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STOCKHOLDERS AGREEMENT
AMONG
LTM HOLDINGS, INC.,
SONY PICTURES ENTERTAINMENT INC.,
UNIVERSAL STUDIOS, INC.,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ FAMILY TRUST
AND
THE OTHER PARTIES HERETO
DATED AS OF SEPTEMBER 30, 1997
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms ....................................... 1
SECTION 1.2 Other Defined Terms ......................................... 11
SECTION 1.3 Other Definitional Provisions ............................... 12
SECTION 1.4 Methodology for Calculations ................................ 12
ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.1 Composition of the Board .................................... 13
SECTION 2.2 Board Procedures ............................................ 18
SECTION 2.3 Committees .................................................. 19
SECTION 2.4 Voting on Certain Matters ................................... 20
SECTION 2.5 Irrevocable Proxy ........................................... 20
SECTION 2.6 Certain Restrictions ........................................ 21
SECTION 2.7 Cooperation ................................................. 22
ARTICLE III
CONSENT RIGHTS
SECTION 3.1 Consent for Certain Actions ................................. 22
SECTION 3.2 Certain Certificate Provisions .............................. 28
SECTION 3.3 Arbitration ................................................. 28
SECTION 3.4 Approval of Disinterested Directors ......................... 29
SECTION 3.5 Additional Shares ........................................... 30
ARTICLE IV
TRANSFER OF COMMON SHARES
SECTION 4.1 Restrictions on Transfer during Six-Months Following Closing 30
SECTION 4.2 Tag-Along for All Stockholders .............................. 30
SECTION 4.3 Tag-Along for USI and Claridge Group ........................ 31
SECTION 4.4 Right of First Refusal ...................................... 32
SECTION 4.5 Transferees ................................................. 35
SECTION 4.6 Notice of Transfer .......................................... 37
SECTION 4.7 Compliance with Transfer Provisions ......................... 37
ARTICLE V
REGISTRATION RIGHTS
SECTION 5.1 Demand Registrations ........................................ 38
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SECTION 5.2 Piggyback Registrations ..................................... 40
SECTION 5.3 Registration Procedures ..................................... 41
SECTION 5.4 Registration Expenses ....................................... 46
SECTION 5.5 Limitations on Sale or Distribution of Other Securities...... 47
SECTION 5.6 Company Right to Postpone Registration ...................... 47
SECTION 5.7 No Required Sale ............................................ 48
SECTION 5.8 Indemnification ............................................. 48
SECTION 5.9 Contribution ................................................ 50
SECTION 5.10 Underwritten Offerings ..................................... 52
SECTION 5.11 Rule 144 ................................................... 52
SECTION 5.12 Article V Termination ...................................... 52
ARTICLE VI
STANDSTILL
SECTION 6.1 Standstill with the Company ................................. 53
SECTION 6.2 Standstill among the Stockholders ........................... 55
ARTICLE VII
EQUITY PURCHASE RIGHTS
SECTION 7.1 Equity Purchase Rights ...................................... 57
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Conflicting Agreements ...................................... 59
SECTION 8.2 Duration of Agreement ....................................... 59
SECTION 8.3 Best Efforts ................................................ 59
SECTION 8.4 Ownership Information ....................................... 60
SECTION 8.5 Further Assurances .......................................... 60
SECTION 8.6 Amendment and Waiver ........................................ 60
SECTION 8.7 Severability ................................................ 60
SECTION 8.8 Entire Agreement ............................................ 61
SECTION 8.9 Successors and Assigns ...................................... 61
SECTION 8.10 Counterparts ............................................... 61
SECTION 8.11 Remedies ................................................... 61
SECTION 8.12 Notices .................................................... 62
SECTION 8.13 Governing Law; Consent to Jurisdiction ..................... 64
SECTION 8.14 Legends .................................................... 64
SECTION 8.15 Interpretation ............................................. 65
SECTION 8.16 Agents for Stockholders .................................... 65
SECTION 8.17 Additional Agreement ....................................... 66
SECTION 8.18 Effectiveness .............................................. 66
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EXHIBITS
Exhibit A Members of the Claridge Group
Exhibit B Form of Arbitration Agreement
Exhibit C Sound Systems
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STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of September 30, 1997 among LTM
Holdings, Inc., a Delaware corporation (the "Company"), Sony Pictures
Entertainment Inc., a Delaware corporation ("SPE"), Universal Studios, Inc., a
Delaware corporation ("USI"), the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Family Trust, a trust
created under the laws of the province of Quebec (the "Trust"), and the other
persons listed on Exhibit A (such persons, together with the Trust,
collectively, the "Claridge Group").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, SPE and Cineplex Odeon Corporation, a corporation formed
under the laws of the province of Ontario ("CO"), are entering into a Master
Agreement dated as of the date hereof (the "Master Agreement") pursuant to which
and subject to the terms and conditions thereof, among other things, (i) CO and
the Company will engage in a business combination (the "Transaction") and (ii)
the shareholders of CO will exchange shares of CO for shares of Common Stock (as
defined below);
WHEREAS, upon the closing of the Transaction (the "Closing"), and
before giving effect to any Equity Offering (as defined below), (i) SPE will
beneficially own 51.14% of the issued and outstanding Common Shares (as defined
below), 49.90% of the issued and outstanding Common Stock and 100% of the issued
and outstanding Non-Voting Common Stock (as defined below), (ii) USI will
beneficially own 26.02% of the issued and outstanding Common Shares and 26.68%
of the issued and outstanding Common Stock, and (iii) the Claridge Group will
beneficially own 9.60% of the issued and outstanding Common Shares and 9.85% of
the issued and outstanding Common Stock; and
WHEREAS, the parties hereto desire to enter into certain
post-Closing arrangements relating to the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms. As used herein, the following
terms shall have the following meanings:
"Adjusted Applicable Percentage" means, with respect to any
Stockholder, at any time, such Stockholder's Applicable Percentage, recalculated
after subtracting from (x) the Voting Shares beneficially owned by such
Stockholder and its Permitted Transferees and, in the case of the Claridge
Group, all other members of the Claridge Group and their respective Permitted
Transferees (y) all Voting Shares acquired in open market purchases, in
privately-negotiated transactions (other than from a Stockholder or a Permitted
Transferee of
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any Stockholder) or from the Company (other than pursuant to Section 7.1 or a
transaction described in clause (ii) of Section 7.1(g)).
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person. For
purposes of this definition, (i) no member of the Claridge Group shall be
considered an Affiliate of USI or any Subsidiary of USI, (ii) Matsushita
Electric Industrial Co., Ltd. ("MEI") shall not be considered an Affiliate of
USI or any Subsidiary of USI, provided, that clause (ii) shall not be applicable
at any time that USI shall disclose in a Schedule 13D filed pursuant to the
Exchange Act that USI and MEI have formed a Group with respect to Voting Shares,
and (iii) each member of the Claridge Group shall be considered an Affiliate of
each other member of the Claridge Group.
"Agreement" means this Stockholders Agreement as it may be amended,
supplemented, restated or modified from time to time.
"Applicable Percentage" means, with respect to any Stockholder, at
any time, the ratio, expressed as a percentage, of (i) the then outstanding
Voting Shares beneficially owned by such Stockholder and (a) in the case of SPE
or USI, such Stockholder's Permitted Transferees, and (b) in the case of any
member of the Claridge Group, all other members of the Claridge Group and all
Permitted Transferees of the Claridge Group, to (ii) the sum of (x) the total
then outstanding Voting Shares and (y) with respect to such Stockholder, any
Voting Shares included in clause (i) that are issuable upon conversion, exchange
or exercise of Voting Share Equivalents, provided, that if the Company shall
issue or sell Voting Shares in a transaction (other than the Equity Offering) in
respect of which either SPE or USI does not have the right to consent pursuant
to clause (vii) of Section 3.1(a) at a time when such Stockholder has an Article
III Consent Right, the aggregate amount of Voting Shares issued or sold pursuant
to all such transactions shall be subtracted from the amount of outstanding
Voting Shares in calculating such Stockholder's Applicable Percentage for
purposes of Articles II and III and for any calculation of such Stockholder's
Applicable Percentage under the Certificate, subject to the applicable rules of
any stock exchange on which the Common Stock shall then be listed.
"Article III Consent Right" means, with respect to SPE or USI, the
right of such Stockholder pursuant to Section 3.1(a) to approve the actions
specified in clauses (i)-(xiv) of such Section.
"beneficial owner" or "beneficially own" has the meaning given such
term in Rule 13d-3 under the Exchange Act and a Person's beneficial ownership of
Voting Shares shall be calculated in accordance with the provisions of such
Rule, provided, however, that (i) in determining beneficial ownership for
purposes of Article II, Section 4.3 and clauses (ii) and (iii) of Section 4.5(b)
and for any calculation of such Stockholder's Applicable Percentage under the
Certificate (including in the calculation of a Stockholder's Applicable
Percentage and Adjusted Applicable Percentage in such provisions), a Person
shall not be deemed to be the beneficial owner of any Voting Shares which may be
acquired by such Person upon the conversion, exchange or exercise of any Voting
Share Equivalents, except for purposes of
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Section 4.3, a Person shall be deemed to beneficially own such Voting Shares if
such Person has irrevocably agreed to convert, exchange or exercise the related
Voting Share Equivalent upon consummation of the applicable Third Party Sale,
(ii) in determining beneficial ownership for purposes of the other provisions of
this Agreement, a Person shall be deemed to be the beneficial owner of any
Voting Shares which may be acquired by such Person, whether within 60 days or
thereafter, upon the conversion, exchange or exercise of any warrants, options,
rights or other securities issued by the Company or any Subsidiary thereof and
(iii) in determining beneficial ownership for purposes of Sections 2.1(a), (b)
and (c), clauses (i) and (ii) of Section 2.1(g), Sections 4.2, 4.3 and 5.12,
Article VII and Section 8.2 and for any calculation of such Stockholder's
Applicable Percentage under the Certificate (including in the calculation of a
Stockholder's Applicable Percentage and Adjusted Applicable Percentage in such
provisions), a Person shall not be deemed to be the beneficial owner of any
Voting Shares unless such Person has a pecuniary interest in such Voting Shares.
"Board" means the Board of Directors of the Company.
"Business Day" shall mean any day that is not a Saturday, a Sunday
or other day on which banks are required or authorized by law to be closed in
The City of New York.
"Bylaws" means the Amended and Restated Bylaws of the Company in the
form attached as Exhibit F to the Master Agreement, as the same may be amended,
supplemented or modified from time to time.
"Capital Lease Obligations" of a Person means the obligation to pay
rent or other payment amounts under a lease of (or other arrangements conveying
the right to use) real or personal property of such Person which is required to
be classified and accounted for as a capital lease or a liability on a balance
sheet of such Person in accordance with GAAP. The principal amount of such
obligation shall be the capitalized amount thereof that appears on a balance
sheet of such Person in accordance with GAAP.
"Capital Stock" means, with respect to any Person at any time, any
and all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of capital stock, partnership
interests (whether general or limited) or equivalent ownership interests in or
issued by such Person.
"Cash Flow" means, for purposes of determining the cash flow of an
asset under clauses (i) or (ii) of Section 3.1(a), (i) with respect of any
motion picture theater, "Cash Flow" as defined in the Master Agreement, and (ii)
with respect to any other type of asset, cash flow shall be defined as the
Company and each Stockholder who at the time of determination has an Article III
Consent Right shall jointly determine in good faith and, in making any such
determination, such parties shall consider any definition of cash flow that is
customarily utilized by nationally recognized investment banking firms to
measure the cash flow of such assets.
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"Certificate" means the Amended and Restated Certificate of
Incorporation of the Company in the form attached as Exhibit A to the Master
Agreement, as the same may be amended, supplemented or modified from time to
time.
"Certificate Amendment" means any amendment or restatement of the
Certificate after the Closing.
"Claridge Director" means any Director designated pursuant to
Section 2.1 by the Claridge Group.
"Commission" means the Securities and Exchange Commission, and any
successor commission or agency having similar powers.
"Common Shares" means, collectively, the Common Stock and the
Non-Voting Common Stock.
"Common Stock" means common stock, par value $0.01 per share, of the
Company and any securities issued in respect thereof, or in substitution
therefor, in connection with any stock split, dividend or combination, or any
reclassification, recapitalization, merger, consolidation, exchange or other
similar reorganization.
"Company Expenses" means (i)(a) fees and disbursements of counsel
for the Company and (b) fees and disbursements of all independent public
accountants (including the expenses of any audit and/or "cold comfort" letter)
and fees and expenses of other Persons, including special experts retained by
the Company, incident to the Company's performance of or compliance with its
obligations under Article V, and (ii) if the Company participates in a
registration pursuant to Article V, the Company's pro rata share of other
Expenses related to such registration on the basis of the number of securities
included in such registration by the Company relative to the total number of
securities included in such registration.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person and its consolidated
Subsidiaries for such period as reported on such Person's financial statements
for such period and determined in accordance with GAAP.
"Consolidated Interest Expense" of any Person means for any period
the consolidated interest expense included in a consolidated income statement
(net of interest income) of such Person and its consolidated Subsidiaries for
such period as reported on such Person's financial statements for such period
and determined in accordance with GAAP.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its consolidated
Subsidiaries for such period as reported on such Person's financial statements
for such period and determined in accordance with GAAP; provided that there
shall be excluded therefrom (i) gains or losses on asset dispositions by such
Person or its consolidated Subsidiaries, (ii) all extraordinary gains and
extraordinary losses, (iii) any net income (loss) of a consolidated Subsidiary
that is
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attributable to a minority interest in such consolidated Subsidiary, (iv) all
non-cash non-recurring charges and credits during such period not in the
ordinary course of business and (v) the tax effect of any of the items described
in clauses (i) through (iv) above.
"control" (including the terms "controlled by" and "under common
control with"), with respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly, of the power to direct or
cause the direction of the affairs or management of a Person, whether through
the ownership of voting securities, as trustee or executor, by contract or
otherwise.
"Current Market Value" means, with respect to any security, the
average of the daily closing prices on the New York Stock Exchange (or such
principal exchange or market on which such security may be listed or may trade)
for such security for the 20 consecutive trading days commencing on the 22nd
trading day prior to the date with respect to which the Current Market Value is
being determined. The closing price for each day shall be the closing price, if
reported, or, if the closing price is not reported, the average of the closing
bid and asked prices as reported by the New York Stock Exchange (or such
principal exchange or market) or a similar source selected from time to time by
the Company for such purpose. In the event such closing prices are unavailable,
the Current Market Value shall be the Fair Market Value of such security
established by a Determination of the Independent Directors. If a determination
is required under this Agreement of the Current Market Value of any NonVoting
Common Stock, such value shall be deemed to be equal to the Current Market Value
of an equivalent number of shares of Common Stock.
"Debt" means (without duplication), with respect to any Person,
whether or not recourse is to all or a portion of the assets of such Person or
any of its Subsidiaries, (i) every obligation of such Person or any of its
Subsidiaries for money borrowed, (ii) every obligation of such Person or any of
its Subsidiaries evidenced by bonds, debentures, notes or other similar
instruments, (iii) every reimbursement obligation of such Person or any of its
Subsidiaries with respect to letters of credit (including standby letters of
credit to the extent drawn upon), bankers' acceptances or similar facilities
issued for the account of such Person or any of its Subsidiaries, (iv) every
obligation of such Person or any of its Subsidiaries issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business), (v)
every Capital Lease Obligation of such Person or any of its Subsidiaries other
than Capital Lease Obligations of such Person or any of its Subsidiaries for
real property, and (vi) every obligation of the type referred to in clauses (i)
through (v) of another Person and all dividends of another Person the payment of
which, in either case, such Person or any of its Subsidiaries has guaranteed or
for which such Person is responsible or liable, directly or indirectly, jointly
or severally, as obligor, guarantor or otherwise; provided that, in the case of
joint venture Debt, there shall only be included that portion of such Debt equal
to the ratable share in such joint venture of such Person or any of its
Subsidiaries.
"DGCL" means the Delaware General Corporation Law.
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"Determination of the Independent Directors" means, with respect to
any matter, a determination made in good faith, on the basis of such relevant
factors as the Independent Directors consider, in their judgment, appropriate,
by the vote of a majority of the Independent Directors present at a meeting of
the Independent Directors called for such purpose, a quorum being present (or at
a meeting of the Board if a quorum of the Independent Directors is present at
such meeting), or without a meeting if a majority of all Independent Directors
consent thereto in writing. For these purposes, a majority of all Independent
Directors, acting at a meeting duly assembled, shall constitute a quorum for the
making of any such determination at such meeting.
"Director" means any member of the Board.
"Directors Chart" means the chart attached as Schedule I.
"Disinterested Directors" means, with respect to any matter that is
subject to approval under Section 3.4, all Directors other than any Director who
is a designee of SPE (in the case of Section 3.4(a)) or USI (in the case of
Section 3.4(b)).
"Dissolution" means a voluntary liquidation, dissolution or winding
up of the Company.
"EBITDA" of any Person means for any period the Consolidated Net
Income for such period increased by the sum of (i) Consolidated Interest Expense
of such Person for such period, plus (ii) Consolidated Income Tax Expense of
such Person for such period, plus (iii) the consolidated depreciation and
amortization expense deducted in determining the Consolidated Net Income of such
Person for such period (excluding amortization of Capitalized Lease Obligations
other than those incurred to finance equipment); provided, however, that the
Consolidated Interest Expense, Consolidated Income Tax Expense and consolidated
depreciation and amortization expense of a consolidated Subsidiary of such
Person shall be added to the Consolidated Net Income of such Person pursuant to
the foregoing only to the extent and in the same proportion that the
Consolidated Net Income of such consolidated Subsidiary was included in
calculating the Consolidated Net Income of such Person.
"Equity Offering" means the sale for cash by the Company in one or
more underwritten public offerings of Common Stock for an aggregate offering
price of $200 million (before deducting underwriting discounts or commissions).
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Excluded Securities" means options issued by the Company to
employees or directors of the Company or its Subsidiaries pursuant to any stock
option or similar plan (and any Common Stock issuable thereunder) approved by
the Board and any Common Stock issuable upon conversion of Non-Voting Common
Stock.
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"Expenses" means any and all fees and expenses incident to the
Company's performance of or compliance with its obligations under Article V
(other than internal expenses incurred by the Company including the services of
the Company's executives and legal department), including: (i) listing and
filing fees of the Commission or any stock exchange registration, (ii) fees and
expenses of compliance with state and provincial securities or "blue sky" laws
and in connection with the preparation of a "blue sky" survey, including
reasonable fees and expenses of "blue sky" counsel, (iii) fees and expenses of
compliance with any Canadian securities laws, (iv) printing and copying
expenses, (v) messenger and delivery expenses, (vi) expenses incurred in
connection with any road show, (vii) fees and disbursements of counsel for the
Company, (viii) with respect to each registration, the reasonable fees and
disbursements of one counsel for the selling Holder(s) (selected by the
Initiating Holder, in the case of a Demand Registration, or by the Requisite
Percentage of Participating Holders, in the case of a Piggyback Registration),
(ix) fees and disbursements of all independent public accountants (including the
expenses of any audit and/or "cold comfort" letter) and fees and expenses of
other Persons, including special experts, retained by the Company, and (x) any
other fees and disbursements of underwriters, if any, customarily paid by
issuers or sellers of securities.
"Fair Market Value" means, as to any securities or other property,
the cash price at which a willing seller would sell and a willing buyer would
buy such securities or property in an arm's-length negotiated transaction
without time constraints.
"Five-Year Plan" means (i) the Initial Five-Year Plan, or any
replacement of such plan adopted in accordance with Section 3.1(b), and (ii)
after the expiration of the Initial Five-Year Plan, or any replacement thereof,
subsequent five-year strategic business plans of the Company adopted by the
Board in accordance with Section 3.1(d) or any replacement thereof adopted in
accordance with Section 3.1(b).
"GAAP" means United States generally accepted accounting principles,
as in effect from time to time.
"Group" shall have the meaning assigned to it in Section 13(d)(3) of
the Exchange Act.
"Holder" means SPE, USI, each member of the Claridge Group and any
of their respective Permitted Transferees, and any Third Party Transferee (i) to
the extent the rights and obligations of a Holder are specifically assigned to
such Third Party Transferee by a Stockholder in accordance with Section
4.5(b)(iv) and (ii) who agrees, pursuant to Sections 4.5(b) and 4.5(c), to be
bound by the provisions of this Agreement as a "Holder" hereunder.
