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EXHIBIT 10.16
STOCKHOLDERS' AND REGISTRATION RIGHTS AGREEMENT
STOCKHOLDERS' AND REGISTRATION RIGHTS AGREEMENT dated as of
May 27, 1998 (this "Agreement") among Regal Cinemas, Inc., a Tennessee
corporation (the "Company"), KKR 1996 Fund L.P., a Delaware limited partnership
("KKR Fund"), KKR Partners II, L.P. ("KKR Partners II" and, together with the
KKR Fund, the "KKR Partnerships"), Regal Equity Partners, L.P., a Delaware
limited partnership and an affiliate of Hicks, Muse, Xxxx & Xxxxx Incorporated
(the "HM Partnership" and, together with the KKR Partnerships, the "KKR/HM
Partnerships") and the Persons listed on the signature pages hereof under the
caption "DLJ Entities" (each, a "DLJ Entity" and, collectively, the "DLJ
Entities").
RECITALS:
A. The Company, Screen Acquisition Corp. ("Holdco I")
and Monarch Acquisition Corp. ("Holdco II" and, together with Holdco I, the
"Holdcos") are parties to an Agreement and Plan of Merger dated as of January
19, 1998, as amended by the Amendment Agreement, dated as of May 8, 1998, among
the Company, Holdco I and Holdco II (as so amended, the "Merger Agreement").
B. Pursuant to the Merger Agreement, the Holdcos will be
merged with and into the Company (the "Merger") and (i) each share of common
stock, no par value, of the Company outstanding immediately prior to the Merger
(other than shares of common stock of the Company owned by the Company or the
Holdcos) will be converted into the right to receive $31.00 per share in cash,
(ii) each outstanding share of common stock, par value $.01 per share, of
Holdco I will be converted into one share of Common Stock (as defined below)
and 56.468990 shares of Preferred Stock (as defined below) and (iii) each
outstanding share of common stock, par value $.01 per share, of Holdco II will
be converted into one share of Common Stock and 86.468990 shares of Preferred
Stock. The Preferred Stock will have the rights, privileges and other terms
set forth in the Articles of Amendment to the Charter of the Company in the
form attached hereto as Exhibit A.
C. Pursuant to a Stock Subscription Agreement dated as
of May 27, 1998 among the Holdco, and the DLJ Entities, immediately prior to
the Merger, the DLJ Entities will purchase an aggregate of 17.400688615 shares
of common stock, par value $.01 per share, of Holdco I.
D. The KKR Partnerships, the HM Partnership and the DLJ
Entities wish to provide for certain matters relating to their respective
holdings of Common Stock and Preferred Stock.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
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ARTICLE I. INTRODUCTORY MATTERS
1.1. Defined Terms. In addition to the terms defined
elsewhere herein, the following terms have the following meanings when used
herein with initial capital letters:
"Affiliate" shall have the meaning given to that term in Rule
405 promulgated under the Securities Act and shall include members of
a Person's immediate family or trusts for the benefit of members of
the immediate family of such Person; provided that officers, directors
or employees of the Company will not be deemed to be Affiliates of a
stockholder of the Company for purposes hereof solely by reason of
being officers, directors or employees of the Company.
"Affiliated Employee Benefit Trust" means any trust that is a
successor to the assets held by a trust established under an employee
benefit plan subject to the Employee Retirement Income Security Act of
1974, as amended, or any other trust established directly or
indirectly under such plan or any other such plan having the same
sponsor.
"Agreement" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with the terms hereof.
"Assumption Agreement" means a writing reasonably satisfactory
in form and substance to the KKR/HM Partnerships whereby a Permitted
Transferee of shares of Common Stock becomes a party to, and agrees to
be bound to the same extent as its transferor, by the terms of this
Agreement.
"Board" means the Board of Directors of the Company.
"Business Day" means a day other than a Saturday, Sunday,
federal or New York State holiday or other day on which commercial
banks in New York City are authorized or required by law to close.
"Common Stock" means the shares of common stock, no par value
per share, of the Company after the consummation of the Merger,
including the shares of such common stock issuable upon conversion of
the Preferred Stock, and any stock into which such common stock may
thereafter be converted or exchanged.
"Designated Affiliate" means, in the case of any DLJ Entity
(i) any other DLJ Entity, (ii) any general or limited partner of any
DLJ Entity (a "DLJ Partner"), and any corporation, partnership,
Affiliated Employee Benefit Trust or other entity that is an Affiliate
of any DLJ Partner (collectively, the "DLJ Affiliates"), (iii) any
managing director, general partner, director, limited partner, officer
or employee of any DLJ Entity or of any DLJ Affiliate, or the heirs,
executors, administrators, testamentary trustees, legatees or
beneficiaries of any of the foregoing persons referred to in this
clause (iii) (collectively, "DLJ Associates"), (iv) a trust, the
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beneficiaries of which, or a corporation, limited liability company or
partnership, the stockholders, members of general or limited partners
of which, include only XXX Xxxxxxxx, XXX Xxxxxxxxxx, XXX Associates,
their spouses or their lineal descendants or (v) a voting trustee for
one or more DLJ Entities, DLJ Affiliates or DLJ Associates under the
terms of a voting trust designed to conform with the requirements of
the insurance laws of the State of New York.
"DLJ Parent" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc., or any
successor thereto.
"DLJ Subsidiaries" means, collectively, the direct or indirect
subsidiaries of DLJ Parent.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as the
same may be amended from time to time.
"KKR/HM Registrable Securities" means Registrable Securities
(as defined in the KKR/HM Registration Rights Agreement) of the KKR/HM
Partnerships or their respective Affiliates.
"KKR/HM Registration Rights Agreement" means the Registration
Rights Agreement dated as of May 27, 1998 among the Company, the KKR
Partnerships and the HM Partnership, as such agreement may be amended,
supplemented or otherwise modified from time to time.
"Permitted Transferee" means any Person to whom shares of
Common Stock or Preferred Stock are Transferred in a Transfer in
accordance with Section 2.2 or otherwise not in violation of this
Agreement and who is required to, and does, enter into an Assumption
Agreement, and includes any Person to whom a Permitted Transferee of
any DLJ Entity (or a Permitted Transferee of a Permitted Transferee)
so further Transfers shares of Common Stock or Preferred Stock and who
is required to, and does, become bound by the terms of this Agreement.
"Person" means any individual, corporation, limited liability
company, partnership, trust, joint stock company, business trust,
unincorporated association, joint venture, governmental authority or
other legal entity of any nature whatsoever.
"Preferred Stock" means the shares of Series A Convertible
Preferred Stock, no par value, of the Company after the consummation
of the Merger.
"Public Offering" means the sale of shares of Common Stock to
the public pursuant to an effective registration statement (other than
a registration statement on Form S-4 or S-8 or any similar or
successor form) filed under the Securities Act.
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"Registrable Securities" means (i) any Common Stock held by a
DLJ Entity or any Permitted Transferees, including shares issued or
issuable upon the conversion, exchange or exercise of any security
convertible, exchangeable or exercisable into Common Stock (including
Preferred Stock), (ii) any Common Stock issued as (or issuable upon
the conversion or exercise of any warrant, right, option or other
convertible security which is issued as) a dividend or other
distribution with respect to, or in exchange for, or in replacement
of, such Common Stock, and (iii) any Common Stock or any security
convertible, exchangeable or exercisable into Common Stock which may
be issued or distributed in respect thereof by way of stock dividend
or stock split or other distribution, recapitalization or
reclassification. For purposes of this Agreement, any Registrable
Securities will cease to be Registrable Securities when (A) a
registration statement covering such Registrable Securities has been
declared effective and such Registrable Securities have been disposed
of pursuant to such effective registration statement, (B) such
Registrable Securities shall have been offered and sold pursuant to
Rule 144 (or any similar provision then in effect) under the
Securities Act, (C) such Registrable Securities are sold by a Person
in a transaction in which rights under the provisions of this
Agreement are not assigned in accordance with this Agreement, or (D)
such Registrable Securities cease to be outstanding.
