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EXHIBIT 4.10
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of _________ ___, 199_
(this "Agreement"), by and among Regal Cinemas, Inc. (the "Company"), KKR 1996
Fund L.P. (the "KKR Fund"), KKR Partners II, L.P. ("KKR Partners II" and,
together with the KKR Fund, the "KKR Partnerships") and Regal Equity Partners,
L.P. (the "HMTF Partnership" and, together with the KKR Partnerships, the
"Common Stock Partnerships").
RECITALS
WHEREAS, pursuant to, and subject to the terms and conditions
set forth in, an Agreement and Plan of Merger dated as of January 19, 1998, as
amended by the Amendment Agreement dated as of May 8, 1998 (as so amended, the
"Merger Agreement") among Screen Acquisition Corp. ("Holdco I"), Monarch
Acquisition Corp. ("Holdco II" and, together with Holdco I, the "Holdcos"), and
the Company, (i) the Holdcos will merge with and into the Company (the
"Merger"), (ii) each outstanding share of common stock, no par value ("Company
Common Stock"), of the Company outstanding immediately prior to the Merger
(other than shares of Company Common Stock owned by the Company, any of its
subsidiaries or the Holdcos) will be converted into the right to receive $31.00
per share in cash, (iii) each outstanding share of common stock, par value $.01
per share, of Holdco I will be converted into one share of Company Common Stock
and ___ shares of Series A Convertible Preferred Stock, $.01 par value
("Company Convertible Preferred Stock"), of Regal and (iv) each outstanding
share of common stock, par value $.01 per share, of Holdco II will be converted
into one share of Company Common Stock and ___ shares of Company Convertible
Preferred Stock;
WHEREAS, Holdco I and Holdco II are subsidiaries of the KKR
Fund and the HMTF Partnership, respectively; and
WHEREAS, after the consummation of the Merger and the
conversion of the Convertible Preferred Stock, the Common Stock Partnerships
will own approximately 93.2% of the Company Common Stock;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and agreements contained in this Agreement, the
parties agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following respective meanings:
"Closing Date": Has the meaning assigned to such term in the
Merger Agreement.
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"Common or Common Equivalent Registrable Securities":
Registrable Securities which are (i) Common Stock or (ii) Convertible
Securities.
"Convertible Securities": securities that are convertible
into or exchangeable or exercisable for Common Stock, including the
Company Convertible Preferred Stock.
"Demand Party": (a) Each Common Stock Partnership or (b) any
other Holder or Holders, including, without limitation, any present or
future general or limited partner of any Common Stock Partnership, or
(c) any general or limited partner or member of any general or limited
partner thereof, that may become an assignee of such Common Stock
Partnership's rights hereunder; provided that to be a Demand Party
under this clause (c), a Holder or Holders must either individually or
in aggregate with all other Holders with whom it is acting together to
demand registration beneficially own (within the meaning of such term
under Rule 13d-3 under the Exchange Act) at least 1% of the total
number of Registrable Securities.
"Early Demand Event": The occurrence of the seventh
anniversary of the Closing Date or, if the provisions of Section ____
of the Stockholders' Agreement dated as of ________ __, 1998 among the
Company and the Common Stock Partnerships permit a KKR Demand Party or
an HMTF Demand Party, as the case may be, to cause a registration of
Registrable Securities after the occurrence of the fifth anniversary
of the Closing Date, then the occurrence of the fifth anniversary of
the Closing Date; provided that an Early Demand Event shall not occur
if a QPO shall have been effected prior to the applicable anniversary
of the Closing Date set forth above.
"Exchange Act": The Securities Exchange Act of 1934, as
amended, or any successor federal statute then in effect, and a
reference to a particular section thereof shall be deemed to include a
reference to the comparable section, if any, of any such successor
federal statute.
"HMTF Demand Party": HMTF Partnership and any other Holder
that is affiliated with HMTF Partnership, provided that such other
Holder is a Demand Party.
"Holder": Each Common Stock Partnership and any other holder
of Registrable Securities (including any direct or indirect
transferees of the Common Stock Partnership) who agrees in writing to
be bound by the provisions of this Agreement.
"KKR Demand Party": The KKR Partnerships and any other Holder
that is affiliated with the KKR Partnerships, provided that such other
Holder is a Demand Party.
"Other Registration Rights Agreement": Any written agreement
(other than this Agreement) to which the Company and any holder of
shares of Common Stock are parties that provides for the registration
of shares of Common Stock of such holder by the Company.