"Independent Director" means any Director who satisfies the criteria
set forth in the second paragraph of Section 2.1(i).
"Initial Five-Year Plan" means the Company's five-year strategic
business plan in effect as of the Closing, as adopted by the Board.
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"Initial Interest" means, with respect to any Stockholder, all of
the Common Shares beneficially owned by such Stockholder and its Permitted
Transferees immediately following the Closing.
"Management Director" means any Director who is also an executive
officer of the Company.
"Market Capitalization" means, as of any Determination Date, the
product of (i) the number of Common Shares outstanding and (ii) the Current
Market Value.
"Market Sale" means a "brokers' transaction" within the meaning of
Section 4(4) of the Securities Act.
"Maximum Debt Ratio" means 6.0 to 1.0, provided that such ratio
shall be decreased by 0.25 to 1.0 if the Company shall have issued Common Stock
in a public offering after the Closing for an aggregate net offering price of
$40 million and by an additional 0.25 to 1.0 for each additional $40 million
that the Company shall issue in a public offering after the Closing, provided,
further, that in no event shall such ratio be less than 4.75 to 1.0.
"Merger" means any merger or consolidation in which the Company is a
constituent corporation or any sale of all or substantially all of the assets of
the Company and its Subsidiaries taken as a whole, provided that a merger which
satisfies all of the following criteria shall not be deemed a Merger for
purposes of this definition: (i) the Company is the surviving corporation, (ii)
all shares of Common Stock outstanding immediately prior to the consummation
thereof remain outstanding immediately after the consummation thereof and the
only change in the Capital Stock of the Company resulting from such merger is
the issuance of shares of Capital Stock pursuant thereto, and (iii) no consent
of the Stockholders would be required in connection therewith either under the
DGCL or under Article III.
"Minimum Percentage" means, with respect to SPE or USI, an
Applicable Percentage of 17.86%, provided that if such Stockholder and its
Permitted Transferees beneficially own at least 80% of such Stockholder's
Initial Interest, such percentage shall equal 15%.
"Non-Voting Common Stock" means non-voting common stock, par value
$0.01 per share, of the Company and any securities issued in respect thereof, or
in substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger, consolidation,
exchange or other similar reorganization.
"pecuniary interest" has the meaning given such term in Rule
16a-1(a)(2) under the Exchange Act.
"Permitted Transferee" means (i) with respect to SPE, any direct or
indirect wholly-owned Subsidiary of Sony Corporation which is incorporated in
the United States, (ii)
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with respect to USI, any direct or indirect wholly-owned Subsidiary of The
Seagram Company Ltd. or USI which is incorporated in the United States, and
(iii) with respect to each member of the Claridge Group, (a) any member of the
Claridge Group, (b) any one or more of the lineal descendants of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Senator E. ▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, (c) the spouses of any one
or more of the foregoing Persons referred to in this clause (iii), (d) any trust
of which any one or more of the foregoing Persons referred to in this clause
(iii) is the principal beneficiary, (e) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (f) the legal
representatives of any one or more of the Persons referred to in clauses (a),
(b) or (c) of this clause (iii), (g) any corporation, partnership or other
entity directly or indirectly of which more than 90% of the total voting power
of the Capital Stock entitled to vote in the election of directors, managers or
administrators thereof is beneficially owned by Persons referred to in this
clause (iii), and (h) any private charitable foundation of which one or more of
the foregoing Persons referred to in this clause (iii) constitutes a majority of
the members. In addition, each of SPE, USI and each member of the Claridge Group
shall each be a Permitted Transferee of its respective Permitted Transferees.
"Person" means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivisions thereof or any Group comprised of two or more of the
foregoing.
"Public Stockholder" means any stockholder of the Company other than
(i) the Stockholders and their respective Permitted Transferees and (ii)
stockholders of the Company who are required to file a Schedule 13D pursuant to
the Exchange Act with respect to their ownership of Voting Shares, excluding any
such stockholders that (a) are investment advisers registered under Section 203
of the Investment Advisers Act of 1940, as amended, (b) are not participating
and have not publicly disclosed (in a Schedule 13D filing or otherwise) an
intention to participate in an election contest affecting the Company and (c)
have not publicly disclosed (in a Schedule 13D filing or otherwise) any
intention or purpose of influencing control of the Company in any material
respect (including seeking representation on the Board).
"Registrable Securities" means any Common Stock beneficially owned
by any Holder (including any Common Stock issuable upon conversion of Non-Voting
Common Stock), whether beneficially owned as of the Closing or thereafter
acquired. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have been declared effective under
the Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) such securities shall have been sold
(other than in a privately-negotiated sale) pursuant to Rule 144 (or any
successor provision) under the Securities Act or (iii) such securities shall
have ceased to be outstanding.
"Requisite Percentage of Participating Holders" means, with respect
to any registration pursuant to Article V, Holders of a majority of the total
Registrable Securities which the Company has been requested to register by all
Holders.
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"Securities Act" means the Securities Act of 1933, as amended.
"SPE Director" means any Director designated pursuant to Section 2.1
by SPE.
"Stockholder" means each of SPE, USI and each member of the Claridge
Group.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited liability company or other entity controlled
by such Person directly or indirectly through one or more intermediaries.
"Targeted EBITDA" means (i) for the 12-month period commencing on
the Closing Date, if the Closing Date shall be on the first day of a month, or
otherwise for the 12-month period commencing on the first day of the month
following the month during which the Closing shall occur, and (ii) for each
12-month period thereafter (each full 12-month period, including the initial
period described in clause (i), a "Measurement Period"), Targeted EBITDA of the
Company as set forth in the Five-Year Plan, subject to the following
adjustments: (x) Targeted EBITDA shall be reduced (but not increased) as at the
end of any Measurement Period if subsidiaries or assets specifically identified
in the Five-Year Plan to be disposed of or closed during such period shall not
have been disposed of or closed, such reduction to be in an amount equal to the
extent to which the aggregate actual EBITDA of such assets or subsidiaries
during such Measurement Period is negative (net of any positive actual EBITDA of
any such assets or subsidiaries), and if such assets or subsidiaries are not
disposed of or closed within 12 months following the date projected in the
Five-Year Plan for such disposition or closure, Targeted EBITDA in respect of
such 12-month period shall be reduced (but not increased) in an amount equal to
the extent to which the aggregate actual EBITDA of such assets or subsidiaries
during such 12-month period is negative (net of any positive actual EBITDA of
any such assets or subsidiaries), (y) Targeted EBITDA shall be reduced (but not
increased) as at the end of any Measurement Period if expansions and
acquisitions specifically identified in the Five-Year Plan to be made during
such period shall not have occurred during such period, such reduction to be in
an amount equal to the amount of EBITDA specifically identified in the Five-Year
Plan as being associated with such expansions and acquisitions (net of any
positive actual EBITDA during such Measurement Period from expansions and
acquisitions that were not specifically identified in the Five-Year Plan), and
(z) Targeted EBITDA shall be reduced by an amount equal to 25% of the projected
expense savings that are specifically identified in the Five-Year Plan.
"Third Party Transferee" means any Person to whom a Stockholder
(including a Third Party Transferee subject to this Agreement pursuant to
Sections 4.5(b) and 4.5(c)) or a Permitted Transferee Transfers Voting Shares,
other than a Permitted Transferee of such Stockholder.
"Transfer" means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of, either voluntarily or
involuntarily, or to enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, assignment, pledge,
encumbrance, hypothecation or similar disposition of, any Voting
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Shares or any interest in any Voting Shares, provided, however, that, subject to
the second to last sentence of Section 4.5(a), a merger or consolidation in
which a Stockholder is a constituent corporation shall not be deemed to be the
Transfer of any Voting Shares beneficially owned by such Stockholder (provided,
that the primary purpose of any such transaction is not to avoid the provisions
of this Agreement).
"USI Director" means any Director designated pursuant to Section 2.1
by USI.
"USI Subscription Agreement" means the Agreement between USI and the
Company attached as Exhibit I to the Master Agreement, as the same may be
amended, supplemented or modified from time to time.
"Voting Share Equivalents" means any warrants, options, rights or
securities convertible into, or exchangeable or exercisable for, Voting Shares.
"Voting Shares" means any securities of the Company the holders of
which are generally entitled to vote for members of the Board and any securities
issued in respect thereof, or in substitution therefor, in connection with any
stock split, dividend or combination, or any reclassification, recapitalization,
merger, consolidation, exchange or other similar reorganization.
SECTION 1.2 Other Defined Terms. The following terms shall have the
meanings defined for such terms in the Sections set forth below:
Term Section
---- -------
Aggrieved Stockholder 8.11(c)
Arbitration Agreement 3.3(c)
Arbitrator 3.3(c)
Bylaw Amendment 2.4(a)
CO Recitals
Claims 5.8(a)
Claridge Group Preamble
Closing Recitals
Company Preamble
Demand Exercise Notice 5.1(a)
Demand Registration Requests 5.1(a)
Demand Registrations 5.1(a)
Determination Date 3.1(a)
Initiating Holder 5.1(a)
Issuance Notice 7.1(b)
Issuance Shares 7.1(a)
Litigation 8.13
Master Agreement Recitals
New Five-Year Plan 3.1(b)
Nominating Committee 2.1(i)
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Offer Notice 4.4(b)
Offer Price 4.4(c)
Offered Shares 7.1(a)
Offeree 7.1(a)
Other Holders 5.1(b)
Other Stockholder 4.4(b)
Permitted Debt 3.1(a)
Piggyback Registration 5.2(a)
Reorganization Proposal 3.1(f)
Significant Sale 4.2(a)
Significant Sale Initiator 4.2(a)
Significant Sale Notice 4.2(a)
Significant Sale Shares 4.2(a)
SPE Preamble
Tag-Along Notice 4.3(a)
Tag-Along Offeree 4.3(a)
Tag-Along Sale 4.3(a)
Tag-Along Shares 4.3(a)
Target 3.1(a)
Transaction Recitals
Transferring Party 4.4(a)
Trust Preamble
USI Preamble
SECTION 1.3 Other Definitional Provisions. (a) The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 1.4 Methodology for Calculations. For purposes of this
Agreement, the Transfer or issuance of a Voting Share Equivalent shall be
treated as the Transfer or issuance of the Voting Shares into which such Voting
Share Equivalent can be converted, exchanged or exercised. For purposes of
calculating the amount of outstanding Voting Shares as of any date and the
amount of Voting Shares beneficially owned by any Person as of any date, (i) the
amount of any Voting Shares shall be equal to the number of votes such Voting
Shares shall then entitle the holder thereof to cast in an election for members
of the Board, (ii) any Voting Shares held in the Company's treasury or owned by
any Subsidiaries of the Company shall be disregarded, (iii) the Stockholders
shall not be deemed to share beneficial ownership of any Voting Shares as a
result of any of the provisions of this Agreement and (iv) if any Voting Shares
shall otherwise be deemed to be beneficially owned by more than one Stockholder,
such shares shall be deemed to be beneficially owned only by the Stockholder
with the greatest pecuniary interest in such shares (provided that if such
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Stockholders shall have an equal pecuniary interest in any such shares, each
Stockholder shall be deemed to beneficially own an equal portion of such shares
(which portions shall not exceed 100% in the aggregate)).
ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.1 Composition of the Board. (a) Effective as of the
Closing, the Board shall be comprised of 16 members, consisting of six designees
of SPE, three designees of USI, one designee of the Claridge Group, two
Management Directors and four Independent Directors. The designees of SPE, USI
and the Claridge Group shall have been designated by SPE, USI and the Claridge
Group prior to the Closing in accordance with the provisions of Section 6.18 of
the Master Agreement, the Independent Directors shall have been designated by
SPE, USI and a majority of the members of the Special Committee (as defined in
the Master Agreement) prior to the Closing in accordance with the provisions of
Section 6.18 of the Master Agreement and the Management Directors shall be the
individuals satisfying the criteria set forth in Section 2.1(j).
(b) After the Closing, SPE, USI and the Claridge Group shall be
entitled to designate for nomination for election to the Board the number of
Directors set forth in the Directors Chart which corresponds to such
Stockholder's Applicable Percentage; provided, however, that:
(i) (x) until the five-year anniversary of the Closing, the
Claridge Group shall be entitled to designate one Director if its
Applicable Percentage exceeds 3.5%, and, thereafter, if its Applicable
Percentage exceeds 5%, and (y) the Claridge Group's entitlement to
designate two or more Directors shall be determined in accordance with
this Section 2.1 on the same basis as the entitlement of the other
Stockholders;
(ii) if the Directors Chart provides that the Stockholders
would in the aggregate be entitled to designate more than 14 Directors,
each reference to a percentage in such chart under the "Applicable
Percentage" column, shall be increased by the least number of percentage
points that would result in the Stockholders in the aggregate being
entitled to designate 14 Directors (after giving effect to the provisions
of clause (i)(x) above); and
(iii) prior to the four-year anniversary of the Closing, no
Stockholder shall be entitled to designate more than eight Directors,
provided, however, that if any Stockholder would be entitled to designate
more than eight Directors pursuant to the Directors Chart based on such
Stockholder's Adjusted Applicable Percentage (rather than such
Stockholder's Applicable Percentage), (x) such Stockholder shall be
entitled to designate the number of Directors set forth in the Directors
Chart based on such
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Stockholder's Applicable Percentage and (y) the limitation contained in
this clause (iii) regarding a Stockholder's entitlement to designate
Directors shall thereupon terminate.
(c) Notwithstanding anything to the contrary contained in Section
2.1(b), each of SPE and USI covenants and agrees with the other and each member
of the Claridge Group covenants and agrees with each of SPE and USI that:
(i) no Stockholder shall be entitled to designate more than
six Directors, provided, however, that if any Stockholder would be
entitled to designate more than eight Directors pursuant to the Directors
Chart based on such Stockholder's Adjusted Applicable Percentage (rather
than such Stockholder's Applicable Percentage), such Stockholder shall be
entitled to designate such greater number of Directors and the limitation
contained in this clause (i) regarding a Stockholder's entitlement to
designate Directors shall thereupon terminate, provided, further, that, if
at any time commencing on the three-year anniversary of the Closing, any
Stockholder's Applicable Percentage exceeds 45%, the limitation contained
in this clause (i) regarding a Stockholder's entitlement to designate
Directors shall be increased from six Directors to seven Directors;
(ii) at any time that SPE's Applicable Percentage equals or
exceeds 40.625% but the number of SPE Directors is limited to six by
clause (i) of this Section 2.1(c), USI agrees with SPE that one of the
individuals designated by USI to serve as a Director shall be an
Independent Director so long as USI's Applicable Percentage equals or
exceeds 21.875% (provided that in determining whether such individual is
an Independent Director, the opinion of such Stockholder shall be
substituted for the opinion of the Nominating Committee for purposes of
clauses (i) and (iii) of Section 2.1(i)); and
(iii) at any time that USI's Applicable Percentage equals or
exceeds 40.625% but the number of USI Directors is limited to six by
clause (i) of this Section 2.1(c), SPE agrees with USI that one of the
individuals designated by SPE to serve as a Director shall be an
Independent Director so long as SPE's Applicable Percentage exceeds
21.875% (provided that in determining whether such individual is an
Independent Director, the opinion of such Stockholder shall be substituted
for the opinion of the Nominating Committee for purposes of clauses (i)
and (iii) of Section 2.1(i)).
(d) After the Closing, except for the designees of the Stockholders
and for the Management Directors (who shall be selected in accordance with
Section 2.1(i) and (j)), the individuals to be nominated for election as
Directors shall all be Independent Directors and shall be selected in accordance
with Section 2.1(i), unless the Independent Directors (based on a Determination
of the Independent Directors) shall otherwise agree, provided that there shall
be at least two Independent Directors and at least two Management Directors
nominated in each such election.
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(e) Each Stockholder agrees to vote (and cause each of its
Affiliates to vote, if applicable), or act by written consent with respect to,
any Voting Shares beneficially owned by it to cause the designees of SPE, USI
and the Claridge Group and each of the Independent Directors and Management
Directors designated by the Nominating Committee to be elected to the Board, and
the Company agrees to use its best efforts to cause the election of each such
designee to the Board, including nominating such individuals to be elected as
members of the Board as provided herein. At least 45 days prior to its
distribution of its proxy statement or information statement with respect to
each meeting of stockholders at which Directors are to be elected, the Company
shall notify each Stockholder that is then entitled to designate Directors
pursuant to Section 2.1(b) of (i) the aggregate number of Directors to be
elected at the meeting, (ii) such Stockholder's Applicable Percentage as of the
record date for such meeting and (iii) the number of Directors such Stockholder
is entitled to designate (calculated based on such Stockholder's Applicable
Percentage as of the record date). Each Stockholder shall notify the Company of
the Directors designated by it pursuant to this Section on or prior to the close
of business on the later of (x) the 15th day following its receipt of the
Company's notice and (y) the 20th day prior to the Company's distribution of
such proxy statement or information statement.
(f) In the event that a vacancy is created at any time by the death,
disability, retirement, resignation or removal (with or without cause) of any
SPE Director, USI Director or Claridge Director, SPE, USI or the Claridge Group,
as the case may be, shall have the right to designate a replacement Director to
fill such vacancy and the Company agrees to use its best efforts to cause such
vacancy to be filled with the replacement Director so designated. Upon the
written request of SPE, USI or the Claridge Group, each Stockholder shall vote
(and cause each of its Affiliates to vote, if applicable), or act by written
consent with respect to, all Voting Shares beneficially owned by it and
otherwise take or cause to be taken all actions necessary to remove any Director
designated by such requesting party and to elect any replacement Director
designated as provided in the first sentence of this Section 2.1(f). Unless all
the Stockholders otherwise agree, no Stockholder or any of its Affiliates shall
take any action to cause the removal of any SPE Director, USI Director, Claridge
Director, Management Director or Independent Director without cause, except (i)
in the case of an SPE Director, USI Director or Claridge Director, upon the
written request of the Stockholder which designated such Director, (ii) in the
case of a Management Director, if such individual shall cease to serve as one of
the two most senior executive officers of the Company, and (iii) as provided in
Section 2.1(g). For purposes of the preceding sentence, "cause" shall mean the
wilful and continuous failure of a Director to substantially perform such
Director's duties to the Company or the wilful engaging by a Director in gross
misconduct materially and demonstrably injurious to the Company.
(g) If, at any time, any of the Stockholders or any of their
respective Permitted Transferees shall Transfer Voting Shares and, upon
consummation of such Transfer, the Applicable Percentage of such Stockholder is
reduced such that the number of Directors such Stockholder is entitled to
designate pursuant to Section 2.1(b) and 2.1(c) is reduced by one or more
Directors, then:
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(i) the number of SPE Directors, USI Directors and Claridge
Directors shall be recalculated by the Company in accordance with Section
2.1(b) and 2.1(c) as of the consummation of such Transfer (and after
giving effect thereto);
(ii) to the extent that, after giving effect to the
recalculation described in clause (i), any of SPE, USI or the Claridge
Group is entitled to designate fewer Directors than the number of
Directors then serving as designees of such Stockholder(s), any such
Stockholder shall use its best efforts to cause Director(s) designated by
such Stockholder to resign from the Board as promptly as practicable so
that the number of Directors designated by such Stockholder does not
exceed the number of designees such Stockholder shall then be entitled to
designate based on such recalculation;
(iii) if a sufficient number of SPE Directors, USI Directors
or Claridge Directors, as the case may be, shall not have resigned within
30 days of the event requiring such recalculation, each Stockholder shall
vote (and cause each of its Affiliates to vote, if applicable), or act by
written consent with respect to, all Voting Shares beneficially owned by
it and otherwise take or cause to be taken all actions necessary to remove
such excess number of Directors designated by the Stockholder(s) whose
designees have not resigned in accordance with clause (ii);
(iv) upon the effectiveness of the resignation(s) or
removal(s) described in clauses (ii) and (iii), the Company shall cause
the Board (and each Stockholder shall use its best efforts to cause its
respective designees to the Board) to fill all vacancies created by such
resignation(s) or removal(s) (x) by appointing to the Board designees of
any Stockholder (including any Third Party Transferee described in clause
(ii) of Section 4.5(b)) who is entitled, as a result of the recalculation
described in clause (i), to designate more Directors than the number of
Directors then serving as designees of such Stockholder and (y) to the
extent vacancies remain after giving effect to clause (x), by filling such
remaining vacancies with Independent Directors designated by the
Nominating Committee pursuant to Section 2.1(i); and
(v) if the vacancies to the Board have not be filled in
accordance with clause (iv), each Stockholder shall vote (and cause each
of its Affiliates to vote, if applicable), or act by written consent with
respect to, all Voting Shares beneficially owned by it and otherwise take
or cause to be taken all actions necessary to fill all vacancies as
provided in clause (iv).
