REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of March 19, 1997, between AMC ENTERTAINMENT INC., a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO., SALOMON BROTHERS INC
and SCOTIA CAPITAL MARKETS (USA) INC. (the "Initial Purchasers").
This Agreement is made in connection with the Purchase Agreement
dated March 19, 1997 between the Company and the Initial Purchasers (the
"Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchasers of an aggregate of $200,000,000 principal amount of the
Company's 9.5% Senior Subordinated Notes due 2009 (the "Initial Securities").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchasers and
their direct and indirect transferees the registration rights set forth in
this Agreement. The execution of this Agreement is a condition to the closing
under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1.Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and also
includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City
of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Exchange Securities" shall mean the 9.5% Senior Subordinated Notes
due 2009 issued by the Company under the Indenture containing terms
identical in all material respects to the Initial Securities (except that
(i) interest thereon shall accrue from the last date on which interest
was paid on the Initial Securities or, if no such interest has been paid,
from the date of their original issue, (ii) the transfer restrictions
thereon shall be eliminated and (iii) certain provisions relating to an
increase in the stated rate of interest thereon shall be eliminated), to
be offered to Holders of Initial Securities in exchange for Initial
Securities pursuant to the Exchange Offer. Exchange Securities shall
evidence the same debt as Initial Securities.
"Holders" shall mean each Initial Purchaser, for so long as it owns
any Registrable Securities, and each of its successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture relating to the Initial
Securities dated as of
March 19, 1997 between the Company and The Bank of New York, as trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities;
provided that whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company shall be disregarded in determining
whether such consent or approval was given by the Holders of such
required percentage or amount.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Initial Securities;
provided, however, that the Initial Securities shall cease to be
Registrable Securities when (i) a Registration Statement with respect to
such Initial Securities shall have been declared effective under the 1933
Act and such Initial Securities shall have been disposed of pursuant to
such Registration Statement, (ii) such Initial Securities shall have been
sold to the public pursuant to Rule 144 (or any similar provision then
in force, but not Rule 144A) under the 1933 Act, (iii) such Initial
Securities shall have ceased to be outstanding or (iv) such Initial
Securities have been exchanged for Exchange Securities upon consummation
of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. ("NASD") registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws and compliance with the rules of
the NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any
of the Exchange Securities or Registrable Securities), (iii) all fees and
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements, certificates representing the
Exchange Securities and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all
fees and expenses incurred in connection with the listing, if any, of any
of the Registrable Securities on any securities exchange or exchanges,
(vi) the fees and disbursements of counsel for the Company and counsel
for the Initial Purchasers, and in the case of a Shelf Registration
Statement required to be filed under Section 2(b)(i), (ii) or (iii), the
reasonable fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which counsel shall
also be counsel for the Initial Purchasers); (vii) the fees and
disbursements of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (viii) the
fees and expenses of the Trustee, and any escrow agent or custodian, and
(ix) any fees and disbursements of the underwriters customarily required
to be paid by issuers or sellers of securities and the reasonable fees
and expenses of any special experts retained by the Company in connection
with any Registration Statement, but excluding fees of counsel to the
underwriters and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to
such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Initial
Securities under the Indenture.
2.Registration Under the 1933 Act. (a) Exchange Offer
Registration. To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company shall use its
best efforts (A) to file within 90 days after the Closing Date an Exchange
Offer Registration Statement covering the offer by the Company to the Holders
to exchange all of the Registrable Securities for Exchange Securities, (B) to
cause such Exchange Offer Registration Statement to be declared effective by
the SEC within 150 days after the Closing Date, (C) to cause such Registration
Statement to remain effective until the closing of the Exchange Offer and (D)
to consummate the Exchange Offer within 180 days following the Closing Date.
The Exchange Securities will be issued under the Indenture. If the Company
effects the Exchange Offer, the Company will be entitled to close the Exchange
Offer 30 days after the commencement thereof, provided that the Company has
accepted all of the Registrable Securities theretofore validly tendered in
accordance with the terms of the Exchange Offer. Upon the effectiveness of
the Exchange Offer Registration Statement, the Company shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable
each Holder (other than Participating Broker-Dealers (as defined in Section
3(f))) eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company
within the meaning of Rule 405 under the 1933 Act, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the
United States.
