrable Securities agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (v) of paragraph (e) of this Section 2.4, such Holder will discontinue
such Holder's disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
paragraph (e) of this Section 2.4 and, if so directed by the Company, will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the prospectus
covering such Registrable Securities that was in effect at the time of receipt
of such notice. In the event the Company shall give any such notice, the
applicable period mentioned in paragraph (b) of this Section 2.4 shall be
extended by the number of days during such period from and including the date
of the giving of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
paragraph (e) of this Section 2.4.
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If any such registration statement or comparable statement under "blue sky"
laws refers to any Holder by name or otherwise as the Holder of any securities
of the Company, then such Holder shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to such
Holder and the Company, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not in the judgment of the Company, as
advised by counsel, required by the Securities Act or any similar federal
statute or any state "blue sky" or securities law then in force, the deletion
of the reference to such Holder.
2.5. Registration Expenses.
(a) "Expenses" shall mean any and all fees and expenses incident to the
Company's performance of or compliance with this Article 2, including, without
limitation: (i) SEC, stock exchange or NASD registration, listing and filing
fees and all listing fees and fees with respect to the inclusion of securities
in NASDAQ, (ii) fees and expenses of compliance with state securities or "blue
sky" laws and in connection with the preparation of a "blue sky" survey,
including without limitation, reasonable fees and expenses of blue sky counsel,
(iii) printing and copying expenses, (iv) messenger and delivery expenses, (v)
expenses incurred in connection with any road show, (vi) fees and disbursements
of counsel for the Company, (vii) with respect to each registration, the
reasonable fees and disbursements of one counsel for the selling Holder(s)
(selected by the Major Holder), (viii) fees and disbursements of all
independent public accountants (including the expenses of any audit and/or
"cold comfort" letter) and fees and expenses of other persons, including
special
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experts, retained by the Company, (ix) fees and expenses payable to a Qualified
Independent Underwriter and (x) any other fees and disbursements of
underwriters, if any, customarily paid by issuers or sellers of securities
(collectively, "Expenses").
(b) The Company shall pay all Expenses with respect to any Demand
Registration, whether or not it becomes effective or remains effective for the
period contemplated by Section 2.4(b), and with respect to any registration
effected under Sections 2.2 or 2.3.
(c) Notwithstanding the foregoing, (x) the provisions of this Section
2.5 shall be deemed amended to the extent necessary to cause these expense
provisions to comply with "blue sky" laws of each state in which the offering
is made and (y) in connection with any registration hereunder, each Holder of
Registrable Securities being registered shall pay all underwriting discounts
and commissions and any transfer taxes, if any, attributable to the sale of
such Registrable Securities, pro rata with respect to payments of discounts and
commissions in accordance with the number of shares sold in the offering by
such Holder, and (z) the Company shall, in the case of all registrations under
this Article 2, be responsible for all its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties).
2.6. Certain Limitations on Registration Rights. In the case of any
registration under Section 2.1 pursuant to an underwritten offering, or in the
case of a registration under Sections 2.2 or 2.3 if the Company has determined
to enter into an underwriting agreement in connection therewith, all securities
to be included in such registration shall be subject to an underwriting
agreement and no Person may participate in such registration unless such Person
agrees to sell such Person's securities on the basis provided therein and
completes and executes all reasonable questionnaires and other documents
(including custody agreements and powers of attorney) which
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must be executed in connection therewith, and provides such other information
to the Company or the underwriter as may be necessary to register such Person's
securities.