(h) The Company agrees not to take any action that would cause the
number of Directors constituting the entire Board to be other than 16 and each
Stockholder agrees to use its best efforts to cause the number of Directors
constituting the entire Board to be 16.
(i) In connection with each election of Directors, the Company will
use its best efforts to cause there to be nominated for election as Directors,
in accordance with the Company's procedures for the nomination of Directors and
to the extent permissible in accordance with applicable legal requirements, (1)
the two Management Directors who satisfy
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the criteria set forth in Section 2.1(j), and (2) the number of Independent
Directors required to be nominated in accordance with Section 2.1(d). With
respect to each election held after the Closing, the Management Directors
referred to in clause (1) above and the Independent Directors referred to in
clause (2) above shall be designated by a nominating committee of the Board (the
"Nominating Committee") established to determine whether prospective nominees
meet the criteria set forth in Section 2.1(j) with respect to such Management
Directors and the criteria set forth in the following paragraph with respect to
such Independent Directors. The Company agrees to cause the Nominating Committee
to be comprised of four Directors, consisting of (x) two Independent Directors
designated by a majority of the Independent Directors and (y) one SPE Director
and one USI Director, provided if at any time there shall cease to be at least
one USI Director or one SPE Director, then the Nominating Committee shall
include two SPE Directors or two USI Directors, as the case may be, to the
extent SPE or USI, as applicable, then has two designees serving as Directors.
An Independent Director is a Director who, and each future qualified
nominee for election as an Independent Director shall be an individual who:
(i) is free from any relationship that, in the opinion of the
Nominating Committee, would interfere with the exercise of independent
judgment as a member of the Board;
(ii) is not an Affiliate of the Company, SPE, USI or the
Claridge Group or a current or former officer of the Company or any of its
Subsidiaries or a current or former officer or director of SPE or USI or
any of their respective Subsidiaries;
(iii) does not, in addition to such individual's role as a
Director, also act on a regular basis as an individual or representative
of an organization serving as a professional advisor, legal counsel or
consultant to management of the Company or SPE, USI or the Claridge Group
or any of their respective Subsidiaries; and
(iv) does not represent, and is not a member of the immediate
family of, a Person who does not satisfy the requirements of clauses (i),
(ii) or (iii) above.
In the event that the Stockholders collectively have the right to
designate at least 13 of the members of the Board pursuant to Section 2.1, SPE
and USI agree that at least one of the individuals designated by each such
Stockholder to serve as a Director shall be an Independent Director, provided
that if one of such Stockholders shall be entitled to designate only one
Director, such Stockholder shall not be required to designate an Independent
Director and the other such Stockholder shall be required to designate two
Independent Directors (provided, further, that such designees shall qualify to
serve on the Audit Committee of the Board in accordance with the policies of the
New York Stock Exchange governing membership on audit committees).
(j) The two Management Directors referenced in clause (1) of Section
2.1(i) shall be the two most senior executive officers of the Company, provided
that so long as
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▇▇▇▇▇ ▇▇▇▇ shall be an executive officer of the Company or any Affiliate thereof
he shall be a Management Director even if he is not one of the two most senior
executive officers and, in such circumstances, the Management Directors shall be
the most senior executive officer of the Company and ▇▇. ▇▇▇▇. If any Management
Director shall cease to satisfy the foregoing criteria, the Company shall cause
such individual to immediately resign as a Management Director, and upon such
resignation, the Company shall cause the Board (and each Stockholder shall use
its best efforts to cause its respective designees to the Board) to fill the
vacancy created thereby in accordance with Section 2.1.
(k) If, on the three-year anniversary of the Closing, any
Stockholder shall then be entitled to designate seven Directors rather than six
Directors in accordance with the second proviso contained in clause (i) of
Section 2.1(c), at the request of such Stockholder, the Company shall take such
action as may be necessary to cause one of the Independent Directors to resign
from the Board so as to enable such Stockholder to designate a seventh Director,
and if an Independent Director has not so resigned within 30 days of such
Stockholder's request to the Company, at the request of such Stockholder, each
other Stockholder shall vote (and cause each of its Affiliates to vote, if
applicable), or act by written consent with respect to, all Voting Shares
beneficially owned by it and otherwise take or cause to be taken all actions
necessary to remove the Independent Director designated by the requesting
Stockholder.
(l) If the number of SPE Directors or USI Directors shall have been
limited to six by clause (i) of Section 2.1(c) and as a result thereof one of
the USI Directors or the SPE Directors shall be an Independent Director in
accordance with clauses (ii) or (iii), as the case may be, of Section 2.1(c),
and if the number of SPE Directors or USI Directors shall cease to be limited to
six on the three-year anniversary of Closing in accordance with the second
proviso contained in clause (i) of Section 2.1(c), at the request of USI or SPE,
as the case may be, the Company shall take such action as may be necessary to
cause the Independent Director designated by USI or SPE, as the case may be, to
resign and, if such Independent Director has not resigned within 30 days of such
Stockholder's request to the Company, at the request of such Stockholder, each
other Stockholder shall vote (and cause each of its Affiliates to vote, if
applicable), or act by written consent with respect to, all Voting Shares
beneficially owned by it and otherwise take or cause to be taken all actions
necessary to remove the Independent Director designated by USI or SPE, as the
case may be.
SECTION 2.2 Board Procedures. The Company shall cause the following
procedures to be followed:
(a) Meetings. The Board shall hold at least six regularly scheduled
meetings per year at such times as may from time to time be fixed by resolution
of the Board and no notice (other than the resolution) need be given as to a
regularly scheduled meeting. Special meetings of the Board may be held at any
time upon the call of the Chairman of the Board or at least two Directors,
following notice to each Director which shall be given orally or by personal
delivery, facsimile or reliable overnight courier at least three Business Days
before the meeting. Reasonable efforts shall be made to ensure that each
Director actually receives
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timely notice of any such special meeting. An annual meeting of the Board shall
be held without notice immediately following the annual meeting of the
stockholders of the Company.
(b) Agenda. A reasonably detailed agenda shall be supplied to each
Director reasonably in advance of each meeting of the Board, together with other
appropriate documentation with respect to agenda items calling for Board action,
to inform adequately the Directors regarding matters to come before the Board.
Any Director wishing to place a matter on the agenda for any meeting of the
Board may do so by communicating with the Chairman of the Board sufficiently in
advance of the meeting of the Board so as to permit timely dissemination to all
Directors of information with respect to the agenda items.
(c) Powers of the Board. The Board shall reserve to itself the power
to approve transactions that are of a type customarily subject to board approval
as a matter of good corporate practice for public companies in the United
States. The Board shall not delegate to any committee of the Board or to any
officers of the Company the authority to conduct business in any manner that
would circumvent, or deprive SPE, USI or the Claridge Group or any of their
respective Permitted Transferees of, any of their respective rights set forth in
this Agreement. In no event will the Board establish an executive committee, or
any committee performing functions comparable to those customarily performed by
executive committees of boards of directors of public companies in the United
States, without the prior written consent of SPE and USI. All committees of the
Board will report to and be accountable to the Board. The Board shall establish,
in cooperation with the Chief Executive Officer of the Company, a schedule for
Board review or action, as appropriate, with respect to matters which shall
typically come before the Board, including, but not limited to (i) annual and
multi-year business plans (including capital expenditures and operating
budgets), (ii) major collaborative arrangements with third parties not in the
ordinary and normal course of business as theretofore conducted and (iii)
appointments of officers.
SECTION 2.3 Committees. Except for the Nominating Committee and
except for an audit committee and compensation committee performing functions
comparable to those customarily performed by audit committees and compensation
committees of boards of directors of public companies in the United States, the
Company shall cause the Board not to establish any committees without the prior
written consent of SPE and USI. Except for the Nominating Committee, the members
of which shall be determined in accordance with Section 2.1(i) above, the
Company shall cause each committee of the Board to, subject to any requirements
under the Exchange Act or applicable to securities, or the issuance of
securities, traded on the principal United States exchange or market on which
the Common Stock shall be listed or trade, include (x) at the request of SPE, a
number of SPE Directors (rounded to the nearest whole number, but in no event
less than one such SPE Director) equivalent to the proportion of SPE Directors
then serving on the whole Board multiplied by the total number of members
comprising such committee and (y) at the request of USI, a number of USI
Directors (rounded to the nearest whole number, but in no event less than one
such USI Director) equivalent to the proportion of USI Directors then serving on
the whole Board multiplied by the total number of members comprising such
committee. Subject to the rights of SPE and USI pursuant to clause (xi) of
Section 3.1, the Company shall cause matters relating to the hiring, termination
or compensation of executive officers of the Company
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(including any entering into, amendment, termination or renewal (including
option renewals) of any agreement with an executive officer of the Company) to
be approved by the compensation committee of the Board. The Company shall not
permit any Management Director to serve on the audit or compensation committee
of the Board. Subject to the foregoing, the Board shall have the power at any
time to fill vacancies in, to change the membership of or to discharge any
committee.
SECTION 2.4 Voting on Certain Matters. (a) In connection with any
vote or action by written consent of the Board relating to a Merger, Dissolution
or Certificate Amendment or the amendment or repeal of any provision of, or the
addition of any provision to, the Bylaws (a "Bylaw Amendment"), each Stockholder
agrees to use its best efforts to cause the Director(s) designated by such
Stockholder, to vote against (and not consent to) such Merger, Dissolution,
Certificate Amendment or Bylaw Amendment at the request of SPE or USI, provided,
that at the time SPE or USI delivers such request its Applicable Percentage
exceeds the Minimum Percentage.
(b) In connection with any vote or action by written consent of the
stockholders of the Company relating to a Merger, Dissolution, Certificate
Amendment or Bylaw Amendment, each Stockholder agrees (and agrees to cause each
of its Affiliates, if applicable), with respect to any Voting Shares
beneficially owned by it, to vote against (and not consent to) such Merger,
Dissolution, Certificate Amendment or Bylaw Amendment at the request of SPE or
USI (which, in the case of a vote at a meeting of stockholders, shall be
delivered to such Stockholder no later than fifteen Business Days prior to the
applicable meeting), provided, that at the time SPE or USI delivers such request
its Applicable Percentage exceeds the Minimum Percentage.
SECTION 2.5 Irrevocable Proxy. (a) At least ten Business Days prior
to any meeting of stockholders (or three Business Days following receipt of
proxy solicitation materials from the Company, if later), each Stockholder
agrees to deliver a duly executed irrevocable proxy to the Company (and a copy
of such proxy to each other Stockholder by such day) specifying how such
Stockholder intends to vote as to each matter scheduled to be brought before the
meeting. Such proxy shall appoint the Chief Executive Officer of the Company and
Secretary of the Company as such Stockholder's true and lawful proxies and
attorneys-in-fact as to the matters to be voted at the meeting, shall state that
it is irrevocable and shall be voted in accordance with the provisions of this
Agreement. Such proxy shall also state that it is not effective until the date
of the applicable meeting of stockholders and that its effectiveness is
contingent upon the Company not having received, prior to the third Business Day
before the meeting, a notification from any other Stockholder asserting such
other Stockholder's good faith belief that such proxy does not comply with the
provisions of this Agreement.
(b) In connection with any proposed action by written consent of the
stockholders, each Stockholder agrees that it shall execute and deliver its
written consent to the Company (with simultaneous delivery of a copy thereof to
each other Stockholder). Such consent shall state that it is not effective until
a specified date (which date shall be at least ten Business Days following
delivery to the Company), and that its effectiveness is contingent
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upon the Company not having received prior to the third Business Day before such
specified date a notification from any other Stockholder asserting such other
Stockholder's good faith belief that such consent does not comply with the
provisions of this Agreement. Any written consent delivered by any Stockholder
shall be made in accordance with the terms of this Agreement.
(c) If any Stockholder shall fail to deliver a proxy to the Company
and the other Stockholders by the date described in Section 2.5(a) or a consent
to the Company and the other Stockholders by the date described in Section
2.5(b) or if such proxy (or consent) shall not comply with the provisions of
this Agreement, or shall be voted in a manner that is contrary to this
Agreement, the irrevocable proxies set forth in Section 2.5(d) below shall
thereupon be irrevocably activated with respect to the matters to be brought
before the meeting or which are subject to the consent, as the case may be.
(d) In order to secure each Stockholder's obligation to vote (or to
act or not act by written consent with respect to) all Voting Shares
beneficially owned by it in accordance with the provisions of this Article II
and Sections 3.2 and 8.11, each Stockholder hereby appoints each other
Stockholder as its true and lawful proxy and attorney-in-fact, with full power
of substitution, to vote (or to act or not act by written consent with respect
to) all of the Voting Shares beneficially owned by it in accordance with the
terms of this Agreement and to take all such other actions as are necessary to
enforce the rights of such other Stockholders under this Article II and Sections
3.2 and 8.11 in the event the Stockholder fails to comply with any provision of
this Agreement granting such other Stockholder rights under this Article II and
Sections 3.2 and 8.11. The proxies and powers granted by each Stockholder
pursuant to this Section 2.5 are irrevocable and are coupled with an interest
and are given to secure the performance of the Stockholders' obligations under
this Article II and Sections 3.2 and 8.11. Such proxies and powers shall survive
the bankruptcy, insolvency, dissolution or liquidation of a Stockholder.
Notwithstanding the foregoing, upon termination of the rights and obligations of
a Stockholder pursuant to Section 8.2 any proxy granted by such Stockholder or
granted to such Stockholder pursuant to this Section 2.5 shall terminate.
SECTION 2.6 Certain Restrictions. Without the prior written consent
of SPE and USI, each Stockholder agrees not to, and to cause each of its
Affiliates not to, directly or indirectly, alone or in concert with others:
(a) seek election to, seek to place a representative on, or seek the
removal (other than for cause) of any member of, the Board, except pursuant to
Section 2.1;
(b) deposit any Common Shares in a voting trust or subject any
Common Shares to any arrangement or agreement with respect to the voting of such
Common Shares (other than this Agreement or a voting trust, arrangement or
agreement solely among members of the Claridge Group);
(c) engage in any "solicitation" (within the meaning of Rule 14a-1
under the Exchange Act) of proxies or consents (whether or not relating to the
election or removal of directors) with respect to the Company, or become a
"participant" in any "election contest"
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(within the meaning of Rule 14a-11 under the Exchange Act) or, except as
contemplated by this Agreement, execute any written consent in lieu of a meeting
of the holders of any class of Common Shares, provided that the foregoing shall
not prohibit any such action (i) in response to a solicitation conducted by any
Person that is neither a Stockholder nor an Affiliate thereof or (ii) to
facilitate a tender offer or exchange offer by such Stockholder in response to a
bona fide tender or exchange offer to acquire more than 20% of the Voting Shares
made by any Person other than such Stockholder or any Affiliate thereof, in each
case so long as such Stockholder otherwise remains in compliance with its
obligations under this Agreement in all material respects; or
(d) form, join or in any way participate in or assist in the
formation of a Group with respect to any Common Shares, other than any such
Group consisting exclusively of Stockholders, any of their Affiliates or
Permitted Transferees.
SECTION 2.7 Cooperation. Each Stockholder shall vote (or act or not
act by written consent with respect to) all of its Voting Shares and shall take
all other necessary or desirable actions within its control (including attending
all meetings in person or by proxy for purposes of obtaining a quorum, executing
all written consents in lieu of meetings and voting to remove members of the
Board, as applicable), and the Company shall take all necessary and desirable
actions within its control (including calling special Board and stockholder
meetings, as applicable), to effectuate the provisions of this Article II.
ARTICLE III
CONSENT RIGHTS
SECTION 3.1 Consent for Certain Actions. (a) The Company shall not,
and shall cause its Subsidiaries not to, directly or indirectly, take any of the
following actions without the prior written consent of (i) SPE, if its
Applicable Percentage equals or exceeds the Minimum Percentage, and (ii) USI, if
its Applicable Percentage equals or exceeds the Minimum Percentage:
(i) in the case of the Company or any Subsidiary of the
Company that is a "significant subsidiary" as defined in Rule 405
under the Securities Act, voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States
Code as now constituted or hereafter amended, or any other federal,
state or foreign bankruptcy, insolvency or similar law;
(ii) merge or consolidate with, purchase or otherwise acquire
any other Person (the "Target") or all or substantially all of the
business or any assets of another Person in one or a series of
related transactions if (x) the book value of the assets of the
Target (in the case of an acquisition of a Target) or of the
business and/or assets to be acquired as reflected on the books of
the seller of such business or assets, as the case may be, as of the
end of such Person's most recently ended fiscal quarter preceding
the earlier of the date the
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Company or a Subsidiary thereof enters into definitive agreements in
respect of such transaction or publicly announces such transaction
(the "Determination Date") (based on a Determination of the
Independent Directors) would exceed 20% of the book value of the
Company's total assets as of the end of the Company's most recently
ended fiscal quarter preceding the Determination Date or (y) the
Fair Market Value (based on a Determination of the Independent
Directors) of the consideration paid or payable for the Target, the
business and/or assets to be acquired as of the Determination Date
(including, with respect to any asset acquisition, the value of any
Debt assumed or to be assumed in such transaction) would exceed 20%
of the Company's Market Capitalization as of the Determination Date
or (z) EBITDA of the Target and/or of the business and/or the Cash
Flow of the assets to be acquired as reflected on the books of the
Target and/or such seller, as the case may be, for its last four
fiscal quarters preceding the Determination Date exceeds 20% of the
Company's EBITDA for the Company's last four fiscal quarters
preceding the Determination Date;
(iii) sell, lease, transfer or otherwise dispose of (including
by merger, dividend or other distribution or other transaction
involving one or more stockholders of the Company, formation of a
joint venture or otherwise) any other Person, business or assets in
one or a series of related transactions if (x) the book value of
such Person, business and/or assets exceeds 15% of the book value of
the Company's total assets as of the end of the Company's most
recent fiscal quarter preceding the Determination Date or (y) the
Fair Market Value (based on a Determination of the Independent
Directors) of the consideration received or receivable for such
Person, the business and/or assets (including, with respect to any
asset acquisition, the value of any Debt assumed or to be assumed in
such transaction) exceeds 15% of the Company's Market Capitalization
as of the Determination Date or (z) the EBITDA of such Person and/or
business and/or the Cash Flow of such assets for the Company's last
four fiscal quarters preceding the Determination Date exceeds 15% of
the Company's EBITDA for such four fiscal quarters;
(iv) enter into, commence or engage in any business other than
the exhibition of films (including as a result of an acquisition or
pursuant to a joint venture) except as otherwise provided for in the
Five-Year Plan and except for matters customarily related to the
exhibition of films in respect of which the Company and its
Subsidiaries do not expend more than an aggregate of $5 million of
cash during any calendar year;
(v) enter into any contract with or otherwise engage in or
become obligated to engage in any transaction or series of related
transactions with SPE or USI or any of their respective Affiliates
involving more than $1 million per calendar year; provided, however,
that (A) all such contracts and transactions (whether or not
exceeding the $1 million limitation) shall be on an arms' length
basis and (B) the $1 million limitation shall not apply to
transactions
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that occur in the ordinary course of the Company's business,
including film booking arrangements;
(vi) increase or decrease the number of Directors that
comprise the entire Board or that constitute a quorum for purposes
of convening a meeting of the Board;
(vii) issue or sell (including by merger or otherwise) any
Voting Shares or Voting Share Equivalents (other than pursuant to
the Equity Offering or upon conversion of the Non-Voting Common
Stock) that would, upon closing of such issuance or sale (A)
together with the aggregate amount of all such issuances or sales
during the 12-month period preceding the proposed date of issuance
or sale, increase the number of Voting Shares by more than 10% of
the average number of Voting Shares outstanding as of the last day
of each of the 12 full calendar months preceding the proposed date
of issuance or sale or (B) together with the aggregate amount of all
such issuances or sales during the 24-month period preceding the
proposed date of issuance or sale, increase the number of Voting
Shares by more than 15% of the average number of Voting Shares
outstanding as of the last day of each of the 24 full calendar
months preceding the proposed date of issuance or sale; provided,
(1) in determining whether SPE or USI shall have an Article III
Consent Right in respect of issuances or sales described in clauses
(A) or (B), issuances or sales pursuant to the Equity Offering shall
be disregarded in calculating the aggregate amount of issuances or
sales during the applicable period (but shall not be disregarded in
calculating the outstanding Voting Shares as of any date) and (2)
the issuance or sale of Voting Shares upon the exercise, conversion
or exchange of Voting Share Equivalents shall not be an issuance or
sale that is subject to this clause (vii) but the issuance or sale
of Voting Share Equivalents shall be subject to this clause (vii) in
accordance with Section 1.4;
(viii) pay, declare or set aside any sums for the payment of
any cash dividends on, or make any other cash distributions on
(including by merger or otherwise), any shares of Capital Stock, or
any warrants, options, rights or securities convertible into,
exchangeable or exercisable for, Capital Stock (excluding any such
payment or distribution made to the Company or any of its
Subsidiaries), if the amount thereof, together with the aggregate
amount of any other items referred in this clause (viii) and clause
(ix) below, during the prior 12 months, exceeds 5% of the Company's
Market Capitalization at the time of such action; provided that the
payment of any such dividend or distribution shall be permitted to
be made within 60 days of its declaration if such declaration was
not subject to an Article III Consent Right;
(ix) redeem, purchase or otherwise acquire for cash (including
by merger or otherwise), any shares of Capital Stock or any
warrants, options and rights or securities convertible into,
exchangeable or exercisable for, Capital Stock, or redeem or
purchase for cash or make any cash payments with respect
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to any stock appreciation rights or phantom stock plans (excluding
any such redemption, purchase or payment from the Company or any of
its Subsidiaries), if the amount thereof, together with the
aggregate amount of any other items referred to in clause (viii)
above and this clause (ix), during the prior 12 months, exceed 5% of
the greater of (x) the Company's Market Capitalization at the time
of such payment and (y) the Company's Market Capitalization at the
time it commits to make such redemption, purchase or payment;
(x) incur, assume or otherwise become obligated with respect
to, any Debt (x) if immediately after giving effect to the
incurrence of such Debt and the receipt and application of the
proceeds thereof, the ratio of the Company's consolidated Debt to
EBITDA for the four full fiscal quarters next preceding the
incurrence of such Debt, calculated on a pro forma basis as if such
Debt had been incurred and the proceeds thereof had been received
and so applied at the beginning of the four full fiscal quarters,
would be greater than the Maximum Debt Ratio or (y) in excess of
$100,000,000 in aggregate principal amount in one or a series of
related transactions, provided that this clause (y) shall not apply
to (1) Debt owed by the Company to any of its Subsidiaries or Debt
owed by a Subsidiary of the Company to the Company or to another
Subsidiary of the Company, (2) Debt outstanding immediately
following the Closing and (3) Debt incurred to renew, extend,
refinance or refund any outstanding Debt permitted in clauses (1) or
(2) and any Debt incurred in connection with subsequent refinancings
of such Debt (collectively, "Permitted Debt"), provided, further,
that any Debt described in clause (3) shall not be Permitted Debt if
the amount of such Debt shall exceed the amount of the outstanding
Debt that is being renewed, extended, refinanced or refunded.