"Registration Expenses" means any and all expenses incident to
the performance by the Company of its obligations under Sections 3.1
and 3.2, including without limitation (i) all SEC, stock exchange, or
National Association of Securities Dealers, Inc. (the "NASD")
registration and filing fees (including, if applicable, the fees and
expenses of any "qualified independent underwriter," as such term is
defined in Rule 2720 of the NASD, and of its counsel), (ii) all fees
and expenses of complying with securities or blue sky laws (including
fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) all fees and expenses
incurred in connection with the listing of the Registrable Securities
on any securities exchange and all rating agency fees, (v) the fees
and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such
performance and compliance, (vi) any fees and disbursements of
underwriters customarily paid by the issuers or sellers of securities,
including liability insurance if the Company so desires or if the
underwriters so require, and the reasonable fees and expenses of any
special experts retained in connection with the requested
registration, but excluding underwriting discounts and commissions and
transfer taxes, if any, (vii) the reasonable out-of-pocket expenses of
not more than one law firm incurred by all the DLJ Entities and their
Permitted Transferees in connection with the registration, and (viii)
the costs and expenses of the Company relating to analyst and investor
presentations or any "road show" undertaken in connection with the
registration and/or marketing of the Registrable Securities; provided
that nothing in this clause (viii) shall obligate the Company to
engage or participate in any such presentations or road show.
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"Registration Rights Holders" means, collectively, the DLJ
Entities and their Permitted Transferees.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as the same may
be amended from time to time.
"Transfer" means a transfer, sale, assignment, pledge,
hypothecation or other disposition, whether directly or indirectly
pursuant to the creation of a derivative security, the grant of an
option or other right, the imposition of a restriction on disposition
or voting or transfer by operation of law.
1.2. Construction. (a) The language used in this Agreement
will be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction will be applied against any party.
Unless the context otherwise requires: (i) "or" is disjunctive but not
exclusive, (ii) words in the singular include the plural, and in the plural
include the singular, and (iii) the words "hereof", "herein", and "hereunder"
and words of similar import when used in this Agreement refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section
references are to this Agreement unless otherwise specified.
(b) The term "DLJ Entities," to the extent such entities
shall have transferred any of their Shares to "Permitted Transferees", shall
mean the DLJ Entities and the Permitted Transferees of the DLJ Entities, taken
together, and any right or action that may be taken at the election of the DLJ
Entities may be taken at the election of the DLJ Entities and such Permitted
Transferees, subject to the requirements of Section 5.7.
ARTICLE II. TRANSFERS
2.1. Limitations on Transfer. (a) Until the fifth
anniversary of the date hereof, no DLJ Entity or Permitted Transferee may
Transfer any shares of Common Stock or Preferred Stock other than (i) in
connection with a Public Offering effected in accordance with Section 3.1 or
3.2, (ii) after a Public Offering, in a bona fide sale to the public pursuant
to Rule 144 (or any successor provision) under the Securities Act or (iii) in
accordance with Sections 2.2, 2.3 or 2.4.
(b) In the event of any purported Transfer by a DLJ Entity or
a Permitted Transferee of any shares of Common Stock or Preferred Stock in
violation of the provisions of this Agreement, such purported Transfer will be
void and of no effect and the Company will not give effect to such Transfer.
(c) Each certificate representing shares of Common Stock and
Preferred Stock held by a DLJ Entity or any Permitted Transferee will bear a
legend substantially to
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the following effect (with such additions thereto or changes therein as the
Company may be advised by counsel are required by law or necessary to give full
effect to this Agreement, the "Legend"):
"THE SHARES OF [COMMON STOCK] [PREFERRED STOCK] REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS' AND REGISTRATION RIGHTS
AGREEMENT AMONG REGAL CINEMAS, INC., KKR 1996 FUND L.P., KKR PARTNERS
II, L.P., REGAL EQUITY PARTNERS, L.P. AND THE OTHER PERSONS NAMED
THEREIN, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS' AND
REGISTRATION RIGHTS AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE
PROVISIONS OF SUCH STOCKHOLDERS' AND REGISTRATION RIGHTS AGREEMENT."
"THE SHARES OF [COMMON STOCK] [PREFERRED STOCK] REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE
BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
The Legend will be removed by the Company by the delivery of substitute
certificates without such Legend in the event of (i) a Transfer permitted by
this Agreement and in which the Transferee is not required to enter into an
Assumption Agreement or (ii) the termination of Article II pursuant to the
terms hereof, provided, however, that the second paragraph of the Legend will
only be removed if at such time it is no longer required for purposes of
applicable securities laws. If any shares of Common Stock or Preferred Stock
cease to be Registrable Securities under clause (A) or (B) of the definition
thereof, the Company shall, upon the written request of the holder thereof,
issue to such holder a new certificate or certificates evidencing such shares,
without the second paragraph of the Legend.
2.2. Transfers to Permitted Transferees. The DLJ Entities
and their Permitted Transferees may Transfer any or all of the shares of Common
Stock or Preferred Stock held by any of them to any Designated Affiliate who
duly executes and delivers an Assumption Agreement; provided that in connection
therewith the Company, if it so requests promptly following its receipt of such
Assumption Agreement (and, in such event, such Assumption Agreement shall not
be effective unless and until this proviso has been satisfied), has been
furnished with an opinion in form and substance reasonably satisfactory to the
Company of counsel reasonably satisfactory to the Company that such Transfer is
exempt from or not subject to the provisions of Section 5 of the Securities Act
and any other applicable securities laws; and, provided, further, that no
Transfer under this Section
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2.2 shall be permitted if such Transfer would require the Company to register a
class of equity securities under Section 12 of the Exchange Act under
circumstances where the Company does not then have securities of any class
registered under Section 12 of the Exchange Act and such transfer would cause
such registration to be required.
2.3. Tag-Along Rights. (a) So long as this Agreement
remains in effect, with respect to any proposed Transfer by any or all of the
KKR/HM Partnerships or any their respective Affiliates (collectively, the
"Selling Partnership") of shares of Common Stock to any Person not an Affiliate
of any of the KKR/HM Partnerships, other than in a Public Offering, pursuant to
a bona fide sale to the public pursuant to Rule 144 under the Securities Act,
pursuant to a distribution to the limited partners of any of the KKR/HM
Partnerships or pursuant to any agreement or plan of merger or combination,
including any tender or exchange offer in respect thereof, that is approved by
the Board and that provides for equal treatment of all outstanding shares of
Common Stock and Preferred Stock (any such transaction, a "Proposed Sale"),
each DLJ Entity and each Permitted Transferee will have the right to require
the proposed Transferee or acquiring Person to purchase from each DLJ Entity
and each Permitted Transferee who exercises its rights under this Section
2.3(a) in accordance with this Section 2.3 (a "Tagging Stockholder") a number
of shares of Common Stock up to the product (rounded up to the nearest whole
number) of (i) the quotient determined by dividing (A) the aggregate number of
shares of Common Stock owned by the Tagging Stockholders by (B) the aggregate
number of shares of Common Stock owned by the KKR/HM Partnerships and their
respective Affiliates and the Tagging Stockholders and (ii) the total number of
shares of Common Stock proposed to be directly or indirectly Transferred to the
transferee or acquiring Person in the Proposed Sale (a "Proposed Transferee"),
at the same price per share of Common Stock and upon the same terms and
conditions (including, without limitation, time of payment, form of
consideration and adjustments to purchase price) as the Selling Partnership;
provided that in order to be entitled to exercise its right to sell shares of
Common Stock to the Proposed Transferee pursuant to this Section 2.3, each
Tagging Stockholder (x) shall agree to the same covenants as the Selling
Partnership agrees to in connection with the Proposed Sale and (y) shall make
such representations and warranties concerning its title to the shares of
Common Stock to be sold in connection with the Proposed Sale and its authority
to enter into and consummate the Proposed Sale as the Selling Partnership
makes, but shall not be required to make any other representations and
warranties. Each Tagging Stockholder will be responsible for funding its
proportionate share of any escrow arrangements in connection with the Proposed
Sale and for its proportionate share of any withdrawals therefrom, including
without limitation any such withdrawals that are made with respect to claims
arising out of agreements, covenants, representations, warranties or other
provisions relating the Proposed Sale that were not made by the Tagging
Stockholder. Each Tagging Stockholder will be responsible for its
proportionate share of the fees, commissions and other out-of-pocket expenses
(collectively, "Costs") of the Proposed Sale to the extent not paid or
reimbursed by the Company, the Proposed Transferee or another Person (other
than the Selling Partnership). The Selling Partnership shall be entitled to
estimate the Tagging Stockholders' proportionate share of such Costs and to
withhold such amounts from payments to be made to the Tagging Stockholder at
the time of closing of such Proposed Sale; provided that (i) such estimate
shall not preclude the Selling Partnership from
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recovering additional amounts from the Tagging Stockholder in respect of such
Tagging Stockholder's proportionate share of such Costs and (ii) the Selling
Partnership shall reimburse the Tagging Stockholder to the extent actual
amounts are ultimately less than the estimated amounts or any such amounts are
paid by the Company, the Proposed Transferee or another Person (other than the
Selling Partnership).
