Exhibit 4.14
MARQUEE HOLDINGS INC.
12% Senior Discount Notes Due 2014
REGISTRATION RIGHTS AGREEMENT
August 18, 2004
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Citigroup Global Markets Inc.
BNP Paribas Securities Corp.
Scotia Capital (USA) Inc.
UBS Securities LLC
As Representatives of the Initial Purchasers
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Marquee Holdings Inc., a corporation organized under the laws of Delaware
(the "COMPANY"), proposes to issue and sell to certain purchasers (the "INITIAL
PURCHASERS"), for whom you (the "REPRESENTATIVES") are acting as
representatives, its 12% Senior Discount Notes Due 2014 (the "SECURITIES"), upon
the terms set forth in the purchase agreement, between the Company and the
Representatives, dated August 6, 2004 (the "PURCHASE AGREEMENT"), relating to
the initial placement of the Securities (the "INITIAL PLACEMENT"). To induce the
Initial Purchasers to enter into the Purchase Agreement and to satisfy a
condition of your obligations thereunder, the Company agrees with you for your
benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) and the Market Maker (as defined herein), as
follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this definition, control of
a Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such under
the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer" shall mean the exchange offer by the Company of Securities
in exchange for New Securities pursuant to Section 2(b) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933 Act
effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration statement
of the Company on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments thereto, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any Initial
Purchaser) that is a Broker-Dealer and elects to exchange for New Securities any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from the Company or any
Affiliate of the Company).
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Holder" shall mean the Initial Purchasers, for so long as they own any
Securities or New Securities, and each of the successors, assigns and direct and
indirect transferees who become owners of Securities or New Securities under the
Indenture; PROVIDED that for purposes of Sections 6 and 7 of this Agreement, the
term "Holders" shall include, where the context requires, the Market Maker.
"Indenture" shall mean the Indenture relating to the Securities, dated as
of August 18, 2004, among the Company and HSBC Bank USA, National Association,
as trustee, as the same may be amended from time to time in accordance with the
terms thereof.
2
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of Securities (or, after the consummation of any Exchange Offer
in accordance with Section 2 hereof, of New Securities) registered under a
Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Market Maker" shall have the meaning set forth in Section 6(a) hereof.
"Market Maker's Information" shall have the meaning set forth in Section
6(d) hereof.
"Market Making Registration Statements" shall mean the registration
statements referred to in Section 6(a)(i) hereof and all amendments and
supplements to any such registration statement, including post-effective
amendments, in each case including any Prospectus contained therein, all
exhibits thereto and any document incorporated by reference therein.
"Merger" shall mean the consummation of the transactions contemplated by
the Merger Agreement.
"Merger Agreement" shall mean the Merger Agreement, dated as of July 22,
2004, among the Company, Marquee Holdings Inc. and AMC Entertainment Inc.
"Merger Closing Date" shall mean the date on which the Merger is closed.
"New Securities" shall mean debt securities of the Company identical in all
material respects to the Securities (except that the cash interest and interest
rate step-up provisions and the transfer restrictions shall be modified or
eliminated, as appropriate) and to be issued under the Indenture.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
3
"Registered Exchange Offer" shall mean the proposed offer of the Company to
issue and deliver to the Holders of the Securities that are not prohibited by
any law or policy of the Commission from participating in such offer, in
exchange for the Securities, a like aggregate principal amount of the New
Securities.
"Registration Statement" shall mean any Exchange Offer Registration
Statement, Shelf Registration Statement or Market Making Registration Statement
that covers any of the Securities or the New Securities pursuant to the
provisions of this Agreement, any amendments and supplements to such
registration statement, including post-effective amendments (in each case
including the Prospectus contained therein), all exhibits thereto and all
material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to Section
3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Securities or New Securities, as applicable, on an appropriate
form under Rule 415 under the Act, or any similar rule that may be adopted by
the Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"underwriter" shall mean any underwriter of Securities in connection with
an offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER. (a) The Company shall prepare and, not
later than 90 days after the Merger Closing Date (or if such 90th day is not a
Business Day, the next succeeding Business Day), shall file with the Commission
the Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Company shall use its commercially reasonable efforts to
cause the Exchange Offer Registration Statement to become effective under the
Act within 180 days of the Merger Closing Date (or if such 180th day is not a
Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities (assuming
that such Holder is not an Affiliate of the Company, acquires the New Securities
in the ordinary course of such Holder's business, has no arrangements with any
Person to participate in the distribution of the
4
New Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such New Securities
from and after their receipt without any limitations or restrictions under the
Act and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less
than 30 days and not more than 45 days after the date notice thereof is
mailed to the Holders (or, in each case, longer if required by applicable
law);
(iii) use its commercially reasonable efforts to keep the
Exchange Offer Registration Statement continuously effective under the Act,
supplemented and amended as required, under the Act to ensure that it is
available for sales of New Securities by Exchanging Dealers during the
Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the Commission (A)
stating that the Company is conducting the Registered Exchange Offer in
reliance on the position of the Commission in EXXON CAPITAL HOLDINGS
CORPORATION (pub. avail. May 13, 1988) and, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND CO., INC.