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"Person": Any individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or any
department or agency thereof.
"QPO": An underwritten public offering of Common Stock after
which (i) Persons who are not affiliates of the Company shall
beneficially own (as defined in Rule 13d-3 under the Exchange Act) at
least 25% of the then outstanding shares of Common Stock and (ii) at
least 20% of the then outstanding shares of Common Stock shall have
been sold by the Company for cash after the Closing Date in one or
more public offerings pursuant to effective registration statements
under the Securities Act.
"Registrable Securities": Any Common Stock or Convertible
Security acquired by a Common Stock Partnership from the Company or any
affiliate of the Company, whether by purchase or otherwise (including
without limitation, in the case of a Convertible Security, any Common
Stock acquired or to be acquired upon the conversion of such
Convertible Security) and any Common Stock, Convertible Security or
other security which may be issued or distributed in respect thereof by
way of stock dividend or stock split or other distribution,
recapitalization or reclassification. As to any particular Registrable
Securities, once issued, such Registrable Securities shall cease to be
Registrable Securities when (i) a registration statement with respect
to the sale by the Holder of such securities shall have become
effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (ii) such
securities shall have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (iii) such
securities shall have been otherwise transferred, new certificates for
such securities not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of such
securities shall not require registration or qualification of such
securities under the Securities Act or any state securities or blue sky
law then in force, or (iv) such securities shall have ceased to be
outstanding.
"Registration Expenses": Any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and 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 pursuant to clause (viii) of Section 4 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) the reasonable fees and
disbursements of counsel selected pursuant to Section 7 hereof by the
Holders of the Registrable Securities being registered to represent
such Holders in connection with each such registration, (vii) any fees
and disbursements of underwriters customarily paid by the
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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, and (viii) other
reasonable out-of-pocket expenses of Holders (provided that such
expenses shall not include expenses of counsel other than those
provided for in clause (vi) above).
"Securities Act": The Securities Act of 1933, as amended, or
any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to
the comparable section, if any, of any such similar federal statute.
"SEC": The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the
Exchange Act.
2. Incidental Registrations. (a) Right to Include
Registrable Securities. If the Company at any time after the date hereof
proposes to register its Common Stock (or any Convertible Security) 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 all
Holders of its intention to do so and of such Holders' rights under this Section
2. Upon the written request of any such Holder made within 15 days after the
receipt of any such notice (which request shall specify the Common or Common
Equivalent Registrable Securities intended to be disposed of by such Holder),
the Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Holders thereof; 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 shall determine for any reason not to
proceed with the proposed registration of the securities to be sold by it, the
Company may, at its election, give written notice of such determination to each
Holder and, thereupon, 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 in connection therewith), and (ii)
if such registration involves an underwritten offering, all Holders requesting
to be included in the registration must sell their Registrable Securities to the
underwriters selected by the Company, if any, on the same terms and conditions
as apply to the Company, with 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 2(a) involves an underwritten public offering, any 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 such securities in connection with such
registration. Nothing in this Section 2(a) shall operate to
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limit the right of a Holder to (i) request the registration of Common Stock
issuable upon conversion, exercise or exchange of Convertible Securities held
by such Holder notwithstanding the fact that at the time of request such Holder
holds only Convertible Securities or (ii) request the registration at one time
of both Common Stock and Convertible Securities.
(b) Expenses. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Section 2.
(c) Priority in Incidental Registrations. If a registration
pursuant to this Section 2 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
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 (other than the Registrable Securities), then the Company will
include in such registration (i) first, 100% of the securities, if any, the
Company proposes to sell, after giving effect to the priority, pro ration or
cutback provisions contained in any Other Registration Rights Agreement;
provided that the registration of shares of Common Stock contemplated by this
Section 2 was initiated by the Company with respect to shares intended to
registered for sale for its own account, (ii) second, the number of securities
held by a party to an Other Registration Rights Agreement that the Company is
required (after giving effect to the priority, pro ration or cutback provisions
contained in any Other Registration Rights Agreement and any withdrawal from the
proposed registration of shares of Common Stock by a holder of shares of Common
Stock that is a party to such Other Registration Rights Agreement) to include in
such registration pursuant to an Other Registration Rights Agreement and (iii)
third, to the extent of the number of 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,
the number of Registrable Securities which the Holders have requested to be
included in such registration, such amount to be allocated pro rata among all
requesting Holders on the basis of the relative number of Registrable Securities
then held by each such Holder (except to the extent that two or more requesting
Holders shall have agreed to a different allocation among such requesting
Holders); provided that any shares thereby allocated to any such Holder that
exceed such Holder's request will be reallocated among the remaining requesting
Holders in like manner. In the event that the number of Registrable Securities
requested to be included in such registration and securities which the Company
is so required to include in such registration in accordance with any Other
Registration Rights Agreement 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.