2.7. Limitations on Sale or Distribution of Other Securities.
(a) To the extent requested in writing by a managing underwriter, if
any, of any registration effected pursuant to Section 2.1, each Holder of
Registrable Securities agrees not to sell, transfer or otherwise dispose of,
including any sale pursuant to Rule 144 under the Securities Act, any Common
Stock, or any other equity security of the Company or any security convertible
into or exchangeable or exercisable for any equity security of the Company
(other than as part of such underwritten public offering) during the time
period reasonably requested by the managing underwriter, not to exceed 180 days
(and the Company hereby also so agrees (except that the Company may effect any
sale or distribution of any such securities pursuant to a registration on Form
S-4 (if reasonably acceptable to such managing underwriter) or Form S-8, or any
successor or similar form which is then in effect or upon the conversion,
exchange or exercise of any then outstanding Common Stock Equivalent) to use
its reasonable best efforts to cause each holder of any equity security or any
security convertible into or exchangeable or exercisable for any equity
security of the Company purchased from the Company at any time other than in a
public offering so to agree). Each managing underwriter shall be entitled to
rely on the agreements of each Holder of Registrable Securities set forth in
this Section 2.7(a) and shall be a third party beneficiary of the provisions of
this Section 2.7(a).
(b) The Company hereby agrees that, if it shall previously have received
a request for registration pursuant to Section 2.1, 2.2 or 2.3, and if such
previous registration shall not have been withdrawn or abandoned, the Company
shall not sell, transfer, or otherwise dispose of, any Common
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Stock, or any other equity security of the Company or any security convertible
into or exchangeable or exercisable for any equity security of the Company
(other than as part of such underwritten public offering, a registration on
Form S-4 or Form S-8 or any successor or similar form which is then in effect
or upon the conversion, exchange or exercise of any then outstanding Common
Stock Equivalent), until a period of 180 days shall have elapsed from the
effective date of such previous registration; and the Company shall so provide
in any registration rights agreements hereafter entered into with respect to
any of its securities.
2.8. No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
2.9. Indemnification.
(a) In the event of any registration of any securities of the Company
under the Securities Act pursuant to this Article 2, the Company will, and
hereby does, indemnify and hold harmless, to the fullest extent permitted by
law, each Holder of Registrable Securities, its directors, officers,
affiliates, employees, stockholders, members and partners (and the directors,
officers, affiliates, employees, stockholders, members and partners thereof),
each other Person who participates as an underwriter or a Qualified Independent
Underwriter, if any, in the offering or sale of such securities, each officer,
director, employee, stockholder, member or partner of such underwriter or
Qualified Independent Underwriter, and each other Person, if any, who controls
such seller or any such underwriter within the meaning of the Securities Act,
against any and all losses, claims, damages or liabilities, joint or several,
actions or proceedings (whether commenced or threatened) in respect thereof
("Claims") and expenses (including reasonable fees of counsel and any amounts
paid in any
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settlement effected with the Company's consent, which consent shall not be
unreasonably withheld or delayed) to which each such indemnified party may
become subject under the Securities Act or otherwise, insofar as such Claims or
expenses arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any registration statement
under which such securities were registered under the Securities Act, together
with the documents incorporated by reference therein, or 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, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus or any amendment or supplement
thereto, together with the documents incorporated by reference therein, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company shall not be liable to any such indemnified
party in any such case to the extent such Claim or expense arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
or omission or alleged omission of a material fact made in such registration
statement or amendment thereof or supplement thereto or in any such prospectus
or any preliminary, final or summary prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such indemnified party specifically for use therein. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless of
any investigation made by as on behalf of such indemnified party and shall
survive the transfer of such securities by such seller.
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(b) Each Holder of Registrable Securities that are included in the
securities as to which any registration under Section 2.1, 2.2 or 2.3 is being
effected (and, if the Company requires as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 2.1, 2.2 or 2.3, any underwriter and Qualified Independent Underwriter,
if any) shall, severally and not jointly, indemnify and hold harmless (in the
same manner and to the same extent as set forth in paragraph (a) of this
Section 2.9) to the extent permitted by law the Company, its officers and
directors, each Person controlling the Company within the meaning of the
Securities Act and all other prospective sellers and their directors, officers,
general and limited partners and respective controlling Persons with respect to
any untrue statement or alleged untrue statement of any material fact in, or
omission or alleged omission of any material fact from, such registration
statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or its representatives by or on
behalf of such Holder or underwriter or Qualified Independent Underwriter, if
any, specifically for use therein and reimburse such indemnified party for any
legal or other expenses reasonably incurred in connection with investigating or
defending any such Claim as such expenses are incurred; provided, however, that
the aggregate amount which any such Holder shall be required to pay pursuant to
this Section 2.9(b) and Sections 2.9(c) and (e) shall in no case be greater
than the amount of the net proceeds received by such person upon the sale of
the Registrable Securities pursuant to the registration statement giving rise
to such claim. Such indemnity and reimbursement of expenses shall remain in
full force and effect regardless of any investigation made
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by or on behalf of such indemnified party and shall survive the transfer of
such securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any state securities and "blue sky" laws.