In connection with the Exchange Offer, the Company shall:
(i)mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii)keep the Exchange Offer open for not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if required
by applicable law);
(iii)use the services of the Depositary for the Exchange Offer
with an address in the Borough of Manhattan, City of New York;
(iv)permit Holders to withdraw tendered Registrable Securities at
any time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending
to the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange, and
a statement that such Holder is withdrawing his election to have such
Initial Securities exchanged; and
(v)otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i)accept for exchange Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration Statement and the letter of
transmittal;
(ii)deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company; and
(iii)issue, and cause the Trustee promptly to authenticate and
deliver Exchange Securities to each Holder of Registrable Securities
equal in principal amount to the Registrable Securities of such Holder
so accepted for exchange.
Registrable Securities that remain outstanding after the
consummation of the Exchange Offer and Exchange Securities issued in
connection with the Exchange Offer will be treated as a single class of
securities under the Indenture.
Interest on each Exchange Security will accrue from the last date
on which interest was paid on the Registrable Securities surrendered in
exchange therefor or, if no interest has been paid on the Registrable
Securities, from the date of its original issue. The Exchange Offer shall not
be subject to any conditions, other than (i) that the Exchange Offer, or the
making of any exchange by a Holder, does not violate applicable law or any
applicable interpretation of the Staff of the SEC, (ii) the due tendering of
Registrable Securities in accordance with the Exchange Offer, (iii) that no
action or proceeding shall have been instituted or threatened in any court or
by or before any governmental agency with respect to the Exchange Offer which,
in the Company's judgment, would reasonably be expected to impair the ability
of the Company to proceed with the Exchange Offer, (iv) that there shall not
have been adopted or enacted any law, statute, rule or regulation which, in
the Company's judgment, would reasonably be expected to impair the ability of
the Company to proceed with the Exchange Offer, (v) that there shall not have
been declared by U.S. federal or New York State authorities a banking
moratorium which, in the Company's judgment, would reasonably be expected to
impair the ability of the Company to proceed with the Exchange Offer, (vi)
that trading generally on the New York Stock Exchange, the American Stock
Exchange or in the Nasdaq National Market shall not have been suspended by
order of the Commission or any other governmental authority, which, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer and (vii) that each Holder of
Registrable Securities (other than Participating Broker-Dealers) who wishes
to exchange such Registrable Securities for Exchange Securities in the
Exchange Offer shall have represented that (A) it is not an affiliate (as
defined in Rule 405 of the ▇▇▇▇ ▇▇▇) of the Company, or if it is an affiliate,
such Holder will comply with the registration and prospectus delivery
requirements of the 1933 Act, to the extent applicable, (B) any Exchange
Securities to be received by it were acquired in the ordinary course of
business and (C) at the time of the commencement of the Exchange Offer it has
no arrangement with any person to participate in the distribution (within the
meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities and shall have made such
other representations as may be reasonably necessary under applicable SEC
rules, regulations or interpretations to render the use of Form S-4 or another
appropriate form under the 1933 Act available; provided, however, that none
of the foregoing conditions shall relieve the Company of its obligations under
this Agreement or effect any increase in the interest rate borne by the
Initial Securities pursuant to this Agreement. To the extent permitted by
law, the Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies
in all material respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (iii) any prospectus forming
part of any Exchange Offer Registration Statement, and any supplement to such
prospectus, at the time of issuance does not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
For greater certainty, the Company's obligation to use its best
efforts to make the Exchange Offer hereunder terminates at the close of
business on the 180th day following the Closing Date.