3. Registration on Request. (a) Request by Demand Party.
At any time, upon the written request of 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 all other Holders
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of such Registrable Securities, and thereupon will, as expeditiously as
possible, use its best efforts to effect the registration under the Securities
Act of:
(i) such Registrable Securities (including, if such
request relates to a Convertible Security, the shares of Common Stock
issuable upon conversion, exercise or exchange thereof) which the
Company has been so requested to register by such Demand Party; and
(ii) all other Registrable Securities of the same class or
series as are to be registered at the request of a Demand Party and
which the Company has been requested to register by any other Holder
thereof 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
Registrable Securities);
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to be
registered; provided that, with respect to any Demand Party other than any
Common Stock Partnership, the Company shall not be obligated to effect any
registration of Registrable Securities under this Section 3(a) unless such
Demand Party requests that the Company register at least 1% of the total number
of Registrable Securities; and provided, further, that the Company shall not be
obligated to file a registration statement relating to any registration request
under this Section 3(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(a) which was not effected on
Form S-3 (or any successor or similar short-form registration
statement) or relating to any registration effected under Section 2
(unless Holders of a majority of the shares of Registrable Securities
held by all Holders consent in writing to the filing of such
registration statement);
(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 requesting Demand Holder, use its best 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 of Directors of the Company 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 45th day after receipt by the Company of the written
request from a Demand Holder to register Registrable Securities under
this Section 3(a).
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Nothing in this Section 3 shall operate to limit the right of a Holder to (i)
request the registration of Registrable Securities issuable upon conversion,
exercise or exchange of Convertible Securities held by such Holder
notwithstanding the fact that at the time of request such Holder holds only
Convertible Securities or (ii) request the registration at one time of both
Common Stock or other securities then issuable upon conversion, exercise or
exchange of Convertible Securities and Convertible Securities.
(b) Registration Statement Form. If any registration
requested pursuant to this Section 3 which is proposed by the Company to be
effected by the filing of a registration statement on Form S-3 (or any
successor or similar short-form registration statement) shall be in connection
with an underwritten public offering, and if the managing underwriter shall
advise the Company in writing that, in its opinion, the use of another form of
registration statement is of material importance to the success of such
proposed offering, then such registration shall be effected on such other form.
(c) Expenses. The Company will pay all Registration Expenses
(i) in connection with the first three registrations of Registrable Securities
pursuant to this Section 3 upon the written request of any KKR Demand Party and
(ii) in connection with the first three registrations of Registrable Securities
pursuant to this Section 3 upon the written request of any HMTF Demand Party (in
the case of clause (i) or (ii) above, a "Paid Demand"); provided that the
Company will pay all Registration Expenses in connection with one additional
registration of Registrable Securities pursuant to this Section 3 by either a
KKR Demand Party or an HMTF Demand Party to the extent that an Early Demand
Event has occurred; and provided, further, that, for purposes hereof, a request
to register Common Stock into or for which a Convertible Security is
convertible, exercisable or exchangeable in conjunction with a registration of
such Convertible Security shall be deemed to be one request for registration of
a class or series of Registrable Securities; provided, further, that a Demand
Party will not be deemed to have used a Paid Demand if (x) such Demand Party
shall have withdrawn its request for registration under this Section 3 before
the registration statement filed pursuant to this Section 3 shall have become
effective and (y) such Demand Party shall have paid all Registration Expenses
incurred before such withdrawal in connection with such request. All expenses
for any subsequent registrations of Registrable Securities pursuant to this
Section 3 shall be paid pro rata by the Company and all other Persons (including
the Holders) participating in such registration on the basis of the relative
number of shares of Common Stock of each such Person whose Registrable
Securities are included in such registration.
(d) Effective Registration Statement. A registration
requested pursuant to this Section 3 will not be deemed to have been effected
unless it has become effective and all of the Registrable Securities registered
thereunder have been sold; 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.