(b) The Selling Partnership will give notice to the DLJ
Entities of each Proposed Sale not more than ten days after the execution of
the definitive agreement relating to the Proposed Sale, setting forth the
number of shares of Common Stock proposed to be so Transferred, the name and
address of the Proposed Transferee, the proposed amount and form of
consideration (and if such consideration consists in part or in whole of
property other than cash, the Selling Partnership will provide such
information, to the extent reasonably available to the Selling Partnership,
relating to such non-cash consideration as the DLJ Entities together may
reasonably request in order to evaluate such non-cash consideration) and other
terms and conditions of payment offered by the Proposed Transferee. The
Selling Partnership will deliver or cause to be delivered to each Tagging
Stockholder copies of all transaction documents relating to the Proposed Sale
promptly as the same become available. The tag-along rights provided by this
Section 2.3 must be exercised by the DLJ Entities within seven days following
receipt of the notice required by the preceding sentence by delivery of a
written notice to the Selling Partnership indicating its desire to exercise its
rights and specifying the number of shares of Common Stock it desires to sell
(the "Tag-Along Notice"). The Tagging Stockholders will be entitled under this
Section 2.3 to Transfer to the Proposed Transferee the number of shares of
Common Stock calculated in accordance with Section 2.3(a).
(c) If any Tagging Stockholder exercises its rights under
Section 2.3(a), the closing of the purchase of the Common Stock with respect to
which such rights have been exercised will take place concurrently with the
closing of the sale of the Selling Partnership's Common Stock to the Proposed
Transferee.
2.4. Drag-Along Rights. (a) So long as this Agreement
remains in effect, if any or all of the HM/KKR Partnerships or any of their
respective Affiliates (collectively, the "Dragging Partnership") receive an
offer from a Person other than an Affiliate of any of the HM/KKR Partnerships
(a "Third Party") to purchase (in a transaction of a type referred to in the
first sentence of Section 2.3(a)) at least a majority of the shares of Common
Stock then outstanding and such offer is accepted by the Dragging Partnership,
then each DLJ Entity and each Permitted Transferee (collectively, the
"Drag-Along Stockholders") hereby agrees that, if requested by the Dragging
Partnership, it will Transfer to such Third Party, subject to Section 2.4(b),
on the terms of the offer so accepted by the Dragging Partnership, including,
without limitation, time of payment, form of consideration and adjustments to
purchase price, the number of shares of Common Stock equal to the number of
shares of Common Stock owned by it multiplied by the percentage of the then
outstanding shares of Common Stock to which the Third Party offer is
applicable.
(b) The Dragging Partnership will give notice (the
"Drag-Along Notice") to the Drag-Along Stockholders of any proposed Transfer
giving rise to the rights of the
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Dragging Partnership set forth in Section 2.4(a) (a "Section 2.4 Transfer")
within 10 days following the Dragging Partnership's acceptance of the offer
referred to in Section 2.4(a) and, in any event, no later than 10 days prior to
the proposed closing date for such Section 2.4 Transfer. The Drag-Along Notice
will set forth the number of shares of Common Stock proposed to be so
Transferred, the name of the proposed Transferee or acquiring Person, the
proposed amount and form of consideration (and if such consideration consists
in part or in whole of property other than cash, the Dragging Partnership will
provide such information, to the extent reasonably available to the Dragging
Partnership, relating to such non-cash consideration as the Drag-Along
Stockholders together may reasonably request in order to evaluate such non-cash
consideration), the number of shares of Common Stock sought and the other terms
and conditions of the offer. Each Drag-Along Stockholder (x) shall agree to
the same covenants, as the Dragging Partnership agrees to in connection with
the Section 2.4 Transfer and (y) shall make such representations and warranties
concerning its title to the shares of Common Stock to be sold in connection
with the Section 2.4 Transfer and its authority to enter into and consummate
the Section 2.4 Transfer as the Dragging Partnership makes, but shall not be
required to make any other representations and warranties. Each Drag-Along
Stockholder will be responsible for funding its proportionate share of any
escrow arrangements in connection with the Section 2.4 Transfer and for its
proportionate share of any withdrawals therefrom, including without limitation
any such withdrawals that are made with respect to claims arising out of
agreements, covenants, representations, warranties or other provisions relating
the Section 2.4 Transfer that were not made by the Drag-Along Stockholder.
Each Drag-Along Stockholder will be responsible for its proportionate share of
the Costs of the Section 2.4 Transfer to the extent not paid or reimbursed by
the Company, the Third Party or another Person (other than the Dragging
Partnership. The Dragging Partnership shall be entitled to estimate the
Drag-Along Stockholders' proportionate share of such Costs and to withhold such
amounts from payments to be made to the Drag-Along Stockholder at the time of
closing of the Section 2.4 Transfer; provided that (i) such estimate shall not
preclude the Dragging Partnership from recovering additional amounts from the
Drag-Along Stockholder in respect of such Drag-Along Stockholder's
proportionate share of such Costs and (ii) the Dragging Partnership shall
reimburse the Drag-Along Stockholder to the extent actual amounts are
ultimately less than the estimated amounts or any such amounts are paid by the
Company, the Third Party or another Person (other than the Dragging
Partnership). If the Section 2.4 Transfer is not consummated within 180 days
from the date of the Drag-Along Notice, the Dragging Partnership must deliver
another Drag-Along Notice in order to exercise its rights under this Section
2.4 with respect to such Section 2.4 Transfer.
2.5. Custody Agreement and Power of Attorney. Upon
delivering a Tag Along Notice or receiving a Drag-Along Notice, each DLJ
Entity and each Permitted Transferee will, if requested by the Selling
Partnership or the Dragging Partnership, as the case may be, execute and
deliver a custody agreement and power of attorney in form and substance
satisfactory to the Selling Partnership or the Dragging Partnership, as the
case may be, with respect to the shares of Common Stock which are to be sold by
the DLJ Entities and Permitted Transferees pursuant hereto (a "Custody
Agreement and Power of Attorney"). The Custody Agreement and Power of Attorney
will provide, among other things, that each DLJ Entity and each Permitted
Transferee will deliver to and deposit in
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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 its agent and attorney-in-fact with full
power and authority to act under the Custody Agreement and Power of Attorney on
its behalf with respect to the matters specified in Section 2.3 or Section 2.4,
as the case may be.