(xi) hire, or renew the employment contract (including option
renewals) of, either the Chief Executive Officer of the Company or
the second most senior executive officer of the Company;
(xii) enter into any arrangement (other than this Agreement or
pursuant to this Agreement) with any holder of Voting Shares in such
holder's capacity as a holder of Voting Shares which subjects
actions taken by the Company or any Subsidiary to the prior approval
of any Person, or issue or sell any series or class of Capital Stock
of the Company having either (x) more than one vote per share or (y)
a class vote on any matter, except to the extent such class vote is
required by the DGCL or to the extent that the holders of any series
of preferred stock may have the right, voting separately as a class,
to elect a number of Directors upon the occurrence of a default in
payment of dividend or redemption price;
(xiii) adopt any stockholder rights plan, or any other plan or
arrangement that could reasonably be expected to disadvantage any
stockholder on the basis of the size of its shareholding, such that
any holder of Common Shares or any of its Affiliates would be
adversely affected; or
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(xiv) adopt a Bylaw Amendment by action of the Board.
Notwithstanding anything to the contrary contained in this Section 3.1(a),
neither SPE nor USI shall have an Article III Consent Right to the extent such
action requires the approval of holders of Common Stock under the DGCL or the
Certificate.
(b) If any of the following shall occur and be continuing:
(i) the Company's actual EBITDA in each of the two
most recently ended fiscal years is less than 80% of Targeted
EBITDA for such year;
(ii) at the end of the most recent fiscal quarter,
the Company's ratio of consolidated Debt as reported in its
financial statements to EBITDA for the last four fiscal
quarters exceeds the Maximum Debt Ratio, or
(iii) at the end of the most recent fiscal quarter,
the Company's EBITDA for the last four fiscal quarters is less
than 8.5% of the Company's consolidated total assets as
reported in its financial statements (excluding intangible
assets and construction work-in-process);
the Company (x) shall submit to SPE, if its Applicable Percentage equals or
exceeds the Minimum Percentage, and USI, if its Applicable Percentage equals or
exceeds the Minimum Percentage, for approval a new plan for the Company covering
a new five-year term commencing with the first day of the next fiscal year of
the Company (the "New Five-Year Plan") which shall replace the Five-Year Plan
and which shall be consistent in form and contain a corresponding level of
detail with the Initial Five-Year Plan and (y) pending the effectiveness of the
New Five-Year Plan, shall submit to SPE, if its Applicable Percentage equals or
exceeds the Minimum Percentage, and USI, if its Applicable Percentage equals or
exceeds the Minimum Percentage, for approval no later than the last Business Day
of the month immediately preceding the end of the Company's fiscal year, annual
operating and capital budgets for the next fiscal year. The Company and any such
Stockholder agree to cooperate in good faith to adopt the New Five-Year Plan and
such budgets as promptly as practicable.
(c) If any of the conditions specified in paragraph (b)(i)
through (iii) above shall have occurred, then until the Company's actual EBITDA
for each of two consecutive fiscal years shall equal or exceed Targeted EBITDA
for each of such years as reflected in the New Five-Year Plan, the Company shall
not, and shall cause its Subsidiaries not to, directly or indirectly, take any
of the following actions without the prior written consent of SPE (so long as
its Applicable Percentage equals or exceeds the Minimum Percentage) and USI (so
long as its Applicable Percentage equals or exceeds the Minimum Percentage): (w)
make, or agree to make, any capital expenditures not specifically identified in
the New Five-Year Plan in excess of $5,000,000 per expenditure or series of
related expenditures or $10,000,000 in the aggregate during any 12-month period,
(x) incur an aggregate amount of Debt in excess of $25,000,000, excluding Debt
specifically identified in the New Five-Year Plan and Permitted Debt, (y) create
or incur any lien on the assets of the Company or any of its Subsidiaries to
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secure unsecured Debt of the Company or any of its Subsidiaries and (z) except
for issuances or sales of Excluded Securities, authorize the issuance of, or
issue or sell, any additional shares of, or any new series or class of, Capital
Stock of the Company.
(d) So long as any Stockholder shall have an Article III
Consent Right, at least six months prior to the expiration of the period covered
by any Five-Year Plan, the Company shall in good faith prepare a Five-Year Plan
for the subsequent five year period, which shall be subject to prior approval by
the Board and which shall be consistent in form and contain a corresponding
level of detail with the Initial Five-Year Plan. The provisions of Sections
3.1(a), (b) and (c) shall be applicable to all Five-Year Plans or New Five-Year
Plans, whether adopted prior to, on or after the five-year anniversary of the
Closing.
(e) Any action or attempted action of the Company or any
Subsidiary of the Company in violation of any provision of Section 3.1 shall be
void.
(f) The Company agrees to notify the Trust when practicable of
any proposed (A) corporate reorganization, (B) share capital reorganization, (C)
transaction involving the exchange of Capital Stock of the Company for other
equity of the Company or any other corporation or (D) merger with another
corporation (any one of such proposals, a "Reorganization Proposal") which
would, in the opinion of counsel for the Company, constitute a disposition of
Common Stock pursuant to the Income Tax Act (Canada) or any successor
legislation, for Canadian resident holders thereof in respect of which any
resulting gain would be taxable pursuant to such Act. In the event of any such
Reorganization Proposal, the Company shall assist the Claridge Group, at the
request of the Claridge Group and at its expense, with an application for a
remission order pursuant to the Financial Administration Act (Canada), provided
that counsel to the Company considers that the Department of Finance (Canada) is
likely to issue a remission order providing fiscal relief to Canadian resident
stockholders of the Company.
(g) In connection with the grant of any consent relating to a
matter described in clauses (ii) or (iii) of Section 3.1(a), the Company and
each Stockholder who then has an Article III Consent Right agree to negotiate in
good faith appropriate adjustments to Targeted EBITDA. If after 21 days
following the grant of such consent, the Company and the Stockholders have not
agreed upon appropriate adjustments, then each of SPE and USI shall have the
opportunity to submit its reasonable estimate of the appropriate adjustments to
Targeted EBITDA to any "Big Six" accounting firm mutually selected by SPE and
USI that is not the principal outside accounting firm for SPE, CO or USI within
the 10 days (the "Submission Period") following the end of such 21-day period.
If the parties cannot agree upon such an accounting firm, the principal outside
accounting firms of SPE and USI shall mutually select another "Big Six"
accounting firm to act hereunder.
Along with their proposed adjustments to Targeted EBITDA, the
Company and each Stockholder who then has an Article III Consent Right may
submit to the accounting firm such written memoranda, arguments, briefs and
other evidence in support of their respective adjustments as they see fit,
copies of which shall also be provided to the other parties hereto. Within 10
days following the expiration of the Submission Period, the
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accounting firm shall make a determination as to which of the adjustments
submitted by the parties is the most reasonable estimate of the impact on the
Company's EBITDA of the matter which was subject to consent (the adjustment so
chosen, the "Final Adjustment"). The accounting firm shall be limited to
selecting one of the adjustments submitted by the parties as the Final
Adjustment and shall have no authority to alter in any way any adjustment so
submitted.
The Final Adjustment shall be deemed to be approved by all
parties to this Agreement for all purposes of this Agreement. If the accounting
firm shall select the adjustment submitted by USI, SPE shall bear all fees and
expenses of the accounting firm, including the fees and expenses of any experts
hired by the accounting firm to assist it in rendering a decision hereunder. If
the accounting firm shall select the adjustment submitted by SPE, USI shall bear
all such fees and expenses.
Following the determination of the Final Adjustment, the
Company shall cause the Final Adjustment to be submitted to the Board for its
approval. The Company shall use its best efforts to cause the Final Adjustment
to be adopted by the Board, and SPE and USI covenant and agree with each other
to use their respective best efforts to cause the Company to fulfill the
Company's obligations under this Section 3.1(g).
SECTION 3.2 Certain Certificate Provisions. So long as the
Applicable Percentage of SPE or USI equals or exceeds the Minimum Percentage,
(i) the Company agrees that the Certificate will provide that effecting a Merger
or Dissolution or adopting a Certificate Amendment or adopting a Bylaw Amendment
by action of the stockholders of the Company shall require the affirmative vote
or written consent of the holders of at least 80% of the outstanding Common
Stock, provided that in the case of any of the foregoing matters (other than
adopting a Bylaw Amendment by action of the stockholders) such 80% stockholder
approval requirement shall not be applicable if 14 members of the Board shall
have approved such matter, provided, further, that in the case of any Merger
that is approved by 14 members of the Board, such Merger shall require the
affirmative vote or written consent of the holders of at least 66 2/3% of the
outstanding Common Stock and (ii) no Stockholder shall vote in favor of, consent
in writing to, or take any other action to effect an amendment or repeal of such
provisions of the Certificate.
SECTION 3.3 Arbitration. (a) At least seven Business Days
prior to the Company or any Subsidiary thereof (i) merging or consolidating
with, or purchasing or otherwise acquiring, any other entity or assets, except
in the ordinary course of business consistent with past practice, (ii) selling,
leasing, transferring or otherwise disposing of any assets, except in the
ordinary course of business consistent with past practice, (iii) issuing or
selling any Voting Shares or new series or class of Capital Stock (other than
Excluded Securities), (iv) incurring or assuming any Debt, other than
incurrences of Debt in the ordinary course of business consistent with past
practice that could not reasonably be expected to trigger an Article III Consent
Right, or (v) taking any action described in clauses (i), (iv), (v), (vi),
(viii), (ix), (xi), (xii), (xiii) or (xiv) of Section 3.1(a), the Company shall
provide SPE and USI with a notice that describes the material terms of such
proposed action and indicates whether the Company reasonably believes in good
faith that any Article III
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Consent Right will be triggered by such action. The Company shall also provide
such Stockholders with all information reasonably relevant and necessary to
determine whether an Article III Consent Right will be triggered by such action.
The foregoing notification requirement will be satisfied if the Company provides
the requisite information to any SPE Director, in the case of SPE, and any USI
Director, in the case of USI. If either SPE or USI disagrees with the Company's
conclusion and reasonably believes in good faith that such Stockholder has an
Article III Consent Right in connection with such action, such Stockholder shall
provide the Company with written notice of its disagreement by the close of
business on the sixth Business Day following receipt of the Company's notice.
(b) In addition, if either SPE or USI reasonably believes in
good faith that the Company intends to take any action in respect of which the
Company has not delivered a notice described in Section 3.3(a) and that such
Stockholder has an Article III Consent Right in connection with such action,
such Stockholder may provide the Company with written notice of such belief. By
the close of business on the sixth Business Day following receipt of such
Stockholder's notice and prior to taking any such action, the Company shall
provide such Stockholder with a notice that indicates whether the Company
reasonably believes in good faith that such action would trigger an Article III
Consent Right and with all information reasonably relevant and necessary to
determine whether an Article III Consent Right will be triggered by such action.
(c) If within five Business Days following the Company's
receipt of a notice described in the last sentence of Section 3.3(a) or a
Stockholder's receipt of a notice described in the second sentence of Section
3.3(b), as the case may be, the Company and such Stockholder cannot reach an
agreement as to whether an Article III Consent Right is triggered in connection
with the proposed action, the issue shall be submitted for arbitration by the
Company and the objecting Stockholder(s) in accordance with the Arbitration
Agreement, a form of which is attached Exhibit B (the "Arbitration Agreement").
The scope of the dispute to be resolved by the arbitrator thereunder (the
"Arbitrator") in connection with any such dispute is limited to whether, under
the terms of this Agreement, an Article III Consent Right is triggered in
connection with the proposed action.
(d) Prior to the Closing Date, SPE, USI, the members of the
Claridge Group and the Company agree to cooperate in good faith in selecting the
Arbitrator, who shall be reasonably acceptable to each such party, and agree to
execute and deliver the Arbitration Agreement at the Closing. If the parties
cannot so select the Arbitrator by such date, SPE, USI and the Independent
Directors shall each designate an individual who qualifies to serve as the
Arbitrator under the Arbitrator Agreement and the three such individuals shall
jointly select to Arbitrator.
SECTION 3.4 Approval of Disinterested Directors. (a) If the
Applicable Percentage of SPE equals or exceeds the Minimum Percentage, neither
SPE nor any of its Affiliates shall enter into any contract with the Company or
any Subsidiary thereof, nor shall the Company otherwise engage in or become
obligated to engage in any transaction or series of related transactions with
SPE and/or its Affiliates, in either case involving more than $1 million per
calendar year, unless such contract or transaction shall have been approved by a
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majority of the Disinterested Directors following disclosure of the material
facts of the contract or transaction to the Disinterested Directors, provided,
however, that the foregoing shall not apply to contracts or transactions that
occur in the ordinary course of the Company's business, including film booking
arrangements, or to any Transactions contemplated by the Documents.
(b) If the Applicable Percentage of USI equals or exceeds the
Minimum Percentage, neither USI nor any of its Affiliates shall enter into any
contract with the Company or any Subsidiary thereof, nor shall the Company
otherwise engage in or become obligated to engage in any transaction or series
of related transactions with USI and/or its Affiliates, in either case involving
more than $1 million per calendar year, unless such contract or transaction
shall have been approved by a majority of the Disinterested Directors following
disclosure of the material facts of the contract or transaction to the
Disinterested Directors, provided, however, that the foregoing shall not apply
to contracts or transactions that occur in the ordinary course of the Company's
business, including film booking arrangements, or to any Transactions
contemplated by the Documents.
SECTION 3.5 Additional Shares. Notwithstanding anything to the
contrary in Section 3.1, without the prior written consent of USI, the Company
agrees that it shall not issue or sell any Common Shares or any Voting Share
Equivalents (other than Excluded Securities) at or after the Closing (other than
pursuant to the Amalgamation or the USI Subscription Agreement) unless USI or
its designee shall be issued Additional Shares (as defined in the USI
Subscription Agreement) to the extent required by, and in accordance with, the
terms of Section 4.6 of such agreement.
ARTICLE IV
TRANSFER OF COMMON SHARES
SECTION 4.1 Restrictions on Transfer during Six-Months
Following Closing. Without the consent of a majority of the Independent
Directors, during the period commencing on the Closing and ending on the
six-month anniversary thereof, each of SPE and USI agrees not to, and to cause
its respective Permitted Transferees not to, Transfer in privately-negotiated
transactions more than 20% of such Stockholder's Initial Interest, provided,
that the foregoing shall not be applicable to Transfers (i) between such
Stockholder and its Permitted Transferees, (ii) to another Stockholder or its
Permitted Transferees, (iii) pursuant to a merger or consolidation in which the
Company is a constituent corporation or (iv) pursuant to a bona fide third party
tender offer or exchange offer which was not induced directly or indirectly by
such Stockholder or any of its Affiliates.
SECTION 4.2 Tag-Along for All Stockholders. (a) Subject to
prior compliance with Section 4.4, neither SPE nor USI nor any of their
respective Affiliates shall be permitted to Transfer, individually or
collectively, an aggregate of more than 50% of the then outstanding Common
Shares in one or a series of related transactions to a Third Party Transferee
(or to one or more Third Party Transferees constituting a Group) (a "Significant
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Sale") unless each stockholder of the Company has the right to participate in
the Significant Sale on the same basis as the proposed transferor(s) (all such
proposed transferors, collectively the "Significant Sale Initiator"). If the
Significant Sale Initiator desires to effect a Significant Sale, it shall give
not less than 20 days prior written notice of such intended Transfer to each
Stockholder and the Company. Such notice (the "Significant Sale Notice") shall
set forth the terms and conditions of such proposed Significant Sale, including
the name of the proposed transferee, the number of shares of Common Stock (the
"Significant Sale Shares") proposed to be Transferred by the Significant Sale
Initiator (specifying the number of shares of Common Stock for each proposed
transferor, if more than one), the purchase price per Share proposed to be paid
therefor and the payment terms and other material terms of the proposed
Transfer.
(b) Within 10 days after delivery of the Significant Sale
Notice to the Company, the Independent Directors shall review the terms of the
proposed Significant Sale and, subject to compliance with applicable law and
stock exchange requirements, establish procedures to ensure that each
stockholder of the Company (including each Stockholder which is not a
Significant Sale Initiator) shall have the opportunity and right to sell to the
proposed transferee (upon the same terms and conditions as the Significant Sale
Initiator) up to that number of Common Shares owned of record by such
stockholder as shall equal the product of (x) a fraction, the numerator of which
is the number of Significant Sale Shares and the denominator of which is the
aggregate number of Common Shares beneficially owned as of the date of the
Significant Sale Notice by the Significant Sale Initiator and its Permitted
Transferees (provided that if there shall be more than one proposed transferor,
the denominator shall be the aggregate number of Common Shares beneficially
owned as of such date by all the proposed transferors), multiplied by (y) the
number of Common Shares owned of record by such stockholder as of the date of
the Significant Sale Notice. The number of Common Shares that a stockholder,
including the Significant Sale Initiator, may sell pursuant to this Section 4.2
shall be determined by multiplying the maximum number of Common Shares that the
proposed transferee of the Significant Sale Shares is willing to purchase on the
terms set forth in the Significant Sale Notice by a fraction, the numerator of
which is the number of Common Shares that such stockholder proposes to sell
hereunder and the denominator of which is the aggregate number of Common Shares
that all stockholders exercising rights under this Section 4.2, including the
Significant Sale Initiator, propose to sell hereunder.
