Exhibit 4.4
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT is made as of March 21, 2002 among
Loews Cineplex Entertainment Corporation, a Delaware corporation (the
"COMPANY"), OCM Cinema Holdings, LLC ("OAKTREE"), and 1363880 Ontario Inc., a
corporation organized and existing under the laws of Ontario, Canada ("ONEX").
Unless otherwise provided in this Agreement, capitalized terms used herein have
the respective meanings given to them in Section 9 hereof.
The Company, Onex and Oaktree are also each party to a
Stockholders Agreement (as amended from time to time, the "STOCKHOLDERS
AGREEMENT"), dated the date hereof, which provides certain restrictions on the
ability of the Onex Group and the Oaktree Group to transfer the Class A Shares
and Class B Shares and other equity securities of the Company held by them, and
contains certain agreements concerning the governance of the Company. In order
to induce Oaktree and Onex to enter into the Stockholders Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Demand Registrations.
(a) Requests for Registration.
(i) Subject to Sections 1(b) and 1(c), and
to Section 1(a)(ii), at any time at least six months after the consummation of
an Initial Public Offering, one or more members of the Oaktree Group or one or
more members of the Onex Group, may request registration under the Securities
Act of all or part of their Registrable Securities on Form S-1 or any similar
long-form registration ("Long-Form Registrations") or, if available, on Form S-2
or S-3 or any similar short-form registration ("Short-Form Registrations").
Persons other than members of the Onex Group and members of the Oaktree Group
that become party to this Agreement as contemplated by Section 10(d) shall not
be entitled to request any Long-Form Registrations, but rather shall only be
entitled to request Demand Registrations that are Short-Form Registrations. Any
request for a Demand Registration by one or more members of the Oaktree Group
shall be made by (and may be withdrawn only by) Oaktree, and shall specify the
members of the Oaktree Group to which the request relates and the number of
Registrable Securities of each member of the Oaktree Group covered by such
request. Any request for a Demand Registration by one or more members of the
Onex Group shall be made by (and may be withdrawn only by) Onex, and shall
specify the members of the Onex Group to which the request relates and the
number of Registrable Securities of each such member of the Onex Group covered
by such request. Each request for a Demand Registration shall specify whether or
not it is intended that such registration will be underwritten. Within 10 days
after receipt of any such request, the Company will give notice of such
requested registration to all other holders of Registrable Securities and,
subject to Section 1(d), will include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after the receipt of the Company's
notice. In the event the registration is to be underwritten, the right of any
such other holders of Registrable Securities to participate therein shall be
conditioned upon their participation in such underwriting, as provided in
Section 7. All registrations requested pursuant to this Section 1(a) are
referred to herein as "Demand Registrations."
(ii) If the Company has not completed an
Initial Public Offering on or prior to the third anniversary of the date of this
Agreement, then from and after such third anniversary date, Oaktree on behalf of
the members of the Oaktree Group shall be entitled to request a Demand
Registration (any such request, an "IPO DEMAND REGISTRATION"); provided, that if
within the 15-day period following receipt of an IPO Demand Registration the
Company gives a written notice to Oaktree informing it that the Board of
Directors of the Company has determined to initiate an Initial Public Offering
(an "IPO NOTICE"), then the IPO Demand Registration shall be suspended until the
six-month anniversary of the date of the IPO Notice. If Oaktree delivers an IPO
Demand Registration, and after delivering a timely IPO Notice the Company
completes an Initial Public Offering on or before the six-month anniversary of
the date of delivery of the IPO Notice, then Oaktree's IPO Demand Registration
shall automatically be deemed to have been withdrawn, and shall not count as one
of the Oaktree Group's permitted Long-Form Registrations. If the Company
delivers an IPO Notice but fails to complete an Initial Public Offering on or
prior to the six-month anniversary of the date of delivery of its IPO Notice,
then on the day following the six-month anniversary of the date of the Company's
IPO Notice, Oaktree's request for an IPO Demand Registration shall be deemed to
be automatically reinstated (unless previously withdrawn by notice in writing by
Oaktree to the Company).
(b) Long-Form Registrations. Subject to Section
1(a)(ii), the members of the Onex Group, in the aggregate, and the members of
the Oaktree Group, in the aggregate, will each be entitled to request two
Long-Form Registrations. A registration will not count as one of the permitted
Long-Form Registrations until it has become effective (unless such Long-Form
Registration has not become effective due solely to the fault of, or (subject to
Section 1(e)) because it is withdrawn at the request of, the holders requesting
such registration, and such holders do not agree to bear all Registration
Expenses in connection therewith). All Long-Form Registrations shall be
underwritten registrations.
(c) Short-Form Registrations. In addition to the
Long-Form Registrations provided pursuant to Section 1(b), members of the Onex
Group and members of the Oaktree Group and any other holder of Registrable
Securities will be each entitled to request an unlimited number of Short-Form
Registrations; provided, however, that the aggregate number of Registrable
Securities for which any such Short-Form Registration has been requested must
have a reasonably anticipated price to the public of at least $5 million. Demand
Registrations will be Short-Form Registrations whenever the Company is permitted
to use any applicable short form registration statement. After the Company has
been subject to the reporting requirements of the Securities Exchange Act for at
least 12 months, the Company will use its reasonable best efforts to remain
eligible to use Short-Form Registrations for the sale of Registrable Securities.