ARTICLE III. REGISTRATION RIGHTS
3.1. Piggyback Rights. (a) Piggyback Rights. If the
Company at any time after the date hereof proposes to register Common Stock
under the Securities Act (other than a registration on Form S-4 or S-8, or any
successor or other forms promulgated for similar purposes), whether or not for
sale for its own account, it will, at each such time, give prompt written
notice to the Registration Rights Holders of its intention to do so and of the
Registration Rights Holders' rights under this Section 3.1. Upon the written
request of any Registration Rights Holder made within 14 days after the receipt
of any such notice (which request shall specify the number of Registrable
Securities intended to be disposed of by such Registration Rights Holder), the
Company will use its reasonable efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Registration Rights Holders; provided that (i) if,
at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company or any other holder of
securities that initiated such registration (an "Initiating Holder") shall
determine for any reason not to proceed with the proposed registration of the
securities to be sold by it, the Company or such Initiating Holder may, at its
election, give written notice of such determination to the Registration Rights
Holders and, thereupon, the Company shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses incurred in connection
therewith), and (ii) if such registration involves an underwritten offering,
the Registration Rights Holders of Registrable Securities requesting to be
included in the registration must sell their Registrable Securities to the
underwriters selected by the Company or the Initiating Holders, as the case may
be, on the same terms and conditions as apply to the Company or the Initiating
Holders, as the case may be, with, in the case of a combined primary and
secondary offering, such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 3.1(a) involves an underwritten public offering, any
Registration Rights Holder requesting to be included in such registration may
elect, in writing prior to the effective date of the registration statement
filed in connection with such registration, not to register all or any portion
of such securities in connection with such registration. Nothing in this
Section 3.1(a) shall operate to limit the right of a Registration Rights Holder
to (i) request the registration of Registrable Securities that consist of
Common Stock issuable upon conversion, exercise or exchange of convertible
securities held by such Registration Rights Holder notwithstanding the fact
that at the time of request such Registration Rights Holder holds only
convertible securities or (ii) request the registration at one time of
Registrable
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Securities that consist of both Common Stock and convertible securities
convertible into or exercisable or exchangeable for Common Stock.
(b) Expenses. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Section 3.1.
(c) Priority in Piggyback Registrations. If a registration
pursuant to this Section 3.1 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
Registrable Securities, KKR/HM Registrable Securities and other securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be reasonably likely to have an adverse effect
on the price, timing or distribution of the securities offered in such
offering, then the Company will include in such registration (i) first, 100% of
the securities, if any, the Company proposes to sell for its own account,
provided that the registration of shares of Common Stock contemplated by this
Section 3.1 was initiated by the Company with respect to shares intended to be
registered for sale for its own account and (ii) second, such number of
Registrable Securities and KKR/HM Registrable Securities requested to be
included in such registration which, in the opinion of such managing
underwriter, can be sold without having the adverse effect referred to above,
which number of Registrable Securities and KKR/HM Registrable Securities shall
be allocated pro rata (subject to the final sentence of this Section 3.1(c))
among all such requesting holders of Registrable Securities and KKR/HM
Registrable Securities, such pro rata amount to be determined by multiplying
(x) the aggregate number of Registrable Securities and KKR/HM Registrable
Securities that may be included in such registration without the adverse effect
referred to above by (y) a fraction, the numerator of which is the number of
Registrable Securities or KKR/HM Registrable Securities, as the case may be,
requested by such Registration Rights Holder or the KKR/HM Partnerships, as the
case may be, to be included in such registration and the denominator of which
is the aggregate number of Registrable Securities and KKR/HM Registrable
Securities requested to be included in such registration. In the event that
(i) the Company did not initiate the registration of securities intended to be
registered for sale for its own account and (ii) the number of Registrable
Securities, KKR/HM Registrable Securities and shares of Common Stock of other
holders entitled to registration rights with respect to such Common Stock, in
each case requested to be included in such registration, is less than the
number which, in the opinion of the managing underwriter, can be sold, the
Company may include in such registration the securities it proposes to sell up
to the number of securities that, in the opinion of the underwriter, can be
sold. The Registration Rights Holders acknowledge and agree that the number of
KKR/HM Registrable Securities that this Section 3.1(c) permits to be included
in a registration may be allocated among the KKR Partnerships, the HM
Partnership, their respective Affiliates and other holders of securities of the
Company as such parties shall agree, including holders of securities of the
Company parties to, or having rights under, the KKR/HM Registration Rights
Agreement.
3.2. Demand Registration. (a) Demand Registration. At any
time after the 180th day following the initial Public Offering, upon the
written request of any Registration
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Rights Holder (the Registration Rights Holder or Registration Rights Holders
making such request, a "Demand Party") requesting that the Company effect the
registration under the Securities Act of all or part of such Demand Party's
Registrable Securities and specifying the amount and intended method of
disposition thereof, the Company will promptly give written notice of such
requested registration to the other holders of Registrable Securities, the
KKR/HM Partnerships and other holders of securities entitled to notice of such
registration under the KKR/HM Registration Rights Agreement and thereupon will,
as expeditiously as possible, file a registration statement to effect the
registration under the Securities Act of:
(i) such Registrable Securities which the Company has
been so requested to register by the Registration Rights Holders; and
(ii) the KKR/HM Registrable Securities and securities of
other holders which the Company has been requested to register by
written request given to the Company within 15 days after the giving
of such written notice by the Company (which request shall specify the
amount and intended method of disposition of such securities);
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities, the KKR/HM
Registrable Securities and such other securities so to be registered; provided
that the Company shall not be required to effect the registration of
Registrable Securities at the request of a Demand Party under this Section
3.2(a) on more than two occasions, except as provided in Section 3.2(f); and
provided, further, that the Company shall not be obligated to file a
registration statement relating to any registration request under this Section
3.2(a):
(x) within a period of 180 days (or such lesser period as the
managing underwriters in an underwritten offering may permit) after
the effective date of any other registration statement relating to any
registration request under this Section 3.2(a) or relating to any
registration effected under Section 3.1;
(y) if with respect thereto the managing underwriter, the
SEC, the Securities Act or the rules and regulations thereunder, or
the form on which the registration statement is to be filed, would
require the conduct of an audit other than the regular audit conducted
by the Company at the end of its fiscal year, in which case the filing
may be delayed until the completion of such audit (and the Company
shall, upon request of the Demand Parties, use its reasonable efforts
to cause such audit to be completed expeditiously and without
unreasonable delay); or
(z) if the Company is in possession of material non-public
information and the Board determines in good faith that disclosure of
such information would not be in the best interests of the Company and
its stockholders, in which case the filing of the registration
statement may be delayed until the earlier of the second business day
after such conditions shall have ceased to exist and the 90th day
after receipt by the
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Company of the written request from a Demand Party to register
Registrable Securities under this Section 3(a).
Nothing in this Section 3.2(a) shall operate to limit the right of a
Registration Rights Holder to (i) request the registration of Registrable
Securities that consist of Common Stock issuable upon conversion, exercise or
exchange of convertible securities held by such Registration Rights Holder
notwithstanding the fact that at the time of request such Registration Rights
Holder holds only convertible securities or (ii) request the registration at
one time of Registrable Securities that consist of both Common Stock and
convertible securities convertible into or exercisable or exchangeable for
Common Stock.
(b) Expenses. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Section 3.2.
(c) Effective Registration Statement. A registration
requested pursuant to this Article 3 will not be deemed to have been effected
unless it has become effective; provided that, if, within 180 days after it has
become effective, the offering of Registrable Securities pursuant to such
registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court, then such
registration will be deemed not to have been effected.
(d) Selection of Underwriters. If a requested registration
pursuant to this Section 3.2 involves an underwritten offering and neither the
Company nor any of the KKR/HM Partnerships (or Affiliates thereof) are
registering any securities therein, the Demand Parties shall have the right to
select the investment banker or bankers and managers to administer the
offering, including the lead managing underwriter; provided, however, that such
investment banker or bankers and managers shall be reasonably satisfactory to
the Company. If a requested registration pursuant to this Section 3.2 involves
an underwritten offering and either the Company or any of the KKR/HM
Partnerships (or their Affiliates) are registering any securities therein, the
Company shall have the right to select the investment banker or bankers and
managers to administer the offering, including the lead managing underwriter;
provided, however, that a majority in interest of the holders of the
Registrable Securities held by all Registration Rights Holders participating in
such registration shall have the right to select one co-manager that is an
investment banking firm of nationally recognized standing to participate in the
administration of the offering.