(c) No Transfer or Transfers constituting a Significant Sale
shall be effected absent compliance with this Section 4.2.
SECTION 4.3 Tag-Along for USI and Claridge Group. (a) Subject
to prior compliance with Section 4.4, if SPE or any of its Affiliates shall
desire to Transfer an aggregate of more than 50% of SPE's Initial Interest to
any Person (including any Group), other than an SPE Permitted Transferee, in one
or a series of related transactions (a "Tag-Along Sale"), SPE shall give not
less than 20 days prior written notice of such intended Transfer to USI and the
Claridge Group (each, a "Tag-Along Offeree"). Such notice (the "Tag-Along
Notice") shall set forth the terms and conditions of such proposed Transfer,
including the name of the proposed transferee, the number of Common Shares
proposed to be
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Transferred (the "Tag-Along Shares"), the purchase price per Share proposed to
be paid therefor and the payment terms and type of Transfer to be effectuated.
(b) Within 10 days after delivery of the Tag-Along Notice by
SPE to the Tag-Along Offerees, each Tag-Along Offeree shall, by written notice
to SPE, have the opportunity and right to sell to the transferee in such
proposed Transfer (upon the same terms and conditions as SPE) up to that number
of Common Shares beneficially owned by such Tag-Along Offeree as shall equal the
product of (x) a fraction, the numerator of which is the number of Tag-Along
Shares and the denominator of which is the aggregate number of Common Shares
beneficially owned as of the date of the Tag-Along Notice by SPE and its
Affiliates, multiplied by (y) the number of Common Shares beneficially owned by
such Tag-Along Offeree as of the date of the Tag-Along Notice, provided, that in
respect of any proposed Transfer to USI or a USI Permitted Transferee, for
purposes of this clause (y), the number of Common Shares beneficially owned by
the Claridge Group shall be reduced by the number of Common Shares acquired (net
of Transfers) by the Claridge Group after the Closing (other than from the
Company or other members of the Claridge Group). The number of Common Shares
that a Stockholder, including SPE, may sell pursuant to this Section 4.3 shall
be determined by multiplying the maximum number of Common Shares that the
proposed transferee of the Tag-Along Shares is willing to purchase on the terms
set forth in the Tag-Along Notice by a fraction, the numerator of which is the
number of Common Shares that such Stockholder proposes to sell hereunder
(subject to the maximum amount for each Stockholder calculated pursuant to the
preceding sentence) and the denominator of which is the aggregate number of
Common Shares that all Stockholders exercising rights under this Section 4.3,
including SPE, propose to sell hereunder.
(c) At the closing of any proposed Transfer in respect of
which a Tag-Along Notice has been delivered, each Stockholder electing to sell
Common Shares shall deliver, free and clear of all liens, to the proposed
transferee certificates evidencing the Common Shares to be sold thereto duly
endorsed with Transfer powers and shall receive in exchange therefore the
consideration to be paid by the proposed transferee in respect of such Common
Shares as described in the Tag-Along Notice.
(d) No Transfer or Transfers constituting a Tag-Along Sale
shall be effected absent compliance with this Section 4.3.
(e) This Section 4.3 shall not be applicable to any Transfer
which constitutes a Significant Sale with respect to which each stockholder of
the Company has the right to participate pursuant to Section 4.2.
SECTION 4.4 Right of First Refusal. (a) The following
Transfers of Voting Shares by SPE or USI or their respective Affiliates (the
proposed transferor, the "Transferring Party") will be subject to the right of
first refusal provisions of this Section 4.4:
(i) any Transfer in one or a series of related
privately-negotiated transactions or a public offering if (A)
5% or more of the then outstanding Voting Shares are subject
to the Transfer, (B) any transferee, or any Group of
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which a transferee is a member, would, following such
Transfer, beneficially own 5% or more of the outstanding
Voting Shares (except, in the case of any public offering, the
limitation set forth in this clause (B) shall not be
applicable if the Transferring Party has taken all reasonable
steps to assure that such limitation shall have been
satisfied) or (C) in the case of any Transfer by SPE or any of
its Affiliates, SPE's Applicable Percentage exceeds 25%;
(ii) any Transfer pursuant to a bona fide third party
tender offer or exchange offer;
(iii) any Transfer to the Company or to a Subsidiary
of the Company pursuant to a self-tender offer or otherwise;
and
(iv) any Transfer in a Market Sale.
Notwithstanding the foregoing and subject to compliance with Section 4.5(a), the
provisions of this Section 4.4 shall not apply to any Transfer between SPE or
USI and any of their respective Permitted Transferees.
(b) Prior to effecting any Transfer described in Section
4.4(a), the Transferring Party shall deliver a written notice (the "Offer
Notice") to USI, if the Transferring Party is SPE or an Affiliate thereof, or to
SPE, if the Transferring Party is USI or an Affiliate thereof (the recipient of
such notice, the "Other Stockholder"), which Offer Notice shall specify (i) the
Person to whom the Transferring Party proposes to make such Transfer or the
proposed manner of Transfer in the case of a public offering or a Market Sale,
(ii) the number or amount and description of the Voting Shares to be
Transferred, (iii) except in the case of a public offering or a Market Sale, the
Offer Price (as defined below), and (iv) all other material terms and conditions
of the proposed Transfer, including a description of any non-cash consideration
sufficiently detailed to permit valuation thereof, and which Offer Notice shall
be accompanied by any written offer from the prospective transferee to purchase
such Voting Shares, if available and permitted pursuant to the terms thereof.
The Offer Notice shall constitute an irrevocable offer to the Other Stockholder
or its designee, for the period of time described below, to purchase all (but
not less than all) of such Voting Shares upon the same terms specified in the
Offer Notice, subject to Section 4.4(g) and as otherwise set forth in this
Section 4.4. The Other Stockholder may elect to purchase all (but not less than
all) of the Voting Shares at the Offer Price (or, if the Offer Price includes
property other than cash, the equivalent in cash of such property as determined
in accordance with Section 4.4(g)) and upon the other terms and conditions
specified in the Offer Notice.
(c) For purposes of this Section 4.4, "Offer Price" shall be
defined to mean on a per share or other amount of Voting Shares basis (i) in the
case of a third party tender offer or exchange offer, the tender offer or
exchange offer price per Voting Share taking into account any provisions thereof
with respect to proration and any proposed second step or "back-end"
transaction, (ii) in the case of a public offering or a Market Sale, the Current
Market Value per Voting Share as of the date the election notice of the Other
Stockholder
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hereinafter described is delivered and (iii) in the case of a
privately-negotiated transaction, the proposed sale price per Voting Share.
(d) If the Other Stockholder elects to purchase the offered
Voting Shares, it shall give notice to the Transferring Party within 20 days of
its receipt of the Offer Notice of its election (or in the case of a third party
tender offer or exchange offer, not later than five Business Days prior to the
expiration date of such offer, provided that all conditions to such offer (other
than with respect to the number of Voting Shares tendered) shall have been
satisfied or waived and the Offer Notice shall have been provided at least ten
Business Days prior to the expiration date of such offer), which shall
constitute a binding obligation, subject to standard terms and conditions for a
stock purchase contract between two significant stockholders of an issuer
(provided that the Transferring Party shall not be required to make any
representations or warranties regarding the business of the Company), to
purchase the offered Voting Shares, which notice shall include the date set for
the closing of such purchase, which date shall be no later than 60 days
following the delivery of such election notice. Notwithstanding the foregoing,
such time periods shall not be deemed to commence with respect to any purported
notice that does not comply in all material respects with the requirements of
this Section 4.4(d). The Other Stockholder may assign its rights to purchase
under this Section 4.4 to any Person (including the Company).
(e) Subject to Section 4.4(f) in the case of a Market Sale, if
the Other Stockholder does not respond to the Offer Notice within the required
response time period or elects not to purchase the offered Voting Shares, the
Transferring Party shall be free to complete the proposed Transfer (to the same
proposed transferee, in the case of privately-negotiated transaction) on terms
no less favorable to the Transferring Party or its Affiliate, as the case may
be, than those set forth in the Offer Notice, provided that (x) such Transfer is
closed within 90 days after the latest of (A) the expiration of the foregoing
required response time periods, or (B) the receipt by the Transferring Party of
the foregoing election notice or, in the case of a public offering, within 20
days of the declaration by the Commission of the effectiveness of a registration
statement filed with the Commission pursuant to this Agreement, and (y) the
price at which the Voting Shares are transferred must be equal to or higher than
the Offer Price (except in the case of a public offering, in which case the
price at which the Voting Shares are sold (before deducting underwriting
discounts and commissions) shall be equal to at least 90% of the Offer Price).
Such periods within which such Transfer must be closed shall be extended to the
extent necessary to obtain required governmental approvals and other required
approvals and the Transferring Party and the Other Stockholder shall use their
respective best efforts to obtain such approvals.
(f) If the Other Stockholder does not respond to the Offer
Notice with respect to a Market Sale within the required response time period or
elects not to purchase the offered Voting Shares, the Transferring Party shall
be free to complete the proposed Market Sale in one or more transactions during
the 90-day period commencing on the latest of (i) the expiration of the required
response time period described in Section 4.4(d) or (ii) receipt by the
Transferring Party of the election notice described in Section 4.4(d), provided
that the price at which each Voting Share is transferred (excluding brokerage
commissions) shall be at least equal to 90% of the Offer Price.
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(g) If (i) the consideration specified in the Offer Notice
consists of, or includes, consideration other than cash or a publicly traded
security for which a closing market price is published for each Business Day, or
(ii) any property other than Voting Shares is proposed to be transferred in
connection with the transaction to which the Offer Notice relates, then the
price payable by the Other Stockholder under this Section 4.4 for the Voting
Shares being transferred shall be the Determination of the Independent Directors
of the Fair Market Value of the consideration per share or amount in the case of
clause (i) and the Determination of the Independent Directors of the Fair Market
Value of the consideration per share or amount determined to be properly
allocable to the Voting Shares in the case of clause (ii). Notwithstanding
anything to the contrary contained in this Section 4.4, the time periods
applicable to an election by the Other Stockholder to purchase the offered
securities set forth in Section 4.4(a) shall not be deemed to commence until the
Determination of the Independent Directors under this Section 4.4(g) has been
made, provided that, in the case of a third party tender offer or exchange
offer, in no event shall any such election be permitted later than 24 hours
prior to the latest time by which Voting Shares shall be tendered in order to be
accepted pursuant to such offer or to qualify for any proration applicable to
such offer if all conditions to such offer (other than the number of shares
tendered) have been satisfied or waived. The Company agrees to use its best
efforts to cause the Determination of the Independent Directors under this
Section 4.4(g) to be made as promptly as practicable but in no event later than
ten Business Days after the receipt by the Company of the Offer Notice.
(h) The provisions of this Section 4.4 shall be applicable to
any proposed Transfer of Non-Voting Common Stock to any Person other than an SPE
Permitted Transferee as if the Common Stock that is issuable upon Transfer in
accordance with clause (i) of Section 4(b) of Article IV of the Certificate were
being Transferred.
SECTION 4.5 Transferees. (a) Any Permitted Transferee of a
Stockholder shall be subject to the terms and conditions of this Agreement as if
such Permitted Transferee were SPE (in the case SPE or a Permitted Transferee of
SPE is the transferor), USI (in the case USI or a Permitted Transferee of USI is
the transferor) or a member of the Claridge Group (in the case a member of the
Claridge Group or a Permitted Transferee thereof is the transferor). Prior to
the initial acquisition of beneficial ownership of any Voting Shares or
Non-Voting Common Stock by any Permitted Transferee, and as a condition thereto,
each Stockholder agrees (i) to cause its respective Permitted Transferees to
agree in writing with the other parties hereto to be bound by the terms and
conditions of this Agreement to the extent described in the preceding sentence
and (ii) that such Stockholder shall remain directly liable for the performance
by its respective Permitted Transferees of all obligations of such Permitted
Transferees under this Agreement; provided, however, that, unless the Trust
elects otherwise, the foregoing shall not be applicable to any Permitted
Transferee described in clause (iii)(b) of the definition thereof or any spouse
of any such Permitted Transferee so long as such Person has not purchased Voting
Shares for aggregate consideration (excluding brokerage commissions) exceeding
$20,000 (measured at the time of the applicable acquisition) and that such
Voting Shares have been acquired solely in open market purchases; provided,
further, that the Trust shall not permit all Persons described in the preceding
proviso who the Trust has not elected to be subject to clause (i) and (ii) above
to so acquire Voting Shares for aggregate consideration (excluding brokerage
commissions) exceeding
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$100,000 (measured at the time of the applicable acquisition). Each of SPE and
USI agrees not to cause or permit any of its respective Permitted Transferees to
cease to be directly or indirectly wholly-owned by such Stockholder so long as
such Permitted Transferee beneficially owns any Voting Shares or Non-Voting
Common Stock, and if any such Permitted Transferee shall cease to be so
wholly-owned, such Permitted Transferee shall automatically upon the occurrence
of such event cease to be a "Permitted Transferee" for any purpose under this
Agreement. Each Stockholder agrees not to Transfer any Voting Shares or
Non-Voting Common Stock to any Affiliate other than a Permitted Transferee of
such Stockholder.
(b) No Third Party Transferee shall have any rights or
obligations under this Agreement, except:
(i) if such Third Party Transferee (together with its
Affiliates) would beneficially own more than 10% of the
outstanding Voting Shares upon consummation of any Transfer or
if such Third Party Transferee (together with its Affiliates)
shall acquire beneficial ownership of more than 3.5% of the
outstanding Voting Shares in any Transfer or series of related
Transfers from members of the Claridge Group and Permitted
Transferees thereof, such Third Party Transferee shall be
subject to the terms and conditions of Article I, Article II
(but shall not have the right to designate any Directors
pursuant thereto, except in the circumstances described in
clauses (ii) or (iii) below), Section 4.4 (but only with
respect to the rights and obligations of a "Transferring
Party" thereunder, and such Third Party Transferee shall not
have the right to purchase Voting Shares pursuant thereto or
any other rights of an "Other Stockholder" thereunder), this
Section 4.5, Section 4.6 and Articles VI and VIII as if such
Third Party Transferee were SPE (in the case SPE or a
Permitted Transferee of SPE is the transferor), USI (in the
case USI or a Permitted Transferee of USI is the transferor)
or a member of the Claridge Group (in the case a member of the
Claridge Group or a Permitted Transferee thereof is the
transferor);
(ii) if such Third Party Transferee (together with
its Affiliates) would beneficially own more than 10% of the
outstanding Voting Shares upon consummation of any Transfer
from SPE or USI or any of their respective Permitted
Transferees, and if such Third Party Transferee shall have
acquired from SPE or USI (or such Permitted Transferees) all
Voting Shares then beneficially owned by such Stockholder and
its Permitted Transferees, such Third Party Transferee shall
have the right to designate Directors pursuant to Article II
if the applicable transferor elects to assign such right to
such Third Party Transferee;
(iii) if in a Transfer or series of related Transfers
from any member of the Claridge Group and Permitted
Transferees thereof to any Third Party Transferee, such Third
Party Transferee (together with its Affiliates) shall acquire
beneficial ownership of more than 3.5% of the outstanding
Voting
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Shares constituting more than 50% of the Initial Interest of
the Claridge Group, such Third Party Transferee shall have the
right to designate Directors pursuant to Section 2.1(b)(i) if
(x) the applicable transferor elects to assign such right to
such Third Party Transferee (which in the event of the grant
of an option upon Voting Shares, may be assigned either upon
the grant or the exercise thereof) and (y) SPE and USI shall
have given their prior written consent to the assignment of
such right to the Third Party Transferee (which consent shall
not be unreasonably withheld), provided that (i) upon any such
Transfer or series of related Transfers the Claridge Group
shall cease to have a right to elect Directors pursuant to
Section 2.1 in the event that such right is transferred in
accordance with the provisions of this subsection 4.5(b)(iii)
and (ii) such Third Party Transferee shall not have the right
to assign such right to any Person (other than a Permitted
Transferee thereof); and
(iv) if such Third Party Transferee (together with
its Affiliates) shall acquire beneficial ownership of more
than 3.5% of the outstanding Voting Shares in any Transfer or
series of related Transfers from a Stockholder and/or its
Permitted Transferees, such Third Party Transferee shall have
the right to initiate Demand Registrations pursuant to Section
5.1 and the other rights and obligations of a Holder pursuant
to Article V to the extent the transferor to such Third Party
Transferee assigns, in whole or in part, any such rights and
obligations to such Third Party Transferee (provided that no
rights of a Holder under Article V shall be assigned unless
the obligations of a Holder thereunder are also assigned).
(c) Prior to the consummation of a Transfer described in
Section 4.5(b) to the extent rights and obligations are to be assigned, and as a
condition thereto, the applicable Third Party Transferee shall agree in writing
with the other parties hereto to be bound by the terms and conditions of this
Agreement to the extent described in Section 4.5(b). To the extent the Third
Party Transferee is not an "ultimate parent entity" (as defined in the HSR Act),
the ultimate parent entity of such Third Party Transferee shall agree in writing
to be directly liable for the performance of the Third Party Transferee to the
same extent USI or SPE would be liable for their respective Permitted
Transferees.
SECTION 4.6 Notice of Transfer. To the extent any Stockholder
and its Permitted Transferees shall Transfer any Voting Shares, such Stockholder
shall, within three Business Days following consummation of such Transfer,
deliver notice thereof to the Company and the other Stockholders, provided,
however, that no such notice shall be required to be delivered unless the
aggregate Voting Shares transferred by such Stockholder and its Permitted
Transferees since the date of the last notice delivered by such Stockholder
pursuant to this Section 4.6 or Section 8.4(b) exceeds 1% of the outstanding
Voting Shares.
SECTION 4.7 Compliance with Transfer Provisions. Any Transfer
or attempted Transfer of Voting Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Voting Shares as the owner of
such Voting Shares for any purpose.
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ARTICLE V
REGISTRATION RIGHTS
SECTION 5.1 Demand Registrations. (a) Subject to Section
5.1(d), at any time and from time to time after the one-year anniversary of the
Closing, any Holder shall have the right to require the Company to file a
registration statement under the Securities Act and/or a prospectus under
applicable Canadian securities laws covering all or any part of their respective
Registrable Securities, by delivering a written request therefor to the Company
specifying the number of Registrable Securities to be included in such
registration by such Holder(s) and the intended method of distribution thereof.
All such requests pursuant to this Section 5.1(a) are referred to herein as
"Demand Registration Requests" and the registrations so requested are referred
to herein as "Demand Registrations" (with respect to any Demand Registration,
the Holder making such demand for registration being referred to as the
"Initiating Holder"). As promptly as practicable, but no later than 15 days
after receipt of a Demand Registration Request, the Company shall give written
notice (the "Demand Exercise Notice") of such Demand Registration Request to all
Holders of record of Registrable Securities.
(b) The Company shall include in a Demand Registration (i) the
Registrable Securities of the Initiating Holder and (ii) the Registrable
Securities of any other Holder (collectively, the "Other Holders") that shall
have made a written request to the Company for inclusion thereof in such
registration (which request shall specify the maximum number of Registrable
Securities intended to be disposed of by such Holder(s)) within 30 days after
the receipt of the Demand Exercise Notice.
(c) The Company shall, as expeditiously as possible following
a Demand Registration Request, use its best efforts to (i) effect the
registration under the Securities Act (including by means of a shelf
registration pursuant to Rule 415 under the Securities Act if so requested and
if the Company is then eligible to use such a registration) of the Registrable
Securities which the Company has been so requested to register by such Holder,
for distribution, in accordance with such intended method of distribution, and
(ii) if requested by the Initiating Holder, obtain acceleration of the effective
date of the registration statement relating to such registration.