- 2 -
(d) Priority on Demand Registrations. The Company
will not include in any Demand Registration any securities which are not
Registrable Securities without the prior written consent of the party requesting
the Demand Registration (which shall be Oaktree, in the case of a Demand
Registration requested by the Oaktree Group and Onex, in the case of a Demand
Registration requested by the Onex Group). If a Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration prior to the inclusion
of any securities which are not Registrable Securities the number of Registrable
Securities requested to be included (whether upon exercise of a Demand
Registration right or upon exercise of the right to participate in such a Demand
Registration), if any, which in the opinion of such underwriters can be sold
without adversely affecting the marketability of the offering (including the
price per share), pro rata among the respective holders thereof on the basis of
the number of Registrable Securities requested to be included by each such
holder.
(e) Restrictions on Demand Registrations. The Company
will not be obligated to effect any Demand Registration within six months after
the effective date of (i) a Demand Registration or (ii) a registration in which
the holders of Registrable Securities were given piggyback rights pursuant to
Section 2 and all Registrable Securities requested to be registered by such
holders were registered in connection with the exercise of the piggyback rights.
The Company may postpone for up to three months the filing or the effectiveness
of a registration statement for a Demand Registration if the Board of Directors
of the Company determines in good faith that such Demand Registration would
reasonably be expected to have a material adverse effect on any proposal or plan
by the Company or any of its Subsidiaries to engage in any financing
transaction, public offering of securities, acquisition of assets or any merger,
reorganization, consolidation, tender offer or similar transaction or in the
event of material corporate development (a "VALID BUSINESS REASON"); provided,
that in such event, the holders of Registrable Securities initially requesting
such Demand Registration will be entitled to withdraw such request, the Company
will pay all Registration Expenses in connection with such registration and, if
such request is for a Long-Form Registration and is withdrawn, such Long-Form
Registration will not count as one of the permitted Long-Form Registrations
hereunder. The Company shall give written notice to the holders of Registrable
Securities requesting a Demand Registration of its determination to postpone the
filing or effectiveness of a registration statement for such Demand Registration
as permitted herein, promptly following such determination. Thereafter, the
Company shall give prompt written notice to the holders of Registrable
Securities requesting a Demand Registration, at such time as the Valid Business
Reason for such postponement of the filing or effectiveness of such registration
statement no longer exists. Notwithstanding anything to the contrary contained
herein, the Company may not postpone the filing or effectiveness of a
registration statement under this Section 1(e) more than once in any twelve 12
month period.
(f) Selection of Underwriters. The party requesting a
Demand Registration (which shall be Oaktree, in the case of a Demand
Registration requested by the Oaktree Group and Onex, in the case of a Demand
Registration requested by the Onex Group)
- 3 -
will have the right to select the managing underwriter for the offering, subject
to the Company's approval, which will not be unreasonably withheld.
(g) Expenses of Demand Registration. The Company will
pay all Registration Expenses of a Demand Registration, whether or not it
becomes effective, absent an agreement of the type referred to in the
penultimate sentence of Section 1(b).
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes
to register any of its securities under the Securities Act (including secondary
registrations on behalf of the holders of its securities other than pursuant to
a Demand Registration) and the registration form to be used may be used for the
registration of Registrable Securities for sale by selling stockholders (a
"PIGGYBACK REGISTRATION"), the Company will give prompt written notice to all
holders of Registrable Securities of its intention to effect such a registration
and will include in such registration all Registrable Securities with respect to
which the Company has received written requests (including the intended method
of distribution of Registrable Securities by such requesting holders) for
inclusion therein within 15 days after the receipt of the Company's notice.
Notwithstanding anything to the contrary herein, the piggyback registration
rights provided under Section 2 shall not be available in connection with an
Initial Public Offering (including, without limitation, an Initial Public
Offering effected by the Company following its delivery of an IPO Notice under
Section 1(a)(ii)) or in connection with registrations by the Company for its own
account (i) on Form S-8 or any successor form thereto, (ii) filed solely in
connection with a dividend reinvestment plan or employee benefit plan covering
officers or directors of the Company or its Affiliates, or (iii) on Form S-4 or
any successor form thereto, in connection with a merger, acquisition, exchange
offer or similar corporate transaction.
(b) Expenses of Piggyback Registration. The Company
will pay all Registration Expenses of a Piggyback Registration, whether or not
it becomes effective.
(c) Priority on Primary Piggyback Registrations. If a
Piggyback Registration is an underwritten primary registration 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 exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering (including the price per
share), the Company will include in such registration (i) FIRST, the securities
the Company proposes to sell, (ii) SECOND, the Registrable Securities requested
to be included in such registration, pro rata among the holders of such
Registrable Securities on the basis of the number of Registrable Securities
requested to be included by each such holder, and (iii) THIRD, other securities
requested to be included in such registration.
