CINEMARK HOLDINGS, INC. DIRECTOR NOMINATION AGREEMENT
EXHIBIT 4.6
This Director Nomination Agreement (this “Agreement”) is made as of April 9, 2007, among
Cinemark Holdings, Inc., a Delaware corporation (the “Company”), Madison Dearborn Capital Partners
IV, L.P., a Delaware limited partnership (“MDCP”), each of the investors listed on the Schedule of
Xxxxxxxx Investors attached hereto (collectively, the “Xxxxxxxx Investors”), each of the investors
listed on the Schedule of Quadrangle Investors attached hereto, (collectively, the “Quadrangle
Investors”), Syufy Enterprises, LP, a California limited partnership (the “Syufy Investor”) and the
additional investors listed on the Schedule of Additional Investors (collectively, the “Additional
Investors”). MDCP, the Xxxxxxxx Investors, the Quadrangle Investors, the Syufy Investor and the
Additional Investors are collectively referred to herein as the “Stockholders” and individually as
a “Stockholder.” Unless otherwise specified herein, all of the capitalized terms used herein are
defined in Section 6 hereof.
WHEREAS, the Company and the stockholders of the Company entered into that certain
Stockholders Agreement dated as of August 7, 2006 (the “Stockholders Agreement”) (capitalized terms
used herein but not otherwise defined shall have the meanings assigned to such terms in the
Stockholders Agreement);
WHEREAS, the Stockholders own shares of common stock, par value, $0.001 per share, of the
Company (the “Common Stock”) and, in some cases, options to acquire shares of Common Stock;
WHEREAS, the Company is contemplating an offer and sale of its Common Stock to the public in
an underwritten initial public offering registered under the Securities Act (the “IPO”);
WHEREAS, the parties hereto desire to terminate the Stockholders Agreement upon the
consummation of an IPO.
WHEREAS, the Company has agreed to permit MDCP, the Xxxxxxxx Investors, the Quadrangle
Investors and the Syufy Investor to designate persons for nomination for election to the board of
directors of the Company (the “Board”) on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement hereby agree as follows:
1. Board of Directors.
(a) From and after the Effective Time and until the provisions of this Section 1 cease
to be effective and subject to the terms and conditions of this Agreement, the following holders of
Stockholder Shares shall have the right to designate persons to be appointed or nominated, as the
case may be, for election to the Board (each a “Nominee”) as follows:
(i) two representatives designated by the Xxxxxxxx Investors (determined by a vote of
the Xxxxxxxx Investors owning a majority of the Stockholder Shares held by all Xxxxxxxx
Investors) (the “Xxxxxxxx Nominees”), who shall be initially: Xxx Xxx Xxxxxxxx and one other
individual to be nominated by Xxx Xxx Xxxxxxxx; provided that at least one of such Xxxxxxxx
Nominees shall be Independent so long as the Company is required by NYSE Rules to have a
majority of Independent directors on the Board;
(ii) five representatives designated by MDCP (the “MDCP Nominees”) provided that at
least three of such MDCP Nominees shall be Independent so long as the Company is required by
NYSE Rules to have a majority of Independent directors on the Board;
(iii) one representative designated by the Quadrangle Investors (the “Quadrangle
Nominee”), who shall initially be Xxxxx Xxxxxxx; provided that such Quadrangle Nominee shall
be Independent so long as the Company is required by NYSE Rules to have a majority of
Independent directors on the Board; and
(iv) one representative designated by the Syufy Investor (the “Syufy Nominee”), who
shall initially be Xxxxxxx X. Xxxxx; and one Observer (as defined below) designated by the
Syufy Investor in accordance with Section 1(a)(iv) below, who shall initially be
Xxxxxx X. Xxxxx.
(b) Notwithstanding the foregoing, in the event that a Person loses its right to designate a
director for appointment or nomination in accordance with Section 1(e) below, the director
designated by such Person may be removed at the request of a majority of the Board (excluding such
director or directors) upon the occurrence of such event and the total authorized number of
directors may be reduced upon such action by a majority of the Board (excluding such director or
directors) by the number of directors that such Person loses its rights to nominate.