(b)Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the Staff of the SEC, the Company
determines that it is not permitted to effect the Exchange Offer as
contemplated by Section 2(a) hereof, or (ii) if for any other reason the
Exchange Offer Registration Statement is not declared effective within 150
days following the Closing Date, or (iii) upon the request of any Initial
Purchaser (with respect to any Registrable Securities which it acquired
directly from the Company) following the consummation of the Exchange Offer
if such Initial Purchaser shall hold Registrable Securities which it acquired
directly from the Company and if such Initial Purchaser is not permitted, in
the opinion of counsel to the Initial Purchasers, pursuant to applicable law
or applicable interpretation of the Staff of the SEC to participate in the
Exchange Offer, the Company shall, at its cost:
(A)as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the Majority
Holders of such Registrable Securities and set forth in such Shelf
Registration Statement, and use its best efforts to cause such
Shelf Registration Statement to be declared effective by the SEC by
the 180th day after the Closing Date (or promptly in the event of
a request by any Initial Purchaser pursuant to clause (iii) above).
In the event that the Company is required to file a Shelf
Registration Statement upon the request of any Initial Purchaser
pursuant to clause (iii) above, the Company shall file and have
declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of
Registrable Securities held by such Holder or Initial Purchaser
after completion of the Exchange Offer;
(B)use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be lawfully delivered by Holders for a
period of three years from the date the Shelf Registration
Statement is declared effective by the SEC (or one year from the
date the Shelf Registration Statement is declared effective if such
Shelf Registration Statement is filed upon the request of any
Initial Purchaser pursuant to clause (iii) above) or such shorter
period which will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be outstanding; and
(C)notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the
applicable requirements of the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and
any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming
part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time),
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not
misleading.
The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required
by Section 3(b) below, to use all reasonable efforts to cause any such
amendment to become effective and such Shelf Registration to become usable as
soon as thereafter practicable and to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(c)Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or 2(b) and, in the
case of any Shelf Registration Statement, will reimburse the Holders or
Initial Purchasers for the reasonable fees and disbursements of one firm or
counsel designated in writing by the Majority Holders to act as counsel for
the Holders of the Registrable Securities in connection therewith, and, in the
case of an Exchange Offer Registration Statement, will reimburse the Initial
Purchasers for the reasonable fees and disbursements of one counsel in
connection therewith. Each Holder shall pay all expenses of its counsel other
than as set forth in the preceding sentence, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d)Effective Registration Statement. (i) The Company will be
deemed not to have used its best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite period if the
Company voluntarily takes any action that would result in any such
Registration Statement not being declared effective or in the Holders of
Registrable Securities covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period unless (A) such action is
required by applicable law or (B) such action is taken by the Company in good
faith and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets,
so long as the Company promptly complies with the requirements of Section 3(k)
hereof, if applicable.
(ii)An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.
(e)Increase in Interest Rate. In the event that (i) the Exchange
Offer Registration Statement is not filed with the Commission on or prior to
the 90th calendar day after the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 150th
calendar day after the Closing Date or (iii) the Exchange Offer is not
consummated or a Shelf Registration Statement with respect to the Registrable
Securities is not declared effective on or prior to the 180th calendar day
after the Closing Date, the interest rate borne by the Initial Securities
shall be increased by 0.50% per annum following such 90-day period in the case
of clause (i) above, following such 150-day period in the case of clause (ii)
above and following such 180-day period in the case of clause (iii) above;
provided that the aggregate increase in such interest rate will in no event
exceed 1.00% per annum. Upon (x) the filing of the Exchange Offer
Registration Statement after the 90-day period described in clause (i) above,
(y) the effectiveness of the Exchange Offer Registration Statement after the
150-day period described in clause (ii) above or (z) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after the 180-day period described in clause (iii) above, the
interest rate borne by the Initial Securities from the date of such filing,
effectiveness or consummation, as the case may be, will be reduced to the
original interest rate.
(f)Specific Enforcement. Without limiting the remedies available
to the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that
it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the
Company's obligations under Section 2(a) and Section 2(b) hereof.