(d) The rights of Holders of Registrable Securities to request
Demand Registrations pursuant to Section 5.1(a) are subject to the following
limitations: (i) the Company shall not be obligated to effect a Demand
Registration within six months after the effective date of any other
registration of equity securities by the Company (other than pursuant to a
registration on Form S-4 or Form S-8 or any successor or similar form that is
then in effect) which was not effected on Form S-3 (or any successor or similar
short-form registration statement), provided, however, that this clause (i)
shall not be applicable with respect to any Registrable Securities beneficially
owned by any Holder if in connection with a Piggyback Registration such Holder
requested during such six month period to have such Registrable Securities
included in such Piggyback Registration and Registrable Securities with
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a Current Market Value exceeding $25,000,000 (valued at the time of such
request) were not included pursuant to Section 5.2(d), (ii) in no event shall
the Company be required to effect, in the case of SPE, more than four Demand
Registrations, in the case of USI, more than four Demand Registrations, and, in
the case of the Claridge Group, more than one Demand Registration, (iii) the
Company shall not be obligated to effect a Demand Registration by either SPE or
USI if a Demand Registration initiated by either SPE or USI shall have been
effected in the preceding 12 months, and (iv) the Company shall not be obligated
to effect a Demand Registration the reasonably anticipated aggregate price to
the public of which would not exceed $25,000,000. Upon assignment by a
Stockholder of the right to initiate a Demand Registration to a Third Party
Transferee in accordance with Section 4.5(b)(iv), such Stockholder shall cease
to have the right to initiate such Demand Registration and the number of Demand
Registrations to which such Stockholder shall be entitled as set forth in the
preceding sentence shall be reduced accordingly. In no event shall the Company
be required to effect more than nine Demand Registrations pursuant to this
Agreement.
(e) The Company shall select the registration statement form
for any registration pursuant to this Section, provided, that if any
registration requested pursuant to this Section which is proposed by the Company
to be effected by the filing of a registration statement on Form S-3 (or any
successor or similar short-form registration statement) shall be in connection
with an underwritten public offering, and if the managing underwriter shall
advise the Company in writing that, in its opinion, the use of another form of
registration statement is of material importance to the success of such proposed
offering, then such registration shall be effected on such other form.
(f) A registration requested pursuant to this Section 5.1 will
not be deemed to have been effected unless it has become effective, provided
that if, within 180 days after it has become effective, the offering of
Registrable Securities pursuant to such registration is subject to any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court, such registration will be deemed not to have been
effected.
(g) If a requested registration pursuant to this Section
involves an underwritten offering, the Company shall have the right to select in
good faith the investment banker or bankers and managers to administer the
offering; provided, however, that such investment banker or bankers and managers
shall be reasonably satisfactory to the Initiating Holder. The Initiating Holder
shall notify the Company if such Holder objects to any investment banker or
manager selected by the Company pursuant to this Section 5.1(g) within 10
Business Days after the Company has notified such Holder of such selection.
(h) If the managing underwriter of any underwritten offering
shall advise the Holders participating in a Demand Registration that the
Registrable Securities covered by the registration statement cannot be sold in
such offering within a price range acceptable to the Initiating Holder, then the
Initiating Holder shall have the right to notify the Company that it has
determined that the registration statement be abandoned or withdrawn, in which
event the Company shall abandon or withdraw such registration statement. If a
requested registration pursuant to this Section 5.1 involves an underwritten
offering and the managing underwriter advises the Company that, in its opinion,
the number of securities requested to be included in
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such registration (including securities of the Company which are not Registrable
Securities) exceeds the number which can be sold in such offering within a price
range acceptable to the Initiating Holder, the Company will include in such
registration only the Registrable Securities requested to be included in such
registration pursuant to this Section 5.1. In the event that the number of
Registrable Securities requested to be included in such registration exceeds the
number which, in the opinion of such managing underwriter, can be sold in such
offering within a price range acceptable to the Initiating Holder, the Company
shall include in such registration the number of Registrable Securities proposed
to be sold by the Initiating Holder and, to the extent the managing underwriter
believes that additional Registrable Securities can be sold in such offering
within such price range, the number of Registrable Securities proposed to be
sold by the Other Holders, allocated pro rata among the Other Holders on the
basis of the relative number of shares of Registrable Securities requested to be
registered pursuant to clause (ii) of Section 5.1(b) by each such Holder. In the
event that the number of Registrable Securities requested by all Holders to be
included in such registration is less than the number which, in the opinion of
the managing underwriter, can be sold, the Company may include in such
registration a number of securities that the Company proposes to sell up to the
number of securities that, in the opinion of the underwriter, can be sold in
such offering within a price range acceptable to the Initiating Holder.
(i) If the Company at any time grants to any other holders of
Voting Shares (or securities that are convertible, exchangeable or exercisable
into Voting Shares) any rights to request the Company to effect the registration
under the Securities Act of any such Voting Shares (or any such securities) on
terms more favorable to such holders than the terms set forth in this Section
5.1, then the Holders shall be entitled to such more favorable rights and
benefits.
SECTION 5.2 Piggyback Registrations. (a) If, at any time
following the Equity Offering, the Company proposes or is required to register
any of its equity securities under the Securities Act (other than pursuant to
(i) registrations on such form or similar form(s) solely for registration of
securities in connection with an employee benefit plan or dividend reinvestment
plan or a merger, consolidation or acquisition or (ii) a Demand Registration
pursuant to Section 5.1) on a registration statement on Form S-1, Form S-2 or
Form S-3 (or an equivalent general registration form then in effect), whether or
not for its own account, the Company shall give prompt written notice of its
intention to do so to each of the Holders of record of Registrable Securities.
Upon the written request of any Holder, made within 15 days following the
receipt of any such written notice (which request shall specify the maximum
number of Registrable Securities intended to be disposed of by such Holder and
the intended method of distribution thereof), the Company shall use its best
efforts to cause all such Registrable Securities, the Holders of which have so
requested the registration thereof, to be registered under the Securities Act
(with the securities that the Company at the time proposes to register) to
permit the sale or other disposition by such Holders (in accordance with the
intended method of distribution thereof) of the Registrable Securities to be so
registered (such registration, a "Piggyback Registration"). There is no
limitation on the number of Piggyback Registrations pursuant to the preceding
sentence that the Company is obligated to effect. No registration effected under
this Section 5.2(a) shall relieve the Company of its obligations to effect
Demand Registrations.
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(b) If, at any time after giving written notice of its
intention to register any equity securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay registration
of such equity securities, the Company may, at its election, give written notice
of such determination to all Holders of record of Registrable Securities and (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
abandoned registration, without prejudice, however, to the rights of Holders
under Section 5.1, and (ii) in the case of a determination to delay such
registration of its equity securities, shall be permitted to delay the
registration of such Registrable Securities for the same period as the delay in
registering such other equity securities.
(c) Any Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 5.2 by giving written notice to the Company of its
request to withdraw; provided, however, that (i) such request must be made in
writing prior to the earlier of the execution of the underwriting agreement or
the execution of the custody agreement with respect to such registration and
(ii) such withdrawal shall be irrevocable and, after making such withdrawal, a
Holder shall no longer have any right to include Registrable Securities in the
registration as to which such withdrawal was made.
(d) If the managing underwriter of any underwritten offering
shall inform the Company by letter of its belief that the number of Registrable
Securities requested to be included in a registration under this Section 5.2
would materially adversely affect such offering, then the Company will include
in such registration, first, the securities proposed by the Company to be sold
for its own account, second, the Registrable Securities and all other securities
of the Company to be included in such registration to the extent of the number
and type, if any, that the Company is so advised can be sold in (or during the
time of) such offering, pro rata among the Holders on the basis of the relative
number of shares of Registrable Securities requested to be registered pursuant
to Section 5.2(a) by each such Holder and, third, pro rata among the holders of
any other securities of the Company with respect to which the holders thereof
are entitled to and desire "piggy-back" or similar registration rights.
SECTION 5.3 Registration Procedures. If and whenever the
Company is required by the provisions of this Agreement to use its best efforts
to effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company shall, as
expeditiously as possible:
(a) prepare and file with the Commission a registration
statement on an appropriate registration form of the Commission for the
disposition of such Registrable Securities in accordance with the intended
method of disposition thereof, which form (i) shall be selected by the Company
and (ii) shall, in the case of a shelf registration, be available for the sale
of the Registrable Securities by the selling Holders thereof and such
registration statement shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed
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therewith, and the Company shall use its best efforts to cause such registration
statement to become effective (provided, however, that before filing a
registration statement or prospectus or any amendments or supplements thereto,
or comparable statements under securities or "blue sky" laws of any
jurisdiction, the Company will furnish to counsel for the Holders participating
in the planned offering (selected by the Initiating Holder, in the case of a
Demand Registration, or the Requisite Percentage of Participating Holders, in
the case of a Piggyback Registration) and the underwriters, if any, copies of
all such documents proposed to be filed (including all exhibits thereto), which
documents will be subject to the reasonable review and, in the case of a
registration pursuant to Section 5.1, reasonable comment of such counsel, and
the Company shall not file any registration statement or amendment thereto or
any prospectus or supplement thereto pursuant to Section 5.1 to which the
Holders of a majority of the Registrable Securities covered by such registration
statement or the underwriters, if any, shall reasonably object in writing);
(b) prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for such period as any seller of
Registrable Securities pursuant to such registration statement shall request and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Securities covered by such registration
statement in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement until the earlier of
(i) such time as all such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the Holder or Holders
thereof set forth in such registration statement and (ii) the expiration of 180
days from the date such registration statement first becomes effective;
(c) furnish, without charge, to each seller of such
Registrable Securities and each underwriter, if any, of the securities covered
by such registration statement such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits), and the prospectus included in such registration statement (including
each preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, such documents incorporated by reference in
such registration statement, and such other documents, as such seller and
underwriter may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions as any sellers of
Registrable Securities or any managing underwriter, if any, shall reasonably
request, and do any and all other acts and things that may be necessary or
advisable to enable such sellers or underwriter, if any, to consummate the
disposition of the Registrable Securities in such jurisdictions, except that in
no event shall the Company be required to qualify generally to do business as a
foreign corporation in any jurisdiction where it would not, but for the
requirements of this paragraph (d), be required to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
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(e) enter into such customary agreements (including an
underwriting agreement in customary form), which may include indemnification
provisions in favor of underwriters and other persons in addition to, or in
substitution for, the provisions of Section 5.8 hereof, and take such other
actions as the Initiating Holder, in the case of a Demand Registration, or the
Requisite Percentage of Participating Holders, in the case of a Piggyback
Registration, or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
(f) furnish to each seller of Registrable Securities (i) a
signed counterpart, addressed to such seller, of any opinion of counsel for the
Company, dated the date of the closing under the underwriting agreement with
respect to such offering, in customary form and in form and scope reasonably
satisfactory to the underwriter and its counsel, and (ii) a signed counterpart,
if requested by such Seller, addressed to it, of any "cold comfort" letter
signed by the independent public accountants in customary form and covering
matters of the type customarily covered by "cold comfort" letters (provided that
Registrable Securities constitute at least 25% of the securities covered by such
registration statement, unless such a "cold comfort" letter or letters are
provided to the Company or other selling holders in connection with such
registration);
(g) immediately notify each Holder selling Registrable
Securities covered by such registration statement and each managing underwriter,
if any: (i) when the registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed and, with respect to the
registration statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission or state securities authority
for amendments or supplements to the registration statement or the prospectus
related thereto or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose; (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities or
"blue sky" laws of any jurisdiction or the initiation of any proceeding for such
purpose; (v) of the existence of any fact of which the Company becomes aware
that results in the registration statement, the prospectus related thereto or
any document incorporated therein by reference containing an untrue statement of
a material fact or omitting to state a material fact required to be stated
therein or necessary to make any statement therein not misleading; and (vi) if
at any time the representations and warranties contemplated by Section 5.8 below
cease to be true and correct in all material respects; and, if the notification
relates to an event described in clause (v), the Company shall promptly prepare
and furnish to each such seller and each underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include 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;
(h) use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable
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after the effective date of the registration statement (and in any event within
16 months thereafter), an earnings statement (which need not be audited)
covering the period of at least 12 consecutive months beginning with the first
day of the Company's first 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 the rules and regulations thereunder;
(i) use its best efforts to cause all such Registrable
Securities covered by such registration statement to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed or quoted (if any), and provide a transfer agent and
registrar for such Registrable Securities not later than the effective date of
such registration statement;
(j) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other actions as the
Initiating Holder, in the case of a Demand Registration, or the Requisite
Percentage of Participating Holders, in the case of a Piggyback Registration,
shall reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
(k) deliver promptly to the each Holder and counsel for the
selling Holders participating in the offering and each underwriter, if any,
copies of all correspondence between the Commission and the Company, its counsel
or auditors and any memoranda relating to discussions with the Commission or its
staff with respect to the registration statement, other than those portions of
any such memoranda that contain information subject to attorney-client privilege
with respect to the Company, and, upon receipt of such confidentiality
agreements as the Company may reasonably request, make reasonably available for
inspection by any seller of such Registrable Securities covered by such
registration statement, by any underwriter, if any, participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement;
(l) use reasonable efforts to prevent the issuance of any stop
order suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus and, if any such
order is issued, to obtain the withdrawal of any such order at the earliest
possible moment;
(m) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
(n) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into account
the needs of the Company's businesses and the requirements of the marketing
process) in the marketing of Registrable Securities in any underwritten
offering;
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(o) promptly prior to the filing of any document that is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement), provide copies of
such document to counsel for the selling Holders and to each managing
underwriter, if any, and make the Company's representatives reasonably available
for discussion of such document and make such changes in such document
concerning the selling holders prior to the filing thereof as counsel for such
selling holders or underwriters may reasonably request;
(p) furnish to each Holder participating in the offering and
the managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(q) cooperate with each seller of Registrable Securities and
each underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National Association of Securities Dealers, Inc.;
(r) use reasonable efforts to make available the executive
officers of the Company to participate with the Holders of Registrable
Securities and any underwriters in any "road shows" or other selling efforts
that may be reasonably requested by the selling Holders in connection with the
methods of distribution for the Registrable Securities;
(s) cooperate with the selling Holders of Registrable
Securities and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of Registrable
Securities to the underwriters or, if not an underwritten offering, in
accordance with the instructions of the selling Holders of Registrable
Securities at least three business days prior to any sale of Registrable
Securities;
(t) in the case of a registration under Canadian securities
laws, take such reasonable actions as may be necessary to facilitate the sale of
Registrable Securities on a public basis in Canada, including making any
necessary filings with Canadian securities authorities or any Canadian stock
exchange on which the Registrable Securities are listed; and
(u) take all such other reasonable actions as are necessary or
advisable in order to expedite or facilitate the disposition of such Registrable
Securities.
The Company may require as a condition precedent to the Company's obligations
under this Section 5.3 that each seller of Registrable Securities as to which
any registration is being effected furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing and as shall be required by law
or by the Commission in connection therewith, provided that such
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information shall be used only in connection with such registration. Each Holder
of Registrable Securities agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in clause (v) of
paragraph (g) of this Section 5.3, such Holder will discontinue such Holder's
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by paragraph (g) of this
Section 5.3 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such Holder's possession of the prospectus covering such Registrable Securities
that was in effect at the time of receipt of such notice. In the event the
Company shall give any such notice, the applicable period mentioned in paragraph
(b) of this Section 5.3 shall be extended by the number of days during such
period from and including the date of the giving of such notice to and including
the date when each seller of any Registrable Securities covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by paragraph (g) of this Section 5.3. If any
such registration statement or comparable statement under "blue sky" laws refers
to any Holder by name or otherwise as the Holder of any securities of the
Company, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such Holder and the
Company, to the effect that the holding by such Holder of such securities is not
to be construed as a recommendation by such Holder of the investment quality of
the Company's securities covered thereby and that such holding does not imply
that such Holder will assist in meeting any future financial requirements of the
Company or (ii) in the event that such reference to such Holder by name or
otherwise is not in the judgment of the Company, as advised by counsel, required
by the Securities Act or any similar federal statute or any state "blue sky" or
securities law then in force, the deletion of the reference to such Holder.
SECTION 5.4 Registration Expenses. (a) Each Holder of
Registrable Securities (together with the Company, if the Company participates
in a registration) participating in any registration pursuant to Section 5.1
shall pay its pro rata share of Expenses related to such registration on the
basis of the number of Registrable Securities included in such registration by
such Holder (including the Company, if applicable) relative to the number of
securities included in such registration by all holders (including the Company,
if applicable, and any other holders including securities in the registration
pursuant to an agreement with the Company other than this Agreement), other than
Expenses directly attributable to a particular Holder, which shall be borne by
such Holder, provided that the Company shall bear all expenses of the initial
registration effected pursuant to Section 5.1 upon the request of each of SPE,
USI and the Claridge Group.
(b) Each Holder of Registrable Securities participating in any
registration initiated by the Company pursuant to Section 5.2 shall pay its pro
rata share of Expenses (other than Company Expenses which shall be borne by the
Company) related to such registration on the basis of the number of Registrable
Securities included in such registration by such Holder relative to the number
of securities included in such registration by all holders (excluding the
Company and including any holders including securities in the registration
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pursuant to an agreement with the Company other than this Agreement), other than
Expenses directly attributable to a particular Holder which shall be borne by
such Holder.
(c) Notwithstanding the foregoing, (i) the provisions of this
Section 5.4 shall be deemed amended to the extent necessary to cause these
expense provisions to comply with the "blue sky" laws of each state in which the
offering is made, (ii) in connection with any registration hereunder, each
Holder of Registrable Securities being registered shall pay all underwriting
discounts and commissions and any transfer taxes, if any, attributable to the
sale of such Registrable Securities, pro rata with respect to payments of
discounts and commissions in accordance with the number of shares sold in the
offering by such Holder, and (iii) the Company shall, in the case of all
registrations under this Article V, be responsible for all its internal expenses
(including all salaries and expenses of its officers and employees performing
legal or accounting duties).
SECTION 5.5 Limitations on Sale or Distribution of Other
Securities. (a) To the extent requested in writing by a managing underwriter, if
any, of any registration effected pursuant to Section 5.1, each Holder of
Registrable Securities agrees not to Transfer, including any sale pursuant to
Rule 144 under the Securities Act, any Common Stock (other than as part of such
underwritten public offering) during the time period reasonably requested by the
managing underwriter, not to exceed 90 days (and the Company hereby also so
agrees (except that the Company may effect any sale or distribution of any such
securities pursuant to a registration on Form S-4 (if reasonably acceptable to
such managing underwriter) or Form S-8, or any successor or similar form that is
then in effect or upon the conversion, exchange or exercise of any then
outstanding Common Stock Equivalent) to use its reasonable best efforts to cause
each holder of any equity security or any security convertible into or
exchangeable or exercisable for any equity security of the Company purchased
from the Company at any time other than in a public offering so to agree). Each
managing underwriter shall be entitled to rely on the agreements of each Holder
of Registrable Securities set forth in this Section 5.5(a) and shall be a third
party beneficiary of the provisions of this Section 5.5(a).
(b) The Company hereby agrees that, if it shall previously
have received a request for registration pursuant to Section 5.1, and if such
previous registration shall not have been withdrawn or abandoned, the Company
shall not Transfer any Common Stock (other than as part of such underwritten
public offering, a registration on Form S-4 or Form S-8 or any successor or
similar form that is then in effect or upon the conversion, exchange or exercise
of any then outstanding Common Stock Equivalent), until a period of 90 days
shall have elapsed from the effective date of such previous registration; and
the Company shall so provide in any registration rights agreements hereafter
entered into with respect to any of its securities.
SECTION 5.6 Company Right to Postpone Registration. The
Company shall be entitled to postpone for a reasonable period of time (but not
exceeding 120 days) the filing of any registration statement otherwise required
to be prepared and filed by it pursuant to this Agreement if the Company
concludes that such registration and offering would materially adversely affect
any financing, acquisition, corporate reorganization or other material
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transaction involving the Company or any of its Affiliates or would require
premature disclosure thereof and the Company promptly gives the Holders of
Registrable Securities requesting registration thereof pursuant to Section 5.1
written notice of such delay. If the Company shall so postpone the filing of a
registration statement, such Holders of Registrable Securities requesting
registration thereof pursuant to Section 5.1 shall have the right to withdraw
the request for registration by giving written notice to the Company within 30
days after receipt of the notice of postponement and, in the event of such
withdrawal, such request shall not be counted for purposes of the requests for
registration to which Holders of Registrable Securities are entitled pursuant to
Section 5.1 hereof.
