Exhibit 10.2


 


SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT


 


OF


 


MARQUEE HOLDINGS INC.


 


 


January 26,
2006


 


Originally dated as of October 29, 2004 

and Amended and Restated as of December 23, 2004


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
   

  	
  TRANSFERS

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Transfer
  Restrictions

  	
  3

  
	
  (b)

  	
   

  	
  Transfer
  Notice

  	
  4

  
	
  (c)

  	
   

  	
  Restrictions
  on Transfers under Rule 144

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
   

  	
  RIGHT OF FIRST OFFER

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Company
  Right of First Offer

  	
  4

  
	
  (b)

  	
   

  	
  Investor
  Right of First Offer

  	
  5

  
	
  (c)

  	
   

  	
  Investor
  Over-Allotment Period

  	
  5

  
	
  (d)

  	
   

  	
  Restrictions

  	
  6

  
	
  (e)

  	
   

  	
  Exercise

  	
  6

  
	
  (f)

  	
   

  	
  Acceptance
  of Offer

  	
  7

  
	
  (g)

  	
   

  	
  Consideration

  	
  7

  
	
  (h)

  	
   

  	
  Closing

  	
  7

  
	
  (i)

  	
   

  	
  Certain
  Provisions Applicable to the ROFO

  	
  7

  
	
  (j)

  	
   

  	
  Time
  Limitation

  	
  7

  
	
  (k)

  	
   

  	
  Investor
  Expenses

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
   

  	
  DRAG-ALONG RIGHTS

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Drag-Along
  Right

  	
  8

  
	
  (b)

  	
   

  	
  Notice

  	
  8

  
	
  (c)

  	
   

  	
  Exercise

  	
  9

  
	
  (d)

  	
   

  	
  Time
  Limitation

  	
  9

  
	
  (e)

  	
   

  	
  Investor
  Expenses

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
   

  	
  TAG-ALONG RIGHTS

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Notice

  	
  10

  
	
  (b)

  	
   

  	
  Tag-Along
  Right

  	
  10

  
	
  (c)

  	
   

  	
  Exercise

  	
  11

  
	
  (d)

  	
   

  	
  Certain
  Restrictions

  	
  12

  
	
  (e)

  	
   

  	
  Time
  Limitation

  	
  12

  
	
  (f)

  	
   

  	
  Investor
  Expenses

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
   

  	
  PARTICIPATION RIGHTS

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Participation
  Rights

  	
  13

  
	
  (b)

  	
   

  	
  Offer

  	
  13

  
	
  (c)

  	
   

  	
  Exercise

  	
  13

  
	
  (d)

  	
   

  	
  Irrevocable
  Acceptance

  	
  14

  



 

















 


	
  (e)

  	
   

  	
  Time
  Limitation

  	
  14

  
	
  (f)

  	
   

  	
  Other
  Securities

  	
  14

  
	
  (g)

  	
   

  	
  Certain Legal
  Requirements

  	
  14

  
	
  (h)

  	
   

  	
  Further
  Assurances

  	
  14

  
	
  (i)

  	
   

  	
  Expenses

  	
  15

  
	
  (j)

  	
   

  	
  Closing

  	
  15

  
	
  (k)

  	
   

  	
  Excluded
  Transactions

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
   

  	
  REGISTRATION RIGHTS

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Demand
  Registrations

  	
  16

  
	
  (b)

  	
   

  	
  Piggyback
  Registrations

  	
  18

  
	
  (c)

  	
   

  	
  Holdback
  Agreements

  	
  19

  
	
  (d)

  	
   

  	
  Expenses

  	
  20

  
	
  (e)

  	
   

  	
  Registration
  Procedures

  	
  20

  
	
  (f)

  	
   

  	
  Conditions
  to Investor Rights; Indemnification by Investor

  	
  24

  
	
  (g)

  	
   

  	
  Indemnification
  and Contribution

  	
  24

  
	
  (h)

  	
   

  	
  Rule 144

  	
  27

  
	
  (i)

  	
   

  	
  Termination
  of Registration Rights

  	
  27

  
	
  (j)

  	
   

  	
  Delay of
  Registration

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
   

  	
  LEGEND ON CERTIFICATES

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Legends

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
   

  	
  DURATION OF AGREEMENT

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
   

  	
  INFORMATION RIGHTS

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Financial
  Statements and Other Information

  	
  29

  
	
  (b)

  	
   

  	
  Other
  Information

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
   

  	
  REGULATORY MATTERS

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Cooperation
  of Other Stockholders

  	
  30

  
	
  (b)

  	
   

  	
  Covenant
  Not to Amend

  	
  30

  
	
  (c)

  	
   

  	
  Exception

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
   

  	
  EFFECTIVENESS OF AGREEMENT

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
   

  	
  DEFINITIONS

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
   

  	
  MISCELLANEOUS

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  (a)

  	
   

  	
  Successors,
  Assigns and Transferees

  	
  40

  
	
  (b)

  	
   

  	
  Competitive
  Opportunity

  	
  40

  
	
  (c)

  	
   

  	
  Specific
  Performance

  	
  40

  



 


iii

















 


	
  (d)

  	
   

  	
  Governing
  Law

  	
  41

  
	
  (e)

  	
   

  	
  Submission
  to Jurisdiction; Waiver of Jury Trial

  	
  41

  
	
  (f)

  	
   

  	
  Descriptive
  Headings

  	
  41

  
	
  (g)

  	
   

  	
  Notices

  	
  41

  
	
  (h)

  	
   

  	
  Recapitalization,
  Exchange, Etc. Affecting the Company’s Shares

  	
  44

  
	
  (i)

  	
   

  	
  Counterparts

  	
  44

  
	
  (j)

  	
   

  	
  Severability

  	
  44

  
	
  (k)

  	
   

  	
  Amendment

  	
  44

  
	
  (l)

  	
   

  	
  Tax
  Withholding

  	
  45

  
	
  (m)

  	
   

  	
  Integration

  	
  45

  
	
  (n)

  	
   

  	
  Further
  Assurances

  	
  45

  
	
  (o)

  	
   

  	
  No Strict
  Construction

  	
  45

  
	
  (p)

  	
   

  	
  No Third
  Party Beneficiaries

  	
  45

  
	
  (q)

  	
   

  	
  No Recourse

  	
  46

  
	
  (r)

  	
   

  	
  Amendment
  and Restatement

  	
  46

  



 


 


SCHEDULES


 


	
  1

  	
  —

  	
  SCHEDULE OF
  OTHER MARQUEE INVESTORS

  
	
   

  	
   

  	
   

  
	
  2

  	
  —

  	
  SCHEDULE OF
  INVESTORS

  
	
   

  	
   

  	
   

  
	
  10(b)

  	
  —

  	
  REGULATORY
  PROBLEM AGREEMENTS

  



 


EXHIBITS


 


	
  A

  	
  —

  	
  FORM OF
  STOCKHOLDER JOINDER

  
	
   

  	
   

  	
   

  
	
  B

  	
  —

  	
  AMENDED AND RESTATED REGULATORY SIDELETTER

  
	
   

  	
   

  	
   

  
	
  C

  	
  —

  	
  AMENDED
  AND RESTATED MANAGEMENT STOCKHOLDERS AGREEMENT

  



 


iv

















 


MARQUEE
HOLDINGS INC.

SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT


 


This SECOND AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT (the “Agreement”), dated as of January 26,
2006 and effective as of the Effective Time, amends and restates that certain
Stockholders Agreement (the “Initial Stockholders Agreement”) entered
into as of October 29, 2004 and amended and restated as of December 23,
2004, by and among Marquee Holdings Inc., a Delaware corporation (including its
successors, the “Company”),
J.P. Morgan Partners (BHCA), L.P., a Delaware limited partnership (“JPMP BHCA”), J.P. Morgan Partners
Global Investors, L.P., a Delaware limited partnership (“JPMP Global”), J.P. Morgan Partners Global Investors (Cayman), L.P., a Cayman
limited partnership (“JPMP Cayman”),
J.P. Morgan Partners Global Investors (Cayman) II, L.P., a Cayman limited
partnership (“JPMP Cayman II”), J.P.
Morgan Partners Global Investors (Selldown), L.P., a Delaware limited
partnership (“JPMP Selldown”), AMCE (Ginger), L.P., a Delaware limited
partnership (“Ginger”), AMCE (Luke), L.P., a Delaware limited
partnership (“Luke”) and AMCE (Scarlett), L.P., a Delaware limited
partnership (“Scarlett”, and together with JPMP BHCA, JPMP Global, JPMP Cayman, JPMP Cayman II, JPMP Selldown,
Ginger, Luke, and any of their respective Permitted Transferees, the “JPMP
Investors”), Apollo Investment Fund V, L.P., a Delaware limited
partnership (“Apollo Fund V”), Apollo Overseas Partners V, L.P., a
Cayman Island exempted limited partnership (“Apollo Overseas”), Apollo
Netherlands Partners V(A), L.P., a Cayman Island exempted limited partnership (“Apollo
Netherlands V(A)”), Apollo Netherlands Partners V(B), L.P., a Cayman Island
exempted limited partnership (“Apollo Netherlands V(B)”), Apollo German
Partners V GmbH & Co KG, a German limited partnership (“Apollo
German Partners” and, together with Apollo Fund V, Apollo Overseas, Apollo
Netherlands V(A) and Apollo Netherlands V(B), and any of their respective
Permitted Transferees, the “Apollo Investors”), and the other entities
listed on Schedule 1 attached hereto (together with any of their
respective Permitted Transferees, the “Other Marquee Investors”, and
together with the JPMP Investors and Apollo Investors, the “Pre-Existing
Marquee Investors”), and is made by and among the Pre-Existing Marquee
Investors and TC Group III, L.P., Carlyle Partners III Loews, L.P. and CP III
Coinvestment, L.P. (together with any of their respective Permitted
Transferees, the “Carlyle Investors”), and Bain Capital Holdings (Loews)
I, L.P. and Bain Capital AIV (Loews) II, L.P. (together with any of their respective
Permitted Transferees, the “Bain Investors”), and Spectrum Equity
Investors IV, L.P., Spectrum Equity Investors Parallel IV, L.P. and Spectrum IV
Investment Managers’ Fund, L.P. (together with any of their respective
Permitted Transferees, the “Spectrum Investors”, and together with the
Carlyle Investors and the Bain Investors, the “Former LCE Investors”).  Each of the Pre-Existing Marquee Investors
and the Former LCE Investors are sometimes referred to herein as an “Investor” and collectively as the “Investors” (and the terms “Investor”
and “Investors” may include other Persons, as provided in the definition of
such terms in Section 12 hereof) and the Company and the Investors, together
with any subsequent stockholders which become parties hereto, are sometimes
referred to herein individually by name or as a “Party” and collectively as the “Parties”.  The
definitions of certain capitalized terms used herein are set forth in Section 12
hereto.


 

















 


RECITALS


 


WHEREAS, the Company and LCE
Holdings, Inc., a Delaware corporation (“LCE Holdings”), are parties to
that certain Agreement and Plan of Merger, dated as of June 20, 2005 (the “Merger Agreement”), pursuant to
which LCE Holdings will be merged with and into the Company, with the Company
remaining as the surviving corporation (the “Merger”); and


 


WHEREAS, in connection with
the consummation of the transactions contemplated by the Merger Agreement, each
of the Pre-Existing Marquee Investors will receive shares of Class A-1 and
Class A-2 Common Stock of the Company, par value $0.01 per share (collectively,
the “Class A Common Stock”); and


 


WHEREAS, in connection with
the consummation of the transactions contemplated by the Merger Agreement, each
of the Former LCE Investors will receive shares of Class L-1 and Class L-2
Common Stock of the Company, par value $0.01 per share (collectively, the “Class L
Common Stock”); and


 


WHEREAS, in connection with
the consummation of the transactions contemplated by the Merger Agreement, each
of the stockholders of the Company or LCE Holdings who are employees of the
Company or LCE Holdings (or any of their respective Subsidiaries) immediately
prior to the Effective Time (collectively, the “Management Stockholders”)
will receive shares of Class N Common Stock of the Company, par value
$0.01 per share (the “Class N Common Stock”); and


 


WHEREAS, concurrently with
the execution hereof, the Management Stockholders and the Company are entering
into that certain Amended and Restated Management Stockholders Agreement by and
among the Company, the Principal Investors and the Management Stockholders
substantially in the form of Exhibit C hereto (the “Management
Stockholders Agreement”);


 


WHEREAS, each of the Pre-Existing
Marquee Investors entered into the Initial Stockholders Agreement; and


 


WHEREAS, as of the Effective
Time, each of the Investors will hold such number of shares of Stock
representing such Investor’s Percentage Interest in the Company as listed on Schedule 2
attached hereto; and


 


WHEREAS, each of the
Investors and the Company desire to amend and restate the Initial Stockholders
Agreement to include each of the Former LCE Investors as parties hereto and to
amend certain provisions of the Initial Stockholders Agreement; and


 


WHEREAS, pursuant to Section 14(j)
of the Initial Stockholders Agreement, the JPMP Investors, the Apollo Investors
and the Company have the authority to approve such amendments to the Initial
Stockholders Agreement as are set forth herein.


 


2

















 


NOW, THEREFORE, in
consideration of the foregoing, and the mutual agreements set forth herein and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties hereto, intending to be legally bound, hereby
agree as follows:


 


AGREEMENT


 


SECTION 1.         TRANSFERS


 


(a)           Transfer Restrictions.  Each
of the Investors agrees and acknowledges that, except as provided in this Section 1,
it will not, directly or indirectly (through one or more of its Affiliates or
otherwise), Transfer any Shares except (i) for Permitted Transfers (in
compliance with and subject to the provisions of Sections 2, 3 and 4 for
Permitted Transfers within the meaning of clause (i) of the definition
thereof occurring at any time prior to the IPO Date), provided that as a
condition to any Permitted Transfer pursuant to clause (i), (ii) or (v) of
the definition of Permitted Transfer (whether prior or subsequent to the IPO
Date), the transferee of Shares in such Permitted Transfer shall agree in
writing to be bound by, and to comply with, all applicable provisions of, and
to be deemed to be an Investor for purposes of, this Agreement, (ii) after
the Blockout Period and prior to the IPO Date, for Transfers of Shares in
compliance with and subject to the provisions of Sections 2, 3 and 4, (iii) after
the IPO Date, for Transfers of Shares in compliance with and subject to the
provisions of Section 4, (iv) at any time prior to the IPO Date, for Transfers
of Shares in an Exit Sale pursuant to Section 3 and (v) at any time
after the IPO Date, for Transfers of Shares pursuant to a Public Sale in
compliance with and subject to Section 1(c).  Notwithstanding and without limiting the
foregoing, no Investor shall be permitted, without the prior written consent of
the Requisite Stockholder Majority, to (i) Transfer any Shares to any
Person that competes in any material respect with the business conducted by the
Company or any of its Subsidiaries at the time of such proposed Transfer
(except a Transfer pursuant to a Public Sale), (ii) pledge, hypothecate or
grant any security interest in any Shares, or (iii) prior to the IPO Date,
Transfer any Shares in any manner that would violate, cause a default,
constitute a “change of control” or trigger a requirement to repurchase or
offer to repurchase or similar event, under any of the Company’s or any of the
Company’s Subsidiaries’ material debt agreements, indentures and other
agreements or instruments evidencing material indebtedness of the Company or
any of its Subsidiaries, as such agreements, indentures and instruments may be
amended or modified from time to time in accordance with their terms; provided,
that the foregoing clauses (i) and (iii) shall not apply to any
Company Sale and; provided, further, that the foregoing clause (iii) shall
not apply if in connection with such Transfer of Shares, the material
indebtedness of the Company or any of its Subsidiaries is amended, modified or refinanced
such that there does not exist a violation, default or “change of control”
pursuant to such material indebtedness. 
For purposes of determining whether a Transfer of Shares would
constitute a “change of control,” Shares sold by any Investor pursuant to
Tag-Along Rights provided in Section 4 shall be included in such
calculation.  As a condition to any
Transfer of Shares prior to the IPO Date (other than in connection with an Exit
Sale), the transferee of such Shares shall (i) execute a counterpart of
this Agreement in the form attached hereto as Exhibit A and become
a party to this Agreement (ii) be bound by the terms hereof for all
purposes hereunder and (iii) be treated as an Investor hereunder (but not
as a Principal Investor unless (A) the transferor was a Principal
Investor,


 


3

















 


and (B) each Principal Investor consents in their respective sole
discretion) with the same rights and obligations of an Investor (but not as a
Principal Investor unless (A) the transferor was a Principal Investor, and
(B) each Principal Investor consents in their respective sole discretion)
for all purposes of this Agreement.


 


(b)           Transfer Notice.  Prior
to any proposed Transfer of any Shares, the Investor holding such Shares to be
Transferred shall give written notice to the Company of its intention to effect
such Transfer (the “Transfer Notice”). 
Such Transfer Notice shall set forth in reasonable detail the terms and
conditions of such proposed Transfer, including (i) the percentage of such
Selling Investor’s Shares that would be Transferred, (ii) the number of
Shares proposed to be Transferred (the “Offered Shares”), (iii) the proposed amount and form of
consideration to be paid for the Offered Shares and (iv) all other
material terms of the proposed Transfer. 
In the event that the terms and/or conditions set forth in the Transfer
Notice are thereafter amended in any material respect, the Transfer Notice
shall be of no further force and effect and the transferring Investor shall
give a new Transfer Notice containing such amended terms and conditions.  Subject to compliance with Section 1, 2,
3 and 4 herein (including any applicable time periods set forth in those
Sections), and subject to Section 6(c) herein, the Investor holding
such Shares to be Transferred shall have the right, after receipt by the
Company and the other Investors of the Transfer Notice, to Transfer Shares in
accordance with the terms set forth in such Transfer Notice.