(e) Priority in Demand Registrations. If a requested
registration pursuant to this Section 3.2 involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the number of Registrable Securities and KKR/HM Registrable Securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be reasonably likely to have an adverse effect
on the price, timing or distribution of the securities offered in such
offering, then the Company will include in such registration such the number of
Registrable Securities and KKR/HM Registrable Securities requested to be
included in such registration which, in the
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opinion of such managing underwriter, can be sold without having the adverse
effect referred to above, which number shall be allocated pro rata (subject to
the final sentence of this Section 3.2(e)) among all such requesting holders of
Registrable Securities and KKR/HM Registrable Securities, such pro rata amount
to be determined by multiplying (x) the aggregate number of Registrable
Securities and KKR/HM Registrable Securities that may be included in such
registration without the adverse effect referred to above by (y) a fraction,
the numerator of which is the number of Registrable Securities or KKR/HM
Registrable Securities, as the case may be, requested by the Registration
Rights Holders or the KKR/HM Partnerships (or their Affiliates), as the case
may be, to be included in such registration and the denominator of which is the
aggregate number of Registrable Securities and KKR/HM Registrable Securities
requested to be included in such registration; provided that, after giving
effect to such pro ration, the KKR/HM Partnerships or their respective
Affiliates that requested to include KKR/HM Registrable Securities in such
registration may further reduce the number of KKR/HM Registrable Securities to
be so registered, and, in such event, the number of Registrable Securities to
be so registered shall be increased by the participating Registration Rights
Holders on a share-for-share basis, but not in excess of the total number of
Registrable Securities that the Demand Parties originally requested to be
included in such registration. In the event that the number of Registrable
Securities, KKR/HM Registrable Securities and shares of Common Stock of other
holders, in each case entitled to registration rights with respect to such
Common Stock requested to be included in such registration is less than the
number which, in the opinion of the managing underwriter, can be sold, the
Company may include in such registration securities it proposes to sell for its
own account up to the number of securities that, in the opinion of the
underwriter, can be sold. The Registration Rights Holders acknowledge and
agree that the number of KKR/HM Registrable Securities that this Section 3.2(e)
permits to be included in a registration may be allocated among the KKR
Partnerships, the HM Partnership, their respective Affiliates and other holders
of securities of the Company as such parties shall agree, including holders of
securities of the Company parties to, or having rights under, the KKR/HM
Registration Rights Agreement.
(f) Additional Requests. If as a result of the priority
provisions set forth in Section 3.2(e), (i) the number of Registrable
Securities registered pursuant to Section 3.2 is less than 70% of the number of
Registrable Securities set forth in the first request made by the Demand
Parties under this Section 3.2 and (ii) the Demand Parties shall have already
requested registration under this Section 3.2 on two occasions, then the Demand
Parties shall have the right to make one or more additional requests for
registration under this Section 3.2 until such time as at least 70% of the
number of Registrable Securities set forth in such first request under this
Section 3.2 made by the Demand Parties have been registered under this Section
3.2.
3.3. Registration Procedures. If and whenever the Company is
required to file a registration statement with respect to, or to use its
reasonable efforts to effect or cause the registration of, any Registrable
Securities under the Securities Act as provided in this Agreement the Company
will as expeditiously as possible:
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(a) prepare and, in any event within 120 days after the
end of the period within which a request for registration may be given to the
Company pursuant to Section 3.2, file with the SEC a registration statement on
an appropriate form with respect to such Registrable Securities and use its
reasonable efforts to cause such registration statement to become effective;
provided, however, that the Company may discontinue any registration of
securities as to which it is the Initiating Party at any time prior to the
effective date of the registration statement relating thereto (and, in such
event, the Company shall pay the Registration Expenses incurred in connection
therewith); provided, further, that before filing a registration statement or
prospectus, or any amendments or supplements thereto, the Company will furnish
to counsel for the sellers of Registrable Securities covered by such
registration statement copies of all documents proposed to be filed, which
documents will be subject to the review of such counsel;
(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 a period not in excess of 270 days and to comply with the
provisions of the Securities Act and the Exchange 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
seller or sellers thereof set forth in such registration statement; provided
that before filing a registration statement or prospectus, or any amendments or
supplements thereto, the Company will furnish to counsel for the sellers of
Registrable Securities covered by such registration statement copies of all
documents proposed to be filed, which documents will be subject to the review
of such counsel;
(c) furnish to each seller of such Registrable Securities
such number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed therewith,
including any documents incorporated by reference), such number of copies of
the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such seller;
(d) use its reasonable efforts to register or qualify
such Registrable Securities covered by such registration in such jurisdictions
as each seller shall reasonably request, 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, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this subsection (d), it would
not be obligated 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) use its reasonable efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental
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agencies or authorities as may be necessary to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities;
(f) notify each seller of any such Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in Section 3.3(b), of the Company's becoming aware
that the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and at the
request of any such seller, prepare and furnish to such seller a reasonable
number of copies of an amended or supplemental prospectus as may be necessary
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 not misleading in the light of the
circumstances then existing;
(g) otherwise use its reasonable efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than 18
months) after the effective date of the registration statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the Securities
Act;
(h) (i) if such Registrable Securities are Common Stock
(including Common Stock issuable upon conversion, exchange or exercise of
another security), use its reasonable efforts to list such Registrable
Securities on any securities exchange on which the Common Stock is then listed
if such Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; (ii) if such Registrable
Securities are convertible, exchangeable or exercisable into Common Stock, upon
the reasonable request of sellers of a majority of such Registrable Securities,
use its reasonable efforts to list such securities and, if requested, the
Common Stock underlying such securities, notwithstanding that at the time of
request such sellers hold only such securities, on any securities exchange so
requested, if such Registrable Securities are not already so listed and if such
listing is then permitted under the rules of such exchange; and (iii) use its
reasonable efforts to provide a transfer agent and registrar for 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 an
underwriting agreement in customary form), which may include indemnification
provisions in favor of underwriters and other Persons in addition to, or in
substitution for the indemnification provisions hereof, and take such other
actions as sellers of a majority of shares of such Registrable Securities or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
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(j) obtain a "cold comfort" letter or letters from the
Company's independent public accounts in customary form and covering matters of
the type customarily covered by "cold comfort" letters as the seller or sellers
of a majority of shares of such Registrable Securities shall reasonably
request;
(k) make available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter 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) notify counsel for the holders of Registrable
Securities included in such registration statement and the managing underwriter
or agent, immediately, and confirm the notice in writing (i) when the
registration statement, or any post-effective amendment to the registration
statement, shall have become effective, or any supplement to the prospectus or
any amendment prospectus shall have been filed, (ii) of the receipt of any
comments from the SEC, (iii) of any request of the SEC to amend the
registration statement or amend or supplement the prospectus or for additional
information, and (iv) of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the registration statement for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any
of such purposes;
(m) make every reasonable effort to prevent the issuance
of any stop order suspending the effectiveness of the registration statement or
of any order preventing or suspending the use of any preliminary prospectus
and, if any such order is issued, to obtain the withdrawal of any such order at
the earliest possible moment;
(n) if requested by the managing underwriter or agent or
any holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or agent or such holder reasonably
requests to be included therein, including, with respect to the number of
Registrable Securities being sold by such holder to such underwriter or agent,
the purchase price being paid therefor by such underwriter or agent and with
respect to any other terms of the 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 practicable after
being notified of the matters incorporated in such prospectus supplement or
post-effective amendment;
(o) cooperate with the holders of Registrable Securities
covered by the registration statement and the managing underwriter or agent, if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing
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securities to be sold under the registration statement, and enable such
securities to be in such denominations and registered in such names as the
managing underwriter or agent, if any, or the Registration Rights Holders may
request;
(p) obtain for delivery to the holders of Registrable
Securities being registered and to the underwriter or agent an opinion or
opinions from counsel for the Company in customary form and in form, substance
and scope reasonably satisfactory to such holders, underwriters or agents and
their counsel; and
(q) cooperate with each seller of Registrable Securities
and each underwriter or agent participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD.
3.4. Other Registration-Related Matters. (a) The Company
may require any Person that is selling shares of Common Stock in a Public
Offering pursuant to Sections 3.1 or 3.2 to furnish to the Company in writing
such information regarding such Person and pertinent to the disclosure
requirements relating to the registration and the distribution of the
Registrable Securities which are included in such Public Offering as the
Company may from time to time reasonably request in writing.
