EXHIBIT 10.10
EXECUTION COPY
CINEMARK, INC.
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "AGREEMENT") is made as of March 12,
2004, among Cinemark, Inc., a Delaware corporation (the "COMPANY"), Madison
Dearborn Capital Partners IV, L.P., a Delaware limited partnership ("MDCP"), and
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ and The ▇▇▇▇▇▇▇▇ Special Trust (collectively, the "▇▇▇▇▇▇▇▇
INVESTORS").
The ▇▇▇▇▇▇▇▇ Investors currently own shares of the Company's Class B
Common Stock, and MDCP is a party to a Stock Purchase Agreement of even date
herewith (the "PURCHASE AGREEMENT") pursuant to which MDCP will purchase shares
of the Company's Class A Common Stock. In order to induce MDCP (together with
the ▇▇▇▇▇▇▇▇ Investors, collectively, the "INVESTORS") to enter into the
Purchase Agreement and to induce the ▇▇▇▇▇▇▇▇ Investors to vote in favor of the
merger between the Company and Popcorn Merger Corp. pursuant to the Merger
Agreement, the Company has agreed to provide the Investors the registration
rights set forth in this Agreement. This Agreement shall become effective upon
the Closing under the Purchase Agreement. Unless otherwise provided in this
Agreement, capitalized terms used herein shall have the meanings set forth in
paragraph 10 hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Demand Registrations.
(a) Requests for Registration. Subject to the terms and
conditions of this Agreement, at any time the holders of a majority of the MDCP
Registrable Securities may request registration under the Securities Act of all
or any portion of their Registrable Securities on Form S-1 or any similar
long-form registration ("LONG-FORM REGISTRATIONS"). Subject to the terms and
conditions of this Agreement, at any time after the first to occur of (i) the
third anniversary of the Closing under the Purchase Agreement, (ii) 180 days
after the completion of the initial public offering of the Class A Common Stock
registered under the Securities Act (the "IPO") , or (iii) the Company achieves
or exceeds its annual EBITDA target as set forth in the Company's Five-Year Plan
for any two consecutive fiscal years prior to the end of the Company's 2008
fiscal year, the holders of a majority of the ▇▇▇▇▇▇▇▇ Registrable Securities
may request registration under the Securities Act of all or any portion of their
respective Registrable Securities on a Long-Form Registration; provided that in
the case of the first Demand Registrations under clauses (i) and (iii) above,
the registration offering price per share of Class A Common Stock must be at
least twice the initial cost per share of the Class A Common Stock purchased by
MDCP under the Purchase Agreement. Subject to the terms and conditions of this
Agreement, at any time after 180 days after the completion of the initial public
offering of the Class A Common Stock registered under the Securities Act, the
holders of a majority of the Co-Investor Registrable Securities may request
registration under the Securities Act of all or any of their Registrable
Securities on a Long-Form Registration. In addition, subject to the terms and
conditions of this Agreement, at any time after the IPO, the holders of a
majority of the MDCP Registrable Securities, the holders of a majority of the
▇▇▇▇▇▇▇▇ Registrable Securities and the
holders of a majority of the Co-Investor Registrable Securities, each as a
separate group, may request registration under the Securities Act of all or any
portion of their respective Registrable Securities on Form S-3 (including
pursuant to Rule 415 under the Securities Act) or any similar short-form
registration ("SHORT-FORM REGISTRATIONS") if available. All registrations
requested pursuant to this paragraph 1(a) are referred to herein as "DEMAND
REGISTRATIONS." Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be registered, the
anticipated per share price range for such offering and the intended method of
distribution. Within ten days after receipt of any such request, the Company
shall give written notice of such requested registration to all other holders of
Registrable Securities and, subject to the terms of paragraph 1(d) hereof, shall
include in such registration (and in all related registrations and
qualifications under state blue sky laws or in compliance with other
registration requirements and in any related underwriting) all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) Long-Form Registrations. The holders of the MDCP
Registrable Securities shall be entitled to request four Long-Form
Registrations, the holders of the ▇▇▇▇▇▇▇▇ Registrable Securities shall be
