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EXHIBIT 4.9
FORM OF SALE PARTICIPATION AGREEMENT
, 199
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To: The Person whose name
is set forth on the
signature page hereof
Dear Sir or Madam:
You have entered into a Management Stockholder's Agreement,
dated as of _________ __, 199_ (the "Stockholder's Agreement"), with Regal
Cinemas, Inc., a Tennessee corporation (the "Company"), relating to your
purchase and ownership of shares of the common stock, no par value, of the
Company (the "Common Stock"). The undersigned Controlling Shareholders (as
defined in the Stockholder's Agreement) also own shares of Common Stock and
hereby agree with you as follows, effective upon the Base Date (as defined in
the Stockholder's Agreement):
1. In the event that at any time any of the Controlling
Shareholders (each a "Selling Partnership" and, collectively, together with
their respective affiliates to the extent set forth in numbered paragraph 11
hereto, the "Selling Partnerships") proposes to sell for cash or any other
consideration any shares of Common Stock of the Company owned by it in any
transaction other than a Public Offering (as defined in the Stockholder's
Agreement) or a sale to another Selling Partnership, an affiliate of a Selling
Partnership or DLJ Merchant Banking Partners, II, L.P. or any affiliate
thereof, the Selling Partnership will notify you or your Management
Stockholder's Estate or Management Stockholder's Trust (as such terms are
defined in Section 2 of the Stockholder's Agreement; and collectively with you,
the "Management Stockholder Entities"), as the case may be, in writing (a
"Notice") of such proposed sale (a "Proposed Sale") and the material terms of
the Proposed Sale as of the date of the Notice (the "Material Terms") promptly,
and in any event not more than 10 days after the execution of the definitive
agreement relating to the Proposed Sale, if any (the "Sale Agreement"). If
within 10 days of the Management Stockholder Entities' receipt of such Notice
the Selling Partnership receives from a Management Stockholder Entity a written
request (a "Management Stockholder Request") to include Common Stock held by a
Management Stockholder Entity in the Proposed Sale (which Management
Stockholder Request shall be irrevocable unless (a) there shall be a material
adverse change in the Material Terms or (b) otherwise mutually agreed to in
writing by the Management Stockholder Entity and the Selling Partnership), the
Common Stock held by you will be so
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included as provided herein; provided that only one Management Stockholder
Request, which shall be executed by such Management Stockholder Entity, may be
delivered with respect to any Proposed Sale for all Common Stock held by a
Management Stockholder Entity. Promptly after the consummation of the
transactions contemplated thereby, the Selling Partnership will furnish the
Management Stockholder Entities with a copy of the Sale Agreement, if any.
2. The number of shares of Common Stock which the
Management Stockholder Entities will be permitted to include in a Proposed Sale
pursuant to a Management Stockholder Request will be the lesser of (a) the sum
of the number of shares of Common Stock then owned by the Management
Stockholder Entities plus all shares of Common Stock which you are then
entitled to acquire under an unexercised option to purchase shares of Common
Stock, to the extent such option is then exercisable or would become
exercisable as a result of the consummation of the Proposed Sale and (b) the
sum of the shares of Common Stock then owned by the Management Stockholder
Entities plus all shares of Common Stock which you are entitled to acquire
under an unexercised option to purchase shares of Common Stock, whether or not
fully exercisable, multiplied by a percentage calculated by dividing the
aggregate number of shares of Common Stock which a Selling Partnership or the
Selling Partnerships propose to sell in the Proposed Sale (after giving effect
to the applicable provisions of any written agreement between the Selling
Partnerships and any holder of shares of Common Stock that gives the right to
such holder to participate in a sale of Common Stock by the Selling
Partnerships) by the total number of shares of Common Stock owned by the
Selling Partnerships. If one or more holders of shares of Common Stock who
have been granted the same rights granted to the Management Stockholder
Entities hereunder elect not to include the maximum number of shares of Common
Stock which such holders would have been permitted to include in a Proposed
Sale (the "Eligible Shares"), then the Selling Partnerships, or such remaining
holders of shares of Common Stock, or any of them, may sell in the Proposed
Sale a number of additional shares of Common Stock owned by any of them equal
to their pro rata portion of the number of Eligible Shares not included in the
Proposed Sale, based on the relative number of shares of Common Stock then held
by each such holder, and such additional shares of Common Stock which any such
holder or holders propose to sell shall not be included in any calculation made
pursuant to this Paragraph 2 for the purpose of determining the number of
shares of Common Stock which the Management Stockholder Entities will be
permitted to include in a Proposed Sale. The Selling Partnerships, or any of
them, may sell in the Proposed Sale additional shares of Common Stock owned by
them equal to any remaining Eligible Shares which will not be included in the
Proposed Sale pursuant to the foregoing.