(d) Priority on Secondary Piggyback Registrations. If
a Piggyback Registration is an underwritten secondary registration on behalf of
holders of the Company's securities, and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering
(including the price per share), the Company will include in such registration
(i) FIRST, pro rata among the
- 4 -
securities requested to be included therein by the holders requesting such
registration and the other Registrable Securities requested to be included in
such registration, on the basis of the number of securities requested to be
included by each such holder, and (ii) SECOND, other securities requested to be
included in such registration.
3. Holdback Agreements.
(a) If (i) the Company files a registration statement
(other than in connection with the registration of securities issuable pursuant
to an employee stock option, stock purchase or similar plan) with respect to
shares of its capital stock or Common Stock Equivalents, and (ii) with
reasonable prior notice, the Company (in the case of a nonunderwritten public
offering by the Company pursuant to such registration statement) advises the
holders of Registrable Securities in writing that a public sale or distribution
of such Registrable Securities would materially adversely affect such offering
(including the price per share) or the managing underwriter or underwriters (in
the case of any underwritten public offering by the Company pursuant to such
registration statement) advises the Company in writing (in which case the
Company shall notify the holders of Registrable Securities) that a public sale
or distribution of such Registrable Securities would materially adversely impact
such offering (including the price per share), then each holder of Registrable
Securities shall, to the extent not inconsistent with applicable law, refrain
from effecting any public sale or distribution of Registrable Securities
(including under Rule 144 under the Securities Act) beginning on the effective
date of such registration statement and ending 90 days thereafter (180 days in
the case of the Initial Public Offering). Each holder of Registrable Securities
agrees to enter into customary "lock up" agreements reasonably acceptable to it
in order to give effect to its agreements under this Section 3(a) in connection
with any relevant offering; provided, that no Holder shall be required to enter
into such "lock up" agreement unless and until each of the Company's executive
officers and directors and each Person who holds in excess of 20% of the
Company's outstanding capital stock (other than any such Person of the type of
Person listed in paragraph (b)(1)(b)(ii)(A) through (J) of Rule 13d-1 under the
Securities Exchange Act of 1934, as amended) execute a substantially equivalent
"lock up" agreement. The Company shall not terminate any "lockup" agreement with
a Person other than a Holder, or amend any "lock up" agreement with a Person
other than a Holder in a manner that is favorable to such Person, unless each
"lock up" agreement with a Holder is also terminated or (to the extent
applicable) similarly amended.
(b) If and to the extent requested by an underwriter
in an underwritten Demand Registration, the Company shall not effect any public
sale or distribution of its common stock or Common Stock Equivalents for a
period beginning on the effective date of any registration statement relating to
such Demand Registration and ending on the earlier of (i) the date on which all
Registrable Securities registered on such registration statement are sold and
(ii) 90 days after the effective date of any such Demand Registration.
Notwithstanding the foregoing, during such period, (x) the Company may grant
stock options pursuant to the Company's stock option plans, (y) the Company may
issue shares of its capital stock upon the exercise or conversion of Common
Stock Equivalents and (z) the Company may engage in a merger, acquisition,
exchange offer or other transaction of the type specified in Rule 145(a) under
the Securities Act, and issue its Common Stock or Common Stock Equivalents under
a registration on Form S-4 or other appropriate registration form in connection
therewith.
- 5 -
4. Registration Procedures. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
as soon as practicable after requested to do so by a holder and use its best
efforts to cause such registration statement to become effective as soon as
practicable (provided, that before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company will furnish to each
seller of Registrable Securities, each underwriter participating in any
disposition pursuant to such registration and to the counsel selected by the
holders of a majority of the Registrable Securities (including, if different,
counsel to the holders of a majority of the Registrable Securities held by the
Onex Group and counsel to the holders of a majority of the Registrable
Securities held by the Oaktree Group) included in the registration, covered by
such registration statement copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel);
(b) prepare and file with the Securities and Exchange
Commission 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 a period of not less than 120 days (or, in
the case of an underwritten registration, such lesser period as the managing
underwriter shall reasonably require) and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities
such reasonable number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus), all exhibits to such registration
statement and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided, that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller in writing of such Registrable
Securities, at any time when a prospectus relating thereto 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 an untrue
statement of a material fact or omits any material fact necessary to
- 6 -
make the statements therein not misleading, and, at the request of any such
seller, the Company will promptly prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be
listed on a securities exchange, and if already listed at such time, to be
listed on each securities exchange on which similar securities issued by the
Company are then listed (or the NASDAQ Stock Market provided that the applicable
listing requirements are satisfied);
(g) provide a transfer agent and registrar for all
such Registrable Securities by no later than the effective date of such
registration statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the underwriters reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(i) subject to receipt of such confidentiality
undertakings as the Company may reasonably require, make available for
inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such seller or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable but no