(pub. avail. June 5, 1991); and (B) including a representation that the
Company has not entered into any arrangement or understanding with any
Person to distribute the New Securities to be received in the Registered
Exchange Offer and that, to the best of the Company's information and
belief, each Holder participating in the Registered Exchange Offer is
acquiring the New Securities in the ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the New Securities; and
(vii) comply in all respects with all applicable laws.
5
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance
with Section 5(s) all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of Securities a principal amount of New Securities equal to
the principal amount of the Securities of such Holder so accepted for
exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the New Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND CO., INC. (pub. avail. June 5,
1991) and EXXON CAPITAL HOLDINGS CORPORATION (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction and such transaction must be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K under the Act if
the resales are of New Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Company or one of its
Affiliates. Accordingly, each Holder participating in the Registered Exchange
Offer shall be required to represent to the Company that, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any Person to participate in the distribution of the Securities or the
New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company (or if it
is, that it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable).
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Company shall issue and deliver to such
Initial Purchaser or the Person purchasing New Securities registered under a
Shelf Registration Statement as contemplated by Section 3 hereof from such
Initial Purchaser, in exchange for such Securities, a like
6
principal amount of New Securities. The Company shall use its best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such New
Securities as for New Securities issued pursuant to the Registered Exchange
Offer.
3. SHELF REGISTRATION. (a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines upon
advice of its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; (ii) for any other reason
the Exchange Offer Registration Statement is not effective within 210 days after
the Merger Closing Date; (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for New Securities in the
Registered Exchange Offer and that are held by it following consummation of the
Registered Exchange Offer; (iv) any Holder (other than an Initial Purchaser) is
not eligible to participate in the Registered Exchange Offer or does not receive
freely tradeable New Securities in exchange for Securities constituting any
portion of an unsold allotment (it being understood that the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such New Securities being not "freely tradeable"), the
Company shall effect a Shelf Registration Statement in accordance with
subsection (b) below.
(b) (i) The Company shall as promptly as practicable (but
in no event more than 90 days after so required or requested pursuant to this
Section 3), file with the Commission and thereafter shall use its commercially
reasonable best efforts to cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the Securities or the
New Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; PROVIDED, HOWEVER, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder; and PROVIDED, FURTHER, that with respect to New Securities received
by an Initial Purchaser in exchange for Securities constituting any portion of
an unsold allotment, the Company may, if permitted by current interpretations by
the Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Item 507 or 508 of
Regulation S-K, as applicable, in satisfaction of its obligations under this
subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company shall use its commercially reasonable best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years after the Merger Closing Date or such shorter period that will
terminate when all the Securities or New Securities, as applicable, covered
by the Shelf Registration
7
Statement have been sold pursuant to the Shelf Registration Statement (in
any such case, such period being called the "SHELF REGISTRATION PERIOD").
The Company shall be deemed not to have used its commercially reasonable
best efforts to keep the Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action that would result in
Holders of Securities covered thereby not being able to offer and sell such
Securities during that period, unless (A) such action is required by
applicable law; or (B) such action is taken by the Company in good faith
and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets
(to the extent permitted by the terms of the Indenture), so long as the
Company promptly thereafter comply with the requirements of Section 5(k)
hereof, if applicable.