 


(c)           Restrictions on Transfers under Rule 144.  After
the IPO Date, each Specified Holder shall promptly notify each Related Holder
when it has commenced a measurement period for purposes of the Rule 144
group volume limit in connection with a Transfer that is subject to such limit
and what the volume limit for such measurement period, determined as of its
commencement, will be.  Each Related
Holder shall be entitled to effect Transfers that are subject to the Rule 144
group volume limit pro rata during the applicable measurement period based on
the ratio of the relative number of Shares owned by such Related Holder to the
number of Shares owned by all Specified Holders and Related Holders at the
start of the measurement period.  In the
event any Related Holder agrees to forego its full pro rata share of the Rule 144
group volume limit by written notice thereof to the Specified Holder and all
other Related Holders, the remainder shall be reallocated pro rata among the
Specified Holder and all other Related Holders in like manner (except that the
Shares held by such foregoing Related Holder at the start of such measurement
period shall be excluded from such calculation).  The provisions of this Section 1(c) shall
not apply to any Transfer of Shares (i) pursuant to clause (i) of the
definition of Public Sale or (ii) not subject to volume limitations under Rule 144.


 


SECTION 2.         RIGHT OF FIRST OFFER


 


(a)           Company Right of First Offer.  Subject
to Section 2(i), if, at any time prior to the IPO Date, an Investor (a “Selling Investor”) proposes to
Transfer any Shares to any Person (the “Offeror”), such Selling Investor shall comply with the provisions
of this Section 2.  Within five (5) Business
Days of receipt of the Transfer Notice (the “Company Election Period”), the Company shall have the irrevocable
right to elect to purchase all, or a portion, of the Offered Shares at the
price and on the terms and conditions set forth in the Transfer Notice by
delivery of a written notice to the Selling Investor (the “Company Election Notice”).  The Company Election Notice will be binding
on and enforceable against the Company with respect to the purchase and sale of
all of such Offered Shares at the price and on the terms and conditions set
forth in the Transfer Notice.


 


4

















 


(b)           Investor Right of First Offer.  If
the Company elects not to exercise its right to purchase all of the Offered
Shares within the Company Election Period or elects to purchase less than all
of the Offered Shares, the Company shall give each Investor notice of such
election and deliver to each Investor other than the Selling Investor (each, a “Non-Selling
Investor”) and each Management Stockholder a copy of the Transfer Notice
within two (2) Business Days after the expiration of the Company Election
Period, then, within twelve (12) Business Days of the date the Company Election
Period terminates (the “Investor Election Period”), each Non-Selling
Investor shall have the right to elect (which election shall be irrevocable) to
purchase up to that portion (pro rata based upon the relative number of Shares
owned by such Non-Selling Investor to the Shares owned by all other Non-Selling
Investors at such time) of the remaining Offered Shares at the price and on the
terms and conditions set forth in the Transfer Notice by delivery of a written
notice to the Company (the “Investor Election
Notice”).  The Investor
Election Notice will be binding on and enforceable against each Non-Selling
Investor with respect to the purchase and sale of all of such Offered Shares at
the price and on the terms and conditions set forth in the Transfer Notice.


 


(c)           Investor Over-Allotment Period.  If
the Company has elected not to exercise its right to purchase all of the
Offered Shares within the Company Election Period or elected to purchase less
than all of the Offered Shares and the Non-Selling Investors have in the
aggregate elected to purchase some but less than all of the Offered Shares, the
Company shall give those Non-Selling Investors, if any, who elected to purchase
all of the Offered Shares (a “Fully Subscribed Non-Selling Investor”)
which were available to be purchased by them pursuant to Section 2(b), a
notice within two (2) Business Days of the expiry of the Investor Election
Period of the number of additional Offered Shares available to be purchased
(the “Remaining Offered Shares”). 
Each Fully Subscribed Non-Selling Investor may elect (which election
shall be irrevocable) to purchase up to its pro rata share (based on the ratio
of the relative number of Shares owned by such Fully Subscribed Non-Selling
Investor to the number of Shares owned by all of the Fully Subscribed
Non-Selling Investors) of the Remaining Offered Shares by delivery to the
Company of a written notice (the “Second Investor Election Notice”)
within seven (7) Business Days of the expiry of the Investor Election
Period (the “Second Investor Election Period”).  In anticipation of the contingency that not
all of the Remaining Offered Shares are elected to be purchased pursuant to the
preceding sentence (any such Remaining Offered Shares not elected to be
purchased, the “Additional Remaining Offered Shares”), each Fully
Subscribed Non-Selling Investor may also elect prior to the expiry of the
Second Investor Election Period (which election shall be made concurrently and
on the same form as the election in the previous sentence, and in any event
shall be irrevocable) to purchase up to all of the Additional Remaining Offered
Shares; provided that the Investors shall, as much as reasonably
practicable, consult with each other and coordinate the exercise of rights such
that all Remaining Offered Shares and Additional Remaining Offered Shares are
elected to be purchased and each shall use all reasonable efforts to inform the
others of the actions it will take at least three (3) Business Days in
advance of the expiration of the Second Investor Election Period and to inform
each other as promptly as practicable of any change of intention made
thereafter, but prior to the expiration of the Second Investor Election Period.  To the extent that there are Remaining
Offered Shares and the Fully Subscribed Non-Selling Investors have, in the
aggregate, elected to purchase more of the Remaining Offered Shares than are
available, such Remaining Offered Shares shall be apportioned pro rata amongst
the Fully Subscribed Non-Selling Investors who have elected to


 


5

















 


purchase Remaining Offered Shares (determined based on the ratio of the
number of Shares owned by each such Fully Subscribed Non-Selling Investor who
has elected to purchase more than their pro rata portion of Remaining Offered
Shares to the aggregate number of Shares held by all such Fully Subscribed
Non-Selling Investors who have elected to purchase more than their pro rata
portion of Remaining Offered Shares).


 


(d)           Restrictions.  The
right of each of the Company and the Non-Selling Investor as provided for in
this Section 2 will be void ab initio
if the Company Election Notice, all Investor Election Notices and all Second
Investor Election Notices, collectively constitute an offer to purchase less
than all of such Offered Shares.


 


(e)           Exercise.  Provided
that the Company Election Notice, all Investor Election Notices and all Second
Investor Election Notices, collectively constitute an offer to purchase all of
such Offered Shares, then within ten (10) days of receipt of the Company
Election Notice, the Investor Election Notice, and the Second Investor Election
Notice, as the case may be, either the Company or any Non-Selling Investor, or
both (in each case, the “Electing Party”), shall deliver to the Selling
Investor (by certified check or wire transfer in immediately available funds to
an account specified by the Selling Investor) the purchase price of such
Offered Shares to be purchased by the Electing Party, and the Selling Investor
shall deliver stock certificates duly endorsed for Transfer or with duly
executed stock powers or similar instruments, or such other instrument of
Transfer of such Transferred Shares as may be reasonably requested by the
Electing Party with all stock transfer taxes paid and stamps affixed.  If any Governmental Approval is required in
connection with any such purchase of Offered Shares and such Governmental
Approval has not been completed or obtained on or prior to the date scheduled
for closing, the closing of the purchase of all Offered Shares shall take place
on the third Business Day after such Governmental Approval has been completed
or obtained.  The Selling Investor and
the Electing Party shall each use reasonable efforts to complete or obtain any
such required Governmental Approval; provided, however, that
neither the Selling Investor nor the Electing Party shall be required to agree
to any divestiture or operational constraint or pay any material amount of
money (other than the filing fee payable in connection with any notification
required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, or in connection with any notification or filing under any foreign
competition laws which shall be paid by such Electing Party) as a condition of
obtaining such Governmental Approval.  
If each of the Parties has acted in good faith to complete or obtain any
such required Governmental Approval and such Governmental Approval has not been
completed or obtained on or before the date which is ninety (90) days after receipt
by the Selling Investor of the Company Election Notice, the Investor Election
Notice or the Second Investor Election Notice, as the case may be, the proposed
sale of Offered Shares subject to such required Governmental Approval shall be
cancelled with respect to such Electing Party and, for all purposes, such
Electing Party shall be deemed to have elected not to purchase such Offered Shares
pursuant to this Section 2, and the Selling Investor shall be free to
Transfer the Offered Shares to (i) any Non-Selling Investors, if any
remain, and the Company in accordance with this Section 2; provided,
that the right of each of the Company and such Non-Selling Investors set forth
in this Section 2 will be void ab
initio if the Company and such Non-Selling Investors, collectively,
offer to purchase less than all of the Offered Shares or (ii) in the
absence of any remaining Non-Selling Investor, the Offeror.  Each Electing Party shall only be required to
give customary representations and warranties, including legal authority and
capacity,


 


6

















 


non-contravention of other agreements to which it is a party and customary
stock investor representations.  Each
Electing Party shall be required to enter into any instrument, undertaking or
obligation necessary or reasonably requested and deliver all documents
necessary or reasonably requested in connection with such sale (as specified in
the Transfer Notice) as a condition to the exercise of such holder’s rights to
Transfer Shares under this Section 2.


 


(f)            Acceptance of Offer.  Subject
to Section 4, if the Company and the Non-Selling Investors have not
collectively elected to purchase all of the Offered Shares prior to the expiry
of the Investor Election Period or the Second Investor Election Period, as the
case may be, the Selling Investor shall have the right to Transfer the Offered
Shares specified in the Transfer Notice in accordance with the terms of this
Agreement, but only at a price and upon terms and conditions in the aggregate
no less favorable to the Selling Investor than those stated in the Transfer
Notice and only if the consummation of sale occurs on a date within ninety (90)
days from the end of the Investor Election Period or the Second Investor
Election Period, as the case may be.


 


(g)           Consideration.  For
purposes of calculating the purchase price of any such Transfer, if any portion
of the consideration is paid other than in cash, the Fair Market Value of any
non-cash consideration shall be determined in accordance with the definition of
Fair Market Value and any Electing Party may deliver an amount of cash equal to
the Fair Market Value of such non-cash consideration in consideration for the
Shares to be purchased by such Electing Party.


 


(h)           Closing.  The closing
of the transactions contemplated by this Section 2 shall occur at the
principal place of business of the Company unless otherwise agreed to in
writing by the parties to such transaction.


 


(i)            Certain Provisions Applicable to the ROFO.  Notwithstanding
the foregoing: (i) prior to any Transfer of Shares by a Selling Investor
pursuant to this Section 2, the Selling Investor shall, after complying
with the provisions of this Section 2, comply with the provisions of Section 4
hereof, if applicable; (ii) neither the Company nor any Investor shall be
entitled to the right of first offer (“ROFO”) under this Section 2 with
respect to a Permitted Transfer of any Shares within the meaning of clauses
(ii), (iii), (iv), or, in the event the Transfer is pursuant to a registration
involving an Initial Public Offering, (v) of the definition of Permitted
Transfer; (iii) no Investor shall be entitled to the ROFO under this Section 2
at any time that it owns less than 5% of such Investor’s Initial Investor
Shares; (iv) no Investor shall be entitled to the ROFO under this Section 2
in connection with a Company Sale that is a merger, consolidation, business
combination or similar transaction involving a sale of all or substantially all
of the Company; and (v) no Investor shall be entitled to the ROFO under
this Section 2 in connection with an Exit Sale pursuant to Section 3.


 


(j)            Time Limitation.  If at
the end of the 90th day after the end of the Investor Election
Period or the Second Investor Election Period, as the case may be, the Selling
Investor has not completed the proposed Transfer, the Transfer Notice shall be
null and void, and it shall be necessary for a separate Transfer Notice to be
delivered, and the terms and provisions of this Section 2 separately
complied with, in order to consummate such Transfer pursuant to this Section 2.


 


7

















 


(k)           Investor
Expenses.  The Company will pay the
reasonable fees and expenses of legal counsel (and such local counsel as may be
appropriate) for the Spectrum Investors, collectively, until such time as the Spectrum Investors
collectively cease to hold Investor Shares representing at least 25% of the
Initial Investor Shares held by the Spectrum Investors (as may be adjusted for
stock splits, stock dividends, recapitalizations, pro-rata selldowns or similar
events), and legal counsel (and such local counsel as may be
appropriate) for each of the Principal Investors, in connection with any
transaction that is the subject of this Section 2.


 


SECTION 3.         DRAG-ALONG RIGHTS


 


(a)           Drag-Along Right.  At
any time prior to the IPO Date, Investors constituting a Requisite Stockholder
Majority (collectively, the “Drag-Along Sellers”) may require each other
Investor (the “Required Sellers”) to participate in any Company Sale
pursuant to which the Drag-Along Sellers are Transferring at least 90% of the
then outstanding Shares then held by the Drag-Along Sellers for consideration consisting
of cash and cash equivalents (an “Exit
Sale”) to an Independent Third Party (a “Drag-Along Transferee”) in a bona fide arm’s length
transaction or series of transactions (including pursuant to a stock sale,
asset sale, recapitalization, tender offer, merger or other business
combination transaction or otherwise) at the purchase price and upon the terms
and subject to the conditions of the Exit Sale (all of which shall be set forth
in the Drag-Along Notice as hereinafter defined).  In connection with an Exit Sale, the Company may
also require each Required Seller to vote in favor of such Exit Sale or act by
written consent approving the same with respect to all Shares owned by such Required
Seller, as necessary or desirable to authorize, approve and adopt the Exit
Sale.  Without limiting the foregoing, if
an Exit Sale requires the approval of the Company’s stockholders, each Investor
shall waive any dissenters’ rights, appraisal rights or similar rights in
connection with such Exit Sale or Company Sale. 
In the event that a sale is proposed pursuant to this Section 3,
all outstanding proposals to Transfer Shares shall immediately be withdrawn and
no Transfer of Shares shall be consummated until the expiration of the time
period provided for in Section 3(e). 
The consummation of an Exit Sale by the Drag-Along Sellers shall be
subject to the sole discretion of the Drag-Along Sellers, who shall have no
liability or obligation whatsoever (other than compliance with this Section 3)
to any Required Sellers participating therein in connection with such Required
Sellers’ Transfer of Shares.


 


(b)           Notice.  The
rights set forth in Section 3(a) shall be exercised by the Drag-Along
Sellers giving written notice (the “Drag-Along Notice”) to each Required
Seller and the Company, at least ten (10) Business Days prior to the date
on which the Drag-Along Sellers expect to consummate the Transfer giving rise
to such Drag-Along Right.  In the event
that the terms and/or conditions set forth in the Drag-Along Notice are
thereafter amended in any material respect, the Drag-Along Sellers shall give
written notice (an “Amended
Drag-Along Notice”) of the amended terms and conditions of the
proposed Transfer to each Required Seller and the Company.  Each Drag-Along Notice and Amended Drag-Along
Notice shall set forth:  (i) the
name of the Drag-Along Transferee and the amount of Shares proposed to be
purchased by such Drag-Along Transferee, (ii) the proposed amount and type
of consideration and material terms and conditions of payment offered by the
Drag-Along Transferee, and (iii) a summary of any other material terms
pertaining to the Transfer.


 


8

















 


(c)           Exercise.  All
Transfers of Shares to the Drag-Along Transferee pursuant to this Section 3
shall be consummated simultaneously at the offices of the Company, unless the
Drag-Along Sellers elect otherwise, on the later of (i) a Business Day not
less than ten (10) or more than sixty (60) days after the Drag-Along
Notice is received by such Required Sellers and the Company or (ii) the
third Business Day following receipt of all material Governmental Approvals, or
at such other time and/or place as each of the parties to such Transfers may
agree.  The delivery of stock
certificates shall be made on such date, against payment of the purchase price
for such Shares, duly endorsed for Transfer or with duly executed stock powers
or similar instruments, or such other instrument of Transfer of such Shares as
may be reasonably requested by the Drag-Along Sellers and the Company, with all
stock transfer taxes paid and stamps affixed. 
Each Required Seller shall receive the same form and amount of
consideration received by the Drag-Along Sellers per Share.  To the extent that the Parties (or any
successors thereto) are to provide any indemnification or otherwise assume any
other post-closing liabilities, the Drag-Along Sellers and all Required Sellers
selling Shares in a transaction under this Section 3 shall do so severally
and not jointly (and on a pro rata basis in accordance with the Shares being
sold by each) and their respective potential liability thereunder shall not
exceed the proceeds received. 
Furthermore, each Required Seller shall only be required to give
customary representations and warranties, including title to Shares conveyed,
legal authority and capacity, and non-contravention of other agreements to
which it is a party, with respect to which indemnification or other post-closing
liabilities shall be several and not joint (and only as to the representations
and warranties given by such Required Seller) and their respective potential
liability thereunder shall not exceed the proceeds received; provided,
that in connection with such transaction no Investor shall be required to enter
into any non-competition agreement.  Each
Required Seller shall be required to enter into any instrument, undertaking or
obligation necessary or reasonably requested and deliver all documents
necessary or reasonably requested in connection with such sale (as specified in
the Drag-Along Notice) in connection with this Section 3.


 


(d)           Time Limitation.  If at
the end of the 90th day after the receipt of the Drag-Along Notice
the Drag-Along Sellers have not completed the proposed Transfer, the Drag-Along
Notice shall be null and void, and it shall be necessary for a separate Drag-Along
Notice to be delivered, and the terms and provisions of this Section 3
separately complied with, in order to consummate such Transfer pursuant to this
Section 3; provided, that such 90 day time period may be extended
at the option of the Drag-Along Sellers for a reasonable period of time not to
exceed an additional 90 days to the extent that the failure to complete the
proposed Transfer has resulted from the failure to obtain the necessary
Governmental Approvals with respect to the Exit Sale.