later than 15 months after the effective date of the Registration Statement, an
earnings statement covering the period of at least 12 months beginning with the
first day of the Company's first full 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;
(k) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any common stock included in such registration statement for
sale in any jurisdiction, the Company will use its reasonable best efforts
promptly to obtain the withdrawal of such order;
(l) use its best efforts to obtain comfort letters,
dated (i) the effective date of such registration statement, (ii) the date the
Registrable Securities being sold are delivered to the underwriters, if any, for
sale pursuant thereto and (iii) if required by the underwriters, if any, on or
prior to the date of any preliminary prospectuses, from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by comfort letters and, if the Registrable
Securities included in such
- 7 -
registration statement constitute at least 10% of the securities covered by such
registration statement, also covering such matters as the holders of a majority
of the Registrable Securities being sold (including, if different, the holders
of a majority of such Registrable Securities held by the Onex Group and a
majority of such Registrable Securities held by the Oaktree Group), may
reasonably request;
(m) use its best efforts to obtain a legal opinion of
the Company's outside counsel with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein and such other
documents relating thereto in customary form and covering such matters of the
type customarily covered by legal opinions of issuer's counsel;
(n) if requested by the managing underwriter or
underwriters or a holder of Registrable Securities being sold in connection with
an underwritten offering, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriters and the
holders of a majority of the Registrable Securities being sold (including, if
different, the holders of a majority of such Registrable Securities held by the
Onex Group and a majority of such Registrable Securities held by the Oaktree
Group), agree should be included therein relating to the plan of distribution
with respect to such Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being sold to
such underwriters, the purchase price being paid thereof by such underwriters
and with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
(o) cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends which are in a form eligible for
deposit with The Depository Trust Company; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any sale
of Registrable Securities to the underwriters;
(p) use its best efforts to cause the Registrable
Securities covered by the applicable registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriters, if any,
to consummate the disposition of such Registrable Securities;
(q) keep the counsel of holders of Registrable
Securities advised in writing as to the initiation and progress of any
registration hereunder;
(r) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD; and
- 8 -
(s) take all other steps reasonably necessary to
effect the registration of the Registrable Securities contemplated hereby.
5. Registration Expenses.
(a) All expenses incident to the Company's
performance of, or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses associated with filings
required to be made with the NASD (including, if applicable, the fees and
expenses of any "qualified independent underwriter" and its counsel as may be
required by the rules and regulations of the NASD), fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions, which shall be borne by the seller(s) of securities) and other
Persons retained by the Company (including, without limitation, any expenses
arising from any "cold comfort" letters or any special audits incident to or
required by any registration or qualification) (all such expenses being herein
called "REGISTRATION EXPENSES"), will be borne as provided in this Agreement,
except that the Company will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance or other
premiums for insurance obtained in connection with any registration hereunder
and the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed or on the NASDAQ Stock Market. The Company shall have no obligation to
pay any transfer taxes associated with the disposition of Registrable Securities
by a holder thereof.
(b) In connection with each Demand Registration the
Company will reimburse the holders of Registrable Securities covered by such
registration for the reasonable fees and disbursements of (i) one counsel chosen
by the party or parties requesting such Demand Registration (which shall be
Oaktree in the case of a Demand Registration requested by the Oaktree Group and
Onex in the case of a Demand Registration requested by the Onex Group) and (ii)
one counsel chosen by the holder or holders of a majority of the Registrable
Securities included in such registration (which shall be Onex if the Onex Group
constitutes the holder of such majority and Oaktree, if the Oaktree Group
constitutes the holder of such majority) if the application of this clause
(b)(ii) would result in a party or parties entitled to choose counsel that is
different from the party or parties requesting the Demand Registration.
(c) To the extent Registration Expenses are not
required to be paid by the Company, each holder of securities included in any
registration hereunder will pay those Registration Expenses allocable to the
registration of such holder's securities so included, and any Registration
Expenses not so allocable will be borne by all sellers of securities included in
such registration in proportion to the aggregate selling price of the securities
to be so registered.
6. Indemnification.
(a) Indemnification by the Company. The Company
agrees to indemnify, to the full extent permitted by law, each holder of
Registrable Securities, its officers,
- 9 -
directors, agents and employees and each Person who controls such holder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act) and each such Person's officers, directors, agents and employees,
against all losses, claims, damages, liabilities, costs (including, without
limitation, reasonable costs of preparation and investigation and reasonable
attorneys' fees) and expenses (collectively, "LOSSES") caused by or arising out
of any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or any violation by the Company of any federal, state or common
law applicable to the Company and relating to action required of, or inaction by
the Company in connection with such registration, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to at least the same extent as provided above with respect
to the indemnification of the holders of Registrable Securities.