entitled to request two Long-Form Registrations, and the holders of the
Co-Investor Registrable Securities shall be entitled to request one Long-Form
Registration. The Company shall pay all Registration Expenses in connection with
such Long-Form Registrations as provided in this Agreement; provided that the
aggregate offering value of the Registrable Securities requested to be
registered in connection with a Long-Form Registration which is the IPO must
equal at least $100,000,000, and the aggregate offering value of the Registrable
Securities requested to be registered in any other Long-Form Registration must
equal at least $50,000,000. A registration shall not count as one of the
permitted Long-Form Registrations with respect to a holder until it has become
effective and maintained continuously effective for a period of at least three
months or such shorter period when all Registrable Securities included therein
have been sold in accordance therewith (unless such Long-Form Registration has
not become effective due to the fault of the holders requesting such
registration). All Long-Form Registrations shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the
Long-Form Registrations provided pursuant to paragraph 1(b), the holders of the
MDCP Registrable Securities, the ▇▇▇▇▇▇▇▇ Registrable Securities and the
Co-Investor Registrable Securities, each as a separate group, shall be entitled
to request an unlimited number of Short-Form Registrations in which the Company
shall pay all Registration Expenses; provided that the aggregate offering value
of the Registrable Securities requested to be registered in any Short-Form
Registration must equal at least $20,000,000. Demand Registrations shall be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form and if the managing underwriters (if any) agree to the use of a
Short-Form Registration.
(d) Priority on Demand Registrations. The Company shall
not include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their reasonable opinion the number of Registrable Securities
and, if permitted hereunder, other securities requested to be included in such
offering exceeds the
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number of Registrable Securities and other securities, if any, which can be sold
therein without adversely affecting the marketability of the offering, the
Company shall include in such registration prior to the inclusion of any
securities which are not Registrable Securities the number of Registrable
Securities requested to be included which in the reasonable opinion of such
underwriters can be sold without adversely affecting the marketability of the
offering, pro rata among the respective holders thereof on the basis of the
amount of Registrable Securities owned by each such holder at such time;
provided that the holders of ▇▇▇▇▇▇▇▇ Registrable Securities shall be entitled
to register up to 66-2/3% of the Registrable Securities included in the initial
Long-Form Registration requested by such holders hereunder. Any Persons other
than holders of Registrable Securities who participate in Demand Registrations
which are not at the Company's expense must pay their share of the Registration
Expenses as provided in paragraph 5 hereof.
(e) Restrictions on Demand Registrations. The Company
shall not be obligated to effect any Demand Registration within 180 days after
the effective date of a previous Demand Registration or Piggyback Registration
hereunder. The Company may postpone the filing or the effectiveness of a
registration statement for a period not to exceed 180 days for a Demand
Registration if the Company's board of directors determines in its reasonable
good faith judgment that such Demand Registration would reasonably be expected
to have a material adverse effect on any proposal or plan by the Company or any
of its Subsidiaries to engage in any acquisition or sale of assets (other than
in the ordinary course of business) or any merger, consolidation, tender offer,
acquisition, recapitalization, reorganization or similar transaction or would
require the disclosure of any material nonpublic information which would
reasonably be expected to be detrimental to the Company and its Subsidiaries;
provided that in such event, the holders of Registrable Securities initially
requesting such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration shall not count as
one of the permitted Demand Registrations hereunder and the Company shall pay
all Registration Expenses in connection with such registration and provided that
the Company may not exercise its right to delay a Demand Registration more than
once in any twelve-month period.