(e) Selection of Underwriters. If a requested registration
pursuant to this Section 3 involves an underwritten offering, the Holders of a
majority of the shares of Registrable Securities which are held by Holders and
which the Company has been requested to register shall have the right to select
the investment banker or bankers and managers to administer the offering;
provided, however, that such investment banker or bankers and managers shall be
reasonably satisfactory to the Company.
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(f) Priority in Requested Registrations. If a requested
registration pursuant to this Section 3 involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the number of securities requested to be included in such registration
(including securities of the Company which are not Registrable Securities)
exceeds the number which can be sold in such offering, the Company will include
in such registration only the Registrable Securities requested to be included in
such registration and any securities which the Company is required to include in
such registration in accordance with any Other Registration Rights Agreement. In
the event that the number of Registrable Securities requested to be included in
such registration and securities which the Company is required to include in
such registration in accordance with any Other Registration Rights Agreement
exceeds the number which, in the opinion of such managing underwriter, can be
sold, then the Company will include in such registration (i) first, the number
of shares of Common Stock held by a party to an Other Registration Rights
Agreement that the Company is required (after giving effect to the priority, pro
ration or cutback provisions contained in any Other Registration Rights
Agreement and any withdrawal from the proposed registration of shares of Common
Stock by a holder of shares of Common Stock that is a party to such Other
Registration Rights Agreement) to include in such registration pursuant to an
Other Registration Rights Agreement and (ii) second, to the extent of the number
of 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, the number of Registrable Securities which the
Holders have requested to be included in such registration, such amount to be
allocated pro rata among all requesting Holders on the basis of the relative
number of shares of Registrable Securities then held by each such Holder (except
to the extent that two or more requesting Holders shall have agreed to a
different allocation among such requesting Holders); provided that any shares
thereby allocated to any such Holder that exceed such Holder's request will be
reallocated among the remaining requesting Holders in like manner. In the event
that the number of Registrable Securities requested to be included in such
registration and securities which the Company is required to include in such
registration in accordance with any Other Registration Rights Agreement 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.
(g) Additional Rights. If the Company at any time grants to
any other holders of Common Stock any rights to request the Company to effect
the registration under the Securities Act of any such shares of Common Stock on
terms more favorable to such holders than the terms set forth in this Section
3, the terms of this Section 3 shall be deemed amended or supplemented to the
extent necessary to provide the Holders such more favorable rights and
benefits; provided that the Holders agree that this Section 3(g) shall not be
applicable to any Other Registration Rights Agreement to which the Common Stock
Partnerships are parties.
4. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will, as expeditiously as possible:
(i) 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, file with the
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SEC a registration statement on an appropriate form with respect to
such Registrable Securities and use its best efforts to cause such
registration statement to become effective; provided, however, that the
Company may discontinue any registration of its securities which is
being effected pursuant to Section 2 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 selected pursuant to
Section 7 hereof by the Holders of the Registrable Securities covered
by such registration statement to represent such Holders, copies of
all documents proposed to be filed, which documents will be subject to
the review and approval (which approval will not be unreasonably
withheld or delayed) of such counsel;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period not in excess of 270 days and to
comply with the provisions of the Securities Act, the Exchange Act and
the rules and regulations of the SEC thereunder 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 selected pursuant to Section 7 hereof
by the Holders of the Registrable Securities covered by such
registration statement to represent such Holders, copies of all
documents proposed to be filed, which documents will be subject to the
review and approval (which approval will not be unreasonably withheld
or delayed) of such counsel;
(iii) 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;
(iv) use its best 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 clause (iv), 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;
(v) use its best efforts to cause such Registrable
Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as
may be necessary to enable the seller or sellers thereof to consummate
the disposition of such Registrable Securities;
(vi) 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
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delivered under the Securities Act within the appropriate period
mentioned in clause (ii) of this Section 4, 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;
(vii) otherwise use its best 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
eighteen 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 and the rules and regulations
promulgated thereunder;
(viii) (A) if such Registrable Securities are Common Stock
(including Common Stock issuable upon conversion, exercise or exchange
of a Convertible Security), use its best 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; (B) if such Registrable Securities are Convertible
Securities, upon the reasonable request of sellers of a majority of
shares of such Registrable Securities, use its best efforts to list
the Convertible Securities and, if requested, the Common Stock
underlying the Convertible Securities, notwithstanding that at the
time of request such sellers hold only Convertible 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 (C) and use its best 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;
(ix) enter into such customary agreements (including an
underwriting agreement in customary form), which may include
indemnification provisions in favor of underwriters, the Holders and
other persons in addition to, or in substitution for the provisions of
Section 5 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;
(x) 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;
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(xi) 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;
(xii) notify counsel (selected pursuant to Section 7
hereof) 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;
(xiii) make every reasonable effort to prevent the issuance
of any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the 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;
(xiv) 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, without limitation, 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;
(xv) cooperate with the Holders of Registrable Securities
covered by the registration statement and the managing underwriter or
agent, if any, to facilitate the
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timely preparation and delivery of certificates (not bearing any
restrictive legends) representing 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 such Holders may request;
(xvi) 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
(xvii) 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.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in clause (vi) of this Section 4, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by clause
(vi) of this Section 4, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the period
mentioned in clause (ii) of this Section 4 shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to clause (vi) of this Section 4 and including the date when each
seller of Registrable Securities covered by such registration statement shall
have received the copies of the supplemented or amended prospectus contemplated
by clause (vi) of this Section 4.