(c) The representatives designated hereunder by any Stockholder shall be nominated or
appointed, as the case may be, to serve as a Class I, Class II or Class III director (as defined in
the Company’s Certificate of Incorporation), as the case may be, as set forth on the Schedule of
Directors attached hereto. The initial term of each Class I, Class II and Class III Director shall
expire as set forth in the Company’s Certificate of Incorporation. Any director designated by a
Stockholder hereunder to fill a vacancy on the board of directors shall be designated as the same
class of director as the director whose termination of services as a director created such vacancy
or to fill a vacancy as listed on the Schedule of Directors.
(d) The Company shall pay the reasonable out-of-pocket expenses incurred by each director in
connection with attending the meetings of the Board and any committee thereof.
(e) Notwithstanding anything to the contrary contained herein,
(i) at such time as the Xxxxxxxx Investors and their Permitted Transferees hold in the
aggregate less than 3% of the outstanding shares of Common Stock; the rights of the
Xxxxxxxx Investors under this Section 1 to nominate any Xxxxxxxx Nominee shall
terminate automatically and cease to have any further force or
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effect. In the event that the Xxxxxxxx Investors and their Permitted Transferees hold
in the aggregate less than 3% of the outstanding shares of Common Stock, the Xxxxxxxx
Investors shall have the right to designate one observer to the Board (an “Observer”), which
shall either be Xxx Xxx Xxxxxxxx or Xxxxx Xxxxxxxx. An Observer shall be entitled to attend
all meetings of the Board but shall not be entitled to (x) attend meetings of the Board with
counsel which may constitute privileged communications, (y) attend meetings of the Board
which include topics of discussion which may constitute a conflict of interest between the
Company and the Xxxxxxxx Investors, or (z) vote on any matters voted on by the Board. The
determination of whether a conflict of interest exists for purposes of clause (y) in the
immediately preceding sentence shall be made by a majority of the Board. If such a
determination is made prior to a Board meeting, the Board shall provide written notice to
the Xxxxxxxx Investors setting forth in reasonable detail the basis for such conflict of
interest. Such a determination may be made during an ongoing Board meeting by a majority of
the Board and, upon such determination, the Observer shall immediately leave the meeting.
Upon the conclusion of the discussion (including any action by the Board thereon) which
constitutes a conflict of interest between the Company and the Xxxxxxxx Investors, the
Observer shall be invited to return to the meeting. The Xxxxxxxx Investors’ right to
designate an Observer shall terminate automatically and cease to have any further force or
effect upon the earlier to occur of (i) the Observer designated under this Section
1(e)(i) is not Xxx Xxx Xxxxxxxx or Xxxxx Xxxxxxxx; and (ii) the Xxxxxxxx Investors and
their Permitted Transferees cease to hold in the aggregate at least 2% of the outstanding shares of Common Stock. The right of the Xxxxxxxx Investors to designate an Observer
hereunder shall not be transferable or assignable under any circumstances;
(ii) the rights of the Xxxxxxxx Investors under this Section 1 shall terminate
automatically and cease to have any further force or effect at such time as the Xxxxxxxx
Investors and their Permitted Transferees hold, directly or indirectly, more than a 5%
interest of any business (other than the Company) that owns, operates or manages theatres
with more than 800 movie screens in the aggregate in the Western Hemisphere;
(iii) the rights of the Quadrangle Investors under this Section 1 to nominate
the Quadrangle Nominee shall terminate automatically and cease to have any further force or
effect at such time as the Quadrangle Investors and their Permitted Transferees hold in the
aggregate less than 3% of the outstanding shares of Common Stock. In the event that the
Quadrangle Investors and their Permitted Transferees hold in the aggregate less than 3% of
the outstanding shares of Common Stock, the Quadrangle Investors shall have the right to
designate an Observer, which shall be a member or employee of Quadrangle Group LLC. An
Observer shall be entitled to attend all meetings of the Board but shall not be entitled to
(x) attend meetings of the Board with the Company’s counsel or the Board’s special counsel
which may constitute privileged communications, (y) attend meetings of the Board which
include topics of discussion which may constitute a conflict of interest between the Company
and the Quadrangle Investors or (z) vote on any matters voted on by the Board. The
determination of whether a conflict of interest exists for purpose of clause (y) in the
immediately preceding sentence shall be made by a majority of the Board. If such a