3.Registration Procedures. In connection with the obligations
of the Company with respect to the Registration Statements pursuant to
Sections 2(a) and 2(b) hereof, the Company shall:
(a)prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2, on the appropriate form under the
1933 Act, which form (i) shall be selected by the Company, (ii) shall,
in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (iii) shall
comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith, and use its best
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b)prepare and file with the SEC such amendments and post-
effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for
the applicable period; cause each Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the 1933 Act; and comply with the provisions
of the 1933 Act with respect to the disposition of all securities covered
by each Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the selling
Holders thereof;
(c)in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is
being filed and advising such Holders that the distribution of
Registrable Securities will be made in accordance with the method elected
by the Majority Holders; and (ii) furnish to each Holder of Registrable
Securities, to counsel for the Initial Purchasers, to counsel for the
Holders and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter
may reasonably request, including financial statements and schedules and,
if the Holder so requests, all exhibits (including those incorporated by
reference) in order to facilitate the public sale or other disposition
of the Registrable Securities; and (iii) subject to the provisions of
this Agreement, hereby consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d)use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering
of Registrable Securities shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, to
cooperate with the Holders in connection with any filings required to be
made with the NASD, and do any and all other acts and things which may
be reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d) or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e)in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for the Initial Purchasers promptly
and, if requested by such Holder or counsel, confirm such advice in
writing promptly (i) when a Registration Statement has become effective
and when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to such offering
cease to be true and correct in all material respects, (v) of the receipt
by the Company or its legal counsel 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, (vi) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement
is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which requires the making of any changes in such Registration Statement
or Prospectus in order to make the statements therein not misleading and
(vii) of any determination by the Company that a post-effective amendment
to a Registration Statement would be appropriate;
(f)(A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Securities for Exchange Securities for the resale of such
Exchange Securities, (ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in
the Exchange Offer Registration Statement a statement that any broker-
dealer who holds Registrable Securities acquired for its own account as
a result of market-making activities or other trading activities (a
"Participating Broker-Dealer"), and who receives Exchange Securities for
Registrable Securities pursuant to the Exchange Offer, may be a statutory
underwriter and must deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange Securities, (iv)
subject to the last paragraph of Section 3, hereby consent to the use of
the Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or supplement thereto, by any broker-dealer in
connection with the sale or transfer of the Exchange Securities covered
by the Prospectus or any amendment or supplement thereto, and (v) include
in the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the
following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Securities. If the undersigned is
a broker-dealer that will receive Exchange Securities for its own
account in exchange for Registrable Securities, it represents that
the Registrable Securities to be exchanged for Exchange Securities
were acquired by it as a result of market-making activities or
other trading activities and acknowledges that it will deliver a
prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities pursuant to the
Exchange Offer; and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a Prospectus
in connection with the exchange of registrable Securities, the broker-
dealer will not be deemed to admit that it is an underwriter within the
meaning of the 1933 Act; and
(B)to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its best
efforts to cause to be delivered at the request of an entity
representing the Participating Broker-Dealers (which entity shall
be ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., unless it elects not to act as such
representative) only one, if any, "cold comfort" letter with
respect to the Prospectus in the form existing on the last date for
which exchanges are accepted pursuant to the Exchange Offer and
with respect to each subsequent amendment or supplement, if any,
effected during the period specified in clause (C) below; and
(C)to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its best
efforts to maintain the effectiveness of the Exchange Offer
Registration Statement for a period of 180 days following the
closing of the Exchange Offer; and
(D)the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration
Statement as would otherwise be contemplated by Section 3(b), or
take any other action as a result of this Section 3(f), for a
period exceeding 180 days after the closing of the Exchange Offer
(as such period may be extended by the Company) and Participating
Broker-Dealers shall not be authorized by the Company to, and shall
not, deliver such Prospectus after such period in connection with
resales contemplated by this Section 3.