(f) Selection of Underwriters. The Company shall have the
right to select the investment banker(s) and manager(s) to administer the
offering in any Demand Registration.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
a Demand Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "PIGGYBACK REGISTRATION"), the Company
shall give prompt written notice (in any event within five business days after
its receipt of notice of any exercise of demand registration rights other than
under this Agreement) to all holders of Registrable Securities of its intention
to effect such a registration and, subject to the terms of paragraphs 2(c) and
2(d) hereof, shall include in such registration (and in all related
registrations or qualifications under blue sky laws or in compliance with other
registration requirements and in any related underwriting) all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
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(b) Piggyback Expenses. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
reasonable opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities the Company proposes to sell,
(ii) second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of Registrable Securities owned by each such holder at such
time, and (iii) third, other securities requested to be included in such
registration.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their reasonable opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company shall include in such registration (i) first, the securities requested
to be included therein by the holders requesting such registration and the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such securities on the basis of the number of Registrable
Securities and such other securities owned by each such holder at such time, and
(ii) second, other securities requested to be included in such registration.
(e) Selection of Underwriters. The Company shall have the
right to select the investment banker(s) and manager(s) to administer the
offering in any Piggyback Registration.
(f) Other Registrations. If the Company has previously
filed a registration statement with respect to Registrable Securities pursuant
to paragraph 1 or pursuant to this paragraph 2, and if such previous
registration has not been withdrawn or abandoned, the Company shall not file or
cause to be effected any other registration of any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (except on Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least 180 days has elapsed from the effective
date of such previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities shall not
effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the 180-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such
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securities, during the seven days prior to and during the 180-day period
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise agree,
and (ii) shall cause each holder of at least 5% of its outstanding Class A
Common Stock, or any securities convertible into or exchangeable or exercisable
for Class A Common Stock, purchased from the Company at any time after the date
of this Agreement (other than in a registered public offering) to agree not to
effect any public sale or distribution (including sales pursuant to Rule 144) of
any such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company shall use its commercially
reasonable efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Securities and
Exchange Commission a registration statement, and all amendments and supplements
thereto and related prospectuses as may be necessary to comply with applicable
securities laws, with respect to such Registrable Securities and use its
commercially reasonable efforts to cause such registration statement to become
effective;
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be required and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its commercially reasonable efforts to register
or qualify such Registrable Securities under such other securities or blue sky
laws of such jurisdictions as any seller reasonably requests and do any and all
other acts and things which may be reasonably necessary to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller (provided that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
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(e) notify each seller of such Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its
commercially reasonable efforts to secure designation of all such Registrable
Securities covered by such registration statement as a NASDAQ "national market
system security" within the meaning of Rule 11Aa2-1 of the Securities and
Exchange Commission or, failing that, to secure NASDAQ authorization for such
Registrable Securities;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
and
(i) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve months
beginning with the first day of the Company's first full calendar quarter after
the effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of
or compliance with this Agreement, including without limitation all
registration, qualification and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and disbursements of
counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained by
the Company (all such expenses being herein called "Registration Expenses"),
shall be borne as provided in this Agreement, except that the Company shall, in
any event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any
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liability insurance and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration, the
Company shall reimburse the holders of Registrable Securities included in such
registration for the reasonable fees and disbursements (not exceeding $25,000
for each registration) of one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration and for the reasonable fees
and disbursements (not exceeding $10,000 for each counsel) of each additional
counsel retained by any holder or group of affiliated holders of Registrable
Securities for the purpose of rendering a legal opinion on behalf of such holder
in connection with any underwritten Demand Registration or Piggyback
Registration.