determination is made prior to a Board meeting, the Board shall provide written notice to
the Quadrangle Investors
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setting forth in reasonable detail the basis for such conflict of interest. Such a
determination may be made during an ongoing Board meeting by a majority of the Board and
upon such determination the Observer shall immediately leave the meeting. Upon the
conclusion of the discussion (including any action by the Board thereon) which constitutes a
conflict of interest between the Company and the Quadrangle Investors, the Observer shall be
invited to return to the meeting. The Quadrangle Investors’ right to designate an Observer
shall terminate automatically and cease to have any further force or effect upon the earlier
to occur of (i) the Observer designated under this Section 1(e)(iii) is not a member
or employee of Quadrangle Group LLC (it being understood and agreed that, should the current
Observer at any time cease to be a member or employee of Quadrangle Group LLC, the
Quadrangle Investors’ right to designate an Observer shall not terminate unless the
Quadrangle Investors do not designate a replacement Observer who is a member or employee of
the Quadrangle Group LLC within 5 business days thereof); and (ii) the Quadrangle Investors
and their Permitted Transferees cease to hold in the aggregate at least 2% of the
outstanding shares of Common Stock. The rights of the Quadrangle Investors to nominate the
Quadrangle Director or designate an Observer hereunder shall not be transferable or
assignable under any circumstances, except to a Permitted Transferee of the Quadrangle
Investors;
(iv) the rights of the Syufy Investor under this Section 1 to nominate the
Syufy Nominee shall terminate automatically and cease to have any further force or effect at
such time as the Syufy Investor and its Permitted Transferees hold in the aggregate less
than 3% of the outstanding shares of Common Stock. In addition, the rights of the Syufy
Investor under this Section 1 to nominate the Syufy Nominee and designate an
Observer shall terminate automatically and cease to have any further force or effect at such
time as (1) the Syufy Investor, Xxxxxxx X. Xxxxx or Xxxxxx Xxxxx breach the terms of Section
3 of the Non-Competition and Non-Disclosure Agreement, dated August 7, 2006, by and among
the Syufy Investor, Xxxxxxx X. Xxxxx, Xxxxxx Xxxxx and the Company (the “Syufy
Non-Competition Agreement”) (this clause (1), a “Non-Curable Termination Event”) or (2) the
Syufy Investor or its Permitted Transferees, Xxxxxxx Xxxxx or Xxxxxx Xxxxx (each, a “Syufy
Person”) holds, directly or indirectly, any interest of any business (other than the
Company) that owns, operates or manages movie theatres that are not drive-in theaters (a
“Competing Business”) but where such ownership would not violate Section 3 of the Syufy
Non-Competition Agreement (this clause (2), a “Curable Termination Event”); provided that
the foregoing loss of rights upon the ownership, operation or management of a Competing
Business shall not apply to (i) holding up to a 5% interest in any publicly traded company;
or (ii) holding an ownership interest in a Competing Business that (x) owns, operates or
manages less than 100 screens in the aggregate in any one or more states in which the
Company does not, at the time the Syufy Person first acquires such ownership interest, own,
operate or manage a movie theater and/or (y) owns, operates or manages less than 32 screens
in the aggregate in any one or more states in which the Company, at the time the Syufy
Person first acquires such ownership interest, owns, operates or manages a movie theater.
For purposes of calculating the number of screens for purposes of clause (ii) of the
foregoing sentence, movie screens acquired by a Syufy Person following an event of default
under a lease under which the Syufy Person is the lessor and which gives such lessor the
right to regain possession of and operate such theatre shall be disregarded
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unless the Syufy Person demolishes and rebuilds a new theatre on the property. In the
event that the rights of the Syufy Investor to nominate the Syufy Nominee terminates by
reason of a Curable Termination Event, the Syufy Investor shall have the right to cure such
Curable Termination Event and the Syufy Investor’s rights to nominate the Syufy Nominee and
designate an Observer shall be reinstated at such time as there is no longer a Curable
Termination Event in effect. In the event that the Syufy Investor and its Permitted
Transferees hold in the aggregate less than 3% of the outstanding shares of Common Stock,
the Syufy Investor shall continue to have the right to designate an Observer, which shall be
a director of the general partner of, or an executive officer of, Syufy Enterprises;
provided, however, that this right to designate an Observer shall not be granted to the
Syufy Investor if the Syufy Investor is in violation of the terms of the preceding sentence.