(iii) Notwithstanding the foregoing provisions of this Section
3, the Company may for valid business reasons (other than avoidance of its
obligations hereunder), including without limitation, a potential material
acquisition, divestiture of assets or other material corporate transaction,
notify Holders in writing that the Shelf Registration Statement is no
longer effective or the Prospectus included therein is no longer usable for
offers and sales of Securities or New Securities; PROVIDED that the use of
the Shelf Registration Statement or the Prospectus contained therein shall
not be suspended for more than 45 days (whether or not consecutive) in the
aggregate in any 12-month period. The Holders agree that upon receipt of
any notice from the Company pursuant to this Section 3(b)(iii), it will
discontinue use of the Prospectus contained in the Shelf Registration
Statement until receipt of copies of the supplemented or amended Prospectus
relating thereto or until advised in writing by the Company that the use of
the Prospectus contained in the Shelf Registration Statement may be
resumed.
(iv) The Company shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission; and (B) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
4. SPECIAL INTEREST. If (a) on or prior to the 90th day following the
Merger Closing Date, neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement has been filed with the Commission, (b) on or prior
to the 180th day following the Merger Closing Date, the Exchange Offer
Registration Statement has not been declared effective, or on or prior to the
90th day following the Company's obligation to file the Shelf Registration
Statement, the Shelf Registration Statement has not been filed, (c) on or prior
to the 45th day following the date the Exchange Offer
8
Registration Statement has been declared effective, the Registered Exchange
Offer has not been consummated, or (d) after either the Exchange Offer
Registration Statement or the Shelf Registration Statement has been declared
effective, such Registration Statement thereafter ceases to be effective or
usable in connection with resales of Securities or New Securities in accordance
with and during the periods specified in this Agreement (each such event
referred to in clauses (a) through (d), a "REGISTRATION DEFAULT"), interest
("SPECIAL INTEREST") will accrue on the principal amount of the Securities and
the New Securities (in addition to the stated interest on the Securities and New
Securities) from and including the date on which any such Registration Default
shall occur to but excluding the date on which all Registration Defaults have
been cured. Special Interest will accrue at a rate of $0.192 per week per $1,000
principal amount of notes. Notwithstanding the foregoing, no Special Interest
shall accrue during or with respect to any suspension period referred to in
Section 3(b)(iii) above.
All obligations of the Company set forth in the preceding paragraph that
are outstanding with respect to any Security at the time such Security is
exchanged for a New Security shall survive until such time as all such
obligations with respect to such Security have been satisfied in full.
5. ADDITIONAL REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement or Market Making Registration Statement, the following
provisions shall apply.
(a) The Company shall:
(i) furnish to you, not less than five Business Days prior
to the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) and shall use its best efforts
to reflect in each such document, when so filed with the Commission, such
comments as you reasonably propose;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer, in Annex C hereto in
the underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D
hereto in the letter of transmittal delivered pursuant to the Registered
Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as applicable,
in the Prospectus contained in the Exchange Offer Registration Statement;
and
9
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Act and the rules and
regulations thereunder; and
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain 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.
(c) The Company shall advise you, the Holders of Securities
covered by any Shelf Registration Statement and any Exchanging Dealer under any
Exchange Offer Registration Statement that has provided in writing to the
Company a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm such
advice in writing (which notice pursuant to clauses (ii) through (v) hereof
shall be accompanied by an instruction to suspend the use of the Prospectus
until the Company shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(v) of the happening of any event that requires any change
in the Registration Statement or the Prospectus so that, as of such date,
the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the
10
case of the Prospectus, in the light of the circumstances under which they
were made) not misleading.
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities
covered by any Shelf Registration Statement, without charge, at least one copy
of such Shelf Registration Statement and any post-effective amendment thereto,
including all material incorporated therein by reference, and, if the Holder so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of securities in connection with the
offering and sale of the securities covered by the Prospectus, or any amendment
or supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including all
material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Company shall promptly deliver to the Initial
Purchasers, each Exchanging Dealer and each other Person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge, as
many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such Person may
reasonably request. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the Initial Purchasers, any Exchanging Dealer
and any such other Person that may be required to deliver a Prospectus following
the Registered Exchange Offer in connection with the offering and sale of the
New Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities or New Securities pursuant to any Registration Statement,
the Company shall arrange, if necessary, for the qualification of the Securities
or the New Securities for sale under the laws of such jurisdictions as any
Holder shall reasonably
11
request and will maintain such qualification in effect so long as required;
PROVIDED that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange Offer or any
offering pursuant to a Shelf Registration Statement, in any such jurisdiction
where it is not then so subject.
(j) The Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of certificates
representing New Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Company shall promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to initial purchasers of the
securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 and the Shelf
Registration Statement provided for in Section 3(b) shall each be extended by
the number of days from and including the date of the giving of a notice of
suspension pursuant to Section 5(c) to and including the date when the Initial
Purchasers, the Holders of the Securities and any known Exchanging Dealer shall
have received such amended or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company shall provide a CUSIP number for the Securities or the
New Securities, as the case may be, registered under such Registration Statement
and provide the Trustee with printed certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its security
holders as soon as practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions of
Section 11(a) of the Act.
(n) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as the
Company may from time to time reasonably require for inclusion in such
Registration Statement.
12
The Company may exclude from such Shelf Registration Statement the Securities or
New Securities of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements and take all other appropriate actions
(including if requested an underwriting agreement in customary form) in order to
expedite or facilitate the registration or the disposition of the Securities or
New Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 8 (or such other
provisions and procedures acceptable to the Majority Holders and the Managing
Underwriters, if any, with respect to all parties to be indemnified pursuant to
Section 8).
(q) In the case of any Shelf Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the Holders
of Securities or New Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries;
(ii) use its reasonable best efforts to cause the Company's
officers, directors and employees to supply all relevant information
reasonably requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration Statement as
is customary for similar due diligence examinations; PROVIDED, HOWEVER,
that any information that is designated in writing by the Company , in good
faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information becomes available
to the public generally or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and warranties to the Holders
of Securities or New Securities registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any) addressed to
each selling Holder and the underwriters, if any, covering such matters as
are
13
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling Holder
of Securities or New Securities registered thereunder and the underwriters,
if any, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing Underwriters,
if any, including those to evidence compliance with Section 5(k) and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration
Statement, the Company shall:
(i) make reasonably available for inspection by such Initial
Purchaser, and any attorney, accountant or other agent retained by such
Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries;
(ii) use its reasonable best efforts to cause the Company's
officers, directors and employees to supply all relevant information
reasonably requested by such Initial Purchaser or any such attorney,
accountant or agent in connection with any such Registration Statement as
is customary for similar due diligence examinations; PROVIDED, HOWEVER,
that any information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information shall be
kept confidential by such Initial Purchaser or any such attorney,
accountant or agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information becomes available
to the public generally or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and warranties to such Initial
Purchaser, in form, substance and scope as are customarily made by issuers
to
14
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to such Initial Purchaser) and its counsel,
addressed to such Initial Purchaser, covering such matters as are
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Initial Purchaser
or its counsel;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to such Initial Purchaser, in customary form
and covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings, or if requested by such
Initial Purchaser or its counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by such Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel, including
those to evidence compliance with Section 5(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated,
upon delivery of the Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the New Securities, the
Company shall ▇▇▇▇, or caused to be marked, on the Securities so exchanged that
such Securities are being canceled in exchange for the New Securities. In no
event shall the Securities be marked as paid or otherwise satisfied.
(t) The Company will use its commercially reasonable best
efforts (i) if the Securities have been rated prior to the initial sale of such
Securities, to confirm such ratings will apply to the Securities or the New
Securities, as the case may be, covered by a Registration Statement; or (ii) if
the Securities were not previously rated, to cause the Securities covered by a
Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by Majority Holders with respect to
the related Registration Statement or by any Managing Underwriters.
15
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the Rules of Fair
Practice and the By-Laws of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
assist such Broker-Dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to exercise
usual standards of due diligence with respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 7
hereof; and
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the requirements
of such Rules.
(v) The Company shall use its reasonable best efforts to
take all other steps necessary to effect the registration of the Securities
or the New Securities, as the case may be, covered by a Registration
Statement.
6. MARKET MAKING. (a) For so long as any of the Securities or the New
Securities are outstanding and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (in such capacity,
the "MARKET MAKER") or any of its Affiliates is an Affiliate of the Company or
any of its Affiliates and proposes to make a market in the Securities or the New
Securities as part of its business in the ordinary course, the following
provisions shall apply for the sole benefit of the Market Maker:
(i) The Company shall (A) on the date that the Exchange Offer
Registration Statement or, if required hereby, the Shelf Registration
Statement is filed with the Commission, file a registration statement (the
"MARKET MAKING REGISTRATION STATEMENT") (which may be the Exchange Offer
Registration Statement or the Shelf Registration Statement if permitted by
the rules and regulations of the Commission) and use its commercially
reasonable best efforts to cause such Market Making Registration Statement
to be declared effective by the Commission on or prior to the consummation
of the Registered Exchange Offer or the effective date of the Shelf
Registration Statement, as applicable; (B) periodically amend such Market
Making Registration Statement so that the information contained therein
complies with the requirements of Section 10(a) under the Securities Act;
(C) amend the Market Making Registration Statement or
16
amend or supplement the related Prospectus when necessary to reflect any
material changes in the information provided therein; and (D) amend the
Market Making Registration Statement when required to do so in order to
comply with Section 10(a)(3) of the Securities Act; PROVIDED, HOWEVER, that
(1) prior to filing the Market Making Registration Statement, any amendment
thereto or any supplement to the related Prospectus, the Company shall
furnish to the Market Maker copies of all such documents proposed to be
filed, which documents will be subject to the review of the Market Maker
and its counsel and (2) the Company will not file any Market Making
Registration Statement, any amendment thereto or any amendment or
supplement to the related Prospectus to which the Market Maker and its
counsel shall reasonably object unless the Company is advised by counsel
that such Market Making Registration Statement, amendment or supplement is
required to be filed under applicable securities laws and the Company will
provide the Market Maker and its counsel with copies of such Market Making
Registration Statement and each amendment and supplement filed.
(ii) The Company shall notify the Market Maker and, if requested by
the Market Maker, confirm such advice in writing, (A) when the Market
Making Registration Statement, any post-effective amendment to the Market
Making Registration Statement or any amendment or supplement to the related
Prospectus has been filed, and, with respect to the Market Making
Registration Statement or any post-effective amendment, when the same has
become effective; (B) of any request by the Commission for any
post-effective amendment to the Market Making Registration Statement, any
supplement or amendment to the related Prospectus or for additional
information; (C) the issuance by the Commission of any stop order
suspending the effectiveness of the Market Making Registration Statement or
the initiation of any proceedings for that purpose; (D) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities or the New Securities for sale in any
jurisdiction or the initiation or threatening of any proceedings for that
purpose; and (E) of the happening of any event that makes any statement
made in the Market Making Registration Statement, the related Prospectus or
any amendment or supplement thereto untrue or that requires that making of
any changes in the Market Making Registration Statement, such Prospectus or
any amendment or supplement thereto, in order to make the statements
therein not misleading.
(iii) If any event contemplated by Section 6(a)(ii)(B) through (E)
occurs during the period for which the Company is required to maintain an
effective Market Making Registration Statement, the Company shall promptly
prepare and file with the Commission a post-effective amendment to such
Market Making Registration Statement or an amendment or supplement to the
related Prospectus or file any other required document so that the
Prospectus will not include an untrue statement of a material fact or omit
to state a material fact
17
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) In the event of the issuance of any stop order suspending the
effectiveness of the Market Making Registration Statement or of any order
suspending the qualification of the Securities or the New Securities for
sale in any jurisdiction, the Company shall promptly use its reasonable
best efforts to obtain its withdrawal.
(v) The Company shall furnish to the Market Maker, without charge,
(A) at least one conformed copy of the Market Making Registration Statement
and any post-effective amendment thereto; and (B) as many copies of the
related Prospectus and any amendment or supplement thereto as the Market
Maker may reasonably request.
(vi) The Company shall consent to the use of any Prospectus
contained in the Market Making Registration Statement or any amendment or
supplement thereto by the Market Maker in connection with its market-making
activities.
(vii) Notwithstanding the foregoing provisions of this Section 6,
the Company may for valid business reasons, including without limitation, a
potential material acquisition, divestiture of assets or other material
corporate transaction, notify the Market Maker in writing that the Market
Making Registration Statement is no longer effective or the Prospectus
included therein is no longer usable for offers and sales of Securities or
the New Securities; PROVIDED that the use of the Market Making Registration
Statement or the Prospectus contained therein shall not be suspended for
more than 75 days (whether or not consecutive) in the aggregate in any
12-month period. The Market Maker agrees that upon receipt of any notice
from the Company pursuant to this Section 6(a)(vii), it will discontinue
use of the Prospectus contained in the Market Making Registration Statement
until receipt of copies of the supplemented or amended Prospectus relating
thereto or until advised in writing by the Company that the use of the
Prospectus contained in such Market Making Registration Statement may be
resumed.
(b) In connection with the Market Making Registration
Statement, the Company shall (i) make reasonably available for inspection by a
representative of, and counsel acting for, the Market Maker all relevant
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries and (ii) use its reasonable best efforts to have
its officers, directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative or counsel or the Market
Maker; PROVIDED, HOWEVER, that any information that is designated in writing by
the Company, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Market Maker or any representative
or counsel, unless such disclosure is made in connection with a
18
court proceeding or required by law, or such information becomes available to
the public generally or through a third party without an accompanying obligation
of confidentiality;
(c) Prior to the effective date of the Market Making
Registration Statement, the Company shall arrange, if necessary, for the
qualification of the Securities or the New Securities for sale under the laws of
such jurisdictions as the Market Maker reasonably requests in writing and will
maintain such qualification in effect so long as required to enable the offer
and sale in such jurisdictions of the Securities and the New Securities covered
by the Market Making Registration Statement; PROVIDED that in no event shall the
Company be obligated to (i) qualify as a foreign corporation or other entity or
as a dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to subject itself to
service of process in any such jurisdictions or (iii) subject itself to taxation
in any such jurisdiction if it not so subject.
(d) The Company represents and agrees that the Market Making
Registration Statement, any post-effective amendments thereto, any amendments or
supplements to the related Prospectus and any documents filed by it under the
Exchange Act will, when they become effective or are filed with the Commission,
as the case may be, conform in all respects to the requirements of the Act and
the Exchange Act and the rules and regulations of the Commission thereunder and
will not, as of the effective date of such Market Making Registration Statement
or post-effective amendments and as of the filing date of amendments or
supplements to such Prospectus or filings under the Exchange Act, contain 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, in the light of
the circumstances under which they were made, not misleading; PROVIDED that no
representation or warranty is made as to information contained in or omitted
from the Market Making Registration Statement or the related Prospectus in
reliance upon and in conformity with written information furnished to the
Company by the Market Maker specifically for inclusion therein, which
information the parties hereto agree will be limited to the statements
concerning the market-making activities of the Market Maker to be set forth on
the cover page and in the "Plan of Distribution" section of the related
Prospectus (the "MARKET MAKER'S INFORMATION").
(e) At the time of effectiveness of the Market Making
Registration Statement and concurrently with each time such Market Making
Registration Statement or the related Prospectus shall be amended or such
Prospectus shall be supplemented, the Company shall (if requested by the Market
Maker) furnish the Market Maker and its counsel with a certificate of its
Chairman of the Board of Directors or Chief Executive Officer and its Chief
Financial Officer to the effect that:
(i) the Market Making Registration Statement has been
declared effective;
(ii) in the case of an amendment to the Market Making
Registration Statement, such amendment has become effective under the Act
as of
19
the date and time specified in such certificate, if applicable; and in the
case of an amendment or supplement to the Prospectus, such amendment or
supplement to the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Act specified in such certificate on
the date specified therein;
(iii) to the knowledge of such officers, no stop order
suspending the effectiveness of such Market Making Registration Statement
has been issued and no proceeding for that purpose is pending or threatened
by the Commission; and
(iv) such officers have carefully examined such Market Making
Registration Statement and the Prospectus (and, in the case of an amendment
or supplement, such amendment or supplement) and as of the date of such
Market Making Registration Statement, amendment or supplement, as
applicable, the Market Making Registration Statement and the Prospectus, as
amended or supplemented, if applicable, did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(f) At the time of effectiveness of the Market Making
Registration Statement and concurrently with each time the Market Making
Registration Statement or the related Prospectus shall be amended or such
Prospectus shall be supplemented, the Company shall (if requested by the Market
Maker) furnish the Market Maker and its counsel with the written opinion of
counsel for the Company satisfactory to the Market Maker to the effect that:
(i) the Market Making Registration Statement has been
declared effective;
(ii) in the case of an amendment to the Market Making
Registration Statement, such amendment has become effective under the Act
as of the date and time specified in such opinion, if applicable; and in
the case of an amendment or supplement to the Prospectus, such amendment or
supplement to the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Act specified in such opinion on the
date specified therein;
(iii) to the knowledge of such counsel, no stop order
suspending the effectiveness of such Market Making Registration Statement
has been issued and no proceeding for that purpose is pending or threatened
by the Commission; and
(iv) such counsel has reviewed such Market Making
Registration Statement and the Prospectus (and, in the case of an amendment
or supplement, such amendment or supplement) and participated with officers
of the Company and independent public accountants for the Company in the
preparation
20
of such Market Making Registration Statement and Prospectus (and, in the
case of an amendment or supplement, such amendment or supplement) and has
no reason to believe that (except for the financial statements and other
financial and statistical data contained therein as to which such counsel
need express no belief) as of the date of such Market Making Registration
Statement, amendment or supplement, as applicable, the Market Making
Registration Statement and the Prospectus, as amended or supplemented, if
applicable, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(g) At the time of effectiveness of the Market Making
Registration Statement and concurrently with each time such Market Making
Registration Statement or the related Prospectus shall be amended or such
Prospectus shall be supplemented to include audited annual financial
information, the Company shall (if requested by the Market Maker) furnish the
Market Maker and its counsel with a letter of PricewaterhouseCoopers LLP (or
other independent public accountants for the Company of nationally recognized
standing) in form satisfactory to the Market Maker, addressed to the Market
Maker and dated the date of delivery of such letter, (i) confirming that they
are independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) in all
other respects, substantially in the form of the letter delivered to the Initial
Purchasers pursuant to the Purchase Agreement, with, in the case of an amendment
or supplement that includes audited financial information, such changes as may
be necessary to reflect the amended or supplemented financial information.
(h) The Company, on the one hand, and the Market Maker, on
the other hand, hereby agree to indemnify each other, and, if applicable,
contribute to the other, in accordance with Section 8 of this Agreement.
(i) The Company will comply with the provisions of this
Section 6 at its own expense and will reimburse the Market Maker for its
expenses associated with this Section 6 (including reasonable fees of counsel
for the Market Maker).
(j) The agreements contained in this Section 6 and the
representations, warranties and agreements contained in this Agreement shall
survive all offers and sales of the Securities and New Securities and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
(k) For purposes of this Section 6, (i) any reference to the
terms "amend", "amendment" or "supplement" with respect to the Market Making
Registration Statement or the Prospectus contained therein shall be deemed to
refer to and include the filing under the Exchange Act of any document deemed to
be incorporated therein by reference and (ii) any reference to the terms
"Securities" and
21
"New Securities" shall be deemed to refer to and include any securities issued
in exchange for or with respect to such Securities or New Securities.
7. REGISTRATION EXPENSES. The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2, 3, 5 and 6
hereof and, in the event of any Shelf Registration Statement, will reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Holder of Securities or New Securities, as the case may
be, covered by any Registration Statement (including each Initial Purchaser, the
Market Maker and, with respect to any Prospectus delivery as contemplated in
Section 5(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each Person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all
Losses, joint or several, to which they or any of them may become subject under
the Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any Market Making Registration Statement as originally
filed or in any amendment thereof, or in any preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company will not be liable in
any case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information or the Market Maker Information furnished to the
Company by or on behalf of any such Holder or the Market Maker specifically for
inclusion therein. In addition, the Company agrees to indemnify and hold
harmless the Market Maker from and against any and all Losses that arise out of,
or are based upon, any breach by the Company of its representations, warranties
and agreements contained in Section 6 hereof. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute as provided in Section
8(d) to Losses of each underwriter of any Securities or New Securities, as the
case may be, registered under a Shelf Registration Statement, their directors,
officers, employees or agents and each Person who controls such underwriter on
substantially the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in
22
this Section 8(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 5(p)
hereof.
With respect to any untrue statement or omission of material fact made in
any preliminary Prospectus, the indemnity agreement contained in this Section
8(a) shall not inure to the benefit of any indemnified person from whom the
person asserting any such loss, claim, damage or liability purchased the
securities concerned, to the extent that any such loss, claim, damage or
liability of such indemnified person occurs under the circumstance where it
shall have been determined by a court of competent jurisdiction by final and
non-appealable judgment that (w) the Company had previously furnished copies of
the preliminary Prospectus to such indemnified person, (x) delivery of the Final
Prospectus was required by the Act to be made to such person, (y) the untrue
statement or omission of a material fact contained in the preliminary Prospectus
was corrected in the Final Prospectus and (z) there was not sent or given to
such person, at or prior to the written confirmation of the sale of such
securities to such person, a copy of the Final Prospectus.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 5(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs such Registration Statement and each
Person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) The Market Maker agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the Market
Making Registration Statement and each Person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Market Maker, but only with respect
to any Losses which arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any Market Maker's Information furnished to the Company in
writing by the Market Maker specifically for inclusion in the Market Making
Registration Statement and any Prospectus. This indemnity agreement will be in
addition to any liability which any Market Maker may otherwise have.
(d) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a), (b) or (c) above unless
and to the extent it did not otherwise learn of such action and such
23
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a), (b) or (c) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); PROVIDED, HOWEVER, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action;
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. Any such separate
counsel (x) for any Initial Purchaser or the Market Maker, its affiliates,
directors and officers and any control Persons of such Initial Purchaser or the
Market Maker shall be designated in writing by ▇.▇. ▇▇▇▇▇▇ Securities Inc., (y)
for any Holder, its directors and officers and any control Persons of such
Holder shall be designated in writing by the Majority Holders and (z) in all
other cases shall be designated in writing by the Company. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(e) In the event that the indemnity provided in paragraph
(a), (b) or (c) of this Section is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable indemnifying
party shall have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "LOSSES") to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Initial Placement and the Registration Statement which resulted
in such Losses; PROVIDED,
24
HOWEVER, that in no case shall any Initial Purchaser or any subsequent Holder of
any Security or New Security be responsible, in the aggregate, for any amount in
excess of the total fees received by such Initial Purchaser or subsequent Holder
in connection with the purchase of such Security, or in the case of a New
Security, applicable to the Security that was exchangeable into such New
Security, nor shall any underwriter be responsible for any amount in excess of
the underwriting discount or commission applicable to the securities purchased
by such underwriter under the Registration Statement which resulted in such
Losses; PROVIDED, FURTHER, that in no case shall the Market Maker be required to
contribute any amount in excess of the amount by which the total price at which
the Securities sold by the Market Maker exceeds the amount of any damages that
the Market Maker has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the sum of (x) the total net proceeds from the Initial Placement (before
deducting expenses) and (y) the total amount of additional interest which the
Company was not required to pay as a result of registering the securities
covered by the Registration Statement which resulted in such Losses. Benefits
received by the Initial Purchasers shall be deemed to be equal to the total fees
received by the Initial Purchasers pursuant to Section 2 of the Purchase
Agreement, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities or New Securities, as applicable,
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to, among other things, whether any alleged untrue statement or omission relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (e), no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each Person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each Person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have
25
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (e).
(f) The provisions of this Section will remain in full force
and effect, regardless of (i) the termination of this Agreement, (ii) any
investigation made by or on behalf of the Market Maker, any Holder, the Company
or any of the officers, directors or controlling Persons referred to in this
Section hereof, (iii) acceptance of any of the New Securities; (iv) any sale by
a Holder or the Market Maker of securities covered by a Registration Statement
(including a Market Making Registration Statement).
9. UNDERWRITTEN REGISTRATIONS. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees to
sell such Person's Securities or New Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
10. NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Market Maker or the Holders herein or otherwise conflicts with
the provisions hereof.
11. AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Majority Holders and, with respect to the provisions of Section 6 and 7, the
Market Maker; PROVIDED that with respect to any matter that directly or
indirectly affects the rights of any Initial Purchaser hereunder, the Company
shall obtain the written consent of each such Initial Purchaser against which
such amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders
representing a majority of the aggregate principal amount of Securities or New
Securities, as the case may be, being sold rather than registered under such
Registration Statement, voting together as a single class.
26
12. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by
such holder to the Company in accordance with the provisions of this Section,
which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to ▇.▇. ▇▇▇▇▇▇ Securities Inc.;
(b) if to you or the Market Maker, initially at the
respective addresses set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 12; and
(c) if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
The Initial Purchasers or the Company by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
13. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities and the New Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
14. COUNTERPARTS. This agreement may be in signed counterparts, each of
which shall an original and all of which together shall constitute one and the
same agreement.
15. HEADINGS. The headings used herein are for convenience only and shall
not affect the construction hereof.
16. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York.
17. SEVERABILITY. In the event that any one of more of the provisions
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 in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
27
18. SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable,
held by the Company or its Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
28
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a building agreement between the
Company and the Initial Purchasers.
Very truly yours,
MARQUEE HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
▇.▇. ▇▇▇▇▇▇ SECURITIES,
FOR ITSELF AND ON BEHALF OF
THE OTHER INITIAL PURCHASERS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
29
ANNEX A
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter: within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in exchange
for Securities, where such Securities were acquired by such Broker-Dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such New
Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 2004, all dealers effecting transactions
in the New Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of New Securities
by brokers-dealers. New Securities received by Broker-Dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Securities or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
Broker-Dealer and/or the purchasers of any such New Securities. Any
Broker-Dealer that resells New Securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that
it acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