(b) Indemnification by Holders of Registrable
Securities. In connection with any registration statement in which a holder of
Registrable Securities is participating pursuant to Section 1 or Section 2
hereof, each such holder will furnish to the Company in writing such information
as the Company reasonably requests for use in connection with any such
registration statement or prospectus and, to the full extent permitted by law,
will indemnify the Company, its directors, officers, agents and employees and
each Person who controls the Company (within the meaning of Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act) and each such
Person's officers, directors, agents and employees, against any Losses caused by
or arising out of any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by such holder which specifically states that it is for use in the
preparation of such registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto; provided, that the obligation to
indemnify will be individual to each holder and will be limited to the net
amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Indemnification Procedures. If any Person shall
be entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such indemnified
party shall give prompt written notice to the party from which such indemnity is
sought (the "INDEMNIFYING PARTY") of any claim or of the commencement of any
proceeding with respect to which such indemnified party seeks indemnification or
contribution pursuant hereto; provided, however, that the delay or failure to so
notify the indemnifying party shall not relieve the indemnifying party from any
obligation or liability except to the extent that the indemnifying party has
been prejudiced by such delay or failure. The indemnifying party shall have the
right, exercisable by giving written
- 10 -
notice to an indemnified party promptly after the receipt of written notice from
such indemnified party of such claim or proceeding, to assume, at the
indemnifying party's expense, the defense of any such claim or proceeding, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that an indemnified party shall have the right to employ separate counsel in any
such claim or proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the indemnifying party agrees in writing to pay such fees and
expenses; (ii) the indemnifying party fails promptly to assume the defense of
such claim or proceeding or fails to employ counsel reasonably satisfactory to
such indemnified party; or (iii) the named parties to any proceeding (including
impleaded parties) include both such indemnified party and the indemnifying
party, and such indemnifying party shall have been advised by counsel that there
may be one or more legal defenses available to it that are inconsistent with
those available to the indemnifying party such that a conflict of interest is
likely to exist among such indemnified party and any other indemnified parties
(in which case the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party). Whether or not such
defense is assumed by the indemnifying party, such indemnifying party shall not
be subject to any liability for any settlement made without its consent. The
indemnifying party shall not consent to entry of any judgment or enter into any
settlement unless (i) there is no finding or admission of any violation of any
rights of any Person and no effect on any other claims that may be made by or
against the indemnified party, (ii) the sole relief provided is monetary damages
that are paid in full by the indemnifying party and (iii) such judgment or
settlement includes as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release, in form and substance
reasonably satisfactory to the indemnified party, from all liability in respect
of such claim or litigation for which such indemnified party would be entitled
to indemnification hereunder.
(d) Contribution. If the indemnification provided for
in this Section 6 is unavailable to an indemnified party in respect of any
Losses (other than in accordance with its terms), then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party, on the one hand, and indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether any action in question, including any untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
taken by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such action, statement or
omission. The amount paid or payable by a party as a result of any Losses shall
be deemed to include any legal or other fees or expenses incurred by such party
in connection with any investigation or proceeding. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this Section
6(d) were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to herein.
Notwithstanding the provisions of this Section 6(d), an indemnifying party that
is a holder of Registrable Securities shall not be required to contribute any
amount which is in excess of the amount by which the total proceeds (net of all
underwriting discounts and commissions)
- 11 -
received by such holder from the sale of the Registrable Securities sold by such
holder in the applicable offering exceeds the amount of any damages that such
indemnifying party has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
7. Participation in Underwritten Registrations; Appointment of
Representatives.
(a) No Person may participate in any registration
hereunder which is underwritten unless such Person (i) agrees to sell such
Person's securities on the basis provided in any underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such
arrangements (including, without limitation, pursuant to the terms of any
overallotment or "green shoe" option requested by the managing underwriter(s))
and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
(b) Each Person that is participating in any
registration hereunder agrees that, upon receipt of any written notice from the
Company of the happening of any event of the kind described in Section 4(e),
such Person will forthwith discontinue the disposition of its Registrable
Securities pursuant to the registration statement until such Person's receipt of
the copies of a supplemented or amended prospectus as contemplated by Section
4(e).
(c) Each member of the Oaktree Group hereby
irrevocably appoints Oaktree as its representative and attorney-in-fact to
receive and give on such member's behalf all notices, to make on such member's
behalf all elections and determinations and to take on such member's behalf all
other actions, in each case, as may be contemplated to be so received, given,
made or taken by any member of the Oaktree Group by the provisions of this
Agreement. Each notice given to Oaktree under this Agreement by the Company or
any member of the Onex Group shall be deemed to have also been given to each
Person who is at the time of such notice member of the Oaktree Group. In the
event Agreement calls for Oaktree to deliver to the Company and/or any member(s)
of the Onex Group a notice which sets forth an election of any member of the
Oaktree Group or otherwise purports to deal with or bind any member of the
Oaktree Group or any securities held thereby, the Company and/or such member(s)
of the Onex Group shall be entitled to rely conclusively for all purposes of
this Agreement on such notice as conclusive and binding as to such member of the
Oaktree Group.
(d) Each member of the Onex Group hereby irrevocably
appoints Onex as its representative and attorney-in-fact to receive and give on
such member's behalf all notices, to make on such member's behalf all
determinations, and to take on such member's behalf all other actions, in each
case, as may be contemplated to be so received, given, made or taken by any
member of the Onex Group by the provisions of this Agreement. Each notice given
to Onex under this Agreement by the Company or any member of the Oaktree Group
shall be deemed to have also been given to each other Person who is at the time
of such notice member of the Onex Group. In the event Agreement calls for Onex
to deliver to the Company and/or any
- 12 -
member(s) of the Oaktree Group a notice which sets forth an election of any
member of the Onex Group or otherwise purports to deal with or bind any member
of the Onex Group or any securities held thereby, the Company and/or such
member(s) of the Oaktree Group shall be entitled to rely conclusively for all
purposes of this Agreement on such notice as conclusive and binding as to such
member of the Onex Group.