An Observer shall be entitled to attend all meetings of the Board but shall not be entitled
to (x) attend meetings of the Board with the Company’s counsel or the Board’s special
counsel which may constitute privileged communications, (y) attend meetings of the Board
which include topics of discussion which may constitute a conflict of interest between the
Company and the Syufy Investor or (z) vote on any matters voted on by the Board. The
determination of whether a conflict of interest exists for purpose of clause (y) in the
immediately preceding sentence shall be made by a majority of the Board. If such a
determination is made prior to a Board meeting, the Board shall provide written notice to
the Syufy Investor setting forth in reasonable detail the basis for such conflict of
interest. Such a determination may be made during an ongoing Board meeting by a majority of
the Board and upon such determination the Observer shall immediately leave the meeting.
Upon the conclusion of the discussion (including any action by the Board thereon) which
constitutes a conflict of interest between the Company and the Syufy Investor, the Observer
shall be invited to return to the meeting. The Syufy Investor’s right to designate an
Observer shall terminate automatically and cease to have any further force or effect upon
the earlier to occur of (i) the Observer designated under this Section 1(e)(iii) is
not a director of the general partner or an executive officer of Syufy Enterprises (it being
understood and agreed that, should the current Observer at any time cease to be a director
of the general partner or an executive officer of Syufy Enterprises, the Syufy Investor’s
right to designate an Observer shall not terminate unless the Syufy Investor does not
designate a replacement Observer who is a member of the board of directors of the general
partner or an executive officer of Syufy Enterprises within 5 business days thereof); and
(ii) the Syufy Investor and their Permitted Transferees cease to hold in the aggregate at
least 2% of the outstanding shares of Common Stock. The rights of the Syufy Investor to
nominate the Syufy Nominee or designate an Observer hereunder shall not be transferable or
assignable under any circumstances, except to a Permitted Transferee of the Syufy Investor;
and
(v) the rights of MDCP under this Section 1 shall terminate automatically and
cease to have any further force or effect at such time as MDCP and its Permitted Transferees
hold in the aggregate less than 3% of the outstanding shares of Common Stock.
(f) At every meeting of the Board, or a committee thereof, for which Directors are appointed
or are nominated to stand for election by stockholders of the Company, each Stockholder will have
the right to designate those persons to be appointed or nominated for
election to the Board for each Retiring Director that was a prior Nominee of such Stockholder
in accordance with this Section 1.
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(g) If a vacancy occurs because of the death, disability, disqualification, resignation or
removal of a Nominee, the Stockholders who designated such person shall be entitled to designate
such person’s successors in accordance with this Agreement and the Board, subject to a
determination of the Board in good faith, after consultation with outside legal counsel, that such
action would not constitute a breach of its fiduciary duties or applicable law, shall fill the
vacancy with such successor Nominee.
(h) If a Nominee is not nominated or elected to the Board because of the Nominee’s death,
disability, disqualification, withdrawal as a nominee or for other reason is unavailable or unable
to serve on the Board, the Stockholder who designated such person shall be entitled to designate
promptly another Nominee and the director position for which such Nominee was nominated shall not
be filled pending such designation.
2. Company Obligations.
(a) The Company agrees to use its best efforts to assure that (i) each Nominee is included in
the Board’s slate of nominees to the stockholders for each election of directors; and (ii) each
Nominee is included in the proxy statement prepared by management of the Company in connection with
soliciting proxies for every meeting of the stockholders of the Company called with respect to the
election of members of the Board, and at every adjournment or postponement thereof, and on every
action or approval by written consent of the stockholders of the Company or the Board with respect
to the election of members of the Board.