3. If the Selling Partnerships receive an offer from a
person to purchase in a Proposed Sale (a) at least a majority of the shares of
Common Stock then outstanding or (b) all or substantially all of the shares of
Common Stock owned collectively by the Selling Partnerships, and such offer is
accepted by the Selling Partnerships, then each Management Stockholder Entity
hereby agrees that, if requested by the Selling Partnerships ("Selling
Partnership Request"), each Management Stockholder Entity will sell in such
Proposed Sale on the same terms and conditions (including, without limitation,
time of payment and form of consideration) as to be paid and given to the
Selling Partnerships, the number of shares of
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Common Stock equal to the number of shares of Common Stock owned by the
Management Stockholder Entities (plus all shares of Common Stock which you are
then entitled to acquire under an unexercised option to purchase shares of
Common Stock, to the extent such option is then exercisable or would become
exercisable as a result of the consummation of the Proposed Sale) multiplied by
(x) in the case of a Proposed Sale described in clause (a) above, the
percentage of the then outstanding shares of Common Stock to which the Proposed
Sale is applicable or (y) in the case of a Proposed Sale described in clause
(b) above, the percentage of the shares of Common Stock owned by the Selling
Partnerships to which the Proposed Sale is applicable.
4. (a) Except as may otherwise be provided herein,
shares of Common Stock subject to a Management Stockholder Request or a Selling
Partnership Request will be included in a Proposed Sale pursuant hereto and in
any agreements with purchasers relating thereto on the same terms and subject
to the same conditions applicable to the shares of Common Stock which the
Selling Partnership proposes to sell in the Proposed Sale. Such terms and
conditions shall include, without limitation: the sales price; the payment of
fees, commissions, adjustment to purchase price and expenses; and the provision
of, and representation and warranty as to, information requested by the Selling
Partnership; and the provision of requisite indemnifications; provided that any
fees, commissions, adjustments to purchase price, expenses or indemnification
provided by the Management Stockholder Entities shall be on a pro rata basis.
(b) In the event of a transaction (such as a merger
or consolidation) involving the Company which results in a Change of Control
(as defined in Section 15 of the Stockholder's Agreement) but is not a Proposed
Sale (a "Proposed Transaction"), you agree on behalf of the Management
Stockholder Entities, to bear your pro rata share of any fees, commissions,
adjustments to purchase price, expenses or indemnities borne by the Selling
Partnership.
(c) Your pro rata share of any amount pursuant to
Paragraphs 4(a) or (b) shall be based upon the number of shares of Common Stock
owned by the Management Stockholder Entities plus the number of shares of
Common Stock you would have the right to acquire under unexercised options
which are then vested or would become vested as a result of the Proposed Sale
or Proposed Transaction.
(d) The Selling Partnerships shall be entitled to
estimate the amount of fees, commissions, adjustments to purchase price,
expenses or indemnities in connection with any Proposed Sale or Proposed
Transaction and to withhold such amounts from payments to be made to the
Management Stockholder Entities at the time of closing of such Proposed Sale or
Proposed Transaction; provided that (i) such estimate shall not preclude the
Selling Partnerships from recovering additional amounts from the Management
Stockholder Entities in respect of such fees, commissions, adjustments to
purchase price, expenses or indemnities and (ii) the Selling Partnerships shall
reimburse the Management Stockholder Entities to the extent actual amounts are
ultimately less than the estimated amounts.