8. Current Public Information; Rule 144. At all times after
the Company has filed a registration statement with the Securities and Exchange
Commission pursuant to the requirements of either the Securities Act or the
Securities Exchange Act, the Company will file all reports required to be filed
by it under the Securities Act and the Securities Exchange Act and the rules and
regulations adopted by the Securities and Exchange Commission thereunder, and
will take such further action as any holder or holders of Registrable Securities
may reasonably request, all to the extent required to enable such holders to
sell Registrable Securities pursuant to Rule 144 adopted by the Securities and
Exchange commission under the Securities Act (as such rule may be amended from
time to time) or any similar rule or regulation hereafter adopted by the
Securities and Exchange Commission. The Company shall, upon the request of any
holder of Registrable Securities, deliver to such holder a written statement as
to whether it has complied with such requirements.
9. Definitions.
(a) "AFFILIATE" means, with respect to any Person,
any other Person that, directly or indirectly, through one or more
intermediaries, Controls, or is Controlled by, or is under common Control with,
such Person.
(b) "AGREEMENT" means this Registration Agreement, as
the same may be amended, supplemented or otherwise modified from time to time.
(c) "CLASS A SHARES" means shares of the Company's
Class A Common Stock, par value $0.01 per share.
(d) "CLASS B SHARES" means shares of the Company's
Class B Common Stock, par value $0.01 per share.
(e) "COMMON STOCK EQUIVALENTS" has the meaning given
thereto in the Stockholders Agreement.
(f) "COMPANY" has the meaning given thereto in the
preamble to this Agreement.
(g) "CONTROL" (including with correlative meaning,
the terms "Controlling", "Controlled by" and "under common Control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct of cause the direction of the management policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. Onex Corporation shall be deemed to "Control" all Persons Controlled
by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as long as ▇▇. ▇▇▇▇▇▇▇▇ Controls Onex.
- 13 -
(h) "DEMAND REGISTRATIONS" has the meaning given
thereto in Section 1(a)(i) of this Agreement.
(i) "INDEMNIFIED PARTY" has the meaning given thereto
in Section 6(c) of this Agreement.
(j) "INDEMNIFYING PARTY" has the meaning given
thereto in Section 6(c) of this Agreement.
(k) "INITIAL PUBLIC OFFERING" means the first firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act covering the offer and sale of the Class A
Shares or other shares of the capital stock of the Company to the public.
(l) "IPO DEMAND REGISTRATION" has the meaning given
thereto in Section 1(a)(ii) of this Agreement.
(m) "IPO NOTICE" has the meaning given thereto in
Section 1(a)(ii) of this Agreement.
(n) "LONG-FORM REGISTRATIONS" has the meaning given
thereto in Section 1(a) of this Agreement.
(o) "LOSSES" has the meaning given therein in Section
6(a) of this Agreement.
(p) "OAKTREE" has the meaning given thereto in the
preamble to this Agreement.
(q) "OAKTREE GROUP" means, collectively, Oaktree and
any Affiliate of Oaktree that acquires Shares or Common Stock Equivalents and
becomes a party to the Stockholders Agreement as required thereby.
(r) "ONEX" has the meaning given thereto in the
preamble to this Agreement.
(s) "ONEX GROUP" mean, collectively, Onex and any
Affiliate of Onex that acquires Shares or Common Stock Equivalents and becomes a
party to the Stockholders Agreement as required thereby.
(t) "PERSON" shall be construed broadly, and shall
include, without limitation, an individual, a partnership, an investment fund, a
limited liability company, a corporation, an association, a trust, a joint
venture, a joint stock company, an unincorporated organization, a governmental
entity or any department, agency or political subdivision thereof, and any other
entity of any nature whatsoever.
- 14 -
(u) "PIGGYBACK REGISTRATION" has the meaning given
thereto in Section 2(a) of this Agreement.
(v) "PUBLIC SALE" means any sale of the Company's
common stock to the public pursuant to an offering registered under the
Securities Act or to the public through a broker, dealer or market maker
pursuant to the provisions of Rule 144 adopted under the Securities Act.
(w) "REGISTRABLE SECURITIES" means if held by any
member of the Onex Group, any member of the Oaktree Group or any Person who
becomes a party to this Agreement as contemplated by Section 10(d), (i) any
Class A Shares (including Class A Shares issued or issuable upon conversion of
Class B Shares (including Class B Shares underlying any Common Stock
Equivalents) and upon the conversion of any other Common Stock Equivalents) and
(ii) all securities of the Company or any other Person acquired in respect of
any such Class A Shares, whether by stock split, stock dividend or other
distribution on such Class A Shares, or in connection with any exchange, merger,
recapitalization, consolidation, reorganization or other transaction to which
the Company is a party. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities when they have been
distributed to the public pursuant to a Public Sale. Further, Registrable
Securities shall cease to be Registrable Securities at any time the holder
thereof is able to sell all of such holder's securities that would otherwise be
Registrable Securities without restriction as to volume or manner of sale
pursuant to Rule 144(k) under the Securities Act (or any successor provision).
(x) "REGISTRATION EXPENSES" has the meaning given
thereto in Section 5(a) of this Agreement
(y) "SECURITIES ACT" means the Securities Act of
1933, as amended, or any similar federal law then in force.