(b) Notwithstanding anything herein to the contrary, the Company shall not be obligated to
cause to be nominated for election to the Board or recommend to the stockholders the election of
any Nominee (i) who fails to submit to the Company on a timely basis such questionnaires as the
Company may reasonably require of its directors generally and such other information as the Company
may reasonably request in connection with the preparation of its filings under the Securities Laws;
or (ii) the Board or the Nominating Committee determines in good faith, after consultation with
outside legal counsel, that such action would constitute a breach of its fiduciary duties or
applicable law or violate the Company’s Certificate of Incorporation; provided, however, that upon
the occurrence of either (i) or (ii) above, the Company shall promptly notify the applicable
Stockholder of the occurrence of such event and permit the applicable Stockholder to provide an
alternate Nominee sufficiently in advance of any Board action, the meetings of the stockholders
called or written action of stockholders with respect to such election of nominees and the Company
shall use commercially reasonable efforts to perform its obligations under Section 2(a)
with respect to such alternate Nominee (provided that if the Company provides at least 45 days
advance notice of the occurrence of any such event such alternative nominee must be designated by
the applicable Stockholder not less than 30 days in advance of any Board action, notice of meeting
of the stockholders or written action of stockholders with respect to such election of nominees).
The Company shall use commercially reasonable efforts to perform its obligations under Section
2(a) with respect to such alternate Nominee provided, in no event shall the Company be
obligated to postpone, reschedule or delay any scheduled meeting of the stockholders with respect
to such election of Nominees.
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(c) At any time a vacancy occurs because of the death, disability, resignation or removal of a
Nominee, then the Board, or any committee thereof, shall not fill such vacancy until the earliest
to occur of (i) such Stockholder has designated a successor Nominee and the Board has filled the
vacancy and appointed such successor Nominee; (ii) such Stockholder fails to designate a successor
Nominee within 30 business days after receiving notification of the vacancy from the Company; and
(iii) such Stockholder has specifically waived its right under this Section 2(c).
(d) At any time that any Stockholder shall have any rights of designation under this
Section 2, the Company shall not take any action to reduce the size of the Board from 9,
except as provided herein.
3. Termination of Stockholders Agreement. Upon the Effective Time, the Stockholders Agreement
shall be hereby terminated and of no further force and effect, and no party thereto shall have any
surviving obligations, rights, or duties thereunder after the Effective Time. From and after the
Effective Time, the Additional Investors shall have no further obligations, rights or duties under
this Agreement.
4. Effectiveness. The parties are entering into this Agreement in connection with a currently
proposed IPO. This Agreement shall become automatically effective upon, and only upon, the time as
of which the underwriters for the IPO shall have paid for all of the shares of Common Stock that
they are obligated to purchase pursuant to the related underwriting agreement (the “Underwriting
Agreement”), excluding any shares that the underwriters may have an option to purchase pursuant to
the over-allotment option (the “Effective Time”). In the event the Effective Time does not occur
on or before the earlier of (i) June 30, 2007 or (ii) the termination of the Underwriting
Agreement, this Agreement shall, without further action, become null and void and of no further
force and effect.
5. Definitions.
“Affiliate” of any Person is any other Person controlled by, controlling or under common
control with such Person and in the case of any Stockholder that is a partnership or limited
liability company, any partner or member of such Stockholder (provided that the Company shall not
be deemed to be an affiliate of any Stockholder) or in the case of any Stockholder that is a trust,
any beneficiary, trust for the benefit of the beneficiary or successor trust; provided that under
no circumstances shall (i) any of the Xxxxxxxx Investors or their Permitted Transferees be
Affiliates of (A) any of the Quadrangle Investors or their Permitted Transferees or (B) any of the
Syufy Investor or their Permitted Transferees; (ii) any of the Quadrangle Investors or their
Permitted Transferees be Affiliates of (A) any of the Xxxxxxxx Investors or their Permitted
Transferees or (B) any of the Syufy Investor or their Permitted Transferees; or (iii) any of the
Syufy Investor or their Permitted Transferees be Affiliates of (A) any of the Xxxxxxxx Investors or
their Permitted Transferees or (B) any of the Quadrangle Investors or their Permitted Transferees,
for purposes of this Agreement.
“Agreement” has the meaning set forth in the preamble.