(c) To the extent Registration Expenses are not required
to be paid by the Company, each holder of securities included in any
registration hereunder shall pay such holder's pro rata share of those
Registration Expenses based upon the number of Registrable Securities of such
holder included in such registration.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent
permitted by law, each holder of Registrable Securities, its officers and
directors and each Person who controls such holder (within the meaning of the
Securities Act) against all losses, claims, actions, damages, liabilities and
expenses caused by (i) any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any violation or alleged violation by
the Company of the Securities Act or any other similar federal or state
securities laws or any rule or regulation promulgated thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and to pay
to each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act), as
incurred, any legal and any other expenses reasonably incurred in connection
with investigating, preparing or defending any such claim, loss, damage,
liability or action, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder expressly for
use therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in
which a holder of Registrable Securities is participating, each such holder
shall furnish to the Company in writing such information and affidavits as the
Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, shall indemnify
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the Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder; provided that the obligation
to indemnify shall be individual, not joint and several, for each holder and
shall be limited to the net amount of proceeds received by such holder from the
sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder
shall (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
prompt notice shall not impair any Person's right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without the indemnifying party's
consent (but such consent shall not be unreasonably withheld). An indemnifying
party who is not entitled to, or elects not to, assume the defense of a claim
shall not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim. In such instance, the
conflicting indemnified parties shall have a right to retain one separate
counsel, chosen by the holders of a majority of the Registrable Securities
included in the registration, at the expense of the indemnifying party. No
indemnifying party, in the defense of such claim or litigation, shall, except
with the consent of each indemnified party, consent to the entry of any judgment
or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this paragraph
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indemnified party or is otherwise unenforceable with respect to any loss, claim,
damage, liability or action referred to herein, then the indemnifying party, in
lieu of indemnifying such indemnified party hereunder, shall contribute to the
amounts paid or payable by such indemnified party as a result of such loss,
claim, damage, liability or action in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other hand in connection with the statements or
omissions which resulted in such loss, claim, damage, liability or action as
well as any other relevant equitable considerations; provided that the maximum
amount of liability in respect of such contribution shall be limited, in the
case of each seller of Registrable Securities, to an amount equal to the net
proceeds actually received by such seller from the sale of Registrable
Securities effected pursuant to such registration. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among
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other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just or
equitable if the contribution pursuant to this paragraph were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account such equitable considerations. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
expenses referred to herein shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject
hereof. 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 is not guilty of such fraudulent misrepresentation.
(e) The indemnification and contribution provided for
under this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and shall survive the
transfer of securities.
7. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements (including pursuant to any over-allotment or "green
shoe" options requested by the underwriters, provided that no holder of
Registrable Securities shall be required to sell more than the number of
Registrable Securities such holder has requested to include) 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.
8. Additional Parties; Joinder. The Company may permit any Person
who acquires Class A Common Stock or rights to acquire Class A Common Stock
after the date hereof (the "ACQUIRED COMMON") to become a party to this
Agreement and to succeed to all of the rights and obligations of a "holder of
Registrable Securities" under this Agreement by obtaining an executed joinder to
this Agreement from such Person in the form of Exhibit A attached hereto, and
upon the execution and delivery of the joinder by such Person, such Person shall
for all purposes be a "holder of Registrable Securities" under this Agreement
with respect to the Acquired Common. In particular, any Co-Investor purchasing
Acquired Common shall execute and deliver to the Company a joinder to this
Agreement, and such Co-Investor's Acquired Common shall for all purposes be
Co-Investor Registrable Securities hereunder.
9. Effective Date. This Agreement shall become effective
automatically without any further actions by any of the parties hereto
immediately upon the issuance of the shares of Class A Common Stock to MDCP
under the Purchase Agreement. However, prior thereto, this Agreement shall
terminate and become null and void automatically without any further actions by
any of the parties hereto immediately upon the termination of the Merger
Agreement (as defined below) pursuant to its terms. The Company is a party to
the Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated as of the date
hereof, with Popcorn Merger Corp.
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pursuant to which Popcorn Merger Corp. shall merge with and into the Company
with the Company continuing as the surviving corporation (the "MERGER").
10. Definitions.
(a) "CLASS A COMMON STOCK" means, the Company's Class A
Common Stock, par value $0.001 per share.
(b) "CO-INVESTOR" means any investor (other than a movie
theatre exhibitor or its Affiliate) introduced to the Company by MDCP (other
than any Affiliate of MDCP) and who acquires a portion of the Class A Common
Stock which MDCP has agreed to acquire pursuant to the Purchase Agreement.
(c) "CO-INVESTOR REGISTRABLE SECURITIES" means any
Registrable Securities held by any Co-Investor or any of its Affiliates.