 


(e)           Investor Expenses.  The Company will pay the reasonable fees and
expenses of legal counsel (and such local counsel as may be appropriate) for
the Spectrum Investors, collectively, until such time as the Spectrum Investors collectively cease to hold Investor
Shares representing at least 25% of the Initial Investor Shares held by the
Spectrum Investors (as may be adjusted for stock splits, stock dividends,
recapitalizations, pro-rata selldowns or similar events), and legal
counsel (and such local counsel as may be appropriate) for each of the
Principal Investors, in connection with any transaction that is the subject of
this Section 3.


 


9

















 


SECTION 4.         TAG-ALONG RIGHTS


 


(a)           Notice.  Subject
to Section 4(d) and after complying with the provisions of Section 2
to the extent applicable, if at any time (including, for the avoidance of
doubt, following the IPO Date) a Selling Investor (referred to in this Section 4
as the “Tag-Along Seller”)
proposes to Transfer Shares held by such Tag-Along Seller to any Person other
than the Company (except where the Tag-Along Seller is a Principal Investor and
the transferee is the Company, in which case the provisions of this Section 4
will apply) or the Non-Selling Investors pursuant to Section 2, whether in
one transaction or in a series of related transactions, then such Tag-Along
Seller shall comply with the provisions of this Section 4.  In addition to the information required to be
provided in the Transfer Notice pursuant to Section 1(b), the Tag-Along
Seller shall provide additional information with respect to the proposed Transfer
as reasonably requested by the Non-Selling Investors to the Company.  Following receipt of such additional
information, the Company shall promptly deliver such additional information to
the Management Stockholders and the Non-Selling Investors.


 


(b)           Tag-Along Right.  If
the Company and the Non-Selling Investors have in the aggregate not elected to
purchase all of the Offered Shares pursuant to Section 2, the Company
shall give the Non-Selling Investors and the Management Stockholders, a notice
within two (2) Business Days after the expiry of the Investor Election
Period or the Second Investor Election Period, as the case may be, that all of
the Offered Shares were not elected to be purchased and informing such
Non-Selling Investor of their opportunity to participate in a tag-along sale
pursuant to this Section 4 and informing the Management Stockholders of
their opportunity to participate in the tag-along sale pursuant to the
Management Stockholders Agreement.  The Non-Selling
Investors and the Management Stockholders shall have the right, exercisable
upon written notice to the Tag-Along Seller within seven (7) Business Days
after the expiration of the Investor Election Period or the Second Investor
Election Period, as the case may be (the “Tag-Along Election Period”),
to participate in the proposed Transfer by the Tag-Along Seller to any Person
(the “Tag-Along Transferee”)
on the terms and conditions set forth in such Transfer Notice (such
participation rights being hereinafter referred to as “Tag-Along Rights”).  Any Non-Selling Investor and any Management
Stockholder that has not notified the Tag-Along Seller of its intent to
exercise Tag-Along Rights within the Tag-Along Election Period shall be deemed
to have elected not to exercise such Tag-Along Rights with respect to the sale
contemplated by such Transfer Notice and the Tag-Along Seller and the
Non-Selling Investors and the Management Stockholders who have exercised such
Tag-Along Rights shall thereafter be free to Transfer to the Tag-Along
Transferee at a per share price no greater than the per share price set forth
in the Transfer Notice with respect to such Transfer and on other terms and
conditions that are not materially more favorable to the Tag-Along Seller and
the Non-Selling Investors and the Management Stockholders who have exercised
such Tag-Along Rights than those set forth in such Transfer Notice, without any
further obligation to such Non-Selling Investor(s) and Management
Stockholder(s) pursuant to this Section 4(b) that have not provided
notice to exercise Tag-Along Rights. 
Each Non-Selling Investor and Management Stockholder that elects to
exercise Tag-Along Rights may participate with respect to the Shares owned by
such Investor or with respect to the number of whole Restricted Shares (as
defined in the Management Stockholders Agreement), including any (a) Restricted
Shares issuable upon exercise of Vested Options (as defined in the Management
Stockholders Agreement) or (b) any Restricted Shares


 


10

















 


that will be issuable pursuant to options that vest as a result of the
consummation of the Transfer to the Tag-Along Transferee (collectively, “Management
Shares”), as the case may be, in an amount equal to the product obtained by
multiplying (i) in the case of Non-Selling Investor, the aggregate number
of Shares owned by such Non-Selling Investor on the date of the sale and, in
the case of a Management Stockholder, the aggregate number of Management Shares
owned by such Management Stockholder on the date of the Sale by (ii) a
fraction, the numerator of which is equal to the number of Shares proposed to
be sold by the Tag-Along Seller and the denominator of which is the aggregate
number of Shares owned by the Tag-Along Seller (the “Eligible Shares”).  If one or more Non-Selling Investors and
Management Stockholders elects not to include the maximum number of Eligible
Shares in a proposed sale, the Tag-Along Seller shall give prompt notice to
each other participating Non-Selling Investors and participating Management
Stockholders and such other participating Investor and participating Management
Stockholders may sell in the proposed sale a number of additional Shares or
Management Shares, as the case may be, owned by any of them equal to their pro
rata portion (based upon the aggregate number of Shares owned by such Investor or
the aggregate number of Management Shares owned by such Management Stockholder,
as the case may be, relative to the aggregate number of Shares and Management
Shares owned by all Investors and Management Stockholders) of the number of
Shares and Management Shares eligible to be included in the proposed Transfer.  Such additional Shares and Management Shares which
any such Non-Selling Investor(s) or Management Stockholder(s) proposes to sell
shall not be included in the calculation of Eligible Shares of such Non-Selling
Investor or Management Stockholder.  To
the extent that the total number of Shares and Management Shares proposed to be
sold by the Tag-Along Seller and the number of Eligible Shares proposed to be Transferred
by all of the Non-Selling Investors and Management Stockholders collectively
exceeds the number of Shares and Management Shares that the Tag-Along
Transferee is willing to acquire, the number of Shares and Management Shares that
the Tag-Along Seller and each Non-Selling Investor and Management Stockholder
propose to Transfer will be reduced pro rata based upon the relative number of
Shares and Management Shares that the Tag-Along Seller and each such
Non-Selling Investor and Management Stockholder had proposed to Transfer.


 


(c)           Exercise.  At
the closing of the Transfer to any Tag-Along Transferee pursuant to this Section 4,
the delivery of stock certificates shall be made on such date by the Tag-Along
Seller and such Non-Selling Investors and Management Stockholders exercising
Tag-Along Rights, against payment of the purchase price for such Shares and
Management Shares, duly endorsed for Transfer or with duly executed stock
powers or similar instruments, or such other instrument of Transfer of such
Shares and Management Shares as may be reasonably requested by the Tag-Along
Transferee and the Company, with all stock transfer taxes paid and stamps
affixed.  The consummation of such
proposed Transfer shall be subject to the sole discretion of the Tag-Along
Seller, who shall have no liability or obligation whatsoever (other than
compliance with this Section 4) to any Non-Selling Investor or Management
Stockholder participating therein in connection with such Non-Selling Investor’s
or Management Stockholder’s Transfer of Shares or Management Shares.  Each Non-Selling Investor and Management
Stockholder exercising Tag-Along Rights shall receive the same amount and form
of consideration received by the Tag-Along Seller per each Share on the same
terms and conditions as the Tag-Along Seller. 
To the extent that the Parties (or any successors thereto) are to
provide any indemnification or otherwise assume any other post-closing
liabilities, the Tag-Along Seller and all Non-Selling Investors and


 


11

















 


Management Stockholders exercising Tag-Along Rights shall do so
severally and not jointly (and on a pro rata basis in accordance with the
Shares being Transferred by each), and their respective potential liability
thereunder shall not exceed the proceeds received.  Furthermore, each Investor shall only be
required to give customary representations and warranties, including title to
Shares conveyed, legal authority and capacity, and non-contravention of other
agreements to which it is a party, with respect to which indemnification or
other post-Closing liabilities shall be several and not joint (and only as to
the representations and warranties given by such Investor) and their respective
potential liability thereunder shall not exceed the proceeds received; provided,
that in connection with such transaction no Investor or Management Stockholder shall
be required to enter into any non-competition agreement.  If any Governmental Approval is required in
connection with any such Transfer of Shares and such Governmental Approval has
not been completed or obtained on or prior to the date scheduled for closing,
the closing of Transfer of Shares and Management Shares shall take place on the
third Business Day after such Governmental Approval has been completed or
obtained.  Each participating Investor
shall be required to enter into any instrument, undertaking, obligation or make
any filing necessary or reasonably requested and deliver all documents
necessary or reasonably requested in connection with such Transfer (as
specified in the Transfer Notice) as a condition to the exercise of such holder’s
rights to Transfer Shares under this Section 4.


 


(d)           Certain Restrictions.  Notwithstanding
the foregoing, no Tag-Along Rights of any Investor or Management Stockholder shall
apply hereunder with respect to any Transfers pursuant to (i) any Permitted
Transfer within the meaning of clauses (ii), (iii), (iv) or (v) of
the definition of Permitted Transfer, (ii) any Transfer pursuant to a
Public Sale, (iii) any Exit Sale pursuant to Section 3 or (iv) in
the case of Management Stockholders, pursuant to Transfers in which the
Management Stockholders do not have tag along rights pursuant to Section 4
of the Management Stockholders Agreement.


 


(e)           Time Limitation.  If at
the end of the 90th day after the end of the Investor Election
Period or the Second Investor Election Period, as the case may be, the
Tag-Along Seller has not completed the proposed Transfer, the Transfer Notice
shall be null and void, and it shall be necessary for a separate Transfer
Notice to be delivered, and the terms and provisions of this Section 4
separately complied with, in order to consummate such Transfer pursuant to this
Section 4; provided, that such 90 day time period may be extended
at the option of the Tag-Along Seller for a reasonable period of time not to
exceed an additional 90 days to the extent that the failure to complete the
proposed Transfer has resulted from the failure to obtain the necessary
Governmental Approvals with respect to the Transfers.


 


(f)            Investor Expenses.  The Company will pay the reasonable fees and
expenses of legal counsel (and such local counsel as may be appropriate) for
the Spectrum Investors, collectively, until such time as the Spectrum Investors collectively cease to hold Investor
Shares representing at least 25% of the Initial Investor Shares held by the
Spectrum Investors (as may be adjusted for stock splits, stock dividends,
recapitalizations, pro-rata selldowns or similar events), and legal
counsel (and such local counsel as may be appropriate) for each of the
Principal Investors, in connection with any transaction that is the subject of
this Section 4.


 


12

















 


SECTION 5.         PARTICIPATION RIGHTS


 


(a)           Participation Rights.  Except
as otherwise provided in Section 5(k), on or prior to the IPO Date, the
Company shall not, and shall not permit any Subsidiary (the Company and each
Subsidiary, as “Issuer”) to, issue or sell any Shares, shares of stock
or other securities (including debt securities or other evidences of
indebtedness) which are directly or indirectly convertible into or exchangeable
or exercisable for any shares of stock or other equity securities, in each
case, to any Person or Persons, including by means of a public offering (each
an “Issuance” of “Subject Securities”), except in compliance with
this provisions of this Section 5.


 


(b)           Offer.  At
least ten (10) Business Days prior to the consummation of an Issuance, a
notice (the “Participation Notice”) shall be delivered by the Issuer and
received by each Investor (the “Participating Offerees”).  The Participation Notice shall include:


 


(i)            the principal terms and conditions of the
proposed Issuance, including (A) the amount, type and terms of the Subject
Securities to be included in the Issuance, (B) the number of Equivalent
Shares represented by such Subject Securities, if applicable, (C) each
Participating Offeree’s pro rata share of such Subject Securities based on such
Participating Offeree’s Percentage Interest in the Company (the “Participation
Portion”), (D) the price (including, if applicable, the maximum and
minimum price per Equivalent Share) per unit of the Subject Securities,
including a description of any non-cash consideration that is sufficiently
detailed to permit valuation thereof, (E) the proposed manner of
disposition, (F) the name and address of the Person to whom the Subject
Securities will be issued (the “Prospective Subscriber”) and (G) if
known, the proposed Issuance date; and


 


(ii)           an offer by the Issuer to issue, at the
option of each Participating Offeree, to such Participating Offeree such
portion of the Subject Securities to be included in the Issuance as may be
requested by such Participating Offeree (not to exceed such Participating
Offeree’s Participation Portion), on the same terms and conditions as each unit
of Subject Securities issued to Prospective Subscribers.


 


(c)           Exercise.  Each Participating
Offeree desiring to accept the offer contained in the Participation Notice
shall accept such offer by delivering a written notice of such acceptance to
the Issuer within ten (10) Business Days after the receipt of the
Participation Notice specifying the amount of Subject Securities (not to exceed
such Participating Offeree’s Participation Portion) which such Participation
Offeree desires to be issued (each a “Participating Buyer”).  Each Participation Offeree who does not
accept such offer in compliance with the above requirements, including the
applicable time periods, shall be deemed to have waived all of such Investor’s
rights to participate in such Issuance, and the Issuer shall thereafter be free
to issue Subject Securities in such Issuance to the Prospective Subscriber and
any Participating Buyers, at a price no less than the minimum price set forth
in the Participation Notice and on other principal terms in the aggregate not
substantially more favorable to the Prospective Subscriber than those set forth
in the Participation Notice, without any further obligation to such
non-accepting Participating Offerees pursuant to this Section 5.  If, prior to consummation, the terms and
conditions of such proposed Issuance as set forth in the Participation Notice
shall change with the result that the price shall be less than the minimum
price set forth in the Participation Notice or


 


13

















 


the other principal terms shall be substantially more favorable to the
Prospective Subscriber than those set forth in the Participation Notice, it
shall be necessary for the Issuer to give written notice (an “Amended
Participation Notice”) in order to consummate such Issuance; provided,
however, that if an Amended Participation Notice is issued, each
Participating Buyer shall have an additional five (5) Business Days to
exercise its right of participation as provided in this Section 5.


 


(d)           Irrevocable Acceptance.  The
acceptance of each Participating Buyer shall be irrevocable except as
hereinafter provided, and each such Participating Buyer shall be bound and
obligated to acquire in the Issuance on the same terms and conditions, with
respect to each unit of Subject Securities issued, as the Prospective
Subscriber, such amount of Subject Securities as such Participating Buyer shall
have specified in such Participating Buyer’s written commitment.


 


(e)           Time Limitation.  If at
the end of the 90th day after the receipt of the Participation
Notice the Issuer has not completed the Issuance, the Participation Notice
shall be null and void, and it shall be necessary for a separate Participation
Notice to be delivered, and the terms and provisions of this Section 5
separately complied with, in order to consummate such Issuance pursuant to this
Section 5.


 


(f)            Other Securities.  The
Issuer may condition the participation of the Participating Offerees in an
Issuance upon the purchase by such Participating Offerees of any securities
(including debt securities) other than Subject Securities (“Other Securities”)
in the event that the participation of the Prospective Subscriber(s) in such
Issuance is so conditioned.  In such
case, each Participating Buyer shall acquire in the Issuance, together with the
Subject Securities to be acquired by it, Other Securities in the same
proportion to the Subject Securities to be acquired by it as the proportion of
Other Securities to Subject Securities being acquired by the Prospective
Subscriber(s) in the Issuance, on the same terms and conditions as each unit of
Subject Securities and Other Securities being issued to the Prospective
Subscriber(s).


 


(g)           Certain Legal Requirements.  In
the event that the participation in the Issuance by a Participation Offeree as
a Participating Buyer would require under applicable law (i) the
registration or qualification of such Subject Securities or of any Person as a
broker or dealer or agent with respect to such Subject Securities where such
registration or qualification is not otherwise required for the Issuance or (ii) the
provision to any participant in the Issuance of any specified information
regarding the Company or any of its Subsidiaries or the Subject Securities that
is not otherwise required to be provided for the Issuance, such Participation
Offeree shall not have the right to participate in the Issuance.  Without limiting the generality of the
foregoing, it is understood and agreed that the Issuer shall not be under any
obligation to effect a registration of such Subject Securities under the
Securities Act or similar state statutes.


 


(h)           Further Assurances.  Each
Participating Buyer shall take or cause to be taken all such reasonable actions
as may be necessary or reasonably desirable in order to expeditiously
consummate each Issuance pursuant to this Section 5 and any related
transactions, including executing, acknowledging and delivering consents,
assignments, waivers and other documents or instruments; filing applications,
reports, returns and other documents or instruments with governmental
authorities; and otherwise cooperating with the Issuer and the Prospective
Subscriber.  Without limiting the
generality of the foregoing, each such Participating Buyer


 


14

















 


agrees to execute and deliver such subscription and other agreements
specified by the Issuer to which the Prospective Subscriber will be party.


 


(i)            Expenses.  All
costs and expenses incurred by the Issuer in connection with any proposed
Issuance of Subject Securities (whether or not consummated), including all
attorneys’ fees and charges, all accounting fees and charges and all finders,
brokerage or investment banking fees, charges or commissions, shall be paid by
the Company.  Each Participating Buyer
may retain, and the Company will pay the reasonable fees and expenses of, legal
counsel (and such local counsel as may be appropriate) in connection with such
proposed Issuance of Subject Securities (whether or not consummated).  Any other costs and expenses incurred by or
on behalf of any Participating Buyer in connection with such proposed Issuance
of Subject Securities (whether or not consummated) shall be borne by such
Participating Buyer.