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 2 or 3, the Company will, and it hereby
does, indemnify and hold harmless, to the extent permitted by law, the seller
of any Registrable Securities covered by such registration statement, each
affiliate of such seller and their respective directors and officers or general
and limited partners (including any director, officer, affiliate, employee,
agent and controlling Person 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 seller 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
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expenses (including reasonable attorney's fees and reasonable expenses of
investigation) 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 (a) 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 (b)
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, and the Company will reimburse such Indemnified Party for any legal
or any other expenses reasonably incurred by it in connection with
investigating or defending against any such loss, claim, liability, action or
proceeding; provided that the Company shall 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 or amendment or
supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller specifically stating
that it is for use in the preparation thereof. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
such seller or any Indemnified Party and shall survive the transfer of such
securities by such seller.
(b) Indemnification by the Seller. The Company may require,
as a condition to including any Registrable Securities in any registration
statement filed in accordance with Section 4 herein, that the Company shall
have received an undertaking reasonably satisfactory to it from the prospective
seller of such Registrable Securities or any underwriter to indemnify and hold
harmless (in the same manner and to the same extent as set forth in this
Section 5) the Company and all other prospective sellers with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company
through an instrument duly executed by such seller or underwriter specifically
stating that it is 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
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Company or any of the prospective sellers, or any of their
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller. 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
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which a claim for indemnification may be made pursuant to this Section 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 shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 5, 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 Party 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. 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 to such claim or litigation.
(d) Contribution. If the indemnification provided for in
this Section 5 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 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
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 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 5 (with appropriate modifications) shall be given by
the Company and each seller of
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Registrable Securities with respect to any required registration or other
qualification of securities under any federal or state law or regulation or
governmental authority other than the Securities Act.
(f) Non-Exclusivity. The obligations of the parties under
this Section 5 shall be in addition to any liability which any party may
otherwise have to any other party.
6. Rule 144. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder (or, if the
Company is not required to file such reports, it will, upon the request of any
Holder of Registrable Securities, make publicly available such information),
and it will take such further action as any Holder of Registrable Securities
may reasonably request, all to the extent required from time to time to enable
such Holder to sell shares of Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements. Notwithstanding anything contained in this Section 6, the
Company may deregister under Section 12 of the Exchange Act if it then is
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder.
7. Selection of Counsel. In connection with any registration
of Registrable securities pursuant to Sections 2 and 3 hereof, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered
by such registration; provided, however, that in the event that the counsel
selected as provided above is also acting as counsel to the Company in
connection with such registration, the remaining Holders shall be entitled to
select one additional counsel to represent all such remaining Holders.
8. Miscellaneous. (a) Supplemental Agreements and Other
Registration Rights Agreements. (i) The Company may enter into agreements
with other purchasers of Common Stock who are then employees of the Company (or
its successor) or any of its subsidiaries, making them parties hereto (and
thereby giving them all, or a portion, of the rights, preferences and
privileges of an original party hereto) with respect to additional shares of
Common Stock (the "Supplemental Agreements"); provided, however, that pursuant
to any such Supplemental Agreement, such purchaser expressly agrees to be bound
by all of the terms, conditions and obligations of this Agreement as if such
purchaser were an original party hereto (but subject to any limitations as may
be imposed by the Company). All shares of Common Stock issued or
issuable pursuant to such Supplemental Agreements shall be deemed to be
Registrable Securities.