(b) Each Registration Rights Holder agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 3.3(f), it will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until its receipt of the copies of the amended or
supplemented prospectus contemplated by Section 3.3(f) and, if so directed by
the Company, each Registration Rights Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in
their possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company gives
any such notice, the period for which the Company will be required to keep the
registration statement effective will be extended by the number of days during
the period from and including the date of the giving of such notice pursuant to
Section 3.3(f) to and including the date when each seller of Registrable
Securities covered by such registration statement has received the copies of
the supplemented or amended prospectus contemplated by Section 3.3(f).
(c) Each Registration Rights Holder will, in connection with
a Public Offering of the Company's securities, upon the request of the Company
or of the underwriters managing any underwritten offering of the Company's
securities, agree in writing not to effect any sale, disposition or
distribution of Registrable Securities (other than those included in the Public
Offering) without the prior written consent of the managing underwriter for
such period of time commencing 7 days before and ending 180 days (or such
earlier date as the managing underwriter shall agree) after the effective date
of such registration.
(d) Upon delivering the notice referred to either in (i) the
second sentence of Section 3.1(a) or (ii) the first sentence in Section 3.2(a),
each DLJ Entity and each
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Permitted Transferee will, if requested by the Company, execute and deliver
Custody Agreement and Power of Attorney, as described in Section 2.5.
3.5. Indemnification. (a) Indemnification by the Company.
In the event of any registration of any securities of the Company under the
Securities Act pursuant to Section 3.1 or 3.2, the Company hereby indemnifies
and agrees to hold harmless, to the extent permitted by law, the sellers of any
Registrable Securities covered by such registration statement (each a
"Holder"), each Affiliate of such Holder and their respective directors and
officers or general and limited partners (and the directors, officers,
employees, affiliates and controlling Persons of any of the foregoing), each
other Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such Holder or any such
underwriter within the meaning of the Securities Act (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses to which such Indemnified Party may
become subject under the Securities Act, common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof, whether or not such Indemnified Party is a party thereto)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in the case of a prospectus, in the light of the
circumstances when they were made, and the Company will reimburse such
Indemnified Party for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided that the Company will not be liable to any
Indemnified Party in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, in any
such preliminary, final or summary prospectus, or any amendment or supplement
thereto in reliance upon and in conformity with written information with
respect to such Indemnified Party furnished to the Company by such Indemnified
Party expressly for use in the preparation thereof. Such indemnity will remain
in full force and effect regardless of any investigation made by or on behalf
of such Holder or any Indemnified Party and will survive the Transfer of such
securities by such Holder.
(b) Indemnification by the Holders and Underwriters. The
Company may require, as a condition to including any Registrable Securities in
any registration statement filed in accordance with Sections 3.1, that the
Company shall have received an undertaking reasonably satisfactory to it from
the Holder of such Registrable Securities or any prospective underwriter to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 3.5(a)) the Company, all other Holders or any prospective
underwriter, as the case may be, and any of their respective Affiliates,
directors, officers and controlling Persons, with respect to any untrue
statement in or omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement,
if such untrue statement or omission was made in
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reliance upon and in conformity with written information with respect to such
Holder or underwriter furnished to the Company by such Holder or underwriter
expressly for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing. Such indemnity
will remain in full force and effect regardless of any investigation made by or
on behalf of the Company or any of the Holders, or any of their respective
affiliates, directors, officers or controlling Persons and will survive the
Transfer of such securities by such Holder. In no event shall the liability of
any selling Holder of Registrable Securities hereunder be greater in amount
than the dollar amount of the proceeds actually received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Notices of Claims. Etc. Promptly after receipt by an
Indemnified Party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 3.5, such Indemnified Party will, if a claim in
respect thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action; provided that the
failure of the Indemnified Party to give notice as provided herein will not
relieve the indemnifying party of its obligations under Section 3.5(a) or
3.5(b), except to the extent that the indemnifying party is actually prejudiced
by such failure to give notice. In case any such action is brought against an
Indemnified Party, unless in such Indemnified Party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may
exist in respect of such claim, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice
from the indemnifying party to such Indemnified Party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. If, in such Indemnified Party's reasonable judgment, having
common counsel would result in a conflict of interest between the interests of
such indemnified and indemnifying parties, then such Indemnified Party may
employ separate counsel reasonably acceptable to the indemnifying party to
represent or defend such Indemnified Party in such action, it being understood,
however, that the indemnifying party will not be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time for all
such Indemnified Parties (and not more than one separate firm of local counsel
at any time for all such Indemnified Parties) in such action. No indemnifying
party will consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation.
(d) Contribution. If the indemnification provided for
hereunder from the indemnifying party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then the 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, claims, damages, liabilities
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or expenses in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and Indemnified Parties in connection with the
actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and Indemnified Parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or Indemnified Parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party under this Section
3.5(d) as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any legal or other fees or
expenses reasonably 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 3.5(d) were 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 immediately
preceding paragraph. 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.
(e) Other Indemnification. Indemnification similar to that
specified in this Section 3.5 (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 law or
with any governmental entity other than as required by the Securities Act.
(f) Non-Exclusivity. The obligations of the parties under
this Section 3.5 will be in addition to any liability which any party may
otherwise have to any other party.
ARTICLE IV. PREEMPTIVE RIGHTS
4.1. Preemptive Right. Until the fifth anniversary of the
date hereof, the DLJ Entities and their Permitted Transferees shall have the
right to purchase for cash their Preemptive Right Pro Rata Share of newly
issued Common Stock or Preferred Stock which the Company may from time to time
propose to sell to the KKR/HM Partnerships or any of them for cash. The
"Preemptive Right Pro Rata Share" shall be, at any given time, that proportion
which the number of shares of Common Stock held by the DLJ Entities and the
Permitted Transferees at such time bears to the total Common Stock issued and
outstanding at such time.
4.2. Preemptive Notices. In the event the Company proposes
to undertake an issuance for cash of Common Stock and/or Preferred Stock to any
KKR/HM Partnership or any of Affiliate of a KKR/HM Partnership, it shall give
the DLJ Entities written notice (the "Preemptive Notice") of its intention to
sell Common Stock and/or Preferred Stock for
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cash, the price, the identity of the purchaser and the principal terms upon
which the Company proposes to issue the same. The DLJ Entities and their
Permitted Transferees shall have five Business Days from the delivery date of
any Preemptive Notice to agree to purchase a number of shares of Common Stock
and/or Preferred Stock up to the Preemptive Right Pro Rata Share (in each case
calculated prior to the issuance) for the price and upon the terms specified in
the Preemptive Notice by giving written notice to the Company and stating
therein the number of shares of Common Stock and/or Preferred Stock to be
purchased.
4.3. Failure to Exercise Preemptive Right. In the event the
DLJ Entities fail to purchase all of the Preemptive Right Pro Rata Share
pursuant to this Article 4, the Company shall have 180 days after the date of
the Preemptive Notice to consummate the sale of the Common Stock and/or
Preferred Stock with respect to which the DLJ Entities' preemptive right was
not exercised, at or above the price and upon terms not more favorable to the
purchasers of such Common Stock or Preferred than the terms specified in the
initial Preemptive Notice given in connection with such sale.
4.4. Act III. Notwithstanding anything in this Agreement to
the contrary, the DLJ Entities shall not have any preemptive rights with
respect to issuances of Common Stock or Preferred Stock to the KKR/HM
Partnerships or any of them in connection with any transaction of any nature
between the Company and Act III Cinemas, Inc.