(z) "SECURITIES AND EXCHANGE COMMISSION" includes any
governmental body or agency succeeding to the functions thereof.
(aa) "SHARES" has the meaning given thereto in the
Stockholders Agreement.
(bb) "SHORT-FORM REGISTRATIONS" has the meaning given
thereto in Section 1(a) of this Agreement.
(cc) "STOCKHOLDERS AGREEMENT" has the meaning given
thereto in the paragraph following the preamble to this Agreement.
(dd) "SUBSIDIARY" means, with respect to any Person,
any corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or Controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a limited liability company, partnership, association or other
business entity, a majority of the partnership or other similar
- 15 -
ownership interest thereof is at the time owned or Controlled, directly or
indirectly, by that Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a limited liability company, partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association or
other business entity gains or losses or shall be or Control a majority of the
managers or general partners of such limited liability company, partnership,
association or other business entity.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company
represents and warrants that it has not as of the date hereof granted to any
Person the right to request or require the Company to register any securities
issued by the Company, other than the rights granted to Onex and Oaktree herein.
The Company will not hereafter enter into any agreement with respect to its
securities that could by its terms require the Company to breach this Agreement.
(b) Remedies. Each of the parties hereto acknowledges
and agrees that no remedy at law would be adequate in the event of any breach of
this Agreement. Accordingly, in connection with any breach or anticipated breach
of the provisions of this Agreement, each party hereto agrees that, in addition
to any other remedy to which they may be entitled at law or in equity, the other
parties hereto shall be entitled to injunctive relief or a decree of specific
performance to enforce this Agreement (without bond or other security being
required unless the party seeking such remedy fails to demonstrate to an
appropriate court having jurisdiction that such party has a likelihood of
success on the merits), and each party hereto waives the defense in any such
action or proceeding brought to enforce this Agreement that there exists and
adequate remedy at law. Such remedies shall be cumulative and non-exclusive, and
shall be in addition to any other rights and remedies the parties may have under
this Agreement or otherwise.
(c) Amendments and Waivers. This Agreement may be
amended only by a written agreement duly executed on behalf of the Company,
Onex, and Oaktree each other party to this Agreement (other than the Company)
that is not a member of the Onex Group or the Oaktree Group. Any waiver of any
of the terms or conditions of this Agreement must be in writing and must be duly
executed by or on behalf of the party to be charged with such waiver (which may
be Onex, in the case of any member of the Onex Group, and which may be Oaktree,
in the case of any member of the Oaktree Group). The failure of a party to
exercise any of its rights hereunder or to insist upon strict adherence to any
term or condition hereof on any one occasion shall not be construed as a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
the terms and conditions of this Agreement at a later date. Further, no waiver
of any of the terms and conditions of this Agreement shall be deemed to, or
shall constitute a waiver of any other term or condition hereof (whether or not
similar). Notwithstanding the foregoing, (i) any Person who becomes a member of
the Onex Group or the Oaktree Group following the date of this Agreement shall,
without the consent of the Company, Onex and Oaktree, be permitted to join in
and become a party to this Agreement in such capacity; provided, that such
Person executes a written agreement reasonably satisfactory to the Company and
to Onex (in the case of members of the Oaktree Group) or Oaktree (in the case of
members of the Onex Group) agreeing to become a party hereto and to be bound by
the terms,
- 16 -
conditions, obligations and restrictions set forth herein and (ii) the consent
of the Company, Onex and Oaktree shall not be required for any Person to join in
and become a party to this Agreement in the manner contemplated by Section 10(d)
below.
(d) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
transferees, successors, assigns, heirs and administrators; provided, that this
Agreement and the registration rights provided hereunder may not be assigned or
assumed (including by operation of law or sale or other transfer of Registrable
Securities) except as and to the extent expressly provided herein. In the event
that any Person other than a member of the Onex Group or a member of the Oaktree
Group becomes the holder of Shares or Common Stock Equivalents in a transaction
in which all applicable requirements of the Stockholders Agreement have been
duly complied with and the transferor is a party to this Agreement and notifies
the Company in writing that such Person is to have registration rights
hereunder, then such Person shall be entitled to join in and become a party to
this Agreement; provided, that such Person shall, as a condition to such
joinder, execute and deliver to the Company, Onex and Oaktree, a written
agreement in substantially the form attached as EXHIBIT A hereto, under which
such Person agrees to join in and become a party to this Agreement and to be
bound by each of the terms, conditions, restrictions and obligations hereunder,
and enjoy the registration rights provided herein.
(e) Severability. It is the desire and intent of the
parties hereto that the provisions of this Agreement be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular
provision of this Agreement shall be adjudicated by a court of competent
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
(f) Counterparts; Facsimile Signatures. This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more counterparts have been signed by each of the parties and delivered (by
facsimile or otherwise) to the other parties, it being understood that all
parties need not sign the same counterpart. Any counterpart or other signature
hereupon delivered by facsimile shall be deemed for all purposes as constituting
good and valid execution and delivery of this Agreement by such party.
(g) Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(h) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed entirely within such State.