 


(j)            Closing.  The
closing of an Issuance pursuant to this Section 5 shall take place (i) on
the proposed date of Issuance, if any, set forth in the Participation Notice
(provided that consummation of any Issuance may be extended beyond such date to
the extent necessary to obtain any applicable governmental approval or other
required approval or to satisfy other conditions), (ii) if no proposed
Issuance date was required to be specified in the Participation Notice, at such
time as the Issuer shall specify by notice to each Participating Buyer, provided
that such closing with respect to a Participating Buyer shall not (without the
consent of such Participating Buyer) be prior to the date that is ten (10) Business
Days after the Company issues the applicable Participation Notice and (iii) at
such place as the Issuer shall specify by notice to each Participating
Buyer.  At the closing of any Issuance
under this Section 5, each Participating Buyer shall be delivered the
notes, certificates or other instruments evidencing the Subject Securities
(and, if applicable, Other Securities) to be issued to such Participating
Buyer, registered in the name of such Participating Buyer or any designated
nominee, free and clear of any liens or encumbrances, with any transfer tax
stamps affixed, against delivery by such Participating Buyer of the applicable
consideration.


 


(k)           Excluded Transactions.  The
provisions of this Section 5 shall not apply to Issuances by the Company
as follows:


 


(i)            any Issuance of Stock upon the exchange,
exercise or conversion of any Options, Warrants or Convertible Securities
outstanding at the Effective Time or issued after the Effective Time in
compliance with the provisions of this Section 5;


 


(ii)           any Issuance of Stock at the Effective Time
in connection with the consummation of the transactions contemplated by the Merger
Agreement;


 


(iii)          any Issuance of Stock, Options, Warrants or
Convertible Securities to officers, employees, directors or consultants of the
Company or its Subsidiaries pursuant to any Board approved plan or other
arrangement validly adopted by the Board;


 


(iv)          any Issuance of Stock pursuant to an Initial
Public Offering;


 


(v)           any Issuance to the extent approved by the Requisite
Stockholder Majority (a) to stockholders and management of a target entity
in connection with any business


 


15

















 


combination or acquisition transaction involving the Company or any of
its Subsidiaries or (b) in connection with any joint venture or strategic
partnership;


 


(vi)          any Issuance of shares of Stock in connection
with any stock split, stock dividend or similar recapitalization approved by
the Requisite Stockholder Majority;


 


(vii)         any Issuance in exchange for debt securities;
or


 


(viii)        any Issuance by a Subsidiary to the Company
or a wholly-owned Subsidiary of the Company.


 


SECTION 6.         REGISTRATION RIGHTS


 


(a)           Demand
Registrations.


 


(i)            Right to Demand Registration. 
Subject to the terms of any holdback agreement as provided in Section 6(c) and
the limitations provided in this Section 6(a)(i) and Section 6(a)(ii),
the Investors shall each have the right at any time following the IPO Date to
make a written request of the Company for registration (including a Shelf
Registration) with the Securities and Exchange Commission (the “Commission”), under and in
accordance with the provisions of the Securities Act, of all or part of the
Registrable Stock beneficially owned and held of record by such Investor (each
a “Demand Registration”
and such Investor, the “Demanding
Investor”); provided, that during the first two years
following the IPO Date, the consent of at least two of the Principal Investors
shall be required prior to any Investor exercising a Demand Registration (it
being understood that if the Demanding Investor is a Principal Investor the
consent of only one additional Principal Investor shall be required to exercise
a Demand Registration); and provided, further, that the Company
may defer such Demand Registration for a single period not to exceed 90 days
during any one year period if the Board determines in the exercise of its
reasonable judgment that to effect such Demand Registration at such time would
have a material adverse effect on the Company, including interfering with any
pending or potential acquisition, disposition or securities offering of the
Company.  Within ten (10) days after
receipt of the request for a Demand Registration in accordance with this Section 6(a)(i) and
Section 6(a)(ii), the Company will send written notice (the “Demand Notice”) of such
registration request and its intention to comply therewith to all of the
Investors and, subject to Section 6(a)(iii) below, the Company will
include in such registration all the Registrable Stock with respect to which
the Company has received written requests from any Investor for inclusion
therein within twenty (20) Business Days after the date such Demand Notice is received.  All requests made pursuant to this Section 6(a)(i) will
specify the aggregate quantity of Registrable Stock requested to be registered
and will also specify the intended methods of disposition thereof.  Upon receipt of a Demand Notice, the Company
shall use its commercially reasonable efforts to effect registration of the
Registrable Stock to be registered in accordance with the intended method of
distribution specified in writing by the Demanding Investor as soon as
practicable and to maintain the effectiveness of such registration until the
first to occur of (A) the completion of such distribution or (B) ninety
(90) days (one-hundred eighty (180) days in the case of a Shelf Registration);


 


16

















 


provided,
however, that if the Company becomes and is at the time of its receipt
of a Demand Notice a “well-known seasoned issuer” (as defined in Rule 405
promulgated under the Securities Act) and is eligible to file an “automatic
shelf registration statement” (as defined in Rule 405 promulgated under
the Securities Act), the Company shall cause any Shelf Registration pursuant to
this Section 6 to be effected pursuant to an “automatic shelf registration
statement” (as defined in Rule 405 promulgated under the Securities Act).  If
available to the Company, the Company will effect such registration on Form S-3
or any equivalent or successor form under the Securities Act in which event it
shall use its commercially reasonable efforts to maintain the effectiveness of
such registration for a period of one-hundred eighty (180) days.


 


(ii)           Number of Demand Registrations.  Notwithstanding
the foregoing Section 6(a)(i) and subject to the restrictions therein
and herein, (A) each of the Principal Investors and the Spectrum Investors
shall have the right to an unlimited number of Demand Registrations of their
respective Registrable Stock on Form S-3 or any equivalent or successor
form under the Securities Act, but no more than two such Demand Registrations
shall be effected within any 12 month period, and the right to no more than two
Demand Registrations of their respective Registrable Stock on Form S-1 or
any equivalent or successor form under the Securities Act and (B) the
Investors that are not Principal Investors or Spectrum Investors, as a group, shall
have the right to no more than one Demand Registration, which Demand
Registration shall be on Form S-3 or any equivalent or successor form
under the Securities Act (the “Coinvestor Demand”), and shall have no
right to a Demand Registration on Form S-1 or any equivalent or successor
form under the Securities Act; provided, however, the Company
need not effect a Demand Registration on behalf of any such Investors that are
not Principal Investors or Spectrum Investors unless such Investors that are
not Principal Investors or Spectrum Investors are requesting a Demand
Registration with respect to Registrable Stock with an aggregate price to the
public of at least $200 million. The Company shall not be required to cause a
registration pursuant to Section 6(a)(i) to be declared effective
within a period of 90 days after the date any other Company registration
statement was declared effective pursuant to a Demand Registration request or a
filing for the Company’s own behalf.  A Demand
Registration may be withdrawn prior to the filing of the registration statement
with respect to such Demand Registration by the Investor that made such Demand Registration
request and a registration statement may be withdrawn prior to the
effectiveness thereof by the holders of a majority of the Registrable Stock
included therein, and, in either such event, such withdrawal shall not be
treated as a Demand Registration for purposes of this Section 6(a)(ii).  Investors owning a majority of Registrable
Stock with respect to a Coinvestor Demand shall have the right to control all
decisions regarding such Coinvestor Demand (including whether to effectuate or
terminate such Coinvestor Demand).


 


(iii)          Priority on Demand Registrations.  If in any Demand Registration the
managing underwriter or underwriters thereof if such registration is
underwritten, advise the Company in writing that in its or their reasonable opinion
the number of securities proposed to be sold in such Demand Registration
exceeds the number that can be sold in such offering without having a material
adverse effect on the success of the offering,


 


17

















 


including an impact on the selling price and other terms of such
offering (an “Underwriter Cutback”), the Company will include in such
registration only the number of securities that, in the reasonable opinion of
such underwriter or underwriters can be sold without having a material adverse
effect on the success of the offering, as follows: first, the securities which
the Investors, including the Demanding Investor(s) (pro rata among all such
Investors on the basis of the relative percentage of Registrable Stock then
held by all Investors who have requested that securities owned by them be so
included), propose to sell; second, the securities of any additional holders of
the Company’s securities eligible to participate in such offering, pro rata
among all such Persons on the basis of the relative percentage of such
securities then held by each of them; and third, the securities proposed to be
sold by the Company in such offering, if any. 
For purposes of any Underwriter Cutback pursuant to this Section 6(a)(iii),
all Registrable Stock proposed to be sold by any Investor shall also include
any Registrable Stock proposed to be sold by the partners, retired partners,
shareholders or Affiliates of such Investor, or the estates and family members
of any such Investor or such partners or retired partners, any trusts for the
benefit of any of the foregoing Persons and, at the election of such Investor
or such partners, retired partners, trusts or Affiliates, any Charitable
Organization to which any of the foregoing shall have contributed Registrable
Stock prior to the execution of the underwriting agreement in connection with
such Demand Registration, and such Investor and other Persons shall be deemed
to be a single selling Investor, and any pro rata reduction with respect to
such Investor shall be based upon the aggregate amount of Registrable Stock proposed
to be sold by all entities and individuals included in such selling Investor,
as defined in this sentence.  In the
event that there has been no Underwriter Cutback and the managing underwriter
or Demanding Investor determines that additional securities of the Company may
be sold in any Demand Registration without having a material adverse effect on
the success of the offering, the Company may include such securities to be
issued and sold by the Company or comparable securities held by Persons other
than the Parties.


 


(iv)          Selection of Underwriters.  Except with respect to any Initial
Public Offering, in which case the managing underwriter or underwriters shall
be chosen by the Requisite Stockholder Majority, if a Demand Registration is to
be an underwritten offering, the holders of a majority of the Registrable Stock
to be included in such Demand Registration will select a managing underwriter
or underwriters.


 


(b)           Piggyback
Registrations. If the Company at any time proposes to register under the
Securities Act any Stock or any security convertible into or exchangeable or
exercisable for Stock, whether or not for sale for its own account and other
than pursuant to a Demand Registration (it being understood that an Investor
may include its Registrable Stock in a registration effected pursuant to a
Demand Registration in accordance with Section 6(a)), on a form and in a
manner which would permit registration of the Registrable Stock held by an
Investor for sale to the public under the Securities Act, the Company shall
give written notice of the proposed registration to each Investor not later
than thirty (30) days prior to the filing thereof.  Each Investor shall have the right to request
that all or any part of its Registrable Stock be included in such
registration.  Each Investor can make
such a request by giving written notice to the Company within ten (10) Business
Days after the receipt of the Company’s notice of the


 


18

















 


proposed
registration; provided, however, that if the registration is an
underwritten registration and there is an Underwriter Cutback, the Company will
include in such registration only the number of securities that, in the
reasonable opinion of such underwriter or underwriters can be sold without
having a material adverse effect on the success of the offering, as follows:
first, the securities which the Company proposes to sell; second, the Registrable
Stock of such Investors, pro rata among all such Investors on the basis of the
relative percentage of Registrable Stock then held by all Investors who have
requested that Registrable Stock owned by them be so included (it being further
agreed and understood, however, that such underwriters shall have the right to
eliminate entirely the participation of the Investors); and third, the
comparable securities of any additional holders of the Company’s securities
(including any such securities held by current or former officers or employees
of or consultants to the Company), pro rata among all such holders on the basis
of the relative percentage of such securities then held by all such holders who
have requested that securities owned by them be so included.  For purposes of any Underwriter Cutback
pursuant to this Section 6(b), all Registrable Stock proposed to be sold
by any Investor shall also include any Registrable Stock proposed to be sold by
the partners, retired partners, shareholders or Affiliates of such Investor, or
the estates and family members of any such Investor or such partners or retired
partners, any trusts for the benefit of any of the foregoing Persons and, at
the election of such Investor or such partners, retired partners, trusts or
Affiliates, any Charitable Organization to which any of the foregoing shall
have contributed Registrable Stock prior to the execution of the underwriting
agreement in connection with such underwritten registration, and such Investor
and other Persons shall be deemed to be a single selling Investor, and any pro
rata reduction with respect to such Investor shall be based upon the aggregate
amount of securities proposed to be sold by all entities and individuals
included in such selling Investor, as defined in this sentence.  Registrable Stock proposed to be registered
and sold pursuant to an underwritten offering for the account of any Investor
shall be sold to the prospective underwriters, on the terms and subject to the
conditions of one or more underwriting agreements negotiated between the
holders of Registrable Stock to which such Registration Statement relates, the
Company and the prospective underwriters. Any Investor who holds Registrable
Stock being registered in any offering shall have the right to receive a copy
of the form of underwriting agreement and shall have an opportunity to hold
discussions with the lead underwriter of the terms of such underwriting
agreement. The Company may withdraw any Registration Statement at any time
before it becomes effective, or postpone or terminate the offering of
securities, without obligation or liability to any Investor.


 


(c)           Holdback Agreements.  Notwithstanding
any other provision of this Section 6, each Investor agrees that (if so
required by the underwriters in an underwritten offering and provided that such
condition is applicable equally to all Investors) it will not (and it shall be
a condition to the rights of each Investor under this Section 6 that such
Investor does not) offer for Public Sale any Stock during (i) a period not
to exceed one-hundred eighty (180) days after the effective date of any
Registration Statement filed by the Company in connection with an underwritten
Initial Public Offering (except as part of such underwritten registration or as
otherwise permitted by such underwriters) and (ii) a period not to exceed
ninety (90) days after the effective date of any Registration Statement filed
by the Company in connection with any underwritten Public Sale of Stock that is
not an Initial Public Offering (except as part of such underwritten
registration or as otherwise permitted by such underwriters); provided, however,
that in each case, no Investor shall object to shortening such period if the
underwriter agrees that


 


19

















 


shortening such period would not materially and adversely affect the
success of the offering; and provided  further, that no Investor
shall be released from such restrictions as provided in this Section 6(c) unless
all Investors are similarly so released pro rata based upon the relative number
of Shares owned at such time.


 


(d)           Expenses.  Except
as otherwise required by state securities or blue sky laws or the rules and
regulations promulgated thereunder, all expenses, disbursements and fees
incurred by the Company and the Investors in connection with any registration
under this Section 6 shall be borne by the Company, except that the
following expenses shall be borne by the Investors incurring the
same:  (i) the costs and expenses of counsel to such Investor to
the extent such Investor retains counsel (except the costs of one legal counsel
for all Investors to the extent retained, which shall be borne by the Company);
(ii) discounts, commissions, fees or similar compensation owing to underwriters,
selling brokers, dealer managers or other industry professionals, to the extent
relating to the distribution or sale of such Investor’s securities; and (iii) transfer
taxes with respect to the securities sold by such Investor.


 


(e)           Registration Procedures.  In
connection with any registration of Registrable Stock under the Securities Act
pursuant to this Agreement, the Company will consult with each Investor whose
equity interest is to be included in any such registration concerning the form
of underwriting agreement, shall provide to such Investor the form of
underwriting agreement prior to the Company’s execution thereof and shall
provide to such Investor and its representatives such other documents
(including comments by the Commission on the Registration Statement) as such
Investor shall reasonably request in connection with its participation in such
registration. The Company will furnish each Investor whose Registrable Stock
are registered thereunder and each underwriter, if any, with a copy of the
Registration Statement and all amendments thereto and will supply each such
Investor and each underwriter, if any, with copies of any prospectus included
therein (including a preliminary prospectus and all amendments and supplements
thereto), in such quantities as may be reasonably necessary for the purposes of
the proposed sale or distribution covered by such registration.  The Company shall not, however, be required
to maintain the Registration Statement effective or to supply copies of a
prospectus for a period beyond ninety (90) days after the effective date of
such Registration Statement (one-hundred eighty (180) days in the case of a
Shelf Registration), or such longer period as is otherwise set forth herein or
agreed to by the Company, and, at the end of such period, the Company may
deregister any securities covered by such Registration Statement and not then
sold or distributed. In the event that the Company prepares and files with the
Commission a registration statement on any appropriate form under the
Securities Act (a “Registration
Statement”) providing for the sale of Registrable Stock held by any
Investor pursuant to its obligations under this Section 6, the Company
will:


 


(i)            upon filing a Registration Statement or any
prospectus related thereto (a “Prospectus”)
or any amendments or supplements thereto, furnish to the Investors whose
Registrable Stock is covered by such Registration Statement and the
underwriters, if any, copies of all such documents;


 


(ii)           prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement as may
be necessary to keep such Registration Statement effective for the ninety (90)
day period (one-hundred eighty (180) days in the case of a Shelf Registration)
referenced in Section 6(e); cause the related Prospectus to be


 


20

















 


supplemented by any required Prospectus supplement, and as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act;
and, comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement or supplement to such
Prospectus;


 


(iii)          promptly notify the Investors and the
managing underwriters, if any, and (if requested by any such Person or entity)
confirm such advice in writing, (A) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any request by the Commission or any state
securities commission for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (C) of the issuance
by the Commission or any state securities commission of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any of the
Registrable Stock for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, and (E) of the existence of any fact
which results in a Registration Statement, a Prospectus 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 the statements therein not misleading;


 


(iv)          use its commercially reasonable efforts to
obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement;


 


(v)           if requested by the managing underwriters or
an Investor, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters or the Investors
holding a majority of the Registrable Stock being sold by Investors agree
should be included therein relating to the sale of such Registrable Stock,
including information with respect to the amount of Registrable Stock being
sold to such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten (or best
efforts underwritten) offering of the Registrable Stock to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;


 


(vi)          furnish to such Investor and each managing
underwriter at least one signed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference);


 


(vii)         deliver to such Investors and the
underwriters, if any, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
or entities may reasonably request;


 


21

















 


(viii)        prior to any Public Sale of Registrable
Stock, register or qualify or cause to be registered or qualified such
Registrable Stock for offer and sale under the securities or blue sky laws of
such jurisdictions within the United States as any Investor or underwriter
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Stock covered by the applicable Registration Statement; provided,
however, that the Company will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process or taxation in
any such jurisdiction where it is not then so subject;


 


(ix)           cooperate with the Investors and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Stock to be sold pursuant to such
Registration Statement and not bearing any restrictive legends, and enable such
Registrable Stock to be in such denominations and registered in such names as
the managing underwriters may request at least two (2) Business Days prior
to any sale of Registrable Stock to the underwriters;