(d) Any person entitled to indemnification under this Agreement shall
notify promptly the indemnifying party in writing of the commencement of any
action or proceeding with respect to which a claim for indemnification may be
made pursuant to this Section 2.9, but the failure of any indemnified party to
provide such notice shall not relieve the indemnifying party of its obligations
under the preceding paragraphs of this Section 2.9, except to the extent the
indemnifying party is materially prejudiced thereby and shall not relieve the
indemnifying party from any liability which it may have to any indemnified
party otherwise than under this Article 2. In case any action or proceeding is
brought against an indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside counsel to
the indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof jointly with any other indemnifying party similarly notified, to the
extent that it chooses, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided,
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however, that (i) if the indemnifying party fails to take reasonable steps
necessary to defend diligently the action or proceeding within 20 days after
receiving notice from such indemnified party that the indemnified party
believes it has failed to do so; or (ii) if such indemnified party who is a
defendant in any action or proceeding which is also brought against the
indemnifying party reasonably shall have concluded that there may be one or
more legal defenses available to such indemnified party which are not available
to the indemnifying party; or (iii) if representation of both parties by the
same counsel is otherwise inappropriate under applicable standards of
professional conduct, then, in any such case, the indemnified party shall have
the right to assume or continue its own defense as set forth above (but with no
more than one firm of counsel for all indemnified parties in each jurisdiction
who shall be approved by the Major Holder of the registration in respect of
which such indemnification is sought), and the indemnifying party shall be
liable for any expenses therefor. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (A) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under Sections 2.9(a), (b)
or (c), then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any Claim in such
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proportion as is appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and the indemnified party, on the other hand, with
respect to such offering of securities. 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. If, however, the allocation provided in the second preceding
sentence is not permitted by applicable law, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative faults but also
the relative benefits of the indemnifying party and the indemnified party as
well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 2.9(e) were to be determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in the preceding sentences of this Section 2.9(e).
The amount paid or payable in respect of any Claim shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim. 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 2.9(e) to the contrary, no indemnifying party (other than the Company)
shall be required pursuant to this Section 2.9(e) to contribute any amount in
excess of the net proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the losses, claims, damages or
liabilities of the indemnified parties relate, less
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the amount of any indemnification payment made by such indemnifying party
pursuant to Sections 2.9(b) and (c).
(f) The indemnity agreements contained herein shall be in addition to
any other rights to indemnification or contribution which any indemnified party
may have pursuant to law or contract and shall remain operative and in full
force and effect regardless of any investigation made or omitted by or on
behalf of any indemnified party and shall survive the transfer of the
Registrable Securities by any such party.
(g) The indemnification and contribution required by this Section 2.9
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
3. Underwritten Offerings.
3.1. Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering by the Holders pursuant to a registration
requested under Section 2.1 or 2.3, the Company shall enter into a customary
underwriting agreement with the underwriters. Such underwriting agreement
shall be satisfactory in form and substance to the Major Holder and shall
contain such representations and warranties by, and such other agreements on
the part of, the Company and such other terms as are generally included in the
underwriting agreement of such underwriters, including, without limitation,
indemnities and contribution agreements. Any Holder participating in the
offering shall be a party to such underwriting agreement and may, at its
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holder and that
any or all of the conditions precedent to the obligations of such underwriters
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under such underwriting agreement be conditions precedent to the obligations of
such Holder; provided, however, that the Company shall not be required to make
any representations or warranties with respect to written information
specifically provided by a selling Holder for inclusion in the registration
statement. Such underwriting agreement shall also contain such representations
and warranties by the participating Holders as are customary in agreements of
that type.