- 17 -
(i) Consent to Jurisdiction. Each party irrevocably
submits to the non-exclusive jurisdiction of (i) the courts of the State of
Delaware, and (ii) the United States District Court for the District of
Delaware, for the purposes of any suit, action or other proceeding arising out
of this Agreement or any transaction contemplated hereby. Each party agrees to
commence any such action, suit or proceeding either in the United States
District Court for the District of Delaware or, if such suit, action or other
proceeding may not be brought in such court for jurisdictional reasons, in the
courts of the State of Delaware. Each party that at any time after the date
hereof is not a resident of the State of Delaware or does not maintain an agent
for service of process in the State of Delaware hereby irrevocably designates,
appoints and empowers The Corporation Trust Company, having its address at the
date hereof at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (New Castle County)
U.S.A., as its agent for service of process to receive for and on its behalf
service of process in the State of Delaware in any legal action, suit or
proceeding with respect to this Agreement. It is understood that a copy of any
such process served on such process agent shall be promptly forwarded by air
mail by such process agent and the person commencing such proceeding to the
relevant party at its address specified in Section 8.7 of the Stockholders
Agreement, but the failure of the relevant party to receive such copy shall not
affect in any way the service of such process as aforesaid. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law. Each party irrevocably and unconditionally
waives any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby in (A) the
courts of the State of Delaware, or (B) the United States District Court for the
District of Delaware, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(j) Notices. All notices, demands or other
communications to be given or delivered under or by reason of the provisions of
this Agreement shall be in writing, and shall be given or delivered in the
manner and to the Persons set forth in the Stockholders Agreement. Any such
notices, demands or other communications shall be deemed to have been duly given
or delivered at the times determined under of the Stockholders Agreement.
(k) Entire Agreement. This Agreement sets forth and
constitutes the complete and entire understanding of the parties hereto with
respect to its subject matter and supersedes any an all prior written or oral
agreements, discussions, negotiations, understandings, arrangements or
undertakings among the parties with respect to such subject matter.
(l) Recapitalizations, Exchanges, etc. The provisions
of this Agreement shall apply to the full extent set forth herein with respect
to (i) the shares of Common Stock (as defined in the Stockholders Agreement) and
(ii) any and all shares of common stock of the Company into which the shares of
Common Stock are converted, exchanged or substituted in any recapitalization or
other capital reorganization by the Company, and shall be appropriately adjusted
for any stock dividends, splits, reverse splits, combinations, recapitalizations
and the like occurring with respect to the Common Stock after the date hereof.
If as a result of any
- 18 -
merger, consolidation, sale of assets or other transaction involving the
Company, the holders of Registrable Securities hereunder would hold Registrable
Securities of a successor or assign of the Company, then the Company shall cause
any such successor or assign of the Company to enter into a new registration
rights with the holders of Registrable Securities hereunder covering such
Registrable Securities of such successor or assign of the Company, which
agreement shall provide for registration rights, taken as a whole, that are no
less favorable than the registration rights provided in this Agreement,
(m) Further Assurances. Each of the parties shall
execute such documents and perform such further acts as may be reasonably
required or necessary to carry out or to perform the provisions of this
Agreement.
- 19 -
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Agreement as of the date first written above.
LOEWS CINEPLEX ENTERTAINMENT
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
General Counsel
1363880 ONTARIO INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
OCM CINEMA HOLDINGS, LLC
By: Oaktree Capital Management, LLC, its
Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
- 20 -
Exhibit A
REGISTRATION AGREEMENT JOINDER
Reference is made to the Registration Agreement (as amended,
supplemented or otherwise modified from time to time, the "REGISTRATION
AGREEMENT"), dated as of March 21, 2002, among Loews Cineplex Entertainment
Corporation, a Delaware corporation, OCM Cinema Holdings, LLC, a Delaware
limited liability company, and 1363880 Ontario Inc., a corporation organized and
existing under the laws of Ontario, Canada. Capitalized terms used but not
otherwise defined herein have the respective meanings given to them in the
Registration Agreement.
This Registration Agreement Joinder is being executed and delivered by
the undersigned under and as contemplated by Section 10(d) of the Registration
Agreement. The undersigned hereby represents and warrants to the Company and to
the other Persons that are party to the Registration Agreement as of the date
hereof, that the undersigned has become the holder of Shares and/or Common Stock
Equivalents in a transaction in which all applicable requirements of the
Stockholders Agreement were duly complied with.
The transferor to the undersigned of such Shares and/or Common Stock
Equivalents has notified the Company in writing that the undersigned is to have
registration rights hereunder and that the undersigned shall be entitled to join
in and become a party to the Registration Agreement. Accordingly, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned, intending to be legally bound, by executing this
Registration Agreement Joinder below hereby agrees to become a party to the
Registration Agreement as of the date hereof, and to be bound by each of the
terms, conditions, restrictions, provisions and obligations of the Registration
Agreement. Upon execution and delivery of this Registration Agreement Joinder,
the undersigned shall, on the terms and subject to the conditions of the
Registration Agreement, be entitled to the benefit of the registration rights
specified therein.
IN WITNESS WHEREOF, the undersigned has executed this Registration
Agreement Joinder as of the ____ day of ___________, 20__.
[ ]
By:________________________________
Name:
Title:
- 21 -