“Board” has the meaning set forth in Section 1(a).
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“Certificate of Incorporation” means the Company’s Second Amended and Restated Certificate of
Incorporation as the same may be amended from time to time.
“Common Stock” has the meaning set forth in the preamble.
“Company” has the meaning set forth in the preamble.
“Competing Business” has the meaning set forth in Section 1(e)(iv).
“Curable Termination Event” has the meaning set forth in Section 1(e)(iv).
“Effective Time” has the meaning set forth in Section 4.
“Family Group” with respect to any Stockholder, means, such Stockholder’s spouse and
descendants (whether natural or adopted) and any trust that is and remains solely for the benefit
of such Stockholder and/or such Stockholder’s spouse and/or descendants.
“Independent” means an “independent director” as defined by the NYSE Rules. The definition of
“Independent” does not incorporate the additional independence requirements for audit committee
members set forth in the NYSE Rules or Rule 10A-3 under the Securities Exchange Act of 1934.
“Independent Third Party” means any Person other than MDCP or the Xxxxxxxx Investors.
“IPO” has the meaning set forth in the recitals.
“Major Investor” means MDCP, the Xxxxxxxx Investors, the Quadrangle Investors and the Syufy
Investor.
“MDCP” has the meaning set forth in the preamble.
“Xxxxxxxx Investors” has the meaning set forth in the preamble.
“Xxxxxxxx Nominees” has the meaning set forth in Section 1(a)(i).
“Non-Curable Termination Event” has the meaning set forth in Section 1(e)(iv).
“NYSE Rules” means the rules and policies of the New York Stock Exchange.
“Observer” has the meaning set forth in Section 1(e)(i).
“Permitted Transferee” means any Transfer of Stockholder Shares by a Stockholder who is not a
natural person to such Stockholder’s Affiliates or, in the case of a Stockholder who is a natural
person, any Transfer by will or pursuant to the applicable laws of descent and distribution and any
Transfer to or among such Stockholder’s Affiliates, and members of such holder’s Family Group or
such Family Group member’s Affiliates.
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“Person” means an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
“Quadrangle Nominee” has the meaning set forth in Section 1(a)(iii).
“Quadrangle Group LLC” means Quadrangle Group LLC, a Delaware limited liability company.
“Quadrangle Investors” has the meaning set forth in the preamble.
“Retiring Director” means any director whose term expires at the next annual meeting of the
Stockholders of the Company pursuant to the terms of the Company’s Certificate of Incorporation.
“Securities Laws” means the Securities Act of 1933, as amended from time to time and the
Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder.
“Stockholder Shares” means (i) any Company Common Stock owned by any Stockholder; and (ii) any
capital stock or other equity securities issued or issuable directly or indirectly with respect to
the Common Stock referred to in clause (i) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular shares constituting Stockholder Shares, such shares shall
cease to be Stockholder Shares when they have been (x) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them or (y) sold to the
public through a broker, dealer or market maker on a securities exchange or in the over the counter
market pursuant to Rule 144 (or any similar provision then in force) under the Securities Act.
“Stockholders” has the meaning set forth in the preamble.
“Syufy Non-Competition Agreement” has the meaning set forth in Section 1(e)(iv).
“Syufy Enterprises” means Syufy Enterprises, LP, a California limited partnership.
“Syufy Investor” has the meaning set forth in the preamble.
“Syufy Nominee” has the meaning set forth in Section 1(a)(iv).
“Syufy Person” has the meaning set forth in Section 1(e)(iv).
“Transfer” means any sale, transfer, assignment or other disposition of (whether with or
without consideration and whether voluntary or involuntary or by operation of law) of Stockholder
Shares.
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“Western Hemisphere” means the continents of North America, Central America and South America.
6. Amendment and Waiver. Except as otherwise provided herein, no modification, amendment or
waiver of any provision of this Agreement shall be effective against the Company or any holder of
Stockholder Shares unless such modification is approved in writing by the Company and each Major
Investor. The failure of any party to enforce any of the provisions of this Agreement shall in no
way be construed as a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance with its terms.