(g)(A) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (B) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any request
by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for additional
information;
(h)make every reasonable effort to prevent the issuance, and if
issued, to obtain the withdrawal at the earliest possible time, of any
order suspending the effectiveness of a Registration Statement as soon
as practicable and provide prompt written notice to each Holder of the
withdrawal of any such order;
(i)in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
including financial statements and schedules (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(j)in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold and not bearing any restrictive legends; and cause such Registrable
Securities to be in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling Holders or
the underwriters, if any, may reasonably request at least two business
days prior to the closing of any sale of Registrable Securities;
(k)in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Section
3(e)(vi) hereof, use its best efforts to prepare a supplement or post-
effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain at the time
of such delivery any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission. At such time as such public disclosure is otherwise made or
the Company determines that such disclosure is not necessary, in each
case to correct any misstatement of a material fact or to include any
omitted material fact, the Company agrees promptly to notify each Holder
of such determination and to furnish each Holder such numbers of copies
of the Prospectus, as amended or supplemented, as such Holder may
reasonably request;
(l)obtain a CUSIP number for all Exchange Securities, or
Registrable Securities, as the case may be, not later than the effective
date of the applicable Registration Statement, and provide the Trustee
with printed certificates for the Exchange Securities or the Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(m)(i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Securities, or Registrable Securities, as
the case may be, (ii) cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture
to be so qualified in accordance with the terms of the TIA and
(iii) execute, and use its best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(n)in the case of a Shelf Registration, enter into agreements
(including underwriting agreements, if requested, in customary form) and
take all other customary and appropriate actions (including those
reasonably requested by the Majority Holders) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration:
(i)to the extent possible, make such representations and
warranties to the Holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten
offerings as may be reasonably requested by them;
(ii)obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the holders of a majority in principal amount of the
Registrable Securities being sold) addressed to each selling Holder
and the underwriters, if any, and dated, in the case of the initial
opinion, as of the effective date of such Shelf Registration
Statement, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings and such
other matters as may be reasonably requested by such Holders and
underwriters;
(iii)obtain "cold comfort" letters and updates thereof
from the Company's independent certified public accountants
addressed to the underwriters, if any, and will use best efforts to
have such letters addressed to the selling Holders of Registrable
Securities, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters
to underwriters in connection with similar underwritten offerings;
(iv)enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose
of soliciting purchases of Registrable Securities, which agreement
shall be in form, substance and scope customary for similar
offerings;
(v)if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 5 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to
said Section; and
(vi)cause its officers to execute and deliver such documents
and certificates and updates thereof as may be reasonably requested
by the underwriters and as are customarily delivered in
underwritten offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
and (ii) each closing under any underwriting or similar agreement as and
to the extent required thereunder. In the case of any underwritten
offering, the Company shall provide written notice to the Holders of all
Registrable Securities of such underwritten offering at least 30 days
prior to the filing of a prospectus supplement for such underwritten
offering. Such notice shall (x) offer each such Holder the right to
participate in such underwritten offering, (y) specify a date, which
shall be no earlier than 10 days following the date of such notice, by
which such Holder must inform the Company of its intent to participate
in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten offering;
(o)in the case of a Shelf Registration, make reasonably available
for inspection by representatives of the Holders of the Registrable
Securities and any underwriters participating in any disposition pursuant
to a Shelf Registration Statement and any counsel or accountant retained
by such Holders or underwriters, all relevant financial and other
records, pertinent corporate documents and properties of the Company
customarily inspected by underwriters in primary underwritten offerings
reasonably requested by any such persons, and cause the respective
officers, directors, employees, and any other agents of the Company to
supply all relevant information reasonably requested by, and customarily
supplied in connection with primary underwritten offerings to, any such
representative, underwriter, special counsel or accountant in connection
with a Registration Statement; 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), (b) such person
shall be required 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 prior
written notice of such requirements or (c) such information is required
to be set forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration Statement
or an amendment or supplement to such prospectus in order that such Shelf
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;
(p)(i) a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to a Prospectus, provide copies of such document to the
Initial Purchasers and their counsel, and make such changes in any such
document prior to the filing thereof as any of the Initial Purchaser or
their counsel may reasonably request; (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of Registrable
Securities, to the Initial Purchasers, to counsel on behalf of the
Holders and to the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any, and make such changes in any
such document prior to the filing thereof as the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders, their
counsel and any underwriter may reasonably request; and (iii) cause the
representatives of the Company to be available for discussion of such
document as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders or any
underwriter and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall not have previously been
advised and furnished a copy or to which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall reasonably object;
(q)in the case of a Shelf Registration, use its best efforts to
cause the Registrable Securities to be rated with the appropriate rating
agencies, if so requested by the Majority Holders or by the underwriter
or underwriters of an underwritten offering of Registrable Securities,
if any, unless the Registrable Securities are already so rated;
(r)otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC so long as they are applicable to the
Exchange Offer or the Shelf Registration Statement and make generally
available to its security holders (or otherwise provide in accordance
with Section 11(a) of the 1933 Act), as soon as reasonably practicable,
an earnings statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder; and
(s)In the event that any broker-dealer registered under the 1934
Act shall underwrite any Registrable Securities or participate as a
member of any underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the
By-laws of the NASD) thereof, whether as a Holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, cooperate and assist in any
filings required to be made with the NASD including (i) cooperating, if
required, in the engagement by such broker-dealer of a "qualified
independent underwriter" to participate in the preparation of the
Registration Statement relating to such securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
yield of such Registrable Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 5 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair
Practice of the NASD.