SECTION 5.7 No Required Sale. Nothing in this Agreement shall
be deemed to create an independent obligation on the part of any Holder to sell
any Registrable Securities pursuant to any effective registration statement.
SECTION 5.8 Indemnification. (a) In the event of any
registration of any securities of the Company under the Securities Act pursuant
to this Article V, the Company will, and hereby does, indemnify and hold
harmless, to the fullest extent permitted by law, each seller of any Registrable
Securities covered by such registration statement, its directors, officers,
affiliates, employees, stockholders, members and general and limited partners
(and the directors, officers, affiliates, employees, stockholders, members and
general and limited partners thereof), each other Person who participates as an
underwriter in the offering or sale of such securities, each officer, director,
employee, stockholder, member or general and limited partner of such
underwriter, and each other Person, if any, who controls such seller or any such
underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any and all losses, claims, damages or liabilities,
joint or several, actions or proceedings (whether commenced or threatened) in
respect thereof ("Claims") and expenses (including reasonable fees of counsel
and any amounts paid in any settlement effected with the Company's consent,
which consent shall not be unreasonably withheld or delayed) to which each such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such Claims or expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement under which such securities were registered under the
Securities Act, together with the documents incorporated by reference therein or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus or any amendment or
supplement thereto, together with the documents incorporated by reference
therein, or the omission or alleged omission to state therein 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; provided, however, that the Company shall not be liable to any such
indemnified party in any such case to the extent such Claim or expense arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact made in such
registration statement or amendment thereof or supplement thereto or in any such
prospectus or any preliminary, final or summary prospectus in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of such indemnified party specifically for use therein. Such
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indemnity and reimbursement of expenses shall remain in full force and effect
regardless of any investigation made by or on behalf of such indemnified party
and shall survive the Transfer of such securities by such seller.
(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section 5.1 or 5.2 is being
effected (and, if the Company requires as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 5.1 or 5.2, any underwriter) shall, severally and not jointly, indemnify
and hold harmless (in the same manner and to the same extent as set forth in
paragraph (a) of this Section 5.8) to the extent permitted by law the Company,
its officers and directors, each Person controlling the Company within the
meaning of the Securities Act and all other prospective sellers and their
directors, officers, general and limited partners and respective controlling
Persons with respect to any untrue statement or alleged untrue statement of any
material fact in, or omission or alleged omission of any material fact from,
such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company or its
representatives by or on behalf of such Holder or underwriter specifically for
use therein and reimburse such indemnified party for any legal or other expenses
reasonably incurred in connection with investigating or defending any such Claim
as such expenses are incurred; provided, however, that the aggregate amount that
any such Holder shall be required to pay pursuant to this Section 5.8(b) and
Sections 5.8(c) and 5.9 shall in no case be greater than the amount of the net
proceeds received by such person upon the sale of the Registrable Securities
pursuant to the registration statement giving rise to such Claim. Such indemnity
and reimbursement of expenses shall remain in full force and effect regardless
of any investigation made by or on behalf of such indemnified party and shall
survive the Transfer of such securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 5.8 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any state securities and "blue sky" laws.
(d) Any person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 5.8, but the failure of any
indemnified party to provide such notice shall not relieve the indemnifying
party of its obligations under the preceding paragraphs of this Section 5.8,
except to the extent the indemnifying party is materially prejudiced thereby,
and shall not relieve the indemnifying party from any liability that it may have
to any indemnified party otherwise than under this Article V. In case any action
or proceeding is brought against an indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such indemnified
and indemnifying parties may exist in respect of such claim, to assume the
defense thereof jointly with any other indemnifying party similarly notified, to
the extent that
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it chooses, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that if (i) the
indemnifying party fails to take reasonable steps necessary to defend diligently
the action or proceeding within 20 days after receiving notice from such
indemnified party that the indemnified party believes it has failed to do so;
(ii) such indemnified party who is a defendant in any action or proceeding that
is also brought against the indemnifying party reasonably shall have concluded
that there may be one or more legal defenses available to such indemnified party
that are not available to the indemnifying party; or (iii) representation of
both parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct, then, in any such case, the indemnified party
shall have the right to assume or continue its own defense as set forth above
(but with no more than one firm of counsel for all indemnified parties in each
jurisdiction who shall be approved by the Requisite Percentage of Participating
Holders in the registration in respect of which such indemnification is sought),
and the indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (x) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (y) 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.
(e) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution that any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the Transfer
of the Registrable Securities by any such party.
(f) The indemnification and contribution required by this
Section 5.8 and Section 5.9 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
SECTION 5.9 Contribution. (a) If for any reason the indemnity
provided for in Section 5.8 is unavailable or is insufficient to hold harmless
an indemnified party under Sections 5.8(a), (b) or (c), then each indemnifying
party and the Company (i) as between the Company and the holders of Registrable
Securities covered by a registration statement, on the one hand, and the
underwriters, on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and such holders, on the one hand, and
the underwriters, on the other, from the offering of the Registrable Securities,
or if such allocation is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits but also the relative
fault of the Company and such holders, on
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the one hand, and of the underwriters, on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations, and (ii) as
between the Company, on the one hand, and each holder of Registrable Securities
covered by a registration statement, on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of each such holder
in connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Company and such
holders, on the one hand, and the underwriters, on the other, shall be deemed to
be in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and such holders bear to the total underwriting discounts and
commissions received by the underwriters. The relative fault of the Company and
such holders, on the one hand, and of the underwriters, on the other, 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 and such holders
or by the underwriters. The relative fault of the Company, on the one hand, and
of each such holder, on the other, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(b) The Company and the holders of Registrable Securities
agree that it would not be just and equitable if contribution pursuant to this
Section 5.9 were determined by pro rata allocation (even if the underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the next preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the next preceding 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 investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 5.9, no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by it
and distributed to the public exceeds the amount of any damages that such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no holder of
Registrable Securities shall be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities of such
holder were offered to the public exceeds the amount of any damages that such
holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each Stockholder's obligation to contribute
pursuant to this Section 5.9 is several in the proportion that the proceeds of
the offering received by such Stockholder bears to the total proceeds of the
offering received by all the Stockholders and not joint.
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SECTION 5.10 Underwritten Offerings. (a) If requested by the
underwriters for any underwritten offering by the Holders pursuant to a
registration requested under Section 5.1, the Company shall enter into a
customary underwriting agreement with the underwriters. Such underwriting
agreement shall be satisfactory in form and substance to the Initiating Holder
and shall contain such representations and warranties by, and such other
agreements on the part of, the Company and such other terms as are generally
included in the standard underwriting agreement of such underwriters, including
indemnities and contribution agreements. Any Holder participating in the
offering shall be a party to such underwriting agreement and may, at its option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holder and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such Holder. Such underwriting agreement shall also contain such representations
and warranties by the participating Holders as are customary in agreements of
that type.
(b) In the case of a registration pursuant to Section 5.2
hereof, if the Company shall have determined to enter into an underwriting
agreement in connection therewith, all of the Holders' Registrable Securities to
be included in such registration shall be subject to such underwriting
agreement. Any Holder participating in such registration may, at its option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holder and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such Holder. Such underwriting agreement shall also contain such representations
and warranties by the participating Holders as are customary in agreements of
that type.
SECTION 5.11 Rule 144. The Company covenants and agrees that
(i) so long as it remains subject to the reporting provisions of the Exchange
Act, it will timely file the reports required to be filed by it under the
Securities Act or the Exchange Act (including, but not limited to, the reports
under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph
(c)(1) of Rule 144 under the Securities Act), and (ii) it will take such further
action as any Holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (x) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (y) any similar rule or regulation
hereafter adopted by the Commission. 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.
SECTION 5.12 Article V Termination. The rights and obligations
of a Stockholder and its Permitted Transferees under this Article V shall
terminate upon such Stockholder's Applicable Percentage equalling less than
3.5%, provided that in the event that a Stockholder's Applicable Percentage
shall be less than 3.5% as a result of the issuance of additional Voting Shares
by the Company, such Stockholder shall be so advised by the
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Company by written notice and the provisions of this Article V shall continue to
bind and enure to the benefit of such Stockholder for a period of 180 days
following such Stockholder's receipt of such notice and will continue to bind
and enure to the benefit of such Stockholder thereafter in the event that such
Stockholder (and/or its Permitted Transferees) acquires, during such 180-day
period, a sufficient number of Voting Shares such that its Applicable Percentage
equals or exceeds 3.5%.
ARTICLE VI
STANDSTILL
SECTION 6.1 Standstill with the Company. (a) Each of SPE and
USI and each member of the Claridge Group covenants and agrees with the Company
and with each of SPE and USI that such Stockholder shall not, and shall cause
its Affiliates not to, acquire, directly or indirectly, the beneficial ownership
of any additional Voting Shares (except by way of stock dividends, stock
reclassifications or other distributions or offerings made available to holders
of Voting Shares generally), except for:
(i) subject to the provisions at the end of clause
(ii) below, acquisitions of a number of Voting Shares representing up
to an aggregate of 5% of the Company's outstanding Voting Shares in
open market purchases or in privately-negotiated transactions during
any rolling 12-month period (measuring the outstanding Voting Shares as
of the first day of such period), provided that any such acquisition in
a privately-negotiated transaction shall not be at a price in excess of
3% of the closing price of such Voting Shares on the principal exchange
or market on which such security may be listed or trade on the trading
day immediately preceding the date on which a binding agreement is
entered into regarding such acquisition and, in the event a closing
price is unavailable, such price shall not be in excess of Fair Market
Value ;
(ii) acquisitions in privately-negotiated
transactions from five or fewer persons pursuant to offers not made
generally to holders of Voting Shares and pursuant to which the value
of any consideration paid for any Voting Shares, including brokerage
fees or commissions, does not exceed 115% of the "Market Price" (as
determined in accordance with the regulations under the Securities Act
(Ontario)), provided, however, that no acquisition shall be permitted
pursuant to clause (i) or (ii) if, as a result of such acquisition, the
Public Stockholders would beneficially own less than 20% of the
outstanding Voting Shares, provided, further, that the foregoing
proviso shall not be applicable to USI or any of its Affiliates, SPE or
any of its Affiliates or the members of the Claridge Group if, upon
consummation of such acquisition, such Stockholder's Applicable
Percentage would be less than 25%.
(iii) acquisitions from SPE, USI, members of the
Claridge Group and their respective Permitted Transferees;
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(iv) acquisitions from the Company pursuant to
Section 7.1 or on terms and conditions approved by a Determination of
the Independent Directors;
(v) acquisitions pursuant to a tender offer or
exchange offer made in accordance with applicable law;
(vi) if the Company shall have issued or sold Voting
Shares (other than pursuant to the Equity Offering) to any Person other
than such Stockholder or a Permitted Transferee thereof without
effecting a pro rata issuance of Voting Shares to such Stockholder or a
Permitted Transferee thereof (calculated based on such Stockholder's
Applicable Percentage at the time of such issuance or sale),
acquisitions (whether pursuant to Section 7.1 or otherwise) of an
aggregate number of Voting Shares equal to the number of Voting Shares
that would result in such Stockholder having the same Applicable
Percentage as such Stockholder would have had if the Company had not
issued or sold such Voting Shares; or
(vii) acquisitions of Common Stock upon the
conversion of Non-Voting Common Stock.
(b) Notwithstanding anything to the contrary contained in
Section 6.1(a), in the case of any acquisition permitted pursuant to Section
6.1(a) that would constitute a "Rule 13e-3 transaction" (as defined in Rule
13e-3 under the Exchange Act), prior to the consummation of any such transaction
(x) a nationally recognized investment bank shall have delivered an opinion to
the Board that such transaction is fair from a financial point of view to the
stockholders of the Company, other than the applicable Stockholder, (y) a
majority of the Independent Directors shall have approved the transaction and
(z) if the Public Stockholders beneficially own more than 20% of the Voting
Shares and if approval of stockholders of the Company is required by the DGCL or
the Certificate, a majority of the shares of Common Stock held by such holders
shall have been voted in favor of the transaction.
(c) The restrictions of Section 6.1(a) and 6.1(b) shall
terminate on the earlier of (x) the six-year anniversary of the Closing and (y)
any time after the four-year anniversary of the Closing upon the Claridge Group
ceasing to have the right to designate a Director pursuant to Section 2.1, or
upon the occurrence of:
(i) a bona fide tender or exchange offer to acquire
more than 20% of the Voting Shares having been made by any Person
(except that such restrictions shall not terminate as to any
Stockholder if such tender or exchange offer is made by such
Stockholder or any of its Affiliates or by any Person acting in concert
with such Stockholder or any of its Affiliates or is induced by such
Stockholder or any of its Affiliates), provided that if such offer is
withdrawn or expires without being consummated, Section 6.1(a) and
6.1(b) shall be reinstated (but no such reinstatement shall prohibit
any Stockholder from thereafter purchasing Voting Shares pursuant to a
contract entered into prior to the withdrawal or expiration of such
tender offer or
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exchange offer or pursuant to a tender offer or exchange offer
commenced by a Stockholder prior to such time);
(ii) the Applicable Percentage of SPE, USI or the
Claridge Group equaling or exceeding 80%, provided that, in the case of
USI, such percentage shall be 33 1/3% at any time USI and its
Affiliates beneficially own more Voting Shares than any other holder of
Common Stock;
(iii) with respect to any Stockholder, such
Stockholder's Applicable Percentage being less than 15% (provided that
such restrictions shall be reinstated if such Stockholder's Applicable
Percentage equals or exceeds 15% within one year thereafter);
(iv) any Person (other than a Stockholder or a
Permitted Transferee) beneficially owning more than 20% of the Voting
Shares, excluding from the Voting Shares beneficially owned by such
Person Voting Shares acquired from a Stockholder, a Permitted
Transferee or the Company; or
(v) the Public Stockholders beneficially owning more
than 66 2/3% of the Voting Shares.
(d) Notwithstanding anything to the contrary herein, if a
Stockholder who would otherwise be in violation of Section 6.1(a) has violated
such Section inadvertently, and after becoming aware of such violation such
Stockholder divests as promptly as practicable a sufficient number of Voting
Shares so that such Stockholder would no longer be in violation of such Section,
then such Stockholder shall not be deemed to have been in violation of Section
6.1(a) for any purposes of this Agreement.
(e) Notwithstanding anything to the contrary herein, the
provisions of Section 6.1(a) shall not be applicable to any member of the
Claridge Group so long as the Applicable Percentage of the Claridge Group is
less than 15% (provided that an acquisition by any member of the Claridge Group
shall be subject to the restriction of Section 6.1(a) if such acquisition would
result in the Applicable Percentage of the Claridge Group equalling or exceeding
15%).
SECTION 6.2 Standstill among the Stockholders. (a) Each of SPE
and USI covenants and agrees with the other and each member of the Claridge
Group covenants and agrees with each of SPE and USI that neither such
Stockholder nor any of its Affiliates will acquire, directly or indirectly, the
beneficial ownership of any Voting Shares if immediately prior to such
acquisition such Stockholder's Applicable Percentage exceeds 50%, excluding
Voting Shares acquired from another Stockholder or its Permitted Transferees, or
if, as a result of such acquisition, (i) such Stockholder and its Affiliates
would beneficially own an aggregate of more than 50% of the Voting Shares,
excluding Voting Shares acquired from another Stockholder or its Permitted
Transferees, or (ii) the Public Stockholders would beneficially own less than
20% of the outstanding Voting Shares; provided, however, that this clause (ii)
shall not be applicable to USI or any of its Affiliates, or SPE or any of its
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Affiliates or the members of the Claridge Group and their respective Affiliates,
if, upon consummation of such acquisition, such Stockholder's Applicable
Percentage would be less than 25%. Notwithstanding the foregoing, the provisions
of this Section 6.2(a) shall not prohibit the acquisition of Common Stock upon
the conversion of Non-Voting Common Stock.
(b) The restrictions of Section 6.2(a) shall terminate if:
(i) the Applicable Percentage of either SPE or USI is
less than 10% (provided that such restrictions shall be reinstated if
such Stockholder's Applicable Percentage equals or exceeds 10% within
one year thereafter);
(ii) a bona fide tender or exchange offer to acquire
more than 15% of the outstanding Voting Shares is made by any Person
(except that such restrictions shall not terminate as to any
Stockholder if such tender or exchange offer is made by such
Stockholder or any of its Affiliates or by any Person acting in concert
with such Stockholder or any of its Affiliates or is induced by such
Stockholder or any of its Affiliates), provided that if such offer is
withdrawn or expires without being consummated, Section 6.2(a) shall be
reinstated (but no such reinstatement shall prohibit any Stockholder
from thereafter purchasing Voting Shares pursuant to a contract entered
into prior to the withdrawal or expiration of such tender offer or
exchange offer or pursuant to a tender offer or exchange offer
commenced by a Stockholder prior to such time); or
(iii) any Person (other than a Stockholder or a
Permitted Transferee) beneficially owns more than 15% of the Voting
Shares, excluding Voting Shares acquired from a Stockholder or a
Permitted Transferee, but only if the sum of the Applicable Percentages
of SPE and USI is less than 45%.
(c) Notwithstanding anything to the contrary herein, if a
Stockholder who would otherwise be in violation of Section 6.2(a) has violated
such Section inadvertently, and after becoming aware of such violation such
Stockholder divests as promptly as practicable a sufficient number of Voting
Shares so that such Stockholder would no longer be in violation of such Section,
then such Stockholder shall not be deemed to have been in violation of Section
6.2(a) for any purposes of this Agreement.
(d) Notwithstanding anything to the contrary herein, the
provisions of Section 6.2(a) shall not be applicable to any member of the
Claridge Group so long as the Applicable Percentage of the Claridge Group is
less than 10% (provided that an acquisition by any member of the Claridge Group
shall be subject to the restrictions of Section 6.2(a) if such acquisition would
result in the Applicable Percentage of the Claridge Group equalling or exceeding
10%).
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ARTICLE VII
EQUITY PURCHASE RIGHTS
SECTION 7.1 Equity Purchase Rights. (a) If the Company
proposes to issue or sell any Voting Shares pursuant to a transaction in respect
of which SPE or USI shall have the right to consent pursuant to clause (vii) of
Section 3.1(a) (any such Stockholder, an "Offeree"), each Offeree shall have the
right, exercisable in whole or in part and subject to the applicable rules of
any stock exchange on which the Common Stock shall then be listed, to acquire
from the Company up to a number of shares or other amount of Voting Shares equal
to the number or amount of Voting Shares proposed to be issued or sold to
Persons other than such Offeree or any of its Affiliates (the "Issuance Shares")
multiplied by such Offeree's then Applicable Percentage, prior to giving effect
to the consummation of the proposed issuance or sale and any acquisition by an
Offeree pursuant to this Section 7.1(a) (with respect to each Offeree, the
number or amount of Voting Shares which such Offeree may purchase pursuant to
this Section 7.1(a) shall be referred to as such Offeree's "Offered Shares").
Notwithstanding anything to the contrary contained in this Section 7.1(a), in
the event that SPE and its Permitted Transferees beneficially own Non-Voting
Common Stock and Common Stock, SPE's Offered Shares will be allocated between
Non-Voting Common Stock and Common Stock in the same proportion.
(b) The Company shall give written notice of a proposed
issuance or sale described in Section 7.1(a) to each Offeree within two Business
Days following any meeting of the Board of Directors at which any such issuance
or sale is approved. Such notice (the "Issuance Notice") shall set forth the
material terms and conditions of such proposed transaction, including the name
of any proposed purchaser(s) or the proposed manner of disposition, in the case
of a public offering, the number or amount and description of the Issuance
Shares and, except in the case of a public offering, the proposed purchase price
per share, including a description of any non-cash consideration sufficiently
detailed to permit valuation thereof. Such notice shall also set forth the
number of Offered Shares for all Stockholders and shall be accompanied by any
written offer from the prospective purchaser to purchase such Voting Shares, if
available and permitted pursuant to the terms thereof. The Issuance Notice shall
be received by each Offeree at least 20 days prior to the proposed issuance or
sale.