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5. Upon delivering a Management Stockholder Request or
receiving a Selling Partnership Request, the Management Stockholder Entities
will, if requested by a Selling Partnership, execute and deliver a custody
agreement and power of attorney in form and substance satisfactory to the
Selling Partnership with respect to the shares of Common Stock which are to be
sold by the Management Stockholder Entities pursuant hereto (a "Custody
Agreement and Power of Attorney"). The Custody Agreement and Power of Attorney
will provide, among other things, that the Management Stockholder Entities will
deliver to and deposit in custody with the custodian and attorney-in-fact named
therein a certificate or certificates representing such shares of Common Stock
(duly endorsed in blank by the registered owner or owners thereof) and
irrevocably appoint said custodian and attorney-in-fact as the Management
Stockholder Entities' agent and attorney-in-fact with full power and authority
to act under the Custody Agreement and Power of Attorney ont he Management
Stockholder Entities' behalf with respect to the matters specified therein.
6. The Management Stockholder Entities' right pursuant
hereto to participate in a Proposed Sale shall be contingent on the Management
Stockholder Entities' strict compliance with each of the applicable provisions
hereof and the Management Stockholder Entities' willingness to executed such
documents in connection therewith as may be reasonably requested by a Selling
Partnership. The Controlling Shareholders right pursuant hereto to require the
participation of the Management Stockholder Entities in a Proposed Sale shall
be contingent on the Controlling Shareholders' strict compliance with each of
the applicable provisions hereof
7. The obligations of the Selling Partnerships hereunder
shall extend only to the Management Stockholder Entities and no other of the
Management Stockholder Entities' successors or assigns shall have any rights
pursuant hereto.
8. This Agreement shall terminate and be of no further
force and effect on the fifth anniversary of the first occurrence of a Public
Offering (as defined in the Stockholder's Agreement).
9. All notices and other communications provided for
herein shall be in writing and shall be deemed to have been duly given when
delivered to the party to whom it is directed:
(a) If to the Selling Partnerships, to them at
the following addresses:
Kohlberg Kravis Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
-and-
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Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
-and-
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
(b) If to you, to you at your address set forth
in the Stockholder's Agreement;
(c) If to your Management Stockholder's Estate or
Management Stockholder's Trust, at the
address provided to the Selling Partnerships
by such entity;
or at such other address as any of the above shall have specified by notice in
writing delivered to the others by certified mail.
10. The laws of the state of New York shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. l Any suit, actio or proceeding against you with respect to this
Agreement, or any judgment entered by any court in respect of any thereof, may
be brought in any court of competent jurisdiction int he State of New York, as
the Selling Partnerships may elect in their sole discretion, and you hereby
submit to the non exclusive jurisdiction of such courts for the propose of any
such suit, action, proceeding or judgment. You hereby irrevocably waive any
objections which you may now or hereafter have to the laying of the venue of
any suit, action or proceeding arising out of or relating to this Agreement
brought in any court of competent jurisdiction in the State of New York, and
hereby further irrevocably waive any claim that any such suit, action or
proceeding brought in any such court has been brought in any inconvenient for
us. No suit, action or proceeding against the Selling Partnerships with
respect to this Agreement may be brought in any court, domestic or foreign, or
before any similar domestic authority other than in a court of competent
jurisdiction in the State of New York, and you hereby irrevocably waive any
right
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which you may otherwise have had to bring such an action in any other court,
domestic or foreign, or before any similar domestic or foreign authority. The
Selling Partnerships hereby submit to the jurisdiction of such courts for the
purpose of any such suit, action or proceeding.
11. If a Selling Partnership transfers its interest in
the Company to an affiliate of such Selling Partnership, such affiliate shall
succeed to all of such Selling Partnership's rights and obligations hereunder.
It is the understanding of the undersigned that you are aware
that no Proposed Sale or Proposed Transaction presently is contemplated and
that such a transaction may never occur.
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If the foregoing accurately sets forth our agreement, please
acknowledge your acceptance thereof in the space provided below for that
purpose.
Very truly yours,
KKR 1996 FUND L.P.
By: KKR Associates 1996 L.P., its
general partner
By: KKR 1996 GP LLC, its general
partner
By:
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Authorized Signatory
KKR PARTNERS II, L.P.
By: KKR Associates, L.P. its
general partner
By:
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Authorized Signatory
REGAL EQUITY PARTNERS, L.P.
By: TOH/RANGER, LLC, its general
partner
By:
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Authorized Signatory
Accepted and Agreed to:
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(Print Your Name)
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(Signature)