In the case of a Shelf Registration Statement, the Company may (as
a condition to such Holder's participation in the Shelf Registration) require
each Holder of Registrable Securities to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing for inclusion in the Shelf Registration Statement, and the
Company may exclude from the Shelf Registration Statement the Registrable
Securities of, and shall not then be obligated under Section 2(e) hereof to,
any such Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company shall give any such notice to suspend
the disposition of Registrable Securities pursuant to a Shelf Registration
Statement as a result of the happening of any event or the discovery of any
facts, each of the kind described in Section 3(e)(vi) hereof, the Company
shall be deemed to have used its best efforts to keep the Shelf Registration
Statement effective during such period of suspension provided that the Company
shall use its best efforts to file and have declared effective (if an
amendment) as soon as practicable an amendment or supplement to the Shelf
Registration Statement and shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date
of the giving of such notice to and including the date when the Holders shall
have received copies of the supplemented or amended Prospectus necessary to
resume such dispositions.
4.Underwritten Registrations. If any of the Registrable
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Majority Holders of such
Registrable Securities included in such offering; such selection must be
approved by the Company, which approval shall not be unreasonably withheld or
delayed.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5.Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Initial Purchaser, each Holder, including
Participating Broker-Dealers, each underwriter who participates in an offering
of Registrable Securities, their respective affiliates, and the respective
directors, officers, employees, agents and each Person, if any, who controls
any of such parties within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i)against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii)against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii)against any and all expenses whatsoever, as incurred
(including fees and disbursements of counsel chosen by any indemnified
party), reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any Initial
Purchaser, any Holder, including Participating Broker-Dealers or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(b)In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, each
Initial Purchaser, each underwriter who participates in an offering of
Registrable Securities and the other selling Holders and each of their
respective directors and officers (including each officer of the Company who
signed the Registration Statement) and each Person, if any, who controls the
Company, any Initial Purchaser, any underwriter or any other selling Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all losses, liabilities, claims, damages and expenses
described in the indemnity contained in Section 5(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Holder, expressly for use in the Registration Statement (or
any amendment thereto), or the Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(c)Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it
may have other than on account of this indemnity agreement. The indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall
pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of 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.
If an indemnified party includes (x) the Initial Purchasers or such
controlling persons of the Initial Purchasers, such firm shall be designated
in writing by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or (y) Holders of Securities (other than
the Initial Purchasers) or controlling persons of such Holders, such firm
shall be designated in writing by Holders of a majority in aggregate principal
amount of such Securities. In all other cases, such firm shall be designated
by the Company. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, 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.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement, unless the reasonableness of such fees and expenses is being
challenged in good faith by the indemnifying party. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 5 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d)In order to provide for just and equitable contribution in
circumstances in which any of the indemnity provisions set forth in this
Section 5 are for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company, the
Initial Purchasers and the Holders shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity incurred by the Company, the Initial Purchaser and the Holders, as
incurred; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall
be entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation. As between the Company, the Initial Purchasers
and the Holders, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect
(i) the relative benefits received by the Company, on the one hand, the
Initial Purchasers on another hand, and the Holders on another hand, from the
offering of the Exchange Securities or Registrable Securities included in such
offering, and (ii) the relative fault of the Company, on the one hand, the
Initial Purchasers on another hand, and the Holders on another hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of the parties shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by such Holder, Participating Broker-Dealer or other indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
the Initial Purchasers and the Holders of the Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
Section 5 were to be determined by pro rata allocation or by any other method
of allocation that does not take into account the relevant equitable
considerations. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in this
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigation or defending any such action or claim.