3.2. Piggyback Underwritten Offerings. In the case of a registration
pursuant to Section 2.2 hereof, if the Company shall have determined to enter
into an underwriting agreement in connection therewith, all of the Holders'
Registrable Securities to be included in such registration shall be subject to
such underwriting agreement. Any Holder participating in such registration
may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such Holder and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement be conditions precedent
to the obligations of such Holder. Such underwriting agreement shall also
contain such representations and warranties by the participating Holders as are
customary in agreements of that type.
4. General.
4.1. Adjustments Affecting Registrable Securities. The Company agrees
that it shall not effect or permit to occur any combination or subdivision of
shares which would adversely affect the ability of the Holder of any
Registrable Securities to include such Registrable Securities in any
registration contemplated by this Agreement or the marketability of such
Registrable Securities in any such registration. The Company agrees that it
will take all reasonable steps necessary to effect a subdivision of shares if
in the reasonable judgment of (a) the Holder of Registrable Securities that
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makes a Demand Registration Request or (b) the managing underwriter for the
offering in respect of such Demand Registration Request, such subdivision would
enhance the marketability of the Registrable Securities. Each Holder agrees to
vote all of its shares of capital stock in a manner, and to take all other
actions necessary, to permit the Company to carry out the intent of the
preceding sentence including, without limitation, voting in favor of an
amendment to the Company's Articles of Incorporation in order to increase the
number of authorized shares of capital stock of the Company.
4.2. Rule 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act in
respect of the Common Stock or securities of the Company convertible into or
exchangeable or exercisable for Common Stock, the Company covenants that (i) so
long as it remains subject to the reporting provisions of the Exchange Act, it
will timely file the reports required to be filed by it under the Securities
Act or the Exchange Act (including, but not limited to, the reports under
Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
Rule 144 under the Securities Act), and (ii) will take such further action as
any Holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (A) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (B) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
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4.3. Amendments and Waivers. This Agreement may be amended, modified,
supplemented or waived only upon the written agreement of the party against
whom enforcement of such amendment, modification, supplement or waiver is
sought.
4.4. Notices. Except as otherwise provided in this Agreement, all
notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written instrument delivered
in person or by telecopy, nationally recognized overnight courier or first
class registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth below or such other address as
may hereafter be designated in writing by such party to the other parties:
(i) if to the Company, to:
Hollywood Theater Holdings, Inc.
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx.
(ii) if to Beacon, to:
The Beacon Group III - Focus Value Fund, L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Shine, Esq.
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All such notices, requests, consents and other communications shall be deemed
to have been given when received.
4.5. No Inconsistent Agreements. Without the prior written consent of
Beacon, the Company will not, on or after the date of this Agreement, enter
into any agreement with respect to its securities which is inconsistent with
the rights granted in this Agreement or otherwise conflicts with the provisions
hereof, other than any lock-up agreement with the underwriters in connection
with any registered offering effected hereunder, pursuant to which the Company
shall agree not to register for sale, and the Company shall agree not to sell
or otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, for a specified period following
the registered offering.
4.6. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and the respective successors, personal
representatives and assigns of the parties hereto, whether so expressed or not.
If any Person shall acquire Registrable Securities from any Holder, in any
manner, whether by operation of law or otherwise, such transferee shall
promptly notify the Company and such Registrable Securities acquired from such
Holder shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such Person shall be entitled to
receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provision of this Agreement. If the
Company shall so request, any such successor or assign shall agree in writing
to acquire and hold the Registrable Securities acquired from such Holder
subject to all of the terms hereof. If any Holder shall acquire additional
Registrable Securities, such Registrable Securities shall be subject to all of
the terms, and
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entitled to all the benefits, of this Agreement. No Person other than a Holder
shall be entitled to any benefits under this Agreement, except as otherwise
expressly provided herein.