 


(x)            if any fact described in clause (iii)(E) above
exists, prepare a supplement or post-effective amendment to the applicable
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Stock being sold thereunder,
such Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading;


 


(xi)           cause all Registrable Stock covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed;


 


(xii)          provide and cause to be maintained a transfer
agent and registrar for all such Registrable Stock covered by such registration
statement not later than the effective date of such registration statement;


 


(xiii)         obtain an opinion from the Company’s counsel
and a “cold comfort” letter from the Company’s independent auditors in
customary form and covering such matters as are customarily covered by such
opinions and “cold comfort” letters delivered to underwriters in underwritten
public offerings, which opinion and letter shall be reasonably satisfactory to
the underwriter, if any, and to the Investors owning a majority in interest of
the Registrable Stock being registered in such offering, and furnish to each
Investor participating in the offering and to each underwriter, if any, a copy
of such opinion and letter addressed to such Investor or underwriter;


 


(xiv)        deliver promptly to each Investor
participating in the offering and each underwriter, if any, copies of all
correspondence between the Commission and the Company, its counsel or auditors
and all memoranda relating to discussions with the Commission or its staff with
respect to the Registration Statement, other than those portions of any such
correspondence and memoranda which contain information subject to
attorney-client privilege with respect to the Company, and, upon receipt of
such


 


22

















 


confidentiality agreements as the Company may reasonably request, make
reasonably available for inspection by any seller of such Registrable Stock
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;


 


(xv)         provide a CUSIP number for all Registrable
Stock included in such Registration Statement, not later than the effective
date of the applicable Registration Statement;


 


(xvi)        enter into such agreements (including an
underwriting agreement in form reasonably satisfactory to the Company) and take
all such other reasonable actions in connection therewith in order to expedite
or facilitate the disposition of such Registrable Stock, and to the extent
required by the underwriter, participate in a road show arranged by the
underwriter with investors;


 


(xvii)       make available for inspection by a
representative of the Investors the Registrable Stock being sold pursuant to
such Registration Statement, any underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney or accountant retained
by such Investors or underwriter, all financial and other records, any
pertinent corporate documents and properties of the Company reasonably
requested by such representative, underwriter, attorney or accountant in
connection with such Registration Statement; provided, however,
that any records, information or documents that are designated by the Company
in writing as confidential shall be kept confidential by such Persons or
entities unless disclosure of such records, information or documents is
required by court or administrative order;


 


(xviii)      otherwise use its commercially reasonable
efforts to comply with all applicable rules and regulations of the
Commission and relevant state securities commissions, and make generally
available to the Investors earning statements satisfying the provisions of Section 12(a) of
the Securities Act no later than forty-five (45) days after the end of any 12-month
period (or one-hundred twenty (120) days, if such period is a fiscal year)
commencing at the end of any fiscal quarter in which Registrable Stock of such
Investor is sold to underwriters in an underwritten offering, or, if not sold
to underwriters in such an offering, beginning with the first month of the
Company’s first fiscal quarter commencing after the effective date of a
Registration Statement, which statements shall cover said 12-month periods; and


 


(xix)         take all such other commercially reasonable
actions as are necessary or advisable in order to expedite or facilitate the
disposition of such Registrable Stock, including using commercially reasonable
efforts to cause appropriate officers and employees to be available, on a
customary basis and upon reasonable notice, to meet with prospective investors
in presentations, meetings, road shows and due diligence sessions.


 


23

















 


(f)            Conditions to Investor Rights;
Indemnification by Investor.  It shall be a condition to each Investor’s
rights hereunder to have Registrable Stock owned by it registered that:


 


(i)            such Investor shall cooperate with the
Company in all reasonable respects by supplying information and executing
documents relating to such Investor or the securities of the Company owned by
such Investor in connection with such registration which are reasonably
requested by the Company;


 


(ii)           such Investor shall enter into such
undertakings and take such other action relating to the conduct of the proposed
offering which the Company or the underwriters may reasonably request as being
necessary to ensure compliance with federal and state securities laws and the rules or
other requirements of the NASD or otherwise to effectuate the offering; and


 


(iii)          such Investor shall execute and deliver an
agreement to indemnify and hold harmless the Company and each underwriter (as
defined in the Securities Act), and each Person or entity, if any, who controls
such underwriter within the meaning of the Securities Act, against such losses,
claims, damages or liabilities (including reimbursement for legal and other
expenses) to which such underwriter or controlling Person or entity may become
subject under the Securities Act or otherwise, in such manner as is customary
for registrations of the type then proposed and, in any event, comparable in
scope to indemnities given by the Company in connection with such registration,
but only with respect to information furnished by such Investor in writing and
specifically for use in the Registration Statement or Prospectus in connection
with such registration and with respect to such Investor’s failure to deliver Prospectuses
as required under the Securities Act.


 


(g)           Indemnification
and Contribution.


 


(i)            In the event of any registration under the
Securities Act of any Registrable Stock of Investors pursuant to this Section 6,
the Company hereby covenants and agrees to indemnify and hold harmless each
Investor and their respective partners, directors, officers and control persons
(within the meaning of Section 15 of the Securities Act) disposing of such
Registrable Stock (collectively, “Indemnified Persons”) from and against
any losses, claims, damages or liabilities, including reimbursement for legal
and other expenses to which such Indemnified Person may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus contained therein (in the case of any
prospectus or preliminary prospectus, in light of the circumstances under which
they were made) or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading (in the case of any prospectus or preliminary prospectus, in light
of the circumstances under which they were made), and shall reimburse, as
incurred, the Indemnified Persons for any legal or other expenses reasonably
incurred by them in connection with investigating or


 


24

















 


defending any such loss, claim, damage, liability or action in respect
thereof; provided, however, that (i) the Company shall not
be liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration in reliance upon and in conformity
with written information pertaining to such Investor and furnished to the
Company by or on behalf of such Investor specifically for inclusion therein and
(ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the indemnity agreement contained in this Section 6(g)(i) shall
not inure to the benefit of any Investor from whom the person asserting any
such losses, claims, damages or liabilities purchased the Registrable Stock
concerned, to the extent that a prospectus relating to such Registrable Stock
was required to be delivered by such Investor or underwriter under the
Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Investor results from the fact that there was not
sent or given to such Person, at or prior to the written confirmation of the
sale of such Registrable Stock to such Person, a copy of the final prospectus
if the Company had previously furnished a copy thereof to such Investor; provided,
further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to such
Indemnified Person. The Company shall also indemnify underwriters in connection
with a disposition of Registrable Stock by the Investors, and such underwriters’
respective directors, officers and control persons (within the meaning of Section 15
of the Securities Act) to the same extent as provided above with respect to the
indemnification of the such Investors if requested by a majority of such Investors.


 


(ii)           In the event of any registration under the
Securities Act of any Registrable Stock of Investors pursuant to this Section 6,
each Investor, severally and not jointly, hereby covenants and agrees to
indemnify and hold harmless the Company and its directors, officers and control
persons (within the meaning of Section 15 of the Securities Act) from and
against any losses, claims, damages or liabilities to which the Company or any
such controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or omission or alleged untrue statement or omission
was made in reliance upon and in conformity with written information pertaining
to such Investor and furnished to the Company by or on behalf of such Investor
specifically for inclusion therein; and, subject to the immediately preceding limitation,
shall reimburse, as incurred, the Company for any legal or other expenses
reasonably incurred by the Company or any such controlling person in connection
with investigating or defending any loss, claim, damage, liability or action in
respect thereof.  This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company, its


 


25

















 


directors, officers or any of its control persons (within the meaning
of Section 15 of the Securities Act).


 


(iii)          Promptly after receipt by an indemnified
party under this Section 6(g) of notice of the commencement of any
action or proceeding (including a governmental investigation), such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6(g), notify the indemnifying party
of the commencement thereof; provided, that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
under subsection (i) or (ii) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under subsection (i) or
(ii) above.  In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof the indemnifying party will not be liable to such indemnified
party under this Section 6(g) for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof.  No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (x) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, 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.


 


(iv)          The
agreements contained in this Section 6(g) shall survive the sale of
the Registrable Stock pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.


 


(v)           In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 6 is for any reason held to be unenforceable although applicable
in accordance with its terms in respect of any losses, liabilities, claims,
damages, judgments and expenses suffered by an indemnified party referred to
herein, each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, liabilities, claims, damages, judgments and
expenses in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the liable selling holders (including, in
each case, that of their respective officers, directors, employees and agents)
on the other in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages, judgments or


 


26

















 


expenses, as well as any other relevant equitable considerations.  The relative fault of the Company on the one
hand and of the liable selling holders (including, in each case, that of their
respective officers, directors, employees and agents) 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, on the one
hand, or by or on behalf of the selling holders, on the other, and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.  The
amount paid or payable by a party as a result of the losses, liabilities,
claims, damages, judgments and expenses referred to above shall be deemed to
include, subject to the limitations set forth in paragraph (vi) of this Section 6(g),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.


 


(vi)          The Company and each holder of Registrable
Stock agree that it would not be just and equitable if contribution pursuant to
this paragraph (vi) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in paragraph (v) above.  Notwithstanding the provisions of this
paragraph (vi), in the case of distributions to the public, an indemnifying
holder shall not be required to contribute any amount in excess of the amount
by which (A) the total price at which the Registrable Stock sold by such
indemnifying holder and its Affiliated indemnifying holders and distributed to
the public were offered to the public exceeds (B) the amount of any
damages which such indemnifying 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.


 


(h)           Rule 144.
The Company covenants that it will use commercially reasonable efforts to file
the reports required to be filed by it under the Securities Act and the
Exchange Act, and the rules and regulations adopted by the Commission
thereunder. Upon the request of any Investor, the Company will deliver to such
Investor a written statement as to whether it has complied with such
requirements.


 


(i)            Termination of Registration Rights.  Each
Investor’s entitlement to registration rights pursuant to this Section 6
shall expire as to any share of Stock upon (A) such share of Stock ceasing
to be subject to this Agreement, (B) the sale of such share of Stock
pursuant to an effective registration statement, (C) the sale of such
share of Stock pursuant to Rule 144, or (D) the date upon which such
share of Stock has been Transferred and, in connection therewith, an unlegended
stock certificate for such share has been issued and the sale of such share of
Stock has been permitted absent registration under the Securities Act.


 


(j)            Delay of Registration.  Notwithstanding
Section 13(c), no Investor shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the
result of any controversy that might arise with respect to the interpretation
or implementation of this Section 6.


 


27

















 


SECTION 7.         LEGEND ON CERTIFICATES


 


(a)           Legends.  To
the extent applicable, each certificate representing Stock shall bear each of
the following legends until such time as the Stock represented thereby are no
longer subject to the provisions hereof or at such time as Rule 144 or any
similar exemption under the Securities Act is available for the sale of all
such Investor’s shares during a three-month period without registration,
without reference to Rule 144(k) under the Securities Act:


 


(i)            “THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF.  NO SUCH SALE OR
DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.”


 


(ii)           “THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
OR EXCHANGED UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION OR EXCHANGE COMPLIES WITH THE PROVISIONS OF THE SECOND
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY 26, 2006,
AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND THE STOCKHOLDERS PARTY
THERETO, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.”


 


(iii)          Any legend required by the Blue Sky laws of
any state to the extent such laws are applicable to the shares represented by
the certificate so legended.


 


SECTION 8.         DURATION OF AGREEMENT


 


This Agreement shall terminate and be of no further force or effect,
except with respect to the provisions set forth in Sections 12 and 13, upon the
earlier to occur of (i) the unanimous agreement of the Principal Investors
and (ii) the date on which the JPMP Investors and the Apollo Investors no
longer satisfy the conditions necessary to designate at least one Class A-1
Director (as defined in the Company Charter) and the Carlyle Investors, the
Bain Investors and the Spectrum Investors no longer satisfy the conditions
necessary to designate at least one Class L-1 Director (as defined in the
Company Charter) to the Company Board, in each case, pursuant to the Company
Charter as in effect at the Effective Time. 
Notwithstanding the foregoing and except as may be otherwise specified
herein, in the event that this Agreement is terminated pursuant to clause (ii) of
the preceding sentence, the provisions set forth in Sections 6, 7, 8, 11, 12
and 13 shall survive.


 


28

















 


SECTION 9.         INFORMATION RIGHTS


 


(a)           Financial
Statements and Other Information.


 


(i)            The Company shall deliver to each Investor:


 


(A)          as soon as is available and in any event
within thirty (30) days after the end of each month of each fiscal year of the
Company, consolidated balance sheets of the Company and any Subsidiary of the
Company as of the end of such period, and consolidated statements of income and
cash flows of the Company and any Subsidiary of the Company for the period then
ended, prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis, except as otherwise noted
therein, and subject to the absence of footnotes and to year-end adjustments;


 


(B)           as soon as is available and in any event
within forty-five (45) days after the end of each of the first three quarters
of each fiscal year of the Company, consolidated balance sheets of the Company
and any Subsidiary of the Company as of the end of such period, and
consolidated statements of income and cash flows of the Company and any
Subsidiary of the Company for the period then ended, prepared in conformity
with generally accepted accounting principles in the United States applied on a
consistent basis, except as otherwise noted therein, and subject to the absence
of footnotes and to year-end adjustments;


 


(C)           as soon as is available and in any event within
ninety (90 )days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and any Subsidiaries of the Company
as of the end of such year, and consolidated statements of income and cash
flows of the Company and any Subsidiary of the Company for the year ended
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis, except as otherwise noted therein,
together with an auditor’s report thereon of a firm of established national
reputation; and


 


(D)          to the extent the Company is required by law
or pursuant to the terms of any outstanding indebtedness of the Company to
prepare such reports, any annual reports, quarterly reports and other periodic
reports pursuant to Section 13 or 15(d) of the Exchange Act, as
amended, actually prepared by the Company as soon as available.


 


(ii)           The Company shall inform each Principal
Investor in advance with respect to any significant corporate actions,
including extraordinary dividends or distributions, mergers, acquisitions or
dispositions of assets, issuances of significant amounts of debt or equity and
material amendments to its certificate of incorporation or bylaws.


 


(iii)          From and after the date hereof, the Investors
shall not and, in each case, shall cause each of their respective Permitted
Transferees and other representatives not to, directly or indirectly, disclose,
reveal, divulge or communicate to any Person other


 


29

















 


than authorized representatives of the Company or use or otherwise
exploit for its own benefit or for the benefit of anyone other than the
Company, any confidential information obtained pursuant to this Section 9
of or relating to the business conducted by the Company, unless (i) compelled
to disclose by judicial or administrative process or by other requirements of
law or governmental authorities or (ii) disclosed in an action brought by
a party hereto in pursuit of its rights or in the exercise of its remedies
hereunder; provided, however, that in the event disclosure is
required by applicable law, the Investors shall, to the extent reasonably
possible, provide the Company with prompt notice of such requirement prior to
making any disclosure so that the Company may seek an appropriate protective
order.  For purposes of this Section 9(a)(iii),
“confidential information” does not include, and there shall be no obligation
hereunder with respect to, information that (i) is generally available to
the public on the date of this Agreement or (ii) becomes generally
available to the public other than as a result of a disclosure not otherwise
permissible thereunder.


 


(b)           Other Information.  The
Company and any Subsidiary of the Company shall provide to each Principal Investor,
and as applicable create and/or generate, any information as a Principal
Investor may reasonably request, including true and correct copies of all
documents, reports, financial data and other information.


 


SECTION 10.       REGULATORY MATTERS


 


(a)           Cooperation of Other Stockholders.  Each
Investor agrees to cooperate with the Company in all reasonable respects in
complying with the terms and provisions of the letter agreement between the
Company and the JPMP Investors, a copy of which is attached hereto as Exhibit B,
regarding regulatory matters (the “Second Amended and Restated Regulatory
Sideletter”), including voting to approve amending the Company Charter, the
Company’s bylaws or this Agreement in a manner reasonably acceptable to the
Parties and the JPMP Investors entitled to make such request pursuant to the
Second Amended and Restated Regulatory Sideletter in order to remedy a
Regulatory Problem (as defined in the Second Amended and Restated Regulatory
Sideletter).


 


(b)           Covenant Not to Amend.  The
Company and each Party agrees not to amend or waive the voting or other
provisions of the Company Charter, the Company’s bylaws, this Agreement or any
Agreement listed on Schedule 10(b) hereto if such amendment or waiver
would cause the JPMP Investors to have a Regulatory Problem.  The JPMP Investors agree to notify the
Company as to whether or not it would have a Regulatory Problem promptly after
the JPMP Investors have notice of such amendment or waiver.


 


(c)           Exception.  Anything
contained in this Section 10 to the contrary notwithstanding, no Investor
shall be required under this Section 10 to take any action or abstain from
taking any action that would adversely affect such Investor’s investment in the
Company or reasonable expectations related to the transactions contemplated by
such investment.


 


30

















 


SECTION 11.       EFFECTIVENESS OF
AGREEMENT


 


This Agreement shall become
effective at the Effective Time.  Prior
to the Effective Time, this Agreement shall have no force or effect, and no
Investor shall have any rights, obligations or claims against or with respect
to the Company or any other Investor pursuant to this Agreement (it being
understood and agreed that prior to the Effective Time the Initial Stockholders
Agreement shall remain in full force and effect).


 


SECTION 12.       DEFINITIONS


 


(a)           As used in this Agreement, the following
terms have the following meanings:


 


“3% Owner” has the
meaning set forth in the definition of Independent Third Party below.


 


“Additional Remaining
Offered Shares” has the meaning set forth in Section 2(c).