7. Severability. Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect the
validity, legality or enforceability of any other provision of this Agreement in such jurisdiction
or affect the validity, legality or enforceability of any provision in any other jurisdiction, but
this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
8. Entire Agreement. Except as otherwise expressly set forth herein, this Agreement embodies
the complete agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject matter hereof in
any way.
9. Benefit of Parties; Transfer. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, legal representatives and Permitted
Transferees. In the event of a Transfer by a Stockholder, the transferee shall not have the rights
and powers of a Stockholder unless the transferee is a Permitted Transferee of the Stockholder
prior to and following the Transfer. Nothing herein contained shall confer or is intended to
confer on any third party or entity that is not a party to this Agreement any rights under this
Agreement.
10. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be an original and all of which taken together shall constitute one and the same agreement.
11. Remedies. The Company and the Stockholders shall be entitled to enforce their rights
under this Agreement specifically, to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights existing in their favor. The parties hereto agree
and acknowledge that a breach of this Agreement would cause irreparable harm and money damages
would not be an adequate remedy for any such breach and that, in addition to other rights and
remedies hereunder, the Company and the Stockholders shall be entitled to specific performance
and/or injunctive or other equitable relief (without posting a bond or other security) from any
court of law or equity of competent jurisdiction in order to enforce or prevent any violation of
the provisions of this Agreement.
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12. Notices. Any notice provided for in this Agreement shall be in writing and shall be
either personally delivered, or mailed first class mail (postage prepaid, return receipt requested)
or sent by reputable overnight courier service (charges prepaid) to the Company at the addresses
set forth below and to any applicable Stockholder at the address indicated on the schedules hereto.
Notices shall be deemed to have been given hereunder when delivered personally, three days after
deposit in the U.S. mail and one day after deposit with a reputable overnight courier service.
| The Company’s address is: | Cinemark Holdings, Inc. | |||
| 0000 Xxxxxx Xxxxxxx, Xxxxx 000 | ||||
| Xxxxx, Xxxxx 00000 | ||||
| Facsimile: (000) 000-0000 | ||||
| Attention: Xxxxxxx X. Xxxxxxxx |
13. Governing Law. All issues and questions concerning the construction, validity,
interpretation and enforceability of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
14. Business Days. If any time period for giving notice or taking action hereunder expires on
a day which is a Saturday, Sunday or legal holiday in the state in which the Company’s chief
executive office is located, the time period shall automatically be extended to the business day
immediately following such Saturday, Sunday or legal holiday.
15. Descriptive Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
16. No Strict Construction. The language used in this Agreement shall be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
17. Mutual Waiver of Jury Trial. The parties hereto hereby irrevocably waive any and all
rights to trial by jury in any legal proceeding arising out of or related to this Agreement. Any
action or proceeding whatsoever between the parties hereto relating to this Agreement shall be
tried in a court of competent jurisdiction by a judge sitting without a jury.
[SIGNATURE PAGES FOLLOW]
- 11 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year
first above written.
| CINEMARK HOLDINGS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| MADISON DEARBORN CAPITAL PARTNERS IV, L.P. |
||||||
| By: | Madison Dearborn Partners, IV L.P., its General Partner |
|||||