(b) This Agreement (with the documents referred to herein or delivered
pursuant hereto) embodies the entire agreement and understanding between the
parties hereto and supersedes all prior agreements and understandings relating
to the subject matter hereof.
(c) This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of New York without giving effect to the
conflicts of law principles thereof.
(d) The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof. All section
references are to this Agreement unless otherwise expressly provided.
(e) This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument.
(f) Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
(g) The parties hereto acknowledge that there would be no adequate
remedy at law if any party fails to perform any of its obligations hereunder,
and accordingly agree that each party, in addition to any other remedy to which
it may be entitled at law or in equity, shall be entitled to injunctive relief,
including specific performance, to enforce such obligations without the posting
of
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any bond, and, if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as of the date set forth above.
HOLLYWOOD THEATER HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
THE BEACON GROUP III -
FOCUS VALUE FUND, L.P.
By: Beacon Focus Value Investors, L.L.C.
By: Focus Value GP, Inc.
By: Focus Value GP, Inc.
-----------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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FIRST AMENDMENT
TO
REGISTRATION RIGHTS AGREEMENT
This First Amendment, dated as of April 25, 1997 (this "First
Amendment"), by and between HOLLYWOOD THEATER HOLDINGS, INC., a Delaware
corporation (the "Company") and THE BEACON GROUP III - FOCUS VALUE FUND, L.P.,
a Delaware limited partnership ("Beacon"), amends that certain Registration
Rights Agreement dated as of October 3, 1996 (the "Registration Rights
Agreement") by and between the Company and Beacon. Capitalized terms used
herein but not defined herein have the meanings assigned to such terms in the
Registration Rights Agreement.
WHEREAS, the Company and Beacon have entered into a Subscription
Agreement, dated as of the date hereof, pursuant to which the Company is
issuing, and Beacon is purchasing, shares of Series C Convertible Preferred
Stock, par value $.01 per share, of the Company (the "Series C Preferred") and
Common Stock of the Company;
WHEREAS, in connection with such issuance and purchase, the Company
and Beacon desire to amend the Registration Rights Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt of which is acknowledged, the parties hereto
agree as follows:
1. AMENDMENT TO RECITALS. The first recital of the Registration Rights
Agreement is hereby amended and restated to read in its entirety as follows:
WHEREAS, the Company and Beacon have entered into a Preferred Stock
and Common Stock Purchase Agreement (the "Purchase Agreement"), pursuant to
which the Company
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is agreeing to issue, and Beacon is agreeing to purchase, shares of Series A
Convertible Preferred Stock, par value $.01 per share of the Company (the
"Series A Preferred"), Series B Convertible Preferred Stock, $.01 par value per
share of the Company and Common Stock of the Company;
2. AMENDMENT TO SECTION 1. Section 1 of the Registration Rights Agreement
is hereby amended to include the following:
"Series B Preferred" means the Series B Convertible Preferred Stock,
$.01 par value per share of the Company, provided, that each share of Series C
Convertible Preferred Stock, $.01 par value per share of the Company ("Series C
Preferred") shall for all purposes hereunder be treated as shares of Series B
Preferred and, as such, shall be Registrable Securities, and all references
herein to Series B Preferred shall be deemed to include both the Series B
Preferred and Series C Preferred.
3. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
4. NO FURTHER AMENDMENT. Except as amended hereby, the Registration Rights
Agreement shall remain in full force and effect.
5. COUNTERPARTS. This First Amendment may be executed in separate
counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this First Amendment
to the Registration Rights Agreement on the day and year first above written.
HOLLYWOOD THEATER HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
THE BEACON GROUP III -
FOCUS VALUE FUND, L.P.
By: Beacon Focus Value Investors, L.L.C.
By: Focus Value GP, Inc.
By: /s/ Focus Value GP, Inc.
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
3