 


“Affiliate” means with respect to a specified Person, any
Person that directly or indirectly controls, is controlled by, or is under
common control with, the specified Person. 
As used in this definition, the term “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.  Notwithstanding the foregoing, CSFB Strategic
Partners Holdings II, L.P., on the one hand, and CSFB Credit Opportunities Fund
(Employee), L.P. and CSFB Credit Opportunities Fund (Helios), L.P., on the
other hand, shall not be deemed to be Affiliates of each other.


 


“Affiliated Fund” means,
with respect to any specified Person, an investment fund that is an Affiliate
of such Person (including entities investing solely on behalf of the Investor
or such fund) or an entity that is directly or indirectly wholly-owned by
such Investor or one or more of such funds (other than a portfolio company of
any such fund).


 


“Agreement” has the
meaning set forth in the preamble.


 


“AMC” means AMC
Entertainment Inc., a Delaware corporation.


 


“Amended Drag-Along Notice” has the meaning set forth in Section 3(b).


 


“Amended Participation
Notice” had the meaning set forth in Section 5(c).


 


“Apollo Fund V” has
the meaning set forth in the preamble.


 


“Apollo German Partners”
has the meaning set forth in the preamble.


 


“Apollo Investors”
has the meaning set forth in the preamble.


 


“Apollo Netherlands V(A)”
has the meaning set forth in the preamble.


 


“Apollo Netherlands V(B)”
has the meaning set forth in the preamble.


 


31

















 


“Apollo Overseas” has
the meaning set forth in the preamble.


 


“Approving Principal
Investor Parties” has the meaning set forth in the definition of Requisite
Stockholder Majority below.


 


“Bain Investors” has
the meaning set forth in the preamble.


 


“Blockout Period”
means the period from the Effective Time until the fifth anniversary of the
Effective Time.


 


“Board” means the board of directors of the Company.


 


“Business Day” means 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
New York, New York.


 


“Carlyle Investors”
has the meaning set forth in the preamble.


 


“Charitable Organization”
means a charitable organization as described by Section 501(c)(3) or
any successor provision of the Internal Revenue Code of 1986, as in effect from
time to time.


 


“Class A Common
Stock” has the meaning set forth in the recitals.


 


“Class L Common
Stock” has the meaning set forth in the recitals.


 


“Class N Common
Stock” has the meaning set forth in the recitals.


 


“Coinvestor Demand”
has the meaning set forth in Section 6(a)(ii).


 


“Commission” has the meaning set forth in Section 6(a)(i).


 


“Common Stock” means
the Class A Common Stock, the Class L Common Stock, the Class N
Common Stock, the residual common stock, par value $0.01 per share, of
the Company and any other class
or series of common stock of the Company.


 


“Company” has the meaning set forth in the preamble.


 


“Company Charter”
means the amended and restated certificate of incorporation of the Company as
in effect as of the Effective Time.


 


“Company Election Notice”
has the meaning set forth in Section 2(a).


 


“Company Election Period”
has the meaning set forth in Section 2(a).


 


“Company Sale” means
any one of the following:  (i) a change in the ownership or
control of the Company or AMC effected through a transaction or series of
transactions (including by way of merger, consolidation, business combination
or similar transaction involving the Company or any of its Subsidiaries)
whereby any “person” or related “group” of “persons” (as


 


32

















 


such terms are used in Sections 13(d) and 14(d)(2) of the
Exchange Act) (other than the Company, any of its Subsidiaries, an employee
benefit plan maintained by the Company or any of its Subsidiaries, or a “person”
that, prior to such transaction, directly or indirectly controls, is controlled
by, or is under common control with, the Company) directly or indirectly
acquires beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act), of more than fifty percent (50%) of the Stock then outstanding,
or of securities of the Company or AMC (or options, rights or warrants to
purchase or securities convertible into or exchangeable for such securities)
possessing more than fifty percent (50%) of the total combined voting power of
the Company’s or AMC’s securities outstanding, in either case immediately after
such transaction or series of transactions; or (ii) the sale, lease,
transfer, conveyance or other disposition (other than by way of a transaction
that would not be deemed a Company Sale pursuant to clause (i) above), in
one or a series of related transactions, of all or substantially all of the
assets of the Company or AMC, or the Company and its Subsidiaries taken as a
whole, to any “person” (as defined above).


 


“Competitive Opportunity”
has the meaning set forth in Section 13(b).


 


“Convertible Securities”
means any evidence of indebtedness, shares of stock or other securities (other
than Options or Warrants) which are directly or indirectly convertible into or
exchangeable or exercisable for shares of Stock.


 


“Demand Notice” has the meaning set forth in Section 6(a)(i)


 


“Demand Registration” has the meaning set forth in Section 6(a)(i)


 


“Demanding Investor” has the meaning set forth in Section 6(a)(i)


 


“Drag-Along Notice” has the meaning set forth in Section 3(b).


 


“Drag-Along Sellers”
has the meaning set forth in Section 3(a).


 


“Drag-Along Transferee” has the meaning set forth in Section 3(a).


 


“Effective Time” has
the meaning set forth in the Merger Agreement.


 


“Electing Party” has
the meaning set forth in Section 2(e).


 


“Eligible Shares” has the meaning set forth in Section 4(b).


 


“Equivalent Shares”
means, at any date of determination, (a) as to any outstanding shares of
Stock, such number of shares of Stock, (b) as to any outstanding Options,
Warrants or Convertible Securities, the maximum number of shares of Stock for
which or into which such Options, Warrants or Convertible Securities may at the
time be exercised, converted or exchanged (or which will become exercisable,
convertible or exchangeable on or prior to, or by reason of, the transaction or
circumstances in connection with which the number of Equivalent Shares is to be
determined) and (c) in respect of any Subsidiary of the Company, (i) as
to any outstanding shares of stock of any Subsidiary of the Company, such
number of shares of stock or (ii) as to any outstanding options, warrants
or convertible securities, the maximum number of shares of stock of any
Subsidiary of the Company for which or into which such options, warrants or
convertible


 


33

















 


securities may at the time be exercised, converted or exchanged (or
which will become exercisable, convertible or exchangeable on or prior to, or
by reason of, the transaction or circumstances in connection with which the
number of Equivalent Shares is to be determined).


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations in effect thereunder.


 


“Exit Sale” has the meaning set forth in Section 3(a).


 


“Fair Market Value” with respect to any non-cash consideration
shall be determined as follows:


 


(i)            if such non-cash consideration is a security
and is listed on one or more national securities exchanges (within the meaning
of the Exchange Act), the Fair Market Value shall be the average closing price
of such security for the twenty (20) most recent trading days prior to the
delivery of the Transfer Notice on the principal exchange on which such
security is then trading;


 


(ii)           if such non-cash consideration is a security
and is not traded on a national securities exchange but is quoted on NASDAQ or
a successor quotation system, the Fair Market Value shall be the average last
sales price for the twenty (20) most recent trading days prior to the delivery
of the Transfer Notice as reported by NASDAQ or such successor quotation
system; or


 


(iii)          if such non-cash consideration is a security
and is not publicly traded on a national securities exchange and is not quoted
on NASDAQ or a successor quotation system, or if such non-cash consideration is
not a security, the Fair Market Value shall be determined in good faith by the
Board.


 


“Former LCE Investors”
has the meaning set forth in the preamble.


 


“Fully Subscribed
Non-Selling Investor” has the meaning set forth in Section 2(c).


 


“Ginger” has the
meaning set forth in the preamble.


 


“Governmental Approval” means, with respect to any Transfer of
Shares, any consent or other action by, or filing with, any governmental
authority required in connection with such Transfer and the expiration or early
termination of any applicable statutory waiting period in connection with such
action or filing.


 


“Independent Third Party”
means any Person who, immediately prior to the contemplated transaction, (i) does
not own, either directly or through one or more intermediaries, in excess of 3%
of the Shares (any Person owning in excess of 3% of the Shares being referred
to herein as a “3% Owner”) and (ii) is not an Affiliate of any such
3% Owner.


 


“Initial Investor Shares”
means that number of Shares held by an Investor immediately following the
Effective Time, as the same may be adjusted for stock splits, stock dividends,
recapitalizations, pro-rata sell-downs or similar events.


 


34

















 


“Initial Public Offering”
means the initial public offering of Stock registered on Form S-1 (or any
equivalent or successor form under the Securities Act).


 


“Initial Stockholders
Agreement” has the meaning set forth in the preamble.


 


“Investor” or “Investors” means each of the JPMP
Investors, the Apollo Investors, the Other Marquee Investors, the Carlyle
Investors, the Bain Investors, the Spectrum Investors and any other subsequent
holder of Shares who becomes an Investor bound by the terms of this Agreement
in accordance with the terms of this Agreement.


 


“Investor Election Notice”
has the meaning set forth in Section 2(b).


 


“Investor Election Period”
has the meaning set forth in Section 2(b).


 


“IPO Date” means the date on which the Company consummates its
Initial Public Offering.


 


“Issuance” has the
meaning set forth in Section 5(a).


 


“Issuer” has the
meaning set forth in Section 5(a).


 


“JPMP
BHCA” has the meaning
set forth in the preamble.


 


“JPMP
Cayman” has the
meaning set forth in the preamble.


 


“JPMP
Cayman II” has the
meaning set forth in the preamble.


 


“JPMP
Global” has the
meaning set forth in the preamble.


 


“JPMP
Investors” has the
meaning set forth in the preamble.


 


“JPMP Selldown” has the
meaning set forth in the preamble.


 


“LCE Holdings” has
the meaning set forth in the recitals.


 


“Litigation” has the
meaning set forth in Section 13(e).


 


“Luke” has the
meaning set forth in the preamble.


 


“Management Stockholder”
has the meaning set forth in the recitals.


 


“Management Stockholders
Agreement” has the meaning set forth in the recitals.


 


“Merger” has the
meaning set forth in the recitals.


 


“Merger Agreement”
has the meaning set forth in the recitals.


 


“Non-Selling Investor”
has the meaning set forth in Section 2(b).


 


35

















 


“Offered Shares” has the meaning set forth in Section 1(b).


 


“Offeror” has the meaning set forth in Section 2(a).


 


“Opposing Principal
Investor Parties” has the meaning set forth in the definition of Requisite
Stockholder Majority below.


 


“Options” means any
options to subscribe for, purchase or otherwise directly acquire Stock, other
than any such option held by the Company or any right to purchase shares
pursuant to this Agreement.


 


“Other Marquee Investors”
has the meaning set forth in the preamble.


 


“Other Securities”
has the meaning set forth in Section 5(f).


 


“Participating Buyer”
has the meaning set forth in Section 5(c).


 


“Participating Offerees”
has the meaning set forth in Section 5(b).


 


 “Participation Notice” has the meaning
set forth in Section 5(b).


 


“Participation Portion”
has the meaning set forth in Section 5(b)(i).


 


“Party” and “Parties”
has the meaning set forth in the preamble.


 


“Percentage Interest” means the number of shares of Stock owned
by an Investor, divided by the aggregate outstanding shares of Stock of the
Company owned by the Investors, expressed as a percentage.


 


“Permitted Transfer” means: 
(i) a Transfer approved by the Requisite Stockholder Majority, (ii) a
Transfer to an Affiliated Fund of such Investor; provided such
transferee remains at all times an Affiliated Fund of such transferor following
the Transfer; (iii) following an Initial Public Offering, a Transfer by an
Investor made as part of a distribution by an Investor to its respective
general or limited partners or members in accordance with such Investor’s fund
documents, as the case may be; (iv) in connection with or after an Initial
Public Offering, a Transfer by any Investor to one or more Charitable
Organizations that, in the aggregate when taken together with any and all such
Transfers to one or more Charitable Organizations, shall not exceed 20% of the
Initial Investor Shares held by such Investor; (v) a Transfer made by a
JPMP Investor pursuant to and in accordance with the Amended and Restated
Regulatory Sideletter; or (vi) a Transfer made pursuant to the
registration rights as set forth in Section 6; provided that such
transferee, in the case of clauses (i), (ii) and (v) above shall agree
in writing with the Parties to be bound by, and to comply with, all applicable
provisions of and to be deemed to be an Investor for purposes of this
Agreement; provided, further, that such transferee in the case of
clause (iv) above shall agree in writing with the parties to be bound by,
and to comply with this Agreement other than Sections 5 and 9.  For the avoidance of doubt, (A) any
Permitted Transfer made pursuant to clause (i) of this definition is
subject to the provisions of Section 4, and (B) a transferee of
Shares subsequent to the IPO Date may, but shall not be required to (unless
otherwise provided above),


 


36

















 


agree in writing with the Parties to be bound by, and to comply with,
all applicable provisions of and to be deemed to be an Investor for purposes of
this Agreement.


 


“Permitted Transferee”
means any Person who acquires Shares pursuant to clauses (i) and (ii) of
the definition of Permitted Transfer.


 


 “Person”
includes any individual, corporation, association, partnership (general or
limited), joint venture, trust, estate, limited liability company, or other
legal entity or organization.


 


“Pre-Existing Marquee
Investors” has the meaning set forth in the preamble.


 


“Principal Investor”
means any one of (i) the JPMP Investors, collectively, (ii) the
Apollo Investors, collectively, (iii) the Carlyle Investors, collectively,
and (iv) the Bain Investors, collectively; provided, however,
that any such Principal Investor shall cease to be a Principal Investor at such
time as such Principal Investor ceases to hold Shares representing at least 25%
of the Initial Investor Shares held by such Principal Investor (in each case,
as may be adjusted for stock splits, stock dividends, recapitalizations, pro-rata
selldowns or similar events).  For the
avoidance of doubt, so long as there are two or more Principal Investors,
references in this Agreement to “Principal Investors” shall mean all Principal
Investors then remaining, and if at any time there is only one Principal
Investor, references in this Agreement to “the Principal Investors” or “each
Principal Investor” shall mean that sole Principal Investor then remaining.


 


“Prospective Subscriber”
has the meaning set forth in Section 5(b)(i).


 


“Prospectus” has the meaning set forth in Section 6(e)(i).


 


“Public Sale” means a Transfer pursuant to (i) a bona fide
underwritten public offering pursuant to an effective registration statement
filed under the Securities Act or (ii) Rule 144 (other than in a
privately negotiated sale).


 


“Registrable Stock” means with respect to any Investor, all
Stock held by such Investor, including any Stock received, directly or
indirectly, with respect to or in exchange of, or substitution for or
conversion of such Stock, including by way of dividend or distribution,
recapitalization, merger, consolidation or other reorganization, other than
Stock (i) sold by an Investor in a transaction in which such Investor’s
rights under this Agreement are not assigned, (ii) sold pursuant to an effective
registration statement under the Securities Act or (iii) sold in a
transaction exempt from the registration and prospectus delivery requirements
of the Securities Act (including transactions under Rule 144) so that all
transfer restrictions and restrictive legends with respect thereto, if any, are
removed upon the consummation of such sale.


 


“Registration Statement” has the meaning set forth in Section 6(e).


 


“Regulatory Problem”
has the meaning set forth in the Amended and Restated Regulatory Side letter.


 


“Related Holder” has
the meaning set forth in the definition of Specified Holder below.


 


“Remaining Offered Shares”
has the meaning set forth in Section 2(c).


 


37

















 


“Required Sellers”
has the meaning set forth in Section 3(a).


 


“Requisite Stockholder Majority”
means, at the time of approval or consent: (a) the consent of three of the
Principal Investors so long as there are four Principal Investors, provided,
however, if two of the Principal Investors (the “Approving Principal
Investor Parties”) consent to the exercise of any right or the taking of
any action but the other two Principal Investors (the “Opposing Principal
Investor Parties”) do not consent to the exercise of such right or the
taking of such action and (i) a Pre-Existing Marquee Investor is an
Approving Principal Investor Party and another Pre-Existing Marquee Investor is
an Opposing Principal Investor Party, (ii) a Former LCE Investor is an
Approving Principal Investor Party and another Former LCE Investor is an
Opposing Principal Investor Party, and (iii) the Spectrum Investors hold
Shares representing at least 25% of the Initial Investor Shares held by the
Spectrum Investors, then the “Requisite Stockholder Majority” shall mean the
consent of the Approving Principal Investor Parties plus the consent of the
Spectrum Investors; (b) the consent of two of the Principal Investors, so
long as there are two or three Principal Investors; (c) the consent of one
Principal Investor, so long as there is only one Principal Investor; or (d) the
consent of holders of a majority of the issued and outstanding shares of Class A
Common Stock and Class L Common Stock, voting together as a single class,
so long as there is no Principal Investor. 
For the avoidance of doubt, for purposes of determining the Requisite
Stockholder Majority, the taking of any action or the exercise of any right
(including the granting of any consent or approval) by any Principal Investor
or by the Spectrum Investors shall be determined by the holders of a majority
of the Shares held by such Principal Investor or the Spectrum Investors (as
applicable).


 


“ROFO” has the meaning set forth in Section 2(i).


 


“Rule 144” means Rule 144,
or any successor thereto, promulgated under the Securities Act.


 


“Scarlett” has the
meaning set forth in the preamble.


 


“Second Amended and
Restated Regulatory Sideletter” has the meaning set forth in Section 10(a).


 


“Second Investor Election
Notice” has the meaning set forth in Section 2(c).


 


“Second Investor Election
Period” has the meaning set forth in Section 2(c).


 


“Securities Act” means the Securities Act of 1933, as amended,
and the rules and regulations in effect thereunder.


 


“Selling Investor” has the meaning set forth in Sections 2(a).


 


“Shares” means (a) all
shares of Stock, whenever issued, including all shares of Stock issued upon the
exercise, conversion or exchange of any Options, Warrants or Convertible
Securities and (b) all Options, Warrants and Convertible Securities
(treating such Options, Warrants and Convertible Securities as a number of
Shares equal to the number of Equivalent


 


38

















 


Shares represented by such Options, Warrants and Convertible Securities
for all purposes of this Agreement except as otherwise specifically set forth
herein).