| By: | Madison Dearborn Partners, LLC, its General Partner |
|||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| THE XXXXXXXX SPECIAL TRUST | ||||||
| By: | ||||||
| Xxx Xxx Xxxxxxxx, Trustee | ||||||
| By: | ||||||
| Xxxx X. Xxxxxxxxxxx, Trustee | ||||||
| QUADRANGLE CAPITAL PARTNERS LP | ||||||
| By: | Quadrangle GP Investors LP, its General Partner |
|||||
| By: | Quadrangle GP Investors, LLC, its General Partner |
|||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| QUADRANGLE SELECT PARTNERS LP | ||||||
| By: | Quadrangle GP Investors LP, its General Partner |
|||||
| By: | Quadrangle GP Investors, LLC, its General Partner |
|||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| QUADRANGLE CAPITAL PARTNERS A LP | ||||||
| By: | Quadrangle GP Investors LP, its General Partner |
|||||
| By: | Quadrangle GP Investors, LLC, its General Partner |
|||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| QUADRANGLE (CINEMARK) CAPITAL PARTNERS LP | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SYUFY ENTERPRISES, LP | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| K&E INVESTMENT PARTNERS, LLC - 2004-B DIF |
||||||
| Xxx Xxx Xxxxxxxx | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Xxxx Xxxxx |
||||||
| PIOLA INVESTMENTS LTD. | ||||||
Xxxxxxx Xxxxxx |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Xxxxxx Xxxxxx |
||||||
| Xxxx Xxxxxxx | ||||||
Xxxxxxx Xxxxxxxx |
||||||
| NORTHWESTERN UNIVERSITY | ||||||
By: |
||||||
Name: |
||||||
Title: |
||||||
SCHEDULE OF DIRECTORS
| Name | Nominated as | Class of Director | ||
| Xxx Xxx Xxxxxxxx | Xxxxxxxx Nominee | III | ||
| Vacancy | Xxxxxxxx Nominee | II | ||
| Xxxxxxxx X. Xxxxxxxxx | MDCP Nominee | III | ||
| Xxxxx X. Xxxxx, Xx. | MDCP Nominee | I | ||
| Xxxxx X. Xxxxxx | MDCP Nominee | I | ||
| Xxxx X. Xxxxxxxxxxx | MDCP Nominee | II | ||
| Xxxxxxx X. Senior | MDCP Nominee | I | ||
| Xxxxx X. Xxxxxxx | Quadrangle Nominee | II | ||
| Xxxxxxx X. Xxxxx | Syufy Nominee | III |
SCHEDULE OF XXXXXXXX INVESTORS
| Number of Shares of Company | ||||
| Name and Address | Common Stock | |||
Xxx Xxx Xxxxxxxx 0000 Xxxxxx Xxxxxxx, Xxxxx 000 Xxxxx, Xxxxx 00000 |
2,258,273 | |||
The Xxxxxxxx Special Trust 0000 Xxxxxx Xxxxxxx, Xxxxx 000 Xxxxx, Xxxxx 00000 |
2,169,713 | |||
TOTAL
|
4,427,986 | |||
SCHEDULE OF MDCP INVESTORS
| Number of Shares of Company | ||||
| Name and Address | Common Stock | |||
Madison Dearborn Capital Partners IV, L.P. Three First National Plaza 70 West Madison Street, Suite 3800 Xxxxxxx, Xxxxxxxx 00000 |
20,676,263 | |||
SCHEDULE OF QUADRANGLE INVESTORS
| Number of Shares of Company | ||||
| Name and Address | Common Stock | |||
Quadrangle Capital Partners LP c/o Quadrangle Capital Partners LLC 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxxx Xxxxxxx Facsimile: (000) 000-0000 |
1,402,915 | |||
Quadrangle Select Partners LP c/o Quadrangle Capital Partners LLC 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxxx Xxxxxxx Facsimile: (000) 000-0000 |
80,986 | |||
Quadrangle (Cinemark) Capital Partners LP c/o Quadrangle Capital Partners LLC 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxxx Xxxxxxx Facsimile: (000) 000-0000 |
163,025 | |||
Quadrangle Capital Partners A LP c/o Quadrangle Capital Partners LLC 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxxx Xxxxxxx Facsimile: (000) 000-0000 |
567,067 | |||
TOTAL
|
2,213,993 | |||
NOTE: Notices sent to the Quadrangle Investors above shall also be copied to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
SCHEDULE OF SYUFY INVESTOR
| Number of Shares of Company | ||||
| Name and Address | Common Stock | |||
Syufy Enterprises, LP 000 Xxxxxxx Xxx Xxx Xxxxxx, XX 00000 Attn: Chief Executive Officer Facsimile: (000) 000-0000 |
3,388,466 | |||
NOTE: Notices sent to the Syufy Investor above shall also be copied to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Fax: (000) 000-0000
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Fax: (000) 000-0000
SCHEDULE OF ADDITIONAL INVESTORS
Xxx Xxx Xxxxxxxx
Xxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxxx Xxxxxxxx
Northwestern University
K&E Investment Partners, LLC — 2004-B DIF
Piola Investments Ltd.
Xxxx Xxxxxxx