ARTICLE V. MISCELLANEOUS
5.1. Access. Until the first occurrence of a Public
Offering, upon the DLJ Entities' request, the Company shall provide to the DLJ
Entities a copy of the financial information contained in the Company's monthly
management reports to the extent such information is made available to the
KKR/HM Partnerships. In addition, the DLJ Entities and their Permitted
Transferees, upon their reasonable request, (a) shall be provided reasonable
access during business hours to the books, records and properties of the
Company, (b) shall be provided with a reasonable opportunity to discuss the
business and affairs of the Company and (c) shall be provided with such
additional information concerning the Company, its subsidiaries or the
financial condition, business or operations of the Company or its subsidiaries
as the DLJ Entities or the Permitted Transferees shall reasonably request and
as can be obtained without unreasonable expense, provided that the DLJ Entities
shall cause all information relating to the Company to be held in strict
confidence in accordance with the provisions of Section 5.2. Notwithstanding
the foregoing, the Company shall have no obligation to provide to the DLJ
Entities and their Permitted Transferees access to or information concerning
matters that the Company considers to be competitively sensitive, including
without limitation proposed acquisitions, divestitures, theatre upgrades,
rebuilds or expansions and new theatre builds.
5.2. Confidential Information. (a) Each DLJ Entity and
Permitted Transferee agrees that it will not use at any time any Confidential
Information (as defined
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below) of which any DLJ Entity or any Permitted Transferee is or becomes aware
except in connection with its investment in the Company.
(b) Each DLJ Entity and Permitted Transferee further agrees
that the Confidential Information will be kept strictly confidential and will
not be disclosed by it or its Representatives (as defined below), except (i) as
required by applicable law, regulation or legal process, and only after
compliance with Section 5.2(c) (provided that this clause (i) may not be relied
upon to the extent any action is taken by a DLJ Entity or Permitted Transferee
which requires such disclosure and, but for such action, such disclosure would
not have been required) and (ii) that it may disclose the Confidential
Information or portions thereof to those of its officers, employees, directors
and representatives of its legal, accounting and financial advisors (the
persons to whom such disclosure is permissible being "Representatives") who
need to know such information in connection with the investment by the DLJ
Entities and the Permitted Transferees in the Company; provided that such
Representatives (x) are informed of the confidential and proprietary nature of
the Confidential Information and (y) agree to be bound by and perform the
provisions of this Section 5.2. Each DLJ Entity agrees to be responsible for
any breach of this Section 5.2 by its Representatives other than those
Representatives who after the date hereof execute a separate confidentiality
agreement with the Company (it being understood that such responsibility shall
be in addition to and not by way of limitation of any right or remedy the
Company may have against such Representatives with respect to any such breach).
(c) If any DLJ Entity, Permitted Transferee or Representative
becomes legally compelled (including by deposition, interrogatory, request for
documents, subpoena, civil investigative demand or similar process) to disclose
any of the Confidential Information, the DLJ Entities shall provide the Company
with prompt and, if legally permissible, prior written notice of such
requirement to disclose such Confidential Information. Upon receipt of such
notice, the Company may seek a protective order or other appropriate remedy.
If such protective order or other remedy is not obtained, such DLJ Entity,
Permitted Transferee or Representative agrees to disclose only that portion of
the Confidential Information which is legally required to be disclosed and to
take all reasonable steps to preserve the confidentiality of the Confidential
Information. In addition, the DLJ Entities, Permitted Transferees and
Representatives will not oppose any action (and will, if and to the extent
requested by the Company, cooperate with, assist and join with the Company, at
the Company's expense and on a reasonable basis, in any reasonable action) by
the Company to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential
Information.
(d) "Confidential Information" means oral and written
information concerning the Company and its subsidiaries furnished to any DLJ
Entity or Permitted Transferee by or on behalf of the Company (irrespective of
the form of communication and whether such information is so furnished before,
on or after the date hereof), and all analyses, compilations, data, studies,
notes, interpretations, memoranda or other documents prepared by any DLJ Entity
or Permitted Transferee or any Representative containing or based in whole or
in part on any such furnished information. The term "Confidential Information"
does not include any information which (i) at the time of disclosure or
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24
thereafter is generally available to the public (other than as a result of a
disclosure directly or indirectly by any DLJ Entity, Permitted Transferee or
Representative in violation hereof), (ii) is or becomes available to any DLJ
Entity or Permitted Transferee on a nonconfidential basis from a source other
than the Company or its advisors, provided that such source was not known by
the DLJ Entities or Permitted Transferees to be prohibited from disclosing such
information to it by a legal, contractual or fiduciary obligation owed to the
Company or (iii) is already in the possession of any DLJ Entity or Permitted
Transferee (other than information furnished by or on behalf of the Company).
5.3. Competition. For so long as any DLJ Entity or any
Permitted Transferee holds shares of Common Stock, none of DLJ Parent, any DLJ
Entity, any Permitted Transferee, any DLJ Subsidiary or any merchant banking
fund controlled by DLJ Parent or any DLJ Subsidiary shall directly or
indirectly acquire any interest, or invest in any manner, in any Person engaged
in the motion picture theatre exhibition business, whether located in or
outside of the United States; provided, however, that the limitations set forth
in this Section 5.3 shall not restrict any ordinary course investment banking,
lending or other non-merchant banking activities conducted by any of DLJ
Parent, any DLJ Entity, any Permitted Transferee, any DLJ Subsidiary or any
merchant banking fund controlled by DLJ Parent or any DLJ Subsidiary. The
foregoing provisions of this Section 5.3 shall not be applicable to investments
by DLJ Real Estate Capital Partners, L.P. (the "Existing Fund") or any similar
successor real estate merchant banking fund or partnership that is a DLJ
Subsidiary or is controlled by DLJ Parent or any DLJ Subsidiary (a "Successor
Fund"); provided that neither the Existing Fund nor any Successor Fund shall
operate, directly or indirectly, any motion picture theatre exhibition
business. The DLJ Entities and Permitted Transferees agree that if at any time
when this Section 5.3 shall be in effect the Company notifies the DLJ Entities
in writing that the Company believes the Existing Fund or any Successor Fund is
competing with the business of the Company and its subsidiaries, then the
Company, the DLJ Entities and the Permitted Transferees shall discuss in good
faith the nature of the business of the Existing Fund and/or any Successor
Fund, on the one hand, and the investment by the DLJ Entities and the Permitted
Transferees in the Company, on the other hand, with a view to reaching a
mutually satisfactory resolution with respect to such matters.
5.4. Transactions with Affiliates. Without the prior written
consent of the DLJ Entities and the Permitted Transferees, the Company will
not, and will not permit any of its subsidiaries to, directly or indirectly
enter into or permit to exist any transaction or series of related transactions
involving aggregate payments or consideration in excess of $5.0 million
(including, without limitation, the purchase, sale, lease, contribution or
exchange of any property or the rendering of any service) with or for the
benefit of any of its Affiliates (other than transactions between the Company
and any subsidiary of the Company or among subsidiaries of the Company) (an
"Affiliate Transaction"), other than Affiliate Transactions on terms that are
no less favorable than those that might reasonably have been obtained in a
comparable transaction on an arms-length basis from a person that is not an
Affiliate; provided, however, that for a transaction or series of related
transactions involving value of $10.0 million or more, such determination will
be made in good faith by a majority of members of the Board and by a majority
of the disinterested members of the
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Board, if any. The foregoing restrictions will not apply to (1) reasonable and
customary directors' fees, indemnification and similar arrangements and
payments thereunder; (2) any obligations of the Company under any employment
agreement, noncompetition or confidentiality agreement with any officer of the
Company, as in effect on the date hereof (provided that each amendment of any
of the foregoing agreements shall be subject to the limitations of this Section
5.4); (3) any "restricted payment" permitted to be made pursuant to the
indenture governing the Company's senior subordinated notes (the "Indenture");
(4) any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board;
(5) loans or advances to employees in the ordinary course of business of the
Company consistent with past practices; (6) payments made in connection with
the Merger, including, without limitation, fees payable to and expenses of
Hicks, Muse, Xxxx & Xxxxx Incorporated and its affiliates (collectively, "Xxxxx
Muse") and Kohlberg Kravis Xxxxxxx & Co. L.P. and its affiliates (collectively,
"KKR"); (7) payments by the Company to KKR or Xxxxx Muse made for any financial
advisory, financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in connection
with acquisitions or divestitures which payments are approved by a majority of
the Board in good faith; (8) transactions in which the Company delivers to the
DLJ Entities a letter from an independent financial advisor stating that such
transaction is fair to the Company from a financial point of view or that is on
terms that are no less favorable than those that might reasonably have been
obtained in a comparable transaction on an arms-length basis from a person that
is not an Affiliate; (9) the existence of, or the performance by the Company of
its obligations under the terms of, the Stockholders' Agreement dated as of the
date hereof among the Company and the KKR/HM Partnerships, the KKR/HM
Registration Rights Agreement and any similar agreements (whether or not with
the same parties) which it may enter into hereafter; provided, however, that
the existence of, or the performance by the Company of obligations under any
future amendment to any such existing agreement or under any such similar
agreement entered into after the date hereof shall only be permitted by this
clause (9) to the extent that the terms thereof are not otherwise
disadvantageous to the DLJ Entities in any material respect; and (10)
transactions with customers, clients, suppliers, or purchasers or sellers of
goods or services, in each case in the ordinary course of business and
otherwise in compliance with the terms of the Indenture which are fair to the
Company in the reasonable determination of the Board or the management thereof,
or are on terms (taken as a whole) at least as favorable as might reasonably
have been obtained at such time from an unaffiliated party.