(d) "FIVE-YEAR PLAN" means the Company's financial
information and projections for fiscal years 2004 through 2008 attached hereto
as Exhibit B.
(e) "MDCP REGISTRABLE SECURITIES" means any Registrable
Securities held by MDCP or any of its Permitted Transferees.
(f) "▇▇▇▇▇▇▇▇ REGISTRABLE SECURITIES" means any
Registrable Securities held by any ▇▇▇▇▇▇▇▇ Investor or any Permitted Transferee
of a ▇▇▇▇▇▇▇▇ Investor.
(g) "PERMITTED TRANSFEREE" has the meaning set forth in
the Stockholder Agreement, dated as of the date hereof between the Company, MDCP
and other stockholders of the Company.
(h) "REGISTRABLE SECURITIES" means (i) any shares of
Class A Common Stock issued pursuant to the Purchase Agreement, (ii) any shares
of Class A Common Stock held by the ▇▇▇▇▇▇▇▇ Investors immediately after the
effectiveness of the Merger, (iii) any common stock issued or issuable with
respect to the securities referred to in clauses (i) and (ii) above by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, and (iv) any
other shares of Class A Common Stock held by Persons holding securities
described in clauses (i) to (iii), inclusive, above. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when they have been distributed to the public pursuant to a offering registered
under the Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force) or repurchased by the Company or any Subsidiary. For
purposes of this Agreement, a Person shall be deemed to be a holder of
Registrable Securities, and the Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Registrable Securities hereunder.
10
(i) Unless otherwise stated, other capitalized terms
contained herein have the meanings set forth in the Purchase Agreement.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) Remedies. Any Person having rights under any
provision of this Agreement shall be entitled to enforce such rights
specifically, to recover damages caused by reason of any breach of any provision
of this Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages would not be an adequate remedy
for any breach of the provisions of this Agreement and that, in addition to any
other rights and remedies existing in its favor, any party shall be entitled to
specific performance and/or other injunctive relief from any court of law or
equity of competent jurisdiction in order to enforce or prevent violation of the
provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and the holders of a majority of the
Registrable Securities; provided that any amendment or waiver that affects only
the ▇▇▇▇▇▇▇▇ Registrable Securities and not all Registrable Securities in the
same manner, must also be approved by the holders of a majority of the ▇▇▇▇▇▇▇▇
Registrable Securities. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
(d) Successors and Assigns. Except as otherwise provided
herein, all covenants and agreements in this Agreement by or on behalf of any of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not. In
addition, whether or not any express assignment has been made, the provisions of
this Agreement which are for the benefit of purchasers or holders of Registrable
Securities are also for the benefit of, and enforceable by, any subsequent
holder of Registrable Securities; provided that if any holder of Registrable
Securities which is a limited partnership or limited liability company
distributes any Registrable Securities to its partners or members after the
Company has effected a registered public offering of the Class A Common Stock
under the Securities Act, such transferees of Registrable Securities shall no
longer be subject to the provisions of paragraph 3(a) hereof.
(e) Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
11
(f) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
shall constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(h) Governing Law. All issues and questions concerning
the construction, validity, interpretation and enforcement of this Agreement and
the exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
(i) Notices. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable overnight
courier service (charges prepaid) or mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such notices,
demands and other communications shall be sent to each Investor at the address
indicated on the Schedule of Investors and to the Company at the address
indicated below:
Cinemark, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
Madison Dearborn Capital Partners IV, L.P.
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CINEMARK, INC.
By: /s/ ▇▇▇▇ ▇. Stock
---------------------------------------------
Its: President
MADISON DEARBORN CAPITAL PARTNERS IV, L.P.
By: Madison Dearborn Partners IV, L.P.
Its: General Partner
By: Madison Dearborn Partners, LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
/s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
THE ▇▇▇▇▇▇▇▇ SPECIAL TRUST
By: /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Trustee
SCHEDULE OF INVESTORS
Madison Dearborn Capital Partners IV, L.P.
Three First National Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇▇▇ Special Trust
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