(ii) The Company may enter into Other Registration Rights
Agreements from time to time; provided, however, that the Company shall not
enter into any such Other Registration Rights Agreements unless the Common
Stock Partnerships are parties thereto.
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(b) Holdback Agreement. If any such registration shall be in
connection with an underwritten public offering, each Holder of Registrable
Securities agrees, subject to such customary exceptions as the managing
underwriters shall permit, not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, of any equity
securities of the Company, or of any Convertible Security or security
convertible into or exchangeable or exercisable for any equity securities of the
Company (in each case, other than as part of such underwritten public offering),
within 7 days before or such period not to exceed 180 days as the underwriting
agreement may require (or such lesser period as the managing underwriters may
permit) after the effective date of such registration (except as part of such
registration), and the Company hereby also so agrees and agrees to cause each
other holder of any equity security, or of any Convertible Security or security
convertible into or exchangeable or exercisable for any equity securities, of
the Company purchased from the Company (at any time other than in a public
offering) to so agree.
(c) Amendments and Waivers. This Agreement may be amended
and the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company shall have
obtained the written consent to such amendment, action or omission to act, of
the Holders of a majority of the Registrable Securities then outstanding;
provided, however, that no amendment, waiver or consent to the departure from
the terms and provisions of this Agreement that is adverse to the Common Stock
Partnerships or any of their successors and assigns shall be effective as
against any such Person for so long as such Person holds any Registrable
Securities unless consented to in writing by such Person. Each Holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any consent authorized by this Section 8(c), whether or not such Registrable
Securities shall have been marked to indicate such consent.
(d) Successors, Assigns and Transferees. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement which
are for the benefit of the parties hereto other than the Company shall also be
for the benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein. Without limitation to
the foregoing, in the event that any Common Stock Partnership distributes or
otherwise transfers any shares of the Registrable Securities to any of its
present or future general or limited partners, the Company hereby acknowledges
that the registration rights granted pursuant to this Agreement shall be
transferred to such partner or partners on a pro rata basis, and that at or
after the time of any such distribution or transfer, any such partner or group
of partners may designate a Person to act on its behalf in delivering any
notices or making any requests hereunder.
(e) Business Combinations. Without the prior written
consent of the Common Stock Partnerships or their respective successors or
assigns, the Company shall not consolidate with or enter into any merger,
consolidation or other business combination transaction (for the purposes of
this Section 8(e), a "business combination") with another Person (whether or
not the Company is the surviving entity) or transfer (by lease, assignment,
sale or otherwise) (for the purposes of this Section 8(e), a "transfer") all or
substantially all of its assets or earning power, in a single transaction or
through a series of related transactions,
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to another Person or group of affiliated Persons or permit any of its
subsidiaries to enter into any such transaction or transactions, where the
business combination or transfer involves the payment by any Person of any
securities to, or the exchange by any Person of any securities with, the
Company or any of the holders of Common Stock of the Company, unless (x) such
securities, if any, to be received by the Common Stock Partnerships have been
registered under the Securities Act in a manner which would permit the sale to
the public of such securities under the Securities Act or (y) the issuer of
such securities agrees to be bound by the terms of this registration rights
agreement with the Common Stock Partnerships relating to such securities or
otherwise agrees to enter into a new registration rights agreement which shall
contain terms substantially similar to this Agreement (with appropriate
modifications) and shall otherwise be in a form satisfactory to the Common
Stock Partnerships. Notwithstanding the foregoing, the provisions of this
Section 8(e) shall not apply if at the time of any business combination or
transfer the Common Stock Partnerships own in the aggregate less than 5% of the
outstanding Common Stock, calculated on a fully diluted basis.
(f) Notices. All notices and other communications provided
for hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
(i) 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
(ii) 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
(iii) 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
(iv) if to any other holder of Registrable Securities, to the
address of such other holder as shown in the stock record book of the Company,
or to such other address as any of the above shall have designated in writing
to all of the other above.
All such notices and communications shall be deemed to have
been given or made (1) when delivered by hand, (2) five business days after
being deposited in the mail, postage prepaid, (3) when telexed answer-back
received or (4) when telecopied, receipt acknowledged.
(g) Descriptive Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
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(h) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired,
it being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(i) Counterparts. This Agreement may be executed in
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
(j) Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of New York applicable to contracts made and to be
performed therein. 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.
(k) Specific Performance. The parties hereto acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provision of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States
or any state thereof, in addition to any other remedy to which they may be
entitled at law or in equity.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be duly 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
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