 


“Shelf Registration”
shall mean a registration which covers the Registrable Stock requested to be
included therein pursuant to the provisions of Section 6(a)(i) on an
appropriate form or any similar successor or replacement form pursuant to Rule 415
of the Securities Act, and which form shall be available for the sale of the
Registrable Stock in accordance with the intended method or methods of
distribution thereof, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.


 


“Specified Holder”
means an Investor whose sale of Shares pursuant to Rule 144 would be
subject to aggregation with another Investor (such other Investor being a “Related
Holder”).


 


“Spectrum Investors”
has the meaning set forth in the recitals.


 


“Stock” means Common
Stock, together with any other classes or series of equity securities of the
Company.


 


“Subject Securities”
has the meaning set forth in Section 5(a).


 


“Subsidiary” or “Subsidiaries”
of any Person means any corporation, partnership, joint venture or other legal
entity of which such Person (either alone or through or together with any other
Person), owns, directly or indirectly, 50% or more of the stock or other equity
interests which are generally entitled to vote for the election of the board of
directors or other governing body of such corporation or other legal entity.


 


“Successor Entity”
has the meaning set forth in Section 13(k).


 


“Tag-Along Election
Period” has the meaning set forth in Section 4(b).


 


“Tag-Along Rights” has the meaning set forth in Section 4(b).


 


“Tag-Along Seller”
has the meaning set forth in Section 4(a).


 


“Tag-Along Transferee” has the meaning set forth in Section 4(b).


 


“Transfer” means a transfer, sale, assignment, pledge,
hypothecation or other disposition or exchange, including any Transfer of a
voting or economic interest in securities or other property; and “Transferring”
or “Transferred” have correlative meanings.


 


“Transfer Notice” has
the meaning set forth in Section 1(b).


 


“Warrants” means any
warrants to subscribe for, purchase or otherwise directly acquire Stock or
Convertible Securities.


 


(b)           Unless the context of this Agreement
otherwise requires, (i) words of any gender include each other gender; (ii) words
using the singular or plural number also include the plural


 


39

















 


or singular number, respectively; (iii) the
terms “hereof,” “herein,” “hereby” and derivative or similar words refer to
this entire Agreement; (iv) the terms “Article” or “Section” refer to the
specified Article or Section of this Agreement; (v) the word “including”
shall mean “including, without limitation”, (vi) each defined term
has its defined meaning throughout this Agreement, whether the definition of
such term appears before or after such term is used, and (vii) the word “or”
shall be disjunctive but not exclusive.


 


(c)           References to agreements and other documents
shall be deemed to include all subsequent amendments and other modifications
thereto.


 


(d)           References to statutes shall include all
regulations promulgated thereunder and references to statutes or regulations
shall be construed as including all statutory and regulatory provisions
consolidating, amending or replacing the statute or regulation.


 


SECTION 13.       MISCELLANEOUS


 


(a)           Successors,
Assigns and Transferees. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any Party, in whole or
in part, (whether by operation of law, stock sale, merger, consolidation or
otherwise), without the prior written consent of the Parties, and any attempt
to make such assignment without such written consent shall be null and
void.  Notwithstanding the foregoing, a
Party may assign its rights, interests and obligations hereunder to a
transferee of Shares hereunder without obtaining the prior written consent of
the Parties solely in connection with Transfers of Shares made in compliance
with the provisions of this Agreement. 
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective legal representatives, heirs, legatees,
successors, and permitted assigns and any other permitted transferee of Shares
hereunder and shall also apply to any Shares acquired by Investors after the
date hereof.


 


(b)           Competitive Opportunity.  If
any Investor or any of its Affiliates acquires knowledge of a potential transaction
or matter which may be an investment or business opportunity or prospective
economic or competitive advantage in which the Company could have an interest
or expectancy, in each case, in a jurisdiction other than in the United States
of America (a “Competitive Opportunity”) or otherwise is then exploiting
any Competitive Opportunity, the Company shall have no interest in, and no
expectation that, such Competitive Opportunity be offered to it, any such
interest or expectation being hereby renounced so that each Investor (other
than any such Investor who is bound by any employment, consulting or
noncompetition agreements that prohibit such actions) shall (i) have no
duty to communicate or present such Competitive Opportunity to the Company and (ii) have
the right to hold any such Competitive Opportunity for such Investor’s (and its
agents’, partners’ or affiliates’) own account and benefit or to recommend,
assign or otherwise transfer or deal in such Competitive Opportunity to Persons
other than the Company or any Affiliate of the Company.


 


(c)           Specific Performance.  Each
Party, in addition to being entitled to exercise all rights provided herein or
granted by law, including recovery of damages, shall be entitled to specific
performance of each other Party’s obligations under this Agreement, and each
Party agrees to waive any requirement for the security or posting of any bond
in connection with such remedy. The Parties agree that monetary damages would
not be adequate compensation for any


 


40

















 


loss incurred by reason of a breach by any of them of the provisions of
this Agreement and each hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.


 


(d)           Governing Law.  This
Agreement shall be governed by and construed in accordance with the internal
laws, and not the law of conflicts which would result in the application of the
laws of another jurisdiction, of the State of Delaware.


 


(e)           Submission to Jurisdiction; Waiver of Jury
Trial.  Each of the Parties hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Court
of Chancery of the State of Delaware and of the United States of America
sitting in Delaware for any action, proceeding or investigation in any court or
before any governmental authority (“Litigation”) arising out of or
relating to this Agreement, (and agrees not to commence any Litigation relating
thereto except in such court), and further agrees that service of any process,
summons, notice or document by U.S. registered mail to its respective notice
address, as provided for in this Agreement, shall be effective service of
process for any Litigation brought against it in any such court.  Each of the Parties 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
Court of Chancery of the State of Delaware or the United States of America
sitting in Delaware 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.


 


(f)            Descriptive
Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.


 


(g)           Notices.
All notices, requests or consents provided for or permitted to be given under
this Agreement shall be in writing and shall be given either by depositing such
writing in the United States mail, addressed to the recipient, postage paid and
certified with return receipt requested, or by depositing such writing with a
reputable overnight courier for next day delivery, or by delivering such
writing to the recipient in person, by courier or by facsimile
transmission.  A notice, request or
consent given under this Agreement shall be deemed received when actually received
if personally delivered, when transmitted, if transmitted by facsimile with
electronic confirmation, the day after it is sent, if sent for next day
delivery and upon receipt, if sent by mail. 
All such notices, requests and consents shall be delivered as follows:


 


	
  (i)

  	
  if
  to the Company, addressed to it at:

  
	
   

  
	
  Marquee
  Holdings Inc.

  
	
  920 Main
  Street

  
	
  Kansas City,
  MO 64105

  
	
  Fax:

  	
  (816)
  480-4700

  
	
  Attn:

  	
  Kevin M.
  Connor

  
			



 


41

















 


	
  with a copy
  to:

  
	
   

  	
   

  
	
  Latham &
  Watkins LLP

  
	
  885 Third
  Avenue

  
	
  New York, NY
  10022

  
	
  Fax: 

  	
  (212)
  751-4864

  
	
  Attn: 

  	
  Raymond Y.
  Lin

  
	
   

  	
  David S.
  Allinson

  
	
   

  	
   

  
	
  (ii)

  	
  if
  to the JPMP Investors, addressed as follows:

  
	
   

  	
   

  
	
  J.P. Morgan
  Partners (BHCA), L.P. and affiliated funds

  
	
  1221 Avenue
  of the Americas

  
	
  39th
  Floor

  
	
  New York,
  New York 10020

  
	
  Fax: 

  	
  (212)
  899-3401

  
	
  Attn: 

  	
  Michael R.
  Hannon

  
	
   

  	
  Stephen P.
  Murray

  
	
   

  	
   

  
	
  with a copy
  to:

  
	
   

  	
   

  
	
  Latham &
  Watkins LLP

  
	
  885 Third
  Avenue

  
	
  New York, NY
  10022

  
	
  Fax: 

  	
  (212)
  751-4864

  
	
  Attn: 

  	
  Raymond Y.
  Lin

  
	
   

  	
  David S.
  Allinson

  
	
   

  	
   

  
	
  (iii)

  	
  if to the Apollo
  Investors, addressed as follows:

  
	
   

  	
   

  
	
  Apollo
  Management, L.P.

  
	
  9 West 57th
  Street

  
	
  43rd
  Floor

  
	
  New York,
  New York 10019

  
	
  Fax: 

  	
  (212)
  515-3262

  
	
  Attn: 

  	
  Marc Rowan

  
	
   

  	
  Aaron Stone

  
	
   

  	
   

  
	
  with a copy
  to:

  
	
   

  	
   

  
	
  Wachtell,
  Lipton, Rosen & Katz

  
	
  51 West 52nd
  Street

  
	
  New York,
  New York 10019

  
	
  Fax: 

  	
  (212)
  403-2000

  
	
  Attn: 

  	
  Daniel A.
  Neff

  
	
   

  	
  David C. Karp

  



 


42

















 


	
  (iv)

  	
  If to the Bain Investors, addressed as follows:

  
	
   

  	
   

  
	
  c/o Bain Capital, LLC

  
	
  111 Huntington Avenue

  
	
  Boston, Massachusetts 02199

  
	
  Facsimile: 

  	
  (617) 516-2010

  
	
  Attention:

  	
  John Connaughton

  
	
   

  	
  Phil Loughlin

  
	
   

  	
   

  
	
  with a copy to:

  
	
   

  	
   

  
	
  Ropes & Gray LLP

  
	
  One International Place

  
	
  Boston, Massachusetts 02110

  
	
  Facsimile: 

  	
  (617) 951-7050

  
	
  Attention: 

  	
  R. Newcomb Stillwell

  
	
   

  	
  Howard S. Glazer

  
	
   

  	
   

  
	
  (v)

  	
  If to the Carlyle Investors, addressed as follows:

  
	
   

  	
   

  
	
  c/o The Carlyle Group

  
	
  520 Madison Avenue, 42nd Floor

  
	
  New York, New York 10022

  
	
  Facsimile: 

  	
  (212) 381-4901

  
	
  Attention:

  	
  Michael Connelly

  
	
   

  	
  Eliot P. S. Merrill

  
	
   

  	
   

  
	
  with a copy to:

  
	
   

  
	
  Latham & Watkins LLP

  
	
  885 Third Avenue

  
	
  New York, New York 10022

  
	
  Facsimile: 

  	
  (212) 751-4864

  
	
  Attention: 

  	
  R. Ronald Hopkinson

  
	
   

  	
   

  
	
  (vi)

  	
  If to the Spectrum Investors, addressed as follows:

  
	
   

  	
   

  
	
  c/o Spectrum Equity Investors

  
	
  333 Middlefield Road

  
	
  Suite 200

  
	
  Menlo Park, CA 94025

  
	
  Facsimile: 

  	
  (415) 464-4601

  
	
  Attention:

  	
  Brion Applegate

  
	
   

  	
  Benjamin Coughlin

  
			



 


43

















 


	
  with a copy to:

  
	
   

  	
   

  
	
  Latham & Watkins LLP

  
	
  505 Montgomery Street, Suite 1900

  
	
  San Francisco, California 94111

  
	
  Facsimile: 

  	
  (415) 395-8095

  
	
  Attention:

  	
  Scott R. Haber

  
	
   

  	
  Tad J. Freese

  
	
   

  	
   

  
	
  and

  	
   

  



 


(vii) if to any Other Marquee Investor, in accordance with the
address of each such Other Marquee Investor on Schedule 1 hereto and if to
any other Investor, in accordance with the address of each such other Investor
on the signature pages attached hereto.


 


(h)           Recapitalization, Exchange, Etc. Affecting
the Company’s Shares.  The provisions of this Agreement shall apply,
to the full extent set forth herein, with respect to any and all Shares of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets, conversion to a corporation or otherwise) that
may be issued in respect of, in exchange for, or in substitution of, the Shares
and shall be appropriately adjusted for any dividends, splits, reverse splits,
combinations, recapitalizations, and the like occurring after the date hereof.


 


(i)            Counterparts.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to
constitute one and the same agreement.


 


(j)            Severability.  In
the event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal, or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired thereby.


 


(k)           Amendment.  This
Agreement may be amended, modified or extended, and the provisions hereof may
be waived, only by a written agreement approved by the Requisite Stockholder
Majority, including, for the avoidance of doubt, any amendment, modification,
extension or waiver that provides that any of the provisions of this Agreement
that would otherwise terminate shall continue after the IPO Date; provided,
that (x) the written consent of each other Party or Parties shall be required
for any such amendment, modification, extension or waiver that
disproportionately affects in any material and adverse manner such Party or
Parties or their rights or obligations hereunder relative to the other Parties,
and (y) so long as there exists at least one Principal Investor, the written
consent of Investors that are not Principal Investors owning at least a
majority of then outstanding Shares owned by Investors that are not Principal
Investors shall also be required for any such amendment, modification,
extension or waiver that disproportionately affects in any material and adverse
manner such Investors that are not Principal Investors, as a group, or their
rights or obligations hereunder relative to the Principal Investors.


 


44

















 


At any time hereafter, Persons acquiring Shares in compliance with the
provisions of this Agreement may be made parties hereto by executing a
signature page in the form attached as Exhibit A hereto, which
signature page shall be countersigned by the Company and shall be attached
to this Agreement and become a part hereof without any further action of any
other Party hereto.  Except as otherwise
provided herein, in the event that (A) the Company or any successor or
assign consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity in such consolidation or merger, (B) the
Company or any successor or assign transfers all or substantially all of its
properties and assets to any Person, or (C) a sale of the Company is
consummated pursuant to Section 3 and the Investors receive non-publicly
traded equity securities in connection with such transaction, then in the case
of either (A) or (B), proper provision shall be made and all Investors
shall execute such documents and agreements as reasonably requested by the
Principal Investors so that this Agreement shall be given full force and effect
with respect to such surviving corporation or entity or such Person that
acquires all or substantially all of the properties and assets of the Company
or any successor or assign (any such surviving corporation, entity or Person, a
“Successor Entity”), as the case may be, and the rights and obligations
of each Party hereto shall continue in full force and effect such that each
Party shall have the same rights and obligations with respect to the applicable
Successor Entity and its securities as it has with respect to the Company and
the Shares, and in the case of (C) proper provision shall be made and all
Investors shall execute such documents and agreement as reasonably requested by
the Principal Investors so that the provisions of Section 2, Section 3
and Section 4 shall survive (as may be amended as reasonably determined by
the Principal Investors) with respect to such non-publicly traded equity securities.


 


(l)            Tax Withholding.  The
Company shall be entitled to require payment in cash or deduction from other
compensation payable to any Investor of any sums required by federal, state or
local tax law to be withheld with respect to the issuance, vesting, exercise,
repurchase or cancellation of any Shares.


 


(m)          Integration.  This
Agreement, the Management Stockholders Agreement, the Second Amended and
Restated Regulatory Sideletter and any side letters by any Investor or group of
Investors, on the one hand, and the Company, on the other hand, regarding board
observer and other management rights, constitute the entire agreement among the
Parties hereto pertaining to the subject matter hereof and supersede all prior
agreements and understandings pertaining thereto, including the Initial
Stockholders Agreement and Exhibit C to the Merger Agreement.


 


(n)           Further Assurances.  In
connection with this Agreement and the transactions contemplated thereby, each
Investor shall execute and deliver any additional documents and instruments and
perform any additional acts that may be necessary or appropriate to effectuate
and perform the provisions of this Agreement and such transactions.


 


(o)           No Strict Construction.  This
Agreement shall be deemed to be collectively prepared by the Parties, and no
ambiguity herein shall be construed for or against any Party based upon the
identity of the author of this Agreement or any provision hereof.


 


(p)           No
Third Party Beneficiaries.  Neither
this Agreement, nor any provision contained herein, shall create a third-party
beneficiary relationship or otherwise confer any right,


 


45

















 


entitlement
or benefit upon any Person other than the Parties to this Agreement and their
permitted assigns.


 


(q)           No
Recourse.  Notwithstanding anything
that may be expressed or implied in this Agreement, the Company and each
Investor covenant, agree and acknowledge that no recourse under this Agreement
or any document or instrument delivered in connection with this Agreement shall
be had against any current or future director, officer, employee, agent,
general or limited partner or member of any Investor or any Affiliate or
assignee thereof, as such, whether by the enforcement of any assessment or by
any legal or equitable proceeding, or by virtue of any statute, regulation or
other applicable law, it being expressly agreed and acknowledged that no
personal liability whatsoever shall attach to, be imposed upon or otherwise be
incurred by any current or future director, officer, employee, agent, general
or limited partner or member of any Investor or any Affiliate or assignee
thereof, as such, for any obligation of any Investor under this Agreement or
any documents or instruments delivered in connection with this Agreement for
any claim based on, in respect of or by reason of such obligations or their
creation.


 


(r)            Amendment
and Restatement. At the Effective Time, this Agreement shall amend and
restate the Initial Stockholders Agreement in its entirety.


 


46

















 


IN WITNESS WHEREOF, the
Parties have executed this Second Amended and Restated Stockholders Agreement
as of the date first above written.