5.5. Additional Securities Subject to Agreement. Each DLJ
Entity and each Permitted Transferee to whom shares of Common Stock or
Preferred Stock have been Transferred pursuant to Section 2.2 agrees that any
other equity securities of the Company which it hereafter acquires by means of
a stock split, stock dividend, distribution, exercise of options or warrants or
otherwise (other than pursuant to a Public Offering) will be subject to the
provisions of this Agreement to the same extent as if held on the date hereof.
5.6. Termination. This Agreement, other than Sections 3.1,
3.2, 5.2 and 5.3, will terminate and be of no further force and effect (other
than with respect to prior
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26
breaches) at such time as there shall have been one or more Public Offerings
such that there exists a public trading market in 20% or more of the Common
Stock. Sections 3.1 and 3.2 will terminate and be of no further force and
effect (other than with respect to prior breaches) on the earlier of (i) two
years after the date of the initial Public Offering and (ii) ten years after
the date of the Merger. Section 5.2 will terminate and be of no further force
and effect (other than with respect to prior breaches) on the third anniversary
of the first date on which no DLJ Entity and no Permitted Transferee owns any
shares of Common Stock or Preferred Stock. Section 5.3 will terminate and be
of no further force and effect (other than with respect to prior breaches) at
such time as no DLJ Entity and no Permitted Transferee to whom shares of Common
Stock or Preferred Stock have been Transferred pursuant to Section 2.2 owns any
shares of Common Stock or Preferred Stock.
5.7. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by cable, by telecopy, by telegram, by telex or
registered or certified mail (postage prepaid, return receipt requested) as
follows (or at such other address for a party as shall be specified in a notice
given in accordance with this Section 5.7):
if to a KKR Partnership:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
if to the HMTF Partnership:
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Telecopy: (000) 000-0000
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with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
if to the Company:
Regal Cinemas, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
-and-
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
if to any of the DLJ Entities or any Permitted Transferee:
x/x XXX Merchant Banking Partners II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Fax: (000) 000-0000
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with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
In the case of any notices, requests, claims, demands or other
communications hereunder to more than one DLJ Entity and/or Permitted
Transferee, delivery thereof in accordance with the foregoing provisions of
this Section 5.7 to DLJ Merchant Banking Partners II, Inc. ("DLJ MBP") shall be
deemed to be delivery to all such DLJ Entities and Permitted Transferees. In
addition, the DLJ Entities and Permitted Transferees hereby agree that all
notices, requests, claims, demands or other communications hereunder to be
given by any DLJ Entity or Permitted Transferee hereunder shall be given by DLJ
MBP on behalf of all such DLJ Entities and Permitted Transferees, and that no
such notice, request, claim, demand or other communication given by any other
Person shall be effective hereunder. Each DLJ Entity and Permitted Transferee
hereby appoints DLJ MBP as its agent for purposes of receiving and delivering
all such notices, requests, claims, demands or other communications hereunder.
5.8. Further Assurances. The parties hereto will sign such
further documents, cause such meetings to be held, resolutions passed, exercise
their votes and do and perform and cause to be done such further acts and
things as may be necessary in order to give full effect to this Agreement and
every provision hereof.
5.9. Non-Assignability. This Agreement will inure to the
benefit of and be binding on the parties hereto and their respective successors
and permitted assigns. This Agreement may not be assigned by any party hereto
without the express prior written consent of the other parties, and any
attempted assignment, without such consents, will be null and void; provided,
however, that any of the KKR/HM Partnerships may assign or delegate its rights
hereunder to any Affiliate, and in the event of any such assignment references
to a "KKR/HM Partnership" herein shall be deemed to refer to such Affiliate
and, subject to compliance with this Agreement, any DLJ Entity or Permitted
Transferee may assign or delegate its rights hereunder to a Permitted
Transferee.
5.10. Amendment; Waiver. This Agreement may be amended,
supplemented or otherwise modified only by a written instrument executed by the
parties hereto. No waiver by any party of any of the provisions hereof will be
effective unless explicitly set forth in writing and executed by the party so
waiving. Except as provided in the preceding sentence, no action taken
pursuant to this Agreement, including without limitation, any investigation by
or on behalf of any party, will be deemed to constitute a waiver by the party
taking such action of compliance with any covenants or agreements contained
herein. The waiver by any party hereto of a breach of any provision of this
Agreement will not operate or be construed as a waiver of any subsequent
breach.
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5.11. Third Parties. This Agreement does not create any
rights, claims or benefits inuring to any person that is not a party hereto nor
create or establish any third party beneficiary hereto.
5.12. Governing Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to the principles of conflict of laws thereof. The parties to this
Agreement hereby agree to submit to the jurisdiction of the courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof in any action or
proceeding arising out of or relating to this Agreement. The parties hereto
irrevocably and unconditionally waive trial by jury in any legal action or
proceeding in relation to this Agreement and for any counterclaim therein.
5.13. Specific Performance. Without limiting or waiving in
any respect any rights or remedies of the parties hereto under this Agreement
now or hereinafter existing at law or in equity or by statute, each of the
parties hereto will be entitled to seek specific performance of the obligations
to be performed by the other in accordance with the provisions of this
Agreement.
5.14. Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof.
5.15. Titles and Headings. The section headings contained in
this Agreement are for reference purposes only and will not affect the meaning
or interpretation of this Agreement.
5.16. Severability. If any provision of this Agreement is
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement will not be affected and
will remain in full force and effect.
5.17. Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an original and all
of which together will be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
REGAL CINEMAS, INC.
By:
-------------------------
Title:
KKR 1996 FUND L.P.
By: KKR Associates 1996 L.P.,
its general partner
By: KKR 1996 GP LLC,
its general partner
By:
-------------------------
Authorized Signatory
KKR PARTNERS II, L.P.
By: KKR Associates, L.P., its general partner
By:
-------------------------
Authorized Signatory
REGAL EQUITY PARTNERS, L.P.
By: TOH/Ranger, LLC, its general partner
By:
---------------------------
Authorized Signatory
DLJ MERCHANT BANKING PARTNERS II,
L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc., as
managing general partner
By:
---------------------------
Name:
Title:
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DLJ MERCHANT BANKING PARTNERS II-A,
L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By:
-------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc., as
advisory general partner
By:
-------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc., as
managing general partner
By:
-------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.,
a Delaware Limited Partnership
By: DLJ Diversified Partners, Inc., as
managing general partner
By:
-------------------------
Name:
Title:
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32
DLJ MILLENNIUM PARTNERS, L.P.,
a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc., as
managing general partner
By:
-------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc., as
managing general partner
By:
-------------------------
Name:
Title:
DLJMB FUNDING II, INC., a
Delaware corporation
By:
-------------------------
Name:
Title:
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By:
-------------------------
Name:
Title:
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33
UK INVESTMENT PLAN 1997 PARTNERS
By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc., as
general partner
By:
-------------------------
Name:
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By:
--------------------------
Name:
Title:
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By:
-------------------------
Name:
Title:
