Exhibit 99.2
V32
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (the "Agreement") is made and entered into this
15th day of August, 1997, between (i) AMCE Entertainment Inc., a Delaware
corporation (the "Company"), (ii) Xxxxxxx X. Xxxxxxx, individually and as
trustee of the 1992 Xxxxxxx, Inc. Voting Trust dated December 12, 1992 (the
"1992 Trust"), and the Trust created pursuant to the Xxxxxxx X. Xxxxxxx Trust
Agreement dated August 14, 1989 (the "1989 Trust"), Xxxxx X. Xxxxxxxxx, Xxxxxx
X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx, Xxxxx X.
Xxxxxxx, The Xxxxxx X. and Xxxxxxx X. Xxxxxxx Family Investment Partnership, a
California limited partnership (the "TBD Partnership") (the "Family
Stockholders") and each Permitted Assignee (as herein defined) of such Family
Stockholder listed on Exhibit A to this Agreement from time to time (each such
Family Stockholder and Permitted Assignee a "Stockholder" and collectively
"Stockholders") and (iii) solely for purposes of Section 4 hereof, Delta
Properties, Inc., a Missouri corporation.
The Company has agreed to provide to the Stockholders the registration rights
("Registration Rights") set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
Section 1. Certain Definitions.
For purposes of this Agreement, the following terms shall have the following
respective meanings:
"Adjusted Basis" shall mean, as of a specified date with respect to a specified
number of shares of Common Stock or Class B Stock, the number of shares of
Common Stock and Class B Stock that a record holder of such specified number of
shares on March
1
31, 1997 would hold on such specified date, after giving effect to all stock
dividends and splits and all subdivisions, combinations or reclassifications of
such class of securities the record date of which occurs between March 31, 1997
and such specified date.
"Charitable Assignee" of a Stockholder shall mean any charitable
organization, including charitable remainder and charitable lead trusts, a
transfer of property to which by such Stockholder would qualify, at least in
part, for an income, gift or estate tax charitable deduction under the Internal
Revenue Code of 1986, as amended.
"Class B Stock" shall mean the Class B Stock, par value 66 2/3(cent) per share,
of the Company.
"Commission" shall mean the Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
"Common Stock" shall mean the Common Stock, par value 66 2/3(cent) per share, of
the Company.
"DI" shall mean Xxxxxxx, Inc., a Missouri corporation, which is to be merged
into the Company in the Merger.
"Effectiveness Period" shall have the meaning set forth in Section 2(a).
"Effective Date" shall mean the date on which the Commission declares a
Registration effective or on which a Registration otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any successor
thereto, as the same shall be amended from time to time.
2
The term "holder" shall mean a Stockholder and such of its respective Permitted
Assignees who acquire Registrable Securities, directly or indirectly, from such
Stockholder or from any Permitted Assignee of such Stockholder.
"Merger" shall mean the merger of DI with and into the Company pursuant to the
Agreement and Plan of Merger and Reorganization dated as of March 31, 1997
between the Company and DI (the "Merger Agreement").
"Permitted Assignees" of a Stockholder shall mean any of the following
persons and entities to which Registrable Securities are transferred by such
Stockholder by gift prior to the date the Registration Statement is first filed
with the Commission that at the time of such transfer agree by instrument in
form and substance reasonably satisfactory to the Company to be bound by the
provisions of (x) this Agreement and (y) the Stock Agreement, in each case as a
"Stockholder": (i) another Stockholder, (ii) the spouse of a Stockholder, (iii)
a lineal descendant of a Stockholder, including an adopted child, and any spouse
of a lineal descendant (each, a "Family Member"), (iv) a trust established by
one or more Stockholders or Family Members of one or more Stockholders
principally for the benefit of one or more Stockholders or Family Members of
Stockholders and/or one or more Charitable Assignees, (v) the estate of such
Stockholder and (vi) any Charitable Assignee. Upon the transfer of shares of
Registrable Securities by a Stockholder to a Permitted Assignee of such
Stockholder as provided herein prior to the date the Registration Statement is
first filed with the Commission, Exhibit A hereto will be deemed to be amended
without further action of the parties hereto (x) to reduce the number of shares
of Registrable Securities set forth next to such Stockholder's name on Exhibit A
by the number of shares so transferred that will be subject to this Agreement,
(y) if such Permitted Assignee's name is not listed on Exhibit A, to add the
name of such Permitted Assignee to Exhibit A as a Stockholder, and (z) to set
forth the number of shares of Registrable Securities so transferred that will be
subject to this Agreement (or to increase the number of shares so listed by the
number of shares so transferred that will be subject to this Agreement) next to
such Permitted Assignee's name on Exhibit A. Notwithstanding any provision of
this Agreement to the contrary, a Family Stockholder may transfer to or for the
benefit of one or more Charitable Assignees in the aggregate up to five percent
(5%) of the number of shares of Common Stock or Class B Stock received by such
Family Stockholder in the Merger (or shares of Common Stock issued upon
conversion of such Class B Stock), free and clear of all the provisions of this
Agreement, and such Charitable Assignees may elect after the date of
3
transfer (but otherwise at a time consistent with the provisions of this
Agreement) to participate in the Registration (in which case such Charitable
Assignee shall be deemed to be a Permitted Assignee (except that such Charitable
Assignee need not agree to be bound by the provisions of the Stock Agreement));
provided that if any such Charitable Assignee elects to participate in the
Registration, (i) such Charitable Assignee must then agree by instrument in form
and substance satisfactory to the Company to be bound by this Agreement and (ii)
the provisions of the preceding sentence shall apply.
The term "person" shall mean a corporation, association, partnership (general,
limited or limited liability), organization, business, limited liability
company, individual, government or political subdivision thereof or governmental
agency.
"Prospectus" shall mean the prospectus included in a 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 promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to the
prospectus, including post-effective amendments, and all documents and materials
incorporated by reference in such prospectus.
"Registrable Securities" shall mean the shares of Common Stock (on an Adjusted
Basis), listed on Exhibit A hereto and acquired by Stockholders pursuant to the
Merger or upon conversion of shares of the Class B Stock acquired by
Stockholders pursuant to the Merger.
"Registration" shall have the meaning set forth in Section 2(a).
"Registration Expenses" shall have the meaning set forth in Section 4 hereof.
"Registration Statement" shall mean a registration statement of the Company that
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement,
4
including post-effective amendments, all exhibits, and all material incorporated
by reference in such registration statement.
"Securities Act" shall mean the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"Stock Agreement" shall have the meaning set forth in the Merger
Agreement.
The term "underwritten offering" shall mean a distribution of securities
subject to registration under the Securities Act in which securities are sold to
an underwriter for reoffering to the public.
Section 2. Registration.
(a) Registration. Subject to the consummation of the Merger and the
effectiveness of the Registration, each Stockholder agrees to participate in a
registered underwritten secondary offering of at least 3,000,000 shares (on an
Adjusted Basis) in the aggregate of Registrable Securities on the terms and
conditions set forth in this Agreement and to sell such number of shares of
Common Stock in such underwritten offering as is set forth next to each
Stockholder's name on Exhibit A, subject to increase or reduction as set forth
below. The Stockholders agree that the underwriters for the Registration will
use their reasonable efforts in light of market conditions to sell at least 70%
of the shares sold in such secondary offering to institutional (as opposed to
retail) investors. The Company agrees (subject to the performance by the
Stockholders of their obligations hereunder) to use its reasonable efforts to
file a Registration Statement on a form selected by the Company to register
under the Securities Act for sale to the public in an underwritten offering the
number of shares of Registrable Securities owned by each Stockholder set forth
next to such Stockholder's name on Exhibit A hereto (on an Adjusted Basis) from
time to time (the "Registration") or such smaller or greater number of shares of
Registrable Securities as shall be agreed by the Company and such Stockholder in
writing, provided that (x) the number of shares of Registrable Securities of a
Stockholder set forth on Exhibit A may be decreased without the consent of the
Company by written notice to the Company reasonably
5
satisfactory to the Company from such Stockholder if (1) the number of shares of
Registrable Securities of another Stockholder set forth on Exhibit A is at the
same time increased by a like number of shares or (2) such shares are
transferred to a Permitted Assignee of such Stockholder and such Permitted
Assignee becomes a party hereto as a Stockholder and such shares so transferred
are set forth next to such Permitted Assignee's name on Exhibit A hereto, (y)
the number of shares of Registrable Securities of a Stockholder set forth on
Exhibit A may be decreased without the consent of the Company by written notice
to the Company reasonably satisfactory to the Company from such Stockholder so
long as after giving effect thereto the Registration covers at least 3,000,000
shares of Common Stock (on an Adjusted Basis) and (z) the number of shares of
Registrable Securities of a Family Stockholder set forth in Exhibit A may be
increased without the consent of the Company by written notice to the Company
from such Family Stockholder so long as after giving effect thereto the
Registration covers no more than 5,000,000 shares of Common Stock (on an
Adjusted Basis). Should more than one Family Stockholder seek to increase the
number of Registrable Securities as permitted above and as a result the number
of shares sought to be included in the Registration exceeds 5,000,000 shares (on
an Adjusted Basis), the number of shares, if any, that Xxxxxxx X. Xxxxxxx, the
1992 Trust and the 1989 Trust have sought to include in the Registration above
the number listed on Exhibit A (on an Adjusted Basis) shall be reduced to the
extent necessary to reduce the aggregate number of shares sought to be included
in the Registration to 5,000,000 shares (on an Adjusted Basis), and if such
number of shares still exceeds 5,000,000, the Company shall allocate the
increased number of shares to be included in the Registration among such Family
Stockholders (other than Xxxxxxx X. Xxxxxxx, the 1992 Trust and the 1989 Trust)
seeking an increase on a pro rata basis or in such other manner as such Family
Stockholders may agree. In the event of any increase or decrease in the number
of Registrable Securities of a Stockholder as set forth above, Exhibit A hereto
shall be deemed amended to increase or decrease, accordingly, the number of
shares of Registrable Securities set forth next to such Stockholder's name. The
Company shall (subject to the performance by the Stockholders of their
obligations hereunder) use its reasonable efforts to cause the Registration to
be declared effective under the Securities Act as promptly as practicable on or
after the date that is six months and one day from the date of the Merger and to
keep the Registration effective under the Securities Act for a period ending on
the date that is six months from such date (provided that such six month period
shall be extended by the length of any Postponement Period (as defined below))
or such shorter period ending when all Registrable Securities covered by the
Registration have been sold (the "Effectiveness Period").
6
(b) Supplements and Amendments. The Company shall supplement and amend the
Registration Statement, prior to the Effective Date and during the Effectiveness
Period, if (i) required by the rules, regulations or instructions applicable to
the registration form used for such Registration, (ii) otherwise required by the
Securities Act or (iii) reasonably requested by the holders of a majority in
aggregate principal amount of the Registrable Securities covered by such
Registration Statement or by any underwriter of such Registrable Securities.
(c) Selection of Underwriters. The managing underwriters for the
Registration shall be selected jointly by the Company and the Family
Stockholders (other than the 1992 Trust and the 1989 Trust) acting by majority
vote (for which purpose each such Family Stockholder shall have one vote).
(d) Conditions to the Obligations of Company. The Company shall be entitled
to postpone (or if already filed may withdraw such Registration Statement), for
an aggregate of up to 180 days (together with any period described in the last
sentence of Section 3(b) hereof, a "Postponement Period"), the filing of the
Registration Statement otherwise required to be prepared and filed by it
pursuant hereto if, as a result of the Registration the Company would be
required to prepare any financial statements other than those it customarily
prepares or the Company determines in its reasonable business judgment that such
registration and offering would interfere with any material financing,
acquisition, corporate reorganization or other material corporate transaction or
development involving the Company and gives the Stockholders written notice of
such determination.
Section 3. Registration Procedures.
(a) In connection with the Company's obligations with respect to the
Registration, the Company shall (subject to the performance by the Stockholders
of their obligations hereunder):
(i) prepare and file with the Commission a Registration Statement which shall
permit the disposition of the Registrable Securities, in an underwritten
offering, and use
7
its reasonable efforts to cause such Registration Statement to become
effective as provided in this Agreement; provided, however, before filing
the Registration Statement or Prospectus or any amendments or supplements
thereto (including documents that would be incorporated therein by
reference after the initial filing of the Registration Statement), the
Company shall afford the Counsel (as defined below) and the managing
underwriters, an opportunity to review copies of all such documents
proposed to be filed; provided, further, that the Company shall not file
any Registration Statement or related Prospectus or any amendments or
supplements thereto (including such documents incorporated by reference) if
such counsel for all such holders, or the managing underwriters shall
reasonably object, in writing, on a timely basis (provided that any such
objecting party and the Company use their best efforts promptly to resolve
such party's objections on a basis reasonably satisfactory to such party
and the Company which will permit such filing);
(ii) prepare and file with the Commission such amendments, post-effective
amendments and supplements to such Registration Statement and the
Prospectus included therein as may be necessary to effect and maintain the
effectiveness of such Registration Statement for the applicable period
specified herein and furnish to the Stockholders copies of any such
supplement or amendment prior to its being used or filed with the
Commission;
(iii)for a reasonable period prior to the filing of such Registration Statement,
and throughout the Effectiveness Period, make available for inspection by
the Counsel and the counsel for the managing underwriters such financial
and other information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public accountants
of the Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that each such party
shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the
Company in writing as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such Registration Statement or otherwise), or (B) such person
shall be required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and only after
such person shall have given the Company prompt written notice of such
requirement), or (C) such information is required to be set forth in such
Registration Statement or the
8
Prospectus included therein or in an amendment to such Registration
Statement or an amendment or supplement to such Prospectus in order that
such Registration Statement, Prospectus, amendment or supplement, as the
case may be, does not contain an untrue statement of a material fact or
omit to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(iv) notify the Stockholders and the managing underwriters thereof and, if
requested by any such person, confirm such advice in writing, (A) when such
Registration Statement or the Prospectus included therein or any Prospectus
amendment or supplement or post-effective amendment has been filed, and,
with respect to such Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or regulator of
any state with respect thereto or any request by the Commission for
amendments or supplements to such Registration Statement or Prospectus or
for additional information, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of such Registration Statement or
the initiation or threatening of any proceedings for that purpose, (D) if
at any time the representations and warranties of the Company contemplated
by Section 3(a)(xi) hereof cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, or (F) at any time when a Prospectus is
required to be delivered under the Securities Act, that such Registration
Statement, Prospectus, Prospectus amendment or supplement or post-effective
amendment, or any document incorporated by reference in any of the
foregoing, contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(v) use its reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of such Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(vi) if requested by the managing underwriters or the holders of a majority of
the Registrable Securities covered by the Registration, incorporate in a
Prospectus supplement or post-effective amendment such information as is
required by the applicable
9
rules and regulations of the Commission and as such managing underwriters
or such holders specify should be included therein relating to the terms
of the sale of such Registrable Securities, including, without limitation,
information with respect to the principal amount of Registrable Securities
being sold by such holders or to any underwriters, the name and description
of such holders or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation payable in
respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of the
Registrable Securities to be sold by such holders or to such underwriters;
and make all required filings of such Prospectus supplement or post-
effective amendment after notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(vii) furnish to each Stockholder, each underwriter of holders of Registrable
Securities participating in the Registration thereof and the Counsel an
executed copy of such Registration Statement, each such amendment or
supplement thereto (in each case, upon request, including all exhibits
thereto and documents incorporated by reference therein) and furnish each
such holder and underwriter such number of copies of the Prospectus
included in such Registration Statement (including each preliminary
Prospectus and any summary Prospectus) as such holder or underwriter may
reasonably request; the Company hereby consents to the use of such
Prospectus (including such preliminary and summary Prospectus) and any
amendment or supplement thereto by each such holder and underwriter, in
each case in the form most recently provided to such party by the Company,
in connection with the offering and sale of the Registrable Securities
covered by the Prospectus (including such preliminary and summary
Prospectus) or any supplement or amendment thereto;
(viii) use its reasonable efforts to (A) register or qualify the Registrable
Securities to be included in such Registration Statement under such state
securities laws or blue sky laws of such jurisdictions as any holder of
such Registrable Securities and underwriter thereof shall reasonably
request, (B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the period such Registration
Statement is required to be kept effective and for so long as may be
necessary to enable any such holder or underwriter to complete its
distribution of Securities pursuant to such Registration Statement as
contemplated hereby and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such holder and
underwriter to consummate the disposition in such jurisdictions of such
Registrable Securities; provided, however, that the Company shall
10
not be required for any such purpose to (I) qualify as a foreign
corporation in any jurisdiction where it would not otherwise be required to
qualify but for the requirements of this Section 3(a)(viii), (II) consent
to general service of process in any such jurisdiction, (III) subject
itself to taxation in any such jurisdiction or (IV) make any changes to the
Company's Certificate of Incorporation or By-laws or any agreement between
the Company and its stockholders;
(ix) cooperate with the holders of the Registrable Securities and the managing
underwriters to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
Registrable Securities shall not bear any restrictive legends; and enable
such Registrable Securities to be registered in such names as the managing
underwriters may request at least two business days prior to any sale of
the Registrable Securities to the underwriters;
(x) enter into one or more underwriting agreements, or similar agreements, as
appropriate, with customary provisions applicable to such agreements,
provided that any such underwriting agreements shall contain an agreement
of the underwriters to indemnify and hold harmless the Company against any
and all losses, claims, damages, and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus relating to the Registrable Securities
if a copy of the current Prospectus, as amended or supplemented, was
furnished to the underwriters and/or the holders of such Registrable
Securities by the Company but was not provided to a purchaser and such
current Prospectus would have cured the defect giving rise to such loss,
claim, damage or liability, or shall contain a substantially similar
agreement acceptable to the Company; and
(xi) (A) make such representations and warranties to the holders of such
Registrable Securities and the underwriters thereof in form, substance and
scope as are customarily made in connection with an offering of equity
securities pursuant to a Registration Statement filed on the form
applicable to the Registration; (B) obtain an opinion of counsel to the
Company in customary form and covering such matters, of the type
customarily covered by such an opinion, as the managing underwriters, and
as the holders of at least a majority in aggregate principal amount of the
Registrable Securities covered by the Registration, may reasonably request,
addressed to such holder or holders and the underwriters thereof; (C)
obtain "comfort" letters and updates thereof from the independent
11
certified public accountants of the Company addressed to the selling
holders of Registrable Securities and the underwriters thereof, such
letters to be in customary form and covering matters of the type
ustomarily covered in "comfort" letters to underwriters in connection with
underwritten offerings; (D) deliver such documents and certificates,
including officer's certificates, as may be reasonably requested by the
holders of at least a majority in aggregate principal amount of the
Registrable Securities being sold and the managing underwriters thereof to
evidence the accuracy of the representations and warranties made pursuant
to clause (A) above and the compliance with or satisfaction of any
agreements or conditions contained in the underwriting agreement or other
agreement entered into by the Company; and (E) undertake such obligations
relating to expense reimbursement, indemnification and contribution as are
provided in Sections 4 and 5 hereof.
(b) In the event that the Company would be required, pursuant to Section
3(a)(iv)(F) above, to notify the selling holders of Registrable Securities, and
the managing underwriters thereof, the Company shall prepare and furnish to each
such holder and to each underwriter a reasonable number of copies of a
Prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, such Prospectus shall not 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 in
light of the circumstances then existing. Each holder of Registrable Securities
agrees that upon receipt of any notice from the Company pursuant to Section
3(a)(iv)(F) hereof, such holder shall forthwith discontinue the disposition of
Registrable Securities pursuant to the Registration Statement applicable to such
Registrable Securities until such holder shall have received copies of such
amended or supplemented Prospectus, and if so directed by the Company, such
holder shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such holder's possession of the Prospectus
covering such Registrable Securities at the time of receipt of such notice. In
the event the Company shall give such notice, the Company shall extend the
period during which such Registration Statement shall be maintained effective as
provided in Section 2(a) hereof by the number of days during the period from and
including the date of the giving of such notice to the date when the Company
shall make available to each holder of Registrable Securities covered by the
Registration Statement such amended or supplemented Prospectus.
(c) The Company may require each holder of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such holder (and, in the case of Xxxxxxx X. Xxxxxxx,
regarding DI, its subsidiaries
12
(other than the Company), American Associated Enterprises, a Missouri limited
partnership ("AAE"), the 1989 Trust and the 1992 Trust) and the method of
distribution of such Registrable Securities as the Company may from time to time
reasonably request in writing. Each such holder agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished by such holder to the Company or of the occurrence of any event in
either case as a result of which any Prospectus relating to such registration
contains or would contain an untrue statement of a material fact regarding such
holder or the method of distribution of such Registrable Securities or omits to
state any material fact regarding such holder or the intended method of
distribution of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such Prospectus shall not contain, with respect
to such holder or the method of distribution of such Registrable Securities, an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
(d) In connection with the Registration, the Family Stockholders (other than
the 1992 Trust and the 1989 Trust) acting by majority vote (for which purpose
each such Family Stockholder shall have one vote) thereby shall designate a
single counsel (the "Counsel"), which shall be reasonably satisfactory to the
Company, to represent the collective interests of all of the holders of the
Registrable Securities covered by the Registration Statement in the Registration
and in their dealings with the Company.
(e) The Company may require each holder of Registrable Securities covered by
a Registration Statement promptly to furnish in writing to the Company such
information regarding such holder (and, in the case of Xxxxxxx X. Xxxxxxx,
regarding DI, its subsidiaries (other than the Company), AAE, the 1989 Trust and
the 1992 Trust), the plan of distribution of the Registrable Securities and
other information as the Company may from time to time reasonably request or as
may be legally required in connection with such Registration.
13
Section 4. Registration Expenses.
Xxxxxxx X. Xxxxxxx, the 1989 Trust, the 1992 Trust and Delta shall bear and
pay (jointly and severally), promptly upon request being made therefor, all
expenses incident to the Company's performance of or compliance with this
Agreement whether or not the public offering contemplated by the Registration is
consummated, including, without limitation, (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Registrable Securities for offering and
sale under the state securities and blue sky laws referred to in Section
3(a)(viii) hereof, including reasonable fees and disbursements of counsel for
the underwriters in connection with such qualifications (in the event that such
counsel performs such functions), (c) all expenses relating to the preparation,
printing, distribution and reproduction of the Registration Statement required
to be filed hereunder, each Prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
certificates representing the Registrable Securities and all other documents
relating hereto, (d) messenger and delivery expenses, (e) fees and expenses of
any escrow agent or custodian, (f) fees, disbursements and expenses of counsel
and independent certified public accountants of the Company (including the
expenses of any opinions or "comfort" letters required by or incident to such
performance and compliance), and fees, expenses and disbursements of any other
persons, including special experts, retained by the Company in connection with
such registration (collectively, the "Registration Expenses"). Each holder of
the Registrable Securities being registered severally shall also pay (i) its
respective pro rata portion of all underwriting discounts and commissions
attributable to the sale of such Registrable Securities and the reasonable fees
and disbursements of the Counsel and (ii) the entire amount of the fees and
expenses of any counsel or other advisors or experts retained by such holder.
The Company shall pay all of its internal expenses (including, without
limitation, all salaries and expenses of the Company's officers and employees
performing legal or accounting duties).
Section 5. Indemnification.
(a) Indemnification by the Company. The Company shall, and it hereby agrees
to, indemnify and hold harmless each holder of Registrable Securities to be
included in the Registration (other than Xxxxxxx X. Xxxxxxx, the 1992 Trust and
the 1989 Trust) from and against any and all losses, claims, damages and
liabilities to which such holder may
14
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages and liabilities (or actions in respect thereof) and related
expenses (including without limitation reasonable attorneys' fees and expenses)
("Losses") arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement under which
such Registrable Securities were registered under the Securities Act, or any
preliminary, final or summary Prospectus contained therein or furnished by the
Company to any such holder, or any amendment or supplement thereto, or arise out
of or are based upon any omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading; provided,
however, that (A) the Company shall not be obligated to indemnify any such
person in any such case to the extent that any such Losses are caused by an
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement, or preliminary, final or summary
Prospectus, or amendment or supplement based upon written information furnished
to the Company by any holder of Registrable Securities expressly for use
therein, (B) the Company shall not be liable to any such holder under the
indemnity agreement in this subsection (a) with respect to any preliminary
Prospectus to the extent that any such Loss of such holder results from the fact
that such person sold Registrable Securities to a person as to whom it shall be
established that there was not sent or given at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented if the Company has previously furnished copies thereof
in sufficient quantity to such holder or underwriter and the loss, claim, damage
or liability of such holder or underwriter results from an untrue statement or
omission of a material fact contained in the preliminary Prospectus which was
corrected in the Prospectus or in the Prospectus as amended or supplemented and
(C) the Company shall not be obligated to indemnify any such holder with respect
to any sales occurring after the Company has given notice under Section
3(a)(iv)(F) to such holder and the managing underwriters and prior to the
delivery by the Company of any amended or supplemented Prospectus.
(b) Indemnification by the Holders. Each Stockholder shall, and hereby
agrees to, severally and not jointly, indemnify and hold harmless the Company,
and all other holders of Registrable Securities, against any Losses to which the
Company or such other holders of Registrable Securities may become subject,
under the Securities Act or otherwise, to the same extent as the foregoing
indemnity by the Company contained in (a), but only with reference to
information relating to such Stockholder furnished to the Company by such
Stockholder expressly for use in such Registration Statement, or any
preliminary, final or summary Prospectus and, where such Stockholder is Xxxxxxx
X. Xxxxxxx, the 1989 Trust or the 1992 Trust, with reference to information
relating to DI, its subsidiaries (other than
15
the Company), AAE, the 1989 Trust, the 1992 Trust and Xxxxxxx X. Xxxxxxx;
provided, however, that no such holder shall be required to indemnify under this
Section 5(b) for any amounts in excess of the dollar amount of the proceeds to
be received by such holder from the sale of such holder's Registrable Securities
pursuant to such Registration. Such information shall be deemed to have been so
furnished for use therein by a Stockholder if it relates to such Stockholder
(or, in the case of Xxxxxxx X. Xxxxxxx, the 1989 Trust or the 1992 Trust, where
it relates to Xxxxxxx X. Xxxxxxx, the 1989 Trust, the 1992 Trust, DI, its
subsidiaries (other than the Company) or AAE) and if such Registration Statement
was available for review by such Stockholder (or the legal counsel for such
Stockholder) a reasonable time before being filed and not objected to in writing
by such Stockholder prior to the filing thereof.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 5, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall relieve it from liability which it may have to any indemnified party
only to the extent the indemnifying party is prejudiced thereby. In case any
such action shall be brought against any indemnified party and it shall notify
an indemnifying party of the commencement thereof, such indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall pay the fees and disbursements of such counsel and
shall not be liable to such indemnified party for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties. Such firm
shall be designated in writing by the managing underwriter if the named parties
to such proceeding include the managing underwriter and by the Family
16
Stockholders (other than the 1992 Trust and the 1989 Trust) acting by majority
vote (in which each such Family Stockholder shall have one vote) in the case of
parties indemnified pursuant to paragraph (a) above and by the Company in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent not to be unreasonably withheld, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party not to be
unreasonably withheld, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 5(a) or Section 5(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any Losses referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Losses in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnifying party and the indemnified party,
but also the relative fault of the indemnifying party and the indemnified party
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or by such indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Notwithstanding the provisions of this Section 5(d), no holder shall be
required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder has otherwise been
required to pay by reason of such untrue or alleged
17
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The holders' obligations in this Section 5(d) to
contribute shall be several in proportion to the principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.
(e) The obligations of the Company under this Section 5 shall extend, upon
the same terms and conditions, to each officer, director and partner of each
holder and each person, if any, who controls any holder within the meaning of
either Section 20 of the Exchange Act or Section 15 of the Securities Act; and
the obligations of the Stockholders contemplated by this Section 5 shall be in
addition to any liability which the Stockholders may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company (including any person who, with his consent, is named in any
Registration Statement as about to become a director of the Company) and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
(f) The obligations of the Company and each Stockholder under this Section 5
shall terminate on the Termination Date (as defined below), except that such
obligations shall survive in respect to any claim for indemnification made under
this Section 5 prior to the Termination Date until such claim for
indemnification is finally resolved. As used herein "Termination Date" means the
March 31 that is two years after the March 31 occurring immediately after the
date on which the Effective Time (defined in the Merger Agreement) occurs.
Section 6. Underwriting Requirements.
Each holder of Registrable Securities hereby agrees (i) to sell such
holder's Registrable Securities on a basis consistent with this Agreement and as
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) to complete and execute all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
18
Section 7. Miscellaneous.
(a) Specific Performance. The parties hereto acknowledge that there may be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder and that each party may be irreparably harmed by any such failure, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement, in any court of the
United States or any State thereof having jurisdiction.
(b) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: if to the Company, to it
at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Corporate
Secretary, if to Delta, to it at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000, and if to a Stockholder, to such Stockholder at the address set forth on
the signature page hereof next to such Stockholder's signature, provided that
such addresses may be changed by written notice as provided in this paragraph.
Information copies of all notices given to a Stockholder (other than Xxxxxxx X.
Xxxxxxx, the 1992 Trust or the 1989 Trust) or to Delta shall be given to:
Xxxxxx X. Xxxxxx, Esq.
Kopple & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Xxxxx Xxxxxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
19
Information copies of all notices given
to Xxxxxxx X. Xxxxxxx, the 1992 Trust,
the 1989 Trust, or Delta should be
given to: Xxxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxxx & Xxxx X.X.
0000 Xxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Information copies of all notices given
to the Company should be given to: Xxxxxxx X. Xxxx, Xx., Esq.
Hallmark Cards, Incorporated
0000 XxXxx Xxxxxxxxxx
Xxxxxx Xxxx, XX 00000-0000
The Xxxxxxxxx Xxxx X. Xxxxxxxx
Polsinelli, White, Xxxxxxxx & Xxxxxxx
Xxxxx 0000, Xxxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
(c) Third Party Beneficiaries: Holders Entitled and Bound. This agreement
shall be binding upon and inure to the benefit of the parties, their successors,
heirs, legatees, devisees and personal and legal representatives, and any
transferee that is a Permitted Assignee. No party may assign its rights under
this Agreement (except to a Permitted Assignee as provided herein) without the
consent of the other parties hereto.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Survival. The respective indemnities, agreements, representations and
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer
20
or partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive the transfer of Registrable Securities by such holder.
(f) Law Governing; Consent to Jurisdiction.
(I) This Agreement shall be governed by and construed in accordance with
the laws of the State of Missouri without giving effect to the conflicts of laws
principles thereof.
(II) Each party hereto hereby consents to, and confers exclusive
jurisdiction upon, the courts of the State of Missouri and the Federal courts of
the United States of America located in the City of Kansas City, Missouri, and
appropriate appellate courts therefrom, over any action, suit or proceeding
arising out of or relating to this Agreement. Each party covenants that it will
not commence any action, suit or proceeding arising out of or relating to this
Agreement in any other jurisdiction. Nothing in this paragraph shall affect the
rights of a party to enforce a judgment rendered by the courts referred to in
the first sentence of this paragraph in any other jurisdiction. Each party
hereto hereby waives, and agrees not to assert, as a defense in any such action,
suit or proceeding that it is not subject to such jurisdiction or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that this Agreement may not be enforced in or by said courts or that
its property is exempt or immune from execution, that the suit, action or
proceeding is brought in an inconvenient forum, or that the venue of the suit,
action or proceeding is improper. Service of process in any such action, suit or
proceeding may be served on any party anywhere in the world, whether within or
without the State of Missouri by mailing a copy thereof by registered or
certified mail, postage prepaid, to such party at its address provided in
Section 7(b) of this Agreement, provided that service of process may be
accomplished in any other manner permitted by applicable law.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
21
(h) Entire Agreement; Amendments. This Agreement, the Stock Agreement, the
Indemnification Agreement and the Merger Agreement and, with respect to the
Family Stockholders, that certain Xxxxxxx Family Settlement Agreement dated as
of January 22, 1996 contain the entire understanding of the parties with respect
to the transactions contemplated hereby. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter, except that the Xxxxxxx Family Settlement Agreement shall not be deemed
to be amended by this Agreement and shall remain in full force and effect. This
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
Family Stockholders acting by majority vote (for which purpose each Family
Stockholder (other than the 1992 Trust and the 1989 Trust) shall have one vote).
Each holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any amendment or waiver effected pursuant to this Section
7(h), whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of the
Company at the address thereof set forth in Section 7(b) above.
(j) Severability. In the event that any one or more of the provisions
contained in this Agreement, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Certain Provisions Regarding the TBD Partnership. The TBD partnership
will not participate in any vote or determination to be made by the Stockholders
hereunder. All agreements and obligations of Xxxxxx X. Xxxxxxx and the TBD
Partnership made herein or arising hereunder shall be deemed to be joint and
several agreements and obligations of each of Xxxxxx X. Xxxxxxx and the TBD
Partnership, except that the number of Registrable Securities to be sold by
Xxxxxx X. Xxxxxxx and the TBD Partnership in the
22
secondary offering provided for herein shall in the aggregrate equal the number
of shares of Registrable Securities set forth next to Xxxxxx X. Xxxxxxx'x name
on Exhibit A hereto (the allocation of such Registrable Securities between
Xxxxxx X. Xxxxxxx and the TBD Partnership to be determined by Xxxxxx X.
Xxxxxxx).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
AMC ENTERTAINMENT INC.
By: /s/Xxxxx X. Xxxxx
-----------------
Xxxxx X. Xxxxx
President
DELTA PROPERTIES, INC.
By:/s/Xxxxxxx X. Xxxxxxx
---------------------
Address: Suite 1700
Power & Light Building
000 Xxxx 00xx Xxxxxx
P.O. Box 419615
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
/s/Xxxxxxx X. Xxxxxxx
---------------------
0000 Xxxxxxx Xxxxx Xxxxx
/s/Xxxxx X. Xxxxxxxxx Xxxx Xxxxxxx, Xxxxxxxx 00000
---------------------
0000 Xxxx 00xx Xxxxxx
/s/Xxxxxx X. Xxxxxxx Xxxxxxx Xxxxxxx, XX 00000
--------------------
X.X. Xxx 0000
/s/Xxxxxx X. Xxxxxxx Xxxxxx Xxxxx Xx, XX 00000
--------------------
23
000 Xxxxxxxx Xxxx Xxxx
/s/Xxxxxx X. Xxxxxx Xxxxxx, XX 00000
-------------------
000 X.X. Xxxxxxxx Xxxxx
/s/Xxxxx X. Xxxxxxx Xxxxxxxxx, XX 00000
-------------------
000 Xxxx Xxx Xxxxxx
/s/Xxxxx X. Xxxxxxx Xxx Xxxx, XX 00000
-------------------
Suite 1700
Power & Light Building
000 Xxxx 00xx Xxxxxx
P.O. Box 419615
/s/Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000-0000
----------------------
as trustee of the 1992
Trust
Suite 1700
Power & Light Building
000 Xxxx 00xx Xxxxxx
P.O. Box 419615
/s/Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000-0000
----------------------
as trustee of the 1989
Trust
THE XXXXXX X. AND XXXXXXX F. P.O. Box 7208
XXXXXXX FAMILY INVESTMENT Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
PARTNERSHIP
By:/s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx, as Trustee of the Xxxxxx X. and Xxxxxxx X. Xxxxxxx
Family Trust, as General Partner
By: /s/Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx, as Trustee of the Xxxxxx X. and Xxxxxxx X. Xxxxxxx
Family Trust, as General Partner
24
Exhibit A
Xxxxxxx X. Xxxxxxx *
1989 Trust *
1992 Trust *
___________
*500,000 shares, collectively
Xxxxx X. Xxxxxxxxx 416,666.67 shares
Xxxxxx X. Xxxxxxx 416,666.67 shares
Xxxxxx X. Xxxxxxx 416,666.67 shares
Xxxxxx X. Xxxxxx 416,666.67 shares
Xxxxx X. Xxxxxxx 416,666.67 shares
Xxxxx X. Xxxxxxx 416,666.67 shares
25