(c) At any time during the 20-day period following an
Offeree's receipt of an Issuance Notice, each Offeree shall have the right to
irrevocably elect to purchase up to the number of such Offeree's Offered Shares
at the purchase price set forth in the Issuance Notice (or if such price
includes property other than cash, the equivalent in cash of such price) and
upon the other terms and conditions specified in the Issuance Notice by
delivering a written notice to the Company. Except as provided in the following
sentence, such purchase(s) shall be consummated concurrently with the
consummation of the issuance or sale described in the Issuance Notice. The
closing of any purchase by an Offeree may be extended beyond the closing of the
transaction described in the Issuance Notice to the extent necessary to obtain
required governmental approvals and other required approvals and the Company and
the Offeree shall use their respective best efforts to obtain such approvals.
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(d) If the Offeree(s) do not elect pursuant to Section 7.1(c)
to purchase Offered Shares, the Company shall be free to complete the proposed
issuance or sale described in the Issuance Notice on terms no less favorable to
the Company than those set forth in the Issuance Notice, provided that (x) such
issuance or sale is closed within 90 days after the latest of the expiration of
the 20-day period described in Section 7.1(c) or, in the case of a public
offering, within 20 days of the declaration by the Commission of the
effectiveness of the applicable registration statement filed by the Company, (y)
the price at which the Voting Shares are transferred must be equal to or higher
than the purchase price described in the Issuance Notice (except in the case of
a public offering, in which case the price at which the Voting Shares are sold
(before deducting underwriting discounts and commissions) shall be equal to at
least 90% of such price) and (z) subject to Section 7.1(f), the amount of
securities to be issued or sold by the Company may be reduced. Such periods
within which such issuance or sale must be closed shall be extended to the
extent necessary to obtain required governmental approvals and other required
approvals and the Company shall use its best efforts to obtain such approvals.
(e) If (i) the consideration specified in the Issuance Notice
consists of, or includes, consideration other than cash or a publicly traded
security for which a closing market price is published for each Business Day, or
(ii) any property other than Voting Shares is proposed to be transferred by the
Company in connection with the transaction to which the Issuance Notice relates,
then the price payable by the Offerees under this Section 7.1 shall be the
Determination of the Independent Directors of the Fair Market Value of the
consideration per share or other amount in the case of clause (i) and the
Determination of the Independent Directors of the Fair Market Value of the
consideration per share or other amount determined to be properly allocable to
the Voting Shares in the case of clause (ii). Notwithstanding anything to the
contrary contained in this Section 7.1, the time periods applicable to an
election by the Offerees to purchase the Offered Shares set forth in Section
7.1(c) shall not be deemed to commence until the Determination of the
Independent Directors under this Section 7.1(e) has been made. The Company
agrees to use its best efforts to cause the Determination of the Independent
Directors under this Section 7.1(e) to be made as promptly as practicable but in
no event later than ten Business Days after delivery by the Company of the
Issuance Notice.
(f) To the extent that, after an Offeree's election to acquire
Voting Shares pursuant to its purchase right under this Section 7.1, the number
of Issuance Shares shall be reduced (whether at the discretion of the Company or
otherwise), then the number of shares or other amount of Voting Shares that such
Offeree has the right to acquire under this Section 7.1 shall be reduced pro
rata and such Offeree's election shall be deemed to have been its irrevocable
commitment to purchase such reduced number of shares or other amount of such
Voting Shares.
(g) Notwithstanding anything to the contrary contained in this
Section 7.1, an Offeree shall not be entitled to purchase any securities
pursuant to this Section 7.1 (i) unless and until the Company actually issues or
sells the securities that gave rise to the Offeree's purchase right under this
Section 7.1 (and the Company may in its sole discretion elect at any
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time to abandon any such issuance or sale) or (ii) in connection with any pro
rata stock split, stock dividend or other combination or reclassification of any
Capital Stock of the Company.
(h) Notwithstanding anything to the contrary contained in this
Section 7.1, upon any purchase of Voting Shares by an Offeree pursuant to this
Section 7.1 on a later date than the issuance or sale of securities described in
the Issuance Notice (x) the purchase price shall be adjusted by subtracting
therefrom the Fair Market Value (as established by a Determination of the
Independent Directors) of any dividend or distribution received in respect of
such Voting Shares after the date of such issuance and prior to the purchase by
such Offeree hereunder, (y) the purchase price and number of shares or amount to
be purchased shall be adjusted to reflect any stock split, stock dividend, or
other combination or reclassification of the Company's Capital Stock during such
time and (z) such Offeree shall be entitled to exercise any rights to purchase
additional Voting Shares available to all holders of Voting Shares
proportionately that it would have been entitled to exercise if it had been the
owner of the Voting Shares purchased by such Offeree hereunder on the record
date for the distribution of such rights.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Conflicting Agreements. Each Stockholder and the
Company represents and warrants that such party has not granted and is not a
party to any proxy, voting trust or other agreement that is inconsistent with or
conflicts with any provision of this Agreement.
SECTION 8.2 Duration of Agreement. Except as otherwise
provided in this Agreement, the rights and obligations of a Stockholder and its
Permitted Transferees under this Agreement shall terminate upon such
Stockholder's Applicable Percentage equalling less than 6.25% (or, in the case
of the members of the Claridge Group, 3.5% until the five-year anniversary of
the Closing and 5% thereafter), provided that in the event that a Stockholder's
Applicable Percentage shall be less than 6.25% (or, in the case of the members
of the Claridge Group, 3.5% until the five-year anniversary of the Closing and
5% thereafter) as a result of the issuance of additional Voting Shares by the
Company, such Stockholder shall be so advised by the Company by written notice
following any required recalculation of the number of such Stockholder's
designees pursuant to Section 2.1(e) or Section 2.1(g), and the Agreement shall
continue to bind and enure to the benefit of such Stockholder for a period of
180 days following such Stockholder's receipt of such notice and will continue
to bind and enure to the benefit of such Stockholder thereafter in the event
that such Stockholder (and/or its Permitted Transferees) acquires, during such
180-day period, a sufficient number of Voting Shares such that its Applicable
Percentage equals or exceeds the applicable percentage set forth above.
SECTION 8.3 Best Efforts. Each of SPE and USI covenant and
agree with the other to use its best efforts to cause the Company to fulfill the
Company's obligations
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under Article II and Article III of this Agreement. If either SPE or USI fails
to use its best efforts to cause the Company to fulfill in any material respect
any of the Company's obligations under Article II or Article III, such
Stockholder shall immediately cease to have any rights under the provisions of
such Articles, provided, however, that if such failure is reasonably capable of
being cured, such Stockholder shall retain its rights under such provisions if
such failure is cured within 30 days after such Stockholder has received written
notice of such failure.
SECTION 8.4 Ownership Information. (a) For purposes of this
Agreement, a Stockholder, in determining the amount of outstanding Voting
Shares, may rely upon information set forth in the most recent quarterly or
annual report, and any current report subsequent thereto, filed by the Company
with the Commission, unless the Company shall have updated such information by
delivery of notice to all Stockholders.
(b) Upon the reasonable request of the Company or any
Stockholder, each Stockholder shall deliver to the Company and each other
Stockholder a notice specifying the amount of each class of Voting Shares then
beneficially owned by such Stockholder, its Permitted Transferees and its
Affiliates. The Company and the other Stockholders shall be entitled to rely on
the most recently delivered such notice for all purposes of this Agreement,
unless such Stockholder shall have updated such information by delivery of a
subsequent notice (including a notice delivered pursuant to Section 4.6).
SECTION 8.5 Further Assurances. At any time or from time to
time after the date hereof, the parties agree to cooperate with each other, and
at the request of any other party, to execute and deliver any further
instruments or documents and to take all such further action as the other party
may reasonably request in order to evidence or effectuate the consummation of
the transactions contemplated hereby and to otherwise carry out the intent of
the parties hereunder.
SECTION 8.6 Amendment and Waiver. Except as otherwise provided
herein, no modification, amendment or waiver of any provision of this Agreement
shall be effective against the Company or any Stockholder unless such
modification, amendment or waiver is approved in writing by the Company and each
Stockholder whose rights or obligations hereunder are affected by such
modification, amendment or waiver, provided that (i) the Company shall not agree
to any of the foregoing without the prior written consent of SPE and USI and
(ii) unless approved by a Determination of the Independent Directors, the
Company shall not agree to any amendment, modification or waiver of any
provision contained in Section 2.1 (other than Section 2.1(c) and 2.1(k)),
Sections 2.6 and 2.7, clauses (v) and (vi) of Section 3.1(a), Sections 3.3, 3.4,
4.1, 4.2, 4.5(b), 6.1 and 8.2 or this Section 8.6. 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.
SECTION 8.7 Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in
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any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or any other jurisdiction, but this Agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
SECTION 8.8 Entire Agreement. Except as otherwise expressly
set forth herein, this document and the other documents dated the date hereof
embody the complete agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, that may have related to the subject matter hereof in any way. Without
limiting the generality of the foregoing, to the extent that any of the terms
hereof are inconsistent with the rights or obligations of any Stockholder under
any other agreement with the Company, the terms of this Agreement shall govern.
SECTION 8.9 Successors and Assigns. Except as provided in
Section 4.5, neither this Agreement nor any of the rights or obligations under
this Agreement shall be assigned, in whole or in part (except by operation of
law pursuant to a merger whose purpose is not to avoid the provisions of this
Agreement), by any party without the prior written consent of the other parties
hereto. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
SECTION 8.10 Counterparts. This Agreement may be executed in
separate counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 8.11 Remedies. (a) Each party hereto acknowledges that
money damages would not be an adequate remedy in the event that any of the
covenants or agreements in this Agreement are not performed in accordance with
its terms, and it is therefore agreed that, subject to the provisions of Section
3.3, in addition to and without limiting any other remedy or right it may have,
the non-breaching party will have the right to an injunction, temporary
restraining order or other equitable relief in any court of competent
jurisdiction enjoining any such breach and enforcing specifically the terms and
provisions hereof.
(b) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the exercise of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(c) In the event that either SPE or USI (the "Aggrieved
Stockholder") has a good faith belief that any other Stockholder or the Company
is likely to breach in any material respect or has breached in any material
respect any of its obligations under Sections 2.1, 2.4, 2.5, 2.6, 2.7, 3.1, 3.2
or 3.5 or Article VI of this Agreement, upon notice of such belief from the
Aggrieved Stockholder, such Stockholder and/or the Company, as the case
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may be, agrees to immediately cease taking any action to the extent such
Aggrieved Stockholder believes in good faith that such action breaches or would
breach any of the foregoing provisions of this Agreement in any material
respect. Upon receipt of notice of the Aggrieved Stockholder's belief and until
the dispute is resolved, the Company and each of the Stockholders agree not to
take any action that would facilitate any such breach and to take reasonable
actions to prevent such breach, if it has not yet occurred, or to minimize any
adverse consequences to the Aggrieved Stockholder of any such breach. The
parties agree that the Aggrieved Stockholder shall have the right to a temporary
restraining order from any court of competent jurisdiction enjoining any such
breach or potential breach (or otherwise preserving the status quo) pending
decision as to whether the Aggrieved Stockholder's belief is correct by, at the
Aggrieved Stockholder's election, the court or the Arbitrator. If the Aggrieved
Stockholder seeks a judicial determination of such dispute, the parties agree
that the court should schedule a hearing to resolve the dispute on one day's
notice. If the court or the Arbitrator, as applicable, shall determine that
there is a breach or potential breach, the parties agree that the court or the
Arbitrator, as applicable, should impose a remedy that would put the Aggrieved
Stockholder in the same position it would have been in had there been no such
dispute. If any dispute under this Section has been previously determined by a
court or the Arbitrator adversely against any party, in connection with any
subsequent dispute that is determined by a court or an Arbitrator adversely
against such party, such party shall bear all costs and expenses of the
Arbitrator or the court, as the case may be, in connection with such subsequent
dispute.
(d) In the event that SPE or the Company shall breach in any
material respect any of their respective obligations to USI under this
Agreement, at the request of USI, SPE and the Company shall use their respective
best efforts to amend the Certificate as soon as practicable, including calling
a special meeting of stockholders or soliciting written consents from
stockholders, so as to authorize a class of common stock of the Company which
would be issued by the Company to USI and its Permitted Transferees on a
one-for-one basis in exchange for all the Shares then beneficially owned by
them. Such class of common stock would be identical in all respects to the
existing Common Stock, except that (i) the consent rights contained in Article
III would be incorporated in such class and SPE and USI would cease to have any
consent rights under this Agreement, (ii) such class would entitle the holders
thereof to proportionate Board representation on the same basis that USI is
entitled to Board representation pursuant to Article II and (iii) shares of such
class could be converted from time to time at the holder's election into Common
Stock on a share-for-share basis. In addition, USI and its Affiliates will have
the right to convert any Common Stock from time to time into shares of such
class on a share-for-share basis.
SECTION 8.12 Notices. Any notice, request, claim, demand or
other communication under this Agreement shall be in writing, shall be either
personally delivered or sent by reputable overnight courier service (charges
prepaid) to the address for such Person set forth below or such other address as
the recipient party has specified by prior written notice to the other parties
hereto and shall be deemed to have been given hereunder when delivered
personally or one day after deposit with a reputable overnight courier service.
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If to the Company:
LTM Holdings, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
If to SPE:
Sony Pictures Entertainment
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to USI:
Universal Studios, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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If to the Trust:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Family Trust
c/o Claridge Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
SECTION 8.13 Governing Law; Consent to Jurisdiction. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without giving effect to the principles of conflicts of law.
Except as provided in Section 3.3, each of the parties hereto hereby irrevocably
and unconditionally consents to submit to the non-exclusive jurisdiction of the
courts of the State of New York and of the United States of America, in each
case located in the County of New York, for any action, proceeding or
investigation in any court or before any governmental authority ("Litigation")
arising out of or relating to this Agreement and the transactions contemplated
hereby and further agrees that service of any process, summons, notice or
document by U.S. or Canadian registered mail to its respective address set forth
in this Agreement shall be effective service of process for any Litigation
brought against it in any such court. Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any Litigation arising out of this Agreement or the transactions contemplated
hereby in the courts of the State of New York or the United States of America,
in each case located in the County of New York, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such Litigation brought in any such court has been brought in an
inconvenient forum. Each of the parties irrevocably and unconditionally waives,
to the fullest extent permitted by applicable law, any and all rights to trial
by jury in connection with any Litigation arising out of or relating to this
Agreement or the transactions contemplated hereby.
SECTION 8.14 Legends. (a) Upon original issuance thereof, and
until such time as the same is no longer required hereunder or under the
applicable requirements of the Securities Act or applicable state securities or
"blue sky" laws, any certificate issued representing any Shares held by a
Stockholder or any Permitted Transferee (including all certificates issued upon
Transfer (including to any Third Party Transferee who has entered into an
agreement contemplated by Section 4.5(c)) or in exchange thereof or in
substitution therefor) shall bear the following legend:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO VOTING
AGREEMENTS AND RESTRICTIONS ON TRANSFER SET FORTH IN A CERTAIN
STOCKHOLDERS AGREEMENT DATED AS OF SEPTEMBER 30, 1997 AMONG SONY
PICTURES ENTERTAINMENT, INC., UNIVERSAL STUDIOS, INC., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ FAMILY TRUST, THE OTHER STOCKHOLDERS PARTY THERETO AND LTM
HOLDINGS, INC. (THE "COMPANY"), COPIES OF WHICH AGREEMENT ARE ON FILE
AT THE PRINCIPAL OFFICE OF THE COMPANY."
(b) The certificates representing the Shares (including any
certificate issued upon Transfer (including to any Third Party Transferee who
has entered into an agreement contemplated by Section 4.5(c)) or in exchange
thereof or in substitution therefor) shall also bear any legend required under
any applicable state securities or "blue sky" laws.
(c) The Company may make a notation on its records or give
instructions to any transfer agents or registrars for the Voting Shares in order
to implement the restrictions on Transfer set forth in Article IV.
(d) In connection with any Transfer of Voting Shares, the
transferor shall provide the Company with such customary certificates, opinions
and other documents as the Company may reasonably request to assure that such
Transfer complies fully with applicable securities and other laws.
(e) The Company shall not incur any liability for any delay in
recognizing any Transfer of Voting Shares if the Company in good faith
reasonably believes that such Transfer may have been or would be in violation in
any material respect of the provisions of the Securities Act, applicable state
securities or "blue sky" laws, or this Agreement.
(f) After such time as any of the legends described by this
Section 8.14 are no longer required on any certificate or certificates
representing the Voting Shares, upon the request of any Stockholder, the Company
will cause such Stockholder's certificate or certificates to be exchanged for a
certificate or certificates that do not bear such legend.
SECTION 8.15 Interpretation. The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation".
SECTION 8.16 Agents for Stockholders. (a) The Trust shall act
as the sole agent for each member of the Claridge Group and its Permitted
Transferees (if any) and shall be authorized to exercise all rights of the
members of the Claridge Group and such Permitted Transferees hereunder except
that the designation of Claridge Directors shall be effected by such party as
may be designed in writing at any time or from time to time by the members of
the Claridge Group. The Trust shall have sole power and authority to take any
action on
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behalf of the members of the Claridge Group and such Permitted Transferees
pursuant to this Agreement, including delivering any notice or granting any
waiver or consent hereunder, and the other parties hereto shall be entitled to
rely on any action taken by the Trust as being taken on behalf of all members of
the Claridge Group and such Permitted Transferees. The rights of the members of
the Claridge Group and such Permitted Transferees under this Agreement shall be
exercised only by the Trust on behalf of such members and such Permitted
Transferees and no such members or Permitted Transferees shall be separately
entitled to exercise any such rights. Any notice required to be delivered
hereunder to any such member or Permitted Transferee shall be delivered to the
Trust.
(b) SPE shall act as the sole agent for each of its Permitted
Transferees (if any) and shall be authorized to exercise all rights of such
Permitted Transferees hereunder. SPE shall have sole power and authority to take
any action on behalf of its Permitted Transferees pursuant to this Agreement,
including delivering any notice or granting any waiver or consent hereunder, and
the other parties hereto shall be entitled to rely on any action taken by SPE as
being taken on behalf of such Permitted Transferees. The rights of such
Permitted Transferees under this Agreement shall be exercised only by SPE on
behalf of such Permitted Transferees and no such Permitted Transferees shall be
separately entitled to exercise any such rights. Any notice required to be
delivered hereunder to any such Permitted Transferee shall be delivered to SPE.
(c) USI shall act as the sole agent for each of its Permitted
Transferees (if any) and shall be authorized to exercise all rights of such
Permitted Transferees hereunder. USI shall have sole power and authority to take
any action on behalf of its Permitted Transferees pursuant to this Agreement,
including delivering any notice or granting any waiver or consent hereunder, and
the other parties hereto shall be entitled to rely on any action taken by USI as
being taken on behalf of such Permitted Transferees. The rights of such
Permitted Transferees under this Agreement shall be exercised only by USI on
behalf of such Permitted Transferees and no such Permitted Transferees shall be
separately entitled to exercise any such rights. Any notice required to be
delivered hereunder to any such Permitted Transferee shall be delivered to USI.
SECTION 8.17 Additional Agreement. The Company agrees to
comply with the provisions set forth in Exhibit C relating to the use of sound
systems in theaters.
SECTION 8.18 Effectiveness. This Agreement shall become
effective upon consummation of the Transaction and prior thereto shall be of no
force or effect, provided that the provisions of Section 3.3(d) shall be
effective as of the date of their Agreement. If the Master Agreement shall be
terminated in accordance with its terms, this Agreement shall automatically be
deemed to have been terminated and shall thereafter be of no force or effect.
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IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of the date first written above.
LTM HOLDINGS, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
SONY PICTURES ENTERTAINMENT INC.
BY:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President & General
Counsel
UNIVERSAL STUDIOS, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ FAMILY TRUST
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Representative
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Representative
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Representative
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Representative
E. ▇▇▇ ▇▇▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Representative
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Representative
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Representative
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Representative
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FOUNDATION
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Representative
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Representative
3096475 CANADA INC.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Representative
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Representative
74
SCHEDULE I
Applicable Percentage Number of Directors
--------------------- -------------------
>= 6.25% and < 9.375% 1
>= 9.375% and <15.625% 2
>=15.625% and <21.875% 3
>=21.875% and <28.125% 4
>=28.125% and <34.375% 5
>=34.375% and <40.625% 6
>=40.625% and <46.875% 7
>=46.875% and <53.125% 8
>=53.125% and <59.375% 9
>=59.375% and <65.625% 10
>=65.625% and <71.875% 11
>=71.875% and <78.125% 12
>=78.125% and <84.375% 13
84.375% and greater 14