 


	
   

  	
  MARQUEE HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig R.
  Ramsey

  	
   

  
	
   

  	
   

  	
  Name:  Craig
  R. Ramsey

  	
   

  
	
   

  	
   

  	
  Title:  Executive
  Vice President and           
  Chief Financial Officer

  	
   

  



 


 

















 


	
   

  	
  J.P. MORGAN PARTNERS (BHCA), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    JPMP MASTER FUND MANAGER, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    JPMP CAPITAL CORP.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  J.P. MORGAN PARTNERS GLOBAL INVESTORS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    JPMP GLOBAL INVESTORS, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    JPMP CAPITAL CORP.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  J.P. MORGAN PARTNERS GLOBAL INVESTORS

  (CAYMAN), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    JPMP GLOBAL INVESTORS, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    JPMP CAPITAL CORP.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Managing Director

  	
   

  
						



 

















 


	
   

  	
  J.P. MORGAN PARTNERS GLOBAL INVESTORS

  (CAYMAN) II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    JPMP GLOBAL INVESTORS, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    JPMP CAPITAL CORP.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  J.P. MORGAN PARTNERS GLOBAL INVESTORS

  (SELLDOWN), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    JPMP GLOBAL INVESTORS, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    JPMP CAPITAL CORP.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMCE (GINGER), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    JPMP GLOBAL INVESTORS, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    JPMP CAPITAL CORP.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
						



 

















 


	
   

  	
  By:

  	
   

  	
  /s/ Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMCE (LUKE), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    JPMP GLOBAL INVESTORS, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    JPMP CAPITAL CORP.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMCE (SCARLETT), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    JPMP GLOBAL INVESTORS, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    JPMP CAPITAL CORP.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Stephen
  P. Murray

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Managing Director

  	
   

  
						



 

















 


	
   

  	
  APOLLO INVESTMENT FUND V, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    APOLLO ADVISORS V, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    APOLLO CAPITAL MANAGEMENT V,
  INC.

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  APOLLO OVERSEAS PARTNERS V, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    APOLLO ADVISORS V, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    APOLLO CAPITAL MANAGEMENT V,
  INC.

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  APOLLO NETHERLANDS PARTNERS V(A), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    APOLLO ADVISORS V, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    APOLLO CAPITAL MANAGEMENT V,
  INC.

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Vice President

  	
   

  
						



 

















 


	
   

  	
  APOLLO NETHERLANDS PARTNERS V(B), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    APOLLO ADVISORS V, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    APOLLO CAPITAL MANAGEMENT V, INC.

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  APOLLO GERMAN PARTNERS V GMBH & CO
  KG

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    APOLLO ADVISORS V, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    APOLLO CAPITAL MANAGEMENT V,
  INC.

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Patricia
  M. Navis

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Vice President

  	
   

  
						



 

















 


	
   

  	
  BAIN CAPITAL HOLDINGS (LOEWS) I, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    BAIN
  CAPITAL HOLDINGS (LOEWS) L,

  
	
   

  	
   

  	
   

  	
    L.L.C.,
  ITS ADMINISTRATIVE MEMBER

  
	
   

  	
   

  	
  BY:

  	
    BAIN
  CAPITAL HOLDINGS (LOEWS) I

  
	
   

  	
   

  	
   

  	
    L.P.,
  ITS ADMINISTRATIVE MEMBER

  
	
   

  	
   

  	
  BY:

  	
    BAIN
  CAPITAL PARTNERS VII, L.P.,

  
	
   

  	
   

  	
   

  	
    ITS
  GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    BAIN
  CAPITAL INVESTORS, LLC, ITS

  
	
   

  	
   

  	
   

  	
    GENERAL
  PARTNER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BAIN CAPITAL AIV (LOEWS) II, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    BAIN
  CAPITAL PARTNERS VIII, L.P.,

  
	
   

  	
   

  	
   

  	
    ITS
  GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    BAIN
  CAPITAL INVESTORS LLC,

  
	
   

  	
   

  	
   

  	
    ITS
  GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ John P.
  Connaughton

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  John
  P. Connaughton

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  
  Managing Director of Bain            
  Capital Investors LLC*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  
  

  

  * On behalf of
  each of Bain Capital Partners VII, L.P. and Bain Capital Partners VIII, L.P.

  
						



 

















 


	
   

  	
  TC GROUP INVESTMENT HOLDINGS,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    TCG HOLDINGS II, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    DBD INVESTORS V, L.L.C.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael
  J. Connelly

  	
   

  
	
   

  	
  Name:

  	
  Michael J. Connelly

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CARLYLE PARTNERS III LOEWS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    TC GROUP III, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    TC GROUP III, L.L.C.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    TC GROUP, L.L.C.,

  
	
   

  	
   

  	
   

  	
  ITS MANAGING MEMBER

  
	
   

  	
   

  	
  BY:

  	
    TCG HOLDINGS, L.L.C.,

  
	
   

  	
   

  	
   

  	
  ITS MANAGING MEMBER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael
  J. Connelly

  	
   

  
	
   

  	
  Name:

  	
  Michael J. Connelly

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CP III COINVESTMENT, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    TC GROUP III, L.P.,

  
	
   

  	
   

  	
   

  	
  IT GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
     TC GROUP III, L.L.C.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
  BY:

  	
    TC GROUP, L.L.C.,

  
	
   

  	
   

  	
   

  	
  ITS MANAGING MEMBER

  
	
   

  	
   

  	
  BY:

  	
    TCG HOLDINGS, L.L.C.,

  
	
   

  	
   

  	
   

  	
  ITS MANAGING MEMBER

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Michael
  J. Connelly

  	
   

  
	
   

  	
  Name:

  	
  Michael J. Connelly

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
									



 

















 


	
   

  	
  SPECTRUM EQUITY INVESTORS IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
    SPECTRUM EQUITY ASSOCIATES IV,
  L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Brion B. Applegate

  	
   

  
	
   

  	
  Name:

  	
  Brion B. Applegate

  	
   

  
	
   

  	
  Title:

  	
  General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECTRUM EQUITY INVESTORS PARALLEL IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
  SPECTRUM EQUITY ASSOCIATES IV, L.P.,

  
	
   

  	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Brion B. Applegate

  	
   

  
	
   

  	
  Name:

  	
  Brion B. Applegate

  	
   

  
	
   

  	
  Title:

  	
  General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECTRUM IV INVESTMENT MANAGERS’ FUND, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Brion B. Applegate

  	
   

  
	
   

  	
  Name:

  	
  Brion B. Applegate

  	
   

  
	
   

  	
  Title:

  	
  General Partner

  	
   

  
								



 

















 


	
   

  	
  WESTON PRESIDIO CAPITAL IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David L.
  Ferguson

  	
   

  
	
   

  	
   

  	
  Name:  David
  L. Ferguson

  
	
   

  	
   

  	
  Title:  
  General Partner

  



 

















 


	
   

  	
  WPC ENTREPRENEUR FUND II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David L.
  Ferguson

  	
   

  
	
   

  	
   

  	
  Name:  David
  L. Ferguson

  
	
   

  	
   

  	
  Title:  General Partner

  



 

















 


	
   

  	
  SSB CAPITAL PARTNERS (MASTER FUND) I, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Todd
  Benson

  	
   

  
	
   

  	
   

  	
  Name:  Todd
  Benson

  
	
   

  	
   

  	
  Title:  
  Co-President

  



 

















 


	
   

  	
  CAISSE DE DEPOT ET PLACEMENT DU QUEBEC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric
  Lachance

  	
   

  
	
   

  	
   

  	
  Name:  Eric
  Lachance

  
	
   

  	
   

  	
  Title:  Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Normand
  Provost

  	
   

  
	
   

  	
   

  	
  Normand
  Provost

  
	
   

  	
   

  	
  Executive VP
  Private Equity

  



 

















 


	
   

  	
  CO-INVESTMENT
  PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  BY: 

  	
  CIP PARTNERS, LLC

  
	
   

  	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bart D.
  Osman

  	
   

  
	
   

  	
   

  	
  Name:  Bart
  D. Osman

  
	
   

  	
   

  	
  Title:  
  Member

  



 

















 


	
   

  	
  CSFB STRATEGIC PARTNERS HOLDINGS II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter
  Song

  	
   

  
	
   

  	
   

  	
  Name:  Peter
  Song

  
	
   

  	
   

  	
  Title:  
  Vice President

  



 

















 


	
   

  	
  CSFB STRATEGIC PARTNERS PARALLEL HOLDINGS II,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter
  Song

  	
   

  
	
   

  	
   

  	
  Name:  Peter
  Song

  
	
   

  	
   

  	
  Title:  
  Vice President

  



 

















 


	
   

  	
  GSO CREDIT OPPORTUNITIES FUND (EMPLOYEE), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  f/k/a CSFB CREDIT OPPORTUNITIES FUND (EMPLOYEE),
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  GSO Capital Partners LP, as

  
	
   

  	
   

  	
  Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George
  Fan

  	
   

  
	
   

  	
   

  	
  Name:  George
  Fan

  
	
   

  	
   

  	
  Title:  
  Managing Director

  



 

















 


	
   

  	
  GSO CREDIT OPPORTUNITIES FUND (HELIOS), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  f/k/a CSFB CREDIT OPPORTUNITIES FUND (HELIOS), L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  GSO Capital Partners LP, as

  
	
   

  	
   

  	
  Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George
  Fan

  	
   

  
	
   

  	
   

  	
  Name:  George
  Fan

  
	
   

  	
   

  	
  Title:  
  Managing Director

  



 

















 


	
   

  	
  CREDIT
  SUISSE ANLAGESTIFTUNG

  
	
   

  	
  BY: 

  	
  PARTNERS
  GROUP (GUERNSEY) LIMITED,

  
	
   

  	
  UNDER POWER
  OF ATTORNEY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Denis
  O’Malley

  	
   

  
	
   

  	
  Denis O’Malley, Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Mark
  Rowe

  	
   

  
	
   

  	
  Mark Rowe, Director

  	
   

  
				



 

















 


	
   

  	
  PEARL HOLDING LIMITED EXECUTED
  BY ITS INVESTMENT MANAGER, PEARL MANAGEMENT LIMITED  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Denis
  O’Malley

  	
   

  
	
   

  	
   

  	
  Denis O’Malley, Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark
  Rowe

  	
   

  
	
   

  	
   

  	
  Mark Rowe, Director

  



 

















 


	
   

  	
  PARTNERS GROUP PRIVATE EQUITY PERFORMANCE HOLDING
  LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Denis
  O’Malley

  	
   

  
	
   

  	
   

  	
  Denis O’Malley, Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark
  Rowe

  	
   

  
	
   

  	
   

  	
  Mark Rowe, Director

  



 

















 


	
   

  	
  VEGA INVEST (GUERNSEY) LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Denis
  O’Malley

  	
   

  
	
   

  	
   

  	
  Denis O’Malley, Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark
  Rowe

  	
   

  
	
   

  	
   

  	
  Mark Rowe, Director

  



 


 

















 


	
   

  	
  ALPINVEST
  PARTNERS CS INVESTMENTS  2003 C.V.,
  by AlpInvest Partners 2003 B.V., its general partners, in its turn
  represented by AlpInvest Partners N.V., its managing director 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ E.M.J.
  Thyssen

  	
   

  
	
   

  	
   

  	
  Name: E.M.J.
  Thyssen

  
	
   

  	
   

  	
  Title:
  Managing Partner

  



 

















 


	
   

  	
  ALPINVEST
  PARTNERS LATER STAGE CO-  INVESTMENTS
  CUSTODIAN II B.V., represented by AlpInvest Partners N.V., its managing
  director 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ E.M.J.
  Thyssen

  	
   

  
	
   

  	
   

  	
  Name: E.M.J.
  Thyssen

  
	
   

  	
   

  	
  Title:
  Managing Partner

  



 

















 


	
   

  	
  ALPINVEST
  PARTNERS LATER STAGE CO-  INVESTMENTS
  CUSTODIAN IIA B.V., represented by AlpInvest Partners N.V., its managing
  director 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ E.M.J.
  Thyssen

  	
   

  
	
   

  	
   

  	
  Name: E.M.J.
  Thyssen

  
	
   

  	
   

  	
  Title:
  Managing Partner

  



 

















 


	
   

  	
  SCREEN INVESTORS 2004, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher Fillo

  	
   

  
	
   

  	
   

  	
  Name:
  Christopher Fillo

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  	
  Main Street
  Advisors, Inc.

  
	
   

  	
   

  	
  its Manager

  



 

















 


SCHEDULE 1


 


SCHEDULE OF OTHER MARQUEE INVESTORS


 


	
  Name of Other Marquee Investor

  	
   

  	
  Address

  
	
  Weston Presidio Capital IV, L.P.

  	
   

  	
  108 South Frontage Road
  West
Suite 307
Vail, Colorado 81657
Attention: Dave Ferguson
Facsimile: (970) 476-7900

  
	
  WPC Entrepreneur Fund II, L.P.

  	
   

  	
  108 South Frontage Road
  West
Suite 307
Vail, Colorado 81657
Attention: Dave Ferguson
Facsimile: (970) 476-7900

  
	
  Co-Investment Partners, L.P.

  	
   

  	
  660 Madison Avenue, 23rd
  Floor

  New York, New York 10021
Attention: Bart Osman
Facsimile: (212) 754-1494

  
	
  Caisse de Depot et Placement du Quebec

  	
   

  	
  1000, Place Jean-Paul-Riopelle,
  4th Floor

  Montreal, Quebec H2Z 2B3
Canada
Attention: Jacques Marchand
Facsimile: (514) 847-5980

  
	
  AlpInvest Partners CS Investments 2003 C.V.

  	
   

  	
  600
  Fifth Avenue, 17th Floor

  New
  York, New York 10020
Attention:
  Iain Leigh
Facsimile:

  
	
  AlpInvest Partners Later Stage Co-Investments
  Custodian II B.V.

  	
   

  	
  600
  Fifth Avenue, 17th Floor

  New
  York, New York 10020
Attention:
  Iain Leigh

  Facsimile:

  
	
  AlpInvest Partners Later Stage Co-Investments
  Custodian IIA B.V.

  	
   

  	
  600
  Fifth Avenue, 17th Floor

  New
  York, New York 10020
Attention:
  Iain Leigh

  Facsimile:

  
	
  SSB Capital Partners (Master Fund) I, L.P.

  	
   

  	
  388 Greenwich Street, 32nd Floor

  New York, NY 10013

  Attention: Rakesh K. Jain

  Facsimile: 212-816-0221

  
	
  CSFB Strategic Partners Holdings II, L.P.

  	
   

  	
  Eleven Madison Avenue, 16th
  Floor

  New York, New York 10010
Attention: Peter Song

  Facsimile: (646) 935-7048

  



 

















 


	
  CSFB Strategic Partners Parallel Holdings II, L.P.

  	
   

  	
  Eleven Madison Avenue, 16th
  Floor

  New York, New York 10010
Attention: Peter Song

  Facsimile: (646) 935-7048

  
	
  GSO Credit Opportunities Fund (Employee), L.P.

  	
   

  	
  Eleven Madison Avenue, 16th
  Floor

  New York, New York 10010
Attention: Peter Song

  Facsimile: (646) 935-7048

  
	
  GSO Credit Opportunities Fund (Helios), L.P.

  	
   

  	
  Eleven Madison Avenue, 16th
  Floor

  New York, New York 10010
Attention: Peter Song
Facsimile: (646) 935-7048

  
	
  Credit Suisse Anlagestiftung

  	
   

  	
  126 East 56th
  Street, 11th Floor
New York, New York 10022
Attention: Andreas Baumann
Facsimile: (212) 763-4701

  
	
  Pearl Holding Limited

  	
   

  	
  126 East 56th
  Street, 11th Floor
New York, New York 10022
Attention: Andreas Baumann
Facsimile: (212) 763-4701

  
	
  Partners Group Private Equity Performance Holding
  Limited

  	
   

  	
  126 East 56th
  Street, 11th Floor
New York, New York 10022
Attention: Andreas Baumann
Facsimile: (212) 763-4701

  
	
  Vega Invest (Guernsey) Limited

  	
   

  	
  126 East 56th
  Street, 11th Floor
New York, New York 10022
Attention: Andreas Baumann
Facsimile: (212) 763-4701

  
	
  Screen Investors 2004, LLC

  	
   

  	
  3110 Main Street, Suite 300

  Santa Monica, CA 90405

  Attention: Christopher M. Fillo

  Facsimile: 310-392-3541

  



 

















 


EXHIBIT A


 


SIGNATURE
PAGE

TO THE

SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT


 


By execution of this
signature page,                                                    
hereby agrees to become a party to, be bound by the obligations of and receive
the benefits of that certain Second Amended and Restated Stockholders
Agreement, dated as of                        ,
as amended from time to time, by and among Marquee Holdings Inc., a Delaware
corporation, J.P. Morgan Partners (BHCA), L.P., J.P. Morgan Partners Global
Investors, L.P., J.P. Morgan
Partners Global Investors A, L.P.,  J.P.
Morgan Partners Global Investors (Cayman), J.P.
Morgan Partners Global Investors (Cayman) II, L.P., J.P. Morgan Partners Global
Investors (Selldown), L.P., AMCE (Ginger), L.P., AMCE (Luke), L.P., AMCE
(Scarlett), L.P., Apollo Investment Fund V, L.P., Apollo Overseas Partners V,
L.P., Apollo Netherlands Partners V(A), L.P., Apollo Netherlands Partners V(B),
L.P., Apollo German Partners V GmbH & Co KG, the entities listed on Schedule 1
thereto, TC Group III, L.P., Carlyle Partners III Loews, L.P., CP III
Coinvestment, L.P., Bain Capital Holdings (Loews) I L.P., Bain Capital AIV
(Loews) II, L.P., Spectrum Equity Investors IV, L.P., Spectrum Equity Investors
Parallel IV, L.P. and Spectrum IV Investment Managers’ Fund, L.P., as amended
from time to time thereafter and shall be deemed to be an “Investor” for all
purposes thereunder.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 

















 


	
   

  	
  Notice Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted:

  	
   

  
	
   

  	
   

  	
   

  
	
  MARQUEE HOLDINGS INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  	
   

  	
   

  
							



 


26

















 


EXHIBIT B


 


 


Second
Amended and Restated Regulatory Sideletter


 


 


[Attached hereto]


 

















 


EXHIBIT C


 


 


Amended
and Restated Management Stockholders Agreement


 


 


[Attached hereto]