For purposes of this Section 5, each affiliate of an Initial Purchaser or a
Holder, and each director, officer, employee, agent and Person, if any, who
controls an Initial Purchaser or a Holder or such affiliate within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the
same rights to contribution as the Initial Purchaser or such Holder, and each
director of the Company and each officer of the Company who signed the
Registration Statement, and each Person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The indemnity and
contribution provisions contained in this section shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any indemnified party and (iii)
the sale of any Initial Securities or Exchange Securities. The remedies
provided for in this Section are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law
or in equity. The parties hereto agree that any underwriting discount or
commission or reimbursement of fees paid to an Initial Purchaser pursuant to
the Purchase Agreement shall not be deemed to be a benefit received by such
Initial Purchaser in connection with the offering of the Exchange Securities
or Registrable Securities included in such offering.
6.Miscellaneous. (a) Rule 144 and Rule 144A. For so long as
the Company is subject to the reporting requirements of Section 13 or 15 of
the 1934 Act, the Company covenants that it will file the reports required to
be filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act
and the rules and regulations adopted by the SEC thereunder, that if it at any
time is not required to file such reports, it will upon the request of any
Holder of Registrable Securities (i) make publicly available such information
as is necessary to permit sales of Registrable Securities pursuant to Rule 144
under the 1933 Act, (ii) deliver such information to a prospective purchaser
as is necessary to permit sales pursuant to Rule 144A under the 1933 Act and
it will take such further action as any Holder of Registrable Securities may
reasonably request, and (iii) take such further action that is reasonable in
the circumstances, in each case, to the extent required from time to time to
enable such Holder to sell its Registrable Securities without registration
under the 1933 Act within the limitation of the exemptions provided by (x)
Rule 144 under the 1933 Act, as such Rule may be amended from time to time,
(y) Rule 144A under the 1933 Act, as such Rule may be amended from time to
time, or (z) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing, nothing in this Section 6
shall be deemed to require the Company to register any of its securities
pursuant to the 1934 Act. The Company shall, upon request, provide a copy of
this Agreement to prospective purchasers of Registrable Securities identified
to the Company by the Initial Purchasers.
(b)No Inconsistent Agreements. The Company has not entered into
and, on or after the date of this Agreement, will not enter into any agreement
with respect to its securities which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c)Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of
Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure; provided, however, that no amendment,
modification, supplement or waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder.
(d)Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions
of this Section 6(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to
the Company, to AMC Entertainment Inc., Attention: Secretary, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged by the
recipient's facsimile machine operator, if telecopied; and on the next
business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the person giving the same to the Trustee, at the
address specified in the Indenture.
(e)Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms hereof or of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(f)Third Party Beneficiary. The Initial Purchasers shall be third
party beneficiaries to the agreements made hereunder between the Company, on
the one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders
hereunder.
(g)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.
(h)Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i)GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(j)Severability. In the event that any one or more of the
provisions contained herein, 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)Submission to Jurisdiction; Waiver of Immunities; Agent for
Service. The Company irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by any Holder or by any person who
controls any Holder arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York Court, (ii)
waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, as their authorized agent (the "Authorized Agent")
upon whom process may be served in any such action arising out of or based on
this Agreement or the transactions contemplated hereby which may be instituted
in any New York Court by any Holder or by any person who controls any Holder,
expressly consents to the jurisdiction of any such court in respect of any
such action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable.
The Company represents and warrants that the Authorized Agent has agreed to
act as such agent for service of process and agrees to take any and all
action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice
of such service to the Company shall be deemed, in every respect, effective
service of process upon the Company.
____________________________
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
AMC ENTERTAINMENT INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Senior Vice President
Confirmed and accepted as of
the date first above written:
By:▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
SALOMON BROTHERS INC
SCOTIA CAPITAL MARKETS (USA) INC.
By:▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of March 19, 1997
between
AMC ENTERTAINMENT INC.,
Issuer
and
▇▇▇▇▇▇▇, SACHS & CO.
SALOMON BROTHERS INC
SCOTIA CAPITAL MARKETS (USA) INC.